Flite Chief, Inc.

National Labor Relations Board - Board Decisions

Oct 6, 1975

220 N.L.R.B. 1112 (N.L.R.B. 1975)

1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flite Chief, Inc.; Richard Miller and Karen Miller; M
& M Truckadero Coffee Shop, Inc.; James Miller
and Paul A. Minder and Culinary Workers, Barten-
ders & Hotel Employees, Local 535. Cases
31-CA-4593 and 31-CA-5176
October 6, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On June 16, 1975, Administrative Law Judge Rus-
sell L. Stevens issued the attached Decision in this
proceeding. Thereafter, Respondents filed exceptions
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents, Flite Chief, Inc.; Rich-
ard Miller and Karen Miller; M & M Truckadero
Coffee Shop, Inc.; James Miller and Paul A. Minder,
Fontana, California, their officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
matter was opened in Riverside, California, On October
29, 1974,' before Richard D. Taplitz, Administrative Law
Judge, as Case 31-CA-4593. The parties were unable to
conclude a tentative settlement agreement and General
Counsel filed Case 31-CA-5176 dated April 2, 1975. Upon
motion by the General Counsel dated April 3, 1975, Cases
31-CA-4593 and 31-CA-5176 were ordered consolidated
by me, and I heard the consolidated cases at San Bernardi-
no, California, April 15 and 16, 1975. The complaint in
i All dates hereinafter are within 1974, unless stated to be otherwise.
Case 31-CA-4593, issued September 27 and amended Oc-
tober 18, is based upon an original charge dated July 23, a
first amended charge dated September 17, and a second
amended charge dated September 26, filed by Culinary
Workers, Bartenders & Hotel Employees, Local 535, here-
inafter referred to as the Union. The complaint in Case
31-CA-5176, issued April 2, 1975, and amended April 7,
1975, is based upon a charge filed March 27, 1975, by the
Union. The two consolidated complaints, as amended, al-
lege that Flite Chief, Inc.; Richard Miller and Karen Mill-
er; M & M Truckadero Coffee Shop, Inc.; James Miller
and Paul A. Minder,2 hereinafter collectively referred to as
Respondents, and sometimes referred to individually, vio-
lated Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, hereinafter referred to as the Act.
Issues
The principal issues are whether Respondents dis-
charged employees because of their union activities;
whether Respondents engaged in illegal interrogations,
threats, promises, and other activities; whether Respon-
dents refused to recognize, and refused to bargain with, the
Union by withholding information; and whether Respon-
dents' actions herein were of a nature to warrant issuance
of an order to recognize and bargain with the Union.
All parties have been afforded full opportunity to ap-
pear, to introduce evidence, to examine and cross-examine
witnesses, to argue orally and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondents (except Paul A. Min-
der, who was not present or represented at the hearing and
who filed no brief).
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
At all times material herein Respondent Flite Chief, a
California corporation, Richard Miller and Karen Miller,
have been engaged in the operation of a business complex
at Fontana, California, known as Truck Town. The opera-
tions of Respondent Flite Chief, Richard Miller, and Kar-
en Miller described above annually produce gross revenue
in excess of $500,000, and said three Respondents annually
purchase and receive goods valued in excess of $50,000
directly from suppliers located outside the State of Califor-
nia.
Jurisdictional amounts are admitted by the answer of the
aforesaid three Respondents in Case 31-CA-4593, and I
find that all Respondents are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Culinary Workers, Bartenders & Hotel Employees, Lo-
cal 535 is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
2 Respondent's counsel withdrew their representation by letters dated No-
vember 21, 1974 and April 3, 1975 (G.C. Exh. 1(s) and (t) ). Paul A Minder
did not appear in person or by representative.
220 NLRB No. 176
FLITE CHIEF , INC. 1113
III. THE UNFAIR LABOR PRACTICES
A. Background and Factual Summary
Respondent Flite Chief is a California corporation, oper-
ating business enterprises in and near Fontana, California.
Principal corporate officers , and owners of the corpora-
tion , are Richard Miller , president, and Karen Miller, vice
president . James Miller, son of Richard and Karen Miller,
became treasurer of Flite Chief in 1972 and rem?ined in
that position until July 12, 1974.
Included among Flite Chief's several businesses is a
truck stop at Fontana called Truck Town consisting of a
truck terminal, a motel , and at least until July of 1974, a
coffee shop . (The controversy herein is concerned with the
coffeeshop.) The land upon which Truck Town is located is
owned by Richard and Karen Miller, and is leased by them
to Flite Chief, Inc.
The coffeeshop was and has been a family affair, both
before and after July, when the present controversy arose.
Prior to July Richard Miller supervised the coffeeshop and
employed managers for it , including Darrell Ford (herein-
after Ford), hired February 1, 1974. James Miller at that
time did some maintenance work and small jobs for the
coffeeshop , and during Richard Miller 's absence James did
some work in the coffeeshop , including the signing of pay-
roll checks . James' sister Joann did some work as hostess
on weekends. After July, the coffeeshop continued to be of
considerable interest to the entire family , as discussed be-
low.
Prior to July the coffeeshop employed approximately 40
employees as manager , assistant manager , cashiers, host-
esses, waitresses , cooks, and busboys. Richard Miller, who
worked at the truck terminal about 100 or 200 feet from the
coffeeshop, conducted all labor relations for the coffee-
shop , and set wage scales based upon the minimum stan-
dards law. Salary checks were paid from the Truck Town
account. Ford had authority to give small raises to cooks,
but talked the matter over with Richard Miller after raises
were given . Employees had no health insurance , holiday
pay, or vacation pay. All members of the Miller family
sometimes ate at the coffeeshop without paying for meals.
Richard Miller 's frequent meals were written off as "pro-
motional" expenses . No credit was given to customers, nor
were credit cards accepted . Ford , who had an assistant
manager, supervised the daily operation of the coffeeshop
under direction of Richard Miller.
On July 10 and shortly thereafter James Tyler (hereinaf-
ter Tyler), business agent and organizer for the Union, ob-
tained union authorization cards from employees of the
coffeeshop . On July 17 Tom Jones (hereinafter Jones), sec-
retary-treasurer of the Union, advised Richard Miller by
letter that the Union represented a substantial number of
the employees at the coffeeshop and asked to meet with
Miller.
Although details are in dispute, it is established that
Jones went to the coffeeshop in the early afternoon of July
18 to talk with Richard Miller , at which time most if not all
the employees were standing outside . After Jones and
Richard Miller briefly talked, the employees returned to
their jobs. On July 22 all the rank-and-file employees
ceased working at the coffeeshop, and a new work force
later was employed. On that same day, July 22, Jones
talked with Karen Miller at the restaurant, and the latter
handed Jones a letter which stated, inter alia, that Richard
Miller "has been forced to dispose of his interests in Truck-
adero Cafe." No negotiations were conducted between the
Union and Richard and Karen Miller relative to the cof-
feeshop after July 22.
For a short period of time (a few days at most) prior to
July 22, James Miller and Paul A. Minder (hereinafter
Minder) were associated in some sort of relationship rela-
tive to the coffeeshop, not fully or satisfactorily explained
at hearing. Allegedly, a lease of the coffeeshop was entered
into on July 12, executed by Richard and Karen Miller as
landlord and James Miller and Minder as tenants. No bill
of sale was executed, but a promissory note allegedly dated
July 22 was signed by James Miller as president of M & M
Truckadero Coffee Shop, Inc., made payable to Flite
Chief, Inc., in the sum of $35,785.40. Allegedly the promis-
sory note is to secure payment of the inventory of the cof-
feeshop. The purchasing organization is said to be M & M
Truckadero Coffee Shop, Inc. (hereinafter M & M), a cor-
poration allegedly organized July 22 by James Miller and
Minder.
On July 18 a series of incidents arose, involving Richard
Miller, that were related to union activities. On July 22
James Miller, acting as the new owner of the coffeeshop,
discharged most, if not all, the rank-and-file employees of
the coffeeshop, and thereafter engaged in a series of ac-
tions alleged to be in violation of the Act.
Jones requested in writing on July 23 that James Miller
meet and negotiate with him, and he repeated his request
in writing on November 8. Jones and Tyler met with James
Miller about November 13 or 14, at which time Jones
handed to James Miller a copy of a proposed contract.
James Miller asked for time to study the proposal, and the
two again met with Tyler and Guy Peterson (hereinafter
Peterson, then manager of the coffeeshop), on December
10 and again about December 20. Peterson asked for more
time to review the proposed contract, and a meeting was
scheduled for January 2, 1975. However, James Miller
called Jones by telephone the morning of January 2, 1975,
and cancelled the meeting until a controversy relative to
Case 31-CA-4593 was settled. At that meeting James Mill-
er also refused to furnish certain information Jones had
requested, until that controversy was settled. Jones tried on
several occasions after the telephone conversation of Janu-
ary 2, 1975, to arrange another meeting with James Miller,
and to obtain the information previously requested, but
without result. No further meeting was held, and the re-
quested information was not received by Jones.
General Counsel contends that the alleged sale of the
coffeeshop was a sham transaction, designed solely to per-
mit Richard and Karen Miller to divest themselves of un-
ionized employees.
Respondents contend the sale was a bona fide one, en-
tered into for reasons not related to union activity.
General Counsel contends, alternatively, that even if the
sale is considered, arguendo, a bona fide one, Respondent
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & M Truackadero Coffee Shop, Inc., is liable under the
Act as a successor of Flite Chief, Inc.
B. Alleged Sale of the Coffee Shop
Basic to resolution of the controversy herein is the ques-
tion of whether or not sale of the coffee shop was a bona
fide , or a sham , transaction.
Respondents Richard and Karen and James Miller rely
upon Richard Miller's allegedly poor health as the reason
for sale of the coffeeshop . Richard Miller did not testify,
although he was present throughout the first day of the
hearing (April 15, 1975). There was no observable impedi-
ment to his testifying , and he took an active part in the
proceedings by commenting on the proposed introduction
of evidence, by making vigorous comments upon the testi-
mony of witnesses (attempts to testify without taking the
stand), by cross-examination of witnesses , and by arguing
with witnesses . Richard Miller was not present for the final
day of hearing , and Karen Miller said the absence was
upon instructions of his doctor . Respondents' offer of a
doctor's affidavit was rejected because of the obvious hear-
say involved ; the doctor would not be subject to cross-
examination.
Ford testified that the only time he heard Richard
Miller's health mentioned was when James Templeton
(hereinafter Templeton), a cook for the coffeeshop, men-
tioned that he had to go on a diet , and Richard Miller
replied that he too had to go on a diet and lose weight, and
had to quit smoking because of his health . Ford also said
he was aware that Richard Miller had high blood pressure.
Templeton testified that he and Richard Miller joked in
April or May about having to go on a diet , and that, at
about the same time , Richard Miller said he was pleased
with the business and talked about expanding. No other
witnesses testified in any way about Richard Miller's
health . James and Karen Miller said Richard Miller's
health problems consisted of high blood pressure which
first became noticeable in the spring of 1974.
1. Corporation organization
Karen Miller testified as follows: She and Richard Mill-
er went on vacation in June of 1974, and returned home
the first part of July. They asked James if he had made up
his mind about college , or whether he wanted to go into
business . James said he would like to go into business, and
a simple lease and business arrangement were drawn up by
an attorney the first part of July, with appropriate minutes
of Flite Chief, Inc., being drafted to reflect the trans-
action .3 Richard Miller suggested that Minder , because of
his business experience , should go into the business with
James , and Richard made arrangements with Minder,
whom Richard knew . From that point on, James and Min-
der made their own arrangements.
There is no evidence that the original lease from Richard
and Karen Miller to Flite Chief, Inc., was modified or
3 It is quite clear , and acknowleged by Karen Miller, that all minutes in
the Fhte Chief, Inc., minute book are of a uniform type, except those relat-
ing to this alleged transaction , which are of a different size.
amended to reflect the new lease to James Miller and Min-
der. The lease to James Miller and Minder covers certain
equipment and parking facilities referred to as being listed
on exhibit A to the lease, but the exhibit was not produced
by Respondents, although it was included in matters sub-
penaed by General Counsel. The inventory, payment for
which is secured by a promissory note signed by James,
allegedly consisted of $27,434 for meat, $4,000 for dry
goods, and $3,611 for produce.
James Miller testified as follows : James' father and
mother first saw an attorney about drafting purchase pa-
pers on July 2, 3, or 4. James did not go with them. Only a
lease and promissory note were drafted-no bill of sale was
drawn up. James talked with Minder about joining him,
because financial assistance was needed . James had known
Minder for some time , but his mother was the first one to
talk with Minder about going into the business. No M & M
corporate charter or bylaws were produced by Respon-
dents, although those records were subpenaed by the Gen-
eral Counsel. James now is the only stockholder of M & M.
As of July 22 Minder was working at the coffeeshop every
night, and shortly thereafter, possibly in August, Minder
quit the business and went to Europe . James bought Min-
der out , for an amount James does not know, with cash he
does not know the origin of. James is not sure he paid
Minder anything. James thinks Minder put up $5,000 for
his share of M & M , but he is not sure, nor is James sure he
paid Minder all or part of that amount when he bought
Minder out. "The attorney" took care of all the paper
work, although relevant documents subpenaed by General
Counsel were not produced. At the time Minder went to
Europe in August, M & M had no books and very few
records . The lease held by James and Minder (never as-
signed to M & M) provides for rentals of $1,500 per
month 4 to be paid to the landlord. The first rental pay-
ment was made in October , in the sum of $3 ,000 to cover
August and September . Several of the lease provisions and
conditions have not been taken care of, and James is not
sure of others . The lease was discussed but little between
James and his parents before signatures were affixed, al-
though James (who is 18 years of age) lives with his par-
ents . So far as the promissory note is concerned, James
said he did not know how the price was determined-that
was decided by his parents, although he later said the
amount was based upon inventory cost . James was con-
fused and uncertain about an alleged downpayment of
$5,000 to be made on the purchase, in equal shares by him
and Minder . He changed his story several times, in a self-
contradictory manner . It appears that none of that amount
was paid , if in fact it was owed , and it also appears that no
reimbursement was made to Minder on that account, if
any was due . No documents relative to this matter were
produced. Approximately half the promissory note was
paid shortly after the alleged purchase of the coffee shop,
the money being acquired from the business , and the bal-
ance was due 6 months after purchase.
° In his pretrial affidavit given to General Counsel, James said the month-
ly rental was $5,000. James also said in his affidavit that he made a $5,000
downpayment on the purchase, but testified he did not make such a pay-
ment.
FLITE CHIEF, INC.
2. Operation of the business
Karen Miller testified that she agreed to help James in
the restaurant a week or 10 days after he took over July 22.
James said his mother did help him at first, doing the
books and working on the floor, that he then was a cook
for the coffee shop, and that his sister also worked for
awhile after he took over, as a waitress-cashier . He said he
opened credit accounts for M & M, does all the ordering of
supplies, and manages the business . Payroll periods, hours
of operation, shift times, work application forms, guest
check forms, table and booth arrangements, employee uni-
forms, parking lot facilities, job duties for cooks and wait-
resses, refusal to accept credit cards , maintenance of cour-
tesy telephones for truckdrivers,5 and maintenance of
truckstop road signs all remain the same as they were prior
to July 22. A few minor changes have been made in menus,
James put up a "change of ownership" sign, and he applied
for certain government licenses . There now are fewer em-
ployees, and suppliers have changed in a few instances.
James and his father offset certain charges, including meals
for his father's Truck Town manager offset against costs of
guest receipts and towels obtained from his father.
Charlene Priest (hereinafter Priest), a waitress, testified
that she frequently saw Richard Miller and Karen Miller in
the coffeeshop after July 22, and that Karen Miller some-
times let herself into the office , using her own key.
Hilda Bitonti (hereinafter Bitonti), a waitress , testified
that Richard Miller sometimes eats at the coffee shop on
charge-free tickets (as does his manager for Truck Town),
that Richard made a plumbing repair for the coffeeshop in
October of 1974, and that as of October 1974, the
coffeeshop's health permit was in the name of Richard
Miller.
Patricia Powers (hereinafter Powers ), a waitress , testified
in the same manner as Bitonti, and said she has seen Mrs.
Miller at the coffeeshop a couple of times. Powers also
testified that she recently was told by the manager (Pe-
terson) that Richard Miller had observed one of the wait-
resses using too much ice cream in a milkshake, and to
"please watch it."
Frank Vymislicky (hereinafter Vymislicky), a busboy,
testified that some of the supplies for the coffeeshop are
kept at the truck terminal, and he must ask the Truck
Town manager to open the room when he gets supplies. He
said he has seen the Truck Town manager and Richard
Miller eat at the restaurant, and has seen Richard Miller let
himself into the coffeeshop office with his own key.
Donna Dunn (hereinafter Dunn), a waitress, testified in
much the same manner as Patricia Powers and Hilda Bi-
tonti, and added that, in January of 1975, Peterson told her
she could not wear pant suits to work because Richard
Miller did not like them.
Sandra Morris (hereinafter Morris), a cashier at the cof-
feeshop, testified that Richard Miller and his Truck Town
manager eat at the coffeeshop without paying, and that
Richard Miller has his own key to the coffeeshop office,
which he uses to let himself in. Morris also testified that
s Maintained at no cost to Truck Town.
1115
Peterson told her she could not wear pant suits at work
because Richard Miller does not like them, and that Pe-
terson told the waitresses that Richard Miller complained
about them using too much ice cream in milkshakes.
3. Alleged reason for the purported sale of the coffeeshop
Karen Miller testified that the decision to sell was made
before the Millers knew about any union organization ef-
forts. She said Richard's doctor told her in the spring of
1974 that Richard should get out of the business, or risk a
stroke from high blood pressure. She said they decided to
keep all the businesses except the coffeeshop, because the
coffeeshop was Richard's "biggest headache," primarily
due to the alleged deficiencies of Ford as a manager. She
said the other businesses were much easier to run. She testi-
fied that Ford was not confronted by Richard about his
alleged deficiencies.'
James Miller generally corroborated his mother's testi-
mony, and said his mother was the first to mention the
possibility of James buying the coffeeshop.
Ford testified that Karen Miller told him July 22 that the
coffeeshop would have to be sold because of Richard
Miller's health, upon advice of Richard's doctor. Ford said
this was the first time a sale had been mentioned, and that
James Miller told him July 14 that he wanted to learn how
to cook so he would have a way to earn money while going
to college, where he had already rented an apartment.
Jones testified that Karen Miller told him July 22 that
Richard Miller sold the coffee shop because of his illness.
Templeton testified that he first heard on July 22 that the
coffeeshop was going to be closed or sold. Donna Ellis
(hereinafter Ellis), a waitress, and Powers testified that
Karen Miller told her July 22 that the coffeeshop was
being sold because Richard Miller was ill.
4. Testimony relative to reasons for a sham sale
Tyler testified that Richard Miller told him on July 18
that he (Richard) could not afford the Union then or in the
future, and that if the coffeeshop went Union he would
have to close it down. Tyler said he heard Richard Miller
tell Jones the same day that he could not afford the Union.
James Miller acknowledged that the former employees
were not retained when he took over the coffeeshop, be-
cause he did not like them, or want them, or need them. He
said he advertised for, and hired, replacements. James said
he learned about the union activity the evening of July 18,
when his father told him about it at home? He said he and
his father, Richard, did not discuss union activities when it
was decided that James would take over the coffeeshop
July 22.
Ford testified that Richard Miller talked with him July
18 about union activity at the coffeeshop. Richard asked
Ford who was involved, and when Ford said he did not
know, Richard said "let's find out." Thereafter, as fully
discussed below, Richard terminated or suspended all the
6 Ford testified, without contradiction, that he received a $150 per month
raise in May or June of 1974.
7 He also testified he learned about the union activity when he saw the
employees standing outside the coffeeshop during the afternoon of July 18.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees for approximately 1 hour . Ford said he learned
of union activity at the coffeeshop about June 8, but did
not say anything about it to Richard Miller.
David Walthall (hereinafter Walthall), a busboy, testi-
fied that Richard Miller questioned him about the Union
on July 18, and told him he could not afford-to go Union
and would never be able to afford it.
Jones testified that Richard Miller told him July 18 that
he could not afford union wages, and that there would be
no union contract in his place of business . Jones said that,
when Karen Miller handed to him the letter mentioned
above (G.C. Exh. 14), on July 22, he asked if she realized
they were putting 40 families out of work and Karen re-
plied, "Do you mean that trash out front?"
Kathryn Paulson , a business representative for the
Union, corroborated the above testimony of Jones relative
to his conversation with Richard Miller.
Employees Templeton, Deborah Ranck (hereinafter
Ranck), a waitress , and Walthall testified that they were off
work about an hour July 18 because of Richard Miller's
statements about the Union, as more fully discussed below.
Randall Divine (hereinafter Divine), a cook, testified
that Richard Miller said aloud on July 18 to all employees
within earshot that anyone who wanted the Union in was
fired.
Karen Miller testified that neither she nor Richard had
any knowledge of union activity at the coffeeshop prior to
July 18.
Analysis
The excuse given by Karen Miller for Richard Miller's
failure to testify (high blood pressure) is not credited be-
cause of his observable condition , 8 his active part in all
proceedings the first day of hearing , and the fact that he
continues to work on a regular, daily basis as supervisor of
the Truck Town complex, service station, drive-in restau-
rants, and laundromats. Failure of Respondent to call
Richard Miller 's doctor as a witness under such circum-
stances creates an inference that Richard Miller 's condi-
tion did not preclude his testifying, and did not compel sale
of the coffeeshop.
The manner in which M & M was treated in its creation
and administration as a corporation precludes confidence
in the sincerity of the creators. James Miller and his moth-
er were unconvincing as witnesses , and neither of them is
credited. No corporate records of note were produced, al-
though all records of both M & M and Flite Chief, Inc.,
were subpenaed. No evidence was introduced that Flite
Chief, Inc., modified its basic lease, to account for the new
lease to M & M. The inference is strong that Flite Chief,
Inc., minutes were falsified to show sale of the coffeeshop
on July 12. No evidence was introduced to show assign-
ment of the coffeeshop lease from James Miller and Paul
Minder to M & M. No bill of Sale was prepared for trans-
fer of ownership of the coffeeshop. No capitalization of
M & M was shown; apparently James (who said he is the
sole stockholder) gave the corporation nothing for his
8 This is not conclusive evidence, but it is evidence and is weighed with
other factors.
stock-no preincorporation services, or cash, or anything
else. James does not know, or is uncertain about, details of
the sale and payments relative to the sale. James did not
even go to the attorney's office when documents were
being prepared for creation of M & M and sale of the
coffeeshop; only his parents went. No list of equipment
included in the lease was produced by Respondents, and
the promissory note was for nothing other than supplies.
The inventory appears incomplete and in error; it is sus-
pect. Relationship of Minder to the corporation never was
satisfactorily explained. No minutes, or other books and
records of M & M, were produced.
Credited testimony of Ford and the employees named
above shows that operation of the business after July 22 is
the same as operation prior thereto, with but a few minor
differences. Hours, duties of employees, supplies and their
storage, office forms, and courtesy privileges for truckers
and Richard Miller and his manager all remain the same.
Richard Miller continues to frequent the coffeeshop, do
some jobs there, and issue some instructions. Richard and
Karen Miller retain their keys to the coffeeshop office.
The reason given by Karen Miller for sale of the cof-
feeshop does not withstand scrutiny, for several reasons.
First, as outlined above, it is apparent that Richard Miller's
high blood pressure has not kept him from working, and no
doctor (nor Richard Miller himself) testified relative to his
alleged condition. Second, it is obvious that James simply
was a tool in the transaction. He is only 18 years of age, a
recent high school graduate with no experience worthy of
mention, and, until the first part of July 1974, a college
hopeful. His testimony was inconsistent and self contradic-
tory, and showed an ignorance of and lack of concern with
even the rudiments of business. Clearly, he is not capable
of operating a business grossing almost half a million dol-
lars per year. He lives at home, his mother engineered the
so-called sale, and he is patently answerable to his parents.
Third, it is not possible on the record to arrive at a satisfac-
tory explanation of the role Paul Minder played in the
transaction, if any. The most nearly plausible conclusion is
that he was importuned by Karen Miller to come into the
arrangement as a prop for James. James testified that Min-
der was "more or less a silent partner but he was just like a
manager." Minder soon left whatever he had got into, and
went to Europe. Fourth, only the coffeeshop allegedly was
sold, and of the several businesses of Flite Chief, Inc., only
the coffeeshop was the scene of union activity during the
time relevant herein. Finally, the union animus of Richard
and Karen Miller is abundantly shown by the record.
The real reason for the sham sale of the coffeeshop clear-
ly was to avoid its unionization. As the testimony shows,
Richard Miller was determined to keep the Union out of
the coffeeshop, and when confronted by union activity
July 18 he reacted by cursing Jones, by firing employees,
by threatening to sell or close the coffeeshop, and by
threatening to fire all other employees who supported the
Union.
The incident of July 18, wherein nearly all the employees
left the coffeeshop and stood outside for an hour or so
pending arrival of Jones, after Richard Miller announced
to all employees within hearing distance that all union sup-
porters were fired, was related in credible manner by sever-
al witnesses.
FLITE CHIEF, INC.
The lease purported to be dated July 12, as do Flite
Chief, Inc., minutes showing the alleged sale transaction,
but as discussed above relative to the minutes , that date is
patently spurious . It is clear that all documents relating to
the alleged sale, such as they are , were hastily and inade-
quately drawn to meet an emergency situation-unioniza-
tion of the coffeeshop-and are not valid sale documents.
It is found that the alleged sale was a sham transaction,
that M & M is a family organization , and that the alleged
sale was for the sole reason of avoiding unionization of the
coffeeshop.
It is found that Richard and Karen Miller at all times
relevant herein have been , and are , officers and general
agents of Flite Chief, Inc., and that James Miller has been
the chief officer , and general agent , of M & M during its
entire existence . Proof of Paul Minder's position is vague,
but he is found to be an agent of M & M at all times
relevant herein . General Counsel did not explain the rea-
son for naming individuals as Respondents , and there was
no showing that Flite Chief, Inc., and M & M are not
corporations . Proof of M & M 's entity status is beclouded
somewhat by failure of Respondents to produce subpenaed
documents , but the existence of neither party named as a
corporation was challenged.
It is assumed that the individuals were named as Re-
spondents because of their possible personal liability in the
event M & M were found not to be a corporation . In view
of the failure of Respondents to show that the lease signed
by James Miller and Paul Minder was assigned to
M & M, and in further view of the uncertain status of
M & M and the possibility of individual liability, the rem-
edy and order described hereinbelow are directed to all
named Respondents.
General Counsel contends that Flite Chief, Inc., and
M & M are a single employer based upon several factors,
including common ownership and control . James Miller
testified that he is the sole stockholder of M & M, and
there is little evidence that James is not an active manager
of operations at M & M. Respondent's basic defense is
that the two corporations are entirely separate legal enti-
ties, neither of which is liable for actions of the other. All
of these contentions are somewhat beside the point. The
reason for establishment of a separate corporation
(M & M) to operate the coffeeshop is of secondary con-
cern . If Richard and Karen want to make a legitimate gift
of the coffeeshop to their son James, and create a corpora-
tion for him as the vehicle of transfer, that alone is of no
concern to the National Labor Relations Board . However,
far more is involved . M & M clearly was created to be a
vendee and lessee of the coffeeshop and its premises for the
purpose of avoiding unionization . The alleged sale of the
coffeeshop is the core of the controversy, rather than the
question of common ownership or common control of both
corporations . Sale for such a purpose would be violative of
the Act whether made between individuals , partnerships,
corporations , or a mixture thereof , as would closure with-
out sale . Lees Shopping Center, Inc., 198 NLRB 507 (1972)
Industrial Fabricating, Inc., et al., 119 NLRB 162 (1957).
General Counsel contends that Flite Chief, Inc., and
M & M are a single employer, based upon tests enumerat-
1117
ed in Sakrete of Northern California, Inc. v. N.L.RB., 332
F.2d 902 (C.A. 9, 1964), cert. denied 379 U.S. 961 (1965),
and N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398 (1960),
and that the law of those cases is controlling even if, ar-
guendo, the two corporate entities are considered separate
and valid. It can be argued that the record does not show
that all the tests set forth in Sakrete and Deena are met in
this case. James Miller, who is young and inexperienced
and living with his parents, presumably is under their con-
trol and direction, but that is a presumption, not a proved
fact. The parents own and control Flite Chief, Inc. Evi-
dence shows that Richard Miller does some work in the
coffeeshop and has expressed some interest in how it is
operated, but that evidence is not conclusive. It is a fact
that two corporations exist .9 However, creation of M & M
and sale of the coffeeshop to avoid unionization results in
M & M being Flite Chief, Inc.'s alter ego for the purpose
of this case. Rushton & Mercier Woodworking Co., Inc., and
Rand & Co., Inc., 203 NLRB 123 (1973); N.L.R.B. v. Gi-
bralter Industries, Inc., 307 F.2d 428 (C.A. 4, 1962), enfg.
133 NLRB 1527 (1961). Further, as pointed out by General
Counsel, it can be argued that M & M is a successor of
Flite Chief, but the distinction is blurred in law, and is
immaterial to resolution of this controversy. Regal Knit-
ware Company v. N.L.R.B., 324 U.S. 9, 15.
There is no question but what M & M, as an alter ego
of Flite Chief, Inc., is liable for unfair labor practices com-
mitted by Flite Chief. Atlanta Paper Company and Mead
Atlanta Paper Company, 121 NLRB 125 (1958). And cer-
tainly M & M and Flite Chief are separately liable for
their own unfair labor practices, as discussed below. The
two corporations being family affairs, as found above, it
follows that Flite Chief, Inc., can be held liable for the
unfair labor practices of M & M, its alter ego. As stated
by the Trial Examiner in Charles T. Reynolds, Sr., d/bla as
Charles T. Reynolds Box Company, and Reynolds Pallet and
Box Co., 139 NLRB 519 (1962):
Whether the term successor or alter ego is applied to
the relationship, it is clear that the corporation was not
a bona fide successor insofar as the unfair labor prac-
tices herein are involved. The take over of the business
by the Corporation from Reynolds was not a trans-
action between strangers dealing at arm's length, but
rather a continuation of the business in a different
legal form with substantially the same ownership and
management.
C. Alleged Refusal to Bargain
Both complaints in the cases consolidated herein allege
that, since on or about July 18, Respondents have refused
to bargain with the Union. The complaint in Case
31-CA-5176 alleges that, since on or about November 8,
Respondents have refused to furnish to the Union informa-
tion relevant to the Union's performance of its obligations.
It is further alleged that, since on or about January 2, 1975,
9 As discussed above, there is no basis upon which to conclude that
M & M does not have corporate existence; General Counsel alleges its
existence
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents have withdrawn recognition of the Union.
In its answer to the complaint M & M admits, and it is
found, that all employees employed by Respondents in
their coffeeshop located 10238 Cherry Avenue, Fontana,
California; excluding all office clerical employees, guards,
watchmen, professional employees and supervisors as de-
fined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
Credited testimony shows that, as of July 12, there were
approximately 39 employees in the aforesaid unit. Signed
union authorization cards of 24 of said employees, all dat-
ed on or before July 12, were admitted into evidence with-
out objection by Respondents. It is found that, as of July
12 and at all times thereafter, the Union was and has been
exclusive bargaining representative for all employees of the
aforesaid unit.
Jones testified as follows: On July 17, he sent a letter to
Richard Miller requesting a negotiation meeting, and on
July 18 he met with Richard Miller at the coffeeshop and
tried to bargain, both generally about unionization and
specifically about the employees who had been fired and
were standing outside the coffeeshop, as discussed above.
Richard Miller adamantly refused to bargain, and said
that, at Jones' request, the employees could come back in
but when the food was gone they would be gone also, since
he was going to close the business. Miller told Jones he had
not fired the employees-they just walked out. Miller also
said it was a free country and he could fire anyone he
wanted to.10 Jones met with Karen Miller July 22, at which
time he was advised that Richard Miller had disposed of
his interest in the coffeeshop and the employees all had
been fired. Jones sent a telegram on July 22 to the manage-
ment of the coffeeshop and requested a negotiation meet-
ing, but received no response.I I Jones sent a letter to James
Miller on November 8 requesting that a meeting be ar-
ranged to negotiate a contract. A few days after the letter a
meeting was arranged between Jones and Tyler of the
Union, and James Miller and the coffeeshop manager. The
meeting took place at the coffeeshop and lasted about an
hour. Jones gave James Miller a copy of the standard con-
tract that included wage scales and other terms, and James
requested time to review the contract prior to any further
negotiations. In a letter of November 27 Jones requested
that the negotiations resume, and he requested that James
Miller furnish information including a list of employees,
current wage scales, and any benefits employees were re-
ceiving. A meeting was held on December 10 attended by
the same parties, except the former manager had been re-
placed by Peterson as manager. Neither James Miller nor
Peterson brought the requested information, and Jones
made another request for the same material. A third meet-
ing was held about 10 days later between the Union repre-
sentatives and James Miller and Peterson of the coffee-
shop. The standard contract again was discussed, with
particular attention being given to union-security and the
dues checkoff clauses. Jones agreed to delete the latter
item. James Miller still did not furnish the requested infor-
mation . A fourth meeting was scheduled for January 2,
1975. On the morning of that date Jones was called on the
telephone by James Miller. James told Jones that he was
calling off the meeting scheduled for that afternoon and
that he would not meet again until the question of back
wages for the employees involved in Case 31-CA-4593 had
been settled. James Miller also refused to furnish the re-
quested information. In a telephone conversation between
Jones and James Miller the latter part of January 1975,
James restated his intent not to negotiate further. On Feb-
ruary 14, 1975, Jones sent a mailgram to James Miller re-
questing that a meeting be arranged for negotiation. An-
other letter was sent by Jones to the coffeeshop in the latter
part of March 1975, but it was refused by the coffeeshop.
Jones was an impressive witness. His testimony is cred-
ited in its entirety.
It is found that the allegations of the complaint relative
to refusal of Respondents to bargain with the Union, with-
drawal of union representation,' and refusal to furnish in-
formation to the Union are proved.
D. Alleged Instruction to Employees to Observe Other
Employees
Paragraph 13 of the complaint in Case 31-CA-5176 al-
leges that, during the months of October and November,
James Miller told employees to observe fellow employees
with union sympathies, and to aid in finding pretextual
reasons to fire union sympathizers.
Linda Hillebrand (hereinafter Hillebrand), a waitress at
the coffeeshop, testified that James Miller asked her in his
office on a date after October 29 "if I would come and
snitch to him every time the girls had done something
wrong as to give a reason as why to fire them." "The girls"
were three other waitresses.
Morris testified that James Miller told her a week prior
to October 29 that he was changing her shift in order that
she could "watch the girls and give him any reason of
which he could use to fire them." The girls were two other
waitresses.
The waitresses James referred to in the above two con-
versations were active union supporters who, according to
testimony, James said he was desirous of firing, because of
their union activity.
James Miller did not cross-examine the witnesses on this
subject, and he did not deny the statements attributed to
him.
The two witnesses are credited. It is found that this alle-
gation of the complaint is proved.
E. Alleged Surveillance
Paragraph 13(b) of the complaint in Case 31-CA-5176
alleges that, on or about April 4, 1975, and prior thereto,
2 It is not disputed that Respondents and the Union entered into a settle-
10 Jones' testimony was corroborated by Tyler and Paulson. ment agreement (later set aside) in October of 1974. James Miller later
11 In her letter of July 22 handed by Karen Miller to Jones, Karen stated, refused to meet further with the Union , clearly establishing withdrawal of
inter aha, "You were advised of this change of ownership on July 18, 1974 " recognition that had been accorded several months, including agreement
Jones denied that he was so advised on July 18. Jones is credited with the Union to settle the controversy
FLITE CHIEF, INC.
Respondents engaged in surveillance or gave the impres-
sion of surveillance of employees ' union activities.
Hillebrand testified she had a conversation with James
Miller in October of 1974:
A. Jim was talking about going to court and he said
that he does not want the union girls to come back
to work for him; he will do anything to get them
fired . He said he was going to have a tape recorder
sitting and it led to a wire and the wire led out into
the girls dining area.
Q. Where was the tape recorder?
A. It was up on a little box next to the window-the
back window-that led to the girls dining room.
Q. Was there a microphone?
A. Yes, there was.
Q. Where was the microphone?
A. The microphone he said was out in the dining area.
Vymislicky testified that , on April 4, 1975, he was taking
down a table the employees used to eat on , and a micro-
phone was hanging down on the underneath side of the
table , with a cord attached and running into the office used
by James Miller and the manager of the coffee shop. He
said the employees had known the microphone was there.
Violet Strain , a dishwasher at the coffee shop, testified
that she saw the microphone and cord as the tables were
being moved.
James Miller did not cross-examine the witnesses on this
subject, and he did not deny the presence of the micro-
phone and recorder the witnesses testified to.
The three above -named witnesses are credited , and it is
found that this allegation of the complaint is proved.
F. Alleged Termination or Suspension of Four Employees
Paragraph 11 of the complaint in Case 31-CA-4593 al-
leges that, on or about July 18, Respondents terminated or
suspended James Templeton , Deborah Ranck , Charlene
Priest, and David Walthall for a period of approximately I
hour.
Templeton credibly testified that he was a cook at the
coffeeshop from February 16 to July 22, 1974. He said that
on July 18, Richard Miller asked him if he was in favor of
the Union, and when Templeton said he was, Miller re-
plied, "then get your damn stuff and get out of here; you
are through." Templeton said he heard Richard Miller fire
Ranck at the same time , for the same reason . Later that
day Ford told Templeton to come back to work the follow-
ing morning, which he did.
Ranck credibly testified that on July 18, Richard Miller
asked if she had signed a union card and Ranck said yes.
Miller said "I might as well go home that day that I didn't
have a job because I signed a union card ." Ranck said she
stood outside with others until Jones and Tyler arrived,
and she returned to work at 3:15. Ranck said she heard
Richard Miller fire Templeton for the same reason she was
fired.
Priest testified that Richard Miller asked her July 18 if
she had signed a union card. Priest said she had, and Miller
replied that anyone who wanted the Union did not need to
work for him . However, Priest went about her usual duties
1119
and finished her shift that day.
Ford testified that he was with Richard Miller when
Templeton and Ranck were fired, and Ford corroborated
the latter's testimony. He also said that, after Richard Mill-
er fired Templeton and Ranck, "he waved his hands and
said anyone who wants the Union is through." Randall
Devine also corroborated the testimony of Templeton and
Ranck, and testified to the same statement attributed to
Richard Miller, that anyone who wanted the union was
through. Both Ford and Divine are credited.
Walthall testified that he was supposed to go to work at
3 p.m. on July 18, and that he clocked in about 3:15. There
is no evidence that he was terminated or suspended July 18
by Richard Miller.
It is found that the allegations of the complaint are
proved so far as Templeton and Ranck are concerned, and
not proved so far as Priest and Walthall are concerned.
G. Alleged Termination of All Unit Employees
Paragraph 12(a) of the complaint in Case 31-CA-4593
alleges that, on or about July 22, Respondent terminated
all employees in the unit described above.
Ford testified that he talked with Karen Miller at or
about 7:30 a.m. on July 22, at the coffeeshop. He said
Karen "informed me of the necessity for Richard Miller to
sell the business due to his health," and that the new own-
ers had decided to fire everyone, including Ford. There
was no mention of who the new owners were.
Templeton testified that Ford told him on the telephone
July 22 that all employees were being fired, and that Karen
Miller gave him his termination check that day. Priest testi-
fied that Karen Miller told her July 22 that she would have
to leave because the coffeeshop had been sold due to Rich-
ard Miller's poor health. Both Karen and Richard Miller
told Priest the business had been sold sooner than planned,
because of the Union. Priest received her termination
check July 22, and turned in her application for employ-
ment by the "new owner." Priest said she was rehired on
July 24 by James Miller, who told her she was hired back
because she was not "out front" with the other employ-
ees.13 Ellis testified that she was terminated by Mrs. Miller
July 22, and was instructed to reapply for a job with the
new owners. She said James Miller told her that Tony Min-
der was the new owner at that time. 14 Ellis said she was
rehired 2 or 3 days after July 22, by James Miller. Ranck
testified that she was terminated by Karen Miller July 22,
and that Mrs. Miller said it would be a couple of days
before Ranck would know whether she would be rehired.
Bitonti testified that she was terminated July 22 by Karen
Miller, and that she submitted an application for reem-
ployment. Bitonti said she asked Minder July 22 if he was
the new owner, and Minder just shrugged his shoulders.
Powers testified she was terminated by Karen Miller July
22, and was told the new owners would be bringing in their
13 Who had been discharged July 18 by Richard Miller, as discussed
above.
14 Ellis testified that she talked with Minder about a week after July 22,
and that Minder said he would not buy the coffee shop, that "he wouldn't
have it the way it was."
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own employees. Powers gave her application for reemploy-
ment to Mrs. Miller . Dunn testified she was terminated
July 22 by Karen Miller, and submitted her application for
reemployment to James Miller. James told her reemploy-
ment was up to Tony Minder, the new owner, and that
Tony wanted "a new crew."
Hillebrand testified that she talked with James Miller six
or seven times about the Union, and that, in October,
James told her "he will do anything" to get union support-
ers fired . He said he did not want Bitonti and Dunn back
at work , and after firing Bitonti he said "for sure he was
going to keep her out."
Morris testified that she talked with James Miller on ap-
proximately 10 occasions about the Union, and that James
told her after she was hired in October that the Union was
trying to get in and that "there was no way they could get
in." She said James also told her he wanted Hilda (Bitonti)
and Donna (Dunn), and all the union girls , out of the cof-
feeshop. On October 30, after the hearing on the 29th,
Morris asked James "how it went ," and James said "not to
worry, that he would have everybody out of there within a
week." Morris testified that James made every effort to
avoid reinstating employees who had been fired.
Walthall testified that he was fired July 22 by Karen
Miller.
Analysis
Although it appears that not all the employees who were
fired July 22 testified, it is clear that there was a mass
discharge on that date , and determination of those who
were fired can be made at the compliance stage of these
proceedings. Testimony summarized above is credited. It is
found that all unit employees were terminated July 22.
As analyzed and found above, Richard and Karen Mill-
er arranged for creation of a corporation wholly owned by
their son James, to which the coffeeshop allegedly was
sold. The only reason for that transaction was to prevent
unionization of the coffeeshop.
As shown by credited testimony, immediately after the
alleged sale James Miller embarked upon a course de-
signed to rid the Miller family of the Union. All unit em-
ployees were fired. Employees were told unionization
would not be tolerated . Unlawful interrogations , threats,
and pay raises were engaged in (discussed below). A hid-
den microphone and recorder were installed in order to
listen to employees ' conversations.
Under such circumstances, there is no doubt but what
the mass discharge of July 22 was motivated solely by the
desire to interrupt and stop union activity at the coffee-
shop.
It is found that this allegation of the complaint is proved.
H. Alleged Termination of Leona Lile
Paragraph 13 of the complaint in Case 31-CA-4593 al-
leges that, on or about August 2, Respondents terminated
Leona Lile.
On July 22 James, Joann, Karen, and Richard Miller
handed out, upon request, job applications to employees
who had just been terminated. Of those fired, however,
only three were rehired by James Miller. One of the three,
Leona Lile (hereinafter Lile), was hired only after interces-
sion on her behalf by a friend. Lile and the other two em-
ployees, Ellis and Charlene, were questioned about the
Union by James Miller. Lile and Priest were told that they
had been rehired because they had not joined the group of
employees who had been in the parking lot after the mass
discharge on July 18. Lile had to fill out at least two job
applications, neither of which was produced at the hearing,
although they were subpenaed by General Counsel. Five
days after Lile returned to work she was terminated by
James Miller, with the only reason given that James had
applications from younger girls. In view of the discussions
between James Miller and Lile, the fact that James was
aware of her friendship with other discharged employees,
and James' antagonism toward the Union, Lile's discharge
on August 2, 1974, is found to have been because of her
union activity.
It is found that this allegation of the complaint is proved.
I. Alleged Wage Increase
Paragraph 14 of the complaint in Case 31-CA-4593 al-
leges that, on July 22, Respondents hired new employees
and granted them wage increases in order to discourage
support of the Union.
The fact that some employees were hired after July 22 at
wages higher than prevailed prior to July 22 is not in dis-
pute. James acknowledged that he increased the pay of
waitresses and busboys from $2 per hour to $2.25 per hour
after July 22. Lile, Ellis, Bitonti, Powers, Dunn, and Hille-
brand all testified they worked after July 22 at $2.25 per
hour, and Priest said she was raised to $2.50 per hour.
Lile testified that James told her he was hiring everyone
back at $2.25, and asked why the employees wanted the
Union. Ellis testified that James told her $2.25 was more
than the union wage.
In view of the undisputed fact that waitresses and bus-
boys had never earned more than $2 per hour at the cof-
feeshop prior to July 22, the unchallenged statements of
Lile and Ellis, the demonstrated union animus of James
Miller, and the unexplained reason for the sudden raise,
there is no doubt but what the increase was given for the
sole reason of depressing union activity.
It is found that this allegation of the complaint is proved.
J. Alleged Interrogation and Threat by Richard Miller
Paragraphs 15 and 16 of the complaint in Case
3l-CA-4593 allege that, on or about July 18, Richard Mill-
er interrogated, and threatened with discharge, employees
who supported the Union.
Templeton, Ranck, Ford, and Divine all credibly testi-
fied to the alleged acts , as discussed in section F above.
It is found that these allegations are proved.
K. Alleged Interrogation and Threat by James Miller
Paragraph 17 of the complaint in Case 31-CA-4593 al-
leges that, on or about July 24, James Miller interrogated,
and threatened with discharge , an employee because of her
FLITE CHIEF, INC. 1121
union activities.
Priest testified that she talked with James Miller July 24,
and that James asked her if she was going to "try to orga-
nize a union," and also asked her if she would vote for or
support the Union. Priest replied to James , after which he
said , "Okay, as long as you are not going to make trouble
you can work here."
Priest is credited. James did not deny the statements.
The statements clearly are coercive under the circum-
stances.
It is found that this allegation of the complaint is found.
L. Alleged Interrogation and Promise of Benefits by James
Miller
employees about, and asked for a continuing report on,
union activities of the employees.
Ellis testified that, a few days after she was fired July 22
and called back to work July 24, she had a conversation
with James Miller , who "wanted to know what the union
was going to do ; if they were going to picket or what their
plans were." Ellis said James also told her "he would ap-
preciate it very much if I would keep him informed as far
as what the union was going to do ." Ellis replied that she
did not want to be a squealer . Ellis said James also asked
her how she voted in the union election.
Ellis is credited, and her statements quoted above were
not challenged or denied.
It is found that these allegations are proved.
Paragraph 18 of the complaint in Case 31-CA-4593 al-
leges that, on or about July 27, James Miller interrogated
an employee about, and promised benefits to discontinue,
union activities.
Credited testimony shows that , on July 27, James Miller
had a conversation with Lile , who had been terminated
July 22 with the other employees . The conversation was
initiated by a deputy sheriff . Lile was offered a job, but on
a different shift . Prior to July 22 she had been receiving $2
per hour, but James Miller told her that he was "hiring
everybody back at $2 .25 an hour . That was more than what
they were going to get before so there shouldn 't be any
problem." In that same conversation , James Miller in-
quired about the motivations of the union sympathizers.
Under the circumstances , those statements and inquiries
clearly were coercive and in violation of the Act.
It is found that this allegation of the complaint is proved.
M. Alleged Condition of Granting Higher Wages
Paragraph 19 of the complaint in Case 31-CA-4593 al-
leges that on or about July 28, James Miller conditioned
the granting of higher wages on abandonment of employee
union activity.
Priest was rehired on the condition that she did not
"make trouble," which is an obvious reference to union
activity in light of the conversations concerning organizing
and the Union . Priest was asked whether she would orga-
nize and answered that she would not , and she was asked
what the Union had to offer . In her next paycheck, Priest
received a wage increase of $.50 per hour, to $2.50 per
hour . The wage increase was not explained to Priest, but
Lile was told it was given so there would no longer be a
"problem ." Ellis was told that her raise to $2.25 an hour
was more than union scale. From the uncontradicted testi-
mony of Lile , Priest, and Ellis it is clear that James Miller
conditioned reemployment on the abandonment of union
activities , and increased the wage scale in order to encour-
age that abandonment.
It is found that this allegation of the complaint is proved.
N. Alleged Interrogation by James Miller, and Request for
Union Activities Report
Paragraph 20 of the complaint in Case 31 -CA-4593 al-
leges that , on or about July 29 , James Miller interrogated
0. Requested Bargaining Order
General Counsel requests a remedial bargaining order
upon the basis that Respondents' violations of the Act are
so serious and pervasive that such an order is necessary,
under the principles enunciated in N.L.R.B. v. Gissel Pack-
ing Co., Inc., 395 U.S. 575 (1969).
Respondents' postmajority hostility to the Union refusal
to furnish relevant information, mass discharge of employ-
ees, commission of Section 8(a)(1) violations , and refusal to
bargain with the Union, all found above, show beyond
doubt that a bargaining order is warranted and necessary.
An election under such circumstances could not be a fair
method to determine the desire of employees. K Wm.
Beach Mfg. Co., Inc., 192 NLRB 203 (1971).
Respondents' earlier recognition of the Union through
bargaining meetings and a settlement agreement, and their
subsequent withdrawal of recognition, have been found
above. Also found above was Respondents' refusal to fur-
nish to the Union properly requested information. Those
actions by Respondents support a separate 8(a)(5) viola-
tion finding. United Packing Company of Iowa, Inc., 187
NLRB 878 (1971).
Accordingly, it will be recommended that Respondents
be ordered generally to bargain with the Union (Gissel,
supra ), and specifically to recognize the Union and to fur-
nish the information requested by the Union.
P. The Question of Reinstatement
General Counsel asks that any remedy herein include
full and unconditional reinstatement of all coffeeshop em-
ployees discharged on July 22, even though some employ-
ees were called back to work. That request is well ground-
ed, for several reasons.
First, the record is not clear on how many employees
were called back, and how many later were terminated
again . Not all discharged employees were named, or called
as witnesses. It is not possible to fashion separate remedies
for each employee.
Second, Respondents' demonstrated hostility to the
Union and the obvious conditions to reinstatement of Lile,
Priest, and Ellis, discussed above, cast doubt upon James
Miller's sincerity concerning reinstatements.
Third, James Miller's request that Ellis keep him in-
formed of union activities demonstrated James' continuing
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveillance of the employees and makes possible reinstate-
ment, without an order, tenuous at best.
Finally, the record shows James ' studious efforts to
avoid seeing or talking with employees after sending them
letters offering reinstatement . Clearly, reinstatement offers
were made merely as a matter of form.
Under such circumstances , it is necessary to order full
reinstatement of all unit employees discharged July 22, and
leave computation of backpay, including any interim earn-
ings received from M & M , to the compliance stage.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondents ' activities set forth in section III,
above , occurring in connection with the operations of Re-
spondent described in section I, above , have a close, inti-
mate , and substantial relation to trade, traffic , and com-
merce among the several States , and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondents have engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that they be ordered to cease
and desist therefrom , and to take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondents unilaterally dis-
charged all unit employees of the M & M coffee shop on
July 22, 1974, and discharged Lile August 2, 1974. I will,
therefore , recommend that Respondents offer said individ-
uals their former jobs or, if those jobs no longer exist, sub-
stantially equivalent jobs , without prejudice to their senior-
ity and other rights and privileges , and make them whole
for any loss of earnings suffered by reason of the discrimi-
nation against them, by payment to them of sums of mon-
ey equal to that which they normally would have earned,
absent the discrimination , less net earnings during such pe-
riod, with backpay computed on a quarterly basis in the
manner established in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest at the rate of 6 percent per
annum , as set forth in Isis Plumbing and Heating Co., 138
NLRB 716 (1962). It will be further recommended that
Respondents preserve and make available to the Board,
upon request , all payroll records , social security payment
records , timecards, personnel records and reports , and all
other records necessary and useful to determine the
amounts of backpay due and the rights of reinstatement
under the terms of these recommendations.
It also will be recommended that Respondents be re-
quired to recognize and bargain with the Union as the ex-
clusive bargaining representative of the employees in the
above-described collective -bargaining unit.
Upon the basis of the foregoing findings of fact, and
upon the entire record , I hereby make the following:
M & M Truckadero Coffee Shop, Inc.; James Miller and
Paul A . Minder , are employers engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act.
2. Culinary Workers, Bartenders & Hotel Employees,
Local 535 , is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following words and acts , Respondents inter-
fered with , restrained , and coerced their employees in the
exercise of their rights guaranteed to them by Section 7 of
the Act, in violation of Secion 8(a)(1) of the Act: termina-
tion or suspension of employees ; granting of wage increas-
es; interrogation of employees ; threat to discharge employ-
ees; conditioning the granting of higher wages upon
abandonment of union activity; solicitation of reports by
employees on union activities ; refusal to furnish to the
Union requested information ; telling employees to observe
and report on other employees ; and engaging in surveil-
lance or giving the impression of surveillance of employees'
union activity.
4. By the following acts , Respondents discriminated
against their employees in violation of Section 8(a)(3) of
the Act: termination or suspension of employees and
granting wage increases in order to discourage support of
the Union.
5. All employees employed by Respondents in their cof-
feeshop located 10238 Cherry Avenue, Fontana, Califor-
nia, excluding all other employees , and supervisors as de-
fined in the National Labor Relations Act, constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
6. The above-named labor organization is the exclusive
representative of all employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the
meaning of Section 9(a) of the Act, and has been such
exclusive representative since July 12, 1974.
7. By refusing to bargain collectively with the Union
through failure and refusal to furnish certain requested in-
formation , and by withdrawing recognition of the Union,
Respondents have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(5) of the
Act.
8. Respondents did not, through alleged conduct, vio-
late Section 8(a)(3) and (1) of the Act by terminating or
suspending employees Priest and Walthall as alleged in
paragraph III, E hereinabove.
9. The aforesaid unfair labor practices committed by
Respondents are of such a serious and pervasive nature
that they warrant entry of a remedial order directing and
requiring Respondents to recognize and bargain with the
Union as the representative of the employees in the above-
described unit.
10. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and 2(7) of the Act.
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
CONCLUSIONS OF LAW
1. Flite Chief, Inc.; Richard Miller and Karen Miller;
FLITE CHIEF, INC. 1123
ORDER 15
Flite Chief, Inc.; Richard Miller and Karen Miller;
M & M Truckadero Coffee Shop , Inc.; James Miller and
Paul A . Minder , their officers , agents , successors , and as-
signs, shall:
1. Cease and desist from:
(a) Interfering with , restraining, or coercing their em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the National Labor Relations Act, in violation
of Section 8(a)(1) of the Act, by the following conduct:
termination or suspension of employees ; granting of wage
increases ; interrogation of employees ; threat to discharge
employees; conditioning the granting of higher wages upon
abandonment of union activity ; solicitation of reports by
employees on union activities ; refusal to furnish the Union
requested information ; telling employees to observe and
report on other employees ; and engaging in surveillance or
giving the impression of surveillance of employees' union
activity.
(b) Discriminating against their employees in violation
of Section 8(a)(3) of the Act by termination or suspension
of employment , and by granting wage increases in order to
discourage support of the Union.
(c) Refusing in violation of Section 8(a)(5) of the Act to
bargain collectively concerning rates of pay, wages , hours,
and other terms and conditions of employment with Culi-
nary Workers , Bartenders & Hotel Employees , Local 535,
as the exclusive bargaining representative of its employees
in the following appropriate unit: all employees employed
by Respondents in their coffeeshop located at 10238 Cher-
ry Avenue, Fontana, California, excluding all other em-
ployees and supervisors as defined in the National Labor
Relations Act, by, but not limited to, withdrawal of recog-
nition of the Union, and furnishing to the Union informa-
tion required and requested by it in order to discharge its
responsibilities to the employees of the aforesaid unit.
(d) In any other manner interfering with, restraining, or
coercing employees in exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action, which I find
will effectuate the policies of the Act:
(a) Offer to all employees of the above-described unit
who were discharged July 22, and to Leona Lile who was
discharged August 2, 1974, full reinstatement to their for-
mer jobs or , if those jobs no longer exist , to substantially
equivalent positions , without prejudice to their seniority or
other rights and privileges, and make them whole for their
loss of earnings in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Recognize the Union as the exclusive bargaining
representative of employees in the aforesaid unit , and fur-
nish to the Union , upon its request , information relating to
names of employees , wage rates and fringe benefits of em-
ployees, and other information required by the Union to
discharge its obligation to employees of the above-de-
scribed unit.
(c) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employ-
ees in the aforesaid appropriate bargaining unit with re-
spect to rates of pay, wages, hours, and other terms and
conditions of employment.
(d) Post at their place of business in Fontana, Califor-
nia, copies of the attached notice marked "Appendix." 16
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by Respon-
dents' representative, shall be posted by them immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 31 in writ-
ing, within 20 days from the date of this Order, what steps
Respondents have taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations in para-
graph III, E above relating to employees Priest and Walt-
hall be dismissed in their entirety.
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes
16 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. We intend to carry out the
Order of the Board, the judgment of any court, and to
abide by the following:
The Act gives all employees these rights:
To organize themselves
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT interfere with, restrain , or coerce our
employees in the exercise of their rights guaranteed to
them by Section 7 of the National Labor Relations
Act, in violation of Section 8(a)(1) of the Act, by the
following conduct: termination or suspension of em-
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees ; granting of wage increases ; interrogation of
employees; threat to discharge employees ; condition-
ing the granting of higher wages upon abandonment
of union activity ; solicitation of reports by employees
on union activities ; refusal to furnish the Union re-
quested information ; telling employees to observe and
report on other employees ; and engaging in surveil-
lance or giving the impression of surveillance of em-
ployees' union activity.
WE WILL NOT discriminate against our employees in
violation of Section 8(a)(3) of the Act by termination
or suspension of employment, or by granting wage in-
creases in order to discourage support of the Union.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages , hours, and other terms and
conditions of employment with Culinary Workers,
Bartenders & Hotel Employees , Local 535, as the ex-
clusive bargaining representative of our employees in
the following appropriate unit : all employees in the
coffeeshop located at 10238 Cherry Avenue , Fontana,
California , excluding all other employees and supervi-
sors as defined in the National Labor Relations Act,
by, but not limited to , withdrawal of recognition of the
Union and furnishing to the Union information re-
quired and requested by it in order to discharge its
responsibilities to the employees of the aforesaid unit.
WE WILL NOT In any other manner interfere with,
restrain , or coerce employees in exercise of the rights
guaranteed them in Section 7 of the Act.
WE WILL offer to all employees of the above-de-
scribed unit who were discharged July 22 , and to Leo-
na Lile who was discharged August 2 , 1974, full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges , and make them whole for any loss of earn-
ings they may have suffered.
WE WILL , upon request , recognize and bargain with
the above-named labor organization as the exclusive
representative of all employees in the aforesaid appro-
priate bargaining unit , with respect to rates of pay,
wages , hours , and other terms and conditions of em-
ployment, and furnish to it , upon request , information
relating to names of employees , wage rates , and fringe
benefits of employees , and other information required
by the Union to discharge its obligations to employees
of the above-described unit.
FLITE CHIEF , INC.; RICHARD MILLER AND KAREN
MILLER ; M & M TRUCKADERO COFFEE SHOP,
INC.; JAMES MILLER AND PAUL A. MINDER