Friendly Ice Cream Corp.

National Labor Relations Board - Board Decisions

Mar 9, 1981

254 N.L.R.B. 1206 (N.L.R.B. 1981)

1206 LAB( Rushton 1-CA-16097, I-CA- Silberman Rushton, no- Wey- hotline preponderance Praducts, Inc., (1950), 188 F.2d of N.L.R.B. hitsburgh 337 U.S. ' Rushton, Rushton Rushton Rush- Rushton O'Shaughnessy, Rushton Rushton evi- DECISIONS OF NATIONAL 3R RELATIONS BOARD Friendly Ice Cream Corporation and Diane and Lisa E. Dow. Cases 16212, and 1-CA-16216 March 9, 198 1 DECISION AND ORDER On July 31, 1980, Administrative Law Judge Herbert issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed a brief in support of the Administra- tive Law Judge's Decision. 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, find- ings,' and conclusions of the Administrative Law Judge as modified herein. We agree, for the reasons stated by the Adminis- trative Law Judge, that Respondent did not unlaw- fully threaten, or make coercive statements to, em- ployee Diane interrogate former employ- ee Lisa Dow, or refuse to rehire Dow because of her union support. However, we disagree with the Administrative Law Judge's finding that Respond- ent did not maintain and enforce its no-solicitation rule selectively and disparately when it prohibited Rushton's union-related solicitation after permitting nonunion-related solicitation. Respondent's "Shop Employee Handbook" con- tains a longstanding, and long-dormant, valid solicitation rule which prohibits solicitation of em- ployees by nonemployees or fellow employees during actual working time or in sales areas. On April 5, 1979, the Union filed a representation peti- tion covering Respondent's Weymouth store em- ployees. Almost immediately thereafter, the manag- ers of all stores in the district which included mouth were told to "keep a log of all events hap- pening in the store," and that the division office would maintain a so that "any incidents or any abnormalities" that might occur could be re- ported immediately. On May 18, 1979, in the midst of a union organizing campaign and the drawn-out representation proceeding, Respondent reactivated its no-solicitation rule by means of a letter it sent to its Weymouth store employees which reviewed Re- ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall 91 NLRB 544 enfd. 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing his findings. Also, there is no basis for finding that bias and partiality existed merely because the Administrative Law Judge resolved factual conflicts in favor Respondent's witnesses. v. Steamship Company. 656 (1949). 254 NLRB No. 172 spondent's position at the representation proceed- ing and reminded employees that the filing of a pe- tition with the National Labor Relations Board "is not a reason for an employee, on company prem- ises, to solicit other employees during working time," and that any violation of the no-solicitation rule would be grounds for disciplinary action. A copy of the letter also was posted at the store on May 21. Respondent's witnesses testified that, at this point in time, there never had been a reported violation of the no-solicitation rule in the district of six Friendly Ice Cream stores, which includes the Weymouth store. On June 10, 1979, during working time, who was primarily responsible for the advent of the Union, asked fellow employee Kathy Logue whether she was interested in signing an authoriza- tion card. Logue responded, "No, you're talking to the wrong person." said that she wanted to make sure Logue did not feel left out. A few minutes later Logue reported the conversation to management-trainee Claude Bisson. Logue also re- counted her conversation with later that day to District Manager Carl Carlson and Re- spondent's counsel. Two days later, in the presence of Carlson and Respondent's counsel, Logue wrote and signed an affidavit concerning the incident. This was the first time Respondent resorted to the affidavit procedure. Moreover, contrary to its normal practice, Respondent did not afford ton any opportunity to defend herself before being disciplined on June 13, when she was issued a writ- ten warning stating that a recurrence of a violation of the no-solicitation rule would be "grounds for disciplinary action, without further warning." As the Administrative Law Judge found, when Re- spondent issued the warning, it knew that was the chief union adherent and that she had sat with the union attorney during at least 8 of the first 10 sessions of the protracted representation pro- ceeding. Further, Joe vice presi- dent of restaurant operations and the individual who signed the letter to employees, told that he would rather see her wear a company pin than a union pin. The evidence clearly shows that the action taken against is the only discipline ever adminis- tered by Respondent for a no-solicitation rule vio- lation in the entire six-store district, which includes Weymouth. Prior thereto, however, employees always had been allowed to talk among themselves during working time, and Distict Manager Carlson admitted that he often had discussions with em- ployees during working time about the Company's position on the Union and the pending representa- tion proceeding. Furthermore, the credited candybar Peckham area;* Unlyite, 1108 (1977),3 Uniflire, worktime Rushton. 8(a)(l), (3), Rushton Shrewsbury 10(c) a Bisson Unr/lire. Inc.. datrd Penello Rushton "Appen- d i ~ . " ~ 1, C ORDER FRIENDLY ICE CR dence discloses three known but unpunished viola- tions of the no-solicitation rule: in 1978, Store Man- ager Lynch purchased a from a customer in the selling area; sometime after March 1979, management-trainee Bisson purchased a raffle ticket from employee in the service and sometime between 1977 and 1979, em- ployee Aronson and Store Manager Lynch pur- chased raffle tickets from a customer in the selling area. In finding that Respondent did not disparately apply its no-solicitation rule, the Administrative Law Judge relied upon Inc., 233 NLRB where the evidence established only two isolated instances of tolerated violations of the no-solicitation rule and a lack of union animus. The instant case, however, is clearly distinguishable. Here, unlike the evidence shows that Re- spondent consistently condoned solicitation during except when the Union appeared on the scene, and then it evinced a sustained hostility and animus toward the Union and its chief supporter, Accordingly, based on the evidence of Respond- ent's reactivation and selective enforcement of its previously dormant no-solicitation rule, coupled with Respondent's demonstrated union animus, we find that the General Counsel established a prima facie case that Respondent violated Section and (4) of the Act when it discriminatorily ap- plied its no-solicitation rule against chief union ad- herent Diane as a reprisal for her union support and attendance at the representation pro- ceedings. Montgomery Ward & Co., Inc., 224 NLRB 104 (1976); Nursing Home, Inc., 227 NLRB 47, 48 (1976). We further find that Re- spondent failed to present evidence sufficient to meet its burden of showing that Rushton's warning would have occurred in the absence of her protect- ed activity. Wright Line, A Division of Wright Line, Inc., 251 NLRB 1083 (1980). ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Friendly Ice Cream Corporation, Weymouth, Mas- sachusetts, its officers, agents, successors, and as- signs, shall: The record shows that did not begin as a management-trainee at the Weymouth store until March 1979. Therefore, the Administrative Law Judge was incorrect when he concluded that the event did not take place sufficiently close in time for the June 10 solicitation to show dispa- rate enforcement of the no-solicitation rule. The published decision in supra, mistakenly lists Member Jenkins on the panel rather than Member Murphy. An erratum December 22, 1977, correctly lists the panel as Chairman Fanning and Members and Murphy. EAM CORPORATION 1207 1. Cease and desist from: (a) Discriminatorily enforcing its no-solicitation rule during a union organizational drive of its em- ployees or enforcing such a rule more strictly in reprisal for its employees' union activities or at- tendance at Board processes. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action: (a) Expunge from Respondent's records the writ- ten warning issued to Diane for her union activity. (b) Post at its premises at Weymouth, Massachu- setts, copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant 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 OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board has found that we, Friendly Ice Cream Corporation, have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: T o engage in self-organization T o form, join, or assist any union discriminatorily Rushton SILBERMAN, 1-CA-16097 Diane Rushton Rushton 1- Dow 8(a)(l), (3), 1979,' Rushton Rushton GENERAL ADMINISTRATIVE RULlNG IS RESPONDENT'S tion, d e m e a n ~ r , ~ 1 1 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining o r other mutual aid or protection To refrain from the exercise of any o r all such activities. WE WILL NOT enforce our no-solicitation rule during a union organiza- tional drive of our employees or enforce such a rule more strictly in reprisal for our employ- ees' union activities or attendance at Board processes. WE WILL NOT in any like or related manner interfere with, restrain, o r coerce our employ- ees in the exercise of the rights guaranteed them under Section 7 of the National Labor Relations Act, as amended. WE WILL expunge from our records the written warning issued to Diane which was based o n her union activity. DECISION STATEMENT OF THE CASE HERBERT Administrative Law Judge: The charge and amended charges of unfair labor practices in Case were filed by on May 21 and June 19 and 25, 1979. The charge and amended charges of unfair labor practices in Case 1-CA-16212 were filed by Diane on June 14, 19, and 20, 1979. The charge of unfair labor practices in Case CA-16216 was filed by Lisa E. on June 14, 1979. On July 26, 1979, the above-numbered cases were con- solidated and an amended complaint and notice of hear- ing therein was issued. The amended complaint alleges that Friendly Ice Cream Corporation, herein called the Company or Respondent, has engaged in and is engaging in conduct constituting unfair labor practices within the meaning of Section and (4) of the National Labor Relations Act, as amended, herein called the Act. In substance, the amended complaint alleges that Re- spondent (1) on May 25, refused to rehire Lisa E. Dow because she supported the Hotel, Restaurant, Bar- tenders and Institutional Employees Union, Local 26, AFL-CIO, herein called the Union, because she engaged in other protected concerted activities and in order to discourage employees from engaging in such activities; (2) on June 13 issued a written disciplinary warning to Diane because she supported the Union, be- cause she engaged in other protected concerted activi- ties, in order to discourage employees from engaging in such activities, and because "filed a charge with the Board and gave testimony to the Board in the form of an affidavit"; and (3) by the foregoing and other con- ' Unless otherwise indicated, all dates refer to the year 1979. duct set forth in the complaint interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act. Respond- ent duly filed an answer denying that it has engaged in the alleged unfair labor practices. A hearing in these proceedings was held in Boston, Massachusetts, on various days between January 7 and 30, 1980. Following the close of the hearing, on Febru- ary 11, 1980, the Board issued the following order by telegram: COUNSEL'S REQUEST FOR SPECIAL PERMIS- SION TO APPEAL THE LAW JUDGE'S TO ALLOW RESPONDENT'S GENERAL MAN- AGER TO TESTIFY IS GRANTED, THE APPEAL GRANTED AND THE ADMINISTRATIVE LAW JUDGE'S RULING IS REVERSED. THE ADMINISTRATIVE LAW JUDGE IS DIRECTED TO DISREGARD ALL RECORD TESTIMONY FROM COFFEY. On March 14, 1980, the Board issued the following tele- graphic order: THE BOARD HAS CONSIDERED AND DECIDED TO DENY MOTION FOR RECONSIDER- ATION AS LACKING IN MERIT. Respondent filed a motion on April 3, 1980, to aug- ment the record in these proceedings by including there- in various documents relating to the Board's orders quoted above. As there is no opposition to the motion, the same is hereby granted, and the seven documents at- tached to a cover sheet entitled "Appendix A" are hereby accepted and made part of the record in these proceedings. In order that the record in this respect be complete, I hereby reverse the ruling made at the hear- ing and received in evidence the document identified as General Counsel's Exhibit 6, and I also received in evi- dence and made part of the record Respondent's opposi- dated January 31, 1980, to General Counsel's re- quest, dated January 28, 1980, for special permission to appeal the ruling of the Administrative Law Judge. Following the close of the hearing, briefs were filed with the Administrative Law Judge by General Counsel and Respondent. Upon the entire record in these cases, and from my observation of the witnesses and their I make the following: 1. THE BUSINESS OF RESPONDENT Respondent, Friendly Ice Cream Corporation, is a Massachusetts corporation which maintains various es- tablishments within the Commonwealth of Massachu- setts, where it sells food, ice cream, and related products, read the entire transcript of the testimony taken at the hearing and studied the exhibits introduced in evidence. At the hearing observed the witnesses and heard the testimony given by them. The opinions I formed regardinq the credibility of the witnesses and the reliability of their testi- mony have influenced my resolution of the conflicts in testimony that appear in the record, and have influenced the findings of fact have made to the extent that they are based on the testimonial evidence. 1209 $500,000, $50,000. 2(2), (6), 11. 2(5) Ill . Respond- e n t 3 Rushton, Rushton Rushton Wey- the Adm~nistrative Rushton viasky Moreno, Noviasky Noviasky Noviasky Rushton Rushton 14.4 Rushton Noviasky Noviasky Noviasky oftice hotline No- c viasky Rushton No- viasky Rushron 8(a) * FRIENDLY ICE CREAM CORPORATION including a shop at 435 Washington Street, Weymouth, Massachusetts, which is the facility involved in these proceedings. Respondent's annual gross revenues are in excess of and its annual purchases of products, goods, and materials which are shipped to it directly through channels of interstate commerce from locations outside the Commonwealth of Massachusetts are in excess of Respondent admits, and I find, that it is an employer within the meaning of Section and (7) of the Act. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section of the Act. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Company operates a chain of retail food shops. None of its approximately 600 stores is unionized. The events with which these proceedings are concerned oc- curred between March and May 1979, principally at the Company's Weymouth shop, during which time an effort was being made to organize the employees of that facili- ty on behalf of the Union. The representatives of the Company who were involved in the events described at the hearing are Robert Coffey, division manager, Carl Carlson, district manager, George Lynch, manager of the Weymouth store until March 21, Raymond Croteau, who succeeded Lynch as manager of the Weymouth shop, and Claude Bisson, a manager trainee at the same facility. These persons testified on behalf of In addition, James Noviasky, who was employed by the Company as a district manager until he was termi- nated on April 20, was a witness for General Counsel. Primarily responsible for the advent of organizational activity at the Weymouth store was Diane who was hired by the Company on December 8, 1978, and who works at the Weymouth store 2 o r 3 nights per week and days during weekends. testified that in the second week of March she telephoned Union Busi- ness Aqent Connie Coleen and subsequently received au- thorization cards from the Union. From mid-March through May she asked approximately 25 employees to sign such cards, and of this number she solicited 7 o r 8 employees while they were at work, "usually in the serv- ice room" but sometimes in the public area of the store where customers were present and could hear the con- versation, although the employees then being solicited were "on break." further testified that she was the only employee engaged in such solicitations. The Company learned of the union activity at its mouth shop soon after it beqan. George Lynch testified that he was invited to a party given in his honor on Sat- urday, March 24, because he was leaving the Weymouth shop, and, as he was entering the premises through the kitchen door, he overhead a number of persons talking about a union but the subject was quickly changed. For the reasons explicated by the Board in the telegrams quoted above, Law Judge has been directed to ignore the tes- timony of Robert Coffey. Lynch further testified that his mother-in-law informed him that, on an occasion while she was seated in the Weymouth store, she overheard Diane speaking with Manny Mazola and other employees, and during the conversation the word "union" was mentioned. Lynch reported both incidents to District Manager No- by telephone on March 27, who in turn relayed the information to Division Manager Coffey, 2 days later. According to Noviasky, Coffey directed him to speak with Bill the Company's manaqer of em- ployee relations. The latter instructed "to g o back and keep [his] ears opened and just be aware and observe the situation." also reported what he had learned to Store Manager Croteau, who testified that, although the report he received form mentioned the names Diane and Manny Mazola, he did not then suspect that was involved with the Union. On April 5, the Union filed with the Board a petition for certification of representative, which was assigned Case 1-RC-16285. There followed 12 days of hearing on May 9, 10, 15, 23, 24, and 25 and June 6, 8, 11, 12, 13, and attended 9 of the 12 days of hearing and, while present, was seated at the Union's table. James testified that on April 5 at a meeting of district managers Robert Coffey announced that the Union had filed a representation petition with the Na- tional Labor Relations Board and that "the situation was serious." further testified that there was an- other meeting of district managers on April 6 at which was directed to visit the Weymouth store as frequently as possible to observe and report any "abnor- mal things"; the district managers were told "to keep a log of all events happening in the store," and were fur- ther told that the division would maintain a so that "any incidents o r any abnormalities" that might occur in the stores could be reported immediately. also testified that at this meeting a list was pre- pared of the employees who were thought to be for the Union and those who were thought to be against the Union based on the opinions of the district managers. There was general agreement that Diane was prounion. District Manager Arthur Bell stated that he believed that Lisa Dow also was prounion, while stated that he believed that she was against the Union. Apart from the above, the only evidence in the record regarding the Company's efforts to counter the Union's organizational effort is that in May the Company held a meeting of the employees at the Weymouth store during which the employees were informed "of their rights in regard to union authorization cards." B. The Events Involving Diane 1. The alleged threat of discharge The complaint in paragraph reads: Because of a pending subpena enforcement proceeding, as of the time of the hearing herein, the hearing in the representation proceeding had not been concluded. 1210 Wey- critlcal ton.5 [Tlhe Rushton Rushton Rushton, Rushton, Wey- h i 7 Rushton. room Rushton discriminatee 4:45 5:30 Rushton. [aldoption Rushton Cro- Rushton, "[qiring Rushton" ' beliefeW7 Rushton Rushton Rushton ' "Webster's & DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) On or about March 21, 1979, Respondent, through its agent Raymond Croteau, at the mouth shop, threatened an employee with discharge in order to discourage activity on behalf of, or sup- port for, the Union. Determining the date when this alleged event took place is in resolving significant credibility issues in these cases. Despite the date fixed in the complaint, in her brief General Counsel contends: . . . that the record and Respondent's own evi- dence supports Rushton's [the alleged threatened employee] testimony that her conversation with Croteau occurred the last week in March and on the first day she was scheduled to work with Rush- . . . first day worked with Croteau was March 29 which was also the first day during the last week in March when she also worked with Dow and Glennon on the same night. In this instance the difference in dates is not an insub- stantial variation between the complaint and the proof. At the opening of the hearing General Counsel did not seek to amend the complaint to change the date of the alleged incident. General Counsel has offered no expla- nation for the difference between the date which appears in the complaint and the testimony of her witnesses which tends to fix the time of the alleged event as 8 days later. It may be assumed, absent explanation, that prior to the hearing the information available to General Counsel, based on her investigation of the facts, was that the alleged event occurred on March 21, and that the testimony of General Counsel's witnesses pointing to a later date reflects a change in their version of the events from that which was given to General Counsel and her investigators prior to the hearing. Diane testified that she first met Croteau in the last week of March when for the first time they were scheduled to work together. According to she entered the store and went into the service room6 to remove her coat. Present then in the service room were employees Lisa Dow and William Glennon. who was not wearing a name tag or other identification, observed Croteau, whom she had not previously met, enter the service room and, assuming that he was the new manager, began the following conversation: "You must be Ray Croteau, the new manager." [He] said he was. I then proceeded to ask him several other ques- tions, did he like it here in Weymouth now, he said yes, he did. Where he had worked before mouth, he told me in Ohio. I asked if he was married, he said yes. I asked him if he had any kids and he said no. And then I proceeded to ask him about his career with Friendly's, how long he had been with the company, I believe he said eight years. I then asked him why he had been a store manager for eight Presumably this is a typographical error and General Counsel intend- ed the name to be Croteau instead of The service is an area partitioned from the sales floor. years. He then told me because he had not reached the high point in his career. I then asked him what the high point of his career would be, he said, "Firing a girl named Diane Rushton." I put out my hand t o shake hands with him and said, "Hi, I'm Diane Rushton." further testified that prior to her meeting with Croteau "we heard rumors that he was the hatchet man from the Midwest." Lisa Dow, who is a named in the instant complaint, testified that the described conversation oc- curred between p.m. and p.m. on March 29. Her testimony substantially corroborated the testimony of William Glennon, who worked for the Com- pany from October 1978 until he was discharged in May 1979, likewise corroborated Rushton's testimony. Respondent argues that: . . . of Rushton's account would require the ALJ to believe all of the following propositions: (1) that did not introduce herself to teau as soon as he answered her question about his identity; and (2) that Croteau, having identified him- self, submitted to a barrage of pointed personal questions from a stranger without once asking who she was; and (3) that Croteau unhesitantly disclosed to this stranger his intention to discharge a store employee whom he did not even know; and (4) that although taken aback by Croteau's state- ment, did not ask him the reason for the supposed threat. For Croteau to have made the remark-particularly to a stranger-that he considered the high point of his career would be a girl named Diane would have been an indiscretion so extreme as to be incredible in the sense that it would be "too extraordinary and im- probable to admit of The Company's principal witnesses called to contra- dict were Raymond Croteau and George Lynch. Croteau categorically denied making the state- ment of which he was accused by General Counsel's wit- nesses. Croteau testified that he was introduced to Rush- ton on March 21, and, subsequently, on March 25 while he and were standing in an area visible to the customers, she asked him a series of questions, such as, "Did you like Ohio?" "What store did you have in Ohio?" "How do you like Weymouth?" "Are you mar- ried?" "Do you have any children?" "Have you been able to find an apartment yet?" and "How long have you been a manager?" Croteau testified that William Glennon was not in the area at the time. Croteau further testified that he remembered clearly that the described conversation with took place on Sunday, March 25, because that day was his first offi- cial day off from work at the Weymouth store. Howev- er, about 4 p.m. he received a telephone call informing Seventh New Collegiate Dictionary," Springfield, Massa- chusetts: G . C. Merriam Co.. 1972. CORPORATlON 121 l D O W , ~ 11:30 11:30 7-I/ 251." Rushton Cro- Rushton p.m. As Rushton, p.m. Rushton Rushton Noviaski Sec. 2(11) "[a]t Noviaski Cro- Rushton 8(a)(l) Rushton Rushton 3/21/79,"g Weymouth-Washing- Noviasky "3/30/79" the "3/21/79 FRIENDLY ICE CREAM him that Shift Supervisor Lisa who was sched- uled to work from 3 to p.m., was ill and that he was needed to replace her. The Company's schedule for the day, which was introduced in evidence, shows that Lisa Dow was marked "sick" for the hours from 3 to p.m. After being shown her timecard for the week in question, which for Sunday, March 25, is marked 2 hours of sick time, Dow was asked whether she was sick that day and did not work, and answered, "I would assume, yes." She further testified, "I would say I did not [work on Sunday, March To further refute General Counsel's evidence concern- ing the alleged conversation between and teau, both Croteau and George Lynch testified that Cro- teau was introduced to on the night of March 21. Both Croteau and Lynch testified that in accordance with company practices and policies, whenever there is a change of store manager, an inventory of all goods and merchandise assigned to the store is taken so that the outgoing manager is discharged of responsibility for such items while the new manager is charged with that re- sponsibility. They testified that an inventory was taken beginning about 5 on March 21 and was completed about 2 a.m. on March 22. The inventory count was made by three people; namely, George Lynch, the out- going manager, Raymond Croteau, the newly assigned manager, and James Noviasky, the district manager. part of the inventory the three men inspected and count- ed the uniforms of the store employees. The uniforms being worn by the employees on duty at the time of the inventory were inspected by calling each employee sepa- rately to the service room. According to the testimony of both Lynch and Croteau, who was working that evening, was called about 10 for inspection of her uniform, which was checked by all three; and at that time George Lynch introduced to Raymond Croteau. On cross-examination, and after being shown her time- card for the period in question, testified that she worked the night of March 21. She further testified: Q. Did you see Ray Croteau that night in the shop? A. No. Q. Did you see George Lynch in the shop that night? A. I don't know. Q. You don't know. Did you see Jim [sic] in the shop that night? A. I don't know. Q. Do you remember being called into the serv- ice room for a check of your uniform? A. George Lynch checked my uniform, yes. Q. Where did he check it? A. I think in the service room-you're right. Q. Who else was present? A. I don't remember anybody else being present but George Lynch. A shift supervisor is not a supervisor within the definition of of the Act. William Glennon testified that he was introduced to Raymond Croteau by George Lynch "when I was work- ing with both him and George counting inventory in the store." Glennon further testified that one point in time the waitresses and myself were checked for uni- forms," and that his uniform was checked by George Lynch. When asked whether Croteau was present at the time his uniform was checked. Glennon answered, "I can't say for anyone else's, but for mine he was not." General Counsel contends that the inventory was taken not on March 21 but on March 30. In her brief, General Counsel argues: . . . that an inference must be drawn here that Re- spondent's changeover procedure at its Weymouth shop occurred on March 30, the admitted date re- corded on the inventory summary by [sic] and after the date General Counsel contends teau threatened with discharge in violation of Section of the Act. General Counsel con- tends that the March 30 date is consistent with Rushton's testimony that she was not present at the Weymouth shop when the changeover procedure was performed. The testimony by to which General Counsel refers appears on page 511 of the transcript of record, and is as follows: Q. Were you present in the store working on the day or, excuse me on the night of the changeover? A. No, I don't remember that at all, no. Q. You don't remember that at all? A. No. However, upon being further pressed on cross-examina- tion, in effect recanted this testimony, and testi- fied that she did work on the night of March 21, and that her uniform was inspected in connection with the changeover procedure. Further, contrary to General Counsel's argument, cer- tain documents introduced in evidence by Respondent tend to corroborate the testimony of its witnesses that the inventory was taken on March 21. Thus, introduced in evidence is a document entitled "Standard Shop Mer- chandise Inventory," which shows the inventory of the Weymouth store and states, "Date of Inventory: Friday and which, according to Respondent's wit- nesses, was prepared by James Noviasky. Also intro- duced in evidence is a document entitled "Changeover Inventory Summary," which is dated March 30, and which states: "The total amount shown below represents the total value of the inventory at ton St. MA as of 3/21/79 as per summary attached." These documents not only corroborate the testimony of Respondent's witnesses that the inventory was taken on March 22, but also indicate that District Manager James was present. James Noviasky, who was a wit- ness for General Counsel, was not recalled to refute the testimony adduced by Respondent that the inventory The typewritten date is crossed out and handwritten date is substituted. 1212 Noviasky 8(e), 9(b), ll(b) Rushton (C), in pertinent parts, alleges that: Noviasky Rushton Rushton Rushton 8(d) Wey- Rushton Rushton Rushton l o Rushton Rushton 8(a)(l), (3), Wey- 4 sup- custom- ~. ne employee referred to in the quoted allegations is published company's Diane Rushton, who testified that the incriminatory ''Shop Employee Handbook," a of which is Rushton. Rushton 8(d) TION-DIS TR ULES FR l o 13. Rushton am- "Rushton Rushton Rushton [he afiidavit. DECISIONS OF NATIONAL LABOR RELATIONS BOARD was taken on March 21 and that he was present. Also, was not called by General Counsel to refute the testimony of Croteau and Lynch that in his presence Lynch introduced to Croteau on the night of March 21. The failure of General Counsel to offer any explanation as to why was not recalled to rebut the testimony of Respondent's witnesses suggests that, had he been recalled, his testimony would have been adverse to General Counsel's position in this cause. I have considered carefully the testimony adduced by the witnesses for the parties in regard to the alleged con- versation between and Croteau; I have read the documentary evidence in regard thereto introduced in evidence; I have given consideration to the impression I gained regarding the truthfulness of the various witnesses who testified about the occurrence, including the fact that there are more inconsistencies and internal contra- dictions in the testimony of and Dow than there are in the testimony of Croteau and Lynch; and I find that the testimony of Respondent's witnesses is more reli- able than that of General Counsel's witnesses. Accord- ingly, I find that General Counsel has not proved that in March 1979 Croteau threatened with discharge, and I shall recommend that this allegation of the com- plaint be dismissed. 2. The May 16 incident The complaint in paragraph alleges that: (d) On or about May 16, 1979, Respondent, through its agent Raymond Croteau, at the mouth shop: (1) Told an employee that if the Union got in, Respondent would never recognize it; (2) Told an employee that if the Union got in, Respondent would close the Weymouth shop; (3) Told an employee, who was active on behalf of the Union, that she would be responsible for all employees losing their jobs; (4) Told an employee that her activities in port of the Union at a Board representation hearing would be a negative factor in her wage evaluation. statements were made to her by Raymond Croteau during two private converstations that she had with him on May 16. Croteau acknowledged that the conversa- tions took place, but his version of what was said dif- fered substantially from Rushton's version and included none of the incriminatory statements attributed to him by I am of the opinion, based on my observation of the two witnesses, that Croteau was the more reliable and the more truthful witness, and I credit Croteau's tes- timony regarding the conversations he had with on May 16. As I do not credit Rushton's versions of the conversations, I find that General Counsel has not proved the allegations set forth in paragraph of the complaint, and I shall recommend that these allegations of the complaint be dismissed. 3. The written warning for alleged violation of the no-solicitation rule The complaint in paragraphs and and . . . On or about June 13, 1979, Respondent, at its Weymouth shop, maintained and enforced a no solicitation rule selectively and disparately by pro- hibiting union-related solicitation while permitting nonunion-related solicitation . . . . On or about June 13, 1979, Respondent issued a written warning to . . . because joined, supported, or assisted the Union, engaged in concerted activi- ties for the purpose of collective bargaining or other mutual aid or protection, and in order to dis- courage employees from engaging in such activities or other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection . . . [and] because filed a charge with the Board and gave testimony to the Board in the form of an affidavit." General Counsel's position, as expressed in her brief, with respect to these allegations of the complaint is: Respondent's rule against no-solicitation is presump- tively valid on its face. However, Respondent admits that is the only employee ever dis- ciplined for violation of the rule. The record is abundant with credible evidence that Respondent issued a written warning on or about June 13 in violation of Section and (4) of the Act. . . . The record is replete with credible evidence that Respondent permitted solicitation in its mouth shop. . . . [Former] and present employees of Respondent truthfully testified that they bought and sold things while on working time at the Wey- mouth shop. The Company permits employees to talk with ers and among themselves when at work, but employees are expected to exercise good judgment as to the sub- jects about which they speak. Applicable during the times relevant hereto, as in the given to all employees, is the following rule: SOLICITA IBUTION R FOR IENDLY SHOPS At Friendly, the customer always has-and always will--come first. Customers come to enjoy our products in a wholesome, tension-free environment. The first concern of each of us must always be to There is no evidence in this record that, as of June Respondent knew that "gave testimony to the Board in the form of an davit." In her brief General Counsel states. on May 21 filed an unfair labor practice charge against Respondent. It is axiomatic that participated in the Board's investigation of her unfair labor prac- tice charge." I do not gain from this argument any rationale for attribut- ing to Respondent, as of June 13, knowledge that had given tes- timony to Board in the form of an describe O'Neil a r e o n " rame Peckham suficiently .selectively 1213 FRIENDLY ICE CR EAM CORPORATION preserve and enhance that environment. Therefore, the Company has the following rules regulating so- licitation, and/or distribution of literature, for funds, membership, individual commitment or any other purpose, on shop premises, bulletin boards and/or Company-owned o r controlled parking lots: 1. NONEMPLOYEES- such solicitation and/or distribution by persons who are not employees is absolutely prohibited. 2. EMPLOYEES-such solicitation and/or distribu- tion by employees is absolutely prohibited: a. During actual working time. b. At counters, booths, take-out windows, or in other sales areas, while customers are present. c. In work areas, if interference with other em- ployees on actual working time would result. 3. OFF-DUTY EMPLOYEES-Employees are not permitted to remain on shop premises and/or park- ing lots except during the period from thirty (30) minutes before to thirty (30) minutes after working hours unless frequenting our shops as customers. Off-duty employees, o r those on break, are not per- mitted to solicit, distribute literature to, o r other- wise interfere with employees who are on actual working time. 4. EXCEPTIONS-Exceptions to these rules may be permitted, but only with the prior approval of the District Manager in each instance. Such approv- al will not be given unless a charitable or civic effort well recognized in the community, such as United Way, is involved, and the solicitation and/or distribution can be and is done in an orderly, digni- fied manner with minimal disruption of our normal business. This includes collection boxes, posters for social or other events, and distribution of literature. In support of her contention that the Company tolerat- ed violations of its no-solicitation rule, General Counsel, in her brief, averts to testimony given by Sharon Burns, Madeline Aronson, and William Glennon. First, General Counsel asserts that Sharon Burns, "an eight year em- ployee of Respondent, credibly testified that she has pur- chased several things at the Weymouth shop including raffle tickets and candy bars which she purchased in the presence of Lynch while he was still manager." Burns testified at the hearing for about 15 minutes. Other than advancing the general argument that "Burns, Aronson and Glennon gave consistent testimony on cross exami- nation," General Counsel does not indicate why she con- siders Burns' testimony credible. Also, General Counsel does not Burns' relevant testimony in meaning- ful detail, and does not advert to the contradictory testi- mony offered by Respondent. I d o not credit Bums to the extent that her testimony was contradicted by George Lynch. According to Burns, on a day between January and March 1978, about 11 a.m., while she was at work a person named Bobby came into the Weymouth shop, "sat down and he asked me, George came out, he was out back (George Lynch) he always came out when Bobby came in to talk to him, and he asked us if we would buy the tickets from him for his father, then both of us left." According to Burns' further testimony, she purchased a raffle ticket on that occasion and, she also observed Lynch purchase a raffle ticket. Lynch contra- dicted Burns in regard to the purchase of raffle tickets. General Counsel, in her brief, makes no comments about Lynch's credibility. Lynch testified more extensively than did Burns. On cross-examination as well as on direct examination he testified without equivocation, he made no attempt to conceal o r disguise information which might appear adverse to Respondent's position, and he impressed me as being a candid witness. I believe that Lynch's testimony is more reliable than Burns' testi- mony, and I credit Lynch's denial of Burns' testimony that he was present when she purchased a raffle ticket and that he at the same time also purchased a raffle ticket. Burns further testified that in February or March 1978 she purchased a christening blanket from an elderly lady whose name she did not know, and that she did not re- member whether any manager was present when the transaction took place. Thus, this testimony does not sup- port General Counsel's contention that the Company se- lectively and disparately enforced its no-solicitation rule. Burns also gave vague testimony about the purchase of candy bars in 1978 from Robert Loomer, a customer. More specifically, she testified that on one occasion she was present when Store Manager George Lynch pur- chased a candy bar from Loomer. Lynch testified that in August 1978 Robert Loomer came into the shop, or- dered a cup of coffee, and asked Sharon Burns, who waited on him, whether she wished to purchase a candy bar. According to Lynch, Burns replied that she did not. After Burns walked away, Lynch asked Loomer not to sell employees candy bars when they duty. How- ever, Lynch on this occasion did purchase a candy bar from Loomer, although he was not then on actual duty. Lynch further testified that this was the only instance in which he purchased anything in the store from a custom- er. Finally, Burns testified that she observed a customer sell a Mr. and Mrs. Santa Claus to employee Madeline Aronson, and that the transaction was observed by Store Manager George Lynch. Aronson, who corroborated Burns, testified more extensively about the transaction. According to Aronson, one night a friend telephoned and asked whether she would buy the Santa Clauses and she said that she would. The friend brought them to the store the next day and "I bought them and put them in the dressing room." She further testified that Lynch ob- served the transaction, said he liked the objects and wanted to buy some for the store, and ordered two from her. According to Aronson's further testimony, she Although not adverted to by General Counsel in her brief, manager trainee Claude Bisson testified that he purchased a ticket from Sue in the store, but that he did so at a time when they both were off duty. No date was fixed for this incident, and there is no basis for finding that incident took place at a time close to the events in issue to support the allegation in the complaint that in June 1979 the Company and disparately enforced its no-solicitation rule. Claus's rame Glen- worktime rule."12 "[oln Wey- Rushton 515 530 Rushton Rushton Rushton Rushton 'I Rushton Rushton Rushton * Rushton Rushton Rushton l 2 Untflite, Inc., 11 11 Pickh Inc., 181 Sen-Air. Inc., 175 of 164 (1967). 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD began to accept orders generally for the objects, and told George Lynch that she had been selling quite a few, to which he remarked that she should get a commission. Lynch's testimony regarding the sale of the Santa Claus objects, which I credit, was: Madeline's husband's friend's wife made the Santa Claus, and this guy came into work in the morning and had coffee and he gave Madeline Aronson a big brown baq and I asked her what it was. She opened the bag and took these Santa [sic] out and showed them to me. She told me that her husband's friend's wife made the Santa Claus and qave them to her as a present. She wanted to put them away in the back room. Lynch denied that he observed Aronson buy the dolls, that she told him she was selling these objects, or that he asked her if he could buy some for the store. He further testified that it is against company policy to display any Christmas decorations in the store other than one wreath. General Counsel argues that "Aronson further testitied that she too has bought raffle tickets while in the pres- ence of Lynch." The testimony to which General Coun- sel refers was as follows: One day Bob Loomer came in, he has since died, he sat in [booth] 39 or 40 and I was running the grille, and he would say, "Madeline, do you want to buy a ticket for little Billy?" and I'd say, "Yes," and when I went over there, George would be there buying a raffle ticket, everybody bought them from little Billy. It is uncertain from the record whether this incident oc- curred in 1977, 1978, or 1979. Thus, there is no basis for finding that this incident took place at any time proxi- mate to June 1979. The third witness called on by General Counsel to de- velop evidence regarding the Company's tolerance of conduct violating its no-solicitation rule was William Glennon. According to General Counsel, "Glennon truthfully testified that as late as early March and part of April he sold tickets to a minstrel show in the presence of Lynch and Claude Bisson. . . . Moreover, Glennon testified that he solicited Lynch and Bisson to purchase minstrel show tickets." General Counsel does not explain why she believes Glennon was a truthful witness. I have reached a contrary opinion. His testimony was contra- dicted by Lynch and Bisson, who I believe were more reliable witnesses. Accordingly, I do not credit non's testimony. At best, the thrust of the credited evidence adduced on behalf of General Counsel is that in 1978 there were several infrequent digressions from the application of the Company's otherwise valid no-solicitation rule. Such iso- lated instances of nonenforcement do not reflect "the type of widespread solicitation indicative of disparate application of the Accordingly, I find that General Counsel has failed to prove by a preponder- ance of the evidence that, as alleged in the complaint, or about June 13, 1979, Respondent, at its mouth shop, maintained and enforced a no-solicitation rule selectively and disparately by prohibiting union-re- lated solicitation while permitting nonunion-related so- licitation." On June 13 was given a formal written warn- ing for allegedly having violated the Company's no-so- licitation rule on June 10. The incident, which occurred between and p.m., involved a conversation be- tween and another employee, Kathryn Logue, while both were at work. The testimony of Logue and differ as to what was said. Logue testified that "approached me and asked me if I'd be interest- ed in signing a union card, and I said, 'no, you're talking to the wrong person.' She said, 'I just wanted to make sure you didn't feel left out.' I said something like don't worry about that. And then that was the end of the con- versation." testified that because of earlier con- versations with Logue she knew that Logue was op- posed to the Union, and, with respect to the event in question, testified, "I don't know who started the con- versation . . . I said, 'Gee, I can tell you're not for the union by the way you are talking. I wouldn't even ask you to sign a card.' And she said, 'I wouldn't sign one.' And I said, know that,' and my sundae was finished and I walked away." In her brief General Counsel asserts: . . . that Rushton's account is a more plausible ac- count of what transpired between the conversation she had with Logue. General Counsel contends that did not solicit Logue, an employee who was known to to be anti-union. Indeed, in response to counsel for Charging Parties question to Logue as to why she could not believe had asked her to sign a union card, Logue answered, "Because I thought she knew that I wasn't very in- terested in joining the union." Moreover, Logue ad- mitted on cross-examination by Charging Parties' counsel that at the time the alleged solicitation oc- curred she was antiunion. General Counsel submits that there is additional reliable evidence to buttress that did not ask Logue to sign a union card on June 10. Thus, testified that she stopped asking employees to sign union authoriza- tion cards the last week in May. The foregoing, in my view, does not indicate that Rushton's account of her conversation with Logue was anymore plausible than Logue's version. Also, the fact that testified that she stopped asking employees to sign union authorization cards the last week in May, absent corroborating evidence, does not bolster her denial that she solicited Logue on June 10. As Respond- ent points out in its brief, "If, as [Rushton] claimed, she 233 NLRB 1108. (1977). Accord: Atkins Company, NLRB 935 (1970): NLRB 801 (1969): Astronautics Corporation America, NLRB 623. 627 1215 any Rushton. Rushton Rushton 10 card.13 Rushton 515 Rushton 8(a)(3) activi- I S phys- ~cally of the rule lake 600 " i m p r ~ p e r , " ~ ~ i.e., ." 59[8] F.2d ". 2330-1. 25 d En#. v. R.B. Cir. F.2d Jorgensenj 1500, 1513 Rushton procedure.14 Rushton Rushton, disciplinary FRIENDLY ICE CKEAM CORPORATION had ceased soliciting in May and was no longer soliciting cards from employee on June 10, then she would have had no apparent reason to tell Logue that she would not solicit her." Kathryn Logue has been working for the Company as a shift supervisor on a part-time basis while she attends college. Although Logue admittedly is opposed to the Union's organizational effort, there is no evidence indi- cating that Logue has any personal interest in the out- come of this case. I am of the opinion that Logue was a truthful witness, and that her testimony is more reliable than the testimony of I credit Logue's version of the conversation with on June 10. Despite the fact that employees were permitted by Re- spondent to talk among themselves while at work, a rule such as Respondent's, which prohibits solicitation during actual worktime, nevertheless is lawful. Accordingly, I find that violated the Company's lawful no-so- licitation rule on June when she asked Logue to sign a union authorization On June 13, a written warning was issued to in Croteau's office on Respondent's standard "Warning Notice" form, which states: On June 10, 1979, at approximately P.M. during your working time and in a sales area at the Friendly Weymouth-Washington Street Restaurant, you solicited the support of another Friendly em- ployee also on working time. Your conduct on June 10, 1979, violates the rule on Paqe 9 of the Employee Handbook prohibiting the solicitation of other employees in the Restaurant area during actual working time. Accordingly, you are directed to refrain from soliciting other employ- ees during your actual working time and in a sales area or during the actual working time of other em- ployees. A recurrence of this kind of conduct will be grounds for disciplinary action, without further warning. The company rule concerning the solicitation of other Friendly employees during working time and in the sales areas was called to your attention in a letter addressed to you dated May 18, 1979 and in a Notice dated May 21, 1979 posted on the Bulletin Board in the Restaurant. Your cooperation and ad- herence to our company rule concerninq solicitation will serve the best interests of our employees, our customers and the company and will avoid the ne- cessity of disciplinary action. In her brief General Counsel contends: . . . that even assuming arguendo that Respond- ent's no-solicitation rule is valid, Respondent's reason for disciplining on June 13 is false and in violation of Section and (4) of the Act. There is no question about the vigor and con- spicuousness of Rushton's union support and I agree with Respondent that i t was not necessary for Logue to tender an authorization card before a violation Company's could place. ty. Nor can there be any doubt that Respondent harbored animus toward the union. General Counsel does not define what she means by the term "animus." The evidence shows that none of the Company's units is organized, that the Company is involved in a protracted representation proceeding, and that in mid-May the Company advised its employees that it would enforce its rule against solicitation and distribu- tion. Presumably, these facts are what General Counsel refers to as "animus toward the union." Respondent argues: Under well-settled law, the Board has the sub- stantial burden of proving that Respondent's "moti- vation" for issuing the warning was that it "was coercive or discriminatory due to anti-union animus . . . Eastern Smelting, supra, 666, 101 LRRM 2328, 2329. This rubric requires General Counsel to make an affirmative showing, either of . . improper motivation in the circumstances of the (warning) itself," or of "acts apart from the (warning) that indicate unlawful anti- union animus." Id., 101 LRRM at 2329-30. Given a prima facie showing of improper motivation, the burden shifts to Respondent to demonstrate that the warning was motivated by legitimate business judg- ment. If such a demonstration is not made, then an inference in support of General Counsel's prima facie proof, may be drawn. But if Respondent has sustained its burden, General Counsel is obliged to prove that the warning would not have been issued "but for" the improper motivation. Id., 101 LRRM at Stone Webster Corp. N.L. (I 1976). 536 461, 92 LRRM 2904, 2906. Inn, 227 NLRB (1977). While this statement reasonably well summarizes the view of the Court of Appeals for the First Circuit, it does not describe the Board's somewhat different ap- proach to so-called "mixed motive" cases. General Counsel points out that on June 13 was given the warning without the Company first seek- ing to ascertain Rushton's version of the event, which is contrary to its normal disciplinary General Counsel argues further: "Indeed, Carlson ad- mitted that no investigation was made of Logue's com- plaint. In response to General Counsel's question wheth- er he ever investigated Logue's statement that solicited her to sign a union card, Carlson answered. 'I'm not sure what further investigation there could be."' The evidence is that not only did management personnel speak with Logue about the incident, but also a company attorney obtained an affidavit from her in regard to the matter. As the event involved only a conversation be- tween Logue and other than obtaining Rush- ' * Carlson testified that i t is the practice of the Company before ad- ministering discipline to ascertain from the employee his or her side of the story, and, if there is a dispute between two positions, to make an attempt to resolve that dispute before issuing a warning. 1216 DEClSlONS Rush- (1) Rushton Rushton no-solicitation/distribution 8(a)(3) Rushton 8(a)(3) 8(a)(4) Rushton Rushton Rushton 2(11) Cof- Noviasky Tobin, Tobin Tobin, OF NATIONAL LABOR RELATIONS BOARD ton's version there does not appear to have been any- thing more that the Company could have done in pursuit of its investigation. The evidence in support of the allegation that the Company was unlawfully motivated when it gave ton a disciplinary warning is: contrary to normal practice, was afforded no opportunity to defend herself before the warning was prepared and delivered to her; (2) the Company's investigation of the incident was unusually elaborate in that it obtained an affidavit from Logue, which was a procedure never previously used by the Company; and (3) was the only employee to have been disciplined by the Company for violation of its rule. General Counsel's argument is: . . . that on these facts an inference must be drawn that but for Rushton's suspected and known union activities, including her asserted union leadership position at the Board representation hearings, Re- spondent would not have issued her a written warn- ing for violating its otherwise unenforced rule. In this context General Counsel submits Respondent violated Section of the Act. . . . General Counsel submits that an inference must be drawn that not only was given a written warning in violation of Section because of her con- spicuous support of the union at the hearings but also because during the course of these hearings she also filed an unfair labor practice charge against Re- spondent. In this context Respondent violated Sec- tion of the Act. The fact that the Company never previously disci- plined an employee for violating its no-solicitation rule, and the fact that it deviated from its normal disciplinary procedures by issuing a written warning to without first giving her an opportunity to defend herself after otherwise conducting an unusually elaborate inves- tigation, are suspicious circumstances, particularly where was known to the Company, which was then actively opposing an organizational drive, to be the most active union supporter among its employees. Neverthe- less, these suspicions do not constitute proof by a pre- ponderance of the evidence that Respondent disciplined because of her union activities or because she had filed an unfair labor practice charge with the Board. Accordingly, I shall dismiss these allegations of the com- plaint. C. The Refusal To Rehire Lisa Dow The complaint alleges that on or about May 25, 1979, Respondent refused to rehire Dow because she had joined, supported, or assisted the Union, because she en- gaged in other concerted activities protected by the Act, and in order to discourage employees from engaging in such activities. In addition, the complaint alleges that, when Dow was interviewed for reemployment on April 30 by Division Manager Robert Coffey, he unlawfully interrogated her regarding her union sympathies and re- garding the union activities and sympathies of other em- ployees, and he told her that Respondent would prob- ably close its Weymouth shop if the Union was voted in. The complaint further alleges that in mid-May, when District Manager Carl Carlson also interviewed Dow in connection with her application for reemployment, he in- terrogated her regarding her union sympathies and the union sympathies and activities of other employees. Lisa Dow was employed by the Company for various periods of time beginning in 1972 at several of its Massa- chusetts locations in the capacity of waitress and shift su- pervisor. The latter position is not a supervisory position within the meaning of Section of the Act. The last period of her employment was at the Weymouth store beginning in September 1978 and ending April 13, 1979, when she voluntarily quit her job. Shortly thereafter she applied for rehire, and was advised by Robert Coffey, Respondent's division manager, that the Company had decided not to rehire her. Respondent's position, as ex- pressed by its counsel at the opening of the hearing, is that the Company refused to rehire Dow because she was then deemed an unsuitable applicant for employ- ment. The decision against hiring Dow was made by Coffey. The Board, in the telegrams quoted above, has directed the Administrative Law Judge to disregard fey's testimony. As a result, other than the statement by counsel at the opening of the hearing, there is no expla- nation as to why the Company did not rehire Dow. The issue thus is whether General Counsel has established prima facie a violation of the Act. Much of Dow's testimony relates to conversations she had with Coffey. As Coffey's testimony has been strick- en, Dow's testimony is deemed uncontradicted. Howev- er, it does not necessarily mean that her testimony must be credited. Dow signed a union authorization card on March 19. There is no evidence that she engaged in any other ac- tivity in support of the Union's organizational campaign, or that at any time she indicated by word or deed to any . member of company management that she favored the Union. To overcome this deficiency, General Counsel on her direct case called as a witness James Noviasky, a former district manager. testified that at a man- agement meeting held on April 6 the persons present voiced their opinions as to which employees working in the Weymouth store were for, and which were against, the Union, and that he voiced the opinion that Dow was against the Union, while Art Bell stated that Dow was for the Union. To further establish company knowledge of Dow's alleged union sympathies, on the last day of the hearing when she was calling rebuttal witnesses, General Counsel called as a witness John a friend of Dow's who was not employed by the Company. testified that on April 20 or 21 at a party given for Lisa Dow he had a discussion with George Lynch, who then was no longer the manager of the Weymouth store having been transferred to a store in Framingham, in which, according to "I told Mr. George Lynch that Lisa Dow was no longer employed with the compa- ny. This was after a lengthy conversation that we had. I informed him, at my advice that Lisa Dow did sign a ~ card."15 Tobin Tobin. 5- 10-minute Tobin Tobin Tobin Tobin Tobin's High- week.16 Grogan, 2-1/2 Heitman, Heitman Heit Heitman, Heitman Grogan Heitman. week D~~ was well aware of ~ ~ 1 1 3 ~ animosity towards her. store, for position at Company's ~ ~ ~ ~ ~ d i ~ ~ to D ~ ~ * ~ further testimony, in November 1976 after she began working at the ~ i ~ ~ h ~plaza IS teslimony give I would Although l a Dow that sched- by DOW, ond day, there is no question that Bell did not look favorably D~~~~ employment by the company. H~ testified Dow regarding complaints he had as Dew's 1217 FRIENDLY ICE CREAM CORPORATION union General Counsel did not explain why was called as a rebuttal witness when more prop- erly his testimony should have been given as part of General Counsel's direct case. Lynch contradicted According to Lynch, he had a to conversation with at the party in question during which "told me that he advised Lisa Dow to quit Friendly Ice Cream. He held many grudges against Friendly Ice Cream." testified for no more than 5 minutes. Lynch, on the other hand, testified for some length at the hearing. I was favorably impressed by Lynch as a witness, and I consider Lynch to have been a truthful and reliable witness. While I do not state that was untruthful, I am of the opinion that Lynch's testimony is more reliable, and I credit his version of the conversation rather than version. Dow began her employment with the Company in late November 1972 as a waitress in the Company's point Village store in West Roxbury, Massachusetts. After approximately 6 months she was advanced to shift supervisor. At all times material Dow has been a part- time employee. She left the job at the beginning of the summer of 1973, but returned to work at the store in September 1973. In May 1974 Dow was transferred to the Company's Dedham Mall store in Dedham, Massa- chusetts. She remained at that facility for 2 years until May 1976 when she was transferred to the Company's Westbrook Village store in West Roxbury, Massachu- setts, which is also known as the Chestnut Hill store. Dow quit her employment as of about November 21, 1976. According to George Brown, who then was man- ager of the store, on Monday, November 15, 1976, Dow gave him notice that she was leaving the Company's employ at the end of 2 weeks. However, the next day, November 16, Dow informed Brown that she would be unable to work the second week and would stop work- ing for the Company at the end of that Dow's failure to work the second week caused Brown inconve- nience in that he had to revise the work schedule of the store's employees. Brown complained to District Man- ager Arthur Bell on November 16 about the fact that Dow was leaving the store after giving only 1 week's notice. The personnel form which is filled out when em- ployees leave shows that Dow's last day of employment at the Chestnut Hill store was November 20, 1976, that she resigned her position, and that alongside the word "explanation" is written "Moved out of the area. She gave no notice." Also, alongside the word "rehire" is written "Not at this time (no notice) see Art Bell." The form is signed by Store Manager George Brown and District Manager Arthur Bell. Within 1 after Dow quit her job at the Chestnut Hill she applied a the Hingham Plaza store in Hingham, Massachusetts. She This suggests that Lisa Dow did not have any personal sympathies for the Union, but signed the authorization card more to please her friend than to give support to the Union. testified months earlier, at her request. Brown had uled her for vacation for the week beginning November 22, and therefore the second week of her notice period was authorized absence. Brown, whom I credit in this respect, denied that was scheduled to be on vacation during the week beginning Monday, November 22, and asserted that she was scheduled to work that week. was hired by the store manager, Paul for whom she worked when she was employed years earlier in Dedham. Soon after Dow began working at the Hingham Plaza store, Bell learned of her reemployment; whereupon Bell telephoned Eric the district manager for the Hinqham Plaza store, and informed that it was a violation of company policy for Dow to have been hired as an employee without first consulting Bell, who was the applicant's prior district manager. man ad- vised Bell that he intended to keep Dow in his employ, and Bell could take up the question of policy with Divi- sion Manager Coffey. Bell thereupon complained to Coffey. Subsequently, Coffey informed Bell that what had occurred was a violation of company policy, that Dow should not have been rehired without Bell first being consulted, but that he would permit Dow to con- tinue working at the Hingham Plaza store. Dow learned that Bell resented her because he be- lieved that she had quit her job at the Chestnut Hill store without giving the manager adequate notice. She testi- fied: When I originally worked at the Hingham Plaza store, after Mr. Bell had told me that I did not give a notice, Mr. Coffey at that point interceded be- tween Mr. Art Bell and Mr. Eric the two district managers. Mr. Coffey apologized for what had happened and told me then that I would always have a job with the corporation as long as he worked for that corporation. When Dow was recalled by General Counsel as a rebut- tal witness, she elaborated upon that conversation with Coffey. Dow testified that about 2 weeks after she began working at the Hingham Plaza store: Mr. Coffey asked me if I would join him and Mr. who was also sitting there to have a cup of coffee and talk about a few things. He said that he had conducted an investigation into my leaving Westbrook Village, and that as far as he was con- cerned, there had been no wrong doing whatsoever on my part on the part of Paul or on the part of Eric He said that if I would like, he would ask Mr. Bell to personally come and apologize to me for the embarrassment and for un- justly accusing me of not giving a proper notice, which I had. He called Mr. Bell at that particular moment to quote him exactly, He said, Mr. Bell, was an incompetent boob. store. "Mr. Bell told me that it was his belief that I did not notice, and that he would see to it, at some point in time, that be fired for that." Bell denied that he made the threat described performance on the job, and further that in January 1979 District 1218 Noviasky S e p Noviasky Noviasky Wey- Noviasky All something Act."17 Union,lB i " Dow " tatl&ony, dislricl Bell Coffey's the DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manager James Noviasky, who was having difficulties with Dow, spoke to Bell about transferring Dow from the Weymouth shop where she was working to a store in Bell's district. Bell refused to accept the transfer, and ad- vised that he did not wish Dow to work at any store in his district because he had been dissatisfied with her performance when she worked at the Chestnut Hill store and the Hingham Plaza store. Dow was transferred to the Weymouth store in tember 1978. The store manager was George Lynch, who remained her store manager until March 22, when he was succeeded by Raymond Croteau. Both Lynch and Croteau appeared to have a favorable opinion of Dow. However, Dow had disputes with District Man- ager James and at one point attempt- ed to transfer D o w out of his district. Dow voluntarily quit her employment at the mouth store on April 13. The Company's official termi- nation report shows that she resigned to accept another position and lists her performance as satisfactory, her at- tendance as satisfactory, and that she was eligible for rehire. The form is signed by Store Manager Raymond Croteau and District Manager Carl Carlson, who had succeeded as district manager. Dow testified that she gave the Company more than 2 weeks' notice that she would be leaving its employ on April 13. On her last day of employment, according to Dow, Robert Coffey came to the Weymouth store and had an extended discussion with her. Coffey sought to dissuade her from leaving the job and asked Dow what were her reasons for quitting. Before the conversation, which lasted about a half hour, concluded, Coffey stated that "at anytime in the future-that if I desired to come back to Friendly Ice Cream Corporation-he would insure my employment. And all I had to d o was call him and ask." On cross-examination Dow repeated that Coffey on April 3 promised "that as long as Mr. Coffey worked for the corporation I would always have a job with Friendly Ice Cream." Dow began working at a rival store on Sunday, April 22. On Thursday, April 26, 4 days later, Dow telephoned Coffey to request reemployment with the Company. Ac- cording to Dow, "I told Mr. Coffey that I was seriously considering [leaving] my other job. I asked him, before I quit my other job, did his offer of employment still stand. And he told me, 'Of course."' An appointment was then made for Dow to meet with Coffey on Monday, April 30, at the Company's division office in Braintree, Massachusetts. Under General Counsel's theory of the case, as of April 26 when Coffey informed Dow that "his offer of employment still [stood]," Coffey knew that Dow sup- ported the Union and had determined not to rehire her. General Counsel, in her brief, theorizes: . . . that on these facts an inference must be drawn that Respondent, who the record clearly shows har- bored union animus, invited Dow to interview for re-emplo yment for two reasons. First, Respondent knew D o w was a union adherent and seized upon the opportunity to obtain from her any information she was willing to provide Respondent regarding the activities of its employees at the Weymouth shop. Second, Respondent knew that to deny Dow, who the record clearly establishes was a good em- ployee worthy of rehire by Respondent, an inter- view for re-employment would be a blatant act of discrimination by Respondent. An inference must be drawn that Respondent in- terviewed Dow to shield itself from any possible charge that it had discriminatorily denied her em- ployment because of her known union activities in violation ot the Act. A troublesome facet of General Counsel's theory is that, if Coffey had already determined that he would not rehire Dow, why did he advise her that he would hire her. As of April 26 when Coffey spoke with Dow, Dow was still working for the rival store. Coffey had to d o at that point was to equivocate by saying to the effect that he did not know whether he had any vacancies, and then Respondent would not have had any problem of having "to shield itself from any possible charge that it had discriminatorily denied her employ- ment because of her known union activities in violation of the Also there is no basis in the record for inferring that Coffey was anxious to learn from her about the union activities of other employees at the store. Gen- eral Counsel's theory is logically inconsistent. If as of April 26 Coffey was prejudiced against Dow because of her alleged union sympathies, then it is unlikely he would have informed her that the Company stood ready to employ her. On the other hand, if as of that date he did not know that she had signed a union card and was sympathetic with the then there is nothing in the record to indicate that Coffey learned ot Dow's union sympathies thereafter. Similarly, as will appear from the summaries of Dow's testimony concerning her later conversations with Coffey and with Carlson, if during these conversations Dow had said something which apprised either Carlson or Coffey of her union sympathies, it is illogical that the promises of employ- ment to her would have been renewed. Thus, there is no logical structure to General Counsel's case that Dow was refused reemployment by the Company because of her suspected union sympathies. Dow's version of her conversation with Coffey on April 30 is that Coffey: . . . told me that he was glad that I called him. And he asked me when I would be available to work. I told him I would be available immediate- ly. . . . He asked me where I would like to work. I at that time made my preference known that I would like to work in the same store that I had just worked in, which would have been the Weymouth, Washington Street Store . . . . He said that he was So far as the record shows the only known union activities on the part of consisted of her having signed a union authorization card in March. According to Noviasky's on April 6 at a manag- er's meeting Arthur had voiced the opinion in presence that D o w supported Union. Carl- e prounion 1219FRIENDLY ICE CRE :AM CORPORATION not sure at that time whether he could employ me at the Weymouth, Washington Street Store. I told him I understood that because I realized that there were problems there in that store-because they had just transferred two trainees into that store as full-time workers. He, at that time, asked me for my reasons why I wanted to return to that particular store for employment. Dow enumerated her reasons, including the fact that she believed that the Weymouth Street store was well orga- nized and well run; and, according to Dow, "At that point, Mr. Coffey said he did agree with me and that was why he was surprised that the union had started there. He asked me why I thought the union had started there." Dow responded that "the employees were experi- enced, knowledgable [sic], had worked for the Company a long time and that they had particular grievances with the Company . . . . He asked me how I felt about the union. I told him that I felt that a union would not be particularly helpful for the part-time employees." There was discussion of the Company's "open-door policy," after which, according to Dow: [Coffey] asked me how I felt if a vote was taken within a short time-how I felt the vote would go. I told him that I felt through talking with the other employees that the union would be voted for simply because the employees were in fear of their jobs . . . . He said that if the union was voted for-that the Company maintained the right-because they owned the building-to close the store. And they probably would. Coffey also said that the employees did not need a union to protect their jobs because their jobs were protected because they were experienced and trained employees. Then Dow said: 1 informed Mr. Coffey that had I been him I would have thought that it was I who was the insti- gator of the union activities, simply because of my position in the store. I felt that I was in an influen- tial position, that I would have been the one most knowledgable [sic]. I also told him that I knew about the union activities, and that as an employee I felt that I had the knowledge-that I should have told the corporation that there was union activity going on. Dow further testified: I had told Mr. Coffey, if I were returned to em- ployment in that particular store-that I would not want to be put in the position of telling the corpora- tion whatever knowledge I learned from the other employees-that I would not want to tell him or anyone else in management who was involved in the union. Mr. Coffey told me that that was not necessary because they had a good idea of who was in the union. Finally, according to Dow's further testimony: Mr. Coffey told me that . . . he wanted me back on the schedule by Saturday, that he would call the District Manager for me to talk to-to see whether or not I would like to work for that District Man- ager. He asked me if I had any objection to coming back at the same rate of pay that I had left. I said, "No." He told me that I would probably resume working by that Saturday, if not, the Saturday after that. He told me that it would probably be Carl Carlson who would call me. And that after Carl Carlson had talked to me that either myself-would get in touch with Mr. Coffey, or Mr. Coffey would call me and ask me whether or not I like Mr. son and if I would want to work for him. He wel- comed me back to the company. He said that he was glad to have me back again as an employee. And he would be talking to me shortly. In response to questions asked on cross-examination Dow testified with respect to her April 30 conversation with Coffey: Q. (by Mr. Leiter) Did Mr. Coffey give you a choice of any store you wanted? A. He asked me if there were any stores that I would not like to work in. He asked me it there were any stores that I had preferences for, and he told me that he would make his decision based upon what stores were available, what stores would be convenient for me to work in, my preferences. Q. And he gave you an absolute commitment that you would be rehired? A. Yes, sir, he did. In regard to the April 30 conversation between Dow and Coffey, in her brief General Counsel asserts: . . . that Dow's admission to Coffey that she would not betray the union effort was more than a clear indication to Respondent that indeed Dow was a protagonist. Moreover, this admission by Dow coupled with her admission that she had not informed Respondent about the Weymouth shop union activity despite the fact that she was an ad- mitted influential employee who understood that the Company wanted to be made aware of the union activity, was further announcement to Re- spondent of Dow's strong union commitment. Inconsistently, General Counsel next asserts: Dow truthfully testified that her meeting with Coffey was concluded by Coffey welcoming her back into the employ of Respondent. Coffey told Dow he would call District Managers for her to talk to and it would probably be Carlson who would call her. General Counsel does not attempt to explain why Coffey would have made a specific offer of employment to Dow on April 30 if during their conversation Dow in- formed Coffey of her "strong union commitment." store.lg - were ID 1, results.20 fo; Wey- Carl- appoint- 20 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carl Carlson interviewed Lisa Dow on May 11 with respect to her application for reemployment with the Company in accordance with instructions he had re- ceived from Division Manager Robert Coffey that he contact Dow and schedule such interview. According to Dow, when Carlson telephoned to arrange the interview, "Mr. Carlson told me that he had been directed by Mr. Coffey to call me, to set up an interview to talk to me about what store that I would like to work in." Carlson denied that he had informed Dow that the purpose of the interview was to discuss with her in which store she wished to work. Dow's version of the interview is that Carlson began by telling her that she had been highly recommended by Coffey, and that Carlson wished to ask some questions to find out something about herself. There was discussion of Dow's experience with the Company. Dow informed Carlson that she wished to return to the Weymouth store. When Carlson asked why, according to Dow, "I told him the same thing that I told Mr. Coffey. That I liked the store. I liked the employees. I felt it was a well organized store. I felt the employees were good and well-trained. I had many friendships there." In response, according to Dow's further testimony: Mr. Carlson told me that because of the experi- ence of the employees that he was surprised that the union had started there. And he asked me what I thought about the union starting in that particular . . . I told him relatively the same thing I told Mr. Coffey. I felt that because of the experi- ence of the employees, and because they did have particular grievances with the Company. And they had tried to use the open-door policy, and it had . failed. I felt that those the reasons involved in the original formation of the union. . . . He asked me what the general opinion of the employees was-of the employees in that particular store was-as far as the union was concerning. He told me that in his opinion he did not feel that the union would be of benefit. Regarding Dow's personal situation, Carlson stated that "he had a definite need for shift supervisors in his Quincy stores. And that he needed a person to do train- ing-and especially a person with my experience. He thought it would be very valuable. And that he was sure that he had a position available in at least two or three of his stores." The conversation concluded by Carlson tell- ing Dow that "he would call me and that he would let me know on his decision on which store that I would be most valuable in." However, Carlson did not telephone Dow. Carlson denied having made any of the incriminatory statements attributed to him by Dow. Carlson testified that during his May 11 interview with Dow he inquired about her past experience with the Company. The dis- cussion turned to the Weymouth store, and Dow said that it was the best restaurant she had worked in, the It is noted that according to D o w both Carlson and Coffey seized upon the same remark by her regarding the quality o f the employees in the Weymouth store to initiate a discussion about the Union. employees were well trained, and the shop was well or- ganized. She indicated that she wanted to work in that store. Carlson denied that he provided Dow a job. He had only become district manager as of May and in- formed Dow that he was unfamiliar with the majority of the stores within his district and did not know what openings existed in the stores. Carlson further testified that in the course of the con- versation Dow brought up the situation in Weymouth and stated that she had friends or relatives who were members of the Union within the industry and that they were getting no benefits from their union membership. Carlson expressed his view that he personally had no need for a union, that he had advanced with the Compa- ny beyond his initial expectations, and that he knew that further progress with the Company would be based on his performance and Carlson testified that during the interview Dow brought up the subject of the Union: She said she knew about the situation going on in Weymouth regarding the union. And that if she had so desired, she would be able to quash that organi- zation attempt . . . . She said that that, along with some other factors was part of her reason leav- ing the Weymouth Restaurant. . . . She said that she had had some problems with the former District Manager in regard to a transfer from the mouth shop, also in regard to paid breaks for shift supervisors, and a general concern about our wage policies concerning tip application and the like, since the beginning of the year. Therefore, she had decided that she would leave the Company. Following the May 11 interview, Carlson telephoned Coffey and informed Coffey that Dow appeared person- able, and he thought that Dow would fit in well with the employees and the customers. Carlson further testified . that based on his interview with Dow he was of the opinion that she had the ability to fill the job of shift su- pervisor. Arthur Bell testified that in late May Coffey tele- phoned him and inquired whether he would rehire Dow in his district. Bell responded that he would not and re- viewed with Coffey his complaints about Dow. Dow further testified that, a few days after her inter- view with Carlson, Robert Coffey telephoned her. Ac- cording to Dow: Mr. Coffey asked me if I had met with Carl son, and if I was impressed with him, and if I would like to work for him. . . .I said that I liked Mr. Carlson and I was impressed with him. And that I would be more than glad to work for him. . . . Mr. Coffey told me that it was imperative for me to un- derstand that I was not to take the first position available to me; that if, in any way, I was not satis- fied with Mr. Carlson or any of the stores that he offered me; he would set up additional Carlson also told D o w that he personally felt unions were of no help to anyone. conversa- re- Uow's testimony garding with 1221 FRIENDLY ICE CREAM CORPORATION ments for me to talk to other District Managers. . . . Mr. Coffey told me that I would be hearing from either Mr. Carlson or himself, shortly. Finally, according to Dow, on May 25 or 26 Coffey telephoned her and informed her that "We have decided that it is not in the best interest of the Company to rehire you at this present time." I am of the opinion that was con- trived; and she built upon and exaggerated events that occurred to construct a story which became widely di- vergent from the actual occurrences. As pointed out above, certain of her testimony concerning her conversa- tions with Coffey would appear to be unlikely, particu- larly if one ascribes to Coffey, a division manager of the Company, even a small modicum of knowledge concern- ing labor relations law and a minimum of that ingredient generally referred to as commonsense. I have considered the disparity between the testimony of Dow and Carlson. I am of the opinion that Carlson was a truthful witness. He was completely forthcoming in answering all ques- tions directed to him, particularly questions on cross-ex- amination, and from his testimony it does not appear that he sought to mold or exaggerate the facts in order to present a story more favorable to Respondent's position than the facts warranted. I credit Carlson rather than Dow as to what occurred during their May 11 tion. Although Dow's testimony remains uncontradicted her conversation Coffey, I do not choose to accept and credit that testimony because I am of the opinion that Dow so exaggerated the events in question that her testimony as to her conversations with Coffey are completely unreliable. As I do not credit Dow's testimony, I shall dismiss the allegations in the complaint concerning the alleged un- lawful interrogation by Coffey and Carlson and the al- leged threat made by Coffey. Further, I find that Gener- al Counsel has not proved by a preponderance of the evidence that the Company refused to rehire Dow for an unlawful reason, and I shall therefore recommend that that allegation of the complaint be dismissed. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: Respondent has not engaged in the unfair labor prac- tices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.]