Elias Brothers Big Boy, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1962

137 N.L.R.B. 1057 (N.L.R.B. 1962)

ELIAS BROTHERS BIG BOY , INC., ETC. 1057
For the foregoing reasons, I find that the General Counsel had not sustained the
allegations of the complaint that Respondent violated Section 8(b)(2) and (1)(A)•
of the Act by failing and refusing to refer Hender to work for Homan during De-
cember 1960.
RECOMMENDED ORDER
Upon the basis of the foregoing findings, and -upon the entire record in the case,.
I hereby recommend that the complaint be dismissed in its entirety.
Elias Brothers Big Boy , Inc.; Greenfield Holiday, Inc.; and Holi-
day Drive In, Inc . and Local Joint Executive Board , Hotel and
Restaurant Employees , Bartenders International Union, AFL-
CIO
Elias Brothers Big Boy, Inc. and Bettie Gene Komorek. Cases
Nos. 7-CA-3207, 7-CA-3238, and 7-CA-3255. June 29, 1962
DECISION AND ORDER
On February 1, 1962, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the,
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. The Trial Examiner also found that Respondent
had not engaged in certain other unfair labor practices, and recom-
mended that the allegations in the complaint as to them be dismissed.
Thereafter, the Respondent filed exceptions to the Intermediate Report
.and a supporting brief.' The General Counsel also filed exceptions
and a supporting brief.
The Board 2 has reviewed the rulings of the Trial Examiner made
.at-the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire- record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations except as modified below.
Respondent Elias had posted in at least one of its restaurants a
company rule which read, "No solicitations allowed in any Big Boy
1 The complaint charged that Respondent Elias had discriminatorily discharged Bettie
Gene Komorek. The answer admitted the discharge , but asserted it was for good cause.
Respondent Elias now moves to amend its answer so that, in its amended form, the
answer would deny that Elias effected a discharge of Komorek. We grant the motion.
However, in so doing we note that the matter of Komorek' s termination was litigated, and
we adopt the Trial Examiner ' s conclusion that the Respondent violated the Act by its
role in such termination.
2Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Members Rodgers, Leedom,
and Brown].
137 NLRB No. 116.
649856-63--vol. 137-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drive In unless approved by the Main Office." The Trial Examiner
concluded that the rule did not violate Section 8(a) (1) of the Act
because there was no evidence that it was adopted for a discriminatory
purpose, and because, by its terms, the rule made no reference to union
solicitation. The General Counsel excepts, contending that the rule
is presumptively invalid because it prohibits union solicitation in all
parts of an Elias' restaurant during nonworking time as well as work-
ing time? We agree with the General Counsel.
In the first place, we find no relevancy in the fact that there is no
evidence bearing on the adoption of instant rule as the complaint
alleges that the Respondent ". . . had in force . . ." a rule which
prohibits employee activity guaranteed by Section 7 of the Act. Sec-
ondly, it is of no consequence in this case that the rule makes no
reference to union solicitation inasmuch as the Respondent sought to
enforce the rule against two nonemployee union organizers who were
engaged in distributing campaign literature on the Respondent's
premises. Furthermore, the Respondent subsequently discharged an
employee for refusing to surrender one of the union leaflets. Thus it
is clear that the rule, as construed, encompassed union solicitation.
Lastly, in the TValton case, the Board stated that rules which prohibit
-union solicitation by employees during their nonworking time are
-presumptively an unreasonable impediment to self-organization, and
are therefore presumptively invalid both as to their promulgation
and enforcement, but that such rules may be validated by evidence
that special circumstances make the rule necessary in order to main-
tain production or discipline.' Respondent Elias has introduced no
special circumstances in defense of its rule. Accordingly, we find,
.contrary to the Trial Examiner, that the rule is invalid and that by
maintaining in effect said rule, Respondent Elias has violated Section
.8(a) (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
.of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
A. The Respondent, Elias Brothers Big Boy, Inc., its officers,
agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local Joint Executive Board,
Hotel and Restaurant Employees, Bartenders International Union,
AFL-CIO, or any other labor organization of its employees, by dis-
,charging or refusing to reinstate any of its employees or by discrimi-
nating in any other manner in regard to their employment.
3 The General Counsel relies on Adrian Steel Co, 130 NLRB 847, 857, and Walton
Manufacturing Company, 126 NLRB 697.
See Walton Manufacturing Company, supra, at 697.
ELIAS BROTHERS BIG BOY, INC., ETC. 1059
(b) Interrogating employees concerning their signing of union
cards, their union membership, or union meetings and activities in
a manner constituting interference, restraint, or coercion in violation
of Section 8 (a) (1) of the Act.
(c) Soliciting the withdrawal of its employees from membership
in a labor organization.
(d) Maintaining in effect any rule which prohibits its employees
from soliciting membership in the above-named or any other labor
organization, or from engaging in other lawful concerted activities
on company premises during nonworking time.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
join or assist the aforesaid Union or any other labor organization, to
bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection as guaranteed in
Section 7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Forthwith rescind its existing rule against solicitation to the
extent that it prohibits employees from soliciting membership in a
labor organization or from engaging in other lawful concerted activi-
ties on company premises during nonworking time.
(b) Offer to Mary C. Harris and Bettie Gene Komorek immediate
and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay suffered as a result of
their discriminatory discharges on June 3 and July 1, 1961, respec-
tively. Each will be paid a sum of money equal to that which she
normally would have earned from the date of her discriminatory dis-
charge to the date of the offer of reinstatement, less her net earnings
during said period, said backpay to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due un-
der the terms of this Order.
(d) Post at all its restaurants in the Detroit, Michigan, area, copies
of the notice attached hereto marked "Appendix A."' Copies of said
notice, to be furnished by the Regional Director for the Seventh Re-
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gion, shall, after being duly signed by the Respondent Elias, be posted
by the Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
taken to comply herewith.
B. The Respondents, Greenfield Holiday, Inc., and Holiday Drive
In, Inc., their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Local Joint Executive Board,.
Hotel and Restaurant Employees, Bartenders International Union,,
AFL-CIO, or any other labor organization of their employees, by dis-
couraging or refusing to reinstate any of their employees or by dis-
criminating in any other manner in regard to their employment.
(b) Interrogating employees concerning their signing of union
cards or their union activities in a manner constituting interference,
restraint, or coercion in violation of Section 8 (a) (1) of the Act.
(e) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
join or assist the aforesaid Union or any other labor organization, to
bargain collectively through representatives of the employees' own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any or all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Louise McCord immediate and full reinstatement to
her former or substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her whole for
any loss of pay she may have suffered by payment to her of a sum of
money equal to that which she normally would have earned from
June 21, 1961, to the date of the offer of reinstatement, less her net
earnings during said period, said backpay to be computed on a quar-
terly basis in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289.
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms of this Order.
ELIAS BROTHERS BIG BOY, INC., ETC. 1061
(c) Post at all of their restaurants in the Detroit, Michigan, area,
,copies of the notice attached hereto marked "Appendix B." 6 Copies
of said notice, to be furnished by the Regional Director for the Seventh
Region, shall, after being duly signed by the Respondents Greenfield
and Holiday, be posted by the said Respondents immediately upon re-
ceipt thereof, and be maintained by them for 60 consecutive days there-
after, in conspicuous places, including all places where notices to its
-employees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps have been
,taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed as to Respondent Livonia Big Boy, Inc., for lack of jurisdiction
and that paragraphs numbered 10(C) (4),10(C) (5), 11, and 13 of the
complaint be, and they hereby are, dismissed as to Respondent Elias
Brothers Big Boy, Inc., insofar as Elias is alleged to have discharged
any of Livonia's employees.
IT IS FURTHER ORDERED that amended paragraph numbered 10 (D) of
the complaint be, and it hereby is, dismissed insofar as it alleges that
Respondents Greenfield Holiday, Inc., and Holiday Drive In, Inc.,
had in force a written no-solicitation rule which prohibited employee
activity protected by Section 7 of the Act.
6 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that :
WE WILL NOT discourage membership in Local Joint Executive
Board, Hotel and Restaurant Employees , Bartenders Interna-
tional Union, AFL-CIO, or in any other labor organization of
our employees , by discharging or refusing to reinstate them be-
cause of their union membership or activities , nor will we dis-
criminate in any other manner in regard to hire or tenure of
employment or any term or condition of employment to discour-
age membership in a labor organization.
WE WILL NOT interrogate employees concerning their union
membership , sentiments , or activities.
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT solicit our employees to withdraw from member-
ship in a labor organization.
WE WILL NOT maintain in effect any rule which prohibits our
employees from soliciting membership in any labor organization,
or from engaging in any other lawful concerted activities on
company premises during nonworking time.
WE WILL offer Mary C. Harris and Bettie Gene Komorek im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay
they may have suffered as a result of our discrimination against
them.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist Local Joint Executive Board, Hotel
and Restaurant Employees, Bartenders International Union,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, or to engage
in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8(a)(3) of the Act.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named Union or
any labor organization.
ELIAS BROTHERS BIG Boy, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board' s Regional
Office, 232 W. Grand River, Detroit 26, Michigan, Telephone Number,
Woodward 2-3830, if they have any question concerning this notice or
compliance with its provisions.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
ELIAS BROTHERS BIG BOY, INC., ETC. 1063
WE WILL NOT discourage membership in Local Joint Executive
Board, Hotel and Restaurant Employees, Bartenders Interna-
tional Union, AFL-CIO, or in any other labor organization of
our employees, by discouraging or refusing to reinstate them
because of their union membership or activities, nor will we dis-
criminate in any other manner in regard to hire or tenure of
employment or any term or condition of employment to dis-
courage membership in a labor organization.
WE WILL NOT interrogate our employees concerning their union
membership, sentiments, or activities.
WE WILL offer Louise McCord immediate and full reinstate-
ment to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and make
her whole for any loss of pay she may have suffered as a result of
our discrimination against her.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to join or assist Local Joint Executive Board, Hotel
and Restaurant Employees, Bartenders International Union,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representation of their own choosing, or to engage
in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8(a) (3) of the Act.
All our employees are free to become or remain or to refrain from
becoming or remaining members of the above-named Union or any
other labor organization.
GREENFIELD HOLIDAY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
HOLIDAY DRIVE IN, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 232 W. Grand River, Detroit 26, Michigan, Telephone Number,
Woodward 2-3830, if they have any question concerning this notice or
compliance with its provisions.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the Labor Management Rela-
tions Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was
heard before Trial Examiner Robert E. Mullin in Detroit, Michigan, on September
25 to 29, 1961, pursuant to due notice to all parties. The consolidated complaint
issued by the General Counsel of the National Labor Relations Board on August 4,
1961, was based on charges duly filed and served.' The complaint, as amended
at the hearing, alleged that the Respondents had engaged in various unfair labor
practices, proscribed by Section 8(a) (1), (3) and (4) of the Act. In their answers,
the Respondents conceded certain facts with respect to their business operations
but denied the commission of any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard, to examine
and cross-examine witnesses, to introduce relevant evidence, and to argue orally.
At the outset of the hearing the Respondents moved to sever the cases and to dismiss
the complaint for want of jurisdiction. These motions were denied at that time and,
later, at the close of the General Counsel's case. At the conclusion of the hearing,
these same motions, as well as motions to dismiss on the merits, were taken under
advisement. They are disposed of as appears hereinafter in this report.2 Oral
argument at the close of the hearing was waived by the parties. Subsequent to
the hearing, both the General Counsel and the Respondent submitted able and com-
prehensive briefs which have been most helpful to a consideration of the numerous
issues involved herein.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, Elias Brothers Big Boy, Inc., Livonia Big Boy, Inc., Greenfield
Holiday, Inc., and Holiday Drive In, Inc., herein called Elias, Livonia, Greenfield,
and Holiday, respectively, are Michigan corporations, engaged in that State in the
business of selling foodstuffs at retail. Elias operates eight restaurants, Livonia has
one, Greenfield operates two, and Holiday has two. Over a period of years Elias
has developed and promoted several restaurant products, the principal one of
which is a hamburger sandwich which it has popularized as "Elias Brothers Big Boy."
Through a franchise arrangement with Livonia, Greenfield, and Holiday, as well
as other restaurant operators who are not party to these proceedings, Elias has
licensed its franchisees to advertise and sell such "Big Boy" sandwiches.
Elias, during a representative 12-month period, sold goods at retail valued in excess
of $500,000 and purchased and received goods valued in excess of $193,000 from
States other than the State of Michigan. On these facts, the Respondent Elias con-
cedes, and I find, that Elias Brothers Big Boy, Inc., is engaged in commerce within
the meaning of the Act. Carolina Supplies and Cement Co., 122 NLRB 88; Catalina
Island Sightseeing Lines, 124 NLRB 813, 814-815.
There is a dispute, however, as to the Board's jurisdiction over the other three
Respondents. The statistics on business volume are as follows: Livonia had retail
sales for the year ending July 1, 1961, of $318,000. During that same period Re-
spondent Livonia purchased goods and material valued at $10,000 from Elias which
had, in turn, received such merchandise directly from States other than Michigan.
In a representative year, Greenfield sold, at retail, goods valued at $405,146. Its
annual purchases from Elias of merchandise which the latter had received from
out-of-State, exceeded $20,000. During a similar 12 month period, the retail sales
for Holiday were $319,518, whereas its purchases from Elias were valued at $10,000.
The charges on which the complaint is based were all filed during the summer of 1961.
The original charge In Case No 7-,CA-3207 was filed on June 5, in Case No. 7-CA-3255
on July 3, in Case No 7-CA-3232 on June 19, in Case No. 7-CA-3238 on June 23, and
In Case No. 7-CA-3263 on July 11. Amended charges in the last three numbered cases
were filed on August 1 ; and a second amended charge in Case No. 7-CA-3238 was filed
on August 4.
2 The motion to sever, denied at the outset of the hearing and renewed at its close, is
again denied for lack of merit. N L R B. v. United Mine Workers of America, Distract 31,
at al. (L. E Cleghorn), 198 F. 2d 389, 390 (CA 4), cert. denied 344 U S. 884 ; N L.R B.
v. Sewell Manufacturing Company, 172 F. 2d 459, 460 (C.A. 5) ; N.L.R.B. v. Seamprufa,
Inc., 186 F. 2d 671, 675 (C.A. 10).
ELIAS BROTHERS BIG BOY, INC., ETC. 1065
The latter valuation was on goods which Elias received directly from States other
than Michigan. The General Counsel concedes that if Livonia, Greenfield, and
Holiday are considered separately, the Board will not assert jurisdiction. Carolina
Supplies and Cement Co., supra. The General Counsel contends, however, that
because of the franchise agreement, Elias and Livonia must be considered as a
single employer under the Act. The General Counsel makes a similar argument
with respect to Greenfield and Holiday, but as to these Respondents he further
contends that, because of an identity of officers and shareholders, the latter corpora-
tions should be considered a single employer. All of these positions are vigorously
disputed by the several Respondents involved. To the merits of these arguments
we will now turn.
A. Livonia
Livonia was incorporated in January 1960, by Doyle Tippett, Elmer Mallon, and
Charles Cannon, and began operation of a restaurant at Livonia, Michigan, in June
of that year. These three individuals are the sole shareholders and the officers in
Livonia. It is undenied that none of them have stock, or are officers, in Elias.
Prior to incorporation, the above-named individuals signed a franchise agreement
with Elias. Since incorporation Livonia has operated pursuant to the terms of that
franchise.
The Big Boy franchise
This agreement, in which Elias acts as the licensor, covers many aspects of the
operations of the licensee restaurant. The franchise with Livonia, identical in terms
with that for Greenfield and Holiday, provides as follows:
Livonia must use the name "Elias Bros." in its advertising and displays and is
permitted to use the trade name "Big Boy" for the same purpose. Elias, in turn,
develops and arranges for the presentation of advertising material through news-
papers, radio, and television for Livonia (as well as all other licensees). The latter
pays Elias a percentage of gross sales for such service. The building and accessories
used by Livonia must meet wth Elias' satisfaction. For advisory service with respect
to developing food products, arrangement of food displays, style of service, "operation
and layout of restaurant and the development of personnel and personnel policies,"
Livonia must pay Elias 1 percent of its gross sales.3
The franchise further provides that Livonia must purchase "certain unprepared
and prepared foodstuffs, forms, paper and other supplies, and other miscellaneous
articles" from Elias. Any articles not purchased from Elias "shall be purchased'
from purveyors approved by" Elias. Other provisions of the agreement relate to
the sale of foods by the licensee. Thus, Livonia may not sell other than food prod-
ucts without Elias' approval. Further, Livonia agrees that the "foods and the prices
and portions thereof be identical" to that sold by Elias, and that the Livonia restau-
rant "will be operated on a schedule of hours directed by Licensor [Elias]."
As noted earlier, Livonia must pay a certain percentage of its gross sales for
advisory service which Elias provides all licensees. This service includes advice on,
among other things, the "development of personnel and personnel policies " Elias
agrees that it "will always have at least one of its administrative staff available for
consultation on any such matters." Other references to the subject of ,personnel;
appear in paragraph numbered 10 of the agreement whereby Livonia agrees to
"follow practices and procedures approved by [Elias] in connection with personnel,
such as, but not limited to, wage standards and uniforms." This same paragraph
provides that:
If the Licensor [Elias] shall provide the Licensee [Livonia] with a Manual of
Standard Procedure and/or other written or printed directions which Licensor
believes desirable for the successful operation of Licensee's business, Licensee
agrees to comply with the conditions of such manual or directive.
The franchise also has a termination provision which permits Elias to cancel the
license whenever in its opinion Livonia violates any of its terms. Finally, the agree-
ment contains a clause whereby the parties disavow any intention of creating an
agency or apparent agency relationship and which provides that the business to be
operated by Livonia is to be separate and apart from any which may be operated by
Elias.
Elias employs a "franchise supervisor" whose duty is to make periodic inspec-
tions of all the franchise restaurants. Ronald Johnson, who held this post during
the period in question, testified that upon making such an inspection he prepared a
"supervisor's daily report," one copy of which was given to the owner or manager
3 The quotations above, as well as those in the succeeding paragraphs on the franchise-
issue, are from the language of that agreement.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the franchise and the original of which was filed with Elias. This report is divided
into various categories under the headings of food, cleanliness, and service. In com-
pleting the report, the supervisor rates waitresses and carhops on such items as their
"appearance," "prompt pick up of orders" and other aspects of their job performance.
Grillmen are graded on the foregoing and also on "proper attitude toward . . . job
and other employees." Johnson denied that he ever exercised any control over the
employees of any franchise owner or that he ever attempted to admonish or repri-
mand any individual employee. According to Johnson, his sole contact was with
the owner or manager of the franchise and with Elias. Admittedly, his report on a
restaurant could be the subject of discussion at periodic meetings for the franchise
owners which Elias held at its headquarters.4 Johnson testified that the purpose of
his report was "to make sure we keep the stores in uniformity." The need for this
uniformity was explained in another way by Gabriel Kassab, general manager for
Elias, who stated that any adverse preparation of food, cleanliness, or service in a
franchise restaurant would affect Elias "... because . . . our signs say `Elias
Brothers Big Boy.' "
The General Counsel contends that further evidence of Elias' control over the
internal organization of Livonia has been manifested by participation in the hire and
transfer of employees It is true that during the first week that the Livonia restaurant
was in operation, William Morgan, personnel director for Elias, participated in some
of the hiring interviews. Witnesses for Elias and Livonia testified that this assistance
was rendered because two of the three men who had organized the new corporation
had no experience in the restaurant business. According to them, although Morgan
was present during a number of the initial employment interviews, the actual hiring
was done by Tippett or Cannon and that, in any event, this occurred only during
the first few days of the restaurant's operation and has never happened since that
time. Similarly, during the first weeks after Livonia opened, Elias assisted in the
training of Livonia's supervisors, some of whom were sent to Elias' main store for
instruction on the preparation of food and procedures. Further, in support of the
General Counsel's contention, there is evidence that during an emergency Elias
occasionally loans an employee to Livonia on a temporary basis. Kassab testified
that on one occasion during the past year Elias had also asked Livonia for the tem-
porary loan of an employee.
Finally, the General Counsel points to the similarity in conduct of the owners and
supervisors of Elias, on the one hand and of Livonia, on the other, during the course
of the organizational campaign that is in issue in this case. The two corporations
undeniably followed courses of conduct that were at least parallel, if not identical.
This evidence, however, does not establish that the two companies constitute a
single employer under the Act. In this respect, the situation as to Elias and Livonia
was no different from that when several employer members of a trade association
band together to face a union organizational campaign.
In his able brief, the General Counsel correctly points out that among the factors
usually found controling in single employer cases are common ownership (Mus-
grave Manufacturing Company, et al., 124 NLRB 258), common direction (Canton
Carp's, Inc., 125 NLRB 483), common control of labor policy (Stineway Drug Co.,
Inc., et al., 102 NLRB 1630), and integration of operations (Orkin Exterminating
Company, Inc. (of Kentucky), 115 NLRB 622). Although all of the foregoing
factors appear to be essential to a determination that two companies constitute a
single employer within the meaning of the Act, clearly the most important are ele-
ments of common ownership and direction. Here, admittedly, there is no common
ownership of Elias and Livonia, and the management of the two companies are com-
pletely separate and distinct. The sweeping terms of the franchise gave Elias some
control over the labor policy of a licensee restaurant and made for integration of
operations. The broad latitude given Elias to terminate the franchise agreement
also vested in that corporation a strong lever to induce conformity. On the other
hand, even if Elias canceled the franchise agreement, Livonia could still continue
in the restaurant business with its independent capitalization, ownership, and physical
plant. The situation here cannot be compared with that in those cases involving
'There was some testimony in the record as to a meeting of the franchise owners held
on June 27, 1961. Earl McKinley, a porter then In the employ of Elias, testified as to
a few scraps of the conversation which he heard at that meeting when counsel for the
Respondents was present At the hearing the Respondents objected to McKinley's testi-
mony and moved that it be stricken on the ground that its admission would violate the
attorney-client privilege. Ruling on this motion was reserved The motion is now denied
"One who overhears the communication, whether with or without the client's knowledge,
is not within the protection of the privilege" 8 Wigmore, Evidence § § 2325-2326;
Himmelfarb v. TI.S, 175 F 2d 924, 939 (C.A 9), cert denied 338 U S. 860.
ELIAS BROTHERS BIG BOY, INC ., ETC. 1067
gasoline service stations where the station operator is inextricably bound to do
business with the oil company, on its terms , and where termination of the lease
franchise arrangement means that the dealer is put out of business . Site Oil Com-
pany of Missouri , [ 137 NLRB 1274] ( Intermediate Report issued March 8, 1961,
case presently on appeal to Board .) Even in this field, however , the Board has held
that gasoline station dealers may be considered independent contractors . Clark Oil
& Refining Corporation , 129 NLRB 750, 755-757. The facts in those cases, where
there was a question as to whether the employees of the station dealer were , in fact,
employees of the licensing oil company , go far beyond the facts presented here. To
establish a single employer relationship in the present situation , the General Counsel
must rely largely on the franchise agreement . The Board , however, has held that
it will not use the "franchise yardstick" for asserting jurisdiction over local retail
establishments . William T. Wilson , et al., d/b/a Wilson-Oldsmobile , 110 NLRB
534, 536. Accordingly , on the findings set out above, I conclude that Elias and
Livonia do not constitute a single employer within the meaning of the Act. Further,
since the gross sales of the latter do not meet the Board's standards for the assertion
of jurisdiction over a retail business , I shall recommend that the complaint be
dismissed as to Livonia.
B. Greenfield and Holiday
The General Counsel contends that Greenfield and Holiday, together with Elias,
constitute a single employer for jurisdictional purposes. This argument, however, is
premised on the same grounds as urged by the General Counsel to support that con-
clusion as to the Elias-Livonia relationship . The franchise agreements which Green-
field and Holiday signed are identical with that in effect between Livonia and Elias.
From the record herein it is apparent ,that there was no substantial difference between
the operation of the franchise arrangement as to Greenfield and Holiday and the
operations of the Livonia franchise discussed above. Moreover, the General Counsel
conceded , as the facts disclosed , that as between Elias, on the one hand, and Green-
field and Holiday on the other, there was no common identity of shareholders,
officers, or management . For these reasons , it is my conclusion , and I find, that
Elias and the last two named corporations do not constitute a single employer under
the Act . The General Counsel, however, contends that, in any event, Greenfield and
Holiday must be considered a single employer . The facts with respect to that argu-
ment will now be examined.
Greenfield and Holiday are Michigan corporations , each of which has two drive-
in restaurants in the Detroit area . Both companies had been in the restaurant busi-
ness for several years when on March 1 , 1960, they signed separate franchise
agreements with Elias. Since that time they have operated their restaurants as "Elias
Bros. Big Boy" franchisees.
The two corporations have common officers and directors . Julian Lefkowitz,
Jerome B. Levy, Seymour Wayne, Burton Levy, Ben Lefkowitz, Joel Levy, and Jack
Lester own all the stock and are the officers and/or directors of Greenfield. With the
exception of Lester , who has no financial interest in Holiday , the other six individuals
named above also own all the shares and constitute the officers and/or directors of
the latter corporation . Seymour Wayne is not only the secretary for Greenfield and
the secretary-treasurer for Holiday , but also the general manager for both companies.
Mr. Wayne testified that in this latter post he is responsible for overall operation of
the two corporations and the establishment of personnel policies on such matters as
wage rates and hours of employment . Moreover, the discharge of an employee in
either corporation must be cleared through him before it is effective . Immediately
below Wayne in line of supervision is Robert Bertoli who is on the payroll of both
corporations as a supervisor and is responsible for the day-to-day management of
both companies . Wayne testified that Bertoli goes to each of their four restaurants
almost daily. All corporate books and records for both Greenfield and Holiday are
kept at the same location and the same clerical staff computes and maintains the pay-
roll records for employees of both corporations . In addition, both companies retain
the same legal counsel and certified public accountants . It is also relevant to the
question at hand that several years prior to obtaining a franchise with Elias , Green-
field, and Holiday had a single collective -bargaining agreement with the Union which
covered the employees at all of their restaurants.
Respondents cite several indicia of independence such as separate bank accounts,
separate social security identification numbers, and the fact that each company files a
tax return in its own name. Under other statutes these two companies may very
well have preserved their separate corporate identities . On the facts set out above,
however , it is clear , and I find , that under the Act here involved, Greenfield and
Holiday constitute a single employer . N.L.R.B . V. Stowe Spinning Company, et al.,
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
336 U.S. 226 , 227 ("Interlocking directorates and family ties make the four [respond-
ent mills ] equal one for our purposes"); Southport Petroleum Company v . N.L.R.B.,
315 U S. 100, 106; Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 14-16;
N.L.R.B. v. I. E. McCatron , et al., d/b/a Price Valley Lumber Co ., et al., 216 F. 2d
212, 213-214 (C.A. 9), cert. denied 348 U.S. 943; Bethlehem Steel Company v.
N.L.R.B., 120 F . 2d 641 , 650-651 (C.A.D C.); N.L.R.B. v. Concrete Haulers, Inc.,
et al., 212 F. 2d 477, 479 (C.A. 5) ("The interdependence and integrated nature of
the operations of the respondents , the common ownership of stock, and the fact that
the same officer administers a common labor policy, clearly indicate that there is only
one employer for the purposes of this Act"); N.L .R.B. v. National Garment Com-
pany, 166 F. 2d 233, 238 (C.A. 8). Since the combined gross volume of business
of Greenfield and Holiday totals $724 ,664 and the two companies had an indirect
inflow in excess of $30,000, it is my conclusion that as to these Respondents the
Board 's standards for the assertion of jurisdiction over retail establishments have
been met. Accordingly , I find ,that they are engaged in commerce within the mean-
ing of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Joint Executive Board , Hotel and Restaurant Employees , Bartenders Inter-
national Union , AFL-CIO, herein called the Union , is a labor organization within
the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In May and June 1961, the Union initiated an organizational campaign among the
employees of several of the "Elias Bros. Big Boy" restaurants. The events involved
in the present cases arose out of this unionization drive.
B. The evidence; findings and conclusions with respect to Elias
Early in June the Union distributed leaflets at some of the Elias restaurants. On
June 2, Martha J. Brooks, a waitress at store No. 1, signed an authorization card.
The following day, Thomas Briggs, the manager, questioned her as to whether she
had been contacted by the Union and whether she had signed a card. When the
employee answered in the affirmative, Briggs suggested that Brooks could withdraw
from the Union by writing a letter to that effect. The employee did not immediately
adopt this suggestion. A couple of days later, however, Gabriel Kassab, Elias'
general manager, engaged her in conversation and questioned her as to whether she
knew anything about the Union. Although Brooks answered in the negative this
time, Kassab continued the discussion by urging that she learn more about the Union
and suggesting that she could write the Union a letter of resignation if she chose.
Shortly thereafter the employee told Kassab that she would sign a letter of with-
drawal. Kassab thereupon produced a prepared letter which read as follows:
AFL-CIO,
HOTEL & REST. EMPLOYEES UNION,
LOCAL 705,
100 Selden,
Detroit, Michigan.
GENTLEMEN: I am employed by Elias Brothers Big Boy Drive Ins as a
waitress. On Friday, June 2 two men from your union approached me and
gave me a brochure stating the advantages of belonging to your union. They
said there was a time limit and without giving me too much information sug-
gested I sign the agreement at that time.
I did so, but I feel it was a mistake because I realize I am completely satis-
field with my position at Elias Brothers and don't feel it necessary to join a
union.
Please accept this letter as a cancellation of the agreement I signed in haste
Sincerely,
It is clear from the record that Brooks had neither dictated this letter nor had she
asked that it be prepared. Nevertheless the finished document was presented to her
for signature. After signing the letter she turned it over to Kassab and had nothing
further to do with it .5 Shortly thereafter the letter arrived at the union headquarters
5 The foregoing findings are based on the credited , undenied testimony of Martha Brooks.
ELIAS BROTHERS BIG BOY, INC., ETC. 1069
via registered mail.6 Although the Respondent contends that the employee signed
the letter of her own volition , it is plain that Kassab was the moving party. It is well
settled that the solicitation of, and offering assistance to, an employee to withdraw
from a union is violative of the Act. It is, therefore , my conclusion , and I find, that
by suggesting and securing the withdrawal letter from Brooks 7 and by the earlier
interrogation of this employee as to her union membership , Kassab and Briggs caused
the Respondent Elias to violate Section 8 ( a)( I) of the Act.
The termination of two employees , Mary Harris and Bettie Gene Komorek, by the
Respondent Elias in the weeks thereafter is alleged to have been in violation of Sec-
tion 8 ( a)(3) of the Act . This is denied by the Employer . The facts with respect
to these employees will now be considered.
1. Mary Harris
This employee was hired by Elias on April 4, 1961 , to work as a carhop at the
Respondent 's restaurant located at Van Dyke and Nine Mile Road , Detroit. After
being on the night shift for about 6 weeks she was transferred to daywork and it was
from this shift that she was discharged on June 3, 1961.
On June 2, two organizers for the Union appeared at the above restaurant and
passed through the dining room distributing organizational leaflets to the employees
and leaving them on tables and counters . Harris was on duty at the time and received
one of the leaflets from the organizers . There was much conflicting testimony on
the incident that followed immediately thereafter.
Harris' version was as follows : Upon receiving the leaflet she put it in her purse
and went about her duties . A few minutes later, as she was waiting for an order at
what was known as the "curb section" of the restaurant she took the leaflet from
her purse , glanced at it, and then put it away . At this point Earl E. Thompson,
manager of the restaurant , was asking all of the employees to hand him the leaflets
they had received . He, in turn , asked Harris whether she still had hers. When the
employee replied in the affirmative he asked that she hand it to him , but she refused
to comply with the request . When Harris insisted on keeping the leaflet , Thompson
told her ". . . you'll have to punch your timecard and take the rest of the day off."
Thereafter, as Harris was checking out of the restaurant , Thompson interrupted a
telephone conversation in which he was then engaged and told Harris that the other
party whom he identified as "Johnson ," wanted to speak to her. The manager then
handed the telephone to the employee . According to the latter, the following con-
versation ensued:
He just said , "I'm Mr . Johnson . Do you know me?" I says, "No." He says,
"I'm the supervisor at the main office ." . Well he asked me if I still had that
little leaflet; and I told him I still had it; and he asked me what was I going to do
6 There was testimony that during this same period General Manager Kassab inter-
rogated the employee of one of the other franchise owners about her union activities
Thus, Noella Hudson , a Livonia employee , signed an authorization card at a union organi-
zational meeting held on June 13 . Two days later , when she was on duty at the restaurant,
Kassab asked her if she had been in on "The deal about the Union . . . the other night."
Hudson admitted that she had been so involved A few minutes later Kassab and Doyle
Tippett , the latter an owner and the general manager of Livonia, engaged her in further
conversation about the Union During the course of this discussion Tippett told Hudson
that if he wanted to fire her he could get a lot of people to back up his action At this
point in the conversation , Kassab stated, "But, of course , we won't " Hudson 's testimony
as to this incident was credible and undenled . If Livonia were subject to the jurisdiction
of the Board , Kassab's comments , along with those of Tippett, would plainly constitute
an unfair labor practice under Section 8(a) (1). I make no such finding , of course, since
I have already found that the complaint as to Livonia should be dismissed for want of
jurisdiction . Kassab's remark on this occasion , however, is relevant background evidence
as to his own hostility to the Union
7 N L R B. v. United Biscuit Company of America, Union Biscuit Division , 208 F. 2d
52, 55 ( C.A. 8) : "The Board might , we think, well have concluded that the securing of
these written statements by the president of the Company was intended as a deterrent to
their freedom of action ." Coca -Cola Bottling Company of St Louis v . N L R B., 195 F. 2d
955, 957 ( CA. 8) : ". . . the petitioner should not have interested itself in any way in
the matter of the revocation of authority previously given by any of its employees to the
Union to represent them " See also N L.R B. v. Valley Broadcasting Company, 189 F 2d
582, 584, 587 ( C.A. 6) ; Shamrock Foods, Inc., 127 NLRB 522, 531 ; and Nebraska Bag
Company, at at., 122 NLRB 654, 655.
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with it; and I told him I just wanted to keep it to read it; and he said, "Well, that
little leaflet, what it is," he said, "It is the Union; and they're trying to get in our
store." And he said, "Mary, if they do get in our store . . . they will take a
large sum of your money, your pay. They'll take so much that we'll have
to close our doors and go home and we'll all be out of a job."
When Harris replied that she proposed to keep the leaflet Johnson terminated the
conversation and asked that she give the telephone back to Thompson. As Harris
left the restaurant she asked Thompson several times if she was being discharged,
but he ignored her question and did not reply.
That afternoon, the Union sent a telegram to Elias asking whether Harris should
report to work the following day. The next morning Thompson telephoned Harris
and asked that she report for work at the regular time. When Harris arrived at the
restaurant, Thompson engaged her in conversation. According to the employee, the
manager told her at this time that her work was unsatisfactory, that the night manager
for whom she had worked earlier had been dissatisfied with her also, that as a result
he was going to -let her go, and that he had already requested the corporate head-
quarters to send a replacement.
The Respondent Elias contends that Harris persisted in reading the leaflet when she
should have been working and that she was insubordinate. Thus, Thompson testified'
on direct examination that Harris stood reading the pamphlet for at least 10 minutes,
that he asked her to put it aside at least two or three times, and that he ordered her
to go home for the day only after she refused to heed his request and insisted that she
had the right to continue reading on company time. On cross-examination, Thomp-
son testified that after receiving instructions from what he referred to as "the office"
he proceeded to collect all the leaflets. He also conceded that when he first ap-
proached Harris he asked her, "Do you have a pamphlet?" If the employee was, in
fact, reading the material at the time, Thompson, of course, would have no reason to^
ask her such a question Two employees, Kay Bouchard and Peggy Pullen, testified
in general agreement with Thompson that thereafter Harris engaged in a heated
argument with the manager. Much of the testimony as to these latter witnesses was
in conflict with that of Harris. There was no testimony, however, in contradiction of
Harris' version of her telephone conversation with Johnson. Thompson in no way
contradicted or denied her testimony that he had asked Harris to discuss the leaflet
with this individual. The "Johnson" involved had introduced himself to the employee
as "the supervisor at the main office." Respondent's franchise supervisor at the
time was Ronald Johnson. The latter testified at the hearing but was asked no ques-
tions as to this telephone discussion. Harris' testimony in this connection was credible-
and since it was in no way contradicted or denied I accept it as accurate as to her con-
versation with "Johnson." Further, although the latter was never more fully identi-
fied, it was Thompson, the Respondent's manager, who asked that Harris speak to this
individual and handed the employee the telephone for this purpose. Under these
circumstances I conclude and find that, at the very least, the Johnson involved was
held out by the Respondent's manager as an agent of Elias For this reason the
Respondent must accept responsibility for all of the remarks which Johnson made in
his discussion with Harris. In this conversation Johnson questioned the employee as
to whether she still had the leaflet and what she intended to do with it. When Harris
indicated that she proposed to keep it, Johnson then assailed the Union and predicted
that if it did "get in our store. . They'll take so much that we'll have to close our
doors and go home and we'll all be out of a job." The credibility of Harris as a
witness was vigorously assailed by the Respondent. On the other hand, her testimony
as to her conversation with Johnson was not contradicted. Further, as noted above,
Thompson's testimony on cross-examination was in conflict wtih his testimony on
direct. For these reasons, as well as my conclusion as to credibility based on my
observation of the demeanor of these witnesses, I find that Harris' version of the
incident is the more credible There is no substantial conflict between the testimony
of Harris and Thompson as to their meeting the following morning. From this it
is apparent that immediately after the employee reported for duty, Thompson engaged
her in argument about the telegram which the Union had sent on her behalf, criti-
cized her work, and announced that she was being terminated
The employee Harris had no right to read the Union's organizational literature
on company time. On the other hand, she did have the right to retain such litera-
ture as she had been given and to read it on her own time. From the facts found
above, it is my conclusion that Thompson's dispute with the employee arose initially
because he sought to take from her the Union's pamphlet and not because Harris
insisted that she be permitted to read it while on duty. The following day she
reported for work as ordered and was almost immediately discharged. At the hear-
ing the Respondent Elias introduced testimony as to Harris' slovenliness, indolence,
ELIAS BROTHERS BIG BOY, INC., ETC. 1071
and many other failings. It is evident that Harris was no model employee. On the
other hand, these same supervisors who testified as to her poor work record also
testified that Harris had been an unsatisfactory employee almost from the time she
was hired. From their testimony, however, it appears that these purported inade-
quacies had not been a matter of serious concern to the management until Harris
became involved in a dispute as to whether she could retain the Union's campaign
literature. On the record here it is my conclusion, and I find, that the real reason
for her summary dismissal was her union activities. Although Elias had cause for
dissatisfaction with some of her work, as the Court of Appeals for the Third Circuit
observed in a similar case, "It apparently became intolerable only after [she] had
joined the union." N.L.R.B. v. Electric City Dyeing Co., 178 F. 2d 980, 983.
Her discharge under these circumstances by the Respondent Elias violated Section
8(a)(3) and (1) of the Act. I further find that Manager Thompson violated
Section 8 (a) (1) of the Act by his demand upon Harris that she turn over to him the
union pamphlet which she had received. It was equally a violation of that same
section of the Act for the Respondent Elias, through Johnson, to warn, or to inti-
mate, in his conversation with Harris, that the arrival of the Union would cause the
Company to shut down.
One further point in connection with this dismissal merits attention. For further
justification of Thompson's efforts to secure the union leaflets from Harris, the
Respondent appeared to rely, in part, on a company rule which forbade soliciting
at any of its restaurants. Such a rule does not excuse Thompson's conduct, nor is
it any defense. The General Counsel, however, contends that by the promulgation
of the rule itself the Respondent committed a further unfair labor practice. The
rule in this case appeared over the signature of Kassab, the Respondent's general
manager, and read as follows: "No solicitations allowed in any Big Boy Drive In
unless approved by the Main Office." The General Counsel contends that this rule
is presumptively invalid because it prohibits union solicitation in all parts of an
Elias' restaurant during nonworking time as well as working time. There was no
evidence as to when this rule was first adopted by the Respondent or even when it
was first promulgated. By its terms the rule makes no reference to union solicitation
and there is an absence of evidence that it was initially adopted for a discriminatory
purpose. At the same time there was no showing that the Union was unable to
reach Elias' employees with its message in any way other than by circularizing them
at their place of employment. As a result, it is my conclusion that the rule quoted
above, without more evidence than is in this record to support the General Counsel's
position, is not per se a violation of the Act. Walton Manufacturing Company, 126
NLRB 697, 698, enfd. 289 F. 2d 177 (C.A. 5) N.L.R B. v. United Steelworkers of
America, CIO (Nutone, Inc.), 357 U.S. 357, 363-365.
2. Bettie Gene Komorek
This employee was a waitress at the Respondent Elias' store at Eight Mile and
Dequindre, Detroit. In June, and at the outset of the Union' s campaign drive, two
organizers came to the store at which Komorek was on duty and ordered dinner.
After they had had their meal and before they paid their check, they gave Komorek
a handful of organizational leaflets and asked that she pass them out to her co-
workers. Immediately thereafter, Marion Gangl, headwaitress on duty at the time,
took the pamphlets from Komorek and gave them to Thomas Nuttal, manager of
the restaurant. The latter, in the presence of Komorek and some of the other em-
ployees, tore up the leaflets. When Komorek protested that he could at least have
let the employees read the material, Nuttal's only comment was "Well . .. I've tore
them up now." 8
On June 28, Komorek invited a number of the other waitresses to visit her home
at the end of the night shift, in order to attend what she told them would be a birth-
day party for her husband. After the employees arrived at her house they were in-
troduced to Yale Soifer, an organizer for the Union. Komorek then told her fellow
employees that Soifer wanted to discuss the merits and advantages of her organiza-
tion with them. After Soifer had been talking for some time, Barbara Markham,
one of the employees present, engaged him in a heated dispute as to the accuracy
of certain statements he had made about the earnings of Respondent's carhops.
After some argument, Markham and several others present expressed their strong
opposition to the Union and departed.
s The foregoing findings are based on Komorek's testimony on this incident, none of
which was either denied or contradicted by Gangl or Nuttal when they were subsequently
called as witnesses for the Respondent.
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following morning, Markham told Nuttal about the union meeting to which
Komorek had invited them in the guise of a birthday party. In so doing Markham
told the manager not only about Soifer's presence at Komorek's home but also about
her own antipathy to the Union. Betty Wade and Ann Miller, two other employees
who had accompanied Markham the night before, gave a similar report to Nuttal that
same day. Nuttal conceded that these employees had discussed Komorek's party
with him and also that, in the course of these conversations, the waitresses involved
had expressed their own hostility to the Union.
Komorek was not on duty for 2 days after the party, her next scheduled shift being
on Saturday, July 1. On the latter date she reported for duty. Shortly after she
went to work, Nuttal informed her, "Since your party the other night the girls don't
want to work with you." 9 He then asked if she could do the work of all the
waitresses assigned to the dining room and when Komorek conceded that this was
impossible, Nuttal sent her home. The following day Komorek telephoned the
manager to ask whether she should report for work. Nuttal told her that all he
could suggest was a transfer to another Elias' restaurant located at Fourteen Mile
and Gratiot. Komorek protested that this store was a great distance away and that
it would be impossible for her to get there. Nuttal then terminated the conversation
with the statement that if Komorek proposed to work at the new location she would
have to report there the following day.
In its answer Respondent Elias conceded that its action as to Komorek constituted
a discharge, but averred that this was for good cause. As further set forth in the
answer and argued in its brief, Elias contends that the employees refused to work
with Komorek because she had tricked them into attending a union meeting, that
the Respondent could not operate the restaurant with only one waitress, and that
the manager, therefore, had no alternative but to discharge Komorek when the other
employees refused to work with her. The General Counsel contends that the
discharge was violative of the Act.
There is evidence that the action of the employees did not come as a surprise
to the headwaitress and the manager at the restaurant. Gangl testified that the day
after Komorek's party the other girls talked with her about the presence of a
union organizer at the so-called birthday party, and that she, in turn, had discussed
the matter with Nuttal. Gangl was not scheduled to be on duty the following
Saturday when the incident in question occurred. She explained that she reported
for duty on that occasion even though it was her day off because she had heard that
the girls did not want to work with Komorek. As she testified, "I saw something
like that would happen and it was my place to be there." At the hearing Nuttal
testified that the only solution to the problem presented by the employees' refusal
to work with Komorek was to transfer her to another store. On the other hand, he
conceded that he had the authority to transfer an employee from the night shift to
daywork, and that such transfers were common. At the time, Komorek was working
nights but Nuttal admitted that he never offered her a transfer to the day shift. As
found above, on the testimony of the Respondent's own witnesses, Nuttal was fully
informed as to Komorek's union activities and the antipathy which her efforts in that
regard had inspired among her coworkers. Notwithstanding the fact that prior to
Komorek's party her fellow employees had never refused to work with her, when
they did so on July 1, Nuttal did not attempt to dissuade them in their protest It
was undenied that on this occasion be made no effort to compel the other girls to
report for duty despite Komorek's presence.io
The refusal of the other waitresses to work with this employee was tantamount
to a demand that she be removed. On the basis of the foregoing findings, it is my
conclusion that this ultimatum was based upon their hostility toward Komorek's or-
eanizational efforts for the Union and that Nuttal, the Respondent's manager, was
fully aware of this attitude on their part. The Respondent made no effort to prove
that Komorek had violated any of its work rules or that she merited discharge for
any reason other than its desire to acquiesce in this demand of her coworkers. Con-
sequently, it is my conclusion on the above facts that the termination of Komorek
9 The quotation is from Komorek's testimony. This was not in conflict with the testi-
mony of Nuttal who stated that he told the employee that the other girls had refused to
work with her and that "evidently it's because of a party or something that happened
the other day that Betty Wade talked to me about."
10 This finding is based on the testimony of employees Miller and Markham The latter
was asked the following question and gave the answer which appears below:
Q After you told Nuttal that you weren't going to work with Komorek because of
the party did he tell you that you had to work 9
A He didn't say anything; no, sir
ELIAS BROTHERS BIG BOY, INC., ETC. 1073
under the circumstances here present was discriminatory and a violation of Section
8(a)(3) of the Act. N.L.R.B. v. Hudson Motor Car Company, 128 F. 2d 528,
532-533 (C.A. 6).11 I further find that Manager Nuttal's earlier action in destroying
the union leaflets which Gangl had taken from Komarek constituted a violation of
Section 8 (a) (1) of the Act.
C. The issues as to Greenfield and Holiday; findings and conclusions
with respect thereto
1. The discharge of Louise McCord
This employee was hired by the Respondent Greenfield in 1960 as a kitchen
helper and remained in its employ until October of that year when she left due to
illness. In February 1961, when she had recovered, Supervisor Bertoli reemployed
her on a part-time basis. Thereafter and until her discharge on June 21, 1961,
McCord worked on Mondays and Wednesdays at store No. 121,12 where Rudy Leal
was the manager, and on Sundays at what was known as the Greenfield store, where
Ann Madison was the manager. At the latter store she was also "on call" for Satur-
day work.
In May 1961, McCord went to the union headquarters to inquire about the steps
necessary to organize her coworkers . At that same time she signed an authorization
card. On June 2 she assisted Soifer, the organizer, in distributing campaign literature
at the Respondent's restaurant. About a week later, when on duty at the Greenfield
store, Manager Ann Madison questioned her about the leaflets which had been left
there and in the course of this discussion asked McCord whether she had signed a
union card. After McCord answered this question in the affirmative, Madison then
inquired whether she had any union literature and later accompanied the employee
to the lockerroom where McCord pointed out some of the organizational leaflets
there.13
McCord worked under Madison's supervision on weekends. Since she was a
part-time employee, there were occasions when she was not called to duty on either
Saturday or Sunday. She customarily received notice of her schedule from Esther
Wiseman, secretary in the office of Seymour Wayne, secretary-treasurer of the
Respondent. On or about June 16, Wiseman telephoned McCord to ask that she
come to work for Madison on Saturday, June 17. According to Wiseman, McCord
told her that she would be unable to report on Saturday and that as for the follow-
ing Sunday, June 18, she would prefer to come in an hour ahead of schedule in
order to leave early and attend a relative's graduation. Wiseman testified that she
relayed this request to Madison and that the latter told her that since McCord would
be unavailable for work on Sunday afternoon when she was needed the most, some-
one else would be secured and that McCord need not report on either Saturday or
Sunday. According to Wiseman, later that day (i.e., about June 16) she tele-
phoned McCord to tell her that Madison stated that she could forget about coming
to work that weekend. McCord corroborated this latter testimony by Wiseman.
Madison testified that about 7 a.m. on Sunday, June 18, McCord telephoned to
announce that she had to attend a commencement ceremony that day and therefore
would not report for work.14 According to Madison, this late notice greatly upset
her schedule and because of this incident she asked Supervisor Bertoli that same
day not to send McCord to the Greenfield location any further.
"The Board has said: "It is well established both by the Board and by the courts
that an Employer cannot excuse the discriminatory discharge of an employee because such
discharge is the result of pressure brought to bear by other employees even though to
disregard such pressure would result in the disruption of the employer's operations with
concomitant economic loss. Nothing in the Act permits or justifies its violation or grants
immunity from the consequences of such violation." Price Valley Lumber Company, 106
NLRB 26, 27, enfd 216 F. 2d 212, 214-215 (C.A. 9), cert. denied 348 U.S. 943 See also
Lincoln Brassiere Co , Inc., 117 NLRB 1237, 1240-1242; Pry Products, Inc., 110 NLRB
1000, 1001-1002; Majestic Metal Specialties, Inc, 92 NLRB 1854, 1861-1862; N.L.R.B.
v. Star Publishing Co, 97 F. 2d 465, 470 (C.A 9).
is This restaurant is also known in the record as the East Eight Mile store.
'' The foregoing findings are based on the testimony of McCord which was credible and
neither denied nor contradicted by Madison.
14 This testimony, however, was in conflict with a sworn affidavit which Madison had
given prior to the hearing and in which she averred that McCord had called on Saturday
morning, June 17.
649856-63-vol. 137-69
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Monday, June 19, McCord reported for duty, as scheduled, at store No. 121
where she worked a full day under the supervision of Manager Leal. She was
next scheduled to work on Wednesday evening, June 21. On that day, however,
Bertoli telephoned McCord at her home to tell her that her services were no
longer needed, that business was slow, that he did not believe that she cared much
about working anyway, and that, in any event, if business improved, he would call
her.
In its answer the Respondent conceded that McCord was discharged on June 21,
but denied that its action had any connection with her union affiliations. During
his direct examination, Bertoli testified that the decision to terminate McCord
was based on many complaints about her work and particularly Madison's complaint,
registered the preceding Sunday, that the employee wanted to set her own schedule
of hours. He denied that he had any knowledge of McCord's union activities. On
cross-examination, however, Bertoli conceded that on June 20 he was informed by
Manager Leal that McCord had endeavored to secure for the Union the names and
addresses of the employees at Leal's store.15 He also conceded that he had discussed
this information with Wayne on the morning of June 21 and before he telephoned
McCord to announce her termination.
Madison testified that as a result of McCord's last-minute request on June 18 to
change her work schedule she (Madison) told Bertoli that there was no point in call-
ing McCord for any further assignments since this employee was interested only in
working at her own convenience. As noted above, however, there was a conflict be-
tween Madison's testimony as to this incident and her prehearing affidavit. The testi-
mony of McCord and Wiseman, the latter a witness for the Respondent, Was
consistent and credible. From this it is my conclusion that on or about June 16, Wise-
man, at Madison's direction, telephoned McCord to tell her that she need not
report for work on June 17 or 18. Whereas, Madison subsequently testified that on
the morning of June 18, McCord called to ask if she could start to work ahead of
schedule in order to quit early that day, this testimony was in conflict with an affidavit
she had given prior to the hearing. Her testimony was also inconsistent with the
testimony of Wiseman and McCord to the effect that Madison had stated on the
preceding Friday, in response to the same question, that, under the circumstances, she
would secure someone else and that McCord need not report for work at all on
June,18. Madison testified that on several other occasions McCord had failed to
report as scheduled. Her testimony in this connection, however, was confused and
contradictory. Contrary to her testimony that McCord had called early on June 18
to request a last-minute change in schedule to suit the employee's convenience, it
is my conclusion, on the basis of the credible testimony of Wiseman, as well as that
of McCord, that on June 16, at the latest, Madison received this request for a change
in McCord's working hours and notified the employee that she need not report
at all. It is also significant that, whereas Madison testified that she found McCord
very unreliable in reporting for work at the Greenfield store, Leal gave no such testi-
mony as to his experience with McCord at his location.16
15 On June 19, McCord had asked Ann Casey , a coworker at store No 121, to assist her
in securing a list of all the employees for the Union Casey promised that she would help
her Leal testified that during the course of the next day Casey reported this conversa-
tion to him and he, in turn, passed this information on to Bertoli.
16 One other factor in this case has also been considered In the spring of 1961 McCord
was receiving unemployment compensation payments from the Michigan Employment
Security 'Commission (MESC) McCord 's eligibility for these payments depended , in part,
on the amount of her weekly earnings Wayne testified that upon learning that the em-
ployee was receiving such benefits, he filed a complaint with the local office of the MESC
about May 8 He further testified that he thereafter concluded that McCord was de-
clining opportunities for more work with the Respondent Greenfield in order not to
jeopardize her eligibility for unemployment compensation. As a result of Wayne's com-
plaint, the MESC issued a redetermination of McCord ' s eligibility for payments for the
week ending June 3, 1961. In this decision McCord was found ineligible for that par-
ticular week because she had received $20 from the Union for working with one of its
representatives on June 2 The IIESC further held that McCord should repay to the un-
employment compensation fund the check received for that week but that she should not
be penalized because there had been no willful concealment of facts The redetermina-
tion read , "There was no intentional withholding on the part of the claimant because she
did not realize that the $20 would be considered remuneration No disqualification will
be imposed under Section 62(b) of the Act" McCord received notice of this decision by
the MESC subsequent to her discharge . Wayne testified that a final decision on his com-
plaint to the MESC was still pending at the time of the instant hearing The foregoing
ELIAS BROTHERS BIG BOY, INC ., ETC. 1075
2. Conclusion
The Respondent adduced much testimony to the effect that McCord was a poor
worker, that she was slow, and that she was very inefficient. This was the uniform
testimony of Madison, Leal, and Madeline Storks, the latter night manager at Leal's
Store. On the other hand, these same witnesses testified that their complaints as to
McCord were long standing. Madison stated that she complained to Bertoli about
this employee "from the beginning when she first came.... . Storks testified that
she had complained to Bertoli about McCord almost every week. Leal stated that
he was dissatisfied with McCord's work almost from the time McCord returned to duty
in February 1961, and that he had reported many complaints about her to the
general manager in the months thereafter. Notwithstanding these many objections to
McCord's work performance, all of them brought to Bertoli's attention, the latter
kept her on the payroll for months. Madison testified that on June 18 she asked
the general manager that McCord not be sent to her store again. Bertoli, however,
took no action, for the following day McCord reported for duty as scheduled at
Leal's store and worked the entire day. On the other hand, 2 days later and im-
mediately after Leal reported that McCord had endeavored to secure the names and
addresses of the employees for the Union, Bertoli telephoned McCord to announce
her termination.
It is not for the Trial Examiner to substitute his judgment for that of the Employer
as to how the latter should conduct its business. The question as to whether McCord's
discharge was harsh, unwise, or a reflection on the Employer's business judgment is
not before the Trial Examiner. The Respondent was free to fire McCord for a good
reason, a bad reason, or no reason, so long as the reason was not, in fact, the em-
ployee's union activities. At the same time it is also pertinent to recall an observa-
tion by the Court of Appeals for the Eighth Circuit that under the Act here involved
"a justifiable ground for dismissal is no defense if it is a pretext and not the moving
cause." N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 525 (C.A. 8).17 As pointed
out above, there were numerous conflicts in the testimony of Madison as to why
she sought McCord's dismissal. The Respondent's witnesses who testified about
McCord's work record established that McCord was inefficient, that she had been
that way for months, and that the Employer had patiently endured her many failings.
This employee had been active in the Union for several weeks; in mid-June Madison
had interrogated her as to whether she had signed a card and McCord acknowledged
that she had. Shortly thereafter Leal reported to Bertoli that she had endeavored
to secure a list of the employees to assist the Union. The next day Bertoli an-
nounced McCord's discharge. It is my conclusion, on the foregoing findings, that
the real reason for McCord's summary dismissal was her union activity and not the
reason assigned by the Respondent. Accordingly, I find that the Respondent Green-
field violated Section 8(a)(3) and (1) of the Act, as charged. I further find that
Madison's interrogation of this employee as to whether she had signed a union card,
under the circumstances present here, was a violation of Section 8(a) (1) of the Act.
The complaint also alleged that Manager Rudy Leal had confiscated union litera-
ture and pamphlets from the employees. In this connection, Agnes Smith testified
that on the day that leaflets were distributed at Leal's restaurant, the manager asked
that the girls bring all of them to his office. Smith testified that at the time Leal
made this request she had already collected all the pamphlets which had been dis-
tributed. Smith was a relief manager and a cook at that restaurant. In its answer,
the Respondent Greenfield conceded her supervisory status.18 There was no evidence
that on the occasion in question the leaflets involved were scattered in disorderly
fashion about the restaurant or its parking lot. Under these circumstances there was
record as to McCord does not support the contention that she willfully misrepresented
either her earnings or her employment with the Respondent Greenfield On the other
hand, whether she was completely willing to report for duty at all times that work was
available, or whether her decision in each instance was colored by a desire to remain
eligible for unemployment benefits, obviously was a source of concern to Wayne. On the
record in this case, however, as found above, it is my conclusion that McCord reported
for work with Madison whenever the latter requested that she do so As noted above,
Leal gave no testimony that McCord was delinquent in reporting for duty in accordance
with her schedule at his store.
17 See also N L R.B. v. L. Ronney if Sons Furniture Manufacturing Co, 206 F 2d 730, 737,
cert. denied 346 U.S. 937, where the Court of Appeals for the Ninth Circuit stated, "It
is well settled that an employer violates Section 8(a) (3) by discharging . an inefficient
employee if the employer's reason for so doing is not the employee's inefficiency but his
union affiliation or activity "
11 Smith's testimony was credible and uncontradicted.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no justification for either Leal or Smith taking steps which prevented the employees
from obtaining the union literature . Consequently , I find that this action by Leal
and Smith , his assistant, constituted a violation of Section 8(a)(1) of the Act.19
The complaint further alleged that all of the Respondents had in effect a written
rule which forbade the employees from engaging in protected concerted activities on
their own time. However, the General Counsel offered no evidence of any such
written no-solicitation rule at the Greenfield or Holiday restaurants . Asa result,
I shall recommend that paragraph numbered 10(D) of the complaint , which sets
forth this allegation , be dismissed insofar as it applies to Respondents Greenfield
and Holiday.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents Elias, Greenfield, and Holiday set forth in section
-III, above, occurring in connection with the operations described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that Respondents Elias, Greenfield, and Holiday engaged in certain
unfair labor practices, I shall recommend that they cease and desist therefrom and
that they take certain affirmative action of the type conventionally ordered in such
cases as provided in the Recommended Order below, which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. For reasons set forth in Consolidated Industries, Inc., 108 NLRB
60, 61, and cases there cited, I shall recommend a broad cease-and-desist order as
to each of the foregoing Respondents.
Having found that Respondent Elias discriminatorily discharged Mary C. Harris
on June 3, 1961, and Bettie Gene Komorek on July 1, 1961, I will recommend that
Elias offer Harris and Komorek immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority and other rights
and privileges, and make them whole for any loss of earnings they may have suffered
because of the discrimination against them. Similarly, having found that Respond-
ents Greenfield and Holiday discriminatorily discharged Louise McCord on June 21,
1961, I will recommend that they offer her reinstatement and make her whole. These
employees will be made whole by payment to each of a sum of money equal to the
amount she normally would have earned as wages from the date of discharge to the
date of said offer of reinstatement, less her net earnings during said period, with back-
pay computed on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289. I will also recommend that the Respondents
make available to the Board, upon request, payroll and other records to facilitate
the determination of the amount due under this recommended remedy.
Having found that Respondents Elias and Livonia do not constitute a single em-
ployer within the meaning of the Act, and that the annual business volume of the
latter, considered separately, does not meet the Board's jurisdictional standards for
retail establishments, I have made no findings as to the alleged violations of the Act
by that Respondent and will recommend that the complaint be dismissed as to
Livonia.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondents Greenfield and Holiday constitute a single employer and are en-
gaged in commerce within the meaning of the Act.
2. Respondent Elias is engaged in commerce within the meaning of the Act.
3. Respondents Elias and Livonia do not constitute a single employer within the
meaning of the Act and the annual business volume of the latter does not meet the
Board's minimum for the assertion of jurisdiction over retail establishments.
16 Since I have found that Greenfield and Holiday comprise a single employer under the
Act, it is my further conclusion, In view of the violations found above, that the latter
Respondent must share with the former full responsibility for remedying the unfair labor
practices here involved NLRB v. Somerset Classics, Inc, et al, 193 F. 2d 613, 615
(CA 2), enfg. 90 NLRB 1676, 1681-1682; Aluminum Tubular Corporation, et al., 130
NLRB 1306; Wright & McGill Company, et al., d/b/a Sharp Point Fish Hook Company,
102 NLRB 1035, 1036-1037.
THE ELECTRIC FURNACE CO., ETC. 1077
4. The Union is a labor organization within the meaning of the Act.
5. By discriminating in regard to the hire and tenure of employment of Mary C.
Harris and Bettie Gene Komorek, thereby discouraging membership in the Union,
Respondent Elias has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (3) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Louise
McCord, thereby discouraging membership in the Union, Respondents Greenfield
and Holiday have engaged in and are engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
7. By interfering with, restraining, and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondents Elias, Greenfield, and
Holiday have engaged in and are engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
9. The General Counsel has not proved by a preponderance of the evidence that
Respondents Elias, Greenfield, or Holiday: (1) violated Section 8(a)(1) of the Act
by promulgating an unlawful written no-solicitation rule; or (2) interfered with, re-
strained, or coerced their employees in the exercise of the rights guaranteed by the
Act, except by the acts and conduct found herein to have been violative.
[Recommendations omitted from publication.]
The Electric Furnace Co . and Salem Fabricating & Machine
Co.' and United Steelworkers of America , AFL-CIO, District
26, Sub-District No. 5
The Electric Furnace Co . and United Steelworkers of America,
AFL-CIO, District 26, Sub-District No. 5. Cases Nos. 8-CA-
2272 and 8-CA-2355. June 29, 1962
DECISION AND ORDER
On October 23, 1961, Trial Examiner Henry S. Sahm issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that it be dismissed in its entirety, as
set forth in the Intermediate Report attached hereto. Thereafter, the
Union and the General Counsel filed exceptions to the Intermediate
Report and briefs in support thereof, and the Respondent filed a brief
in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and finding merit in the exceptions of the Union and the
General Counsel, hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent consistent
herewith.
The Union and Electric Furnace had engaged uninterruptedly in
collective bargaining from 1951 through 1958. Beginning in 1959, the
' Hereinafter referred to as Electric Furnace and Salem, or as Respondent collectively.
137 NLRB No. 120.