Greyhound Food Management, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1972

198 N.L.R.B. 1146 (N.L.R.B. 1972)

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Greyhound Food Management , Inc. and Post Houses,
Inc. and Hotel , Motel, Restaurant Employees and
Bartenders Union, Local 737, AFL-CIO. Cases
12-CA-5247 (1-2)
August 31, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 5, 1972, Trial Examiner Sidney Sherman
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, concluisons and recommendations
only insofar as they are consistent with this Decision
and Order.
1. In the absence of exceptions thereto, the Board
adopts pro forma the Trial Examiner's dismissal of
the allegation in the complaint that employees
Tucker, Miller, Johnson, and Copeland were selected
for layoff or discharge for discriminatory reasons.
We also adopt pro forma, the Trial Examiner's
finding that the Union did not represent a majority
of the employees in the appropriate unit at any time
here material, and that Respondent was under no
duty to recognize or bargain with it.
2. The Trial Examiner found that by selecting
employee Constance L. Shepard for layoff in order to
discourage employee union activity, Respondent
violated Section 8(a)(3) and (1) of the Act. We
disagree.
The Trial Examiner found that Respondent decid-
ed to convert from a cafeteria operation to a
snackbar operation for nondiscriminatory reasons.
As a result of the conversion, Respondent found it
necessary to lay off several employees. On July 13,
1971,1 Cafeteria Manager Pickren notified employees
Shepard and Copeland of their impending layoff,
and they agreed to work 3 more days. Later that day,
Pickren discharged employee Tucker because she
had engaged in offensive and insubordinate conduct,
and after employee Miller counselled Tucker to
ignore the disciplinary action, Pickren discharged
Miller as well. Pickren had intended to retain Tucker
and Miller on the work force for the snackbar.
Shepard and Copeland left the job at the same time
that Miller and Tucker departed. Shepard testified
that she left at that time "because the rest of them
did." On July 14, Pickren laid off the cafeteria cook,
Johnson, informing Johnson that he was being laid
off because his services were not needed in view of
the conversion to a snackbar operation, and because
he had falsified his timesheet.
With regard to Tucker, Miller, Johnson, and
Copeland, the Trial Examiner concluded that there is
no preponderance of the evidence showing that they
were selected for layoff or discharge for discrimina-
tory reasons. The Trial Examiner found rather, that
Tucker and Miller were discharged for good cause,
and that Copeland and Johnson were given layoff
notices on July 13 and 14, respectively, because their
services were not needed. The Trial Examiner further
found that Respondent's failure to recall Copeland
was attributed to the fact that he had reneged on his
agreement to work for 3 more days. As heretofore
stated, no exceptions were filed with respect to the
above findings.
The Trial Examiner found, however, that Con-
stance Shepard was laid off for suspected union
activity notwithstanding the change in operation and
the necessity of a reduction of the work force. In this
regard, on July 7, the Union sent Respondent a letter
claiming majority status and requesting recognition,
which letter was received on July 9. The Trial
Examiner concluded that in reprisal for the employ-
ees' union activity, Respondent's plan was to lay off
at least one extra employee for reasons other than the
impending conversion to a snackbar, and to replace
that employee immediately with a new employee.
In reaching this conclusion, the Trial Examiner
relied on the following factors: (1) Shepard was in
Respondent's employ on July 7, the date that the
Union sent its letter to Respondent; (2) Respondent
was determined to keep the Union out; and (3) a new
employee, Mrs. Lawson, was hired on July 14. In our
opinion, the existence of the above factors does not
justify the conclusion that there exists sufficient
evidence to warrant the inference that Shepard was
selected for layoff for reasons other than the
conversion from cafeteria to snackbar.
Furthermore, the record is devoid of any evidence
which would indicate that Respondent, at any time
herein material, had any knowledge of the identity of
the union supporters. Indeed, Pickren had intended
to retain Miller, the principal solicitor for the Union,
and discharged her only after the July 13 incident. In
addition, although Pickren expressed his antiunion
sentiments on one occasion to a supervisor, no
individual reprisals were indicated, and no other
All dates are 1971
198 NLRB No. 160
GREYHOUND FOOD MANAGEMENT, INC.
incidents of this nature took place. Finally, the
circumstances surrounding the employment of Mrs.
Lawson are not entirely clear. Although it is clear
that she worked on July 14, the record does not
reveal when she was initially hired, or the duration of
her employment. In any event, even if Mrs. Lawson
were hired on July 14, this fact, standing alone,
would not establish that the layoff notice given to
Shepard on July 13, was discriminatorily motivated.2
For, on July 13, Respondent through the lawful
terminations of Tucker and Miller and the walkout
of Shepard found itself suddenly short-handed.
Although Tucker and Miller were replaced by the
retention of Lawson and Scavo, the replacement of
Shepard, who had agreed to work 3 more days, had
not been resolved prior to the employment of
Lawson. Therefore it is dust as easily inferred that
Lawson was hired to fill an additional unexpected
vacancy created by the departure of the three line
girls.
In addition, the Trial Examiner found that Pickren
did not supply any reason for preferring Mrs.
Lawson to any of the three employees he had marked
for layoff,3 including Shepard. We first note that for
the above reasons, the record does not show that
Mrs. Lawson was hired in preference to the retention
of any laid-off employee. But in any event Pickren
testified that he did not call Shepard back to work
because she had quit on July 13, despite her promise
to work 3 additional days. It is noted that the Trial
Examiner apparently credited Pickren's explanation
of his failure to recall Copeland, which was that
Copeland had reneged on his agreement to work for
3 more days. Since Shepard quit under identical
circumstances, Pickren's explanation of his actions
appears reasonable.
Since a preponderance of the probative evidence
on the record as a whole does not establish that the
layoff of Shepard was in violation of Section 8(a)(3)
of the Act, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be , and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
SIDNEY SHERMAN , Trial Examiner: The initial charge
herein was filed on July 15, 1971,1 the complaint issued on
2 In view of the assurances given Respondent on July 13 by Shepard that
she would work an additional 3 days, it is clear that , on July 14 , Respondent
had planned to operate with a minimum of six line girls
3 The other two employees, who had not been notified of the impending
layoffs, were retained when Tucker and Miller were discharged
1147
August 29 , and the case was heard on October 13 and 14,
and February 15, 1972 . The issues litigated related to
alleged violations of Section 8(a)(3), (5 ), and (1) of the Act.
Briefs were filed by Respondent and the General Counsel.
Upon the entire record2 the following findings and
recommendations are made:
1. THE RESPONDENT 'S OPERATIONS ; SINGLE EMPLOYER
ISSUE
The original complaint named as Respondent Grey-
hound Food Management , Inc. d/b/a Post Houses, Inc.,
apparently on the assumption that this was the correct
designation of Greyhound Food Management, Inc.,
hereinafter called Greyhound Food. When it developed at
the hearing that Post Houses, Inc., and Greyhound Food
were separate , legal entities ,3 the General Counsel amend-
ed the complaint to reflect this , and added the allegation
that the two corporations "have common control , supervi-
sion and labor relations ," and that Greyhound Food
"manages and controls" the facilities of Post Houses, Inc.,
including the one here involved. It was further alleged in
the amended complaint that Greyhound Food and Post
Houses, Inc., constitute a single employer under the Act.
Respondent admitted all the allegations pertaining to
common control , but opposed the joining of Greyhound
Food as a respondent . As there was at that time no
evidence of common ownership of the two corporations, I
dismissed the complaint as to Greyhound Food, retaining
Post Houses , Inc., as the sole Respondent .4 In his brief, the
General Counsel renewed his contention that under Board
precedent the two corporations should be treated as a
single employer , citing, inter alia, the undisputed evidence
that both Jacobsen and Pickren , who were admittedly
immediately responsible for the various personnel actions
alleged in the complaint to violate Section 8(a)(3) of the
Act, acknowledged that they were employees of Grey-
hound Food. To resolve the question thus raised an order
was issued on December 10, citing the fact that the current
edition of a standard reference works reported that
Greyhound Food and Post Houses , Inc., are subsidiaries of
Greyhound Corp ., and directing the parties to show cause
why official notice should not be taken of this report and
why it should not be found on the basis thereof that the
two corporations are under the common ownership of
Greyhound Corp., and why Greyhound Food should not
be reinstated as a respondent on that ground , as well as on
the ground cited in the General Counsel's brief.
While, in its response to that order, Greyhound Food
opposed its reinstatement as a respondent , at a subsequent
session of the hearing counsel acknowledged that Grey-
hound Food and Post Houses were under common control
and common ownership . In view of this, as well as the
undisputed evidence in the record of participation by
' All dates cited hereinafter are in 1971 , unless otherwise indicated
2 For corrections of the transcript see the order of December 10
3 The designation of Respondents appear as amended at the hearing
Both corporations are hereinafter sometimes referred to collectively as the
Respondent
4 Respondent did not dispute that Post Houses , Inc . was properly
'named as Respondent
Standard & Poor's "Corporate Reports," p 8059
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons in the employ of Greyhound Food in the conduct
complained of herein, the General Counsel's motion for
reinstatement of Greyhound- Food as a respondent was
granted at that session of the hearing.
In consideration of the foregoing matters, it is now found
as follows:
1. That Greyhound Food is a Michigan corporation
engaged in the business of managing restaurant operations,
Post Houses, Inc., is a Delaware corporation, engaged in
operating restaurants, and both corporations are under
common ownership.
2. That both corporations are subject to common
control with respect to all phases of their operations,
including labor relations.
3. That both constitute a single employer for the
purposes of the Act.
4. That, in any event, by virtue of the control exercised
by representatives of Greyhound Food over the tenure and
terms of employment of employees of Post Houses, Inc.,
including the discharge or layoff of certain of such
employees on July 13 and 14, Greyhound Food and Post
Houses, Inc., constitute the joint employers of such
employees.6
There is no dispute, moreover, and it is found, that Post.
Houses, Inc., is engaged in the operation of restaurants in^acr
number of States, including the one here involved; that
during the 12-month period preceding the issuance of the
complaint its gross volume of business exceeded $500,000,
and it received goods worth more than $50,000 from out-
of-state services. It is accordingly found that the Respon-
dent is engaged in commerce under the Act.
III. THE MERITS
The pleadings raise the following issues:
1. Whether Respondent discharged five employees for
union activity?
2. Whether Respondent's refusal to recognize the
Union violated Section 8(a)(5)?
3. Whether Respondent's unilateral action in convert-
ing from a cafeteria to a snackbar violated Section 8(a)(5)?
A. Sequence of Events
The Respondent operates cafeterias at various Grey-
hound bus terminals, including the one here involved at
Daytona Beach. An election held in 1967 for the Daytona
Beach cafeteria resulted in rejection of the Union. In June
1971, it returned to the scene and between June 25 and
July 10 obtained seven signed cards from the instant
employees. On July 7, the Union sent the Respondent a
letter claiming majority status and requesting recognition,
which letter was received on July 9. The Respondent did
not reply. Meanwhile, on July 8, the Union filed a petition
for a Board election.?
On July 13, four of the card signers ceased to work for
Respondent under circumstances described below and a
fifth was terminated the next day.8 About the end of July,
6 See Greyhound Corp , 153 NLRB 1488 , enfd 368 F 2d 778 (CA 5)
7 That petition was dismissed by the Regional Director on September 2,
because of the pendency of the instant case
Respondent discontinued its cafeteria at Daytona Beach,
and installed a snackbar.
B. Discussion
1. The 8(a)(3) issues
The General Counsel alleges that Respondent discharged
five card signers-Tucker, Miller, Shepard, Copeland, and
Johnson-because of their union activity. Respondent
contends that Tucker and Johnson were discharged for
good cause and that the others quit.
We will consider first the events of July 13 and 14, when
the alleged discharges occurred. The Respondent's cafeteria
was then operating on three 8-hour shifts, with 11
employees. Four of them, Miller, Tucker, Shepard, and
Copeland, worked on the afternoon shift, the last-named as
a dishwasher and the others as line girls. As already noted,
all had signed union cards. Miller had not only signed a
card herself, but had been the principal solicitor for the
Union, having obtained signed cards from the other three,
as well as from Johnson and one other employee, Lucas.
According to Pickren, the cafeteria manager, he had
been instructed by his superiors to reduce his force because
of the impending conversion from a cafeteria to a snackbar
operation and had decided to lay off Copeland and
Shepard, retaining Miller and Tucker. It is undisputed that
in the afternoon of the 13th Pickren at first spoke privately
to Copeland and Shepard, notifying them of their lay off,
and that when he next indicated to Tucker that he wished
to talk to her, she insisted on having Miller present at the
conversation "as a witness."9 Pickren testified that, when
he insisted on talking to her alone, she seized him by the
shirt and bestowed on him a grossly insulting epithet; that,
when he thereupon announced that she was discharged,
Miller advised Tucker, in effect, to disregard Pickren's
action and return to work; that, when the witness repeated
that Tucker was discharged and demanded that she "sign
out," Miller declared that she would go, too, if Tucker
went; that the witness ordered both to "sign out"; that,
when they refused, he signed them out himself, notifying
them they were working on their own time; and that they
asked to be paid off but, when he asked Miller to sign a
petty cash voucher bearing a notation that she had quit,
she refused to do so, insisting that she had been discharged.
Miller denied that Tucker touched or insulted Pickren, her
version being that he discharged Tucker merely because of
her insistence that she be accompanied by Miller to the
interview with Pickren. As to the circumstances of her own
termination, Miller related only that, after discharging
Tucker, Pickren proceeded to his office, followed by the
two girls, and there announced that both were discharged,
but she agreed with Pickren's account of her refusal to sign
the petty cash voucher. While Pickren was not at all times
a model of candor, I was more favorably impressed with
his demeanor at this point in his testimony than with that
of Miller. Moreover, his account was more circumstantial
than hers and supplied an apparently logical motivation
for his action in terminating her and for the subsequent
B Still another card signer. Herring, had quit on July 7
9 The record contains no explanation for such insistence , except for
Tucker's possible apprehension that she was about to be laid off
GREYHOUND FOOD MANAGEMENT, INC. 1149
events, whereas Miller's version portrays Pickren as
abruptly discharging her merely because Tucker had asked
that Miller be present at her interview with Pickren and as
arbitrarily insisting on Miller's acknowledging that she had
quit.io
Accordingly, Pickren is credited and it is found that he
discharged Tucker after she had engaged in offensive and
insubordinate conduct described above and that, after
Miller counseled Tucker to ignore Pickren's disciplinary
action and threatened to quit because of such action,
Pickren discharged Miller, as well.
There remains to be considered what finally happened to
Shepard and Copeland on the 13th. As already related,
they had been notified of their layoff even before Pickren
approached Tucker. Pickren testified that he gave both of
them the option of working until the end of that day or for
3 more days, and that both accepted the latter alternative
but walked off the job at the same time that Miller and
Tucker left. Copeland testified that he was offered only an
opportunity to finish the day and that he did finish the day.
However, Shepard acknowledged that she was offered
employment through the 16th, and that she thereafter
returned to her work station but soon quit because "the
rest of them" left. Jacobsen, Pickren's superior, testified
that on July 13, he instructed Pickren to give both Shepard
and Copeland 3 days' notice, but that as soon as Miller and
Tucker were paid off Copeland and Shepard demanded
their pay. Also, Miller's testimony indicates that both
Shepard and Copeland were paid off at the same time as
the others. In view of the foregoing corroboration of
Pickren, it is found that Copeland was mistaken in his
recollection of this incident and that he left with the others
in the middle of his work shift, although his layoff was not
effective at the earliest until the end of that shift.
Moreover, on the basis of the mutually corroborative
testimony of Pickren and Jacobsen, it is found that Pickren
gave Copeland the same option of working 3 more days
that he had given Shepard, and that both agreed to work
the extra days.
On the 14th, Pickren terminated Johnson. According to
Pickren, he had planned to lay Johnson off because he was
the cafeteria cook and, as such, his services would not be
needed in the snackbar operation. Also, according to
Pickren, his original intention had been to give Johnson the
same 3 days' notice that Shepard and Copeland had
received but, when he received a report from one of the
employees (Jackson) indicating that Johnson had falsified
his attendance record for Saturday, July 10, Pickren
decided to lay him off as of the 14th rather than the 16th.
Pickren added that he notified Johnson on the former date
that he was being laid off because his services were not
needed and because he had falsified his timesheet.
Johnson's version was that on the 14th Pickren told him
only that he was being laid off because business was slow,
and Johnson denied at the hearing that he had made any
false entry on his timesheet, insisting that he did work on
July 10. However, he acknowledged that about a week
before July 14, Pickren had taxed him with falsifying his
timesheet; and, there was no contradiction of Pickren's
testimony that he received a report from Jackson that
Johnson had done so. Thus, there is no substantial dispute
that during the week before July 14, Pickren suspected
Johnson of the foregoing misconduct, on the basi' of a
report received from an apparently disinterested employee.
While Johnson insisted at the hearing that he denied
Pickren's charge and it is not disputed that Pickren paid
Johnson for the 4 hours covered by the alleged false entry
on the timesheet, those circumstances do not require
rejection of Pickren's testimony that he still believed that
Johnson had engaged in the misconduct reported by
Jackson, and that that was his reason for not offering
Johnson the option of working 3 more days. The fact that,
as found above, Pickren did give that option to Shepard
and Copeland, and the absence of any other explanation
for his failure to do so in the case of Johnson, tends to
support Pickren's credibility here. In view of the foregoing
circumstances, as well as demeanor considerations, I credit
Pickren's version of his exit interview with Johnson.
The net effect of the foregoing events was that of the six
card signers in Respondent's employ on July 13,11 five
were no longer so employed after July 14. The General
Counsel contends that all five were laid off or discharged
for discriminatory reasons.
With respect to the Respondent's defense that the
termination of Shepard, Copeland, and Johnson was
related to the conversion from a restaurant to the smaller,
snackbar operation, the General Counsel urges that such
conversion was not effected solely for economic reasons
but at least in part to chill the employees' union activity. In
the alternative, the General Counsel contends that, if it be
determined that the conversion was solely for economic
reasons, the selection of particular employees for layoff or
discharge should be found to have been based on their
union activity.
With regard to the first of these contentions, Respon-
dent's records show that the cafeteria had been losing
money since 1966, the loss being nearly $18,000 in 1969,
nearly $3,000 in 1970, and over $6,500 for the first 6
months of 1971. District Manager Jacobsen testified that
early in June he began to study the possibility of
reintroducing a snackbar at Daytona Beach; 12 that in this
connection he undertook to test public acceptance of the
sort of food items featured in a snackbar by taking
measures to promote the sale of such items in the cafeteria;
that on June 24, he decided to begin the conversion
process; and that on the same day he instructed Pickren,
who was a utility manager for Post House operations, to
report to Daytona Beach, take over the management of the
cafeteria, and begin the change over to a snackbar.
Pickren corroborated this testimony as to his assignment
to Daytona Beach, as well as Jacobsen's further testimony
that Pickren did so report on June 24, and that both men
10 Tucker did not testify, the General Counsel stating at the hearing that 12 One had been operated in conjunction with the restaurant until several
he had been unable to locate her years before the instant events, when the snack bar was discontinued and
11 As noted above, a seventh card signer, Herring, had quit on July 7 the equipment placed in storage
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately repaired to the local warehouse, where certain
snackbar equipment was stored.13 The proprietor of the
warehouse, Weimer, confirmed that they visited the
warehouse on June 24, for the purpose of inspecting that
equipment and that they then informed him that they
intended to change over to a snackbar operation. Weimer
also corroborated the further testimony of Jacobsen and
Pickren that they returned to the warehouse on July 1, and
made a more detailed inspection, taking certain measure-
ments. Weimer added that he was told on that occasion
that the equipment would be needed within a week or 10
days.
Jacobsen testified that on July 3 he received a copy of an
interoffice memorandum dated July 2, addressed by his
superior, Hartigan, to another management representative,
Saeger, purporting to reply to a memo from Saeger of June
18, 1971, advising that the Daytona Beach operation was
sustaining an average monthly loss of $1,700, and
concluding as follows:
Will eliminate deficit to break even by changeover to
merchandise snackbar service only, or sub-contract
vending. Resume full cafeteria operation when volume
warrants.
According to Jacobsen and Pickren, Hartigan arrived at
Daytona Beach on July 8, was informed of the conversion
plans and approved them, and on July 12, they ordered the
snackbar equipment delivered the next day, but Weimer
was unable to do so before July 20. About the end of July
the snackbar operation was finally installed and the
cafeteria shut down.
The record contains another memo from Hartigan to
Saeger, dated July 15, 1971, referring to the conversion of
the Daytona Beach cafeteria to a snackbar, in the context
of a discussion of the unprofitability of the cafeteria and
the reasons therefore and indicating that consideration
would be given to reopening the cafeteria, if an increase in
traffic warranted. Hartigan testified that he began to
consider conversion of the Daytona Beach cafeteria to a
snackbar early in 1971, that he finally reached the decision
to convert about June 20, when he received the monthly
report on the operations of that cafeteria, which showed a
loss of $2,200 in May, and that he believed that it was on
June 23 that he instructed Jacobsen to proceed with the
conversion. Hartigan added that several other Post Houses
cafeterias had recently been converted to snackbars or
closed down entirely, even though their losses had not been
as substantial or protracted as in the case of the Daytona
Beach operation, and that there had been no union activity
at those cafeterias. He explained that management had at
one time been content to accept losses indefinitely from
individual operations so long as overall results were
favorable; that that was why no action was taken sooner to
curtail losses at Daytona Beach; that this policy had,
however, changed in recent years to one of elimination of
unprofitable operations when prospects of improvement
were dubious; that the only bright spot in the outlook at
13 See preceding fn
14 TX Exh 9
15 The statement showed cost of sales as 19 9 percent of total sales,
whereas the figures had been 30 8 percent for June 1970, and 40 3 percent
for the entire year of 1971 (see Resp Exh I)
16 Jacobsen was vague as to what these errors were and Pickren's
Daytona Beach was the impending opening of Disney
World at nearby Orlando, and the possibility of increased
bus traffic as a result thereof; and that it was for this
reason that the witness recommended to his superiors
conversion, rather than outright closing, of that cafeteria.
There is one matter, however, which Respondent's
witness had great difficulty in explaining. Although
Respondent's records show losses of from $300 to over
$3,000 for each of the first 5 months of 1971 at Daytona
Beach, the "Branch Operating Statement" for the month of
June at Daytona Beach,14 which was compiled at Respon-
dent's Detroit headquarters on the basis of data furnished
by Pickren, shows a net profit for that month of $1,870.
Hartigan admitted receiving this statement about July 20,
and he acknowledged, also, that, if he had believed it to be
accurate, he would have held up the conversion process
pending further study. However, he insisted that he
realized that the foregoing profit figure was not reliable,
since it was based on an abnormally low figure for cost of
sales.15 This should have been apparent also from the fact
that total sales for June were about $2,300 less than for
June 1970, when the branch showed a profit of only $774.
While it is understandable that Hartigan would disregard
the "profit" shown in the foregoing statement , since other
entries in that statement cast doubt on the accuracy of the
profit figure, it is not so clear why he gave no weight to an
earlier, preliminary report, which admittedly was received
in his office on July 5 or 6, from Pickren, and which
showed a profit of $577 at the Daytona Beach cafeteria for
June. So far as the record shows, there was nothing on the
face of that report that would have reflected on the
accuracy of that figure. Although Pickren and Jacobsen
agreed that on July 1, when this report was prepared,
Jacobsen questioned the accuracy of the profit figure and
attributed it to errors in Pickren's computation of invento-
ry, there was no evidence that those doubts were
communicated to Hartigan nor was there any convincing
evidence that there were, in fact, any such errors.is Indeed,
all indications are that the $577 profit was close to the
actual result for June at Daytona Beach .i7 When asked
what consideration he had given to this preliminary profit
figure, Hartigan professed uncertainty as to whether he
paid any "special attention" to it. It may be thought
strange that Pickren's report of a June profit of $577 would
have made so little impression on Hartigan, notwithstand-
ing that he was at the time in the process of effecting a
drastic change in the Daytona Beach operation because of
the bleak profit outlook. Hartigan did testify, however, that
in appraising an operation one could not look at the results
for a single month in isolation, and, while he admitted that
he would have suspended the conversion process, if the
$1,870 profit shown in the final report had been accurate,
he did not say that he would have given the same weight to
the preliminary profit figure of $577, and that figure was
testimony on the point was quite inept , as he thought that his mistake
consisted in underestimating his end-of-month inventory. Obviously, such an
error would reduce profits, instead of magnifying them.
17 If one deducts from $1 ,870-the final June "profit" figure-$ 1,200 or
$1,300, which represents the probable margin of error in the June figure for
cost of sales , one arrives at an amount close to $577.
GREYHOUND FOOD MANAGEMENT, INC.
well within the range of occasional, favorable results
achieved in previous months.18 Accordingly, the great
mystery here is not so much that Respondent proceeded
with conversion despite the preliminary report of a modest
June profit but that Pickren and Jacobsen made such an
unconvincing effort to create the impression that even this
profit was illusory, and that Hartigan became so vague,
when asked to explain what consideration he gave to that
preliminary report. While those are suspicious circum-
stances, there is no gainsaying the uncontroverted, mutual-
ly corroborative testimony of Jacobsen, Pickren, and
Weimer that on June 24, before the inception of the union
campaign, Jacobsen and Pickren took action directed
toward the removal of the snackbar equipment from
storage and on that date advised Weimer of their intention
to convert from a cafeteria to a snackbar. Nor, can one
ignore the documentary evidence in the record that the
decision to convert was dictated by the unprofitability of
the cafeteria operation. One cannot reject such evidence
without assuming that the July 2 and 15 memos were
written by Hartigan to conceal a discriminatory motivation
for the conversion. The only representative of management
who, so far as the record shows, expressed any hostility to
the Union was Pickren and, under the circumstances, there
is no reason to believe that such expression was anything
more than a reflection of his personal views.19 There was
no evidence that he had any voice in the decision to
convert. However, there remains the possibility that, but
for the Union campaign, Pickren's preliminary report of a
profit in June would have induced Respondent to hold up
the conversion, which would explain the apparent reluc-
tance of Respondent's witnesses to admit that there was
any profit at all in June. On the other hand, such
reluctance may have been due to a fear of making any
admission with regard to a matter of fact that might be
misconstrued against Respondent.
While the matter is not free from doubt, I am unable to
find that it has been proved by the preponderance of the
evidence that the conversion to a snackbar was for
discriminatory reasons.
There remains to be considered the contention that,
assuming that the conversion was solely for nondiscrimina-
tory reasons, it should be found that the five card signers
were selected for discharge or layoff because of their union
or suspected union activities. Of the five, the most logical
18 Compare, for example, the profit of $774 for June 1970
is Another matter which seems at first blush difficult to reconcile with
Respondent's cost-cutting program at Daytona Beach was the fact that
during the first week of July it raised the hourly pay of its cafeteria
employees from $1 25 to $1 40 However, Jacobsen explained that this was
due to the difficulty of recruiting employees at the lower rate and there was
no attempt to refute this It may be noted, moreover, that the General
Counsel did not contend that this increase was prompted by the advent of
the Union nor that its purpose was to impede the Union's organizational
efforts
20 She at first testified that Pickren had charged both girls with
insubordination and "cussing" but later stated that Tucker was the one to
whom Pickren ascribed the aforesaid misconduct As noted above, Pickren's
version was that Tucker had been the principal offender and Miller had
been guilty of encouraging her to ignore Pickren's action in discharging her
and of threatening to quit herself Any report by Pickren to Mayhew of
these events might well have left Mayhew with a confused recollection of
the exact extent of Miller's involvement in the matter
21 Although Pickren disputed this testimony, I credit Mayhew on the
1151
target for such discriminatory selection was Miller, who
solicited and obtained the signatures on the union cards of
the other four union adherents. However, as already noted,
Pickren insisted that prior to the events of July 13, he
intended to retain both Miller and Tucker, and that he
discharged them only because of those events. This was
corroborated by the testimony of his superior, Jacobsen,
that early in the afternoon of the 13th, about an hour
before the events described above, he was told by Pickren
that he intended to keep Tucker and Miller. Even more
impressive was the fact that Mayhew, a witness called by
the General Counsel, testified that on July 14, Pickren told
her that he had not planned to terminate Miller and
Tucker, but that Tucker, or both Tucker and Miller, had
been insubordinate and "cussed" him20 and he had
discharged both girls for that reason. While Mayhew
credibly testified, also, that in the same conversation
Pickren declared that the Union was "trying to come in"
and that he would close down rather than permit that,2i
she denied that Pickren attributed the discharge of the girls
to their union activity, and it is not clear from her
testimony how Pickren's references to the Union were
related to the rest of the conversation. In any event,
Mayhew's testimony confirms that the terminations of
Tucker and Miller had not been planned in advance but
were precipitated by the afore-described events of July
13.22 Moreover, Pickren's version of those events has been
credited and there was no attempt to show that other
employees have been retained despite conduct comparable
to that of Tucker and Miller, as described above.
As for Copeland he was hired on July 3 as a busboy and
dishwasher. Pickren explained that he was laid off because
no china dishes would be used in the snackbar. There was
no evidence that Copeland was ever replaced. Moreover,
the only employee with duties comparable to those of
Copeland was Lucas, who had also signed a union card
and was retained. There can thus be no finding of
discrimination because Respondent retained Lucas in
preference to Copeland. Johnson was hired on May 20, as
a cook. He was the only one so employed on July 14, and,
as already related, Pickren explained his selection for
layoff on the ground that there was no need for a cook in
the snackbar. There was no evidence that he has been
replaced.
With regard to Tucker, Miller, Johnson, and Copeland, it
basis of demeanor The General Counsel did not allege the foregoing
remark to be a violation of Sec. 8(a)(1), presumably because it was his
position that Mayhew was a supervisor She had been the manager of the
cafeteria for about 5 months prior to June 24, when Pickren succeeded her
She remained in Respondent's employ until August 5, and testified without
contradiction that during the last week of June she was told by Pickren that
she was assistant manager and had authority to discharge employees for
misconduct It is accordingly found that Mayhew continued to be a
supervisor until she left Respondent's employ
22 The record shows that on that date, only about 15 minutes before the
inception of Pickren's interviews with the employees , a union representative
visited the cafeteria and exchanged some remarks with Jacobsen about the
Union's organizing campaign among the cafeteria employees However,
there is no contention that this triggered the subsequent terminations Such
a contention would not seem tenable , in any event, since it is clear that the
Respondent did not have to wait until July 13 to learn of the campaign,
having already received the Union's letter on July 9, and the union
representative's remarks added nothing of significance to the information
contained in that letter
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is concluded that there is no preponderance of evidence
that they were selected for layoff or discharge for
discriminatory reasons. It appears, rather, that Tucker and
Miller were discharged for good cause and that Copeland
and Johnson were given a layoff notice on July 13 and 14,
respectively, because their services were not needed in the
snackbar. Respondent has not recalled Copeland nor
Johnson despite its concededly acute, recruitment problem.
Pickren's testimony that he believed that Johnson had
engaged in the misconduct described above has been
credited. As for Copeland, Pickren explained that he was
not recalled because he had reneged on his agreement to
work for 3 more days, and, in doing so, had aligned himself
with an insubordinate employee, Tucker. Accordingly,
absent any evidence that Pickren has recalled others from
layoff under comparable circumstances, there is no
preponderance of evidence that Respondent's failure to
recall Copeland or Johnson was for discriminatory
reasons.23
There remains the case of Shepard. She was hired on
June 28, as a line girl in the cafeteria. The other line girls
on July 13 were Tucker, Miller, Abney, Thornburg,
Jackson, and A. Lawson. According to Pickren, of the
foregoing seven line girls, he had originally planned to lay
off only Shepard and A. Lawson. He explained that
Shepard could not operate a cash register as well as any of
the girls to be retained, except Abney, and that he kept
Abney because she was more efficient than Shepard. He
added that upon the departure of Tucker and Miller under
the circumstances described above, it became necessary to
retain A. Lawson and a girl (Scavo) who had theretofore
worked in the gift shop and who would otherwise have
been laid off.24 Thus, up to this point, Pickren's position
was that he planned to staff the snackbar with five female
employees, scheduling Shepard, A. Lawson, and Scavo for
layoff and that, after the personnel actions taken on July
13, including the "layoff-quit" of Shepard and the
replacement of Tucker and Miller with Scavo and A.
Lawson, he ended up with five female employees.
However, Pickren admitted that the very next day he hired
a 6th girl, the mother of A. Lawson.
He at first attributed this action to the fact that he had
unexpectedly lost Miller and Tucker, but, when it was
pointed out to him that he had already replaced them with
Scavo and A. Lawson, he said:
Also around this time, school starts and some of my
employees attend school-which I knew I was gonna
lose them. ... school starts around September-Au-
gust.
It is evident that at this point Pickren was hard pressed
to reconcile his apparently inconsistent actions on July 13
and 14, and finally resorted to an explanation that requires
that one believe that, despite the extreme pressure on him
23 The General Counsel disclaimed any contention that Copeland's
quitting together with Shepard because of the treatment of Tucker was
protected , concerted activity There is ample authority, moreover, that a
concerted abandonment of employment , as distinguished from a withhold-
ing of services pending some remedial action by the employer, is not
protected Crescent Wharf & Warehouse Co, 104 NLRB 860, 861-862, and
cases there cited The reason for this, as explained in Crescent Wharf, supra,
is that an unconditional severance of the employment relation "cannot be
regarded as one calculated to enforce employer capitulation for purposes of
mutual aid or protection "
to cut labor costs, he was content to carry a superfluous
employee for over a month, in anticipation of a future
vacancy.25 Another obvious flaw in this explanation is that
it does not supply any reason for Pickren's preferring Mrs.
Lawson to any of the three girls he had marked for layoff,
including Shepard. So far as the record shows, Mrs.
Lawson had never before worked for Respondent nor was
there any evidence as to what qualifications she had for the
job in the snackbar.
The inference seems inescapable, therefore, that Pick-
ren's plan on July 13, was to lay off at least one employee
for reasons other than the impending conversion to a
snackbar and to replace that employee immediately with a
new employee. As to the reason for his decision to over-
retrench in this fashion, the fact that Pickren was, as he
admitted to Mayhew, determined to keep the Union out
would explain why he preferred a new employee, who
could not have been involved with the union campaign, to
one of the employees who had been exposed thereto. It is
found therefore than in reprisal for the employees' union
activity Pickren's plan throughout was to lay off at least
one female employee in excess of the number rendered
expendable by the conversion to a snackbar and to replace
that employee immediately with an outsider.
The question arises, which employee had Pickren
planned to lay off as a measure of reprisal? It would have
had to be Shepard, A. Lawson, or Scavo, all of whom were
originally scheduled to be laid off on July 13. As already
related, Scavo was not a cafeteria employee, but had
worked only in the gift shop, and the new employee (Mrs.
Lawson) was not hired for the gift shop,26 but only for the
food service operation in the snackbar. It is inferred,
therefore, that Mrs. Lawson was intended as a replacement
either for her daughter or for Shepard. It seems highly
unlikely that Pickren would have hired the mother, if he
had any doubt about the daughter's loyalty to manage-
ment. Moreover, as to both A. Lawson and Scavo the
record shows that they were not hired until July 7, which
was the same day that the Union sent its letter to
Respondent claiming that it already had obtained signed
cards from a majority of the employees. Thus, it was
logical for Pickren to regard Shepard, who had been hired
on June 28, as the most likely of the three to be one of the
adherents referred to in that letter.
It is accordingly found that, except for her suspected
union activity, Shepard could not have been scheduled for
layoff on July 13, but Pickren would have retained her
instead of hiring Mrs. Lawson. It follows that, in notifying
Shepard on July 13 of her layoff, Pickren acted for
discriminatory reasons and that the Respondent thereby
violated Section 8(a)(3) and (1) of the Act.27
24 The Respondent closed the gift shop to make room for the snackbar
25 The absurdity of this explanation is even more apparent when one
considers Pickren 's repeated assertions that normally a new employee lasted
only 2 weeks Thus, he would have one believe that he hired Mrs Lawson
over a month in advance of any actual need for her services , notwithstand-
ing that it was expectable that she would leave after only 2 weeks.
26 As noted above, the gift shop was closed at the same time as the
cafeteria
27 What effect should be given to Shepard' s subsequent resignation will
be considered below, in discussing the appropriate remedy
GREYHOUND FOOD MANAGEMENT, INC. 1153
2. The refusal to bargain
a. The appropriate unit
The complaint alleges that the appropriate unit consists
of all Respondent's employees at its Daytona Beach
location, excluding office clerical employees, guards, and
supervisors as defined in the Act. In its answer Respondent
challenged the appropriateness of such a unit. However, in
its brief this challenge is not renewed. In any event, it is
well settled that such a unit is presumptively appropriate 28
and, as Respondent cites no circumstances warranting a
departure from that presumption, it is found that the unit
described in the complaint is appropriate for purposes of
collective bargaining.
b. The Union's majority status
The Union's demand for recognition was mailed on July
7, and received on July 9. It is well settled that in a case like
this a union's majority status is determined as of the date
of receipt of its bargaining request by the employer, rather
than as of the date of mailing of such request.29 It is
undisputed that on July 9, Respondent had at least 11 unit
employees; that before that date 4 of those employees had
signed union authorization cards; that a fifth, Lucas,
signed such a card on July 9; and that on July 10, a sixth
card was signed by Copeland. The General Counsel would
have Copeland's card counted on the theory that the
Union's demand for recognition continued beyond July 9.
There seems to be merit in this contention, particularly in
view of the fact that, as Respondent was apprised in the
Union's letter, it was simultaneously filing a petition with
the Board for a representation election 30 However, even if
one counts Copeland's card, there remains Respondent's
contention that Flynt was on sick leave on July 9, and at
all other material times and should therefore be counted as
a 12th employee, leaving the Union with no majority.
The undisputed facts as to Flynt are that she worked as a
cook at the instant operation from May 1964 to November
3, 1970, when she left to undergo surgery; that she was told
at that time by the cafeteria manager that she would be
placed on leave of absence until she was able to return;
that, although at the time of the initial hearing herein she
had not yet been discharged by her doctor, she had applied
for rehire, the last such application having been made
about September 1; and that on that occasion Pickren
promised to take her back "as soon as possible" after she
obtained her doctor's approval. Pickren asserted at the
hearing on October 14 that it was still his intention to recall
her, after clearance by her doctor, and as soon as an
opening occurred.
28 Haag Drug Co, Inc, 169 NLRB 877, Sav-On - Drugs, Inc, 138 NLRB
1032 The record shows, moreover, that Respondent has a history of
bargaining on the basis of a single-location unit, and that the local manager
at Daytona Beach normally hires and discharges employees , and there was
no evidence of interchange or transfers from Daytona Beach to other
locations
29 Rea Construction Co, 137 NLRB 1769, and cases there cited at fn 1,
N L R B v Security Plating Co , 356 F 2d 725, 727 (C A 9, 1966), Alleghany
Pepsi-Cola Bottling Co v. N L R B, 312 F 2d 529, 532 (C A 3)
30 Sylgab Steel & Wire Corp, 162 NLRB 303, 314, fn 23, and cases there
cited
31 E g , John S Barnes Corporation , 180 NLRB No 139, fn 4, Otarion
It is well settled that employees on sick leave are
normally eligible to participate in the selection of a
bargaining agent.31 It is clear, also, that the mere fact that
on the critical date (in July) Flynt had been absent from
work for 8 months does not bar her eligibility; for, an
employee on sick leave for over a year before a Board
election has been found eligible to vote therein,32 and the
Board has held that eligibility is not barred as a matter of
law even where the sick leave period extended to 2 years.33
The General Counsel would apparently distinguish the
case at bar from the foregoing precedents on the ground
that the following special circumstances require a finding
that in July Flynt had no reasonable expectancy of recall
in the foreseeable future:
(1) The recall of Flynt is subject not only to recovery of
her health but also to the availability of work for her.
(2) She was a cook in the cafeteria operation and
Respondent does not need a cook in the snackbar.
(3) She made no application for recall until September.
Initially, it may be pointed out that the first two of the
foregoing contentions assume that as of the critical date
Flynt's recall was subject to the availability of a suitable
vancancy, as well as the condition that she recover her
health. However, there is no record basis for this
assumption. The record shows that when she left in
November 1970 she was told only by the then cafeteria
manager that he would put her on leave until she was able
to return, and there was no indication to her that, instead
of bumping whoever would have replaced her, she would
have to wait for an opening to develop. While Pickren
testified that, when she applied to him for recall, he
promised to take her back "as soon as possible" after her
medical discharge, it is clear that this incident did not
occur until about September 1. Since it is well settled that
eligibility is governed by the situation on the critical date,34
it is found that any consideration of the impact of the
September 1 incident on Flynt's eligibility is inappropri-
ate.35 Moreover, even if it were proper to consider that
incident, it would not affect the result. The record shows,
as already noted, that Respondent has an inordinately high
rate of turnover at Daytona Beach and that new employees
rarely stay more than 2 weeks. Thus, it was virtually certain
that a vacancy would develop within a matter of a few
weeks, if not days, after Flynt's medical discharge. As to
the contention that there was no suitable work for Flynt in
the snackbar, there is no reason to believe that Flynt could
not learn within a few days the relatively simple tasks
involved in tending a snackbar. Furthermore, Flynt had a
qualification which was rare among Respondent's employ-
ees-a record of 6 years' unbroken service.36
Accordingly, there appears to be no reason to doubt the
Listener Corp, 124 NLRB 880, Tube Distributors Co, Inc, 112 NLRB 296.
32 Tube Distributors Co, Inc, surpa, 297
33 The Horn & Hardarl Co, 147 NLRB 654, 660, where the Board found
employees on sick leave for 6 years to be ineligible as a matter of law, but
permitted those on leave for only 2 years to vote subject to challenge
34 E g. Otarion Listener Corp, supra
35 By the same token, it is immaterial that, as was stipulated at the
reopened hearing on February 15, 1972, Flynt had not yet returned to work
for Respondent, even if it be assumed that this was due to illness
36 Appreciation of this was reflected in the following colloquy between
Pickren and his counsel at the hearing , after Pickren related his promise to
recall Flynt
(Continued)
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veracity of Pickren's assertion at the hearing that it was his
intention to use Flynt in the snackbar operation.
With regard to the contention that Flynt did not make
any application for rehire until about September 1, that
circumstance has no bearing on her prospects of recall on
the critical date. Her delay in applying is sufficiently
explained by the fact of her illness, and there is no
requirement that, in order to establish eligibility, an
employee on sick leave seek to return to work before the
critical date, even though he is still unable to work.37
It is concluded that Flynt should be counted as in the
unit on July 9, and at all material times thereafter, and that
the Union therefore had no majority at any time here
relevant. It follows that Respondent was under no
statutory obligation at any time to bargain with the Union,
and it will be recommended that the allegations of the
complaint be dismissed insofar as they are predicated on
such an obligation.
IV. THE REMEDY
It has been found that Respondent violated Section
8(a)(3) and (1) of the Act by its action on July 13, in
notifying Shepard that she would be laid off as of July 16.
There remains to be considered whether Shepard is entitled
to any remedy, in view of the fact that she voluntarily quit
before her layoff would have been effective. If she would
have quit, in any event, on July 13, because of the
discharge of Tucker and Miller, Respondent's discrimina-
tory action in scheduling her for layoff could not be
deemed the proximate cause of her separation from
Respondent's employ or of any subsequent loss of
earnings, at least until such time as she applied for, and
Q is that still your intention todayl
A Yes, it is She's been with us about 7 years
While it is true that Pickren ascribed Johnson's layoff on July 14 to the
absence of any need for a cook in the snackbar, and Flynt's prior
employment had been as a cook, Pickren's failure to recall Johnson to fill
any of the recurring vacancies at the snackbar is adequately explained by
the fact that, as found above, Pickren believed that Johnson had falsified his
timesheet
The record shows that about a week after Flynt's application of
September 1, for reemployment, Pickren visited her home to offer her
daughter a job but did not offer to rehire Flynt, even though she reiterated
her desire to return to work The General Counsel would have the inference
drawn from this that Pickren did not, in fact, have any intention of ever
recalling Flynt However, Pickren credibly explained that he did not offer to
rehire Flynt at that time because he had no reason to believe that there was
any change in her medical status since he had last spoken to her only a week
before
31 The General Counsel cites CE Collins, et at, 177 NLRB 221, 247,
where, in finding that a union had a card majority on the critical date, the
Trial Examiner rejected the card of an employee on sick leave, who had
made no effort to return to work since September 1966 The critical date in
that case was in December 1966, and the hearing was held over a year
thereafter If this finding be taken to mean that, in order to be eligible, an
employee on sick leave must demonstrate his desire to return to work at
some point before the Board hearing, it is clear that Flynt did so here At
was refused, reinstatement . However, at the reopened
hearing Shepard testified that, notwithstanding the dis-
charge of Miller and Tucker, she would have remained at
work on July 13, had she not already been notified of her
imminent layoff. Accordingly, there is no basis for
withholding from her the usual remedy of backpay and
reinstatement 38 Backpay shall be computed in accordance
with the formula stated in F W. Woolworth Company, 90
NLRB 289; interest shall be added to backpay at the rate
of 6 percent per annum. (Isis Plumbing & Heating Co., 138
NLRB 716.)
Since the violation found herein consists in discriminato-
ry termination of an employee for union activity, a broad
cease-and-desist order is warranted.
CONCLUSIONS OF LAW
1. Greyhound Food Management, Inc., and Post
Houses, Inc., constitute a single employer within the
meaning of Section 2(5) of the Act and are engaged in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act. Greyhound Food is, in any event,
jointly and severally liable for the violation found herein
by reason of its direct participation therein.
2. The Union is a labor organization under the Act.
3. By selecting Shepard for layoff in order to discour-
age employee union activity, Respondent has violated
Section 8(a)(3) and (1) of the Act.
4. The Union did not represent a majority of the
employees in the appropriate unit at any time here
material, and Respondent was therefore under no duty to
recognize or bargain with it.
[Recommended Order omitted from publication.]
any rate, the foregoing finding is of doubtful, precedential value, since the
Board did not specifically pass thereon in its decision, and, in fact, had no
occasion to consider the matter, in view of certain other findings by the
Board that made the foregoing eligibility ruling moot Moreover, in the later
case of John S Barnes Corporation, supra, the Board, overruling the Trial
Examiner, found to be eligible two employees on sick leave, who at no time
evinced any intent to return to work and whose employment was, in fact,
formally terminated between the critical date and the date of the Board
hearing
38 it has been found that Pickren was justified in not offering to rehire
Copeland because he had refused to complete his shift under the
circumstances described above and that Shepard was guilty of the same
misconduct However, in the case of Shepard, unlike that of Copeland, it
has been found that she was selected for layoff for discriminatory reasons
and, as a discriminatee , she may not be denied reinstatement unless she was
guilty of misconduct so flagrant as to render her unfit for further
employment N L R B v Thayer Co, 213 F 2d 748 (C A 1), cert denied 358
U S 883, O'Daniel Oldsmobile, Inc, 179 NLRB 398. 404, and cases there
cited, UAW v N L.R B, 300 F 2d 669 (C A D C), Kohler Co„ 148 NLRB
1434, enfd 345 F 2d 748 (CAD C ), cert denied 382 US 836 it is
abundantly clear from the foregoing authorities that Shepard's action in
quitting work on July 13, for whatever reason, could not be deemed to
render her unemployable Accordingly, Respondent would not be privileged
to reject her application for rehire because of such quitting