Hot Shoppes, Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1961

133 N.L.R.B. 3 (N.L.R.B. 1961)

HOT SHOPPES,.INC. 3
Union's majority status among the employees in the unit petitioned
for and does not seek an election in such a unit. We shall therefore
dismiss the petition in Case No. 19-RM-321.
We also agree, however, with the Employer's contention that the
employees in the disputed classifications may not now be added to
the existing bargaining unit without a self-determination election.'
It is clear from the bargaining history that these employees have been
unrepresented and excluded from the bargaining unit, and many of
them have been so excluded since the very beginning of the bargaining
relationship in 1952. Accordingly, we shall deny the Union's motion
for clarification.'
As we do not have before us any petition for an election among the
disputed, unrepresented employees, and in view of our determination
that these employees may not be added to the existing unit without
such an election, we find it unnecessary at this time to rule on the
Employer's further contention that the alleged technical employees
could not properly be included in any production and maintenance
unit because of their technical status.
[The Board denied the request of Eastern Idaho Metal Trades
Council , AFL-CIO, for clarification of certification.]
[The Board dismissed the petition of Westinghouse Electric Corpo-
ration in Case No. 19-RM-321.]
CHAIRMAN MCCULLOCH and MEMBER LEEDOM took no part in the
consideration of the above Second Supplemental Decision and Order.
s See Ethyl Corporation, 118 NLRB 1369, 1370.
'FWD Corporation, 131 NLRB 404; and Ethyl Corporation , abed footnote 2
Hot Shoppes , Inc. and Local 71, Transportation Terminal , Inter-
plant and Commissary Food Employees Union , AFL-CIO,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO
Hot Shoppes , Inc. and National Caterers of New York, Inc. and
Local 71, Transportation Terminal , Interplant and Commis-
sary Food Employees Union , AFL-CIO
Hot Shoppes, Inc. and National Caterers of New York, Inc. and
Local 295, International Brotherhood of Teamsters , Chauf•
feurs, Warehousemen and Helpers of America . Cases Nos
2-CA-7f383, 2-CA-7349, and 2-CA-7352. September 7, 1961
DECISION AND ORDER
On February 27, 1961, Trial Examiner William F. Scharnikow
issued his Intermediate Report in the above-entitled proceeding, find-
133 NLRB No. 8.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing 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 In-
termediate Report attached hereto. The Trial Examiner also found
that the Respondents did not engage in certain other unfair labor
practices and recommended that the complaints be dismissed with
respect thereto.' Thereafter the Respondents filed exceptions to the
Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the 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, Hot Shoppes,
Inc., and National Caterers of New York, Inc., New York, New York,
their officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in - Local 71, Transportation Ter-
minal , Interplant and Commissary Food Employees Union, AFL-
CIO, in Local 295, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, in District 65, of the
Retail, Wholesale, and Department Store Union, AFL-CIO, or in
any other labor organization, by discriminating against their em-
ployees in regard to their hire or tenure of employment, or any term
or condition of their employment.
(b) In any manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist any of the above-mentioned labor
organizations, or any other labor organization, to bargain collectively
'The Trial Examiner recommended that Case No. 2-CA-7283 be dismissed in its en-
tirety and that certain portions of Cases Nos . 2-CA-7349 and 2-CA-7352 be dismissed.
In the absence of exceptions to these recommended dismissals , we adopt the substantive
findings of the Trial Examiner as to these matters, pro forma
2 With reference to footnote 10 of the Intermediate Report, by order dated December 7,
1960, the Executive Secretary , upon the direction of the Board, deleted the determination
in National Caterers of New York , Inc. (Cases Nos. 2-RC-10870 , 2-RC-10871, 2-RC-
10872), 129 NLRB 699, footnote 3, concerning the supervisory status of Perdomo and
Santiago, so that their status may be finally determined in the instant proceeding.
HOT SHOPPES, INC. 5
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of mutual aid or protection as
guaranteed in Section 7 of the Act, and 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 organization as a con-
dition 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 Rene Sardinas, Jose Munez (also known as Jose
Lopez), Willie Cintron, and Luciano Ramos immediate and full rein-
statement to their former or substantially equivalent jobs, without
prejudice to any rights and privileges previously enjoyed by them, and
make each of them whole for any loss of pay he may have suffered by
reason of Respondents' discrimination against him, in the manner set
forth in the section of the Intermediate Report entitled "The Remedy."
(b) Upon individual application, offer to each of the commissary
employees who engaged in the strike which began on April 25, 1960,
and who have not in the meantime returned to work or refused an
unconditional offer of reinstatement, immediate and full reinstatement
to his former or substantially equivalent job, with all previous rights
and privileges ; and also, should the Respondents reject any such appli-
cation, make each of the rejected applicants whole for any loss of pay
which he may suffer by reason of the rejection of his application, in
the manner and to the extent set forth in the section of the Intermedi-
ate Report entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due and
the right of reinstatement under the terms of the Order herein.
(d) Post at their commissary in New York, New York, copies of
the notice attached to the Intermediate Report marked "Appendix
A." 3 Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by each of the
Respondents or their respective representatives, be posted by the Re-
spondents immediately upon receipt thereof, and be maintained by
them for 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
'This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order " 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 "
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reasonable steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint in Case No. 2-CA-7283
be dismissed in its entirety, and that the complaints in Cases Nos.
2-CA-7349 and 2-CA-7352 be dismissed insofar as they allege that the
Respondents have violated the Act otherwise than as found herein.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Following the issuance by the Regional Director for the Second Region of a com-
plaint in Case No. 2-CA-7283 on May 18 , 1960 , and a consolidated complaint in
Cases Nos. 2-CA-7349 and 2-CA-7352 on June 2, 1960, the Regional Director on
June 7, 1960 , issued a further order consolidating all three cases for hearing and
disposition . There having been due service upon the Respondents of the basic charges
and amended charges, and of the aforesaid complaint and consolidated complaint,
and the Respondents having filed answers to the material allegations against them, a
hearing was held in the consolidated proceedings upon due notice, in New York City,
from June 29 to July 8, 1960, inclusive , before the Trial Examiner duly designated by
the Chief Trial Examiner.
The complaint in Case No . 2-CA-7283, alleges that the Respondent , Hot Shoppes,
Inc. (hereinafter sometimes referred to simply as the Respondent ), committed unfair
labor practices affecting commerce within the meaning of Sections 8(a) (1) and (3)
and 2 ( 6) and ( 7) of the National Labor Relations Act, as amended ( 61 Stat. 136,
73 Stat. 519), with respect to its restaurant , cafeteria, and catering employees at its
place of business at Idlewild International Airport in New York City . In substance„
the complaint alleges:
(a) That on or about February 18, 1960 , the Respondent , through its dining room
manager and supervisor , Florence Baker, violated Section 8(a)(1) of the Act by
interrogating employees concerning their membership in, activities on behalf of,
and sympathy with Local 71 of an AFL-CIO Food Employees Union ,' by warning
them against joining , supporting , assisting , or remaining members of Local 71, and by
threatening them with discharge or other reprisal if they disregarded this warning.
(b) That, in violation of Section 8(a)(3) and ( 1) of the Act, the Respondent dis-
charged employee Theresa Lynch on or about March 10, 1960, and has since failed'
and refused to reinstate her, because she joined and assisted Local 71 and engaged
in other concerted activities for the purpose of collective bargaining and mutual aid
and protection.
The consolidated complaint in Cases Nos. 2-CA-7349 and 2-CA-7352 alleges,,
in substance , that the Respondent Hot Shoppes and the Respondent National
Caterers of New York, Inc. (hereinafter sometimes collectively referred to as the
Respondents ), committed unfair labor practices affecting commerce within the
meaning of Sections 8(a)(1) and ( 3) and 2(6) and (7) of the Act, in the course of
their joint operation of a New York City commissary facility, at and from which
they prepare, sell , and distribute food and related products to various airlines
engaged in commerce . In general , the consolidated complaint charges the Re-
spondents with interfering with their commissary employees ' joining and supporting
not only Local 71 but also District 65 of the Retail, Wholesale, and Department
Store Union , AFL-CIO (hereinafter called District 65), and Local 295, Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of
America (hereinafter called Local 295). More particularly the consolidated com-
plaint alleges:
(a) That the Respondents , through various named representatives and supervisors,
violated Section 8(a)( I) of the Act by interrogating their employees concerning their
membership in, activities on behalf of , and sympathy with these Unions. by threatening
the employees with discharge and other reprisals if they assisted , supported , joined,
1 Local 71, Transportation Terminal, Interplant and Commissary Food Employees Union,
AFL-CIO, Hotel and Restaurant Employes and Bartenders International Union , AFL-CIO.
HOT SHOPPES, INC. ^T
or remained members of these Unions, by promising them economic and other bene-
fits if they refrained, and by keeping under surveillance the meeting places and the
activities of the employees in connection with their support of these Unions.
(b) That, in violation of Section 8(a) (3) and (1) of the Act, the Respondent laid
off five employees on April 23, 1960, and a sixth employee on April 25, 1960, and has
since refused to reinstate them, because they joined and assisted Local 71 and Local
295 and engaged in other concerted activities for the purpose of collective bargaining
and other mutual aid and protection.
(c) That the commissary employees have engaged in, and are still engaged in, a
strike or concerted work stoppage because of the Respondents' unfair labor practices.
In their respective answers to the pertinent allegations of the complaint in Case
No 2-CA-7283 and the consolidated complaint in Cases Nos. 2-CA-7349 and
2-CA-7352, the Respondents have generally denied each and every allegation
charging them with an act of unfair labor practice. In its answer to the com-
plaint in Case No. 2-CA-7283, the Respondent Hot Shoppes also asserts that
Theresa Lynch was discharged for cause on or about March 10, 1960, and has failed
to request reinstatement. In their joint answer to the consolidated complaint in
Cases Nos. 2-CA-7349 and 2-CA-7352, the Respondents also assert that the em-
ployees named in the consolidated complaint as having been discriminatorily laid
off, were in fact laid off due to a decline in business.
At the hearing held from June 29 to July 8, 1960, inclusive, the General Counsel
and the Respondents appeared by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bearing
upon the issues. At the conclusion of the hearing, the General Counsel submitted
an oral argument upon the issues but counsel for the Respondents waived oral
argument. Since the close of the hearing, I have received briefs from the General
Counsel and counsel for the Respondent.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THE RESPONDENTS 2
The Respondent, Hot Shoppes, Inc., a Delaware corporation with its principal
office and place of business in Washington, D.C., is engaged in the preparation, sale,
and distribution of food and the operation of restaurants in Washington, D.C., and
various States of the United States. One of its restaurants is located at the Eastern
Air Lines Terminal, Idlewild International Airport, in New York City. In its overall
operations for the year preceding the issuance of the complaints, Hot Shoppes' gross
income exceeded $500,000 and the value of meat, dairy products, and other ma-
terials which it purchased and had shipped directly from their origin to its places of
business in other States, was more than $50,000. For that matter, it anticipated that,
in its operation of its Idlewild Restaurant alone , it would exceed these annual figures.
Accordingly, I find that, in the operation of its Idlewild Restaurant as well as in its
overall operations, the Respondent Hot Shoppes is engaged in a business affecting
commerce within the meaning of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in Case No. 2-CA-7283 involving the Respondent Hot
Shoppes' employees at its Idlewild Restaurant.
The Respondent Hot Shoppes, Inc., through subsidiaries, is also involved in the
operation of a commissary which is located in Jamaica, New York City, and which
prepares and supplies meals to various airlines at the Idlewild International Airport,
for service to the airlines' passengers during flight. During the year preceding the
issuance of the complaints, the commissary sold and delivered food of a value of
more than $50,000 to Eastern Air Lines, Braniff International Airways, Delta Air
Lines, National Airlines, and Capital Airlines, each of which is an instrumentality
and channel of commerce with a gross annual revenue of more than $50,000.
The commissary is directly operated by the Respondent, National Caterers of
New York, Inc., hereinafter referred to as the Respondent National. The Respond-
ent National is a wholly owned subsidiary of Hot Shoppes Caterers, Inc., which, in
turn is a wholly owned subsidiary of the Respondent Hot Shoppes. Like the Re-
spondent Hot Shoppes, both subsidiaries are Delaware corporations. The Respond-
ent Hot Shoppes, the Respondent National, and Hot Shoppes Caterers, Inc., have
common officers, directors, and operators through whom they conduct the commis-
2 For the most part, the findings made in this section are based upon allegations in the
complaints which are not denied by the Respondents in their answers and which are
therefore deemed to be admitted in accordance with Section 102 20 of the Board's Rules
and Regulations, Series 8
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary as a common , integrated business enterprise , and formulate and administer a
common labor policy affecting the employees of all three companies , including the
commissary employees.
I conclude from the above facts that , the Respondents Hot Shoppes and National,
are common employers of the commissary employees ; that, in operating the com-
missary they are engaged in a business affecting commerce within the meaning of
the Act; and that it will effectuate the policies of the Act to assert jurisdiction in
Cases Nos. 2-CA-7349 and 2-CA-7352 with respect to the commissary employees.
II. THE LABOR ORGANIZATIONS INVOLVED
It is admitted, and I find, that the following are labor organizations within the
meaning of the Act:
(1) Local 71, Transportation Terminal, Interplant and Commissary Food Em-
ployees Union, AFL-CIO, Hotel and Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO.
(2) Local 295, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America.
(3) District 65, of the Retail , Wholesale, and Department Store Union, AFL-CIO.
In. THE UNFAIR LABOR PRACTICES
A. The restaurant case (Case No. 2-CA-7283)
1. The general setting and the principal characters and issues in the case
The Respondent Hot Shoppes has operated its restaurant in the Eastern Air Lines
Terminal Building at Idlewild International Airport since sometime in 1959. Its
restaurant facilities consist of a public coffeeshop, dining room, and cocktail lounge,
and also an employees' cafeteria for its own employees and other employees working
at the terminal. The public dining room was apparently the last of these units to be
put into operation and was opened in October 1959.
In the end of January or the beginning of February 1960, Organizer Matthew
Pietrzak of Local 71 began organizing the employees at the Idlewild restaurant. For
several months he made frequent visits to the restaurant, standing outside and speak-
ing to employees as they went to and from work, and enlisting the aid of some of
them in securing the signatures of other employees to Local 71's membership appli-
cations. He also went into the coffeeshop and the employees' cafeteria at times to
learn who the employees were.
Among the employees who signed Local 71's membership applications and helped
Pietrzak by securing the signed applications of other employees, was Waitress Theresa
Lynch, the employee alleged by the complaint to have been discriminatorily dis-
charged for these activities on March 10, 1960. Lynch was one of the waitresses
hired for the dining room when it was opened in October 1959. Although the
other dining room waitresses worked overlapping 8-hour shifts in the dining room,
Lynch at first worked in the dining room from 5 until 9 p.m., the original closing
time for the dining room. But, within 2 weeks after she was hired, she was given an
additional assignment, on 4 of her 5 working days each week, as a waitress in the
cocktail lounge from 9 p.m. until the lounge closed at midnight. In February 1960,
when the closing times of the dining room and the lounge were extended to 10 p.m.
and 1 a.m., respectively, Lynch retained her dining room working hours of 5 to
9 p.m., but had her working time in the lounge extended to the new closing time of
1 a.m. Finally on March 6, 1960, Dining Room Manager Florence Baker posted a
new working schedule for the dining room waitresses, according to which Lynch
was to serve in the dining room until 10 p.m., the closing time, before reporting to
the lounge.3 As will later appear, the significance of the division of Lynch's working
time between the restaurant and the cocktail lounge, lay in the difficulty of her
completing the work required of her in the dining room, having her evening meal,
and then reporting on time in the cocktail lounge, where the tips were admittedly
greater than in the dining room.
Early in February 1960, Pietrzak's organizational activities among the employees
became known to Restaurant Manager John W. McCormick and Dining Room
Manager Baker. Manager McCormick also admitted that he "heard . . . from
s This finding Is based upon Baker's testimony. According to Lynch's testimony, she
did not see the posting until the following day, and the new schedule not only extended
her working time in the dining room until closing time at 10 p in , but also deprived her
of 2 of her 4 nights a week as waitress in the cocktail lounge
HOT SHOPPES, INC. 9
various people in management , that Theresa Lynch had spent her evenings calling
other waitresses at home and talking them into joining the Union ." But Baker not
only denied knowing that Lynch had joined and was soliciting memberships for
Local 71, but testified that in a conversation with Lynch, Lynch said she was not
interested in the Union.
On February 8, 1960, McCormick had been made manager of the restaurant and
was thus in overall charge of the coffeeshop , dining room , cocktail lounge, and the
employees' cafeteria , with authority to hire and discharge employees . Baker had
been made dining room manager when the dining room was opened in October 1959.
As dining room manager, she was responsible for the staffing of, and scheduling of,
waitresses in the coffeeshop , the dining room , and the lounge. Although she had no
authority to hire or discharge waitresses , she did have the authority to recommend
their discharge by the restaurant manager. At first, before the newly opened dining
room became very busy, Baker spent most of her time in the coffeeshop. As her
subordinates , a maitre d'hotel and a dining room captain greeted and seated guests
in the dining room , and a bar manager was in charge of the lounge. But, by the
middle of January 1960, the Respondent had dispensed with the services of the
maitre and the captain , and Baker began spending all her time in the dining room,
under instructions from Respondent 's Manager Tong ( McCormick 's predecessor) to
see that "our Company policies were better instituted" and that the waitresses' "side
work and stations" were properly taken care of, and also to stop "preferences shown
to certain waitresses."
In the middle of March 1960, McCormick told Organizer Pietrzak that he was not
to come into the employees ' cafeteria because it was not open to the public and, on
the same day and in Pietrzak's hearing , he also told "Chico ," a chef, that he was not
to leave the employees' cafeteria during "coffee breaks." Although McCormick thus
made Pietrzak's access to the Respondent's employees more difficult than it had been,
the General Counsel does not contend that McCormick thereby improperly inter-
fered with the employees' organizational activities and violated the Act? Instead,
he relies upon the incident merely to show opposition on the part of the Respondent
to the unionization of its employees and to support the direct evidence of unfair
labor practices otherwise committed by the Respondent.
According to the General Counsel, the Respondent committed unfair labor prac-
tices by various acts of Manager McCormick and Dining Room Manager Baker,
directly involving and affecting the waitresses who worked in the dining room and
the cocktail lounge under Baker . Specifically , the General Counsel contends that
(1) the Respondent violated Section 8 (a) (1) of the Act through Baker 's question-
ing the waitresses , including Theresa Lynch and Rose Lavragatto , concerning their
interest in Local 71 and her threatening Lynch with discharge if she joined the
Local; and (2) the Respondent violated Section 8(a)(1) and (3) of the Act by
McCormick's and Baker 's joint action in discharging Lynch on March 10, 1960,
because of Lynch's known activity on behalf of Local 71.
Through its witnesses the Respondent denies all of this and asserts that Lynch
was discharged , not because of her union activities , but for cause , i.e., for refusal to
serve guests assigned to her by Baker in the dining room, for leaving the dining room
without permission , for behavior that caused guests to leave the dining room, and
for refusal to work the hours scheduled for her by Baker with Manager McCormick's
approval.
Baker and Lynch were the principal , opposing witnesses , and their testimony con-
flicted on almost every material point in the case . A fair appraisal of these conflicts
depends, not only upon a consideration of the details of these conflicts in the context
provided by the rest of the cold record , but also upon a recognition of the sharp,
natural clash in their personalities , which was apparent to me during the hearing.
For these reasons, the conflicts are not susceptible of individual , piecemeal resolution
but can properly be resolved only after , and in the light of, a summation of the
substance of all the evidence.
2. Evidence as to interrogation and threat of discharge
Theresa Lynch signed a Local 71 membership application for Organizer Pietrzak
on February 4, 1960 , and thereafter , along with Charlotte Schievlen (another
waitress ) and Edward Bullis (a bartender ), solicited membership applications from
the Respondent 's other employees . Lynch succeeded in signing up five waitresses
on the restaurant premises and gave their signed cards to Pietrzak.
Organizer Pietrzak 's contacts with Lynch were made every afternoon outside the
restaurant as she came to work . According to their testimony , during one of their
* No such claim is made by the General Counsel either in his complaint or in his brief
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings in the end of February or the beginning of March, Dining Room Manager
Baker passed within 10 or 15 yards and looked directly at them. For further indica-
tion that Baker knew of her activity for Local 71, Lynch also testified that Baker saw
her sign up two of the dining room waitresses, Rose Lavragatto and Mary Eberle, in
the kitchen of the restaurant toward the end of February. But Baker denied seeing
Lynch on either of these occasions or, for that matter, having any knowledge that
Lynch was interested in joining or working on behalf of Local 71. She also specifi-
cally denied that she ever saw Lynch passing out union cards to any of the employees.
It is undisputed, however, that Baker did speak with Waitresses Lynch and Lav-
ragatto about Local 71. From Waitress Lavragatto's uncontradicted testimony, it
appears that, one afternoon shortly after she had signed a Local 71 membership ap-
plication for Lynch, Baker asked her whether she knew "there were union men around
the place," and also whether they had "approached" Lavragatto. Lavragatto said
they had not spoken to her but that "someone in the place" did speak to her about it.
Baker said, "I think I know who it is," but added that the employees "were all
free to do what . . . [they] wanted," and that she could understand that, after "a
bad day," the employees might be influenced by union promises. Lavragatto then
said that she was indifferent about joining the Umon, that all she was interested in
was keeping her job, but that, as a "crowd follower," she would join "if the place
became union."
Although Baker and Lynch agreed in their testimony that they had a conversation
about Local 71 several weeks before Lynch was discharged, they presented different
versions of the conversation.
Baker testified merely that Lynch told her that she and the other girls were talking
about joining the Union; that Lynch said "she understood that the girls, some of
them, were joining, . [but] that she didn't feel she cared one way or another,
[because] she had a nice job . . ."; and that Baker thereupon said, "That was good."
According to Baker, this was the entire conversation and the only conversation be-
tween them in which unionism was discussed.
Lynch, on the other hand, testified that Baker said that, as she had told the other
waitresses, they were free to do what they wanted about joining the Union; that Baker
then asked whether Lynch had spoken to the other girls; that Baker said, "I know
you have, and I know you have spoken with them because I have seen them talking
with the man from the Union"; that, although Lynch admitted having seen Organ-
izer Pietrzak, she told Baker that she had not "done anything one way or the other
about it"; and that Baker told Lynch "that Hot Shoppes would never unionize" so
that, if she valued her job, she "should stop any connections with the union." 5
3. Evidence concerning Theresa Lynch's discharge
On March 10, 1960, the Respondent discharged Lynch. The General Counsel
contends that her services had been highly satisfactory to the Respondent and that
she was discharged solely because she had supported and assisted Local 71. The
Respondent contends that Lynch was discharged because, having previously objected
to serving late parties in the dining room and being thereby prevented from reporting
in the cocktail lounge at 9 o'clock, she finally refused (in the hearing of the guests)
to serve an evening party assigned to her in the dining room by Dining Room Man-
ager Baker on Sunday, March 6, and then, on March 10, also refused to serve regu-
larly in the dining room until it closed at 10 p.m. under the new waitress-schedule
just posted by Baker with Manager McCormick's approval. On the factual issues
raised by these contentions, Lynch and Baker were again the principal, opposing wit-
nesses, although pertinent evidence was also given by Manager McCormick and sev-
eral of the waitresses.
With respect to her services generally, Lynch testified not only that there was
never any criticism of her work by Baker or Manager McCormick but that she
In a pretrial affidavit given to the General Counsel and admitted in evidence on the
offer of the Respondent to show possible, prior inconsistent statements, Lynch described
this final statement of Baker, as follows :
She [Baker] said that Hot Shoppes didn't need a union, and that as far as my
jot; was concerned it would be better to stop doing this. . . .
I find no inconsistency in the substance of Lynch's pretrial statement and that of her
testimony at the hearing. In each instance, the statement attributed by her to, Baker
amounted to a threat of possible discharge if she should thereafter support Local 71
The substance being the same, the difference between Lynch's paraphrases of Baker's re-
marks in her pretrial affidavit and in her testimony at the hearing, seems to me to be of
no significance. , ,
HOT SHOPPES, INC. 11
had been complimented by both of them. She also testified that on February 22,
1960 (just 10 days before her discharge), she had received a 5-cent per hour wage
increase on the basis of a periodic job performance rating which had been given to
her by Baker and which Baker herself said was "excellent." The job performance
rating was received in evidence . In filling out the form, Baker had commented gen-
erally upon Lynch 's "Excellent appearance and cheerful attitude with all guests,"
and had specifically rated Lynch as "Outstanding" with respect to "Housekeeping
and appearance," as "Above average" with respect to "Attitudes" such as "Co-
operativeness," getting along with others, "Cheerfulness, etc.," and finally as "Aver-
age" with respect to the rest of the rated factors: "Quality . . . [and] quantity of
work," "Dependability," "Initiative," "Job knowledge," and "Judgment."
Lynch admitted that, in order to earn a maximum in tips, it was to her advantage
to report as early as possible in the cocktail lounge. But she denied that this affected
the performance of her work in the dining room or that she ever complained about
being detained in the dining room to finish her work there. According to her testi-
mony, she never refused to serve guests assigned to her in the dining room , and, be-
fore leaving the dining room to go to the lounge, she always had set up her place
and cleaned her station except that sometimes she "might not have put silverware or
glassware on tables . . . if there were none in the kitchen ready and washed and
cleaned." She also denied that she had ever asked that she be given no dining room
assignments after 8 or 8:30 in the evening, explaining that neither Dining Room
Manager Baker nor the maitre nor the dining room captain ever assigned dining
room parties to her "towards 9 o'clock." But she also testified that handling her last
dining room party -and changing her uniform frequently delayed her reporting to the
lounge so that on 4 out of 5 nights she was late. According to her testimony, she
"discussed" this with Baker (although she did not "complain") and Baker suggested
that one of the coffeeshop waitresses might relieve her at 9 o'clock.
In her testimony, Baker described Lynch as "a nice waitress, a fairly clean, very
nice looking waitress" whose work Baker had at times complimented, and whose
service she wanted to keep . According to Baker's testimony , aside from an instance
early in February when she warned Lynch against speaking to guests "more inti-
mately" than Baker wanted or the Respondent permitted, the only serious difficulties
between the two women arose out of the division of Lynch's working time between
the dining room and the cocktail lounge.
Baker testified that, in the middle of January 1960, the maitre and the dining room
captain had left the Respondent's employ, she was told by Manager Tong to stop
"preferences shown" by the maitre and the captain "to certain waitresses," including
Lynch. Pursuant to these instructions (Baker testified) she spoke to Lynch a num-
ber of times from the end of January through the middle of February, telling Lynch,
in substance, that the other waitresses objected to "closing" the dining room every
night; that, as a matter of fairness , each waitress , including Lynch, should have to
close on certain days; and that Baker intended to arrange such a schedule when she
had time to do so. According to Baker, Lynch objected to this, pointing out that
the maitre had not required her to close and saying also, "Well, you don't like me,
I am good looking," to which Baker retorted "that happened to be a matter of
opinion."
Baker also testified that about 7:45 p.m. on February 8, Lynch refused to serve
a dining room party assigned to her by Baker; that Lynch said she was due to go
off the floor and have her meal; that Baker said she should not leave the floor be-
cause there were not enough- waitresses; that Lynch replied that Baker had been a
waitress and could serve the table; that Baker said that Lynch should serve the
party since she was still on the floor; but that Lynch nevertheless left the dining
room, saying that she was due in the bar where she made, the money rather than in
the dining room . , I f
According to their testimony, Baker reported this incident to Manager, McCormick.
McCormick testified that he received this report about 2 weeks after he had been
made manager on February 8, and that, in view of the other waitresses' complaints
and the necessity of paying them overtime unless Lynch stayed in the dining room, he
instructed Baker to set up a waitress-schedule under which Lynch would be required
to work in the dining room until closing time. 11 1
But, in spite of the February 8 incident and McCormick 's instructions , Baker made
no change in the schedule nor did she assign late, dining room parties to Lynch until
March 6, 1960. In the meantime , on February 22, she gave Lynch the favorable
job performance rating which was the basis of Lynch's S-cent per hour, wage in-
crease. Thus, according to Baker's testimony, she not only did not insist that Lynch
serve any late dining room parties during the 3-week period following their difficul-
ties about this matter, but also gave Lynch, a good performance rating and a raise.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In explanation, Baker testified that, in spite of their disagreement as to when
Lynch should leave the dining room and report to the lounge, Baker regarded Lynch
as a good waitress and at times told Lynch "that she was doing a very good job";
that Baker wanted to keep her waitresses, including Lynch, since, as dining room
manager, "it is not to [her] credit to lose them"; that Baker's job was "to act as
buffer between [the waitresses] and the manager" and not to bring to his attention
every instance in which she criticized or had difficulties with waitresses; that, in the
performance ratings such as she gave to Lynch on February 22, "we try to enlarge
on [the waitresses'] good qualities and hope that they will improve the bad ones";
that, when Lynch objected to serving late dining room parties because neither the
maitre nor the captain had required her to do so, Baker felt she "must accept that as
a good reason for [Lynch's] not wanting to do it under me instead of all of a
sudden getting angry about it," that Baker therefore "took it fairly easy . . . on
Mrs. Lynch, hoping to make a friend . [and] that we would work it out and
she would understand me better"; and finally that Baker expected that Lynch would
eventually "see like all the other waitresses, she had to stay later when the business
warranted it." As I view it, the essence of this testimony of Baker is that, in spite
of her difficulties with Lynch in February about staying in the dining room as long
as she was needed, she felt (until March 6) that Lynch was a good waitress who
deserved encouragement and a raise and that, with proper handling, she would
eventually agree to share the "closing" duties with the other waitresses.
On Sunday evening, March 6, a party of three or four people left the dining room
and, going into the coffeeshop, complained that a waitress had refused to serve
them in the dining room. At the time of this incident, there were three waitresses
on duty in the dining room: Lynch, Margaret Eberle (who was the "late girl"), and
Mary Spano (whose shift ended at 9 p.m.).
Baker testified that at 9 p.m., she seated the party, told Lynch to serve them but
received no answer, and then as she left the dining room to attend to other business,
asked Spano to see that Lynch served the party.6 According to Baker, she assigned
the party to Lynch because Eberle was busy and Spano was preparing to leave at
the end of her shift.? Spano testified that, at Baker's request, she asked Lynch
whether she was going to take care of the party; that Lynch said that she could not
take the party because she had to eat and then go to the cocktail lounge; and that
the guests, overhearing this, left the dining room although Spano offered to serve
them. Spano further testified that, after Baker had asked her to have Lynch serve
the guests,, Baker did not again speak to her that evening about the incident, but
that it was "almost 4 months ago [and] I really don't remember too much of what
happened afterwards."
Baker testified that when she returned to the dining room and noticed that the
guests had left, she asked Spaho what had-happened; that Spano told her that after
a "discussion . in front of the guests," they had left because "nobody would wait
on them"; that when Baker then spoke to Lynch about the matter, Lynch admitted
she had refused to take the party "because she was due to go off . . . [and was]
going to the cocktail lounge"; that, after going to the coffeeship and speaking to the
guests who were still there, Baker returned to the dining room and told Lynch she
was then quite busy but wanted to talk with Lynch the next day; and that Lynch
replied that "there was very much she would like to talk over" with Baker.
In her testimony, Lynch denied that she had refused to take any party assigned to
her by Baker on this occasion. Moreover, she denied that she had known anything
of such an accusation until 3 weeks later when, according to her testimony, she was
told about it by the General Counsel's field examiner who was investigating the
s Although Baker said she did not recall it, Eberle (a witness for the General Counsel)
testified that Baker also asked her to tell Lynch to take the party but, instead, Eberle
asked Spano to do so
7 There was a considerable amount of testimony as to where the party was seated in
the dining room Baker and Spano testified that Baker had seated the party at a table
included in Lynch's "station ," but differed as to which of the tables it was Eberle testi-
fied that the party was seated at an "open" table, I e, one which was not within any
assigned "station" at that particular time . Upon this state of the record , I find it
impossible to make any findings either as to the particular table at which the party was
seated or as to whether it was within Lynch's station. However, it appears from both
Baker's and Eberle's testimony that the tables in the "stations" assigned to the waitresses
varied as the evening progressed , and that in any event , when a waitress was busy , a table
within her station was not uncommonly assigned to another girl The material ouestion,
therefore, is whether, as Baker testified but Lynch denied, the party was assigned to
Lynch by Baker, regardless of the location of the table
HOT SHOPPES, INC. 13
case. She testified that the party came into the dining room between 9:30 and 9:40
p.m. while she was clearing her station; that Baker did not assign the party to her
nor did Spano tell her she was to serve them; that, upon later coming back from a
trip into the kitchen and seeing the party leave, she asked Spano, "Did they want the
coffeeshop'?"; that Spano answered, "No, they got up in a huff because you didn't
serve them"; that Lynch said, "I wasn't told to serve them. It wasn 't my party, and
I am late anyway"; and that Spano then told her, "Mrs. Baker told Mrs. Eberle to
tell you to take the party, but Mrs. Eberle was busy, so Mrs. Eberle told me to tell
you to take the party." Eberle, as a witness for the General Counsel, also fixed the
time of the incident as being 9:30 p.m. and further testified that she had in fact been
told by Baker to have Lynch take the party but, instead, had asked Spano to do so.
But Spano denied that Eberle had made any such request of her, insisting that it was
Baker who had made the request.
According to Baker, she reported the Sunday, March 6 incident to Night Manager
Proctor the same night and also to Manager McCormick on Tuesday, March 8, since
Monday was McCormick's day off. On Mondays, Lynch ordinarily worked only
4 hours and not at all in the cocktail lounge. Tuesdays and Wednesdays were her
days off. On Monday, March 7, the day following the departure of the disgruntled
guests from the dining room, she reported for work in the dining room, talked with
Baker, and then, in the absence of Manager McCormick, also spoke with Night
Manager Proctor. On Thursday, March 10, after her 2 days off, Lynch met with
Baker and Manager McCormick, and was discharged.
Lynch's conversations with Baker and Night Manager Proctor on Monday evening,
March 7, were limited to a discussion of her complaint against her being given "clos-
ing" assignments in the dining room under the new waitress-schedule, with no ref-
erence to her alleged, particular refusal to serve the dining room party on Sunday
night. As to this, there is no dispute. Both Baker's and Lynch's testimony as to their
conversation that night is to this effect, as is also Lynch's testimony concerning her
conversation later that evening with Night Manager Proctor, who did not appear as a
witness. With respect to their conversation, Baker testified merely that Lynch ob-
jected to working that night until 10 p.m.; that Baker explained that the decision to
have Lynch "close" was McCormick's decision as well as Baker's; that Lynch said
she wanted to see McCormick; and that Baker suggested that she see Proctor because
McCormick was not there that day.
After Lynch had this conversation with Baker on Monday night but before she
went to speak with Night Manager Proctor about 9 or 9:40 p.m., Baker again spoke
briefly with her. Lynch testified that, as she was taking some cocktail glasses back
into the bar, she and another waitress were talking "just above a whisper," about the
number of waitresses who would serve in the lounge under the new schedule, and
that Baker accused them of "discussing management." But Baker testified that
Lynch had gone into the kitchen and had there complained to other waitresses about
having to "close" the dining room, saying that she would not do it because she bowled
on Monday night; that Lynch also made three unnecessary trips into the lounge where
Baker found her talking to another waitress and the bartender; that, since there were
no drinks listed on Lynch's checks, there was no reason for her being in the bar;
and that Baker told Lynch she could not stay in the bar but must stay at her station
in the dining room. According to Baker she reported this to McCormick the next
day when she told him about the Sunday night incident and Lynch's general
unwillingness to serve in the dining room until closing time.
On Thursday evening, March 10, Manager McCormick summoned both Lynch
and Baker. According to Lynch, there was no mention of the Sunday night inci-
dent in their conversation. She testified that McCormick said, "Mrs. Baker
tells me there has been quite an uproar here for the last three days"; that he was
apparently referring to her complaints about the new waitress-schedule to Baker
and Proctor on Monday; that McCormick then explained that they had changed the
schedule to require Lynch to handle late dining room parties in order to avoid
paying another girl overtime ; that he also said that " from ten o'clock [Lynch] was
to handle late parties and parties that were still there" and that she was to clean up
her own station and check the other girls' stations and the side stands and chairs;
that Lynch replied, "I would try it because, if it didn't take me too long, if I wouldn't
lose money in the bar, that it would be satisfactory to me" ; that McCormick then
said that, because "there was such a commotion ," he had given Baker permission
to handle the matter any way she wanted"; that Baker said "that anyone with as
much influence [as Lynch,] ... that can cause such a commotion . . . is too in-
fluential to have in the dining room"; that Lynch turned to-McCormick and asked
him, "What is the reason for firing me? What is the reason that is going to go on
the records?"; and McCormick replied, "Well, let' s just say you have an overpowering
personality."
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker and Manager McCormick both testified , in broad substance , that they
discharged Lynch during this conference upon her refusal to work the hours required
by the new waitress-schedule , and that , in specifying the ground for the discharge
at Lynch's request, McCormick listed not only her instant refusal to abide by the
new schedule , but also the various difficulties which Baker had reported with respect
to Lynch's unwillingness to work in the dining room after 9 p.m. and her refusing
to handle late dining room parties in the two instances already noted . In spite of this
general area of agreement in Baker's and McCormick's testimony, there were some
points of variance , the nature and importance of which must be considered , of course,
in appraising their general credibility.
Manager McCormick testified that he began the conference by having Baker
summarize "the details of the incidents of the weekend and . the incidents in
general over the course of the past week or two "; that Lynch "denied none of Mrs.
Baker's story concerning her action except that she refused to concede that [in the
Sunday incident] the guests had heard her refuse this table"; that Lynch "contended
that it was not fair to ask her to . . . set up the dining room "; that Baker
said that, "on the contrary, it was not fair that she be the only one in the place who
was not required to do the side work and set up the dining room "; that Lynch said,
in substance, that she "did not intend to work the [new] schedule, did not think it
was a fair schedule for her"; that, having heard Lynch and Baker and noting that
Lynch denied only that the guests had overheard her refuse to take their table,
he said that , if she chose, Baker had his permission to discharge Lynch; that Baker
then recommended discharge, and he "wholeheartedly approved it at that point";
that Lynch asked the reason for her discharge; and that he told her it was "for
refusal to wait on the guests, refusal to take a party , which in itself I considered
reason enough, for behavior in the dining room which caused guests to leave, which
again , I considered enough by itself , for leaving the dining room without permission.
And for refusal to work the required schedule." These, incidentally, were the
reasons assigned for the discharge on the Respondent 's personnel report signed by
both Baker and Manager McCormick.
Baker testified that Manager McCormick opened the conversation by saying he
understood Lynch wanted to see him; that Lynch then complained that her hours
under the new schedule were unfair; that McCormick said Baker had posted the
new hours after discussion with him and with his approval; that Lynch insisted she
was not a "closing" girl but was to work in the lounge ; that McCormick said he
and Baker had decided in the interest of service and in fairness to the other girls,
that all should rotate on the various tasks, including "closing"; that Lynch said she
felt that Baker did not like her; that Baker said, on the contrary she "liked Mrs.
Lynch as a waitress . . . but we had to have service . We could not refuse the
guests in the dining room and not have arguing on the floor-that it would start a
precedent. That if each person could say, 'I don't want this , I am going off,' I don't
know what I'd do with the guests"; that Lynch said "she was there at nine o'clock,
going off the floor and she was not closing the room . They were not her hours";
that McCormick insisted on the new schedule in fairness to the other girls but said
that Lynch "could go in the bar on time, earlier, any time that the bar needed her
if the dining room were taken care of"; that Lynch said she didn't think it was fair;-
that McCormick then said "that in view of all the circumstances, he felt that [Lynch]
should not be employed by us if she didn't want to work our hours"; that Lynch,
said, "That was all right"; and that McCormick told her she was discharged for
refusing to work the schedule of hours required of her in the dining room and'
because "she would not take the parties [ Baker] assigned to her," that is , the "parties
which she refused earlier." According to Baker, she could not recall McCormick's
giving any other reasons.
4. Conclusions
Aside from Lynch's testimony as to her treatment at the hands of Baker, the,
only elements in the record which are relied upon by the General Counsel as show-
ing an unfair labor practice or a disposition on the part of the Respondent to dis-
criminate against union-minded employees or otherwise to impede their unionization,
were Dining Room Manager Baker 's interrogation of Waitress Lavragatto ; Manager
McCormick's exclusion of Organizer Pietrzak from the employees ' cafeteria; and
McCormick 's insistence that "Chico ," the chef, remain on the Respondent 's premises
during coffee breaks . But Baker's interrogation of Lavragatto being devoid of threats
of reprisal or promise of benefit and coupled with an express assurance of the
employees ' freedom to join Local 71, did not in itself indicate any opposition by the-
Respondent to unionization, did not tend to restrain or interfere with the employees"
HOT SHOPPES, INC. 15
organizational activities, and therefore did not constitute a violation of the Act .8
Similarly, McCormick's acts were, on their face, reasonably related to the Respond-
ent's efficient and orderly conduct of its business on its own premises, resulted at
most only in an insubstantial restriction upon the organizational activities of its
employees, and were therefore neither violative of the Act nor indicative of an anti-
union animus on the part of the Respondent. Since Pietrzak was not an employee
and, in any event, had other reasonable avenues of access to the employees for his
organizational purposes, the Respondent certainly had the right and sufficient reason,
to exclude him from its employees' cafeteria.9 Finally, McCormick's restriction
of the chef to the restaurant premises during coffee breaks also appears to me to
have been reasonably related to the Respondent's normal smooth conduct of its
business rather than indicative of a desire to restrain its employees' organizational
activities, in view not only of the extremely slight limitation it imposed on these
activities, but also of the obviously disruptive effect if employees were generally
permitted to leave the premises to speak to a union organizer outside the restaurant
during their coffee breaks, whenever they occurred. For these reasons, I conclude
that the evidence does not support the allegation of the complaint that the Respond-
ent committed unfair labor practices by interrogating employees other than Lynch
concerning their connection with Local 71 or by threatening them with discharge
or other reprisal should they join, support or assist Local 71. Accordingly, I recom-
mend the dismissal from the complaint of the allegations to this effect.
With respect to Lynch's treatment at the hands of Dining Room Manager Baker,
one of the basic issues, of course, is whether Baker knew, or even suspected, that
Lynch was a member of Local 71 or was supporting or assisting the local in its
organizational campaign. On this point, Baker denied having seen Lynch hand out
union cards or solicit memberships, or having any knowledge of Lynch's connection
with Local 71, and supplemented these denials by her testimony that Lynch had
expressly disclaimed any interest in Local 71. However, Baker did admit that she
knew of Organizer Pietrzak's general activities among the employees, and Manager
McCormick, while also denying knowledge of Lynch's union activities, admitted
having heard rumors "from various people in management" that Lynch was soliciting
memberships for Local 71. Upon the basis of McCormick's testimony as to the
notoriety of Lynch's union activities, I find (as Baker did not deny) that, whether
Baker actually knew, she did at least suspect that Lynch was supporting and assist-
ing Local 71.
The General Counsel, however, presses his contention that Baker actually knew
that Lynch was a member and active on behalf of Local 71. He relies principally
upon Lynch's testimony that Baker threatened to discharge her in February if she
continued to support Local 71 and then, in March, procured her discharge upon a
purely pretextual basis. This, of course, is the heart of the case and will require
a consideration of the main line of the conflicts between Baker and Lynch as to the
alleged threat of discharge and the ultimate discharge. In addition, the General
Counsel contends that Baker's actual knowledge of Lynch's union activity is shown
by Organizer Pietrzak's and Lynch's testimony that Baker had seen them together,
by Lynch's testimony that Baker had seen her signing up two of the waitresses in
the kitchen, and by the testimony of Waitress Lavragatto (who had signed a Local 71
membership application for Lynch) that Baker told her she thought she knew who
had "approached" Lavragatto for Local 71. But in view of Baker's denials, I am not
impressed by Lynch's and Organizer Pietrzak's testimony that Baker had seen Lynch
on these two occasions. And, accepting Lavragatto's testimony and even assuming
that Baker was referring to Lynch in their conversation, I find that Baker's remark
on this occasion indicates nothing more than that (as I have already found) Baker
suspected that Lynch was soliciting memberships for Local 71. Accordingly, I
believe that the-answer to the question of whether Baker actually knew of Lynch's
union" activities depends, as do the answers to all the remaining questions in the
case, upon a resolution of the main conflicts in the testimony as to Baker's alleged
threat of discharge and Lynch's actual discharge a few weeks later.
Decision of the case thus narrows down to a consideration of the conflicts in
Baker's and Lynch's testimony as to the events leading up to, and culminating in,
Lynch's discharge, with such help as may be provided by the rest of the record, in-
cluding Manager McCormick's testimony and the testimony of the several other
waitresses who appeared as witnesses . In dealing with this conflicting evidence, I
have weighed all the evidence on each side as a whole, with stress upon the general
8 Blue Flash Empress, Inc ., 109 NLRB 591.'
9 N.L.R B v. The Babcock & Wslcom Company, 351 U.S. 105
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question of whether , in the light of the evidence and its presentation , the General
Counsel's or the Respondent 's explanation of Lynch's discharge is credible. My
decision is based upon a number of factors which I believe to be of controlling
importance.
In strong support of the Respondent's position that Lynch was discharged for
cause rather than because of her union activities , it appears to me both from the cold
record and from my observation of Baker and Lynch at the hearing, that, regardless of
the occasion for their clashes, the personalities of Baker and Lynch were mutually
irritating; that an obvious cause of serious difficulty between them was Lynch's split
assignment between the dining room and the cocktail lounge; that Lynch was intent
upon asserting and protecting what she regarded to be her right to leave the dining
room and start serving in the cocktail lounge at 9 o 'clock or as soon thereafter as
possible; that Baker, from the time she took direct charge of the dining room in
January, was equally intent upon eliminating what she regarded as the favoritism
shown to Lynch in her split assignment; and that, in view of her determination and
the general tone and substance of her testimony at the hearing, it is unlikely that
Lynch was reticent about defending her advantageous position or complairung both
to Baker and to the other waitresses about the prospect of losing it. In addition to
these general observations which are based just as much upon Lynch's testimony and
demeanor as upon Baker's there was the incident on Sunday, March 6. Unquestion-
ably, a party left the dining room that night because it was not served. As to this
most important incident immediately preceding Lynch's discharge, there was more
than Baker's testimony to show Lynch's attitude toward serving parties which inter-
fered with her reporting to the cocktail lounge. For according to Spano's testimony
as well as Baker's, it appears that, with the guests overhearing her remarks, Lynch
refused to serve this party because she insisted upon leaving the dining room and
serving in the lounge. All of this convinces me of the credibility of Baker's and
Manager McCormick's testimony that Lynch was not discharged because of union
activities but because of a series of incidents in a month-long disagreement between
Baker and Lynch as to whether Lynch should work in the dining room after 9
o'clock.
The General Counsel argues that the favorable performance rating and pay raise
given to Lynch by Baker on February 22, refute Baker's testimony that even before
this she had been having difficulty with Lynch concerning Lynch's objections to
serving in the dining room after 9 o'clock and that on or about February 8 Lynch
had refused to serve a dining room party. The general Counsel also attacks the
credibility of Baker's and Manager McCormick's testimony that Lynch's ultimate
discharge on March 10 was based upon a series of incidents related to Lynch's
unwillingness to work late in the dining room, including her second refusal to serve
the dining room party on Sunday, March 6. He points out that in their conversation
on Monday, March 7, the following day, there was no mention of the Sunday
incident, the discussion being limited to Lynch's complaint about the new schedule.
He also relies upon what he asserts to be material inconsistencies in the testimony
of Baker and Manager McCormick as to the discharge interview.
But upon my appraisal of the general situation , none of these arguments of the
General Counsel are sufficient to overcome the factors in the case to which I have
already referred and which indicate that Lynch was discharged, for the reasons
assigned by the Respondent. It is true that, in view of her asserted early difficulties
with Lynch in February, Baker's demonstration of patience by giving, Lynch a.
good job performance rating and a raise may be regarded as unusual. But I accept,
as reasonable under the circumstances , Baker's explanation that, in spite of her early
troubles with Lynch about when she should be permitted to leave the dining room,
Baker still felt that Lynch was a good waitress, that she should be retained if it were
possible, and that, with encouragement, she would eventually become tractable. Nor
do I regard as significant, either the omission of any discussion of the Sunday incident
by Baker and Lynch in their conversation the following day, or the differences in
Baker's and Manager McCormick's testimony concerning the discharge interview on
Thursday, March 10. In view of the Sunday incident, Baker's difficulties with
Lynch had reached the 'point at which the entire matter had to be brought to the
attention of Manager, McCormick who alone had the power to discharge Lynch if
he 'thought it necessary. And this is exactly what Baker did on the following day.
Finally, I do not find such material differences in Baker's and Manager McCormick's
testimony as to Lynch's discharge on Thursday, March 10, as would cast doubt upon
the common material substance of their testimony to the effect that, following a
general discussion of Baker's troubles with .Lynch, Lynch refused to serve in the
dining room under the new waitress schedule , and that , for this , for her refusals to
serve late parties assigned to her in February and again on Sunday , March 6, and
HOT SHOPPES, INC. 17
for leaving the dining room without permission, she was discharged. This was their
common version of the discharge and was summarized in the personnel report which
both of them signed. To me it seems immaterial that Manager McCormick testified
that he discharged Lynch "upon Baker's express recommendation during the con-
ference, while Baker, although summarizing her critical comments about Lynch's
conduct, made no reference to any recommendation that McCormick discharge
Lynch. Nor does it seem significant that McCormick testified that he himself was
convinced of the necessity of discharging Lynch when she failed to deny having
refused to serve the party in the dining room the preceding Sunday, although, accord-
ing to Baker, the breaking point in their patience was reached when Lynch stub-
bornly refused to serve the late dining room hours required by the new schedule.
Upon the foregoing considerations, I credit the testimony of Baker and Manager
McCormick as to the material events preceding Lynch's discharge and the reasons
for her discharge. Upon Baker's testimony I conclude that she did not threaten
Lynch with discharge if Lynch joined, supported, or assisted Local 71, and recom-
mend the dismissal of the allegation of the complaint to that effect. Upon the perti-
nent portions of Baker's, Manager McCormick's, and Spano's testimony, I specifically
find that on a number of occasions from the end of January through the middle of
February 1960, Dining Room Manager Baker informed Lynch that Lynch would at
times be required to work in the dining room after 9 o'clock and "close" the dining
room as did the other waitresses; that Lynch objected to this; that on or about
February 8, Lynch refused to serve a dining room party assigned to her by Baker
at 7:45 in the evening; that, at 9 o'clock on Sunday evening, March 6, Lynch refused
to serve a dining room party' assigned to her by Baker because she insisted upon
leaving the dining room for the cocktail lounge; that on this occasion, the guests
overheard her refusal and left the dining room; that, on the following evening,
Monday, March 7, Lynch complained to Baker about being required to work in the
dining room until 10 o'clock under a new waitress-schedule posted by Baker the
previous night; that, the same evening, while she was still scheduled to serve in the
dining room, Lynch told other waitresses in the kitchen that she would not "close"
the dining room because she bowled on Monday night, and also made three unneces-
sary trips to the cocktail lounge, where Baker found her talking to another waitress
and the bartender; that, on Tuesday, Baker reported her difficulties with Lynch to
Manager McCormick; and that on Thursday, March 10 (Lynch's next working day),
Manager McCormick, after hearing Baker and Lynch and after Lynch refused to
work in the dining room until 10 o'clock under the new schedule. discharged Lynch
for refusal to serve guests assigned to her by Baker in the dining room, for leaving
the dining room without permission, for behavior that caused guests to leave the
dining room, and for refusal to work the hours scheduled for her by Baker with
Manager McCormick's approval. I conclude that Lynch was thereby discharged for
these reasons and not for her union activities. I therefore recommend dismissal of
the allegations of the complaint that Lynch was discriminatorily discharged in viola-
tion of Section 8(a) (1) and (3) of the Act.
Since I have thus recommended the dismissal of the various allegations of the com-
plaint charging the Respondent with unfair labor practices in Case No. 2-CA-7283,
I recommend that the complaint therein be dismissed in its entirety.
B. The commissary (Cases Nos. 2-CA-7349 and 2-CA-7352)
1. Introduction
The commissary, which is jointly operated by Hot Shoppes Caterers, Inc., and the
Respondents National and Hot Shoppes, has its kitchen and other facilities on Rock-
away Boulevard in Jamaica, New York City, within a short distance of Idlewild
International Airport. Engaged in the business of preparing and delivering food and
beverages to Eastern Air Lines and National Airlines at the airport for service to their
passengers during flight, the commissary has operated on a 24-hour a day basis. It
employs kitchen workers, packers, and in its delivery or trucking division, a group of
"flight equipment handlers" or truckdrivers and their helpers, whose job it is to load
the food, beverages, and necessary equipment on trucks at the commissary and then
to deliver them to the planes at the airport. In the beginning of 1960 it employed
from 110 to 125 persons.
Efforts to organize these employees were begun early in 1960 by District 65, Local
71, and Local 295. It appears that District 65 started this movement, held a meeting
for the employees at the Continental Hotel near the commissary, and secured cards
from a number of the employees who also signed Local 71 cards. The record con-
tains little information about the activities of Local 295 (a Teamsters' Local), show-
624067-62-vol. 133-8
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing simply that at the end of March and in April it attempted to organize the
commissary 's drivers and obtained a number of membership applications. But the
principal organizational efforts were apparently made by Local 71, whose secretary-
treasurer, John Leaver, and Organizers Dick O'Keefe and Matthew Pietrzak, began
their campaign in January 1960 . They held several meetings for the employees and,
in March and on April 1, made daily appearances in the vicinity of the commissary.
During these visits , they solicited membership applications from employees on all
three shifts and gave some of them cards to enable them , in turn , to solicit their
fellow employees.
In the 3 days beginning with Saturday, April 23, the Respondents laid off eight
employees because of a decrease in the number of meal and beverage flights. On
Monday, April 25, some of the remaining employees went on strike to protest the
layoffs. The strike and the accompanying picketing of the commissary were still
going on at the time of the hearing.
The General Counsel concedes that the reason for the layoffs was economic. But
he contends that six of the eight people laid off were chosen because they had joined
and assisted Local 71 and Local 295, that these layoffs were therefore unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act, and that the
strike was, and is, an unfair labor practice strike. Of the six employees alleged by the
General Counsel to have been discriminatorily laid off, three were fight equipment
handlers or truckdrivers (Willie Cintron, Rene Sardinas, and Jose Munez who is also
known as Jose Lopez), and the other three worked in the kitchen (Jules Gutierrez,
Carlos Caro , and Luciano Ramos ). The General Counsel also contends that, before
and at the time of the discriminatory layoffs, the Respondents further interfered with
the employees' organizational activities in violation of Section 8(a)(1) of the Act,
by keeping the unions ' meeting place in the Continental Hotel under surveillance, by
questioning employees including those later laid off concerning their union member-
ship and activities, and by threatening them with discharge if they joined or sup-
ported the unions and promising them benefits if they refrained. According to the
General Counsel , the supervisors who engaged in this conduct repressive of unioni-
zation, were Assistant Managers Clarence Mockbee and Walter Morris; Eddie
Perdomo and Tony Santiago, dispatchers in the trucking division; Frank Negron,
who worked in the packing crew; and Joe Aceveda, a cook.
The Respondents not only deny committing these unfair labor practices, but further
deny that Perdomo, Santiago, Negron, or Aceveda were supervisors within the mean-
ing of the Act. According to the Respondents, their only supervisors at the com-
missary were the manager , four assistant managers , Chef Andre Reuling who was in
charge of the kitchen , and Angelo Fazio who, as a foreman , was in charge of packing
and the preparation of cold foods. Of the four assistant managers, Clarence Mockbee
and Walter Morris were in charge of all phases of the commissary's operations
except purchasing and storage , which was a department entrusted to the third assistant
manager, Ralph Schroeder. The fourth assistant manager, Joe Rauch, was in charge
of the night shift and was a subordinate of Mockbee and Morris . Under this arrange-
ment, Assistant Managers Mockbee and Morris were thus in overall charge of all the
day-to-day operations of the commissary and Chef Reuling, Foreman Fazio, and
Assistant Manager Rauch served as their subordinate supervisors in their respective
divisions. Aside from the manager, only Mockbee and Morris had the authority to
hire and discharge employees, although the chef , Fazio , and Rauch could recommend
such action . In testifying to this effect concerning the supervisory hierarchy, both
Mockbee and Morris stated that they themselves operated the trucking division
without subordinate supervisors.
From Assistant Manager Mockbee 's testimony concerning the Respondents'
planning and general conduct of their operations , it appears that the necessity for
supervision is in fact kept to a minimum. The airlines prescribe the meals and
beverages to be served; the main food items remain the same for an entire week; and
the airlines' flight, meal, and beverage schedules are infrequently changed. From the
flight and catering schedules submitted by the airlines, Assistant Manager Mockbee
or Assistant Manager Morris prepares three forms of daily schedules by which the
work of the commissary's employees is governed for the duration of the airlines'
current flight schedule . In brief, these schedules are a general meal preparation
schedule for the kitchen; a meal order schedule for the packing and trucking divisions
as well as the kitchen, showing the departure time of the flights, the general meal and
beverage requirements, and the types of planes as an indication of the possible
numbers of passengers to be served; and finally, a trucking division schedule,
showing the delivery schedule and the particular drivers or flight equipment
handlers assigned to each trip. In connection with the daily use of these schedules,
the airline advises an office girl first of the anticipated number and then of the exact
HOT SHOPPES, INC. 19
number of persons to be served on each flight and she in turn informs the chef, the
packing crew, and the truck dispatchers so that the proper, controlling entries may be
made by them on their respective copies of the schedules.
In this general scheme of operations, Eddie Perdomo serves as dispatcher for the
truckdrivers or flight equipment handlers serving Eastern Air Lines' flights, and Tony
Santiago serves in the same capacity with respect to National Airlines' flights. Both
Perdomo and Santiago speak Spanish and English and, since neither Mockbee nor
Morris speaks Spanish and a number of the truckdrivers as well as other employees
speak and understand very little, if any, English, they often served as interpreters
in transmitting Mockbee's and Morris' instructions to the employees. Most of the
drivers regard the two dispatchers as being their supervisors and, in a pretrial affidavit,
Morris referred to Santiago as a "supervisor." As further indications that the dis-
patchers possessed supervisory authority, the General Counsel relies upon testimony
given by Rene Sardinas, that the dispatchers had at times warned drivers of discharge,
and also upon testimony by Assistant Manager Mockbee, himself, that he consulted
the dispatchers before deciding which of the drivers should be laid off in April 1960.
But the dispatchers are not shown to be supervisors simply by the fact that the
employees so regarded them, nor even by the fact that an assistant manager has re-
ferred to them as supervisors and has consulted them as to the work of other em-
ployees. Although these facts have some relevance, the ultimate test is whether the
dispatchers actually possessed any of the specific elements of authority set forth in
the definition of "supervisors" in Section 2(11) of the Act. And this can be deter-
mined only on the basis of evidence of whether there was an express grant of the
requisite authority or a grant reasonably to be inferred from the nature of the dis-
patcher's work, the employer's acquiescence to their actual exercise of supervisory
power, or the extent to which the employer has relied upon them in dealing with
other employees
As dispatchers, Perdomo and Santiago help the drivers to load the food, beverages,
and necessary equipment on the trucks at the commissary; check the loads against
a check list to see that nothing is missing; and direct the deliveries by the drivers ac-
cording to the time schedule formulated by the assistant managers. Certainly, the
dispatchers have no authority to hire or discharge employees and, from their duties
and the work they perform, it is apparent that the directions they give to the drivers
are of a routine nature and do not require the exercise of independent judgment.
Furthermore, from Mockbee's and both dispatchers' testimony, it appears clear to
me that the dispatchers do not assign work to the drivers but that the assignments are
made only by the assistant managers even when substitutions are necessary in the
absence of particular drivers.
But from the substance of Assistant Manager Mockbee's testimony, it appears to
me that the dispatchers do have authority to make effective recommendations con-
cerning the status of employees in their crews, that the Responents respect these
recommendations, and that they are therefore effective recommendations within the
meaning of Section 2(11) of the Act. For Mockbee, in explaining his selection of
the three drivers whom he laid off in April 1960, testified that his selections were
made upon the recommendations of the dispatchers, and that, in the case of Rene
Sardinas, he had been surprised by Perdomo's unfavorable opinion of the man's
work. It is true that he also testified that he laid off Sardinas only after his own
investigation confirmed Perdomo's opinion and that he did not lay off all the men
who were suggested by the dispatchers. But this does not make the recommenda-
tions any less effective. It is apparent that the Respondents do rely upon the
judgment of the dispatchers with respect to the men working in their crews, that
they do ask for their recommendations as they did in case of the April layoffs, and
it is a reasonable inference that they act on such recommendations unless they appear
to be clearly wrong. I conclude, therefore, that the dispatchers have authority effec-
tively to recommend the layoff of employees in their crews, that the exercise of
this authority requires the exercise of independent judgment, and that the dispatchers,
Perdomo and Santiago, are supervisors within the meaning of Section 2(11) of the
Act 10
Similar questions are presented by the General Counsel's contention that Frank
Negron and Joe Aceveda were supervisors within the meaning of the Act. Like the
dispatchers, and for the same reasons, these men served as interpreters for the as-
sistant managers in their instructions to and conversations with employees. Negron
"I am aware that. In a recent representation case, the Board has held that these two
dispatchers do not have authority to make effective recommendations and are not super-
visors. National Caterers of New York, Inc, 129 NLRB 699, footnote 3 It does not
appear, however, that the Board had before it the evidence which I have discussed in the
text and upon which I base my contrary conclusion.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
packed meals all day in the packing department under Foreman Fazio, and Aceveda
was a cook in the kitchen under Chef Reuling. Each man issued instructions to the
employees in the absence of his superior . But these apparently were routine in-
structions as to simple operations and did not require the exercise of independent
judgment . In the case of Aceveda , I find no evidence that he had any authority to
make effective recommendations as to the status of his fellow employees . Accord-
ingly, I conclude that Aceveda was not a supervisor within the meaning of the
Act.
But in the case of Negron , not only did Assistant Manager Morris describe him
as a "supervisor" in his pretrial affidavit , but Assistant Manager Mockbee testified
that occasionally he asked Negron how a particular employee was doing his work
and that , on Negron 's request , he sometimes transferred men into Negron 's packing
area . Although Mockbee also testified that Negron was merely a leadman and that
he did not always rely on Negron 's opinion nor grant his requests , I am of the
opinion upon this evidence and the evidence that Negron substituted for Foreman
Fazio in the latter 's absence , that Mockbee did give substantial weight to Negron's
recommendations , that Negron did have authority to make effective recommenda-
tions, and that he was therefore a supervisor within the meaning of the Act.
For the most part, the evidence as to the Respondents' interference with their em-
ployees' organizational activities relates to interrogation and pressures brought di-
rectly to bear upon the employees who the General Counsel claims were
discriminatorily laid off, and therefore, may be most conveniently and logically dealt
with in connection with the layoffs. However, there was also evidence of several other
miscellaneous instances of interference by the Respondents, which I shall consider
before turning to the layoffs and the main part of the case.
2. Miscellaneous interference
Carlos Caro, one of the employees allegedly laid off because of his union activities,
testified that, while walking along Rockaway Boulevard one evening from the com-
missary to attend a union meeting at the Continental Hotel which was two blocks
away and also on Rockaway Boulevard, he saw Assistant Manager Mockbee and
another supervisor 11 standing "across the street from the . Hotel" but about a
block still farther away and at a point where another street overpasses Rockaway
Boulevard; that he 'saw them stand there a couple of minutes; and that he then
turned and walked back past the commissary where he saw Manager Swenson stand-
ing inside the doorway and looking at him. Photographs taken at various points on
Rockaway Boulevard and later submitted in evidence by the Respondents' counsel
show that it is such a considerable distance from the point at which Mockbee sup-
posedly stood to the hotel, that he could not possibly have seen the entrance very
clearly, much less the people who entered. They show also that the points at which
Mockbee and Caro stood, according to Caro's testimony, were also a similar dis-
tance apart. Although the General Counsel produced Caro's testimony as the only
support for an allegation in the complaint of surveillance of the union meetings, he
has conceded in his brief that no such finding is warranted upon this record. I do
not credit Caro's testimony and dismiss the allegations of the complant as to
surveillance.
Employee Arcadio Torres testified that Frank Negron told him about 2 months
before the strike that the Respondents would close down if the Unions tried to get
in; that, on another occasion, Negron said that Assistant Manager Mockbee would
give Tones a raise if he informed them where the Union was going to hold a meet-
ing for the employees; and that after the picketing started, Negron telephoned him.
asked him to come back to work, and promised him 2 weeks' pay if he stayed off
the picket line. Negron denied making these statements but I credit Torres' testi-
mony. I find, therefore, that Negron, as a supervisor, did tell employee Torres on
one occasion that the Respondents would close the commissary if the unions suc-
ceeded in organizing the employees; that Negron also promised Tones that Assist-
ant Manager Mockbee would give him a raise if he informed them where a union
meeting was to be held; and that, during the course of the picketing, Negron tele-
phoned Tones, asked him to come back to work, and promised him 2 weeks' pay if
he stayed off the picket line. I further find that the Respondents, through Negron as
their supervisor, thereby interfered with, restrained, and coerced their employees in
thi exercise of their right to self-oganization and committed unfair labor practices
within the meaning of Section 8(a) (1) of the Act
We come finally to a consideration of the April 1960 layoffs and the Respondents'
conduct in connection therewith.
11 Caro identified this supervisor only as "Mario "
HOT SHOPPES, INC. 21
3. Selection of the employees laid off
As I have noted, the General Counsel concedes that there was an economic reason
for the Respondents ' laying off some of its employees in April 1960, but he contends
that the selection of six of eight persons laid off was discriminatory. Assistant
Manager Mockbee made these selections sometime in the week beginning on
Monday, April 18, after formulating the commissary's working schedules on the
basis of new airline schedules . He had first decided that 14 employees should be laid
off, telephoned the names of the employees to the Respondents ' home office in Wash-
ington , D.C., and on Saturday, April 23, received the employees ' terminal checks
from Washington . But, having in the meantime learned that the dishwashing load
from incoming flights would be heavier than expected , he issued layoff slips and
checks to only seven employees , including five of the six employees who the General
Counsel claims were discriminatorily selected for layoff. Luciano Ramos, a kitchen
employee and the remaining alleged discriminatee , had not been selected by Mock-
bee for layoff , but was either laid off or discharged on Saturday , April 23, under
circumstances which will later be considered.
According to Mockbee , he made his selections after consulting Chef Reuling and
Dispatchers Perdomo and Santiago as to who should be laid off. On Chef Reuling's
recommendation, he decided to lay off (and eventually did lay off) an employee
named Eugenio Gonzales and two of the alleged discriminatees , Jules Gutiererz and
Carlos Caro. Mockbee further testified that he asked Dispatchers Perdomo and
Santiago which of the truckdrivers should be laid off; that Perdomo suggested laying
off Rene Sardinas and Jose Munez , also known as Jose Lopez; that Santiago sug-
gested Willie Cintron; and that, upon these recommendations , Mockbee included the
names of these three men in the list telephoned to the home office and laid off
Sardinas and Cintron on Saturday , April 23, and Munez on Sunday, April 24
According to Mockbee 's testimony , it was on Wednesday morning, April 20, that
he conferred with the dispatchers and then telephoned the home office the names of
the employees to be laid off. In a pretrial affidavit, however, he had stated that he
telephoned Washington on Tuesday, April 19. But Dispatcher Perdomo testified
that Mockbee consulted him on Monday , April 18, and could not have done so on
Tuesday or Wednesday, April 19 or 20, because they were Perdomo's days off.
Other points in Mockbee 's testimony and discrepancies between it and the testi-
mony of Dispatchers Perdomo and Santiago are of greater importance and cast
doubt on the reliability of Mockbee' s explanation of his selection of the three truck-
drivers for layoff. Thus Mockbee at first testified that his selections were made from
"lists" of drivers given him by the dispatchers, but later modified this testimony by
explaining that they were "oral lists." Furthermore , throughout his testimony,
Mockbee insisted that he and the dispatchers discussed the work of the drivers who
should be laid off, that the dispatchers named the drivers who could best be laid
off, and that he followed their recommendations . With respect to Sardinas particu-
larly, Mockbee testified that he was surprised that Perdomo should recommend his
layoff because of a proneness to make mistakes and forget things, and that he there-
fore laid off Sardinas only after he had himself verified Perdomo's opinion . But both
Perdomo and Santiago testified that in their conferences with Mockbee, they dis-
cussed only the men they thought should be kept, and they did not discuss or
name the men they thought should be laid off.
4. The layoffs of Sardinas , Munez, and Cintron
Sardinas , Munez, and Cintron , the three truckdrivers who were thus laid off on
the dispatchers ' recommendations according to Assistant Manager Mockbee's testi-
mony, had all joined District 65 , Local 71 , and Local 295 . Sardinas had joined
District 65 in January and then signed Local 71's application for employee Luciano
Ramos, from whom he received a number of application cards. From April 15
until he was laid off on April 23, Sardinas signed up about 20 of the other employees
and gave their cards to Organizers Leaver and O 'Keefe in the neighborhood of the
commissary . Mockbee denied that he knew that any of these three men had ioined
the Unions or were active on their behalf . So also did Assistant Manager Morris,
Dispatchers Perdomo and Santiago , and Supervisor Negron.
But the General Counsel contends that the evidence shows not only that Mockbee
and the other supervisors knew of the three drivers ' union membership and support,
but that this was the factor which actually led to their being selected for layoff. In
support of this position . he argues that Mockbee 's explanation of his decision to lay
these particular men off on the basis of the dispatchers ' recommendations , is incredible
in view of the dispatchers ' testimony that they had made no such recommendations.
In the case of Sardinas , the General Counsel points out that , even according to
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mockbee's testimony, Mockbee had thought Sardinas was a. good worker and would
not have laid hum off had it not been for the recommendation which Perdomo denies
having made. In addition, the General Counsel notes that the Respondents' selection
of the three drivers for layoff does not even have the plausibility of conforming with
seniority, since the Respondents retained four drivers who were Sardmas' juniors,
and one driver who was Cintron's and Munez' junior.12 As final proof that the three
drivers were laid off because of their union membership and support, the General
Counsel relies upon testimony given by each of the men which (although denied by
the assistant managers and the supervisors) is to the effect that the assistant managers,
the dispatchers, and Supervisor Negron interrogated them concerning their union
membership and activities, threatened them with discharge or layoff or promised
them benefits in order to refrain from joining and supporting the Unions, and, at the
time of or just before their layoffs, made it clear to them that they were being laid
off because of their union membership and activities.
a. Sardinas
Sardinas testified that in January 1960 Assistant Manager Morris engaged Sardinas
in conversation during a coffee break; that Morris asked Sardinas if he knew of the
union activity at the commissary; that, upon Sardinas' denying any knowledge, Morris
said that Hot Shoppes would "never . let the union in"; that Sardinas denied
signing a union card or knowing anything about the Union; and that Morris said he
knew that Angelo Cruz, a liquor ,room employee, was a leader in the union movement
and that, although Morris could fire Cruz, he would not do so because the Union
would never get in. Sardinas further testified that Morris also said that employees
were fooled by unions which took advantage of them; that, after a discussion of
"unions and rackets," Sardinas lent Morris a Readers Digest condensation of a book
based upon the McClellan Committee's investigation; and that Morris congratulated
Sardinas upon being a person who thinks for himself.
In his testimony, Morris admitted that Sardinas lent him the Readers Digest article.
He explained that, at the time of their conversation, union pamphlets were being
distributed outside the Commissary and "a number of people came to me and com-
plained that they were told to stay out from work and asked me what to do"; that
Morris therefore asked Sardinas if anyone had bothered him; that Sardinas said no
one had bothered him and that the Unions were a bunch of racketeers; and that
Sardinas thereupon handed Morris the Readers Digest article. With respect to the
rest of their conversation, Morris denied that he knew whether Cruz was active in
any union movement, or that he referred to Cruz during his conversation with
Sardinas.
Upon consideration of these two versions of the conversation, I credit Sardinas'
testimony and specifically find that Assistant Manager Morris asked Sardinas what
he knew about the current union activity and that he also said that the Hot Shoppes
would not let the Union in and that, although he knew of Cruz' leadership in union
activities and could fire him, he would not do so because the Union would be
unsuccessful.
Sardinas also testified concerning a series of conversations with Dispatchers
Santiago and Perdomo and Supervisor Negron, over the course of the 4 days'up to
and including his receipt of his layoff slip and terminal check from Perdomo.
Although the dispatchers and Negron denied any knowledge that Sardinas had
joined or supported the Unions or that Sardinas was to be laid off, and although
they denied making the statements attributed to them by Sardinas, I credit Sardinas'
testimony and find that:
(1) On Wednesday, April 20, Dispatcher Santiago told Sardinas that he was sorry
for Sardinas because, according to a paper he had seen in Assistant Manager
Mockbee's office, 17 or 18 of the employees were to be discharged that week.
Sardinas asked why, and Santiago said that it was "what you get for being in
union activity."
(2) On the morning of the next day (Thursday, April 21), Sardinas told Dis-
patcher Perdomo what Santiago had said. Perdomo said he knew nothing of any
layoff, but that signing a union card was against the policy of the Company and
,.was wrong," and that he would ask Assistant Manager Mockbee about the layoff.
'a Counsel stipulated that the last seven truckdrivers hired and the dates of their hire,
were the following • Rene Sardinas, October 23, 1959 ; John Toscano, November 18,
1959 ; Renniesco Nelson, November 25, 1959 ; Gene Dorsainvil, December 5, 1959 ; Willie
Cintron, December 16, 1959; Jose Lopez Munez, January 3,'1960; and James Clark,
January 12, 1960.
HOT SHOPPES, INC. 23
Perdomo also said to pay no attention to Santiago who was trying to impress
people that he had inside information and was a "big wheel."
1(3) On Thursday afternoon, Perdomo told Sardinas that, according to Mockbee,
no layoff was scheduled and not to worry about it. Sardinas told Perdomo he had
already signed a union card.
(4) On Friday afternoon, Supervisor Negron, seeing Sardinas and employee
Zapata finishing lunch in the lunchroom, asked to speak to Sardinas alone. When
Zapata left, Negron said that Assistant Manager Mockbee asked him to find out
whether it was true that Sardinas had already signed a union card. Sardinas admitted
that he had, and Negron asked why. Sardinas said that he had heard of the coming
layoff of 17 or 18 people including him, and that he had joined the Union to protect
his job. Negron said that he would tell Mockbee that Sardinas had joined the Union
to protect his job.ls
(5) At 4:30 pm., Friday, April 22, Dispatcher Perdomo told Sardinas that if he
withdrew from the Union, Perdomo would assure him a steady job and even a raise.
Sardinas said he would gladly accept his offer and step out of the Union.
'(6) Between 2 and 3 p.m. on Saturday, April 23, Dispatcher Perdomo told
Sardinas to stop wo, k and go to eat, and then gave Sardinas his check through Sunday
with "the layoff paper," saying that Assistant Manager Mockbee had so instructed him
and that he was to tell Sardinas "we don't need you any more." Sardinas said this
was contrary to their agreement but Perdomo said he was sorry, but that Mockbee
had already made the decision and did not want to talk, about it.
b. Munez
Munez was scheduled for layoff on Sunday, April 24, but, because he was sick
and did not report on that day, he was called into the office and laid off by Assistant
Mockbee on Monday, April 25.
Munez testified that Mockbee asked him why he was absent on Sunday; that
Munez said he had been sick; that Mockbee said that if Munez had signed a union
card, he had no job but that otherwise he had a job; that Munez said he had signed
a card; and that Mockbee said, "All right. Here is your check, your paper. You
have been paid for the whole week."
Mockbee denied making any such remarks to Munez. He testified that he ex-
plained to Munez that he was being laid off because of a reduction in meal and
beverage flights and that, since Perdomo had reported that Munez "had been wanting
to quit," he felt that they were justified in laying him off. According to Mockbee,
Munez thanked him, shook Mockbee's hand, and went out.
Upon consideration of these two versions of Munez' layoff interview, I credit
Munez' testimony.
c. Cintron
Cintron testified about a telephone call received by him from Dispatcher Perdomo
in January while he was out of work for 2 weeks as the result of an automobile acci-
dent. At the time, he was staying at the home of a friend by the name of Ortiz, whose
telephone number he said he had put on his timecard at the commissary. According
to Cintron's testimony, Perdomo told him in this telephone conversation that District
65 was "around" the commissary and that Assistant Manager Mockbee said if Cintron
"followed" the Union, he should "forget about the job," but that, otherwise, he would
get "his steady job back." Although Perdomo denied making this telephone call or
having made any such statements to Cintron, I credit Cintron's testimony.
When Cintron was laid off on Saturday, April 23, he was told by Dispatcher
Santiago to go to the office and was then given his layoff slip by Perdomo. In spite
of Perdomo's denial, I credit Cintron's testimony that Perdomo said that Mockbee
knew Cintron had signed a union card; that if Cintron had not signed, he would
have a steady job; but that Cintron said it was too late, he had already signed a card.
Upon my foregoing consideration of the evidence and upon the basis of my findings
thereon, I conclude that the Respondents made their selection of Rene Sardinas, Jose
Munez, and Willie Cintron for layoff because they joined and supported District 65
and Locals 71 and 295. Assistant Manager Mockbee's failure to give a credible ex-
planation of the selections on any other basis, as well as the credible, detailed evi-
dence of the three truckdrivers as to their conversations with the assistant managers,
the dispatchers, and Supervisor Negron, all impel me to this conclusion. I therefore
3s Negron admitted that he had asked to speak to Sardinas alone, but testified that lie
did so in order to borrow money from Sardinas Negron denied that the conversation
concerned Sardinas' layoff or his connection with the Unions or that he made any of the
remarks attributed to him by Sardinas
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that in selecting Sardinas, Munez, and Cintron for layoff and in laying them
off, the Respondents discriminated against them in regard to their hire and tenure of
employment, thereby discouraging membership in District 65 and Locals 71 and
295 and committing unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act.
I also find that, by the acts committed and the statements made by the assistant
managers, the dispatchers, and Supervisor Negron, as detailed above, the Respond-
ents interfered with, restrained, and coerced their employees in the exercise of their
organizational rights guaranteed by Section 7 of the Act and thereby committed
unfair labor practices wtihin the meaning of Section 8 (a)( 1 ) of the Act.
5. The layoff of Luciano Ramos
Luciano Ramos was hired by the Respondents on December 26, 1957. He was
first a dishwasher, then a driver's helper, and finally a coffee maker. He joined Dis-
trict 65 and Local 71 and, in the 2 weeks before he was laid off, he signed up about
15 employees for Local 71. It was Ramos who gave a block of Local 71's cards
to Rene Sardinas.
As already noted , Ramos was not one of Assistant Manager Mockbee 's selections
for layoff. On Saturday, April 23, however, he was laid off by Mockbee. Before
that, according to his testimony , Mockbee had spoken to him about the Union on
two occasions.
Ramos testified that on both these occasions , and within 2 or 3 weeks before his
layoff , Dispatcher Perdomo had called him into the office and acted as interpreter
for him and Mockbee ; and that in these conversations , Mockbee had asked Ramos
whether he had joined the Union . In the first conversation , according to Ramos, he
denied having joined the Union and , in answer to Mockbee 's further question, also
denied knowing who had joined, and Mockbee said, "It's okay." In the second
conversation , still according to Ramos, he again told Mockbee he had not joined
the Union and Mockbee said if he had not joined, he should not do so because, if
the Union came in, Mockbee would have to close the shop although he (Mockbee)
was not worrying because he spoke English and would easily find a job.
Although Mockbee and Perdomo denied that any of this had happened, I credit
Ramos' testimony and conclude that on these two occasions, Mockbee questioned
Ramos as to whether he had joined the Union, that on the second occasion, he
threatened to close the shop if the Union succeeded in organizing the employees;
and that, by this interrogation and threat of Mockbee, the Respondents committed
unfair labor practices within the meaning of Section 8(a) (1) of the Act.
As to Ramos' layoff on Saturday, April 23, Assistant Manager Mockbee testified
that Assistant Manager Morris had told him Ramos was unhappy because he thought
he should receive more pay; that Mockbee asked employee Efrain Cancel, a friend
of Ramos, to call Ramos into the office that Saturday ; that , before seeing Ramos,
Mockbee drew from petty cash the exact amount of pay due to Ramos and had a
layoff slip prepared; that then, with Cancel interpreting and in the presence of
Negron, Mockbee told Ramos it was impossible to pay him more than he was receiv-
ing, in view of the limited type of work he was capable of performing; that Mockbee
also told Ramos that he wanted to help Ramos but that if Ramos was unwilling,
Mockbee would give him his layoff papers and his pay; that Ramos said he would
prefer to stick around and make trouble; that Mockbee, through Negron, said he
would forget Ramos' last statement and would give him his pay and layoff slip, and
that Ramos accepted this. Negron's testimony as to this conversation was essentially
the same as that of Mockbee. Cancel did not testify.
Ramos' version of the incident was that Mockbee told him he could be paid no
more than he was being paid; that Ramos then said that, if he did not get a raise,
he could not be blamed if he joined the Union; and that Mockbee said he was fired
and gave him his layoff slip and his wages in cash.
Upon this state of the record, I credit Ramos' testimony as to the layoff interview.
Furthermore, in view of this and against the background of Mockbee's preceding
interrogation of Ramos, I conclude that the Respondents laid off Ramos because he
was either a member of, or about to join, the Union. The Respondents thereby dis-
criminated against Ramos in regard to his hire and tenure of employment, thereby
discouraging membership in District 65 and Local 71 and committing unfair labor
practices within the meaning of Section 8(a) (3) and (1) of the Act.
6. The layoffs of Jules Gutierrez and Carlos Caro
Jules Gutierrez and Carlos Caro worked in the kitchen under Chef Reuling.
Gutierrez was hired as a kitchen helper on October 26, 1959, took a leave of ab-
HOT SHOPPES, INC. 25
sence in November, and returned to work in the beginning of April 1960. Caro was
also hired as a kitchen helper in the middle of December 1959. Both Gutierrez
and Caro signed Local 71 membership applications. Gutierrez signed his application
for employee Rene Sardinas and Caro, for employee Luciano Ramos. On one oc-
casion, Gutierrez had a conversation about the Union in the kitchen with employee
Gonzales and also Joe Aceveda, whom he described as "manager of the kitchen"
but who, as I have found, was not a supervisor. According to Gutierrez, Aceveda
showed his disapproval by shaking his head and turning away. Caro signed up three
other employees for Local 71. On April 23, 1960, Gutierrez and Caro were laid off.
According to the uncontradicted testimony of Assistant Manager Mockbee, which
I credit, he had told Chef Reuling that a layoff was necessary and asked the chef
who should be laid off . Reuling mentioned Gutierrez and Caro , and also Eugenio
Gonzales. The record does not show whether Gonzales had joined any of the Unions
involved in the case. In any event, Mockbee decided to lay off Gonzales as well as
Gutierrez and Caro and gave their layoff slips and terminal paychecks to Chef
Reuling.
Upon this state of the record, I am not persuaded that either Gutierrez or Caro
was selected for layoff because of union membership or activities in spite of the fact
that no more reason for their selection was given than that their names were sug-
gested by the chef to Mockbee as the people who should be laid off. For both were
recent employees , neither was prominently active in the unions ' organizational activi-
ties, and there is no comparison furnished by the record of their status and per-
formances as employees with those of other employees, which might suggest that
their inconspicuous connection with the Unions was the reason why they, rather than
other employees, were laid off. I therefore conclude that the evidence does not
support a finding that either Jules Gutierrez or Carlos Caro was discriminatorily
laid off and shall recommend a dismissal of the allegations of the complaint to that
effect.
7. The strike
As I have found, some of the commissary employees went on strike and began
picketing on April 25, 1960, to protest the layoffs of April 23, 24, and 25, and the
strike and picketing were still continuing at the time of the hearing. I have also
found that four of the layoffs (i.e., of Rene Sardinas, Jose Munez, Willie Cintorn,
and Luciano Ramos) were discriminatory and constituted unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act. I conclude, in agree-
ment with the allegation of the complaint, that the strike was caused by the Re-
spondent's unfair labor practices. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section' I11, B, above, occurring in
connection with the operations of the Respondents set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce'among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
It has been found that the Respondents have engaged in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of,the Act, including discrimination
against their employees in regard to hire and tenure of employment. Since the
Respondents' unfair labor practices "go ,to the very heart of the Act," 14 and consti-
tute a threat of other unfair labor practices in the future, I shall recommend, not
only that the Respondents cease and desist from the unfair labor practices com-
mitted by them and take certain affirmative action in order to effectuate the policies
of the Act, but also that they cease and desist from infringing in any manner upon
the rights of their employees guaranteed by Section 7 of the Act.15
It has been found that the Respondents discriminatorily laid off Rene Sardinas,
Jose Munez, Willie Cintron, and Luciano Ramos in violation of Section 8(a)(3)
and (1) of the Act. I will recommend that the Respondents offer each of these em-
ployees immediate and full reinstatement to his former or substantially equivalent
position, and make him whole (in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289) for any loss of pay which he may have suf-
14 N L R B. v Entwistle Mfg. Co , 120 F. 2d 532, 536 (CA. 4).
15 See May Department Stores d/b/a Famous-Barr Company v. N L R B , 326 U.S 376,
affg. as mod. 146 F. 2d 66 (CA. 8) ; N L R.B. v. Globe Wireless, Ltd, 193 F. 2d 748
(C.A. 9) ; Liberty Coach Company, Inc., 128 NLRB 160
0
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered by reason of the Respondents' discrimination against him, by payment to him
of a sum of money equal to that which he would normally have earned as wages
from the date of his layoff to the date of the Respondents' offer of reinstatement, less
his net earnings during said period.
It has also been found that a number of the Respondents' employees have engaged
in a strike caused by the Respondents' unfair labor practices. I shall recommend
that, upon individual application, the Respondents offer each of these strikers
reemployment, and that, should the Respondents reject any such application, they
shall make the rejected applicant whole for any loss of pay which he may suffer
by reason of such rejection, by payment to him of a sum of money equal to that
which he would normally have earned as wages from the Respondents during the
period beginning 5 days after the date on which he had applied for reemployment
and terminating on the date of the Respondents' offer of reemployment, such loss
also to be computed in the manner set forth in F. W. Woolworth Company, supra.
I shall also recommend that the Respondents, upon reasonable request, make
available to the Board and its agents, all payroll and other records pertinent to an
analysis of the amount due under these recommendations
Upon the basis of the foregoing findings of fact, and -upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Local 71, Transportation Terminal, Interplant and Commissary Food Em-
ployees Union, AFL-CIO, Hotel and Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO; Local 295, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America; and District 65, of the Retail,
Wholesale, and Department Store Union, AFL-CIO, are labor organizations within
the meaning of the Act.
2. Respondent Hot Shoppes, Inc., did not commit the unfair labor practices al-
leged by the complaint in Case No. 2-CA-7283.
3. As alleged in the consolidated complaint in Cases Nos. 2-CA-7349 and 2-CA-
7352, Respondents Hot Shoppes, Inc., and National Caterers of New York, Inc.,
interrogated their employees concerning their membership in, and activities on
behalf of, the Unions referred to in paragraph 1 and threatened employees with
discharge if they assisted, supported, joined , or remained members of these Unions.
By thus interfering with, restraining , and coercing their employees in the exercise
of their organizational rights as guaranteed in Section 7 of the Act, the Respondents
committed unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Rene
Sardinas, Jose Munez (also known as Jose Lopez), Willie Cintron, and Luciano
Ramos , and thereby discouraging membership in the three labor organizations
referred to in paragraph 1, the Respondents have engaged in unfair labor practices
within the meaning of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The strike of the commissary employees which began on April 25, 1960, was
caused by the Respondents' unfair labor practices.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Local 71, Transportation Terminal,
Interplant and Commissary Food Employees Union , AFL-CIO, in Local 295,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Help-
ers of America , in District 65 of the Retail , Wholesale, and Department Store
Union , AFL-CIO, or in any other labor organization of our employees, by
discriminating against our employees in regard to their hire or tenure of em-
plovment , or any term or condition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to assist the
0
above-named Unions , or any other labor organiza-
UNITED STATES LINES COMPANY 27
tion , 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 organization as a condition of employment , 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 to Rene Sardinas , Jose Munez ( also known as Jose Lopez),
Willie Cintron , and Luciano Ramos, immediate and full reinstatement to their
former or substantially equivalent jobs, without prejudice to any rights and
privileges previously enjoyed by them , and we will make them whole for any
loss of wages suffered as a result of our discrimination against them.
WE WILL, upon individual application , offer to each of the commissary em-
ployees who engaged in the strike which began on April 25 , 1960, and who have
not since returned to work or refused an offer of reinstatement , immediate and
full reinstatement to his former or substantially equivalent job, with all previous
rights and privileges.
All our employees are free to become, remain , or refrain from becoming members
of the above-named Unions , or any other labor organization , except to the extent
that this right may be affected by a lawful agreement requiring membership in a
labor organization 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.
HOT SHOPPES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NATIONAL CATERERS OF NEW YORK, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
United States Lines Company and Frederick J. Campbell and
Local 22, Industrial Union of Marine & Shipbuilding Workers
of America, AFL-CIO, Party to the Contract
Local 22, Industrial Union of Marine & Shipbuilding Workers
of America, AFL-CIO and Frederick J. Campbell and United
States Lines Company, Party to the Contract . Cases Nos.
2-CA-7360 and 2-CB--?3901. September 7, 1961
DECISION AND ORDER
On November 25, 1960, Trial Examiner C. W. Whittemore 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 Intermediate Re-
port attached hereto. Thereafter, both Respondents filed exceptions
to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
133 NLRB No. 13.