Home Restaurant & Drive-In

National Labor Relations Board - Board Decisions

May 6, 1960

127 N.L.R.B. 635 (N.L.R.B. 1960)

HOME RESTAURANT DRIVE-IN 635
E. E. Majeroni and L . E. Majeroni , d/b/a Home Restaurant
Drive-In and International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, General Team-
sters Union 397 and Shirley Johnson. Cases Nos. 6-CA-1719
and 6-CA-1770. May 6, 1960
DECISION AND ORDER
On December 3011959, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also found that
the Respondents had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed with respect
to them. Thereafter, the Respondents filed exceptions to the Interme-
diate Report With a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions 2 of the Trial Examiner.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, E. E. Majeroni
and L. E. Majeroni, d/b/a Home Restaurant Drive-In, York, Penn-
sylvania, their agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, General
Teamsters Union 397, or any other labor organization of their em-
i We find , in agreement with the Trial Examiner , that while there may have been some
economic justification , the Respondents in fact discontinued the first and third work
shifts on March 17, 1959 , because the employees sought to organize themselves and
joined the Union In addition to those reasons advanced by the Trial Examiner in
support of this finding , we also rely upon the fact that during the past two winter
seasons the Respondents operated on a three -shift basis despite monetary losses.
In adopting that part of the Intermediate Report entitled "The Remedy," we specifi-
cally find that tips are to be included as part of the wages that each of the discriminatees
herein would have normally earned absent the discrimination against them.
127 NLRB No. 81.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, by discharging, refusing to reinstate, or otherwise discriminat-
ing against their employees because of their exercise of the right to
self-organization or to join labor organizations or to engage in con-
certed activities.
(b) Threatening employees with loss of employment because of
their union interest or affiliation; interrogating them with respect to
the aforesaid Union, its membership, and their own interest and affilia-
tion therein; and imposing rigorous working conditions upon their
employees and enforcing revived working rules for the purpose of
discouraging employee interest and membership in the aforesaid
Union.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form, join, or assist the aforesaid labor organization, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Joanne Pettit, Shirley Colangelo, Charlotte Pluskota,
Sylvia Andyjewski, Shirley Johnson, Richard Fletcher; and Carol
Miller immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority or other
rights and privileges to which they would have been entitled absent the
discrimination against them.
(b) Make whole Joanne Pettit, Shirley Colangelo, Charlotte
Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher, and
Carol Miller for any loss of pay they may have suffered by reason of
the discrimination against them, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy" and in this Deci-
sion and Order.
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secur-
ity payment records, timecards, personnel records and reports, and all
other records necessary to analyze and compute the amounts of back-
pay due under the terms of this Order.
(d) Post at their drive-in restaurant in Erie, Pennsylvania, copies
of the notice attached hereto marked "Appendix." I Copies of said
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
HOME RESTAURANT DRIVE-IN 637
notice, to be furnished by the Regional Director for the Sixth Region,
shall, after being duly signed by an authorized representative of the
Respondents, be posted by the Respondents immediately upon receipt
thereof, and be maintained by them for a period of 60 consecutive days
thereafter in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the Respondents to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Sixth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondents have taken to comply therewith.
APPENDIX
NoTIcE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, General Teamsters Union 397, or any other labor or-
ganization, or discourage our employees from engaging in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, by discharging, refusing to reinstate,
or otherwise discriminating against our employees in respect to
their hire or tenure of employment, or any term or condition of
employment.
WE WILL NOT threaten or employees with loss of employment
because of their union interest or affiliation, interrogate them
with respect to union matters or their own union membership, or
impose upon them rigorous working conditions or enforce revived
working rules for the purpose of discouraging their union interest
and membership.
. WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organi-
zation, to form labor organizations, to join or assist International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help-
ers of America, General Teamsters Union 397, or any other labor
organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment as authorized in Section 8(a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL offer Joanne Pettit, Shirley Colangelo, Charlotte
Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher,
and Carol Miller immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice
to their seniority and other rights and privileges.
WE WILL make whole each of the above-named employees for
any loss of pay they may have suffered by reason of the discrimi-
nation against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
E. E. MAJERONI AND L. E. MAJERoNi
D/B/A HOME RESTAURANT DRIVE-IN,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed on April 28 and June 26, 1959, by International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Teamsters
Union 397, herein referred to as the Union, and Shirley Johnson, respectively,
General Counsel of the National Labor Relations Board on June 30, 1959, issued a
consolidated complaint against E . E. Majeroni and L . E. Majeroni, d /b/a Home
Restaurant Drive-In, herein referred to as the Respondents, alleging violations of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat.
136), herein called the Act. In its duly filed answer Respondents, while admitting
certain allegations of the complaint , denied the commission of any unfair labor
practice.
Pursuant to notice a hearing was held before me at Erie, Pennsylvania , on Sep-
tember 9, 10, 11, and 14, 1959. All parties were represented at the hearing and
were afforded full opportunity to be heard , to introduce relevant evidence , to present
oral argument, and to file briefs. Parties waived oral argument at the hearing and
in lieu thereof filed briefs with me thereafter.
Upon consideration of the entire record and the briefs of the parties, and upon
my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents are a partnership doing business in and about Erie, Pennsylvania.
They own and operate in that area a number of restaurant enterprises , including the
Home Restaurant Drive-In, and are engaged in the retail sale of food and beverages,
which during the preceding 12-month period was in excess of $500,000. While so
engaged the Respondents purchased a substantial portion of its supplies from States
HOME RESTAURANT DRIVE-IN 639
outside the Commonwealth of Pennsylvania. The Respondents concede they are
engaged in interstate commerce within the meaning of the Act, and I so find.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ISSUES
1. Whether there is substantial evidence that Respondents and their supervisors
by their conduct interfered with, restrained, or coerced their employees in the
exercise of their statutory rights.
2. Whether Respondents curtailed their business operations solely for reasons of
economic necessity, or additionally to obstruct and defeat the organizational efforts
of their employees.
3. Whether Respondents terminated employees Andyjewski, Johnson, Fletcher,
and Miller for cause stated herein or for reasons of their union affiliation and
activity.
4. Whether the picketing of Respondents' premises and the distribution of a
leaflet alleged to be false and malicious were such as to justify Respondents' refusal
to reinstate the employees involved therein.
IV. THE UNFAIR LABOR PRACTICES
A. Introduction
The Home Restaurant Drive-In is one of several establishments owned and operated
by the Respondents, the only one involved in this proceeding. It is located at a busy
intersection on the western outskirts of Erie, Pennsylvania, and during the summer
months serves a clientele comprising holiday and vacation visitors to nearby Presque
Isle, as well as the local trade. During the remainder of the year its principal source
of revenue is the younger element of the community who traditionally haunt such
establishments i
Eighty percent of the Drive-In's customers are carborne To accommodate them
in the parking area Respondent employs carhops. Waitresses perform their cus-
tomary duties indoors. Prior to January 1, 1959, carhops were paid at the rate of
44i/2 cents per hour plus a number of fringe items, and in addition received from
their patrons tips which averaged approximately $50 per week. After January 1,
1959, and during the period involved herein, their hourly rate was increased to 60
cents. Waitresses during the same respective periods received 50 cents and 60 cents
per hour plus the identical fringe benefits, and they collected tips of the same ap-
proximate weekly average. In addition the Respondents maintain the necessary
cadre of cooking and cleaning personnel, and cashiers to staff three shifts, namely:
First shift 7 a.m. to 5 p.m., second shift 5 p.m. to I a in., third shift 11 p in. to
7 a in. The total personnel complement at the Drive-In increases throughout each
1 Unless I specify otherwise the facts found herein are based upon the credited testi-
mony of employees Newcomb, Raimondi, Scrivens, Could, Roberts, Irwin, Manning,
Johnson, Fletcher, Andyjewski, Colangelo, Pettit, Pluskota, and Miller, and Respondent
E E (Ted) \Ialeroni
In many instances I find that two or more of the foregoing employees testify contrari-
wise as to certain Items But as I deem them to be minor variations lacking significance
to the general issues involved, I do not consider that they impair the credence of the
testimony I have used to make the findings of fact herein
Similarly, although I have credited the testimony of Respondent E E. (Ted) Majeroni
in substantial part there are items of his testimony that I cannot credit Where such
testimony conflicts with facts that I find herein I have specifically stated my refusal to
accept this witness' version of the subject matter under discussion And although in
certain instances I have, and in certain other instances I have not, credited Ted Majeroni's
testimony I do not deem this varying treatment of his testimony to impair in any manner
the evidence I have accepted and relied upon
Majeroni appeared to me to be a toi thright, reliable witness who maintained a high
degree of consistency in his testimony That lie on occasion denied facts testifiers to by
other credible witnesses, or gave to other facts a flavor and appearance at odds with
other credited testimony Is a natural phenomenon that I attribute to Majeroni's point of
view which certainly differed from most of the other witnesses, to an attitude that was
understandably partisan, and to a recollection of facts and incidents that had come to
him, no doubt, in a confused manner I do not consider that these circumstances detract
in any manner from the weight I have placed upon Majeroni's credited testimory.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
year from approximately 30 in the winter months to 70 during the summer peak
period.
The operation of thee Drive-In restaurant is under the active management of
Partner E. E. Majeroni, frequently referred to herein as Ted Majeroni. Under his
overall direction carhops and waitresses are supervised by Sally Condela, who has
full responsibility for their hire, fire, and discipline. Edgar Trimmer and Barbara
Gifford supervised generally all operations on the work shift to which each is
assigned.2
In the conduct of its normal operations certain practices are observed at the
Drive-In which bear considerable significance to the issues raised herein. Thus in
the service of food all items are ordered from the kitchen by the waitresses and
carhops through a cashier stationed at a strategic spot in the kitchen. When the
food is ready the employee pays the cashier for it before picking it up and serving
the customer. Each waitress and carhop is given a daily $5 cash advance, called a
"cat," to compensate for the expense incurred by her as a result of this prepurchase
arrangement. Coffee is dispensed from the kitchen in the same manner, waitresses
and carhops being required to prepay at the rate of 50 cents per pot, a pot containing
a minimum of five cups. The food and coffee so procured is, in effect, resold to
the customer by the carhop or waitress, as the case may be, who retains the money
received, being required only to repay the cash advance, or "cat," at the end of her
work shift.
In addition to their usual duties the waitresses and carhops are also expected to
perform a modicum of maintenance designed to keep the equipment in satisfactory
condition. This, it would seem, included the cleaning of utility refrigerators,
shelves, condiment holders, and decorative chrome.
The carhops and waitresses wear uniforms suited to their respective assign-
ments, the former dressing in slacks and the latter in the customary waitress uniform.
For these uniforms Respondents provided a set allowance, periodically advanced,
to provide for uniform purchase and upkeep. In addition, these employees are
required by State law and company rule to wear hair nets. Scarves are permitted
to be worn by the carhops as an adequate substitute.
B. The advent of the Union
On or about March 11, Respondents' employees expressed their first interest in
self-organization. Joanne Pettit and her sister, Shirley Colangelo, employed as
waitresses for 1 and 11/2 years, respectively, and Carol Miller and Charlotte Pluskota,
carhops employed for the past 9 months and 11/2 years, respectively, were the first
to discuss among themselves the idea of bringing in a union to represent them. At
the suggestion of a truckdriver making deliveries at the restaurant the group chose
Local 397, the Union herein, and selected Joanne Pettit to obtain further informa-
tion. Pettit visited Ralph Texter, the Union's business representative, on March 1I
and obtained from him a supply of authorization cards to be distributed among
interested employees. From that date through March 14 the 4 named employees
whom the Respondents and their supervisors considered to be the "ringleaders"
of the union movement, obtained signed cards designating the Union as their bar-
gaining representative from 16 of the restaurant's approximately 25 employees.
This marked the culmination of a period of frantic activity on the part of the
interested employees, and the beginning of an equally frantic period of obstruction
on the part of the restaurant's management.
During the week ending March 14, there had been a constant round of visits
among employees, both on and off the premises, and during and after working
hours. All were importuned by Pettit, Colangelo, Pluskota, or Miller to join the
2 By way of further identification of the supervisory personnel of the Home Drive-In
it is significant to note that while Condela supervises the waitresses and carhops through-
out the year and continuously exercises her usual hiring and firing authority, she was
physically present on the job only during the 6-month period preceding, during. and
following the summer season. For the remainder of the work year she performed her
duties of job assignment and scheduling from her home.
Barbara Gifford was identified on the record as a cashier as well as supervisor with
authority to hire, fire, and discipline. She is the wife of one Jerry Gifford, manager of
one of Respondents' establishments, The Beachcomber, and is the sister-in-law of Respond-
ent E E (Ted) Majeroni.
Edgar Trimmer, prior to March 1, 1959, was a part-time, weekend cook at the Drive-In,
being otherwise employed full time at a nearby Ohio steel mill. Since March 1, 1959, he
has been given supervisory authority, including the authority to hire, fire, and discipline
employees on the work shift to which he was assigned.
HOME RESTAURANT DRIVE-IN 641
Union , and the standard arguments were advanced to encourage full membership
among the personnel3 By the evening of Friday , March 13, the efforts of the
four girls were in full flower , and the first evidences of the Respondents ' reaction
to these efforts became apparent.
C. The management reaction to the Union
Edna Roberts, pastry cook, sounded the first alarm to the restaurant 's manage-
ment. After having signed a union authorization card on March 13 at the behest
of employees Colangelo and Pettit, she tried to locate Respondent Ted Majeroni.
Failing to do so she phoned Jerry Gifford, identified in the record as manager of
another of Respondents ' restaurants , "The Big Guy ," and the husband of Supervisor
Barbara Gifford . Roberts told Gifford that she had signed a union card and that she
was trying to locate Ted Majeroni and let him know what was happening. In the
course of her conversation with Gifford she provided him with the names of all
16 employees who had signed cards.4 In a phone conversation with Ted Majeroni
thereafter Roberts repeated to him the information she had given to Gifford. Thus
alerted, first by Gifford 's word to him and thereafter by Roberts ' confirming phone
call, Ted Majeroni went to the Home Restaurant Drive-In and commenced his
investigation of the situation reported . And, in his own words , "ascertained the
fact that it was true."
Ted Majeroni 's system of investigation was described in detail by the employees
with whom he spoke on his return to the restaurant , and thereafter . Thus in the
presence of Supervisor Edgar Trimmer he spoke to six of the employees then on
duty, including Gould, Newcomb, and Manning, inquiring of them whether or
not they had joined the Union . Newcomb told him that she had not joined ( although
she had ), whereas Gould and Manning told him that they had joined . Thereafter,
on various occasions between March 13 and 16 Majeroni sought out and questioned
his other employees , including Thompson , the porter , and List, as to their union
affiliation , thereby substantiating his credited testimony that "during the ensuing
days I got in conversation with Edna Roberts and some of the other ones. I
noticed one thing looking at the list of the employees that had signed these union
cards, that it was quite unusual in one respect : it contained all the people under
twenty-one years of age, and all the women."
While Ted Majerom was thus engaged in verifying Roberts' report of union
activity among his employees his supervisory force followed the same course.
Supervisor Sally Condela , for example , although off duty and at home, telephoned
employee Newcomb at the restaurant to ask her if she had joined the Union.5
Employee Miller testified that she was questioned by Condela as to her union
membership at the same time. Several days thereafter Condela was still engaged
in the same inquiry, having questioned employees Gould, Irwin, and Pluskota about
the Union and their respective interests in it.6
Meanwhile on the night of March 13 Respondent Lamar (Bob) Majeroni appeared
at the Drive-In and remained there throughout the night . During the course of the
evening he prepared a statement for the signature of the employees on duty which
read as follows:
3It appears from the record that of the 16 authorization cards allegedly obtained
only 14 employees can be specifically identified . Thus employee Pettit signed her own
card and procured signed cards from employees Shirley Johnson and Richard Manning.
Employee Colangelo signed her own card and procured signatures from employees Edna
Roberts and Elias Thompson Employee Pluskota signed her own card and procured
cards from employees Shirley Newcomb and Marjorie Gould ( the success of her solicita-
tion of employee Chester Griffen is not apparent from the record ) Employee Miller
signed her own card and procured signatures from employees Kay Irwin , Angeline
Raimondi , and Sylvia Andyjewski . Employee Fletcher 's signed card is not shown by the
record to have been procured by any of the four leaders.
4 The credited testimony of Roberts and Respondent Ted Majeroni.
5 The credited testimony of employee Nem comb undenied by Condela Condela 's version
of another incident to the effect that Newcomb approached her and asked if she were
being fired is not credited as I view it to be inconsistent with Condela 's conduct at the
time, as testified to by other employees and not denied by her.
"The credited testimony of the employees involved . Condela was not questioned con-
cerning this conduct . She was , however, asked whether she had told Pluskota that there
was no good reason for Pluskota to join the Union Condela evaded this question by dis-
cussing the alleged grievances of the girls Because of this and my general observation
of the witness , I do not credit her testimony
560940-61-vol. 127-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is my understanding that Mr . Bob Majeroni has had complaints that the car-
hops and waitresses were abused and mistreated Friday evening , March 13,
1959, by the cooks and supervisory personnel at the Home Drive-In, W. 8th& Peninsula Drive.
To whom it may concern I the undersigned have not been mistreated or
abused by anyone at the Home Drive-In, today , Friday, March 13, 1959.
All waitresses and carhops on duty appear to have signed it.7
During the same period Supervisor Edgar Trimmer , who, by his own admissions,
openly referred to Pettit and Colangelo as the "ringleaders ," carried on his own
program of inquiry. Thus he began by asking Colangelo if she had joined the
Union and inquired of her whether she thought "Mr. Majeroni is going to let a
Union come in here." When she said she did not know, Trimmer then asked her,
"Do you think you are going to get away with it?" and he offered to make a bet
that the Union "would not be allowed to come in." He concluded the conversation
by telling Colangelo that she would be fired for joining the Union. About the
same time he asked employee Miller if she had joined the Union and when she did
not reply he stated, "Well I know you did." Several days thereafter he asked
employee Fletcher what he expected to get out of the Union , followed by the
remark, "You know, you will probably lose your job over this." About the same
time he asked employee Scrivens what he knew about the Union 8
Fully advised of the extent to which the employees had organized , Ted Majeroni
decided to call a meeting of his Drive -In employees for the purpose of ascertaining
what grievances the employees were harboring against the Respondents. This
meeting was called for Sunday night , March 15, and will be discussed in detail here-
after. Meanwhile , Ted Majeroni stated that he "tried to caution everybody, the
supervisors , not to take any steps or any action against any of these union activities."
Majeroni's instructions must either have been misunderstood or ignored , for the
events which transpired between the initial interrogation on March 13 and the
employee meeting on March 15 belie any effort on the part of the supervisory staff,
or indeed upon the part of Majeroni himself , to avoid "any other action against
any of these employees ." In fact, the opposite effect appears to have been achieved,
for beginning on the same March 13 the employees became aware that rules
previously honored in the breach were being rigidly enforced In fact Supervisor
Sally Condela , after having telephoned employees on the job to ask them if they
had signed union cards , came to the Drive -In from her home and , by her own
admission , told Supervisor Trimmer , then on duty , to keep the employees busy
because they had been loafing . 0 On more than one occasion that evening as
waitresses would stop to talk to one another , Condela would be heard to say, "I'll
have no talking here tonight " 10 This rule was carried to such an extreme , in fact,
that at 3 a m. on the morning of March 14 , when employees Andyjewski and Miller
were preparing to have their dinner in the Drive -In dining room , as was their custom,
Supervisor Trimmer forbade their eating in the dining room together . ii During
the same period the working rules were rigidly applied not only to insure a minimum
of communication between employees but also to impose on them duties and re-
quirements out of their usual routine Thus while working under Barbara Gifford's
71 do not accept Respondent Bob Majeroni ' s explanation of this incident , or of his
presence at the Drive-In, namely that lie received a call from Union Representative
Tester telling him that his employees were being mistreated and abused and that lie
should go to the Drive -In and straighten the situation out While Majeroni may have
received such a call ( and no one disputes his testimony ), I find upon the credible testi-
mony of employee Roberts that Bob Majeroni , as well as his brother Ted \f . iieroni was
on the telephone when she reported to them about the Union This I find to have been
the principal reason for Bob Majerom ' s presence at the Dace-Tn on March 13-14
8 Trimmer was not questioned concerning his conversation with either Miller or
Scrivens In consequence their testimony stands undenied As to his testimony gen-
erally I have carefully compared that given as a witness for Respondents soith his testi-
mony as an adverse witness called by General Counsel, w,thout objection , under rule 43(b)
of the Rules of Civil Proceduie I have also noted ceitain testimony given in answer to
questions directed to it statement made sometime prior to the hearing P.ecause of the
inconsistencies that I have noted in this comparison of testimony and because of Trimmer's
efforts in his testimony as Respondents ' witness to offset any contrary impressions he
may have made by his earlier testimony , I will credit this witness only on such matters
as are corroborated by the credited testimony of other witnesses
The testimony of Condela and Trimmer , corroborated by employee Newcomb
10 The credited testimony of employee Johnson
11 The credited testimony of employees Andyjewski and 'Miller.
HOME RESTAURANT DRIVE-IN 643
supervision the girls were forbidden to communicate with one another, and in
addition were not permitted to sit down during slack periods as had been their
custom. Under Trimmer's direction they were required to clean and polish the
same glass shelves and decorative chrome repeatedly throughout the day,12 thus
carrying out Condela's instruction to him to "keep them busy." Indeed Trimmer's
interpretation of these instructions appears to border upon the ridiculous when, on
the morning of March 17, he assigned employee Fletcher the task of cleaning 25
pounds of shrimp and molding a total of 720 hamburger "patties" for a day's
anticipated requirement of no more than 5 or 10 pounds of shrimp and from 120
to 140 hamburgers.13
D. The employee meeting and Candela's offer to resign
When impressed with the full significance of his employees ' organizational efforts
Ted Majeroni called a meeting for Sunday evening, March 15. The meeting,
according to Maleronr , was intended to explore the alleged grievances and com-
plaints against Respondents and their supervisors . It lasted for approximately a
half hour. It was attended by a majority of the employees , with "a few notable
exceptions " Among those who did not attend were the leaders of the organizing
campaign, Pettit , Miller, Pluskota , and Colangelo , who sought to persuade others
not to attend.14
During the course of the meeting Ted Majeroni repeatedly asked any employee
who had a complaint or grievance against the employer or his supervisor to speak up
so that the issue could be thoroughly discussed . Although some employees were
singled out for independent inquiry , no one presented a grievance . Whereupon
Supervisor C ondela, who with Barbara Gifford appears to have been the focal point
of the employees ' unrest, stated that if it were her actions that were causing all of
the confusion and complaint they should so state, and if a majority of the employees
would vote against her in the matter she would resign her job Nothing further
came of her offer. Gifford , although present , does not appear to have contributed
anything to the meeting.
E. Trimmer's visit to the union meeting
While the employees' organizing efforts were in progress and while Respondents
were making certain that the remainder of their employees would not be, to use
Ted Majeroni's expression, "railroaded" into the Union, Edgar Trimmer, supervisor,
in a moment of curiosity, arranged to attend a meeting of the Union. This he did
by requesting employee Pettit's permission. Pettit's reply, which I deem to be
acquiescence if not an outright invitation, was that "it's a free country" and he
could do as he saw fit. While the record is unclear as to his attendance at a union
meeting, it is undisputed that Trimmer did visit the union hall on a night on which
a meeting was scheduled and that he had a prolonged visit and conversation there
with 11*ion Representative Texter. It appears that Trimmer's plans to go, his
request of employee Pettit, and his actual presence at the union hall were a matter
of general knowledge among the employees at the time and were protested by none
F. The layoff
On March 17 the Respondents closed down the Drive-In except for the after-
school and early evening hours. As a result of this curtailment, two working shifts
were eliminated and the employees affected were notified of their termination by a
telegram which stated:
CLOSING TWO SHIFTS YOUR EMPLOYMENT REGRETTABLY
TERMINATED-HOME DRIVE-IN
According to Ted Majeroni, whose decision it was to reduce the operations and who
sent the telegrams, everyone on the affected shifts was notified of his termination.
The only exceptions were Edna Roberts, identified earlier as Majeroni's informant
on union matters and the restaurant's sole pastry cook, and Elias Thompson, the
porter Although Majeroni knew Thompson had signed a union card and the other
12 The credited testimony of employees Pettit and Colangelo
13 The credited testimony of employee Fletcher, not denied by Trimmer when testifying
in Respondents' behalf
"When asked why they opposed the meeting and did not attend it, employee Pettit
could offer no reason
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porter, Britton, had not, he testified that he terminated Britton because he had the
least seniority of the two.ls
It appears from the record, however, that for 3 days ending on March 17, the
period during which Respondents were deliberating the curtailment of their opera-
tions, the classified advertisement section of The Erie Times carried Home Drive-In's
advertisement for carhops.ls
In addition to the retention of Roberts and the planned retention of Thompson,
other exceptions to the layoff program were also made. When the cutback occurred,
employee Scrivens, a cook on one of the affected shifts, was laid off with the others.
When Scrivens, whose lack of sympathy for the Union was admittedly known to Ted
Majeroni, asked Supervisor Trimmer why he was being laid off, Trimmer said "he
thought" that it was because "Mr. Majeroni had heard that [Scrivens'] name was on
one of the cards that the Union had." When Scrivens denied his union sympathies
Trimmer assured him that Majeroni would be so advised.'? Thereafter Scrivens
approached Ted Majeroni and, after restating his opposition to the Union, asked for
work. Majeroni arranged for him to work at another of Respondents' restaurants at
,a job that lasted but I day, and a week later called him back to work for an evening
at the Drive-In, and another week later called him in for some painting work, on the
completion of which Scrivens resumed his regular job.'s Meanwhile, on March 24
Carrie Ball, whose lack of union sympathy was admittedly known to Ted Majeroni
who had been laid off with the others on the first and third shifts, was reinstated to
work on the second shift, the only shift not discontinued.
On or about March 31, according to Majeroni, the usual seasonal business increase
prompted Respondents to resume their abandoned shifts, one being reinstituted on
that date, and the remaining one on April 10.
G. The picketing activity
Following the layoff of the first and third shifts on March 17 and the receipt of
telegrams by the affected employees, these employees met with Union Representative
Texter, who in turn met with Respondents in an effort to effect reinstatement of the
displaced workers. Beginning on March 23, however, and continuing for an unde-
termined period thereafter, some of the laid-off employees, plus several to be con-
sidered hereafter, who were discharged for reasons allegedly unconnected with their
union affiliation, established a picket line in front of Respondents' Home Restaurant
Drive-In and the Home Restaurant at Third and State Streets, Erie, Pennsylvania,
owned exclusively by Respondent Lamar (Bob) Majeroni. During the course of the
picketing at the Drive-In, concededly intended to acquaint customers with the em-
ployees' dispute with Respondents and discourage their patronage, the employees dis-
tributed to potential customers and passersby a leaflet entitled "The Majeroni Story."
Because this leaflet and its contents , as well as its distribution , form Respondents'
principal basis for refusing reinstatement to employees Pettit, Colangelo, Pluskota,
Andyjewski, and Fletcher who distributed it, the leaflet is reproduced in its entirety
as follows:
15 Elias Thompson's testimony is, in the main, incoherent. By comparing it, however,
with the credited testimony of Ted Majeroni on the subject matter of Thompson's termi-
nation, this much is clear : He was put to work on another shift, the morning shift upon
which he had been working being discontinued. Therefore, when Thompson testifier)
"the shift he wanted me on, I couldn't get in and out My transportation was too poor
for that" he was, in effect, corroborating Majeroni's subsequent testimony. In this re-
spect Majeroni stated:
I went to Mr Thompson's house that night and presented him his check and said
I was closing two shifts and would no longer need him unless he could work on the
second shift. He said that he could. . . He was not there the next day A couple
of days later he called and said "How about my job? Is it still open')"
And he said, "Yes" I said, "You are suppose to come in" I said "You never
showed up"
And he said, "Well, I have trouble with the transportation on the second shift
and I can't make It"
On the strength of the foregoing I find, therefore, that Thompson was not among
those terminated upon the abandonment of the two work shifts.
19 Ted Majeroni testified that ads were also placed for carhops and waitresses on five
unspecified occasions after March 17. These ads, in anticipation of the usual seasonal
hiring increase, are not to be confused with the ones specifically placed at the time of
the layoff.
17 The credited testimony of Scrivens, not denied by Trimmer.
's Ted Majeroni confirmed Scrivens ' account of the special treatment afforded him.
HOME RESTAURANT DRIVE-IN 645
THE MAJERONI STORY
(HOME DRIVE-IN RESTAURANT)
On or about March 11, 1959, a large majority of the employees of Home
Drive-In Restaurant authorized the General Teamsters Local Union #397 to
represent them in regard to wages, hours of work and other conditions of
employment.
The Majeroni employees were not solicited by the Union but did go directly
to the Union and ask for representation.
Our wages are intolerably low--44 1/2 0 per hour during the summer season.
We have been forced to work split shifts. Our supervisors have used foul
language when giving us work orders . We have been compelled to make up the
losses when customers forget to pay for their orders. We have never had rest
periods or regular lunch periods. Our Supervisors have never shown respect
for us nor have they ever been appreciative of extra effort on our part in handling
extra work.
Many of us were fired by our Employers for joining a Union.
We have never had a regular work schedule and often reported for work and
were immediately sent home . Then if we did not report for work when our
Supervisors thought ( without notice to us ) we should report for work, we were
treated like stray animals.
Our employers (Majeroni Brothers ) by their actions forced us to seek the help
of a Union to have our working conditions straightened our (sic ) and to secure a
decent wage for our work.
We do have unfair labor practices charges filed against the Majeroni Brothers
before the Pennsylvania Labor Relations Board for their discrimination against
their employees.
The Teamsters Union , on behalf of the employees of the Majeroni Brothers
Home Drive-In Restaurant requests each of you to refrain from patronizing said
Restaurant until such time as the Majeroni Brothers and their supervisors decide
to correct the unfair conditions through bargaining with the Union chosen by
the Majeroni Brothers employees.
Employees ' Committee
Teamsters Local Union #397.
H. The alleged discharges for cause
1. Sylvia Andyjewski
Sylvia Andyjewski had been employed by Respondents as a waitress since June
1958. At the time of the union activity involved herein she was expecting the birth
of her third child, due to arrive in June. By previous arrangement with Supervisor
Gifford,19 employee Andyjewski was to continue in Respondents' employ until the
end of March. Events which occurred on the night shift of March 13-14 appear,
however, to have altered these arrangements. Thus, as described in detail above, the
employees had begun their organizational efforts, had been seen congregating and
soliciting union authorization card signatures, and had been questioned by their super-
visors concerning the operation. Andyjewski was among those who signed cards
that evening and was one of the employees upon whom strict adherence of the work-
ing rules was imposed to the extent that she was forbidden by Supervisor Trimmer
to eat, at 3 a.m., in the company of a fellow employee.
During the course of the evening Supervisor Condela, whose activities were set
forth in fuller detail above, came to Andyjewski and said, "Make this your last night.
You're getting too big to work at the dining room." Andyjewski's employment was
terminated as of that date.
When the picket line was established in front of Home Restaurant Drive-In
employee Andyjewski participated and was among those who distributed the pamph-
lets to which Respondents objected. Following the birth of her child on June 5 she
requested reinstatement to her job, making reference to current classified want ads
by which Respondents were seeking carhops and waitresses. Supervisor Condela
told her they had nothing to offer and that she should call later. She did call later
and was told that Respondents had all the waitresses and carhops it needed. In
addition to these attempts at reinstatement Andyjewski was also included among the
group of employees who sought reinstatement by formal letters sent to Respondents
on June 24, 1959, and again on an undetermined date in August 1959.
11 Gifford did not testify at the hearing and Andyjewski's testimony in this respect was
not otherwise disputed.
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Ted Majeroni made it clear in his testimony that employee Andy-
jewski would, under usual conditions, have been reinstated following the birth of
her child. Because, however, she participated, in the company of other employees,
in the picketing of the Drive-In and distributed what Majeroni considered to be false
information, he refused to reinstate Andyjewski to the job from which she had been
granted maternity leave.
2. Richard Fletcher
Richard Fletcher began in Respondents' employ on June 3, 1957. During the
summers of 1957 and 1958 he worked full time and throughout the intervening period
he attended school, working part time whenever possible. As he did not return to
school in September 1958 Respondents retained him as a full-time cook.
According to Ted Majeroni, Fletcher's continued full-time employment during the
1958-59 season was made possible during that period by the absence from the city
of Edgar Trimmer, then a regular cook and more recently, early in March 1959,
promoted to supervisory status. On March 17, following an absence of a week due
to illness, Fletcher reported to work on the morning shift. After working for 2 or 3
hours on an assignment of cleaning 25 or 30 pounds of shrimp and of molding
approximately 720 hamburger patties, Ted Majeroni sent Fletcher home and told him
to return in the afternoon. Upon his return Fletcher reported to Majeroni who told
him he would have no further need for him until business picked up 20
By the weekend of March 14-15, Fletcher had joined the Union and this fact had
been conveyed to Ted Majeroni by employee Edna Roberts.21 Although absent
from work during the previous week, he received word of the employee meeting
scheduled by Majeroni for the evening of March 15 and attended it. At the con-
clusion of the meeting Supervisor Trimmer summoned Fletcher and asked him
what the Union had to offer him. When Fletcher gave him a noncommittal answer
Trimmer replied, "You know, you'll probably lose your job over this." 22 There-
after on March 17, and prior to the notification to the employees that two shifts were
to be abandoned, employee Pluskota, noting Fletcher's absence and recalling her
conversation with Trimmer on the previous day to the effect that Trimmer would be
taking Fletcher's place as cook, asked Trimmer "if Fletcher was going to come back
to work or if he was just off for the day." Trimmer replied, "No. That's what
happens when you join the Union." 23
3. Shirley Johnson
Shirley Johnson was first employed by Respondents as waitress in June 1957 and
has worked regularly from that time until her discharge on the early morning shift
of March 14. As was true of the other employees at the Drive-In, Johnson had been
previously solicited by Joanne Pettit for union membership and had signed a union
authorization card on March 11. As employee Roberts testified to having given
Respondent Ted Majeroni the names of all who signed union cards, and as Majerom
confirmed this fact, it is to be assumed that Majeroni was specifically aware of
Johnson's union affiliation, and I so find. Furthermore, Johnson testified credibly
that on the night of March 15, immediately before her discharge, she was approached
by one Anastasia Kingsley, employed as a carhop but assigned as a waitress tem-
porarily for that evening, and related by marriage to Ted Majeroni. Kingsley asked
Johnson if she had signed a union card; and when Johnson affirmed that she had,
Kingsley-stated, "Well, you shouldn't have. There's going to be trouble " 24 Where-
upon Kingsley left Johnson and walked to the kitchen. As she did so she passed
2° The reason thus assigned for Fletcher 's layoff is based upon Majeroni ' s credited testi-
mony, and it is found by me to be one of the reasons for the general layoff As will be
developed hereafter this is but one of several reasons for the layoff . Any inference , there-
fore , that can be drawn from Majeroni 's testimony to the effect that lack of work for
Fletcher was 'the only reason for Fletcher s termination on March 17 is hereby rejected.
21 The credited testimony of Roberts , affirmed by Majeroni
The record is not clear as to the circumstances of Fletcher ' s first affiliation with the
Union Thus, although absent from work for the week prior to March 15 , he testified
that he joined the Union on March 13 , without indicating where this took place. As his
interest immediately prior to March 15 is conceded by all, and is documented by the
credited testimony of both Fletcher and Ted Majeroni , any discrepancy as to dates is
deemed to be of no consequence to the issues herein.
22 The credited testimony of Fletcher. Trimmer ' s denial of this conversation is not
credited
23 The credited testimony of Pluskota . Trimmer's denial is not credited.
24 The undenied testimony of Johnson . Kingsley did not testify at the hearing.
HOME RESTAURANT DRIVE-IN 647
Respondent Lamar ( Bob) Majeroni and was seen to nod her head to him I deem
this incident, based upon credible testimony, together with the credited testimony of
employee Roberts and Respondent Ted Majeroni, noted above, to be adequate evi-
dence of Respondents ' knowledge of Shirley Johnson's union affiliation
Shortly after Johnson 's conversation with Kingsley , Supervisor Condela came to
Johnson and, after asking her if she wanted to work that evening, told her that she
was being discharged. When Johnson asked the reason for her discharge, Condela
replied, "I have a report that you're stealing coffee." This report, according to Ted
Majeroni, was from his brother, Respondent Lamar (Bob) Majeroni, to the effect
that Johnson-had been serving coffee without charging for it. Johnson finished
working the shift and has not been in Respondents ' employ since.
While the precise details leading up to Johnson 's dismissal are in conflict , the over-
all circumstances are clear. Thus Johnson testified that 3 weeks before her discharge
Bob Majeroni came to the Drive-In with another gentleman late in the evening and
ordered coffee Johnson went to the kitchen and with Supervisor Barbara Gifford's
approval 25 took a pot of coffee to the dining room without paying for it, as was
normally required of waitresses , stating to Gifford as she did so , "this pot of coffee
is for Bob." Whereupon she served Bob Majeroni and his friend with coffee without
charging them for it 26 This procedure undoubtedly met with Bob Majerom's dis-
approval, for several days later Supervisor Gifford instructed Johnson that hence-
forth she was to require a signed slip from Majeroni when he wished coffee, and that
upon presentation of the slip Gifford would give Johnson the coffee without re-
quiring the usual prepayment
Respondent Bob Majeroni confirmed Johnson's testimony that she had served him
coffee without charging him for it . He contradicts her testimony , however, on
numerous details. Thus he indicated that he was in a party of six, that he had ob-
served Johnson giving coffee away fttquently, and that the incident causing John-
son's discharge occurred no longer before the discharge than several days, and
could well have happened on the day of the discharge itself. Because Bob Majeroni
was uncertain as to the date of the occurrence , because his brother , Ted Maleroni,
to whom he reported the incident , was positive that the incident did not occur on the
day of the discharge , and because Bob Majeroni 's testimony as to the number in
his company conflicts with Johnson's account are all, in the main , irrelevant de-
tails , I shall accept Johnson 's account and reject so much of Bob Majeroni 's account
of the incident as conflicts with it. In any event , the versions vary only as to in-
cidental details, and one conclusive fact, the serving of free coffee , emerges from
both versions , and I so find.
Following her discharge , Shirley Johnson, unlike the discharged Richard Fletcher,
took no part in the picketing and pamphlet distribution which followed the layoff
of the first and third shifts on March 17.
4. Carol Miller
Carol Miller's employment with Respondents began in the summer of 1958. Since
that time she had been regularly employed as a carhop or waitress as conditions
would require.
When the interest in self-organization first developed among the employees it
was Miller, together with employees Pettit, Pluskota, and Colangelo, who arranged
the initial meeting with Union Representative Texter, and who thereafter were in-
strumental in soliciting the total of 16 employees (including themselves) whose union
affiliation was reported to Ted Majeroni. Indeed employee Miller's union prominence
was such that Respondents' supervisors admittedly referred to her and to her three
coorganizers as the "ringleaders " of the movement.27
Miller had been working on the late shift on Saturday, March 14, from 10 p m.
until 4 or 5 a.m. Sunday, March 15. It appears from the record that work schedules
were changed beginning on March 15 and that Miller was next scheduled to work
from 5 p.m. that day until 1 a.m. on Monday, March 16. As Miller had previously
been assigned day work on Sundays she was in doubt as to whether she should
report at 12 noon Sunday , as she had reported previously, or at 5 p in. as stated on
25 Gifford did not testify at the hearing
2" Under usual circumstances , it should be noted , the waitress would have charged the
customer for the food or drink for which she had already paid the cashier in the kitchen,
and she would have kept the money in accordance with Respondents' operating practice.
27 It is of significance to the issues presented by Miller ' s summary dismissal to note
that it was she who had been singled out together with employee Andyjewski by Super-
visor Trimmer at 3 a .m. on March 14 and forbidden to eat dinner together , or to converse
with each other, all contrary to previous practice.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the newly posted schedule. She assempted to reach Supervisor Condela by phone
to solve her dilemma but was unable to do so.
Miller testified that on previous Sundays during the winter when the weather was
bad, Condela had "left it up to [Miller] whether to come in noon hours or not."
Accordingly, Miller concluded that as she had worked until 5 a.m. that morning,
and as the weather was bad, she would come in at 5 p.m., the hour listed for her
on the schedule. When she set out for work she was delayed by a flat tire on her
car and was forced to call employee Pettit at her home and get a ride to work. At
the same time she phoned the Drive-In and left a message for Supervisor Barbara
Gifford to the effect that she would be delayed. Miller arrived at work at 5:20 p.m.
Shortly after her arrival at work she received a phone call from Supervisor Condela,
who wanted to know why Miller had failed to come in at noon. After Miller ex-
plained to her that the weather was bad and that she was not clear what to do
in the circumstance Condela informed her that another girl had been called in her
place and that she should take the next 2 working days off. On March 17 Miller
called Condela asking to go back to work and was told that she was discharged for
"not coming in." Miller thereafter joined the employees of the discontinued first
and third shifts in picketing Respondents' premises and distributing handbills.28
1. Respondents' refusal to reinstate
As business improved at the end of March 1959 the two discontinued work shifts
were reinstated, one on March 31, the other on April 10. Meanwhile the picketing
at the Driven ceased. As the need for more employees increased, additional hir-
ings were effected by Respondents, some through the medium of advertisements in
the local papers. At no time, however, did Respondents make any effort to recall
the employees who had engaged in the picketing or those whom it allegedly dis-
charged for cause. On the contrary, despite two formal written requests for rein-
statement filed with the Respondents, no offer of reinstatement has to the date of
the hearing herein been forthcoming.
J. Respondents' contentions and supporting arguments
Respondents deny that they were motivated by considerations of union activity
or affiliation when they terminated the employees involved in these proceedings.
Thus they contend that employees Johnson and Miller were discharged for cause,
the respective causes being the giving away of food and failure to report to work on
time. They further contend that employee Andyjewski was not discharged but
granted maternity leave; and that employee Fletcher was laid off for lack of work.
The remaining employees specified in the complaint-Pettit, Pluskota, and Col-
angelo-it is contended, were laid off as an incident to the economic curtailment of
business operations, but were refused reinstatement because, following their layoff,
they picketed the Respondents' premises and distributed to customers and passersby
the leaflet "The Majeroni Story," containing allegedly false, scurrilous, and libelous
matter, such conduct being designed to injure the Respondents and their business:
Specifically as to employees Andyjewski and Fletcher, whose initial termination was
allegedly of a temporary nature, Respondents contend that because they too par-
ticipated in the picketing and leaflet distribution they thereby lost their claim to the
reinstatement to which they might otherwise have been entitled.
Anart from their argument and defenses directed to specific conduct alleged by
the General Counsel to be violative of the Act and to the circumstances surrounding
individual instances of discrimination, Respondents raise two basic contentions
which they deem to be dispositive of the issues: (1) That the discontinuance of two
working shifts, resulting in an extensive layoff of employees, was motivated by
sound business consideration; and (2) that by circulating to Respondents' cus-
tomers and passersby a leaflet which Respondents hold to be devoid of truth and
substance, the employees involved have engaged in an activity unprotected by the
Act and are therefore not entitled to reinstatement.
21 The foregoing facts relating to employee Miller's employment tenure and her termi-
nation and to the circumstances surrounding the scheduling of her work are based upon
Miller's credited testimony corroborated in part by the testimony of employees Pluskota
and Colangelo.
Supervisor Condela did not testify on the subject of Miller's tardiness or her discharge
and Respondent Ted Majeroni made it clear in his testimony that whatever information
he possessed concerning Miller 's case came to him from Condela. It necessarily follows,
therefore, that Miller 's credited account of the incident stands unrefuted by competent,
contrary evidence.
HOME RESTAURANT DRIVE-IN 649
K. Analysis and concluding findings
In their brief and at the hearing Respondents insisted that the first and third work
shifts were discontinued on March 17 for reasons of business economy, after
considerable thought and on the advice of their accountants. Upon the credited
testimony of Respondent Ted Majeroni and his certified public accountant, Michael
Yarbenet, I am persuaded that Respondents' plea of economic justification for the
curtailment of the work shifts is well founded, and I so find. In so finding, however,
it is not my purpose to preclude further findings that there may, or may not, have
been other considerations present which could, or did, convert an essentially
economic determination into a situation fraught with discriminatory implications.
Suffice it to say, for the purposes of the issues present herein, that the curtailment
of the work shifts and the resulting layoffs had economic justification, but that in the
light of what transpired, as will be considered hereafter, the economic considerations
are of no primary significance to the final disposition of the issues presented. For
although it is well established that an employer is free to suspend operations for
business reasons which are not concerned with protected employee activity,29 never-
theless when there are also present reasons that are concerned with employee activity
protected by the Act then "the fact that there was an economic reason . . . ceases
to be controlling." 30
Having found as I have, therefore, that there were sound economic reasons for
a shutdown of the first and third work shifts it becomes incumbent upon the General
Counsel to show by credible evidence that there were also reasons for the shutdown
that are concerned with protected employee activity. Upon my evaluation of the
credited evidence before me, set forth in detail above, I am persuaded for reasons
which follow that the General Counsel has established the existence of motives that
are not only economic, but discriminatory as well.
1. Interference, restraint, and coercion
The findings set forth above establish a clear pattern of panic on the part of the
Respondents and their supervisors as soon as they learned of the unionization of
their employees. No sooner had employee Roberts sounded the warning on March
13 than both Respondents and two of their supervisors converged upon the Drive-In
in the middle of the night. This assemblage of the top echelon and the conduct
which followed on that evening and thereafter clearly manifest concern and appre-
hension over the coming of the Union. Thus both Ted and Bob Majeroni interro-
gated their employees as to their union membership, while their supervisors, Trimmer
and Condela, not only pursued a campaign of questioning, but by words and direc-
tions made it clear to the employees that union membership was poor job security.
For example, as found above, Supervisor Condela questioned employees Newcomb,
Miller, Gould, Irwin, and Pluskota concerning the Union and their respective in-
terests in it. During the same period Supervisor Trimmer engaged in like question-
ing, directing his particular attention to employees Colangelo, Miller, Scrivens, and
Fletcher.
As the interrogation of their employees progressed it was impressed upon them
that the Respondents intended to convey information rather than to seek it. Trim-
mer, for example, disclosed Respondents' active opposition to the Union by asking
Colangelo if she thought "Mr. Majeioni is going to let a Union come in here." And
he prophetically disclosed the method of Respondents' opposition by following his
interrogation of Fletcher with the remark, "You will probably lose your job over
this."
Whereas Trimmer's participation at this time was principally vocal, Supervisor
Condela took a more positive form of counteraction. Thus, it will be seen that
immediately upon her arrival at the Drive-In late on the night of March 13, she
put into rigid operation rules and procedures completely at variance with past prac-
tice, and not enforced prior to Respondents' awareness of the Union. As described
"Great Falls Employers' Council, Inc, et at., 123 NLRB 974
30 Calefornaa Footwear Co, 114 NLRB 765, 767, enfd. sub nom N.L R.B v. Jack Lewis
and Joe Levitan, d/b/a California Footwear Company & Trina Shoe Company, a Corpora-
tion, 246 F. 2d 886, 890 (C A. 9). In the course of its decision the Board stated
We can see no real difference between the case of an employer who decides to move
his plant to run away from his union rather than for economic reasons and an
employer , who, as here , moves his plant for economic reasons but decides to utilize
the move as an opportunity to get rid of the union. . . .
See also . N.L.R B. v. Whitin Machine Works , 204 F. 2d 883 , 885 (C.A. 1).
,650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in detail above, Condela, and through her instructions Trimmer, made a deter-
mined effort to prevent the employees from loafing on their early morning work
shift, and forbade them, contrary to usual practice, to talk with one another or to
have their dinner meals together. These incidents, it will be recalled, occurred on
the very evening on which Respondent Bob Majeroni solicited the signatures of
the same employees to a statement that they were not being abused or mistreated.3i
In addition, they were forbidden to sit down during slack periods, contrary to usual
practice; they were assigned an inordinate amount of maintenance and cleaning
assignments; and in the case of Fletcher's hamburger-molding and shrimp-cleaning
assignments, Respondents' reprisals against known union adherents reached a
ridiculous extreme. Upon consideration of the foregoing summary of incidents,
detailed in the preceding findings of fact, I am convinced that Respondents, in an
effort to forestall the progress of their employees' self-organization, questioned them
at length concerning it, threatened at least one of them, Fletcher, with discharge
for his part in it, engaged in a campaign of reprisal by imposing, under the guise of
revived rules, new and rigorous working conditions upon employees who, until
their union efforts became known to Respondents, had enjoyed a relaxed working
atmosphere during the late-hour shift of the winter season. Such conduct on the
part of an employer and its responsible supervisors, and so timed, most certainly
interferes with, restrains, and coerces employees in their guaranteed rights and no
citation of Board and court authority is necessary to a conclusion that in the respects
noted above Respondents have violated Section 8(a)(1) of the Act.
In addition to the foregoing categories of interference, restraint, and coercion
which I have found to be violative of Section 8(a)(1), the complaint also alleges
that Respondents violated that section by (1) Supervisors Condela's and Gifford's
offers to resign, "for the purpose of discouraging its employees from engaging in
union and concerted activities," and (2) Supervisor Trimmer's engaging in sur-
veillance of union activities.
With respect to the offers to resign, the evidence discloses that at an employee
meeting Condela agreed to resign if the employees voted against her handling of
her job. There is no evidence that Supervisor Gifford made a similar offer. Upon
review of pertinent legal precedent I am not persuaded that a supervisor who offers
to quit her job at the request of those whom she supervises thereby interferes with,
restrains, or coerces them in any respect whatever. Accordingly, I shall recommend
that the allegation in the complaint alleging such conduct to be a violation be
dismissed.
With respect to Edgar Trimmer's proposed attendance at a union meeting and
his visit to the union hall it should be noted that he did so after consulting with
employee Pettit (one of the "ringleaders") and being told by her that "it's a free
country " And it is to be further noted that during his visit to the union hall be
conversed with Union Representative Texter, an active figure in the employee
organization.
"Surveillance" in its accepted terminology may be described as an attempt at
discovery, clandestinely or by artifice. Trimmer's activity was open and aboveboard
and not only with full knowledge of all concerned but with their permission. As
this is not conduct which I consider to be proscribed by Section 8(a)(I) of the Act,
I shall recommend that the allegation in the complaint referring to such conduct
as a violation be dismissed
In all other respects I find that Respondents have violated Section 8(a)(1) as
alleged.
2. The March 17 layoff
As noted above, it is not sufficient defense of their action for Respondents to
prove to the satisfaction of all that the first and third shifts were closed down for
reasons of economy. Upon the evidence presented by the General Counsel and
found by me it is apparent that economy was but one of the reasons for the shutdown.
The other reason, and the one which by law becomes the controlling one, is Re-
spondent's antipathy towards the unionization of their employees and their deter-
mined effort to thwart it.
31 "This statement was signed after the unfair labor practice had been committed and
moreover the employees ' signatures on 'the . . . petition were obtained under circum-
stances which indicated a separate unfair labor practice in violation of Section 8(a)(1)
N L R B . v Habib Marcus r1/b /a Mai rag Bros , 272 F. 2d 253 (C A. 2).
In the absence of an allegation in the complaint that the procuring of such a state-
ment was unlawful I shall make no finding herein as to its legality.
HOME RESTAURANT DRIVE-IN 651
Respondents' intent in this respect is manifest by an entire chain of events that
,could logically have had no other purpose. Thus, as soon as Ted Majeroni learned
that employees had signed union cards management immediately established a full
alert. Employees were closely questioned about the Union and their connection
with it, some were asked to sign statements that they were well treated, others were
the victims of revived rules requiring silence and a degree of decorum not usually
imposed during the winter months and the early morning working hours In the
days that followed, employees were watched carefully, some were given unnecessary
or impossible tasks to perform, Fletcher was threatened with losing his job over the
Union and, together with Johnson, and Miller, did lose his job under circumstances
whose peculiarity will be considered in detail hereafter And finally, Supervisor
Trimmer confided in one of the employees that one of the reasons Fletcher was being
laid off was because his name was on a union card I have no alternative but to
conclude that Respondents, in an effort to impede the progress of the Union and
thwart the self-organization of the employees, seized upon the expedient of their
unprofitable operations and discontinued them not merely because they were un-
profitable but for the effect such action would have upon the union adherents
involved.32
Nor do I rely entirely on the circumstances preceding the layoff to reach the
conclusion I have reached. The manner in which it was effected and events occur-
ring thereafter lend further evidence of Respondents' discriminatory motive. Thus
it is significant that although every employee known by Respondents to have joined
the Union was terminated, those who did not join (Scrivens and List) or who
disavowed their membership (Roberts and Thompson) were not.33 And as further
evidence of the questionable purpose of the March 17 layoff is the classified adver-
tisements for carhops which appeared in The Erie Times for March 15, 16, and 17.
Upon all of the foregoing, therefore, I conclude and find that Respondents discon-
tinued their first and third shifts on March 17 because their employees had sought
to organize themselves and had joined the Union, thereby discriminating against them
in violation of Section 8(a) (3) of the Act. As such conduct likewise interferes with,
restrains, and coerces employees in the exercise of the statutory rights, I find that
by its conduct Respondents have also violated Section 8 (a) (1) of the Act.
3. The refusal to reinstate
Upon the application for reinstatement of those laid-off and discharged employees
who picketed Respondents' establishment and distributed the leaflets, "The Majeroni
Story," Respondents refused, stating that by their conduct, designed as it was to injure
Respondents and their business, the employees had lost their right to reinstatement.
Respondents misconceive the character of protection bestowed upon the concerted
activities of their employees and would impose rules of conduct not sanctioned by
past holdings of the Board and courts. Thus they equate with the distribution of
"The Majeroni Story" such proscribed conduct as the use of vile and obscene lan-
guage,34 the timing of a strike so as to cause maximum plant damage as would occur
in the failure to pour molten metal,35 the griping and complaining by employees at
work who are not engaged in concerted activities,36 the calling of a strike in violation
of the provisions of the War Labor Act,37 and circulating leaflets derogatory to an
32 "The abruptness of a discharge and its timing are persuasive evidence as to motiva-
tion " N L R B v Montgomery Ward &'Co , 242 F 2d 497, 502 (C A. 2). See also :
N L R B v Southern Desk Co, 246 F 2d 53, 54 (C A 4)
33 Indeed the only exception to this pattern, Carrie Ball, is further proof of the pattern's
existence, for although Ball did not join the Union and was laid off, she was recalled
within a week So it was with Scrivens who Ted Dlajeroni thought had signed a union
card until set straight by Supervisor Trimmer Scrivens, though laid off, was promptly
recalled and a determined effort was made to keep him busy
34 N L R B v united Steel Workers of America, C 10., Petitioner (Nutone, Inc., Inter-
venor), 243 F 2d 593 (C A., D C.), reversed in other respects 357 U S 357.
3'-NLRB. v Marshall Car Wheel and Foundry Co of Marshall, Texas, Inc , 218 F. 2d
409, 413, footnote 7 (CA 5)
36 N L R B. v. Office Towel Supply Company, Incorporated, 201 F. 2d 838 (C.A. 2),
wherein the court stated (at p. 841) that "Doubtless an employee's remark, which other-
wise would justify a discharge, may be made in a context of concerted activity with the
result ,that the'discharge of that employee for that remark is unlawful under the Act. . . .
37 Hamilton v. N.L.R B ( Kalamazoo Stationery Co ), 160 F. 2d 465 (C.A. 6).
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer under circumstances unconnected with a labor dispute.38 Lest there be any
doubt, "The Majeroni Story" was distributed as an adjunct of the picketing of
Respondents' Drive-In, a labor dispute protesting the termination of the employees on
the first and third shifts. The picketing was in every respect peaceful and orderly.
If then the picketing and the distribution are to be viewed as beyond the pale of the
Act's protection, it must be for one of the enumerated -reasons, namely, damage to
property, vilification, not in connection with concerted action, or contrary to law.
Obviously "The Majeroni Story" was none of these. If it were to be considered bad
at all, therefore, it would only be because it impugns the Respondents' product or
service or, according to Respondents, because it is untrue.
A reading of the leaflet clearly shows that it was Respondents' personnel policy
and the way they treated their help that was being complained of. Nowhere does
the leaflet refer to the quality of the food served, to the cleanliness of the facilities,
nor to the reputation of Respondents as restaurateurs, as distinct from parties to a
labor dispute. Accordingly, I viewed the appeal of the leaflet as the publicizing of
an existing labor dispute, separate and apart from the quality of the product or
service-a lawful appeal,39 and not a device to impugn the quality of Respondents'
goods and services which would be clearly without justification or protection.40
The truth of "The Majerom Story" and its sincerity is another question. The
record is replete, for example, with testimony of employees seeking to explain how
they were being "treated like stray animals." Much of the complaints of overwork
and rigid supervision is symptomatic of a class of young employees who would
rather be visiting the Drive-In than working at it. But whether these indignities
they were experiencing, many of them working at their first job, are real or fancied is
of no relevance. For were reasonableness to be the test of a legitimate grievance and
the prerequisite of concerted protest, few cases would ever be heard. It follows,
therefore, that objection to hard work or to rigid supervision is always in order.
Elsewhere in the record there is ample credited testimony, most of it by the
distributors of the leaflet themselves, that the low wages they complained of were
not the low wages they were receiving, and that their working conditions were not
nearly as harsh as described in "The Majeroni Story." However offensive to our
moral sensibilities the circulation of "The Majeroni Story" may be, it is well settled
that the truth or falsity of the statements in question are not the test of their protected
character.41 I am constrained to hold, therefore, that the extent to which the leaflet
may have strayed from reality has no bearing upon the protection to which it is
entitled as an adjunct to the picket-line activity.
In this context, moreover, I would insert a comment directed to the credence I
have placed upon the testimony of these employees. I believe that these people
subscribed to much of what was stated in "The Majeroni Story." Nonetheless, a
reading of their testimony, after observing them as witnesses, impresses me that
they have a most peculiar understanding of their working responsibilities that can
only be corrected by more work. I see nothing in their attitudes, however, that
would reflect upon their truthfulness. As neither ambition, commonsense, nor
sound judgment is the test of a truthful witness, I have credited these employees as
witnesses for the reasons previously stated (footnote 1).
In summary, therefore, because "The Majeroni Story" was devoted to an attack
not upon Respondents' product or service, but upon his labor policies, in the context
of a labor dispute, and because the truth or falsity of the statement is not deemed
to be relevant to the protected character of the leaflet, I find that its distribution was
a protected concerted activity and did not justify Respondents in their failure and
31N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers,
A.F.L. (Jefferson Standard Broadcasting Co.), 346 U.S. 464
Y. N.L R.B. v. Electronics Equipment Co. Inc., 194 F. 2d 650, 653-654 (C.A. 2) ;
The Hoover Company v. NL.R.B., 191 F. 2d 380, 390 (C.A. 6).
40 N L R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers,
A.FL. (Jefferson Standard Broadcasting Co.), supra; The Patterson-Sargent Co., 115
NLRB 1627.
41 The Patterson-Sargent Co , supra.
Compare the Board's stated policy with respect to campaign statements made prior to
representation elections :
The truth or falsity of such assertions was not peculiarly within the knowledge of
the Union. They could, in our opinion, reasonably be understood by the employees to
be campaign propaganda and not assertion of the fact . The Board does not attempt to
police this kind of campaign propaganda . [ Duro Fittings Company, 123 NLRB 1568.]
HOME RESTAURANT DRIVE-IN 653
refusal to reinstate those employees who engaged in the picketing and who dis-
tributed the leaflet . 42 Accordingly , I conclude and find that Respondents ' failure
and refusal to so reinstate the employees who picketed their establishment and
distributed "The Majeroni Story" constituted a further violation of Section 8(a)(3)
of the Act.
4. Sylvia Andyjewski
According to Respondent Ted Majeroni , Sylvia Andyjewski 's initial layoff was
for maternity reasons and but for her participation in the picketing and leaflet dis-
tribution she would have been eligible for continued employment when available
for work after the birth of her child.
While Respondents' defense for laying off Andyjewski might have been applicable
for a termination at the end of March, because that is when her maternity leave
would have started , it is no defense to a March 13 layoff.
In the consternation that arose on Friday night, March 13, over the sudden news
of unionization , Respondents and their supervisors did many things calculated to
suppress or at least obstruct the movement that was afoot . Some employees were
forced to eat alone, observe a ban of silence, or keep busy. Andyjewski was more
vulnerable, first because she was a "ringleader" and second because she had the
physical handicap of advanced pregnancy . Because of all of the circumstances
attendant upon Respondents' reaction to the Union and because of Andyjewski's
prominence in the Union, I am convinced, and find, that the reason of advanced
pregnancy given her by Condela for her immediate layoff was not the reason
but was merely a "cover" for Respondents' determination to check the union
campaign and punish its adherents. Accordingly I find that employee Andyjewski
was prematurely placed on maternity leave on Monday, March 13, instead of
March 31 (end of March) as previously agreed upon, because of her union affiliation
and her activity in its behalf, in violation of Section 8(a)(3) of the Act.
As I have previously found that Respondents' refusal to reinstate those who
engaged in the picketing of the premises and distributed leaflets constituted an
independent violation of Section 8(a)(3) I find that by failing and refusing to
reinstate Andyjewski, one of those who actively participated in the aforementioned
concerted activity, upon her availability for work after maternity leave Respondents
further discriminated against her in violation of Section 8(a) (3).
5. Richard Fletcher
According to Respondents, Richard Fletcher was laid off on March 17 for lack
of work. To the extent that all employees terminated March 17 were also laid off
for lack of work (i.e., the discontinuance of the first and third shifts) Fletcher's
termination would appear to be on no different footing. Respondents , however,
singled him out for a peculiar kind of "lack of work." Thus, as a cook, he replaced
Trimmer earlier in the year when Trimmer went to work full time in a steel mill.
When Trimmer returned to work full time at the Drive-In on March 1, Fletcher
was "in excess" and , according to Respondents , was let go "until business picked up."
Respondents' rationalization has several obvious flaws which cast doubt upon the
true reason for terminating an employee known to belong to the Union. In the
first place Fletcher was not terminated upon Trimmer's return, but 2 weeks later,
hence it could not have been the return of Trimmer that triggered the personnel
action. Secondly, Trimmer's return should have made no difference under any
circumstance, for he returned to be created a supervisor, and not as a cook who
would replace another cook. Actually what occurred was that at the height of
Respondents' campaign against the Union, after Fletcher had been told he would
probably lose his job for joining the Union, Fletcher lost his job "for lack of work."
And significantly, he was given his termination notice and the reason for it-lack
of work-as he was busily engaged in performing an unusually extensive work
42 In his opening statement at the hearing , Respondents' counsel urged as one of the
reasons for the refusal to reinstate these employees the fact that they carried on union
activities on company time. Although this defense had not been interposed by Respond-
ents in their answer to the complaint, relevant testimony was admitted at the hearing
Respondents have since abandoned this defense , Respondent Ted Majeroni having testified
that such activity was not a cause for his refusal to reinstate This disavowal is specifi-
cally referred to in Respondents' brief to me. Accordingly I deem waived for all defense
purposes any claim that the employees were refused reinstatement because they engaged
in union activity on company time
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assignment, the cleaning of 25 pounds of shrimp, to be followed by the molding of
enough hamburgers for days to come. Under all the circumstances, I am con-
vinced, and find, that lack of work'was not the real reason for Fletcher's layoff.
On the contrary I find that it was but an excuse on the part of Respondents to rid
themselves of another union adherent. I find that such action clearly discriminated
against Fletcher proscribed by the Act. 1 find that Respondents have thereby
violated Section 8(a)(3) of the Act.
Because I have found that Respondents' failure and refusal to reinstate those who
engaged in picketing and distributing "The Majeroni Story" constitute a violation of
Section 8(a)(3), it necessarily follows, inasmuch as Richard Fletcher was among
this group, that Respondents, by failing and refusing to reinstate him, have further
discriminated against him in violation of Section 8(a)(3).
6 Shirley Johnson
Respondents insist that Shirley Johnson was discharged for giving away food and
not because she signed a union authorization card.
Respondents' method of dispensing food and coffee to the customers by a pre-
purchase arrangement leaves no doubt but that any food or coffee that a waitress
gives away has already been paid for by her and, technically, belong to her It is
not for us, however, to criticize Respondents' stated objection to a waitress' giving
away food and drink in its establishment, even food and drink she has paid for
They are entitled to establish rules of conduct for their employees. Nor is it within
our province to suggest better, or indeed more sensible, methods of i unnmg a busi-
ness. But according to Johnson this practice she had indulged in appears to have
been a usual one and no one had previously complained Accoidingly, I cannot
credit Respondent Lamar (Bob) Majerom's testimony to the effect that he had
noticed with surprise that Johnson was giving away coffee on numerous occasions and
that the last incident when she served him and his friends free coffee, was the one
that prompted his request that she be fired. On the contrary, I accept Johnson's
version that sometime previous to the date of her discharge she did get a pot of
coffee from the kitchen without paying, and that when Majerom noticed it he ad-
vised Supervisor Gifford of the practice and it was corrected. This then, in my
estimation, was the sole incident seized upon by Majeroni as a reason to recommend
Johnson's discharge
Had such a discharge occurred at any other time it would be plausible, however
harsh But coming as it did, immediately upon the heels of Respondents' knowledge
of Johnson's union affiliation and in the midst of the midnight consternation over the
Union, I am presuaded that the reason assigned was not the true one for Johnson's
dismissal. On the contrary, it is my opinion, based upon all of the circumstances
herein, that when they learned of Johnson's union affiliation, Respondents under-
took to impress upon her the folly of her ways, as they did by other and sundry
means upon other employees working on the late shift on March 13. The most
convenient weapon available was to brand the offending employee as a common
thief. Because I deem the assigned reason to be but a pretext for Respondents'
real reason for discharging Johnson I reject it On the contrary, I find that Shirley
Johnson was discharged because she joined the Union, a clear discrimination viola-
tive of Section 8(a) (3) of the Act.
7. Carol Miller
Carol Miller's decision to come to work at 5 p in on Sunday, March 15, instead
of at the customary 12 noon may well have been a faulty judgment on her part based
upon a misunderstanding of her scheduling, or a poor guess as to weather conditions.
Under normal circumstances, Respondents would have a right to handle the case as
they saw fit, and if they saw fit, discharge her. But the circumstances surrounding
Miller's discharge were not normal Labor relations, by March 15, were in a
frenzy; so much so that a general employee meeting had been called for that evening.
Antipathy toward the Union had been displayed in a variety of ways, and Carol
Miller had already been questioned closely concerning her union affiliation and had
been forbidden to talk with her fellow employees. Under such circumstances, I am
convinced, and find, that Miller's failure to report to work at noon on March 15 was
not the reason for her discharge but was, in fact, an excuse seized upon by Respond-
ents to rid themselves of a known union protagonist. Because Respondents thus
discriminated against Miller for reasons of a union activity I find they have thereby
violated Section 8(a) (3) of the Act.
HOME RESTAURANT DRIVE-IN 655
I have already found that Respondents unlawfully failed and refused to reinstate
those employees who picketed the Drive-In and distributed leaflets in the process. As
Carol Miller was among this group and as Respondents specifically refused to rein-
state her for the reasons state, I find that they have violated Section 8(a)(3) as to
Miller in this additional respect
V. THE EFFECT OF THE -UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section IV, above, occurring in con-
nection with the operations of the Respondents described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
VI. THE REMEDY
It has been found that the Respondents, by discharging and refusing to reinstate
Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley
Johnson, Richard Fletcher, and Carol Miller discriminated against them in respect
to their tenure of employment in violation of Section 8(a)(3) of the Act. I shall,
therefore, recommend that the Respondents cease and desist therefrom and from
infringing in any other manner upon the rights of employees guaranteed in Section 7
of the Act.43 I shall recommend that the Respondents offer to the aforementioned
employees immediate and full reinstatement to their former or substantially equi-
valent positions 44 without prejudice to their seniority or other rights and privileges.
I shall also recommend that the Respondents make whole each of the aforemen-
tioned employees for any loss of earnings they may have suffered because of the dis-
crimination against them, by payment of a sum of money equal to the amount each
normally would have earned as wages from the date of his discrimination to the date
of the offer of reinstatement, less his earnings during said period, with backpay com-
puted in the customary manner 45 I shall further recommend that the Board order
the Respondents to preserve and make available to the Board, upon request, payroll
and other records to facilitate the checking of the amount of backpay due and the
rights of employment
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The operations of Respondents occur in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 ( 5) of the
Act.
3. By discriminating in regard to the tenure of employment of Joanne Pettit,
Shirley Colangelo , Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard
Fletcher, and Carol Miller the Respondents have engaged in and are engaging in
unfair labor practices , within the meaning of Section 8 (a)(3) of the Act.
4. By the foregoing conduct, and by threatening its employees with loss of em-
ployment if they joined the Union , by interrogating coercively its employees with
respect to their union affiliation and their activities in its behalf , by imposing rigorous
working conditions upon its employees and enforcing revived working rules to dis-
courage their interest and membership in the Union , the Respondents have interfered
with, restrained , and coerced their employees in the exercise of their eights guaran-
teed by Section 7 of the Act and thereby have engaged in and are engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices having occurred in connection with the,
operation of Respondents ' business as set forth in section 1, above, have a close,
intimate , and substantial relation to trade , traffic , and commerce among the several
States and substantially affect commerce within the meaning of Section 2(6) and (7)
of the Act.
[Recommendations omitted from publication I
13 1\1 L R B v Lamar Creamery Co, 246 F 2d 8 (C A 5)
44 The Chase National Bank of the City of l eiv York, San Jima, Puerto Rico, Branch,
65 NLRB 827
mF. TV. Woolworth Company, 90 NLRB 289.