Howard Johnson Co.

National Labor Relations Board - Board Decisions

May 18, 1979

242 N.L.R.B. 386 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Company and Bartenders, Hotel,
Motel, Cafeteria and Restaurant Employees Union,
Local 116, AFL-CIO. Cases -CA-13696, I CA
13848, 1-CA-13978, and 1-RC- 15382
May 18, 1979
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN FANNING AND MEMBERS MURPHY
AND JENKINS
On December 28, 1978, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
Respondent excepts to the Administrative Law
Judge's finding that Respondent violated Section
8(a)(1) by posting a notice to employees on October
25, 1977, which stated in part:
The Company is strongly opposed to a union in
the restaurant. I am convinced we do not need a
union here. A union will only make things more
difficult for all of us ...
The Administrative Law Judge found that this state-
ment, occurring in the aftermath of coercive interro-
gations and unlawful discharges, tended to create for
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established polic) not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces the resolu-
tions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 1950).
enfd. 188 F.2d 362 (3rd Cir. 1951). We have carefully examined the record
and find no basis for reversing his findings
2 Respondent relies on Coletli's Furniture, Inc, 550 F.2d 1292 (Ist ('ir
1977). and Hubbard Regional Hospital . N. RB., 579 F.2d 1251 (Ist ('ir.
1978), and attempts to characterize this case as one involving mixed motiva-
tion discharges that is, discharges for which there exist both a proper and
an improper reason. The Administrative Law Judge, howeser, with hom
we agree, did not consider this a mixed motivation case since only an im
proper reason for the discharges existed and Respondent's purported motives
were strictly pretextual in nature. Respondent's reliance on mixed mnotiva-
tion cases is therefore misplaced.
Although Chairman Fanning and Member Jenkins adopt, in the absence
of exceptions. the Administrative l.aw Judge's finding that the no-access rule
in issue here is lawful, they do not rely on GTE l.nklurt. Inc,irploWi',i 24
NLRB 921 (1973), in which they dissented.
employees a fear of job insecurity and loss of benefits.
We think Respondent's exception has merit.
Although the notice followed unlawful conduct en-
gaged in by Respondent, we are constrained to find
that the language in issue merely sets forth Respon-
dent's views on the disadvantages of unionism and
does not impart a threatening meaning. In short, we
are unable to equate, without more, the use of the
words "more difficult for all of us" with the phrase
"serious harm" which we have found violative as
threats in several cases.' We also note that the notice
was posted I month after the occurrence of the un-
lawful conduct. Accordingly, we conclude that the
notice is not violative of the Act.
The Administrative Law Judge overruled all of the
Union's objections to the election except the one al-
leging that the above notice was coercive. Since we
have found that the notice did not include a threat,
and thus did not interfere with employees' free
choice, we will overrule the objection and certify the
results of the election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Howard
Johnson Company, Springfield, Massachusetts, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as so
modified:
1. Delete paragraph (d) and reletter the subse-
quent paragraphs accordingly.
2. Insert the following as the penultimate para-
graph:
"IT IS FIRTIIER ORI)ERED that all objections to the
election in Case I RC 15382 be overruled in their
entirety."
3. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF RESULTS OF EECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Bartenders, Hotel. Mo-
tel, Cafeteria and Restaurant Employees Union, Lo-
cal 116, AFL CIO, and that said labor organization
is not the exclusive representative of all the employ-
ees, in the unit herein involved, within the meaning of
Section 9(a) of the National I.abor Relations Act, as
amended.
See, e.g. I/,,t r , nril iris',,. Ii . 194 N.RB 952 (1972: (iri rirJ
ttiiier A/i/s /t, , 162 N.RB 1275 11967)
242 NLRB No. 59
386
HOWARD JOHNSON COMPANY
APPENI)IX
Nol('l To EMPIOYIIS
PoSIII) BY ORDI)ER OF 1111
NATIONAI. LABOR RIAIIONS BOARI)
An Agency of the United States Government
After a hearing at which all parties were represented
by their attorneys and afforded the opportunity to
present evidence in support of their respective posi-
tion, it has been found that we have violated the Na-
tional Labor Relations Act in certain respects and we
have been ordered to post this notice and to carry out
its terms.
The National Labor Relations Act gives you, as
employees, certain rights, including the right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a represent-
ative of your own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from all of these things.
WE Wll. NOI coercively interrogate our em-
ployees concerning their union activity and s m-
pathies.
WE WI.l. NO] grant employees benefits for the
purpose of discouraging their union activities
and sympathies.
WL WlI.l. NOt enforce a rule excluding non-
working employees from our premises against
employees engaging in union activities in the ab-
sence of justifiable business reasons.
W: l i.l. NrI publicly humiliate union repre-
sentatives b barring them from our premises in
the absence of a justifiable business reason.
WI: Will. NO I discourage membership in or ac-
tivities on behalf of Bartenders. Hotel. Motel.
Cafeteria and Restaurant Employees Union. o-
cal 116, AFL, CIO, or any other labor organiza-
tion. by discharging or otherwise discriminating
against our employees in anx manner.
Wt WltIi. NOI in an)' other manner interfere
with, restrain, or coerce employees in the exer-
cise of the rights guaranteed them by Section 7 of
the National Labor Relations Act.
Wi: wii ti pay Neal Tesini and Jeffrey Phillips
for any loss of pay thev have suffered as a result
of our discrimination against them, plus interest.
HOWARI) JOIINSON COMPI'ANY
[)DE(ISION
SIAII:MIN I 1 1111 (ASI
TIIOMAS R. Wit KS, AdministratiCe l.aw Judge: A hear-
ing in this consolidated proceeding was held on April 24.
25, 26. and 27. 1978. at North Hampton. Massachusetts,
based upon unlfair labor practice charges filed against How-
ard Johnson Company, herein called Respondent. hb Bar-
tenders, Hlotel. Motel. (afeteria and Restaurant Emplo ees
Union. Local 116, AFL CIO. herein called Charging Party
or Utnion, and a series of complaints, and amended com-
plaints. and orders issued by the Regional Director, the lat-
est of which, a further order consolidatine cases, second
amended complaint and further notice of hearing, issued on
March 2. 1978, alleging that Respondent violated Section
8(a)( ) and (3) of the National Labor Relations Act as
amended. Respondent filed an answer which denied the
commission of unfair labor practices.
Pursuant to a petition for an election filed on September
28. 1977. and a Stipulation for Certification Upon Consent
Election Agreement executed by the parties on October 25,
1977. and appro'ed by the Regional D)irector on October
26, an election by secret ballot was conducted Case 1 RC
15382 on [)ecember 16. 1977. under the supervision and
direction of the Regional Director for Region I in the unit
consisting of:
All full-time and regular part-time emploNees em-
ployed hb the employer at its Columbus Aenue
Springfield, Massachusetts location, but excluding the
Manager, Assisant Managers. guards and super' isors
as defined in Section 2( 1 ) of the Act.
Ihe tallx of ballots is as follous:
Approximate number of
eligible voters 26
Void hallots O
Votes cast for petitioner I
Votes cast ag.inlst
participating labor
orga nia tion 24
Valid votes counted plus
challenged ballot,, 28
On l)ecember 23, 1977. the petitioner filed timely objec-
tions to conduct affecting the results of the election.
()n January 27. 1978. the Regional [)irector issued a re-
port on objections in which he approved the withdrawal of
ObJections I. 2. 3. 5. 7. 8. and 9, and concluded that the
remaining Objections 4. 6. and 10-16 alleged conduct
which is identical or closely related to that conduct alleged
in the unfair labor practice proceeding. and therefore
should be resolved atter a hearing before an administrative
law judge. B subsequent order, the remaining objections
were consolidated with the unfair labor practice proceed-
ing.
()n July 24 and 25. briefs were submitted by Respondent
and the General Counsel.
On the entire record in this case. including my observa-
tion of the tness and their demeanor. after an ealuation
of the inherent probabili of their testimon>. and after con-
sideration of briefs. I make the following:
tI he ;m 1 the unlln a;..t, amended .a the hearing
387
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
At all times material herein Respondent has maintained
a restaurant business at 337 Columbus Avenue, in the city
of Springfield, Massachusetts. Respondent annually attains
a gross volume of business in excess of $500,000, and re-
ceives from points located outside of the commonwealth of
Massachusetts goods valued in excess of $50,000. Respon-
dent is and has been at all times material herein an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent denies the labor organization status of the
Union. Although the record reflects that the Union has on
occasion abbreviated its formal title, I conclude that it is
the same organization which filed the original petition in
this case and which participated in the election process. I
further conclude that the record adequately establishes that
it satisfies the statutory indicia and therefore constitutes a
labor organization within the meaning of Section 2(5) of the
Act.
111. THE UNFAIR LABOR PRACTICES
A. Procedural Matters
The General Counsel served a subpoena duces ecumn
upon Respondent's area manager, Gerald Sousa, on April
21, the Friday preceding the hearing which commenced on
Monday, April 24. Respondent contended at the hearing
that it had pursuant to Section 102.31(b) of the Board's
Rules and Regulations a right to a minimum of 5 working
days before which it must either comply with a subpena or
file a petition to revoke. Therefore, upon the General Coun-
sel's demand for production of the subpenaed material at
the opening of the hearing, Respondent refused to satisfy
that request but rather insisted upon its contended right to
a 5-day grace period. Respondent's counsel conceded that
at a point in time in excess of 5 days prior to the hearing
date he had become aware of the substance of an indentical
subpoena duces ecum that the General Counsel had served
upon Respondent's former store manager, Bart Foley on or
about March 30, 1978, at a time when Foley no longer was
in Respondent's employ. The General Counsel conceded
that service upon Foley failed to constitute proper service. I
concluded at the hearing that the Board's rules were not to
be mechanically interpreted nor applied so as to effectively
guarantee Respondent an absolute right to a 5-day grace
period, particularly when its counsel had become apprised
of the aborted service and was aware that the General
Counsel was anticipating production of the subpenaed ma-
terial under an assumption that proper service had been
effectuated. I therefore directed Respondent to respond by
either satisfying the demand, or by filing with me at the
hearing a petition to revoke. Respondent refused, but rather
expressed an intent to file a petition to revoke upon the
expiration of the fifth working day.
The counsel for the General Counsel thereupon immedi-
ately requested that I draw an adverse inference from Re-
spondent's refusal to satisfy the demand of the subpoena
duces tecum, which on its face was very broad and covered
an extensive period of time. I refused to make any infer-
ences in the face of a barren record and prior to the submis-
sion of any evidence by the General Counsel. I directed the
counsel for the General Counsel to either seek a continu-
ance for subpena enforcement, or to proceed with second-
ary evidence where he was able, and that thereafter any
inferences would be drawn from the record as it was consti-
tuted in light of Respondent's noncompliance with the sub-
pena.
Upon partial submission of the General Counsel's case,
Respondent advised the General Counsel that it had par-
tially surveyed the material within the scope of the subpena
and therefore offered to comply with the subpena, in part,
immediately, but Respondent also asserted that it would file
a petition to revoke, in part, at a later date. The General
Counsel refused to accept the partial offer. At the conclu-
sion of the General Counsel's presentation of witnesses,but
prior to resting, Respondent offered to immediately comply
with all aspects of the subpena. Respodent offered to make
available any adverse witness requested by the General
Counsel. The General Counsel declined to accept that offer
and declined a further offer of a continuance or recess of
whatever length he desired to evaluate the subpenaed mate-
rial and to adduce any additional evidence. The General
Counsel instead insisted that I draw "adverse inferences."
from Respondent's noncompliance. The counsel for the
General Counsel also asserted that his right to present his
case in proper order was subverted by Respondent's con-
duct. He did not delineate what portion of the subpenaed
material was appropriate to his case-in-chief and what por-
tion was more appropriate as rebuttal evidence. The coun-
sel for the General Counsel argued that he had an absolute
right to present his evidence in the manner and sequence
that he saw fit. He did not adduce any of the proffered
material as part of his rebuttal presentation. I ruled that
Respondent's initial position was based upon an arguably
valid interpretation of the rules, and therefore did not con-
stitute in my opinion, a flagrant and willful noncompliance.
nor did it constitute contumacious conduct. Accordingly. I
refused to base any adverse inference upon the initial non-
compliance with the subpoena duces tecum.
The General Counsel at no point during the hearing, nor
in his brief, set forth what specific adverse inferences ought
to be drawn, but rather argued that I ought to "draw all
adverse inferences that can be drawn from Respondent's
noncompliance." However, having reviewed the record. I
conclude that the issues raised by Respondent's initial: non-
compliance remain largely academic, and that the factual
issues raised arise from the testimonial evidence of both the
General Counsel and Respondent and are resolvable by the
normal rules of evidence, an evaluation of whether the
General Counsel has met his burden of proof and burden of
moving forward, and whether Respondent has rebutted a
prima facie case and maintained his burden of proving an
affirmative defense.
388
HOWARD JOHNSON COMPANY
B. Substantive Lrsues
1. Background
Respondent maintains a restaurant on Columbus Avenue
in Springfield, Massachusetts. The restaurant is located on
an interstate highway. Adjacent to it is a cocktail lounge
called the "Wine Taster" and a motel. The lounge and mo-
tel are not part of Respondent's operations, but are part of
a building complex separated from the restaurant by a
parking area. The lounge can be seen from the front foun-
tain area of the restaurant, i.e., through a large glass win-
dow. The interior of the lounge however, is not viewable.
The motel is located toward the rear of the restaurant. The
interior of the restaurant is comprised of the fountain,
counter and cash register area, a dining room area, a rear
kitchen, and an office to the rear of the kitchen. A "cook's
window," or aperature is situated between the cash register-
fountain area and kitchen. The dining room is "L" shaped.
The front portion is viewable from and adjacent to the
fountain counter, and contains booths. The rear dining area
contains tables, booths, and restroom facilities. The main
entrance is at the front fountain counter area.
Bart Foley assumed the duties of restaurant manager at
Columbus Avenue in late August or early September 1977.2
There were about 25 employees in his supervision who
worked on a three shift basis. The restaurant was open for
business on a 24-hour basis. He was assisted by Assistant
Manager Tom Kwopia, and "assistant" or "night man-
ager," Tom Moynihan. Foley's superior was Gerald Souza,
area manager, who was and is responsible for the total op-
eration of 10 facilities in western Massachusetts and Ver-
mont. Indirectly involved herein is Edward Wilcox. restau-
rant manager at the West Springfield restaurant located 5
miles from the Columbus Avenue facility. All managers re-
ferred to herein are admitted supervisors and agents of Re-
spondent.
2. The organizational drive
There is no evidence of any past history of union activity
at the Columbus Avenue restaurant which I will refer to
herein as the restaurant. The idea of organizing the employ-
ees at the restaurant, was initiated by John Dryden, the
husband of Lynn Dryden, a waitress. John Dryden, a non-
employee, testified that he entered on duty in September as
a special organizer for the Union. Lynn Dryden had been
employed by Respondent from February to April and after
a hiatus, again from September to January 1978. John Dry-
den had acquired some familiarity with the restaurant prior
to his union employment inasmuch as he had occasion to
transport his wife to and from work and he used those occa-
sions to frequent and patronize the restaurant.
John Dryden testified that he first discussed the possibil-
ity of organizing the employees in August. This is unlikely
because his wife was not hired until the first week of Sep-
tember, and he himself was not employed by the Union
until some unspecified date in September. John Dryden
conceded that the first steps that he took to organize the
2 All dates are hereinafter 1977 unless otherwise noted.
employees at the restaurant occurred on an unspecified date
in September. He then testified as to his solicitation of
union authorization cards from employees in his vehicle
near the restaurant, and at his apartment which b happen-
stance was located one floor below that of another em-
ployee waitress. Linda Garlick. His testimony at the hear-
ing was at variance with that of his pretrial affidavit as to
where those solicitations took place. In his pretrial affidavit
John Dryden testified that soliciations were initiated at a
place of business called the "Big Y." His testimony placed
the solicitations of employees at the "Wine Taster," as well
as in his vehicle.
John Dryden and all the General Counsel's witnesses
were very obscure and uncertain as to the actual initiation
date of union organizational activities. TheN testified
merely to a "September" commencement. l.ynn Dryden re-
ferred to a meeting of employees in Garlick's apartment in
the second or third week of September, and then a tbllow-
up meeting in the third week of September. Linda Garlick
testified that John Dryden was introduced to her after she
moved into the same apartment building, and thereafter he
solicited her union support in September. He asked her to
sign a union authorization card and she did so after think-
ing about it for I day. Her card is dated September 2).
Lynn Dryden's card is dated September 21.
Employee Jeffrey Phillips. a dishwasher who was hired in
August, testified that he was approached by fellow em-
ployee Neal Tesini and Patrick Lizewski with respect to
possible union representation in September. and that all
three of them visited Linda Garlick at her apartment to
more full) explore the matter where Phillips signed a union
card which is dated September 23. Lizewski testified that he
signed a union card at the Dryden apartment. Tesini and
Lizewski's cards are dated September 21. Tesini testified
that the subject of union representation was first discussed
at the first meeting of employees, i.e., Lizewski, Phillips.
Lynn Dryden, Garlick, himself, and John Dryden at Gar-
lick's apartment, at which time Tesini signed a union card.
In total the Union obtained authorization cards on the
following dates:
Tuesday
Wednesday
Thursday
Friday
Monday
Sept. 20 3
Sept. 21-3
Sept. 22 -3
Sept. 23-2
Sept. 26- 1
3. Interrogation of September 24
Manager Foley testified that on Saturday. September 24,
at the restaurant he was advised by waitress Donna Sulli-
van that employees were distributing union authorization
cards. He testified that she appeared upset and that he told
her to "calm down." and that he would "take care of it."
According to Foley, she told him that Tesini had signed a
union card. Foley immediately thereafter summoned both
Tesini and Lizewski to his office in the restaurant and while
alone admittedly interrogated them as to whether they had
any information as to the union organizing effort. They re-
sponded negatively and were told "if ou don't know any-
thing about it, then go back to work." The) thereupon re-
turned to work.
389
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foley testified that he was not satisfied, but was con-
vinced that they did know something and that he shortly
thereafter summoned Tesini out to his, i.e., Foley's, auto-
mobile in the parking lot where the two of them were
alone.' Foley insisted to Tesini that Tesini actually did
know something about the Union and according to Foley
"[Tesini] opened up a little bit." Foley testified that he ex-
pressed surprise and dissappointment that Tesini had not
come to him first with any problem, especially since he had
treated Tesini well by putting him on a full-time shift in-
stead of only part-time employment. According to Foley.
Tesini explained that they had executed union cards but
that it merely meant that they could obtain an election, and
that he, Tesini, would vote for the Company. Foley, how-
ever, admittedly persisted in expressing his disappointment
inasmuch as he "could have worked something out."
Tesini corroborates Foley as to the date of the interroga-
tion. Lizewski had no recollection of the date. Tesini testi-
fied that during the second interrogation Foley asked him
whether he had signed a card and upon his admission of
doing so, Foley asked him whether he knew if anyone else
did, to which Tesini responded negatively. Tesini further
testified that Foley expressed a dislike for union representa-
tion inasmuch as unions did not effectively help employees.
This was not denied by Foley. Tesini was rather uncertain
and vague as to the balance of the conversation, but testi-
fied that he told Foley that he meant nothing by signing the
card and that he said that he probably was not going to
vote for the Union. He did confirm that Foley expressed
surprise and that Foley had told him that he was previously
unaware of any union activity.
In light of the foregoing evidence, it does not appear
likely that any active union organizational efforts occurred
prior to the third full week of September, i.e., Monday,
September 19. Moreover, it is also evident that Manager
Foley was genuinely surprised upon observing that union
activity had occurred on or about September 24. It is also
clear that despite Tesini's promise to vote for the Company,
Foley persisted in expressing concern over Tesini's execu-
tion of a union card.
C. A.lleged Respondent Coercion and Inter/erence
I. Granting of benefit to Tesini
Tesini entered on duty as a dishwasher in the third week
of August. He later became a cook or "food preparer." lie
worked in excess of 40 hours a week through the first 2
weeks of September. Thereafter, he and Foley engaged in a
conversation wherein Foley advised him that inasmuch as
he had worked without overtime compensation, he was to
receive a week off with pay. Tesini was extremely uncertain
and confused to the date of this conversation. He could not
recall whether it occurred before or after Foley's interroga-
tion of September 24. Tesini testified that it occurred on the
Friday preceding his week off. i.e., September 23, having
first estimated that it occurred on September 20 or 22. At
one point, he testified that it occurred on the same day as
Foley did not explain how he acquired a suspicion that l.izewski also
signed a card.
the interrogation, but he then changed his testimony to
place it during the preceding week. There was admittedly
no reference to union activities in the conversation.
Foley placed the conversation as having occurred on
September 22 or 23 on the weekend preceding the week off
with pay that Tesini was granted commencing on Septem-
ber 27. Foley himself was visibly uncertain as to the date
and engaged in open speculation prior to fixing the dates in
his testimony as September 22 or 23. I am convinced that
the announced granting of the paid week off occurred sub-
sequent to Foley's interrogation of Tesini. Had it occurred
prior to that time, Foley most probably would have re-
minded Tesini of this most recent benefit during the interro-
gation inasmuch as he reproved Tesini for his ingratitude
by alluding to his past good treatment, i.e., promotion to a
full-time position. It would have been too recent for Foley
not to have mentioned it. Moreover, it is in accord with
Foley's statement to Tesini that any past problems could
have been worked out without a union, and it most likely
served an immediate example of such intent.
2. Interrogation of Linda Garlick
Employee Linda Garlick testified that subsequent to her
execution of a union authorization card on September 20,
she was, on September 24 or 25, summoned to the office of
Night Manager Moynihan, at the rear of the kitchen area,
and asked, "Have you been talking to John?" She re-
sponded , "yes. I have been talking to John. I see him every
day, because he lives downstairs from me." That is a total-
ity of what was said by either person. She turned and
walked out.
3. The alleged "()Overly Broad No-Access Rule"
Frank Pieciak entered on duty as a waiter at the restau-
rant on a date between October I and 15. He testified that
although no rules or policy manuals were given to him per-
sonally. he had observed notices to employees already
posted in prominent areas. One related to nonsmoking and
the other concerned employee access to the restaurant dur-
ing the employees nonworking hours, i.e., nonworking em-
ployees were forbidden to enter upon the premises without
permission of the manager.
Foley testified that he assumed his duties as manager in
late August and that during the first week of September he
had posted a notice to employees which prohibited em-
ployee access to the restaurant during off-duty hours unless
permitted by the manager or unless engaged in for the pur-
pose of picking up a paycheck. Foley explained that he had
observed employees loitering in the restaurant before and
after their respective shifts and in so doing they took up
space intended for customers. Furthermore he was wary of
employees being served food and beverages because, being
unfamiliar with them, he was uncertain whether they were
actually paying for the food and services they received. Ad-
ditionally, they conversed with on-duty employees and
tended to interfere with the service of customers.
Phillips testified that he first observed this notice "ap-
proximately on the 24th or 25th of September, maybe."
Nothing was previously said to him about being present
during off-duty hours.
390
HOWARD JOHNSON COMPANY
Lynn Dryden testified that the notice was posted in late
September in the third or fourth week of the month, and
that she herself had drafted and posted the notice at Foley's
direction. Tesini recalled having observed the notice in
"maybe" the second week in September. None of the em-
ployees seemed very certain in their recollection, but rather
appeared to be engaging in speculation.
Foley testified that in addition to the hand-drafted no-
tice, he also posted certain pages of Respondent's "Here's
To You" employee manual.
This manual, he conceded, was in short supply and he
was possessed of only a few copies that he had filched from
another Respondent restaurant where he had been em-
ployed previously. According to Foley, it is within the dis-
cretion of the store manager whether to promulgate and
enforce the rules contained therein. The pages posted dealt
with several areas such as employee uniform condition.
Page 5 related to nonloitering during off-duty hours. There
is no evidence that such rules were ever previously promul-
gated at the restaurant, and when testifying as to an inci-
dent involving enforcement with respect to an employee of
long tenure at the Columbus Avenue restaurant Foley as-
sumed that such rule had not been applied in the past at
that location.
In view of the lack of any certitude of the employees as to
the date of publication, and in view of Foley's certain and
detailed testimony, and his plausible explanation for its
publication, and in light of a preexisting basis for the rule in
the "Here's to You" booklet, I credit Foley that the rule
was promulgated prior to his awareness of any ongoing
union activity.
As to the application to the rule, it appears that the rule
itself was not universally applied before or after the initi-
ation of union organizing at the restaurant. Employees were
allowed to enter the premises, e.g., to pick up other employ-
ees. Employee Pieciak served off-duty employees in the
presence of Managers Foley, Moynihan, and Kwapian.
Foley conceded that there were several occasions when
he had observed nonworking employees on the premises
and he did not choose to enforce the rule.
The specific alleged discriminatorily application of the
rule will be discussed infra with respect to the discharges of
Tesini and Phillips and the harassment of employee Lynn
Dryden. The testimony of Lynn Dryden and Pieciak is con-
tradictory as to when the rules were removed. I fully credit
Foley that the no-access rule remained posted until his ter-
mination of employment as manager in March 1978.
4. September 28 interrogation of a job applicant
In September, Daniel Katz was employed by the Union
as a special organizer, and was aware at that time of the
organizational activity at the Columbus Avenue restaurant.
In late September he observed an employment ad placed by
Respondent in the local newspaper for waiters, cooks, etc.
The interviews were set at the West Springfield location.
Katz testified that despite the fact that he had no intention
of seeking employment, he represented himself to Respon-
dent as a job applicant and interviewed for a job with Man-
ager Wilcox at the West Springfield location. On his written
application he falsely indicated immediate availability at
any' time. He explained that it was his assumption that Re-
spondent was "trying to bust this union drive." and that
Respondent either intended to build a pool of replacements
for the Columbus Avenue employee complement or "at the
minimum they are talking to the people in Springfield
about the union drive." He therefore set out to see whether
his assumptions were correct.
However, during the course of the interview it was Katz,
not Wilcox, who raised the subject of the Union. Katz sug-
gested to Wilcox, that Katz' former employer went out of
business not for ostensible financial reasons or personal rea-
sons, but did go out of business because of a union organiz-
ing effort. According to Katz, Wilcox said something "to
the effect" that the drive will fail and thereupon asked Katz
whether he had "ever been in a union." Katz replied nega-
tively.
Wilcox recalled the interview, as one of many he had
conducted over a 2-day period of time, and testified to hav-
ing no recollection of any interrogation of Katz' as to his
union activities. I construe Wilcox's testimony as a rather
clear denial of the interrogation allegation.
I do not find Katz to be a credible witness. It is clear that
he approached the interview with a biased mental set and
that he fully expected Respondent to raise the subject of
unions. When Wilcox failed to raise the subject Katz did so.
Katz' recollection of what was said was admittedly conclu-
sionary. Under these circumstances I cannot find his testi-
mony reliable and I discredit him.
5. The ejection of Union Organizer Dryden
Manager Foley testified that on Saturday, the 24th. or
Sunday, the 25th. he telephoned Area Manager Gerald
Sousa in Boston. Massachusetts, and advised him of"pretty
serious problems" and explained that "some of the employ-
ees" had executed union authorization cards. Foley denied
that he ever told Sousa the identitx of any of the card sign-
ers, or that Sousa had ever asked him such identity. Sousa
testified that he received a call on Sunda, the 25th. and in
consequence he met with Foley at the restaurant between
9:30 and 10 o'clock Monday and spent the rest of that day
there, looking around "to see what was going on." Sousa
testified that while he and Foley were seated at the foun-
tain, he observed John Drvden and Patrick Lizewski enter
and obtain service at the counter. Lizewski appeared to be
intoxicated.' Lizewski was not scheduled to work that day.
Nothing was said to Lizewski about entering the premises
during off-duty hours. Nothing was said to either Lizewski
or Dryden on any subject. Sousa testified that in response
to his inquiry Foley advised him that Lizewski was 17 years
of age and a legal minor. Lizewski and Dryden left without
incident.
The following day when Dryden attempted to enter the
restaurant to obtain lunch. Sousa objected to his presence
and told him that he was barred from the restaurant. Dur-
ing the course of discussion, the police were summoned.
Thereafter Dryden was barred from the premises. The ini-
tial reason given to Dryden was barred from the premises.
' Drsden admitted that l.izewski was actually intoxicated when he. Dr,-
den, had iniliall' encountered izeski earlier to heir entenng the reslau-
ranl
391
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The initial reason given to Dryden was his alleged bad in-
fluence upon minors i.e., causing the intoxication of Lizew-
ski. Thereafter John Dryden identified himself as a union
organizer. However, he was ordered to leave the premises
pursuant to Sousa's request of the police officers. Dryden
testified that after he was requested to leave he demanded
to know whether it was because of Respondent's letter
dated September 27 demanding recognition. Sousa re-
sponded: "That's a bunch of crap."
According to Sousa's testimony there was no reference in
that encounter by either person to a demand letter. The
letter itself was sent by certified mail. Sousa testified that he
received the September 27 demand letter at 1 p.m. on Sep-
tember 28. No return receipt was offered into evidence.
Sousa testified that although he could not recall whether he
signed a receipt for this particular letter he did so for other
communication that was forwarded to him from the Union.
Lynn Dryden testified that on December 17 after the
Board conducted election she asked Foley if her husband
could enter the restaurant and that he responded: "Now
that all this union crap is over with, yea." Foley did not
deny this statement. I credit her.
Respondent contends that at the time of the ejection of
John Dryden it was unaware of his status as a union orga-
nizer. Admittedly Sousa was apprised of organizational ac-
tivity that caused Sousa's presence at the restaurant. He
admittedly came to discover "what was going on." Foley
admittedly interrogated employees. He had questioned Te-
sini as to the identity of other card signers. John Dryden
was known to Sousa prior to union organizational efforts.
Manager Moynihan's above described oblique interroga-
tion of Linda Garlick occurred on or about the date Foley
interrogated Tesini and Lizewski. Moynihan's silence in the
face of her reference to John's residence in the same apart-
ment building constitutes a tacit recognition that Moynihan
knew to whom she was referring, i.e., John Dryden.
Thus Respondent was attempting to find out who signed
cards. It knew by Foley that Testini and Lizewski had
signed cards. It contemporaneously was seeking to find out
whether employee Garlick was in communication with
John Dryden. Dryden utilized the adjacent cocktail lounge
as a contact point. It is inherently improbable that Sousa,
who had arrived to gather information, did not ask nor was
told by Foley of the results of Foley's interrogations. Under
such circumstances, the inference is clear that Respondent
had discovered or surmised that John Dryden was soliciting
support for the Union at least by September 27. This infer-
ence is reinforced by the lack of a rational basis for the
expulsion of Dryden from the restaurant. Although Lizew-
ski may have been intoxicated on the 26th, there is no basis
for Sousa's assumption that Dryden had caused Lizewski to
become intoxicated merely because they entered the restau-
rant together. If anything Dryden was trying to get Lizew-
ski sober. Sousa testified to no apparent indicia of intoxica-
tion or alcoholic consumption by Dryden. Clearly the only
connection Sousa could have between Dryden and Lizewski
was based upon some knowledge that Dryden was contact-
ing employees in the lounge. Accordingly I conclude that
the only probable reason that Sousa excluded Dryden from
the restaurant was his activities on behalf of the Union.
Such conduct will appear more apparent as Sousa's subse-
quent conduct vis-a-vis the employees is evaluated.
6. The discharge of Tesini and Phillips
Foley testified that he and Sousa had been sitting at the
fountain in the restaurant on the evening of September 27.
At 9 or 10 p.m. Foley left the premises to go to his home to
shave and shower. Wilcox joined Sousa at the counter.
There is no explanation in the record for Wilcox's presence
at the Columbus Avenue restaurant. While Sousa and Wil-
cox remained at the counter, Sousa testified that he ob-
served Tesini come from the dining room area rapidly, and
after glancing at Sousa, Tesini went "storming out the
door." Tesini pushed the exit door vigorously as he de-
parted and caused it to bang against the outer wall. Sousa
further testified that he and Wilcox exited and observed
Tesini running down the sidewalk. Sousa and Wilcox went
to the side of the restaurant near the cocktail lounge. They
encountered Foley as he drove into the parking lot. Sousa
then told Foley: "I [want] Neal Tesini discharged for con-
duct while I was there." At that moment all three of them
observed Phillips "flying" past them and into the restau-
rant.
Earlier that night Tesini and Phillips had come to the
restaurant to pick up Lizewski who was on duty. Phillips
also inquired of Night Manager Moynihan as to the work
schedule for the next day. Phillips had proceeded to the
parking lot where he had encountered John Dryden. As
Phillips joined Dryden, Tesini was using the toilet facilities
to the rear of the dining area, at a location not visible from
the counter. Tesini admitted that he pushed the door exces-
sively as he left and thus he caused the door to bang against
the wall. He did so, he testified without contradiction and
credibly, because that door had a tendency to stick on occa-
sions. This time it unexpectedly opened freely. Meanwhile
Phillips was talking to Dryden. As Foley arrived Dryden
asked Phillips to reenter the restaurant and give a message
to waitress "Liz" to the effect that Dryden would be avail-
able to talk to her at the cocktail lounge when she came off
duty. Phillips and Dryden talked in Dryden's car. Foley
drove into the parking area at that time returning from his
shave and shower. Dryden testified that he observed Foley
go into the restaurant and return with Sousa and Wilcox
and that Foley pointed at Dryden as they were in his car.
Phillips testified that he left Dryden and walked past Foley,
Sousa, and Wilcox, and reentered the restaurant. According
to Phillips, Dryden, who was accompanied by Mrs. Dry-
den, proceeded to walk into the cocktail lounge.
After Phillips proceeded past Foley, Sousa, and Wilcox,
and entered the restaurant he went up to the cook's window
behind the cash register. Sousa, Foley, and Wilcox followed
him. Sousa testified that Phillips "yelled" out "does any-
body want to join the Union?" Sousa testified: "I got really
rambunctious ... really mad ... ," and that Phillips then
"flew" by and out of the door. According to Sousa he said
to Foley at that point: "that's it. Those two people are
terminated as of now."' Sousa then instructed Foley not to
reinstate "anyone" unless cleared by him.
Phillips denied yelling. He testified that Liz was about
some 4 feet away from him behind the kitchen window, and
that he told her that Dryden was a union organizer and
Note that Sousa had testified earlier that he had already fired Tesini.
392
HOWARD JOHNSON COMPANY
would be available to talk to her after work next door, and
that he turned and walked out.
Foley testified that as he returned to the restaurant and
drove into the parking lot he observed Phillips meeting with
Dryden, and that as he parked he saw Sousa and Wilcox
and both appeared to be upset. According to Foley they
followed Phillips into the restaurant and that Phillips "very
loudly yelled, . . . Do you want to join a Union?" Foley's
testimony is that at that point Sousa ordered him to dis-
charge Tesini and Phillips. Wilcox testified as to other mat-
ters, but not as to this incident.
Lizewski at first characterized Phillips as having yelled
through the window whether anyone wanted to join the
Union. From Lizewski's position in the rear of the kitchen
near a noisey dishwashing machine, it is fairly clear that
Phillips, if not yelling, was speaking in a very loud voice. I
found Lizewski, a General Counsel witness, to be very re-
sponsive and candid. I credit his testimony as to what Phil-
lips said and how he said it.
Foley testified that he had not observed Tesini on the
night of the 27th prior to Sousa's demand for his discharge.
According to Foley, Sousa's only instruction to him in the
matter was that Tesini and Phillips were discharged and
nothing else. He therefore went out to the parking lot and
encountered Tesini. According to Foley, he asked Tesini
what he had done to which Tesini responded that he merely
used the toilet facilities. Foley then told Tesini that he had
not discussed the matter with Sousa yet, but that Sousa had
ordered the dismissal of Tesini and Phillips. Foley protested
that he was ignorant of what had occurred. Tesini then told
them that he had slammed the door. According to Foley at
that moment Phillips walked over to them from the cocktail
lounge and Foley greeted them by telling him that they had
done a "pretty stupid thing." Phillips was told that he was
discharged. Foley then stated to them: "I can't understand
why the two of you would do something like this." Foley
testified that Tesini was an excellent employee and that
Phillips was a good employee. Tesini asked asked Foley if
he were discharged for using the restroom, and Foley re-
sponded "that's not it." Foley explained in his direct testi-
mony that he made that statement because he did not know
why Tesini was discharged. According to Foley, Phillips
remained silent and merely shrugged his shoulders indiffer-
ently. Foley was aware that neither Phillips nor Tesini were
on duty that night. He made no allusion to that fact nor to
the no-access rule when he talked to them according to his
direct testimony.
Phillips testified that Foley told them that they were dis-
charged by Sousa because they were on the premises while
not on duty and that Tesini had slammed the door, but that
if it were within his discretion alone he would fire neither of
them as they were good workers; and that Foley stated that
Sousa would probably "rehire them after all this blows
over." On cross-examination Phillips testified that he was
not sure whether it was Foley or Tesini who referred to the
door slamming. According to Tesini, Foley told them that
they were discharged because of their presence on the
premises and then Foley asked them why they were pre-
sent. When Tesini explained that he used the restroom, Fo-
ley then asked them if they were not aware it was against
the rules. Tesini responded affirmatively, but asserted that
he merely used the bathroom. Tesini could not recall what
Foley said after that, although he did make reference to the
no-access rule. Tesini testified that on September 28, he and
Phillips came for their paychecks and engaged in a conver-
sation with Foley at the restaurant. In that conversation
Foley told them that in about I month both of them could
get their jobs back, and that Sousa was angry and it would
take a month before they could return. He further told Te-
sini that he would receive $2.75 for 30 hours of work for his
week off with pay instead of $2.50 for 40 hours because
Sousa would not like him to get paid for 40 hours having
been discharged in midweek. Tesini was reinstated on Janu-
ary 23, 1978. He voluntarily quit on March 19, 1978. Phil-
lips was reinstated on February 6 and voluntarily quit in
mid-March 1978.
Foley testified that during the September 27 exit inter-
view, it was Tesini who asked "after all this business blows
over with the Union ... do you think we can get out jobs
back?"; and that he responded "I don't know. It's not my
decision: it's not up to me whether you can be reinstated or
not." Foley explained in direct testimony that he did not
discharge them. In cross-examination Foley testified that he
did not fire Tesini and Phillips because of a breach of the
no-access rule, but that he did discharge them because of
their conduct in the restaurant on the night of September
27. He went on to explain that Tesini had behaved in "a
violent manner" in exiting from the restaurant. However he
caught himself in an apparent realization of the contradic-
tion in his direct testimony and then insisted that he did not
know the basis for the discharge of Tesini at the time. iHe
then testified that he did advise Tesini and Phillips during
the exit interview that they were discharged because of their
presence in the restaurant during off-duty hours. However,
Foley had also testified on cross-examination that he did
not ask Sousa why Tesini was discharged, even though he
was concerned about it. Thus Foley's testimony is replete
with contradictions. Furthermore, it was coupled with a
most agitated, uncertain. and hesitant demeanor that ren-
dered him a most unreliable witness.
On cross-examination, Sousa conceded after much eva-
sion that he was physically unable to observe the restroom
from the fountain area, but that he assumed that Tesini had
come from the restroom or "heard it from someone." He
denied that Phillips' message was what angered him but
asserted that it was Phillips' conduct, i.e., Phillips had no
business to be behind the counter, he was not on duty, and
furthermore he displayed an offensive "attitude." After
some visible hesitation Sousa explained that Phillips
seemed to be "out to prove something." Sousa then ex-
plained that he drew such a conclusion from the fact that
Phillips had run in and run out. Sousa conceded that Phil-
lips had been in the restaurant for a total of 90 seconds. In
a further explanation, Sousa testified in a confusing and
hesitant manner as to conversations that he had with the
cook in regard to a waitress who was upset at the time. No
explanation was made to him as to why the waitress was
upset. He rendered a very confused and convoluted account
as to the purported fears of the waitress to leave the restau-
rant. He also testified that a customer was upset. He first
testified that the cook told him that the employees and cus-
tomers were "upset." Then he testified that the cook told
him that employees were upset and she did not tell him the
393
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customers were upset. When pressed for an explanation of
how he determined that customers were "upset," he ex-
plained that one customer asked him "what's going on.
What's the ruckus?" The customer said nothing about
being upset. Sousa conceded that he assumed that the cus-
tomer was upset. His demeamor with respect to the above
testimony was markedly strained, hesitant, confused. and
he appeared to be bereft of the type of responsiveness asso-
ciated with candor. In any event all this testimony with
respect to cooks and waitresses who possessed some unex-
plained fears and the assumed disturbances of' customers
related to events subsequent to Sousa's decision to termi-
nate Phillips and Tesini.
With respect to Tesnini, Sousa gave no explanation as to
why his conduct was so offensive. In light of Foley's testi-
mony and Sousa's own contradictory testimony as to pre-
cisely when he decided to discharge Tesini I conclude that
it had occurred after Sousa had observed Phillips' meeting
with union organizer Dryden in the parking lot and after
Phillips had made his announcement through the cooks'
window in reference to the Union.
Sousa conceded that although he did not actually observe
the work performance of Tesini and Phillips, he was aware
of it. Respondent offered no evidence of any announced
and enforced rules with respect to employees' decorum dur-
ing off-duty hours. No rules were offered into evidence as to
what type of employee horseplay or exuberance is prohib-
ited under the penalty of discharge. There is no evidence
adduced that any employee has been discharged b Re-
spondent for similar behavior. Sousa did testify vaguely
that he had had occasion to discharge employees for horse-
play, but he did not cite any specific example. iHe conceded
that Respondent's personnel records would reflect the rea-
sons for past employee discharges. No such records were
offered into evidence.
7. Alleged campaign of harrassment and coercion of
Lynn Dryden surveillance: uniform harassment: shift
changes; reduction of hours: onerous work tasks: and
reduction of hiatus between shifts
Lynn Dryden. the wife of union organizer John D)ryden.
testified in regard to a series of incidents which the General
Counsel alleges constitutes a campaign of harassment
against her because of her union sympathies and activities.
She testified in a generalized, uncertain, and conclusionary
fashion. She lacked the slightest display of confidence in her
ability to recall dates. She testified that in the second week
of September her work week was cut from a 5-day week to
a 2-day week. At the same time some employees' hours
were increased while other employees' hours were de-
creased. Furthermore, she testified that at the same time
Sousa commenced making more frequent visits to the res-
taurant and that he would "just sit and watch me." When
pressed by the General ('ounsel for some specificity, she
testified that Sousa's visits were "not that often" at the be-
ginning of the month, but that toward the end of the month
"he'd be in there just about every day." She did not fix
these occurrences as to their sequence in relation to the
union meetings or her husband's organizing efforts.
Lynn Dryden further testified that on some date in Sep-
tember or October. Foley had encountered her in the
"Wine Taster" lounge next door, where she, during off-duty
hours, was wearing her Howard Johnson's uniform. The
uniform is the property of Respondent and is merely loaned
to the employee. She was accompanied by another waitress,
Brenda Bennekade. Dryden could not recall whether Ben-
nekade had worn her uniform on that occasion. Foley ad-
vised Dryden not to wear her uniform in the lounge as it
"looked bad" for the restaurant. l)ryden merely responded
"okay" and that ended the conversation. Dryden testified
that on other occasions Foley had observed her in the
lounge when she was attired in her uniform, but that he had
made no comments. She did not testif: when those occa-
sions occurred, and it is not clear that they occurred before
or after she had engaged in union activities. Foley testified
with certainty, credibily. and without contradiction that
Bennekade was not in uniform on the date of his confronta-
tion with Lynn Dryden in the "Wine Taster" lounge, but
that he had several weeks earlier similarly admonished Ben-
nekade not to wear her uniform in the lounge.
Lynn [)ryden testified that on some date after her work-
week was reduced, her shift was changed from the first shift
to the second shift. i.e., 3 11 I p.m., Saturday and Sunday:
but that a third day was added 3 weeks later, i.e.. Monday.
She further testified that during her second tenure of em-
ployment from September to January 1978. her duties in-
cluded waitressing and "dishes," but that unlike her first
tenure, she was assigned the duty of scrubbing down the
booths and washing shelves "when I was rehired in Septem-
ber." She then testified, pursuant to an effort by the counsel
for the General ('ounsel to elicit some specificity as to
dates, that the first such assignment occurred on September
27. She testified that no one else performed such duties.
Upon cross-examination Lynn [)ryden admitted that
when she was rehired in the first week of September by
l:olev she was not available for the third shift, 11 p.m. to 7
a.m., but that she did on occasion work both days and
nights. and worked the second shift if she were needed.
After some evasion she conceded that she did not always
work the first shift exclusively upon her return to employ-
ment in the first week of September.
Lynn D)rvden also testified that she advised Foley during
the last week of September that she had obtained another
job where she worked as a banquet waitress. She was in fact
employed by the Union to work at various banquets. She
did not, however, inform Respondent of the identity of her
employer. She conceded that when Sousa appeared at the
restaurant while she was on duty. she was performing her
duties around the counter and in the dining room, that
there were other employees and customers present, and that
Sousa moved around the restaurant, visited the kitchen,
and conversed with Foley:; and that on those occasions she
was only working 2 days a week in the restaurant. Thus she
admitted, in effect, that Sousa did not just sit and watch her
intently as she had testified so cryptically on her direct-
examination.
I.inda Garlick testified that she commenced employment
in August and that she first observed Sousa visiting the
restaurant in the first or second week of September. "a cou-
ple of times a week." She. as well as no other employee.
testified to any intense surveillance of employees b Sousa.
In any event she in effect characterized the commencement
394
HOWARD JOHNSON COMPANY
of his visits as occurring at a time prior to any overt union
activities. Sousa testified that he did visit the Columbus
Avenue location in September. and he did visit it with more
frequency toward the end of the month. He considered that
restaurant to he a "problem" location.
With respect to Lynn Dryden's work schedule changes.
Foley testified without contradiction that upon her rehire
Dryden told him that she was not available for the third
shift, but was available fior the first and second shifts and
that her shifts varied in accordance with the needs of the
operations. In this regard, as noted above. Dr den admitted
to having worked the second shift as well as the first prior to
the union organizing effort. Foley testified that he reduced
Dryden's workhours upon her notice to him that she had
taken on a second jobh. He testified, he did this although she
asked for no reduction, because he assumed from his past
experience as a manager that employees with two jobs are
likely to become fatigued and nonproductive. lie testified
that a couple of weeks later he discussed it with her. ice had
no knowledge of the extent of time she put into her second
job. Foley testified credibly and without contradicion that
he approached Dryden prior to the week of September 30.
and asked her whether she would consider taking on an-
other additional day. i.e.. Monday. because of his need for
her services: and that she told him she would be aailable
on Mondays. The record established that she did in fact
work 3 days during the week ending September 30. It is
clear then, that )ryden's cut in hours to a 2-dab week and
shift changes occurred well in adv ance of Respondent's
knowledge of any union activities which it obtained on or
about September 24 or 25, and well in advance of an) overt
union activities which had commenced on or about Septem-
ber 19.
Foley further testified credibly and without contradiction
that Dryden did not ask him to change the Saturday, Sunl-
day, and Monday schedule, hut that she only requested a
single Monday off on one occasion. It should be noted that
Lynn Dryden ailed to testily that she made any objection
to Foley as to her work assignments or work scheduling
assignments. Thus, although Foley admitted that )r den
worked "back to back schedules" which involved a hiatus
of 8 hours or less between shifts on to occasions after thile
onset of union activities, she had not objected to such
schedule or made an3 protest over it. )ryden's timecards
from September 22 October 21, reflect that on to occa-
sions she did experience a hiatus of only approximilatel 8
hours./ They failed to reflect that she was only permitted a
'few hours" hiatus as argued bh the General Counsel.
Moreover, Dryden's own testimon is silent as to this issue.
With respect to the allegation that l.minn l)rden was as-
signed onerous work tasks, Foley testified that it is part of'
all waitresses' normal duties to bus tables, place dishes in
the dishwasher. and with the cooks, clean the counters.
wipe booths, clean the resale cabinets, and clean the condi-
ment area during downtime. le testiiedl that the booths
were usually wiped clean with soap and water anId a cloth
and that other waitresses were also given the sane assign-
t The timecalrds of the ,leeks ending September 30 and hereiler were
adduced into evidence bh Respondent upon the demand Al he General
('ounsel
ment. [)ryden testified that she observed no other persons
perfoirming such duty. No other General Counsel witness
was called upon to corroborate Dr)den nor to contradict
1Foley. 'The General (Counsel oflered no evidence as to
which employees other than waitresses were supposed to
have performed such tasks. Assuredly someone had to per-
ftrm these menial but necessary tidying efforts which on
their face do not appear to be overly burdensome. The
"Here's To You" manual, utilized at other Respondent res-
taurants. on page 22 refers to "side work" to be perfbrmed
by waitresses, and includes reference to the cleaning of
booths as well as other housekeeping tasks. In this regard I
credit the more convincing testimony of Foley that such
tasks as cleaning the booths were normal work tasks as-
signed to all waitresses.
The General C(ounsel also argues that I.nii D)ryden was
harassed on December 16. the date of the Board-conducted
election in which she ser ed as union obhserver for the two
voting sessions in the basement of the restaurant.
On the morning of December 16. I.,,nn Drirden was pres-
ent with K;atz and John )r dcin for the purpose of inspect-
ing the polling area prior to the first bhalloting session. She
testitfied that after Sousa had seated John D)r den. Katz,
and herself at the rear table in the lining roonm where the\
could ;ait, he told her that if theN needed anythilni to call
him but that she should not talk it ansone. Neither John
D)r den nor Kti, who testified to other matters were called
upon to corroboritte her. O()n the a fternoon of D)ecelmher 16
Iy nn D)rNden returnled t the restauraint in order to obtain a
cosmetic she had left vith waitress l.ii Savage. l)rxden tes-
tified that she waited it the cash register sxhile Sa age ssent
into the office to retriee the cosmetic Ifrom her purse. While
*wailing Sousa approaiched her. I)r \den testitied: "Mr.
Sousa alinic o)er to me aLnd asked mile whtl.t the hell I was
doing in there." She testitied that she told iln the reason
that she was there as to obtain her cosmetic and that
whilk she aited Sousa stood nc;irhb\ and aited with her
until she obtained her cosimetic and left. She then went to
the Nine I aster next door to aialt the second balloting
session. D)r, den testlied. hotcs el . thiat lter thllat afternoon
she reentered the restaultant in ordcr to tind out hether her
paycheck was a.i;aihable. \\hile w aItress Sa age wient hack
to the otlice to see ift the checks swere read. accordin to
l)ryden. she stood aindl chatted ithl iots other a tllresse at
the counter. l)r den testiflied that Sousa approached her
again and that hlie asked her what she wa s doing in the
restaurant again. She explained that she ;wanted to obta in
her pay check. She testified thit he stood and aitcd behilnd
thile c;ash register and *,watched her hile se waited. and
Ihat he again told her not to talk t anione.
Sousa deied telling l. nn )ryden on te m1orning of the
16th that she should not talk to anyone. lie did testif\ to
greeting D)rsden. Katz. and herself and seating thenl at a
table in the dining room and telling them that he would et
them coffee or whatever the needeed. Sous testified that lie
next saw I)ry den at about 3 p.m. as shIe was approaching
the kitchen area in the restl;urant. le testified that lie ent
into the kitchen to pertiorm sme task and obsersed her
obhtainina It palcheck Md that e did not speakl to er at
that ltile. According t) Sousa; DrY)denl than proceeded to)
the founlltain rea xshere he spoke to elplmo ees. Sousa. at
395
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that time, was at the cash register when she approached
him. He then asked her whether he could help her and she
explained that she was waiting for an employee to bring her
a cosmetic. According to Sousa he said nothing further to
her while she waited and was given her cosmetic and
walked out. It is Sousa's uncontradicted testimony that the
employee with whom Lynn Dryden spoke as she waited at
the nearby counter were off-duty employees who were wait-
ing for the polls to open at 4 p.m. Hle further testified with-
out contradiction that there were a total of anywhere from
8 to 10 such employees waiting at the counter among whom
were Neal Tesini and Jeffrey Phillips at the time when he
spoke to Dryden. Neither of these two witnesses for the
General Counsel were called to corroborate Dryden nor to
contradict Sousa. Liz Savage was not called upon to testify,
It is clear that despite Dryden's testimony that Sousa
ordered her, in effect, to stay at the table and not talk to
anyone in the morning, she still felt free enough to move
about the restaurant and did in fact speak to employees
thereafter. In this regard I found Lynn Dryden to be an
unconvincing witness. Sousa, whom I have found wanting
with respect to his testimony in other areas, was in regard to
this matter fluent, responsive, and certain. Dryden, how-
ever, was hesitant and uncertain in her demeanor. I there-
fore credit Sousa and conclude that he merely encountered
her as a matter of course and did not restrict her move-
ments or her ability to converse with other employees on
December 16.
8. Harassment and constructive discharge of Linda
Garlick
Linda Garlick was hired as a waitress in August by the
night manager at that time. Dave Bedard.7 She testified that
in the third week of August, on August 19, she quit her job
after an incident which occurred on the night shift, i.e., the
II p.m. to 7 a.m., shift to which she was assigned. She
explained that the night manager in charge at that time, a
John McCarron, had assigned waitress Bisoni to the foun-
tain whereas Garlick had been assigned to the dining room.
This assignment apparently infuriated Bisoni because of the
diminished prospect of tips at the counter. Bisino walked
out thus leaving Garlick as the only waitress on duty. As a
result Garlick testified that she was faced with a large group
of customers which she could not effectively service and
who in consequence were least likely to be generous with
tips. She testified that the next day she quit. She estimated
that at that time Foley had not assumed his duties as store
manager. She testified that she received a message from
General Manager Masione that she should return to work.
Masione was Foley's predecessor. She telephoned Masione
and told him that she would consider it. She did not work
the following Saturday and Sunday. On Sunday, August 22,
according to Garlick she visited the restaurant to pick up
her cousin, Neil Tesini, at about 10 p.m. and at that time
encountered Night Manager Eddie (last name unknown),
who solicited her return to work and arranged for her to
meet with the new manager, Foley, on Monday.
7 During the month of August, Respondent experienced a turnover in its
managerial staff.
Garlick testified that Foley offered her her old job and
assured her that she would remain on the I I p.m. to 7 a.m.
shift. Upon her original hiring by Bedard, she had advised
Bedard that she had a 4-year old son and had an arrange-
ment with a live-in baby sitter that made it more conve-
nient for her to work on the third shift. She did not testify
that she also advised Foley of this condition. Foley later
testified that she made no reference to any child.
Garlick testified that she first became aware of union ac-
tivity when she moved into a new apartment and was intro-
duced to John Dryden who lived in a neighboring apart-
ment. She testified that Dryden solicited her to sign a union
card and that she evaluated the matter for only I day and
executed the card on September 20. Thus she first learned
of the Union on September 19. As noted above, Garlick
engaged in a conversation with Night Manager Moynihan
on September 24 or 25, according to her rather assertive
recollection, "a week or two" after she signed a card. Dur-
ing that conversation Moynihan inquired as to whether she
had been "talking to John." Garlick thereafter testified that
during the next workweek following the Saturday or Sun-
day conversation of September 24 or 25 with Moynihan.
she went in to check her schedule on Thursday and discov-
ered that her workweek was reduced to 4 days a week from
the 5 or 6 days she had "always" worked previously, and
that now she was also assigned to work the second shift
variously with the third shift. She purportedly confronted
Moynihan and asked him why she could not continue to
work the third shift exclusively in order to accomodate her
baby sitter, but Moynihan replied that they needed her on
the second shift on those particular occasions.
She testified that on Thursday during the week following
she checked her schedule again on Thursday. The schedules
were always posted on Thursdays, paydays. for the follow-
ing workweek commencing on Saturday. At that time she
observed that her schedule, which was posted for the next
week, revealed a further cut to 2 work days. At about I
p.m. on that Thursday she confronted Foley and Moynihan
in the office and asked why her hours were cut. She pro-
tested that she had a 4-year old son to support and that she
was aware of an ad in the paper soliciting job applications
for Respondent. (This is an apparent reference to the West
Springfield advertisement.) (arlick testified crypitcally that
Fole' said that he did not like her attitude. She turned to go
and when asked by Foley if she would work that Thursday
night she responded that she would not if her work schedule
were to be limited to 2 days. She then quit, she testified,
because Foley would not increase her work days and she
could not support her son on such a limited schedule In
later testimony when pressed for more details, she testified
that Foley made some explanation of his objection to her
attitude; i.e., every time he "said something" to her that she
"had something to come back with." She asked for no fur-
ther explanation.
Thus, accepting Garlick's testimony she was interrogated
on Saturday, September 24, or Sunday, September 25, and
she ascertained the following Thursday, September 29, that
'On cross-examination she conceded that her financial needs were the
same at the time of her second termination as they were at the time of her
first termination.
396
HOWARD JOHNSON COMPANY
her workweek was reduced to 4 days including the undesir-
able shift; and that she ascertained a week after that, Octo-
ber 6, that her schedule for the week ending October 14 was
cut to 2 days per week. However, having examined her per-
sonally signed and approved timecards from the weeks end-
ing September 3-30, Garlick admitted that she quit her em-
ployment on Thursday, September 29. Furthermore, her
timecards reveal that she did not in fact work exclusively on
the third shift prior to her conversation with Moynihan, nor
did she "always" work on a 5- or 6-day week basis. Indeed
she worked 3 days, i.e., 19 hours in total, the week ending
September 3; 5 days, i.e., 34-1/4 hours the week ending
September 9; 2 days, i.e., 15-1/2 hours the week ending
September 16; and 3 days, i.e., 26-1/4 hours the week end-
ing September 23. During the final week of her employment
she worked on Sunday, September 25, and Monday, Sep-
tember 26, and was scheduled to have worked Thursday,
September 29, the date she quit. Furthermore, Garlick con-
ceded that during the week ending September 9, she
worked 3 days on the day shift. She did not work the day
shift thereafter, but consistently up to her termination she
worked the I I p.m. to 7 a.m. shift, i.e., the third shift which
she had requested in the first place.9
Faced with her admissions, Garlick merely insisted upon
reiterating her initial testimony. She did not explain the
plain contradictions between her conclusionary testimony
on her direct-examiantion and her admissions on cross-ex-
amination and the conflict of her testimony with her time-
cards. She at no time attempted to refute the accuracy of
her timecards. She remained adamant as to her original
estimate of the sequence of events, but in rebuttal testimony
she testified that she worked on a full workweek basis until
her shift and hours were cut in the "third week of Septem-
ber." She thus rendered a third version of the harassment
she allegedly suffered. In any event had she suffered her
first cut in hours and a shift change in the third week in
September, i.e., September 14-21, such would have been
effectuated for the most part prior to her first awareness of
any union activity. Thus Garlick's testimony in this regard
remains contradictory and inexplicable.
Foley testified that he rehired Garlick following her first
quit and that she was assigned to the third shift. However,
during the week of September 9 she was assigned to the
second shift for 3 days because Foley was short handed.
Foley testified that Garlick appeared in his office in the
afternoon of Thursday, September 29, at about 2 p.m. He
recalled that several employees, including Lynn Dryden,
were present "in the area." Garlick protested the reduction
in her schedule claiming that she could not support a child
on only 2-day's-a-week work. Foley responded that in the
work schedule posted on September 29 for the subsequent
'The counsel for the General Counsel objected to the admission of Gar-
lick's timecards on the grounds that Respondent refused to comply with the
subpena request. The subpena requested production of all timecards. The
counsel for the General Counsel objected to the submission of the timecards
as a "piece meal" effort to comply with the subpena. I ruled that the time-
cards of Linda Garlick were not specifically enumerated in the subpena
request and that Respondent was offering the timecards for purposes of
credibility and was not in effect attempting to effectuate a piece meal compli-
ance with the subpena request. In any event, as noted earlier, prior to the
General Counsel's resting of his case. Respondent offered total compliance
with the General Counsel's rather broad subpoena duces recumn.
week he did cut Linda Garlick's hours to a maximum of 2
days a week. He told her that he did so and that it would
remain so until her work performance and her attitude
would improve. At such time he would restore her to a
fuller work schedule. At that point, according to Foley,
Garlick turned and started to walk out of the office. Where-
upon he asked her if she had intended to work that night.
She responded as she left, "I'll think about it." She contin-
ued to leave. He called after her and inquired if she wanted
to discuss the "situation." She responded that she decided
that she would quit and thereafter she did not return to
work.
Foley explained that on the last date that Garlick worked
prior to Thursday, the 29th, i.e., Monday night, September
26, she had become involved in an incident on the early
part of the third shift after she was asigned to work the
fountain area by Night Manager Kwapian. According to
Foley, Garlick had expressed displeasure over being as-
signed the fountain. Thereafter Foley noticed two custom-
ers at the counter, but he could not see Garlick in the vicin-
ity. He looked in the kitchen only to find Garlick back at
the fountain preparing an ice cream sundae or the like. At
that point she was about to approach Foley. who was at the
cash register, when a customer suddenly demanded service.
According to Foley, Garlick turned, looked at the customer
who was about 6 feet away, and exclaimed "fuck this job."
Foley told her to go into the kitchen. He then assigned the
assistant manager to the fountain area and thereafter fortu-
itously obtained the temporary services of a former waitress
who was still in possession of her Howard Johnson uniform
to fill in the balance of that night and to assist Garlick.
Foley testified that Wilcox and Sousa were present at the
counter, and that he talked with them afterwards. Wilcox
told them that he had heard Garlick's comment but Sousa
told him that he had not heard it. Wilcox testified that he
was indeed present with Foley, but Wilcox made no men-
tion of Sousa's presence. Sousa's testimony was silent on
this point. Wilcox recalled that Garlick appeared to be
throwing things around the fountain area and was appar-
ently upset, and when she was pressured for service by a
customer she made the above-described remark.
In rebuttal testimony Garlick did admit that she did on
one occasion explain in the presence of customers when
"yelled at" by a customer, "fuck it." She testified that this
occurred during the August 19 incident which precipitated
her first quitting. However, in contradiction to her direct
testimony she now testified that Moynihan was the night
manager on duty in the kitchen during the first incident.
She also testified that Foley was present despite her earlier
testimony that Foley had probably not commenced his du-
ties as manager yet. She testified on rebuttal that she could
recall no other manager being present, but that there were
10 customers at the counter, that the dining room was full,
and that she was the only waitress on duty. According to
her, Foley made no comment to her, but merely arranged
to have a former waitress come and work that night. Gar-
lick testified that she thereafter quit because she could not
work under such conditions. Her rationale is a bit difficult
to follow inasmuch as Bisoni's departure was clearly an
unforseen event and it was not apparently Respondent's
normal policy to assign only one waitress to the third shift.
397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In further rebuttal testimony Garlick then recounted her
earlier testimony leading up to her Monday appointment
with Foley. According to her, Foley interviewed her and
made no reference to the incident when he rehired her. It is
difficult to understand why an arrangement had to be made
for Garlick to make an appointment for an interview with
Foley if Foley had already been on duty as a manager at
the time when Garlick quit. It would seem to be more prob-
able that an appointment was made because Foley had
newly assumed his duties as manager and was not ac-
quainted with Garlick.
Garlick's demeanor in testifying exhibited self-doubt and
uncertainty and she gave the impression of testifying pursu-
ant to subjective impressions and conclusions rather than
from her direct recollection of the events themselves. When
faced with apparent contradictions and inconsistencies she
tended to fluster and belligerently reasserted her original
testimony. Foley, unlike his testimony with respect to Phil-
lips and Tesini was much more spontaneous, certain, and.
in my opinion, candid when recounting the events concern-
ing Garlick's alleged harassment and alleged constructive
discharge. Garlick's contradictory testimony with respect to
the reduction of her shift and with respect to the change in
the assignment of shifts, coupled with her poor demeanor,
leads me to believe that Foley is the more credible witness.
I also find it improbable that Foley, a new manager, would
have rehired Garlick in September without so much as
some comment on her behavior. Furthermore, I find it sig-
nificant that Garlick had first testified that the first incident
involved a different night manager and occurred prior to
Foley's tenure as manager. I therefore conclude that she
engaged in the conduct described by Foley a few days prior
to the reduction of her schedule to 2 work days. I further
conclude that prior to that time, but subsequent to her
union activity. Respondent made no inordinate changes in
her schedule of hours or shifts,
9. The October 25. 1977, notice
Respondent admitted to the posting of a notice to the
employees in the restaurant on October 25 which stated as
follows:
Arrangements were made today for an election on De-
cember 16, 1977, to decide whether or not a union will
get into the restaurant.
The election will be held in the restaurant under the
supervision of the National Labor Relations Board. All
restaurant employees are eligible to vote. Even if you
signed a "union card" you can still vote for no union.
The Company is strongly opposed to a union in the
restaurant. I am convinced we do not need a union
here. A union will only make things more difficult for
all of us. The Company will provide you with detailed
information about the Union and the election in the
near future.
(Signed) BART J. FOLEY
There is no evidence of any other campaign literature
published by the Employer during the election campaign.
D. A.4nalsi and ( onclu.sons ol/U Lnfir lxabor Practices
Respondent argues that Foley's interrogation of Tesini
and Lizewski on September 24 was not coercive inasmuch
as Foley did not threaten the employees and inasmuch as
Tesini's replies "suggest a friendly conversation free of fear
or coercion." I disagree.
The Board has stated in lorida Seel Corporarion, 224
NLRB 8 (1976):
It has long been recognized that the test of interfer-
ence, restraint and coercion under Section 8(a)(1) of
the Act does not turn on a Respondent's motive, cour-
tesy, or gentleness, or on whether it succeeded or
failed.
It also does not turn on whether the supervisor and
employee are on friendly or unfriendly terms. Rather
the test is whether the supervisor's conduct reasonably
tended to interfere with the free exercise of the employ-
ees' rights under the Act.
The Board has also held that "an inquery into an em-
ployee's views toward a union or unionization in general,
even ostensibly questioned 'out of curiosity' and and in the
context of assurances against reprisals. reasonably tends to
interfere with the free exercise of an employee's Section 7
rights regardless of the employee's state of mind." Paceco, a
Division o Freuhau' Corporation, 237 NLRB 399 (1978).
Foley's interrogation was no mere idle satisfaction of a
curiosity. He considered the organizing effort to be a serious
problem. Hie persisted in his probing of Tesini's knowledge
until he wheedled more information from him, and then he
expressed his displeasure and admonished Tesini that Te-
sini ought not to have sought union representation inas-
much as Respondent "could have worked something out."
Accordingly, I find that Foley's September 24 interrogation
of Tesini and Lizewski was coercive and thus violative of
Section 8(a)( 1) of the Act.
With respect to Moynihan's interrogation of Garlick on
September 24 or 25, as to whether she had any conversa-
tions with "John," I do not conclude that such conduct was
an interrogation of her union activities or sympathies. As
noted earlier I conclude that both participants were refer-
ring to John Dryden. I further concluded that it can be
inferred from the circumstances, including the timing of the
events, that Respondent was aware of Dryden's organizing
efforts. However, Moynihan did not question her as to
whether she responded favorably to any solicitation for
union support. The interrogation was in reality directed to
the extent of Dryden's efforts, and not to any possible ef-
forts by her in support of the Union or to any of her possi-
ble sympathies for the Union. Accordingly, I do not con-
clude that the interrogation was coercive, particularly since
it occurred in advance of any overt antiunion activities by
Respondent. I do not find Moynihan's conduct to be viola-
tive of the Act.
Finally, in view of my credibility resolution with respect
to the alleged interrogation of Katz by Wilcox, I conclude
that Respondent did not engage in interrogation which vio-
lated the Act in this regard.
398
HOWARD JOHNSON COMPANY
1. Granting of benefit
Subsequent to Foley's coercive interrogation of Tesini,
Foley granted Tesini a week off with pay. In view of the
timing of that benefit, which came upon Foley's admonition
to Tesini that something could have been worked out with-
out recourse to the Union, it is clear that Foley was moti-
vated by a desire to discourage Tesini, with whom he had
been on friendly terms, from any further support of the
Union. Foley, by his own admission, was still concerned
about Tesini's execution of a union card despite Tesini's
assertion that it did not necessarily mean that he would
vote for the Union in an election, Accordingly. I conclude
that the granting of such benefits was not made pursuant to
normal justifiable business motivations, but rather consti-
tuted an attempt to interfere with the employees' rights un-
der the Act, and thus I conclude it was violative of Section
8(a)(1) of the Act.
2. The barring of the union organizer from the restaurant
Respondent argues that John Dryden was barred from
the restaurant because of his misconduct, i.e., inducement
of a minor to overindulge in alcoholic beverages. I have
found such reasoning to be pretextuous. Sousa appeared on
the scene immediately after becoming apprised of the union
organizing effort. I have inferred that he was aware of Dry-
den's role as the union organizer and I concluded that his
reason for summoning the police and barring Dryden was
Dryden's organizing activities. Foley admitted such when
he made his response to Lynn Dryden's post-election in-
quiry as to whether her husband would now be permitted to
enter the restaurant. The public humiliation of the chief
union organizer in the presence of employees, including em-
ployee Lynn Dryden, his wife, necessarily tended to ad-
versely affect those employees in their ability to freely ac-
cept or reject the option of union representation guaranteed
to them by the Act. A forceable ejection of a union orga-
nizer under similar circumstances has been held to have
violated the Act. Heavenly Valley Ski Area, a California
Corporation, and Heavenly Valley, a Partnership, 215 NLRB
359 (1974) enfd. 552 F.2d 269 (9th Cir. 1977). 1 do not find
that the means of ejection utilized herein in any way miti-
gates the coercive effect upon the employees, i.e., the instill-
ing of a fear that Respondent would resort to extreme acts
of humiliation to frustrate union activity. Accordingly. I
find that Respondent's conduct in barring union organizer
John Dryden from the restaurant at the inception of the
union campaign and throughout the union organizing effort
is violative of the Act.
3. The discharge of Tesini and Phillips
The discharge of Tesini and Phillips came about within
the context of Respondent's knowledge of their union ac-
tivities by way of the unlawful interrogation by Foley. and
by way of Sousa's and Foley's observations of their encoun-
ters with John Dryden on the night of the discharge. Phil-
lips was engaged in open, if indeed indecorous, union ac-
tivities which form the basis of the conduct for which he
was discharged. Tesini was closely associated with him that
night. Respondent was clearly antipathetical to the organiz-
ing effort. Foley had remained concerned that Tesini might
still vote for the Union. He therefore granted Tesini a bene-
fit to discourage such prospects. Despite that benefit, Tesini
and Phillips were openly consorting with John Dryden.
Thus Respondent, who had exhibited union animus, had
sufficient grounds to direct specific animus against Tesini
and Phillips because of their association with the Union.
Respondent argues that both employees were discharged
for justifiable reasons and therefore despite the possible ex-
istence of a dual motivation, the discharge is not unlawlul
inasmuch as the General Counsel has failed to prove that it
had acted pursuant to the unlawful reason, citing. ,N.L..R.B.
v. Billen Shoe Co., Inc., 397 F.2d 801. 803 (st Cir. 1968): or
that the discharge: "would not have taken place but for
such animus," citing Hubbard Regional Hospital v.
N.L.R.B., 579 F.2d 125 (Ist Cir. 1978).10
In N.L.R.B. v. Rich's of P!mnouth. Inc., 578 F.2d 880. 886
(Ist Cir. 1978), the court held that when the respondent
offered a "legitimate business justification for its conduct,
the burden shifted to the Board to establish by substantial
evidence 'an affirmative and persuasive reason why the em-
ployer rejected the good cause and chose the bad one.'"
(Citing the Billen Shoe Conopan case). The court held that
a legitimate business justification was raised in that case
which the Board "Dismissed as 'improbable.' " The Board's
decision was not enforced inasmuch as the court found in-
sufficient evidence of antiunion motivation to overcome the
"legitimate business justifications for Respondent's con-
duct." The court, however, considered a factual situation
wherein the employer had refused to reinstate an emploNee
who had voluntarily terminated her position and thereafter
was refused reinstatement. The court observed that such
circumstances gave rise to a greater burden of proof on the
Board. The court explicitly distinguished the case before it
from Champion Papers. Inc. Ohio Division) v. N.L. R.R., 393
F.2d 388, 394-395 (6th Cir. 1967). where the asserted rea-
son for the employer's conduct. i.e., "dissatisfaction." and
"attitude," appeared to be "unsubstantiated or inconse-
quential."
In the Hubbard case, cited by Respondent. the adminis-
trative law judge found that the discriminatees' misconduct
was a contributing factor in the employer's motivation to
discharge them. However, in that case the misconduct of
the discriminatees which was raised by the respondent as a
defense, amounted to serious, unprofessional behavior
which caused the public humiliation of a patient and a sub-
sequent serious complaint from that patient. The court de-
nied enforcement of the Board's order of reinstatement in-
asmuch as it found that the Board did not adequately
delineate how it came to conclude that the employer acted
in pursuance of its union animus rather than the miscon-
duct of the alleged discriminatees.
Upon the facts of this case, I find that Respondent had
failed to establish that it was possessed of a justifiable busi-
ness reason, i.e., serious misconduct. Both Tesini and Phil-
0 See also Colettis Furniture Inc. v . N.L.R.B., 550 F.2d 1292, 1293 (Ist
Cir. 1977), and N L.R.B. v. Lowell Sun Publishing Comnpan, 320 F.2d 835.
842 (Ist Cir. 1963), where the union animus was a "dominant reason." and
,. L.R B. v. Fibers International Corporation. 439 F 2d 1311. 1315 (Ist ('ir.
1971). where union animus was the "controlling motiv e."
399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lips were highly regarded by Foley. Indeed, according to
the testimony of Tesini whom I credit, Foley had promised
to reinstate both employees after the union organizing effort
subsided. In fact, they were later reinstated. Even Sousa
admitted an awareness of the value of these employees. The
misconduct alleged to them consisted of nothing more than
boisterous or exuberant off-duty behavior. There was no
convincing evidence that at the late hour it had occurred
their conduct was disruptive of Respondent's operation, or
that it seriously disturbed any customers. I totally discredit
Sousa's uncorroborated and unconvincing testimony with
respect to the secondhand information of which he was ap-
prised subsequent to the discharge in regard to a waitress'
refusal to leave the premises, and his inconsistent testimony
concerning the post-discharge inquiry of a customer as to
the nature of the "ruckus."
Of the shifting reasons for the discharge of Tesini and
Phillips that were offered by Foley and Sousa, one was the
presence of the two employees during off-duty hours, an
apparent violation of Foley's no loitering rule. This rule
had not been uniformly applied prior to the union activity
as I have discussed above. There is no evidence that any
employee was discharged for violations of the rule. Indeed,
Foley testified to a situation where he merely verbally
warned a long time employee when he found her in appar-
ent violation of the rule. The subsequent conduct of Linda
Garlick while on duty was much more serious, i.e., uttering
an obscenity in response to a customer's demand for ser-
vice. Yet her conduct merely entailed a much lesser degree
of discipline. There is no evidence that any employee has
ever been discharged for similar such behavior, i.e., slam-
ming a door, and loudly soliciting on behalf of an organiza-
tion. Finally, the discharge of these two valuable employees
for conduct which obviously did not impair their future
work, as they were ultimately rehired, plainly is contrary to
the employer's own self-interest, as well as it is inconsistent
with Respondent's own past and subsequent practice.
P.S.C. Resources, Inc. v. N.L.R.B., 576 F.2d 380, 384 (Ist
Cir. 1978).
Accordingly, I conclude that the alleged misconduct of
Phillips and Tesini was inconsequential, and that the true
motivation for their discharge was their union activity and
union sympathies. I conclude that had it not been for their
union activities and sympathies Respondent would have
merely verbally warned them or had administered a much
lesser degree of punishment. I therefore find that by dis-
charging Tesini and Phillips on September 27, and by refus-
ing to reinstate them until well after the union election, i.e.,
January 23, 1978, and February 6, 1978, respectively, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
4. The no-access rule
Paragraph 8(e) of the complaint alleges that Respondent
"discriminatorily promulgated, maintained and enforced an
overly broad no-access rule."
In view of the foregoing factual findings, I conclude that
the General Counsel has failed to prove that the no-access
rule was promulgated by Manager Foley during the
Union's organizing effort. It was, on the contrary, an-
nounced to all employees prior to any union activity, and
certainly prior to any union activity known to Respondent.
Moreover, the rule was premised upon reasonable business
motivations.
No-access rules have been found by the Board to consti-
tute valid business rules if they are clearly announced to all
employees, are applicable to working areas, or justified by
business reasons, and are uniformly applied to all employ-
ees and not just to employees engaged in union activities.
GTE Lenkurt Incorporated, 204 NLRB 921, 922 (1973); Tri-
County Medical Center, Inc., 222 NLRB 1089 (1976); Conti-
nental System, Inc., 229 NLRB 1262 (1977).
However, I agree with the General Counsel that the rule
was discriminatorily applied. It had not been uniformly ap-
plied prior to the discharges of Phillips and Tesini, but it
was utilized by Foley and Sousa to justify, in part, the dis-
charge of those two employees because of their union ac-
tivities. In applying that rule to Phillips and Tesini, I have
concluded above that Respondent has failed to demonstrate
by credible, convincing evidence that such enforcement was
justified by reasonable business considerations. Accord-
ingly, I conclude that the enforcement of the no-access rule
on September 27 was violative of Section 8(a)(1) of the Act.
5. Harassment of Lynn Dryden
In view of the factual findings set forth above, I conclude
that Respondent did not engage in surveillance of Lynn
Dryden by the conduct of Area Manager Sousa subsequent
to her union activities. The changes in Lynn Dryden's work
schedule preceded the union activity and therefore were not
a consequence of it. With respect to the back-to-back work
schedules, the General Counsel has failed to prove that
Lynn Dryden was assigned sequential shifts with only "few
hours" hiatus. In any event there is no evidence that Re-
spondent was aware that the scheduling was onerous or
burdensome to Lynn Dryden. The General Counsel has
also failed to prove that Dryden was assigned unduly bur-
densome or onerous work tasks in consequence of her union
activities. I fully credit Foley that cleansing the booths are
part of a waitress' normal duties. Furthermore, Foley's sug-
gestion that Dryden not wear her uniform during off-duty
hours in the neighboring cocktail lounge appears to be a
reasonable nondiscriminatory request, and hardly burden-
some to her. I do not conclude that it constituted harass-
ment. Finally, Sousa did not in fact restrict Lynn Dryden's
movements or access to employees in the restaurant on De-
cember 16.
Accordingly, I conclude that Respondent did not violate
Section 8(a)(I) of the Act as alleged in paragraph 8(i), 80(j),
and 9(a), (b), (h), and (i) of the complaint.
6. Harassment and constructive discharge of Linda
Garlick
As indicated above, the General Counsel has failed to
prove that Respondent initially changed the work schedule
of Linda Garlick subsequent to her union activities. Thus
Garlick was subjected to changes in her schedule prior to
the onset of union activity. However, one change did occur
afterward, i.e., the temporary reduction to a 2-day work-
week. This occurred after Garlick engaged in misconduct
which consisted of an expression of open hostility coupled
400
HOWARD JOHNSON COMPANY
with an obscene remark which was prompted by a custom-
er's demand for service. Foley testified that the temporary
reduction in hours was intended as a disciplinary measure.
The General Counsel has failed to adduce any evidence
upon which I can conclude that such action was disparate.
He elicited no testimony or other evidence that would dem-
onstrate that employees are free to engage in similar acts of
misconduct with impunity. Garlick's conduct was egre-
gious. It is not unreasonable for an employer to react to
such conduct with some form of a reprimand."
The discharges of Phillips and Tesini were motivated by
their union activities, which were much more overt than
that of Garlick who signed a union card far from the prem-
ises of the restaurant. Respondent, through Moynihan, was
seemingly aware that Garlick was in communication with
John Dryden, the organizer. Moynihan, however, did not
interrogate her as to her own attitude toward the Union. It
can, at most, be inferred that she was known to be I of 12
card signers. Finally, it was Foley who reduced Garlick's
schedule. With respect to the discharges of Tesini and Phil-
lips, it was Sousa who demanded their discharge, but it was
Foley who told them that they would be reinstated later. In
that case Foley appeared to be the more temperate counter-
weight to Sousa's spontaneous and emotional reaction to
Tesini' and Phillips' open union activities. Foley's initial
reaction to the knowledge of Tesini's card signing was to
induce him to vote against the Union by means of a grant
of a benefit.
Under all these circumstances, I therefore credit Foley's
testimony that he reduced the work schedule of Garlick as a
temporary disciplinary measure and that he was motivated
by her misconduct. I conclude that he was not motivated by
her union activities. Accordingly, I conclude further that
Garlick was not constructively discharged but that she vol-
untarily quit her employment, as she had done so a month
earlier. Even had I concluded that Garlick was discrimina-
torily reprimanded, I would not construe her termination to
be a constructive discharge. She was not shown to have
been harassed in her scheduling as alleged by the General
Counsel. She walked off the job as she did a month earlier
without any prospect of future employment. Thus her con-
tention that she could not support her child on a reduced
schedule is unpersuasive as she was less likely able to sup-
port her child with no immediate alternative of any employ-
ment.
Therefore, I find that Respondent has neither violated
Section 8(a)(1) or (3) of the Act with respect to its conduct
toward Linda Garlick as alleged in the complaint.
E. The October 25 Notice To Employees
The October 25 notice to employees was posted by Foley
on the date that the election agreement was executed. It
announced the date of the election and assured employees
that despite the execution of union cards, they could still
vote against the Union. The second paragraph announced
that the Company was "strongly opposed" to the Union
" Foley's toleration of noncompliance with the no-access rule is hardly
evidence that he would have tolerated, in the absence of any union activities,
the type of conduct engaged in by Garlick.
and set forth Foley's belief that a union was not needed and
concluded by stating that "a union will only make things
difficult for all of us."
The General Counsel argues that the notice is coercive
inasmuch as it occurred within the context of other unfair
labor practices. Presumably the General Counsel is relying
upon that line of cases wherein the Board has held that
predictions of "serious harm" constitute coercive conduct.':
Respondent argues that the courts have found the "seri-
ous harm" statement to be an expression of "permissible
opinion unqualifiedly privileged under Section 8(c) of the
Act." The courts, however, have agreed with the Board's
conclusion that such statements can be coercive, when in
the court's opinion the circumstances or context give added
meaning to the bare language utilized by the Employer, i.e.,
other coercive conduct which clearly infringed upon em-
ployees' job security and which would lead them to con-
strue the statement as a threat to their job security. J. P.
Stevens & Co. v. N.L.R.B., 380 F.2d 292 (2d Cir. 1967);
Serv-Air, Inc. v. N.L.R.B., 395 F.2d 557 (10th Cir. 1968).
Even where Board enforcement was denied the court has
evaluated the context of the statement. N.L.R.B. v. Greens-
boro Hosiery Mills, Inc., 398 F.2d 414 (4th Cir. 1968): Sur-
prenant Manufacturing Co. v. N.L.R.B.. 341 F.2d 756 (6th
Cir. 1965).
I therefore conclude that Respondent did not possess an
unqualified right to engage in a prediction of serious harm.
or other similar prediction, which under the factual circum-
stances constituted a prediction of possible job loss or detri-
ment to job security.
The language utilized in the October 25 notice does not
use the phrase "serious harm." or a phrase that per se con-
notes a consequence which may impinge upon the employ-
ees' job security. The actual verbage used by an employer is
not critical if the circumstances indicate that the prediction
tends to be coercive. Thus the Board has found a prediction
that the execution of union cards "which could lead to un-
desirable consequences . . ." to be coercive as it was con-
veyed in a letter to employees wherein the employer ex-
pressed his "vigorous opposition" to the union, and it
occurred within a factual context of an unlawful discharge.
Ajax Magnethermic Corporation, 227 NLRB 477 (1976). In
the instant case Respondent expressed strong opposition to
the Union. It not merely speculated upon, but rather it
flatly asserted that difficulties would ensue upon union des-
ignation as a bargaining agent. It did not explain that state-
ment. There is no evidence that it ever did make any subse-
quent explanation to the employees during the election
campaign. Thus employees were left with that statement
which was to be construed by them in the aftermath of
coercive interrogations and discharges of two prounion em-
ployees, and the public humiliation and ejection of the
union organizer and husband of an employee. Under such
circumstances, the notice of October 25 clearly tended to
coerce the employees and interfere with their free choice in
the election, and was therefore violative of Section 8(a)( 1)
of the Act.
2J P. Stevens & Co., Inc., 167 NLRB 266 1967); Holly Farms Poult
Industries, Inc., 194 NLRB 952, 954 (1972): Greensboro Hosien Mills, Inc,
162 NLRB 1275 (1967).
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The Objections
1. Objection 15
In view of my finding with respect to the October 25
notice to employees, paragaph 8(k) of the complaint, I con-
clude that Objection 15 is meritorious.
2. Objections 4, 6, and 10-16
Objections 4, 6, and 10 through 16, are identical to the
allegations of paragraphs 8(f), 9(f), 9(g), 9(h), 9(i), and 8(i)
of the complaint, which I have concluded have no merit.
Accordingly, I find that these objections have no merit. Ob-
jection 16 is merely a summary and conclusionary allega-
tion and in view of my finding as to Objection 15, it has
merit insofar as that objection is concerned.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and co-
erced employees in the exercise of their rights under Section
7 of the Act, in violation of Section 8(a)(l) of the Act by
coercively interrogating its employees, Lizewski and Tesini,
concerning their union activities and sympathies on or
about September 24, 1977; by granting its employee, Tesini,
a benefit in the form of a paid week of leave from work on
or about September 24, 1977, in order to discourage his
union activities; by discriminatorily enforcing the no-access
rule on or about September 27, 1977; by threatening its
employees on October 25 with unspecified adversity with
respect to their job security in the event that they would
designate the Union as their bargaining agent; and by its
conduct of September 27, in publicly humiliating and bar-
ring a union representative from its premises in the absence
of justifiable business reasons.
4. Respondent has violated Section 8(a)(3) and (1) of the
Act by discharging employees Neal Tesini and Jeffrey Phil-
lips on September 27 and by refusing to reinstate them until
January 23, 1978, and February 6, 1978, because of their
union activities and sympathies.
5. Respondent has engaged in conduct which has inter-
fered with the free choice of employees in the election.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease
and desist therefrom and take certain affirmative actions
designed to effectuate the poilicies of the Act.
It having been found that Respondent discriminatorily
discharged Neal Tesini and Jeffrey Phillips, but that Re-
spondent thereafter reinstated them to their former position
of employment, Respondent shall make them whole for any
loss of pay they may have suffered by reason of the dis-
crimination against them. Any backpay found to be due
shall be computed with interest, in the manner prescribed in
F W. Woolworth Company, 90 NLRB 289 (1950), and Flor-
ida Steel Corporation, 231 NLRB 651 (1977).'3
A violation of Section 8(a)(3) goes to the very heart of the
Act. It therefore warrants that Respondent be further re-
quired to cease and desist from infringing in any other man-
ner upon the rights guaranteed employees in Section 7 of
the Act. Pan American Exterminating Co., Inc., 206 NLRB
298, fn. 1 (1973); Entwhistle Manufacturing Company, 23
NLRB 1058 (1940), enfd. as modified 120 F.2d, 532 (4th
Cir. 1941).
The General Counsel argues that Respondent ought to
be ordered to bargain with the Union despite the fact that
the Union at no time possessed designation as a bargaining
representative by a majority of employees in the appropri-
ate unit.
He argues further that such an extraordinary remedy is
justified because had it not been impeded by Respondent's
unlawful conduct, the Union could have obtained a major-
ity status in view of its rate of successful card solicitations,
i.e., 46 percent up to the time that Respondent engaged in
unlawful conduct, citing N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575, 614 (1969)." The General Counsel ar-
gues that even if he has not established the foregoing prem-
ise, a bargaining order is warranted under the rationale set
forth in the Gissel Decision because the unlawful conduct
herein is "pervasive and outrageous."
As to the first aspect of the General Counsel's argument,
the evidence does not reveal whether or not the Union had
solicited a majority of the employees in the unit as of Sep-
tember 27. It is not clear whether or not any other employ-
ees were solicited, but rejected the Union prior to Septem-
ber 27. It is not clear to what extent the Union attempted
further card solicitations after September 26. Although the
union organizer had been barred from the restaurant, he
had not attempted to solicit cards on the premises at any
time prior to that date. His efforts involved unsuccessful
solicitation of 12 employees at locations away from Re-
spondent's premises. Union organizer Dryden testified that
he attempted to meet with employees at the "Wine Taster"
lounge and at their homes after the filing of the petition, but
that this was difficult because he did not know "where a
majority of the employees lived." However, he did possess
by late October a copy of the so-called Excelsior list, i.e.,
the list of names and addresses of eligible voters for the
December 16 election. It thus appears that the union orga-
nizer did not even attempt to contact employees at their
homes.
In any event, as I read the Gissel Decision, the Supreme
Court discussed three types of cases: The first type involves
i' See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
"The evidence clearly reveals that the Union obtained 12 valid union
authorization cards between September 20 and September 26. The authori-
zation cards were clear and unambiguous. There is no evidence that the card
signor was told that the sole purpose for signing a card was to obtain an
election. Cumberland Shoe Corporarion, 144 NLRB 1268, 1269 (1963). While
it is true that some employees were told that the cards would also be used to
establish sufficient employee interest in representation to warrant an elec-
tion, such conduct is not inconsistent with the use of these clearly unambig-
uous cards to demonstrate a majority status. Walgreen Company, 221 NLRB
1096 (1975); Levi Sraus d Co., 172 NLRB 732, 733 (1968); Tendico, Inc., a
Subsidiary of Ripley Industries, Inc., and Ripley Industries, Inc., 232 NLRB
735 (1977).
402
HOWARD JOHNSON COMPANY
employer conduct which is so prevasive and outrageous
that a bargaining order may be warranted without inquiry
into the majority status of the union: the second type in-
volves employer conduct which is less pervasive but still has
"the tendency to undermine majority strength and impede
the election process," so that a bargaining order is war-
ranted, "where there is also a showing that at one point the
union had a majority"; and, finally, a third type of case
where because of the minimal impact upon the election ma-
chinery a bargaining order will not be appropriate.
At no point in the instant case did the Union possess a
majority status. "Almost" a majority is not a "majority."
Accordingly, this case must be resolved by a determination
as to whether Respondent's conduct was so pervasive and
outrageous as to warrant a bargaining order. The
General Counsel concedes that there exists no Board prec-
edent for the granting of a bargaining order in the absence
of a majority status where pervasive and outrageous con-
duct has occurred. He urges, however, that timidity be cast
aside and a new legal frontier be forged upon the facts of
this case. The General Counsel alludes to Webster's Seventh
New Collegiate Dictionary, in his argument that Respon-
dent's conduct herein, was outrageous, i.e., "violent, brutal,
unrestrained" and "atrocious." He further argues that Re-
spondent's conduct was calculated and deliberate and part
of a pattern of conduct calculated to forestall the Union's
ballot box success.
I cannot agree that Respondent's conduct can be de-
scribed as outrageous and pervasive, nor can it be described
as constituting a deliberate campaign or pattern of election-
ing behavior. Although the conduct of Foley and Sousa was
unlawful and serious, the facts of this case reveal that their
conduct constituted a sudden, almost emotional, reaction to
the awareness of union organizational activity. Only two
employees were coercively interrogated upon the sudden
awareness of the union campaign. The grant of benefit to
Tesini formed part of Foley's initial reaction to his friend's
union activity. The treatment of John Dryden and employ-
ees Tesini and Phillips whose own conduct was not a para-
digm of discretion, was the hot tempered reactions of Area
Manager Sousa. Foley, in part, attempted to mitigate Sou-
sa's conduct with his own promises of future reinstatement.
During the pending of the unresolved objections, Tesini
and Phillips were voluntarily reinstated.
The only conduct which interfered with the election was
the October 25 notice to employees. This I have found ob-
jectionable only because of the tendency of employees to
attach a particular meaning to otherwise ambiguous lan-
guage. There is no evidence that following the notice and
the election agreement Respondent engaged in an extraor-
dinarily hostile or even vigorous election campaign.
Accordingly, on the facts of this case, although I con-
clude that Respondent engaged in rash and unlawful con-
duct, I cannot conclude that its conduct was so pervasive or
outrageous as to justify an order to bargain with a union
that has failed to demonstrate a majority status at any point
in time. I shall therefore not recommend a remedial bar-
gaining order.
Having found that Respondent engaged in conduct
which interfered with the election in Case I-RC-15382, I
recommend that the election be set aside and a second elec-
tion be directed.
Upon the basis of the entire record, the findings of fact
and conclusions of law, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended.
ORDER"
The Respondent, Howard Johnson Company, its officers.
agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union activities and sympathies.
(b) Granting employees benefits for the purpose of dis-
couraging their union activities and sympathies.
(c) Enforcing a rule excluding nonworking employees
from its premises against employees engaged in union ac-
tivities in the absence of justifiable business reasons.
(d) Threatening employees with unspecified adversity
with respect to their job security in the event they designate
the Union as their bargaining agent.
(e) Publicly humiliating a union business representative
by barring that union representative from its premises in
the absence of justifiable business reasons.
(f) Discouraging membership in or activities on behalf of
Bartenders, Hotel, Motel, Cafeteria and Restaurant Em-
ployees Union, Local 116, AFL-CIO, or any other labor
organization by discharging employees or otherwise dis-
criminating against them in any manner with regard to
their rates of pay, wages, hours of employment, hire or ten-
ure of employment, or any term or condition of their em-
ployment.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Neal Tesini and Jeffrey Phillips for any
loss of earnings they may have suffered by reason of Re-
spondent's unlawful discrimination against them in the
manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary and useful in analyzing the amount of backpay due
under the terms of this recommended Order.
(c) Post at its restaurant on Columbus Avenue. in
Springfield, Massachusetts, copies of the attached notice
marked "Appendix."'" Copies of said notice, on forms pro-
vided by the Regional Director for Region 1,. after being
duly signed by Respondent's representative, shall be posted
by Respondent immediately upon receipt thereof, and
1' In the event no exceptions are filed as provided b) Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted b the Board and become ts
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region , in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
I-r ts FURTHER ORDERED that the complaint be dismissed
as to any' alleged violations of the Act not found herein.
404