Jorgensen's InnDownload PDFNational Labor Relations Board - Board DecisionsJan 25, 1977227 N.L.R.B. 1500 (N.L.R.B. 1977) Copy Citation 1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jorgensen's Inn and Bartenders , Culinary Workers and Motel Employees Union Local 158, AFL-CIO. Cases 22-CA-6560 and 22-CA-6567 January 25, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On September 16, 1976, Administrative Law Judge Herbert Siberman issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Jorgensen's Inn, Stockholm, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Administrative Law Judge: Upon a charge and an amended charge filed in Case 22-CA-6560 on August 29, 1975, and April 29, 1976, respectively, by Bartenders, Culinary Workers and Motel Employees Union Local 158, AFL-CIO, herein called the Union, and upon a charge filed by the Union in Case 22-CA-6567 on September 3, 1975, an order consolidating the above- numbered cases and a complaint therein were issued on November 7, 1975. The complaint, which was amended at the hearing in response to the amended charge in Case 22- CA-6560, alleges that Respondent, Jorgensen's Inn, herein sometimes referred to as the Employer, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In substance, the amended complaint alleges I No opposition having been filed thereto, the motion , included in the brief filed by counsel for General Counsel with the Administrative Law Judge, to correct the transcript of record is hereby granted 2 Although the answer denies the fact, the evidence is overwhelming that 227 NLRB No. 219 that on various days between July 14, 1975, and January 7, 1976, Respondent unlawfully discharged nine employees and, by reason thereof and other conduct set forth in the complaint, also has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent's answer to the complaint denies that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Newark, New Jersey, on various days between May 4 and May 12, 1976. Briefs were filed with the Administrative Law Judge by General Counsel and Respondent. Upon the entire record in the case,' and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, Jorgensen 's Inn , which is a sole proprietor- ship owned by Richard Jorgensen, operates a restaurant in Stockholm, New Jersey. Respondent's annual gross reve- nue derived from the operation of its business exceeds $500,000 and annually Respondent receives goods valued in excess of $50,000 which are transported to its place of business in Stockholm, New Jersey, through channels of interstate commerce directly from States of the United States other than the State of New Jersey. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2) engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The facility involved in this proceeding is a relatively large restaurant which Richard Jorgensen operates in Stockholm, New Jersey. The restaurant is at its busiest during the summer months. After Labor Day there is usually a reduction in the number of employees. The restaurant is actively managed by its owner Richard Jorgensen, who is assisted by his wife, Charlotte Jorgensen, and by Valentina Tupycia, head waitress, and Robert Schalk, head cook. These individuals are supervisors within the meaning of Section 2(11) of the Act.2 In the early summer of 19753 the Union began a campaign to organize the Restaurant's employees. Three meetings with employees were held; one during the first week of July and the next two in successive weeks in mid- August. Authorization cards were solicited at the meetings and also at other times by union representatives and restaurant employees. On July 29, 1975, the Respondent and the Union entered into a Stipulation for Certification Charlotte Jorgensen is a supervisor and has authority to act with respect to the management of the restaurant in the interest of her husband 3 All dates refer to 1975 unless otherwise indicated JORGENSEN'S INN 1501 Upon Consent Election covering the following collective- bargaining unit: "All regular full-time and part-time employees including all kitchen and pantry employees, dining room employees and bartenders, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act." Included as part- time employees and eligible to vote in the election were those regular summer employees who worked two or more consecutive summers for the Respondent. The election was held on August 22, 1975. The tally of ballots shows that there were approximately 82 eligible voters and that 32 votes were for the Union, 27 votes were against the Union, and 10 ballots were challenged. On August 29, 1975, timely objections to the conduct of the election were filed on behalf of the Respondent. As of the dates of the hearing in this matter the challenges to the ballots and the objections to the election had not been determined. Respondent was opposed to the organization of its employees. During the campaign period between July 29 and August 22, the Respondent distributed two leaflets to its employees and Richard Jorgensen held two meetings with the employees. One of the leaflets informed the employees of the pending election and urged them to exercise a free and intelligent choice. It stated that their choice would not be intelligent if they refused to consider the arguments against unionization which the Respondent had presented or would present. Among other things, the leaflet also advised that "Your employer will never sign a labor contract which might invite bankruptcy or which transfers control over Jorgensen's Inn to others." It further advised that a union cannot guarantee job security because unions do not provide jobs, only employers do that. It importuned the employees not to let "a union rob you of the right of free association and of the right to speak for yourself." However, the employees were assured that "no matter how you vote, your job with us will be secure. Your Employer will comply faithfully with the law." The second leaflet was short and informed the employees that a union in the restaurant would help no one. It further informed the employees that "we don't need higher expenses and price increases, which have already closed too many doors. Rather, we need more customers, better service and more of the kind of cooperation and courtesy which invite customers to come back. You can be sure of one thing. We will comply with the law in every respect. That doesn't mean that we will fulfill any union hopes or promises." The first meeting between Richard Jorgensen and the employees was suggested by several waitresses who, after attending a union meeting, were of the view that the employees' compalints were minimal and could readily be solved. At this meeting, various employee complaints were discussed. General Counsel contends that Richard Jorgen- sen promised to rectify some of these grievances if the employees would withdraw their support and assistance from the Union. The content of this meeting will be discussed more fully below. The second employee meeting 4 On the other hand , Susan Mekler testified , "I remember at one point many of the employees were really undecided about their feelings toward Mr. Jorgensen because he was being really nice " 5 Egan, who was called as a witness by Respondent, appeared somewhat was held shortly before the election and was attended by the Respondent's attorney, Godfrey P. Schmidt, who spoke to the employees. At one point during this meeting, Richard Jorgensen made the remark that anyone who voted for the Union was immoral. Schmidt quickly interposed to erase the effect of this remark. However, in his talk to the employees, attorney Schmidt sought to dissuade them from lending support to the Union. Among other things, he read to the employees the promises set forth in a letter that had been distributed by the Union and informed them that if Mr. Jorgensen had to meet all those demands he would have to close the restaurant because he could not afford the additional costs. Schmidt also advised the employees that they had nothing to fear from the impending election and that their security was in doing a good job so that the customers would be pleased and would continue to patronize the restaurant. Various employees testified that after the union cam- paign had begun Richard Jorgensen was much less cordial to them than he had been theretofore.' Also, from time to time, Richard Jorgensen gave expression to his annoyance with employees who favored the Union. Thus, Erma Lippiello testified that on one occasion Richard Jorgensen "just came out of the bathroom and said tell your damn union friends to stop writing all over my walls." Virginia Stoneley testified that Jorgensen said to her that [h ]e would stomp on these people [who work for the Union] like they were cockroaches." Also, Mark Beardsley testified that he frequently spoke with Jorgensen about the Union and Jorgensen told him that "the union would never get in here." B. Interference, Restraint, and Coercion General Counsel contends that Respondent's opposition to the organizational drive involved not only campaign propaganda seeking to persuade the employees to vote against the Union but also conduct which unlawfully infringed upon its employees' statutory rights. 1. Interrogation Paragraph 9 of the complaint alleges that during the month of August Richard Jorgensen, Charlotte Jorgensen, and Robert Schalk interrogated employees about their membership in, activities on behalf of, and sympathy for the Union. General Counsel relies upon the testimony of James Egan, Virginia Stoneley, Mark Beardsley, and Sharon Deibert to support this allegation. James Egan, who is employed as a busboy, testified that about 3 days after he attended an informal conference at the Regional Office of the Board,5 at which Mrs. Jorgensen was present, she "asked why I went down, did I have a charge filed against them and it was general questions like that, and the rest I can't remember." Then, according to Egan, Mrs. Jorgensen left without waiting for him to answer her questions. Later, he went to her and "told her I wasn't planning to go down there and I was tricked into going confused about the events he was asked to describe Thus, he was uncertain as to the nature of the proceeding he had attended and he did not fix the time of the conversation he described. 1502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD down and then as to the charge filed against them, I didn't have any." I agree with General Counsel that Mrs. Jorgensen 's interrogation of Egan regarding his presence at a Board conference and whether he had filed an unfair labor practice charge with the Board was unlawfully coercive. The fact that Egan felt impelled to explain that he had been "tricked" into going to the Board suggests that the questions put to him by Mrs. Jorgensen generated fear that he rmght be subject to reprisals if the Respondent believed he voluntarily was cooperating with the Union. Virginia Stoneley, who then was employed as a cashier and hostess, testified that on the Saturday after the first union meeting Jorgensen came to her work station and asked her whether she knew what was going on. She inquired whether he was referring to the union meeting and he replied affirmatively. She then said, "Yes I . . . know about the union meeting and I attended it. . . . I wanted to know what was going on." Stoneley further testified that Jorgensen asked "where was it held? What was the names of the union leaders that were there. . . . At that point Mrs. Jorgensen came down and joined us and she started to ask me what were the names of some of the people that were there and who attended the meeting. Then she mentioned specific names . Did Tom Erb [who then was not employed by the restaurant] attend the meeting, Shirley Preston [who then was an employee]? Would I [Stoneley] repeat some of the names of some of the people that were there and I repeated what I said. . . . Then they asked me if I knew when the next meeting was to be held and where and I said I didn't know." Mark Beardsley, who was employed as a cook, testified that he attended the three union meetings, that after one of the meetings Jorgensen said to him that Jorgensen knew Andrea Stoneley had attended the meeting, and that he asked if Mrs. Virginia Stoneley had been at the meeting. Beardsley said he did not know. Beardsley further testified that about 2 weeks before the election in another conversa- tion with Jorgensen the latter said he knew that the first union meeting had had a large turnout but that attendance had been less at the later meetings. Jorgensen also asked Beardsley whether he had gone to the meetings. Beardsley responded that he had because he wanted to know what was going on. Sharon Delbert testified that the night after the election Mrs. Jorgensen asked her how she felt about the outcome of the election. Deibert replied that there was no final result. Mrs. Jorgensen then said, "You voted yes didn't you," and Deibert replied that she had. I find, in agreement with General Counsel, that question- ing employees about their presence at a Board conference, whether they had filed unfair labor practice charges, whether they had attended union meetings , where the meetings were held, the names of the persons who had attended, who the union leaders were, whether employees sympathized with and supported the Union, and how employees voted at the election constituted unlawful interrogation. As the Employer "had no legitimate reason 6 Martin Sprocket & Gear Co, Inc v. N L R B 329 F 2d 417,420 (C A 5, 1964) See N LRB v Camco, Inc, 340 F 2d 803, 807 (C A. 5, 1965), cert. denied 382 US 926, and Martin Sprocket & Gear Co, Inc v N L R B, supra to ferret out" such information from the employees6 and as the questioning was not accompanied by any assurances that there would be no reprisals for union activity,? it left "the [employees ] to conjure up various images of employer retaliation." 8 In the circumstances, the described interroga- tions of the employees were coercive and violated Section 8(a)(l) s 2. Surveillance Paragraph 11 of the complaint alleges that in August 1975 Richard Jorgensen and his agents informed his employees that Respondent had kept under surveillance the meeting places, meetings, and activities of the Union. General Counsel contends that the Company's book- keeper, Ethel Hermes, spied upon a union meeting from a store across the street and reported who had attended the meeting to Jorgensen . I find no support in the record for this assertion. Mrs. Hermes was not a supervisor and General Counsel did not prove that she otherwise acted as an agent for the Company in connection with any union matters. Further, General Counsel did not prove that Mrs. Hermes had spied upon the union meeting , although she was shopping in a clothing store located across the street from the place where the Union was holding a meeting, and General Counsel did not prove that Mrs. Hermes reported to Jorgensen the names of any employees who attended the meeting. Jim Sauter and Thomas Walker, who were employed as dishwashers, testified that they had obtained permission from Jorgensen to leave work to attend a union meeting. When they returned they told Jorgensen about the promises the Union had made at the meeting and also that Mark Beardsley had been at the meeting. As Sauter and Walker upon their own initiative sought permission to attend the union meeting and later voluntarily reported back to Jorgensen, I find that their testimony does not support the complaint's allegation that the Respondent engaged in unlawful surveillance of the employees' union activities. Finally, General Counsel urges that the testimony of Mark Beardsley to the effect that Jorgensen told Beardsley that he knew Andrea Stoneley had attended a union meeting establishes that the Respondent unlawfully created the impression among its employees that it had been spying upon their union activities . The statement was made as the introduction to a question Jorgensen put to Beardsley regarding Virginia Stoneley's attendance at a union meet- ing, which incident I found above constitutes unlawful interrogation. The single remark, in context of the entire discussion, does not prove that the Respondent was spying upon employees who attended union meetings or created the impression that it was doing so. As I find that General Counsel has not proved the allegations of paragraph 11 of the complaint, I shall recommend that they be dismissed. 8 Dubin-Haskell Lining Corp. v. N.LR.B, 375 F.2d 568 , 571 (C A. 4, 1967), cert. denied 393 U S. 824 (1968). 9 See Florida Steel Corporation v. N LR.B , 529 F 2d 1225 (C.A. 5, 1976). JORGENSEN'S INN 1503 3. Solicitation of grievances Barbara Waleck, who was called as a witness by Respondent, testified that a group of employees composed of herself, Louise Tancke, Jan Wales, Judy Burnett, Bert Budreau, and Gail Lapell spoke with Jorgensen about the union drive. They told him of the employees' complaints voiced at the union meetings and that in their opinion the grievances could be solved without a union and suggested that he meet with the employees. Jorgensen responded that perhaps the employees' problems could be resolved. Subse- quently, on July 26, a meeting of all the employees was held. Richard Jorgensen began the meeting by commending the employees for helping the restaurant operate smoothly and by expressing the hope that they would continue working in the same way. He indicated that he was willing to listen to the employees' problems and that they could talk without fear. According to Barbara Waleck, "[file told us he would sit before us and listen to the things we wanted to know about, but he couldn't promise everything, but he would write everything down and that was it. . . . [H ]e told me he called [attorney Godfrey P. Schmidt] and asked ... what his legal rights were as far as holding this meeting. . . . [He said] [t]hat he could promise us noth- ing." The employees at the meeting voiced various complaints concerning their conditions of employment and Jorgensen made responses which led the employees to understand that the matters complained of would be corrected. Thus, one woman asked whether they could wear sweaters during the winter. According to Waleck, "He said he would write it down and see, but he could see no reason why they couldn't do that if they were clean sweaters and all of the same color and everything." Another employee suggested that there was a need for a place to sit in the kitchen during breaks and Jorgensen responded, "[M ]aybe we could get a bench or something." A complaint was made about the quality of the meals served the employees and Jorgensen promised to see what he could do about the matter. Louise Tancke testified that thereafter employee meals improved. Another complaint was that employees had no place to hang their coats and pocketbooks. Jorgensen responded that he would try to find a place for their personal effects. A complaint was also made about waitresses being required to vacuum the floors. Jorgensen answered that he might be able to get more vacuum cleaners so that the work could be shared among a greater number of employees. Although Jorgensen began the meeting with the state- ment that he intended to do nothing but listen, nevertheless, in each instance he indicated that something would be done about the complaint or that consideration would be given to finding a means of alleviating the complaint. "[W ]hile the actual and promised changes may seem modest, these matters were important to the employees and the [prom- ised] changes showed the employees that they would not 10 House ofMosaics, Inc, Subsidiary of Thomas Industries, Inc, 215 NLRB 704 (1974). 11 McMullen Corporation, d/b/a Briarwood Hilton, 222 NLRB 986 (1976); Ken McKenzie 's, Inc, 221 NLRB 489 (1975), N L R B. v Delight Bakery, Inc, 353 F 2d 344,345 (C.A 6, 1965) 12 Erma Lippiello and Mary Moms testified that in discussions with need a union to effectuate alterations in their working conditions." 10 Regardless of the fact that the idea origi- nated with a group of employees, by inviting the employees to express their grievances and by promising, directly or by implication, to take steps to remedy their complaints in the midst of a union organizational drive when there is no evidence that similar solicitude had been extended to the employees previously, Richard Jorgensen unlawfully inter- fered with the employees' statutory rights. Such conduct tended to frustrate the employees' organizational efforts by demonstrating that union representation is unnecessary,11 and therefore violated Section 8(a)(1). 4. Threats to close the restaurant and of other reprisals Paragraph 12 of the complaint alleges that during the month of August 1975 Richard Jorgensen threatened his" employees that he would close his restaurant and with other reprisals if they became or remained members of the Umon or gave any assistance or support to it. Virginia Stoneley testified that during the first 2 weeks following the initial union meeting she had several conver- sations about the Union with Richard Jorgensen. "He made remarks like, `I will close the restaurant down and take a cruise around the world before I permit a union to come in here.' He said that he could afford a strike but the waitresses couldn't afford a strike." In similar vein, Mark Beardsley testified that a week or two before the election he initiated a conversation with Richard Jorgensen about the Union and, in response to his question how Jorgensen was doing with the Union, Jorgen- sen replied "that the union will never get in here . . . that he had made his money and the union would never get in. If they did, they would wreck [the business ] and he could get out at any time and he had no use for [the Union]." Similarly, Andrea Stoneley testified that 2 or 3 weeks before the election Richard Jorgensen said to her "that the union would never get in and he didn't want anybody voting for it and if he found anybody did vote for it that nobody would get anything." Erma Lippiello testified that one day in August, prior to the election, while she was in the kitchen with other employees Richard Jorgensen "said he would close the place down before he had a union in." 12 Virginia Stoneley also testified that in one of her conversations with Richard Jorgensen, during the first 2 weeks following the initial union meeting, "[h ]e said that he would open his books to the IRS and prove that the waitresses-that he deducted taxes on $10 worth of their tips when he knew they made a lot more than that." I credit the testimony described above particularly as Richard Jorgensen did not deny any of it. I find that Jorgensen's threat to report to the IRS that the waitresses were understating their income and his threats to close the restaurant in the event the Union should be successful in its Valentina Tupycia the latter said that Jorgensen would close the restaurant if the Umon got in. Also, Susan Mekler testified that Head Cook Robert Schalk made a similar comment. As the complaint does not allege that Tupycia or Schalk made unalwful threats, I shall make no findings with respect to the described testimony. 1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD organizational campaign were blatant infringements upon the employees ' protected rights and thereby violated Section 8(a)(l). The threats to close the plant were particularly egregious in that the natural effect of such threats is to impress upon the employees the futility of pursuing their organizational rights guaranteed by the Act. The effect of such threats is pervasive and difficult to erase . 13 Respondent argues in its brief: "[The threat to close the restaurant ] is contradicted by Mr. Schmidt 's speech on the Sunday before the election ; by Respondent 's Exhibits 6 and 7 ; and by the inherent irrationality of the alleged restaurant shut-down in the light of the profitably and stable , long standing operation of the Inn." I am unper- suaded by this argument . Where Richard Jorgensen, the owner of the restaurant , personally made threats to the employees that he would close the restaurant should the Union succeed in its organizational drive , the coercive effect of such direct threats is not likely to be dissipated by written leaflets or by statements made by an agent. 5. The wage increase Paragraph 10 of the complaint alleges that Respondent granted its dishwashers a wage increase to induce them to refrain from becoming or remaining members of the Union or giving assistance or support to the Union. The evidence shows that effective the week beginning August 18, 1975, the rate of pay for the dishwashers was increased from $2.25 to $2.50 per hour . However, the dishwashers were not informed of the increase until August 29 approximately I week after the election . Although this wage increase may not have affected the votes of the dishwashers at the August 22 election , it, nevertheless, constituted an unlawful grant of benefits to a group of employees at a critical time . First , as of the date that the dishwashers were informed of the increase the results of the election were undetermined. Although the Union had won a majority of the ballots cast and counted , the ultimate outcome of the election remains uncertain because of the challenged ballots and the objections filed by the Employ- er. Thus , the increase would have the same unlawful impact upon a rerun election as it would have had upon the August 22 election . Second , should it develop that the Union wins the election , the increase would constitute an unlawful interference with the statutory right of the Union to bargain for the employees it represents . 14 Accordingly , I find in agreement with General Counsel that the wage increase given to the dishwashers in August 1975 constitutes a violation of Section 8(a)(l). 6. Inflexible work schedules Paragraph 14 of the complaint alleges that on August 23 and 24 , 1975, "head waitress Valentina Tupycia threatened certain . . . employees that [the Respondent] would institute inflexible work schedules if they became or remained members of [the Union ] or gave any assistance or 13 See The Sinclair Company v N LR B , 395 U S 575 ( 1969), Textile Workers Union ofAmerica v Darlington Manufacturing Co, et at, 380 U S 263,274 , fn 20(1965) 14 See King Radio Corporation , Inc v NLRB , 398 F 2d 14,17 (C A 10, (1968), N L R B v Laney & Duke Storage Warehouse Co, Inc, 369 F 2d 859, support to it ." Although there is evidence that in the fall of 1975 Respondent was less accommodating to its waitresses in regard to their work schedules than it had been in prior years , there is no evidence , as alleged in the complaint, that Tupycia threatened any employees that the Respondent would "institute inflexible work schedules :' Accordingly, I shall recommend that this allegation of the complaint be dismissed. C. 8(a)(3) Violations 1. Reduced employment Paragraphs 17 and 18 of the complaint allege that in August and September Respondent provided certain em- ployees with less employment and reduced the working hours of certain employees because of their support for and activities on behalf of the Union . The employees referred to by these allegations of the complaint are Virginia Stoneley and Mark Beardsley. Virginia Stoneley worked for the restaurant approximate- ly 5-1/2 years prior to her termination on January 7, 1976. She testified that she normally worked 3 days per week, on Wednesdays, Thursdays , and Saturdays . On Saturdays her working hours were from noon until 5 p.m. and on Wednesdays and Thursdays until September 1975 her working hours were from 5 p.m. until the restaurant closed which was between 10 p.m. and 11 p.m. According to Virginia Stoneley , prior to September 1975 (except during July and August), whenever the restaurant was "extremely busy" the head waitress would take cash and Stoneley would seat customers ; at all other times Stoneley performed both functions . However, in September 1975, after the election , Mrs. Jorgensen made it a practice to take cash on Wednesdays and Thursdays from 6 p.m. until closing. From that time until her termination Virginia Stoneley was regularly sent home at 9 p.m. on Wednesdays and Thurs- days instead of between 10 p.m. and 11 p.m. as had been the practice theretofore . General Counsel argues that "as Respondent gave no reason for such treatment of Mrs. Stoneley so soon after the union election , it can only be concluded that Respondent reduced Mrs . Stoneley's hours in order to punish one whom it believed to be a union supporter in violation of Section 8(a)(1) and (3)." I do not agree with General Counsel . Although Respondent knew that Mrs. Stoneley supported the Union , the evidence does not prove that the alleged change in Mrs. Stoneley's working hours developed from illegal considerations. Ac- cordingly , I shall dismiss the allegation of the complaint that Mrs . Stoneley's hours of work were unlawfully re- duced. Mark Beardsley, who is employed as a cook , testified that prior to August 22 , 1975, he worked 4 days per week, on Wednesdays, Fridays, Saturdays , and Sundays . When the schedule for the week which included August 22 was posted , he learned that for that week he was scheduled to work only 3 days, on Wednesday , Saturday , and Sunday. 866 (C A 5, 1966); General Electric Company, Battery Products, Capacitor Department v. NLRB, 400 F . 2d 713, 718 (C.A 5, 1968), cert denied 394 U S. 904 (1969); George Webel d/b/a Webel Feed Mills & Pike Transit Company, 217 NLRB 815 (1975) JORGENSEN 'S INN 1505 On Wednesday , August 20, Beardsley spoke to Head Cook Robert Schalk about the matter . According to Beardsley's uncontradicted testimony, Schalk said to him that "Mr. Jorgensen knew that I hung around people that were for the union. And then I asked why am I cut off on Friday and he said he wanted to know what my stand was on the union. . . . Bob said Mr. Jorgensen wanted to know... . I said I wasn 't for the union because I didn't want to get in trouble ." After the August 22 election , Beardsley's work- week was extended to 4 days. Based upon the foregoing uncontradicted testimony , I find , in agreement with Gener- al Counsel , that Beardsley was deprived of work on Friday, August 22 , because of his suspected union sympathies and that Respondent thereby has violated Section 8(a)(1) and (3) of the Act. 2. Charging tips In paragraph 18(b), the complaint alleges that following the August 22 election the Respondent altered its practices regarding the methods by which waitresses could receive tips from customers because of their support and activities on behalf of the Union. The evidence is that 1 week after the election the restaurant changed its policy with respect to writing tips on credit card slips in that thereafter customers were required to pay tips in cash and no longer were permitted to charge tips . Also, the Respondent changed its policy so that waitresses no longer were permitted to add a 15-percent gratuity to customers ' checks for parties of eight or more. Erma Lippiello testified that prior to July 1975 Mrs. Jorgensen informed her that the restaurant had to pay a certain percentage of the waitresses ' tips to the credit card company which over a period of time had added up to $2,000 , that she had spoken to her husband about it, who said not to bother, and that the girls did not realize how nice her husband was to them. Karen Stecina , who had worked as a waitress , testified without contradiction that when she learned of the new policy she asked Mrs. Jorgensen why customers were no longer permitted to charge tips on credit cards and Mrs. Jorgensen replied that "they had to pay a certain amount of money to have that service and they didn't want to do anything for people who weren 't helping them ." Similarly, Mary Morns testified without contradition that in early September she overheard Mrs. Jorgensen tell a customer that "the girls didn 't appreciate what they had been doing for them and also they had to pay a percentage on the total and that is the reason they were taking the tip off [credit cards]." As the uncontradicted evidence establishes that the Respondent changed its policy regarding the method by which customers could give tips to waitresses, which resulted in the waitresses losing certain tips, because it deemed that the waitresses who supported the Union were ungrateful , I find that Respondent thereby violated Section 8(a)(1) and (3) of the Act.15 D. The Discharges The complaint alleges that nine employees were discrimi- natorily discharged by Respondent because of their support for the Union. Except for Steven Collins , all are alleged to have been terminated after the election . The circumstances of the discharges are unrelated except that four of the employees who were discharged are college students who had problems harmonizing their work schedules with their school obligations. 1. Steven Collins Steven Collins was employed by Respondent as a dishwasher on two occasions during a 3-year period. His first period of employment was for about 8 months. He left voluntarily. Subsequently he applied for reemployment to Head Cook Robert Schalk who returned him to work. In order to provide employment for Collins , the hours of work of the other dishwashers were reduced . Collins continued at the job for about 8 months until June 12, 1975, when he was injured in an automobile accident . Collins informed Schalk that because of his injuries he would not be able to work for about a month . Schalk advised him to "take care and come back whenever you are ready." Collins testified without contradiction that he had been complimented upon the quality of his performance by both Schalk and Richard Jorgensen. Towards the end of June 1975, Collins attended a union meeting at which time he signed a union authorization card. On July 13 or 14, 1975, Collins returned to the restaurant and went to work without first checking with Schalk. When Schalk came into the kitchen , he informed Collins that there were too many dishwashers then employed and the restaurant could not use Collins . Collins asked Schalk to telephone him when he was needed and Schalk indicated that he would do so . Collins returned to the restaurant 8 to 10 times thereafter seeking to return to work and on each occasion Robert Schalk merely told Collins to keep in touch . On one of these occasions Schalk informed Collins that Collins was the next in line to be employed.16 Nevertheless , Collins learned that somebody else was later hired . He asked Schalk why that had happened and Schalk replied that he needed the dishwasher he hired at the time. Collins has not been reemployed by Respondent. At the end of August 1975, after the election, Collins, Paul Gensheimer, a former employee of the restaurant, and Robert Schalk were together at a place known as Annie Lorrey's. During their conversation , Collins said to Schalk, "I know it is not your fault that I can 't come back to work. I know it is Mr. Jorgensen 's fault because he wouldn 't let me back because I was involved with the union ." Schalk replied , "Yes." Schalk was not called as a witness. This testimony by Collins and Gensheimer is uncontradicted. Respondent's payroll records indicate that three dish- washers were hired during the summer of 1975 after Collins had applied for reemployment . The payroll records also indicate that individuals were shifted on and off the dishwasher schedule so that Respondent, if it had desired to do so, had numerous opportunities to reemploy Collins. 15 See Wilbraham Manufacturing Corporation, 167 NLRB 333 (1967) that "when and if there was a spot , he'd [Schalk ] try to put him [Collins ] 16 Valentina Tupycia testified that she overheard Schalk say to Collins back on the schedule." 1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The uncontradicted evidence is that Steven Collins was a satisfactory employee. When he informed his immediate supervisor, Robert Schalk, on June 12 that because of his injuries he would be unable to work for about a month, Schalk clearly indicated to him that when he was well again he could return to work. Beginning on July 13 or 14, Collins made numerous requests to Schalk to return to work and Schalk continuously put him off without explanation, although by the end of August three other dishwashers had been hired. Ultimately, Schalk acknowledged to Collins, in the presence of Gensheimer, that the reason Collins had not been rehired was that Richard Jorgensen did not wish to employ anyone who favored the Union. No reason has been advanced why Robert Schalk was not called to refute this testimony if it is not true. "[T]he unexplained failure" of the Respondent to produce such testimony warrants the inference that such "testimony would not have supported" the Respondent's contention. Golden State Bottling Compa- ny, Inc., Formerly Pepsi-Cola Bottling Company of Sacra- mento v . N.LR.B., 414 U.S. 168, 174 (1973), affg. 467 F.2d 164 (C.A. 9, 1972).17 In the circumstances, I find that since July 14, 1975, Respondent has refused to return Steven Collins to work as a dishwasher in its restaurant because of his involvement with the Union and thereby has violated Section 8(a)(1) and (3) of the Act. 2. Patricia Rountree Patricia Rountree began working for the restaurant as a waitress approximately 2-1/2 years before the hearing. Her service was interrupted by a leave of absence in 1974 due to pregnancy. In late June 1975, she obtained another leave of absence from Richard Jorgensen. She then informed Jorgensen that her "father had cancer and that [she J would need an indefinite leave of absence." 18 Rountree also testified that during her leave of absence she attended two union meetings in August 1975 and also signed a union authorization card.19 Rountree appeared at the polls to vote in the August 22, 1975, election. Although her name is included in the Excelsior list her ballot was challenged. In regard thereto Rountree testified as follows: When they were opening the ballots, I believe Mr. Jorgensen came in and his lawyer came in and Mary Morris said I could go in. Karen O'Keefe and Sue Mekler went in. Mary Moms asked me who had given me my leave of absence and she said Mr. Jorgensen did. . . . Mr. Jorgensen turned to me and he said no 17 See also Morrison-Knudsen Company, Inc, 213 NLRB 280, 291, fn 54 (1974) 18 Partncia Rountree testified that she worked one night in July 1975 at the request of Valentina Tupycia 19 There is no direct evidence that Respondent had knowledge of these union activities on the part of Rountree Further , Rountree did not work in the restaurant during the entire period that the organizational campaign was in progress Thus, there is little reason for inferring that Respondent somehow acquired knowledge of Rountree 's union activities . General Counsel in his brief asserts, "Respondent knew of Rountree's pro-union sympathies," but does not describe the basis for such assertion 20 N LR B v Cement Masons Local No 555, Operative Plasterers and Cement Masons International AFL [Anderson-Westphall Company], 225 F 2d 168, 172 (C A. 9, 1955) Accord N LR B v. Trumbull Asphalt Company of Delaware, 327 F 2d 841, 843 (C.A. 8, 1964), N LR B v. Central Oklahoma Milk Producers Assn, 285 F.2d 495, 498 (C A 10, 1960) you quit. I said no, I didn't and the Arbitrator said we will settle this later and that was the end of it. Rountree did not then or at any later time inform Respondent that she wished to return to work nor did she make any attempt or application to return to work. Contrary to General Counsel, the foregoing does not establish that Rountree was discharged. "No set words are necessary to constitute a discharge; words or conduct, which would logically lead an employee to believe his tenure had been terminated, are in themselves sufficient." 20 Jorgensen's statement to Rountree that she had quit, in context of the discussion described by Rountree, including the Board agent's 21 advice that "we will settle this later," did not in my view serve to advise Rountree that she had been discharged and that any attempt to return to work would have been futile. In order for a discharge to be effective, there must be both an intention on the part of the employer to abrogate the employment relationship and some communication of that intent to the employee.22 There is no evidence that Respondent had an intention to terminate the employment relationship of Patricia Roun- tree and the discussion testified to by Rountree was insufficient to constitute evidence of both an intention on the part of Respondent to discharge Rountree and a communication of its intent to her.23 Accordingly, I shall dismiss the allegation in the complaint that Patricia Rountree was discriminatorily discharged by Respondent on August 22, 1975. 3. Employment of students The complaint alleges that four college students, Susan Mekler, Andrea Stoneley, Jennie Lippiello, and Sharon Deibert, were unlawfully terminated between September 24 and October 1, 1975. In each case, a conflict developed between their scheduled hours of work at the restaurant and their academic obligations. The assigned reason for each of these discharges was the employee's tardiness or unexcused absences . General Counsel's position is that Respondent was seeking excuses to terminate employees who supported the Union and for that reason it refused to adjust the work schedules of these employees to permit an accommodation between their schools hours and their hours of employment. The restaurant is open for service to the public only 5 days of the week, from Wednesday through Sunday. It has a relatively high turnover of employees and usually there are vacancies, particularly for waitresses, before the sum- 21 I assume that Rountree 's reference to the "Arbitrator" was to the agent of the Board who was conducting the election. 22 In re Public Ledger, Inc, 63 F.Supp 1008, 1015 (D C Pa , 1945), remanded on other grounds 161 F 2d 762, (C.A 3, 1947) See also Bob Estes, a Corporation, 222 NLRB 695 (1976); Matlock Truck Body & Trailer Corp, and its Agent Roy L Matlock, 217 NLRB 346 (1975); Miami Rivet Company, 147 NLRB 470,483 (1964) 23 See John A Thomas Crane and Trucking Company, Inc, 224 NLRB 214 (1976), where, although 6 days before a representation election an employee declared to his foreman that he was quitting , nevertheless, it was held that the employee was eligible to vote in the election because surrounding circum- stances indicated that there was not a clear opinion in anyone 's mind that he had definitely quit. JORGENSEN'S INN mer and before holidays because employees who intend to relinquish their employment select such periods as the time to give their notices of quit. The restaurant regularly employs high school and college students during the summer months and on holidays. In the summer of 1975, of approximately 39 waitresses, 12 to 15 were students. Approximately 37 waitresses were employed on Saturdays and Sundays and about 13 to 15 on the weekdays. As of September 1975, approximately 10 wai- tresses worked on weekends only. From time to time, as for instance when a waitress fails to appear as scheduled, the restaurant will need an extra waitress and in such instances Valentina Tupycia usually telephones former employees to obtain someone for a single day's work. Valentina Tupycia testified that the hours of work for waitresses on weekdays is from 4 to 11 p.m. and on Saturdays it is the same except that some waitresses work from 11 a.m. to 11 p.m. because the restaurant is open for lunch on weekends. On Sundays the hours of work are from I I a.m. to 8 p.m.24 Valentina Tupycia further testified that during the summer of 1975 she was more lenient than she otherwise would have been with regard to prompt atten- dance. She explained, "Well, with the union activities going on, things were a little confusing and I didn't have that much time to devote to my schedule and the full operation of the restaurant and the employees. . . . I meant to say there was quite a bit of confusion, hostility, girls were fighting among themselves, people were staying and people were quitting," Valentina Tupycia explained that during the summer of 1975 she was unable to concentrate upon her job because "[t]he atmosphere, the ambience that was apparent then. The feelings that were generated. You could cut it with a knife. Just the feel of things." Valentina Tupycia testified that prior to 1975 college students who were employed as waitresses by the restaurant during the summer left when school started in the fall.25 However, in the summer of 1975, for the first time four college students, Susan Mekler, Jennie Lippiello, Sharon Deibert, and Karen Stecina, informed Tupycia that they wished to continue working after the summer and during their school year. Each of the four students stated that she wanted to work only on weekends and Tupycia informed each that such limitation might create a problem. Accord- ing to Tupycia, "They said they weren't sure what their schedule was going to be like and they might be able to work the full schedule or possibly just the weekends or be on call . They weren't positive as to what was going on yet. I said fine, I'll keep the schedule the way it is until I get some kind of confirmation from you." 26 Valentina Tupycia explained that it is difficult to hire waitresses to work only during the weekdays because "weekends are busier and that is where the money is." 24 Valentina Typycia testified to certain exceptions She testified that Helen Johansen was permitted to report to work at 4.30 p.m because she did baking and cleaning for the restaurant earlier in the day and was given the extra half hour in order to go home and change her clothes. Also, Louise Tancke was permitted to report for work at 5 p in. on Fridays instead of 4 p in because Tancke previously had been scheduled to work only on weekends and as an accommodation to the restaurant she agreed to work on Fridays, but for personal reasons was unable to report earlier than 5 p.m. 25 Occasionally some college students worked on holidays such as Easter 1507 Tupycia further testified that in September 1975 approxi- mately 10 waitresses worked on weekends alone, and of these approximately 6 had mentioned to her that whenever openings should occur for weekday work they wished to be considered for such work as they wanted to enlarge their work schedules. On or about September 15 Valentina Tupycia hired Mary Grassi, who she later learned was a college student, to work on weekends only. Grassi began working for the restaurant on approximately September 26. Tupycia also testified that in the fall of 1975 she hired Debra Kolb, who was a college student, to work 4 days per week, on Wednesdays, Thursdays, Saturdays, and Sundays. General Counsel contends that the record supports an inference that Respondent learned the names of those employees who supported the Union. However, in addition, General Counsel adduced direct evidence that the names of certain union sympathizers among the employees were brought to Respondent's attention. Thus, Barbara Waleck testified that prior to the election Richard Jorgensen mentioned to her that he knew that Mary Moms and Susan Mekler were union supporters, that he knew that Virginia Stoneley favored the Union, and that Erma Lippiello "was one of the first ones in the Union." Also, Jorgensen told Mark Beardsley that Andrea Stoneley had attended a union meeting. Valentina Tupycia testified that she heard that Susan Mekler, Jennie Lippiello, and Erma Lippiello were supporters of the Union. Further, in the objections to the election Respondent indicates that it knew that Virginia Stoneley and Sharon Deibert were union sympathizers. 4. Susan Mekler Susan Mekler was employed by the restaurant as a waitress intermittently over a period of approximately 4 years. She was attending high school when she began working for the restaurant. She started on a Christmas Day and continued working part time during weekends. While still in high school, during the summers, she worked 3 to 4 nights per week and when classes resumed she returned to part-time weekend work. Mekler did not work for the restaurant during the summer of 1973, the year she graduated from high school. That fall Mekler began college and did not work for the restaurant.27 In the summer of 1974 Mekler worked for the restaurant for 2 weeks in August. She returned to the restaurant in January 1975 and worked weekends only until her college classes ended in May, at which time her restaurant schedule was expanded to include 2 weekdays, Wednesdays and Thursdays. Mekler attended a union meeting in late June or early July 1975 and also on Tuesday, August 19. On Monday, August 18, Union Representatives Toni Erb and Walter Borney visited her at her home and asked her to assist them in the organizational campaign . She agreed. That day, in and Thanksgiving. Valentina Tupycia testified that in years prior to 1975 there were high school students who regularly worked for the restaurant on weekends as well as during the summer. However, no high school students were employed in 1975. 26 Each of these students during the summer of 1975 was working weekdays as well as weekends. 27 Mekler worked on Christmas Day in 1973 and New Year's Day in 1974 1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the company of the union representatives, she visited several employees at their homes and also spoke to other employees by telephone. On Wednesday evening, August 20, Mekler and Walter Borney went to the restaurant. They first sat at the bar where they spoke to several employees about the Union. Then Mekler and Borney had dinner in the restaurant. Mekler was seen on that occasion by Valentina Tupycia and Charlotte Jorgensen. The next evening Mekler again went to the restaurant bar in the company of two union representatives where they talked to employees about the Union and she then had dinner in the restaurant with the union representatives. She was observed that evening by both Mr. and Mrs. Jorgensen.28 There is no question concerning Respondent's knowledge of Mekler's union sympathies because Barbara Waleck testified that prior to the election Richard Jorgensen mentioned to her that Susan Mekler supported the Union. Although Susan Mekler planned to and did return to college in the fall of 1975, she had informed Valentina Tupycia that she wished to continue working after the summer but only on weekends in order to avoid any conflict with her school schedule.29 On or about August 31, Tupycia informed Mekler, and also Jennie Lippiello, that if they wished to continue working they would have to maintain a full schedule of 4 days per week. Tupycia told them, "We need you during the week." Mekler agreed to work under those conditions.30 Susan Mekler was terminated on September 24, 1975.31 Mekler testified that she was absent becaunc of illness on September 11. On Wednesday, September 17, st.,- asked Richard Jorgensen for the next day off. He resp,,ndeu that she had been taking off too many days. She pr Rested that she had been sick only I day the previous week. Jorgensen shrugged his shoulders which Mekler assumed meant that she could take the day off. Accordingly, she did not work on September 18. On Wednesday, September 24, she telephoned Richard Jorgensen and told him that she was ill and could not go to work. According to Mekler, whom I credit, "He told me that if I was absent or tardy one more day that I would be fired. I said but I can't even go to school this week. I said I just can't get out of bed. He repeated what he said. If you are absent or tardy one more day you are fired. So I said I guess I am fired and that was the end of the conversation" 32 According to Valentina Tupycia, she, not Richard Jorgensen, had the final conversation with Susan Mekler. 28 With Respondent 's permission , on August 2, 1975, Mekler took 2 weeks off for her vacation When Mekler returned from her vacation on August 14 , she reported to Valentina Tupycia that she was prepared to go to work but she was not permitted to return to work until Saturday , August 23 zs Valentina Tupycia testified, "Susan Mekler said she could work weekends and she could probably work either a Wednesday or a Thursday if I needed her , but she couldn 't come in too much later on. She meant if she could revise her school schedule to my schedule , then she could work If not, she only preferred weekends " 30 Tupycia testified that she informed Mekler that , as Mekler was working 2 days during the week , if she were excused from working those days, "I'd have to hire another waitress to fill that slot and this girl would be entitled to weekends . I said due to the fact you work Wednesdays and Thursdays, I'd have to hire someone to fill that slot because [Mekler ] said she couldn 't work during the week . So in order for me to put a girl on those two days, I would have to give her the weekends , which would make Susan an extra ." Tupycia further testified that she also informed Mekler that if Melder had any problem maintaining her scheduled hours of work she would Pursuant to instructions she had received about a week earlier from Richard Jorgensen, she informed Mekler that if Mekler were tardy or absent one more time she would be taken off the schedule.33 Valentina Tupycia testified that Mekler's problems began in September 1975 when she reported late for work on Wednesdays or Thursdays or was absent on those days. Tupycia was asked whether there was any explanation why Mekler was not offered weekend work when Tupycia found it necessary to hire a waitress to work weekends only. Tupycia answered, "I didn't think [Mekler] would be interested." 5. Jennie Lippiello Jennie Lippiello was hired in February 1973 as a waitress while she was still attending high school. Initially she worked on weekends and occasionally on Friday nights. Her schedule of work was expanded to 4 days a week for the summer of 1973. She stopped regular work in the fall of that year when she entered college, although she worked on Thanksgiving, Christmas, and Easter. She resumed work for the restaurant in the summer of 1974, but discontinued her employment when school began in the fall of 1974. Jennie Lippiello returned to the restaurant at the beginning of the summer 1975. She then worked 4 days on Wednes- days, Fridays, Saturdays, and Sundays. There is no evidence of any union activity on the part of Jennie Lippiello. However, she testified that, although her relationship with Richard Jorgensen had been good, [a]fter my mother and sister attended a union meeting . . . Mr. Jorgensen ignored me. He didn't talk to me any more." Valentina Tupycia testified that in August 1975 she was informed by Jennie Lippiello that the latter wished to continue working after the summer and she replied, "[F line, the schedule will stay the way it is, and [Lippiello] said, I don't know whether I could work Wednesdays, and I might be late on Fridays.... I told her ... figure out your schedule, let me know what is going on at school, and if it coincides with my schedule, fine. If not, I won't be able to permit you just to work weekends, because I'll have to hire another girl to take those two weekdays, plus fill in on the weekend spot." Jennie Lippiello testified that after she had been informed by Valentina Tupycia that if Jennie wished to continue working for the restaurant she would have to work 4 full days she spoke to Richard Jorgensen about the subject and "asked him why we had to work full schedule if have to be replaced, but she would be called to work on weekends when needed 31 There is no evidence that Mekler was ternunated because of dissatis- faction with the quality of her work. Tupycia testified that she considered Mekler to have been a good waitress until the last 2 months prior to her dismissal when "she was acting a little rowdy." Tupycia explained, "She resented authority. I asked her to do something , she would give me a questioning look and she resented having to vacuum . one night she was vacuuming the room she was throwing the vacuum into the chair and table and she said she wanted to get the hell out of here that night because she had a date" 32 On cross-examination , Mekler testified that she was 40 minutes late on September 10 and a half hour late on September 17. 33 Tupycia detailed Mekler's tardiness and absences as follows- 40 minutes late on September 10, absent September II, 30 minutes late September 17, absent September 18, absent September 24, absent Septem- ber 25 JORGENSEN'S INN he didn't need us, You close the room after Labor Day and have other waitresses why did you need it. He said it was his restaurant and he could do what he wanted and he didn't have to answer to anyone." 34 Jennie Lippiello continued to work for the restaurant full time. Jennie Lippiello testified that she returned to college on Thursday, September 4. She worked at the restaurant the next day, September 5. She was informed by Tupycia that she was not needed that weekend and she did not work on September 6 and 7. She called in sick and did not work on Wednesday, September 10. She worked on Friday, Septem- ber 12, and reported for work on Saturday, September 13, but left early because she became ill. Tupycia telephoned her and told her not to come in on Sunday, September 14. She did not work on Wednesday, September 17, because she was ill. On Friday, September 19, her brother tele- phoned the restaurant to advise that she could not work because she was sick and he was told that if she did not come in she should not come in again. Lippiello testified that she was never specifically advised that she had been discharged but based upon the report she received from her brother she assumed that she had been discharged. Respon- dent does not dispute the fact that Jenme Lippiello was discharged when she failed to report for work on September 19, 1975.35 Respondent's position, as reflected in his brief, was that Jennie Lippiello was discharged because her school sched- ule prevented her from fulfilling her work schedule at the restaurant. Valentina Tupycia testified that Jennie Lippiel- lo was 15 minutes late on September 5; absent on September 6; 36 absent on September 10; 15 minutes late on September 12; reported at 4 p.m. on Saturday, September 13, when she was scheduled to report at 11 a.m.; 37 absent on Sunday, September 14; 38 absent on September 17, 19, and 20. Tupycia further testified that Lippiello was absent on Sunday, September 21, and Wednesday, September 24. However, Lippiello was effectively discharged on Septem- ber 19. To the extent that the testimony of Tupycia differs from that of Jennie Lippiello concerning the latter's absences, I credit Lippiello. Tupycia gave her testimony regarding employees' attendance from a summary which she prepared with the assistance of Charlotte Jorgensen. Tupycia's description as to how the summary was prepared leads me to conclude that its accuracy is questionable. 34 Valentina Tupycia testified that she informed Jenme Lippiello that she "didn't plan on making any exceptions or changing anything for the fall " 35 Valentina Tupycia testified that she overheard either the bookkeeper, Ethel Hermes , or Charlotte Jorgensen tell Jennie Lippiello's brother that if she missed another day she should not come in thereafter. 36 Lippiello testified without contradiction that she had been told by Tupycia that her services were not needed on September 6 and also on September 7. 37 Jennie Lippiello testified that on Saturday, September 13, she reported to work on time but left early because she had become ill 38 Tupycia testified that Jenme Lippiello's brother telephoned and said she would not be in. Lippiello testified that Tupycia had told her that her services were not needed on Sunday , September 14 6. Sharon Deibert 1509 Sharon Deibert began working for the restaurant as a waitress in November 1974. During the organizational campaign in 1975 she attended two union meetings and signed an authorization card. Respondent knew her to be an "open and articulate union sympathizer." From the beginning of her employment in November 1974 until the end of August 1975, Deibert worked only on Saturdays and Sundays. On Sunday, August 24, 1975, Deibert asked Valentina Tupycia to schedule her for work on Wednesday and Thursday, August 27 and 28, because she understood that additional waitresses were needed on those days. Tupycia agreed. Deibert worked on Wednes- day, August 27, but the next day Tupycia telephoned Deibert and informed her that her services were not required on that day, Thursday, August 28.39 On Sunday, August 31, Tupycia informed Deibert that an experienced girl was needed to work on Wednesdays. Deibert answered that she was willing to work on Wednesdays and that she would be able to report on time on Wednesday, September 3, but thereafter would not be able to report at 4 p.m., the usual starting time, because of a time conflict with her school schedule. Tupycia responded that "we could work it out." 40 On Sunday, September 7, Deibert informed Tupycia that on the following Wednesday she would not be able to report for work by 4 p.m. Tupycia responded that "Mr. Jorgensen had a no change schedule law that if I wanted a change I would have to talk to him. She couldn't change the schedule." Tupycia said that this was a new rule. That evening Deibert spoke with Richard Jorgensen about her problem and explained to him that she could not arrive at the restaurant on Wednesdays by 4 p.m. Jorgensen replied that if she could not report on time she should quit. Deibert protested that she previously had worked on weekends only. Tupycia confirmed to Jorgensen that Deibert regularly had been working only on Saturdays and Sundays. Deibert worked the next Wednesday, September 10, but arrived about 4:30 p.m. She did not work on Wednesday, September 17, because she was ill on that day. She worked Wednesday, September 24, arriving at the restaurant about 4:30 p.m. On Saturday, September 24, Richard Jorgensen informed Deibert that if she were late or absent again she would be fired. Deibert replied, "Okay.1141 The next Wednesday Deibert telephoned Tupycia to inquire what her employ- 39 Valentina Tupycia testified that in July Deibert asked to be scheduled for work on weekdays as well as on the weekends Tupycia replied that there were no vacancies then. According to Tupycia , "I put her on the schedule the first opening I had and I assumed she wanted to continue that full time." 40 Deibert was enrolled in Moms County College Her school schedule required her to be in class on Wednesdays until 3:30 p.m. and travel time from her school to the restaurant was about an hour. 41 Respondent acknowledged that Delbert was discharged on September 27 In his brief Respondent states, "Tlus was a discharge to which Deibert agreed 'I said okay.' It was a discharge within the meaning of Section 10(c), as shown above." 1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment status was and Tupycia informed her that she was no longer on the restaurant 's work schedule.42 7. Andrea Stoneley Andrea Stoneley was still attending high school when she was hired by the Respondent in March 1974 to work in the pantry . During the campaign period she attended two union meetings and spoke with at least three employees about the Union. Initially, when hired , Andrea Stoneley worked 2 days per week for a total of 20 to 24 hours . In the summer of 1974 the number of days and hours that she worked were increased but then were reduced to 2 or 3 days per week when she returned to school in the fall of 1974. In the summer of 1975 Stoneley was placed on a full schedule and worked 4 or 5 days per week.43 At the end of August , Andrea Stoneley informed Valenti- na Tupycia that she did not wish to work on Wednesdays and Thursdays because she was going to college in the fall. Tupycia replied that she could not recduce Stoneley's work schedule and Stoneley would be required to report for work at her usual starting time of 3 p.m. Stoneley protested that she could not report exactly at 3 p.m. and asked if she would be discharged . Tupycia responded , "Not necessari- ly . ,, 44 Beginning Sunday , September 7, Andrea Stoneley's hours of work on Sundays were reduced from 12 to 8 . When she reported for work at 10 a.m. on that day, Richard Jorgensen sent her home to return at 2 p.m. On September 7, Andrea Stoneley received permission from Valentina Tupycia to be excused from work on Wednesday and Thursday of that week . On Friday, September 12 , Tupycia telephoned Stoneley and informed her that she was not needed at the restaurant that night.45 On Wednesday , September 17, Tupycia called Stoneley and told her that she was not needed that day. However, on Wednesday , September 24, Richard Jorgensen told Stone- ley that if she were late any more she would be fired.46 Stoneley testified that she tried to explain to Jorgensen that she had classes and was unable to report to work on time on Wednesdays. Andrea Stoneley was absent on Wednesday , October 1, because of illness . The next day , Thursday , October 2, she 42 Tupycia testified that Deibert was 40 minutes late on September 10, absent on September 17, 20 minutes late on Saturday, September 20, and on Sunday, September 28, Deibert telephoned at noon and said she was not coming in any more According to Tupycia , Deibert said that she had just woke up, would not be able to meet the schedule requirements, and would not be in that day or anymore . The import of Deibert 's testimony is that she was effectively discharged on September 27 when Jorgensen imposed as a condition of her continued employment that she report on time , that is by 4 p in, on Wednesdays Respondent in its brief acknowledges that to have been the fact While Deibert was not called as a rebuttal witness and therefore did not deny Tupycia's testimony concerning the alleged conversa- tion on Sunday , September 28, 1 do not credit Tupycia in regard thereto as her testimony is inconsistent not only with the testimony of Deibert but also with the position Respondent takes with regard to the termination of Deibert 43 The number of days she worked in any week depended upon the restaurant 's varying needs 44 There is uncontradicted testimony that the restaurant adjusted the hours of work for another pantry girl , Barbara Post, to accommodate a conflict she had with her hours of employment at anotherjob A third pantry girl. Patricia Egan , normally reported for work at 4 p.m reported to the restaurant at 3 p .m. and as she was about to get her smock Mrs. Jorgensen told her to go home , that the restaurant did not need her.47 The next day , Friday, October 3 , Mrs. Jorgensen met Andrea Stoneley in the restaurant's parking lot and told her that she was off the schedule and that they did not need her anymore. Stoneley asked why and Mrs . Jorgensen responded that she had been absent too many times in the month of September. 8. Paul Gensheimer Paul Gensheimer was hired in February 1974 at the rate of $1.75 per hour to work in the restaurant as a busboy. About 9 months later , he was promoted to the position of cook and his rate of pay was increased to $2.25 per hour. Gensheimer signed a union authorization card in June 1975 and attended the three union meetings . In addition, he solicited two kitchen employees to sign union authorization cards and made numerous telephone calls to employees reminding them to vote in the pending election. Paul Gensheimer was discharged on August 24. With respect to the events leading to the discharge, Gensheimer testified that about a month and a half earlier while in the pantry he patted one of the female employees on her rear. The next day her boyfriend , Leon Radchenko, who is Valentina Tupycia's stepbrother , but who was not em- ployed at the restaurant , telephoned Gensheimer and threatened to beat him up . A few minutes later Radchenko called again and said he was going to bring some friends with him. However , nothing happened at that time. Subsequently, during the evening of August 23, 1975, Radchenko came to the kitchen door of the restaurant and as Gensheimer was carrying some garbage outside the two exchanged words . They became involved in a physical altercation which continued until another employee, Gary Post , broke it up.48 Paul Gensheimer testified that when he arrived at the restaurant for work at 2 p.m. on August 24 Valentina Tupycia told him that Jorgensen wanted to speak with him. Tupycia was not present during the conversation between Gensheimer and Jorgensen . According to Gensheimer, Richard Jorgensen informed him that "the reason he discharged me was because I patted a girl on the ass" and Andrea Stoneley testified that she asked Richard Jorgensen why she wasn 't allowed to reduce her hours of work in 1975 and Jorgensen replied that it was none of her business and that he had the right to run his restaurant the way he wanted to 45 Andrea Stoneley testified that on Sunday , September 14, she attempted to speak to Richard Jorgensen about her work schedule but he ignored her and would not talk with her 96 There is no evidence in the record that Andrea Stoneley had been late on or before September 24. 47 Stoneley testified without contradiction that she overheard the head cook , Robert Schalk , ask Mrs Jorgensen why she was sending Stoneley home as they needed her 98 According to Gensheimer 's version of the altercation the fight was begun by Radchenko . In this respect Gensheimer was corroborated by Mark Beardsley who observed the encounter. Gary Post who broke up the fight testified that the first blow was thrown by Gensheimer It is immatenal who started the fight . According to Respondent 's counsel , Gensheimer was discharged because he was involved in the fracas without any consideration having been given to whether Radchenko or Gensheimer was the first to strike the other JORGENSEN'S INN 1511 Jorgensen made no mention of the fight that had taken place the previous night 49 Mark Beardsley testified that two employees, Maltese and Fishbein, had been involved in a fight at the restaurant, that neither was terminated for that reason, and that, based upon a remark he overheard Head Cook Robert Schalk make to Maltese, Beardsley was of the opinion that Schalk was aware of the fight. As Beardsley's testimony does not indicate when the alleged fight between Maltese and Fishbein occurred, where on the premises it occurred, whether in fact it had been witnessed by anyone (Beards- ley's testimony does not indicate that he witnessed the fight), or that Richard Jorgensen ever learned of the fight,50 contrary to General Counsel, I find that the testimony of Beardsley does not warrant an inference that Respondent in the past had condoned instances of fighting among its employees. 9. Mary Moms Mary Morris worked as a waitress for the restaurant for longer than a year prior to her discharge on either the first or second Friday in October. Mary Morris was one of the most active union supporters among the restaurant's employees. In addition to attending union meetings and distributing 20 to 30 authorization cards to other employ- ees, on July 28 and 29, 1975, as a member of the union group, she was present at the informal conference held at the Board's office which led to the execution of the Stipulation for Certification Upon Consent Election and she was the union observer at the August 22, 1975, election. Both Mr. and Mrs. Jorgensen were aware of Morris' union activities. According to Mary Moms, prior to the conference on July 28 and 29, she had never received a complaint about her work, and her relationship with her employer was satisfactory. However, thereafter, Richard Jorgensen ig- nored her and would not talk with her and Charlotte Jorgensen behaved brusquely towards her. Purporting to reflect Jorgensen's antagonism towards her, Morris testified that prior to the election she had an argument with one of the girls in the dining room before the restaurant opened. The girl began to cry and spoke with Richard Jorgensen. Later that evening Jorgensen told Mary Morris not to discuss union activity during work. When she denied having engaged in a discussion about the Union, he repeated the same direction. She further testified that on the night after the election she spoke with Mrs. Jorgensen about whether it was mandatory for waitresses to give tips to the bartender. According to Mary Morris, Mrs. Jorgen- sen replied that it was voluntary and "she proceeded to say why didn't I want to pay it and I was one of the lousiest people she ever met, and that if . . . I made one more mistake on a check, out I would go. I asked her if it was a threat because when I went down to the Labor Board, I didn't want to lie about it. She said when you go take that Jimmy Egan with you." Morris testified that beginning in August 1975 the hostesses seated customers in such a way that she began to earn less money. Although Morris testified that Susan Mekler, Sharon Deibert, Jennie Lippiello, Karen Rudolph, and others were being discriminated against in similar manner, there is no corroboration for her assertion. In the circumstances, the bare and completely unsupported asser- tion by Mary Morris that customers were being assigned to waitresses in a manner to affect adversely the earnings of some (presumably those who supported the Union) is insufficient as proof that such unfavorable treatment was in fact accorded to Mary Morris. The last night Mary Moms worked for the restaurant was the first or second Friday in October 1975. She and another waitress, Karen Rudolph, were working in one of the restaurant's dining rooms. Believing that she and Rudolph were unfairly being assigned fewer patrons, Morris com- plained to Valentina Tupycia. According to Moms, Valen- tina Tupycia "shrugged her shoulders and I told her it was getting useless to work on Friday night because I wasn't getting any tables. She still didn't say anything. I said I used to feel sorry for her in her position in this whole matter but she was getting as bad as Mr. Jorgensen was and I walked away." Later that evening another waitress, Pat, ap- proached Mary Morris about contributing a tip to the bartender. Then, according to Mary Morris, "I wouldn't pay it and she called me a bitch and I said it takes one to know one and she walked away." Shortly thereafter Charlotte Jorgensen came into the dining room while Mary Morris was writing a customer's check. Mrs. Jorgensen called to her, "Hey, you, pick that up." Morris, who was not facing Mrs. Jorgensen, did not respond. Mrs. Jorgensen repeated, "Hey you, pick that up," and then asked, "Is that your station?" Morris said it was not and Mrs. Jorgensen told her to pick it up anyway. Under a chair there was a napkin, which Mary Morris picked up and put into a bucket. As Mary Morris turned away, Mrs. Jorgensen said, "Hey, you pick that up." Morris responded that she did not know what Mrs. Jorgensen was talking about. Mrs. Jorgensen pointed to a Kleenex under one of the tables and told Mary Moms to pick it up. Mary Morris picked it up, held it in front of Mrs. Jorgensen, and asked, "Is this what you are talking about?" Mrs. Jorgensen responded, "Yes." The next evening when Mary Moms reported for work, Valentina Tupycia told her she was off the schedule. Morris asked to see Jorgensen and Tupycia said he was not in. Morris then spoke with Mrs. Jorgensen. Morris asked Mrs. Jorgensen whether she was fired. Mrs. Jorgensen would not answer the question directly and Moms persisted in seeking an answer. Finally, Mrs. Jorgensen telephoned her hus- band. Mary Morris was permitted to speak with him. According to Morris, "I asked him if I was fired or what off schedule meant and he said he told me I had been rude to his wife and he no longer needed me." Karen Rudolph, who witnessed the encounter between Mary Morris and Charlotte Jorgensen, testified that Mrs. 49 Valentina Tupycia testified that about noon on August 24 she afternoon. Gensheimer did not contradict Tupycia's testimony regarding the overheard Richard Jorgensen telephone Paul Gensheimer and inform telephone conversation with Jorgensen Gensheimer that the latter was fired for fighting and for patting a waitress 50 Valentina Tupycia testified that she knew of no fight between Maltese Also, according to Tupycia, Gensheimer came to the restaurant that and Fishbein. 1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jorgensen, who was picking up papers in the dining room, asked Mary Morris to pick up a Kleenex from the floor and wanted to know whose tables they were . Mary Morris did not answer at first and Mrs. Jorgensen repeated her question, to which Mary Morris responded, "Those aren't my tables." At the time Mrs. Jorgensen was addressing Mary Morris, the latter was staring out a window. Mrs. Jorgensen said, "Why don't you pick it up anyway." Mary Morris picked up the Kleenex, waved it in front of Mrs. Jorgensen's nose , and asked, "Is this what you wanted me to pick up?" Mrs. Jorgensen replied, "Yes." I credit Rudolph's version of the incident. Valentina Tupycia testified that Mary Morris was termi- nated because of Morris' insubordination towards her. Also, according to Tupycia's uncontradicted testimony, in mid-September Mary Morris told her that Morris would leave the Company's employ the second week in October. With respect to the events leading to Morris' termination, Tupycia testified that on the Friday night in question Mary Morris complained to her that she was not getting her fair share of customers and wanted Tupycia to do something about it. Tupycia denied the accusation. Mary Morris retorted, "No, that's not true, you are holding back tables from me because of my affiliation with the union and union activities." Tupycia denied the fact and Morris responded, "I used to be sorry for you for being in the middle, the position you are in, but you are getting to be just as bad as he is." Tupycia testified that she described what had taken place to Richard Jorgensen who said that that was enough reason to dismiss Mary Morris. According to Valentina Tupycia, Richard Jorgensen made the decision to discharge Mary Moms. After Tupycia told him what had happened, he said that she should not have to stand for that type of insubordination and also, because Moms gave notice that she was leaving in October, "he didn't see why he should make a concession with her since she was going to leave that time anyway.51 When Mary Morris reported to the restaurant at 4 p.m. the next day, Tupycia informed her that she was not on the schedule that weekend. Mary Moms asked what Tupycia meant and the latter replied that her behavior yesterday had been objectionable and that Tupy- cia did not have to tolerate it. Morris asked why she wasn't called and Tupycia replied that she tried to contact her Friday night but couldn't reach her apparently because her telephone was disconnected. Mary Morris then asked for Mr. Jorgensen and Tupycia replied that he was not in the office. Morris forced her way into the office where Charlotte Jorgensen was sitting and screamed at Mrs. Jorgensen, "What do you mean by firing me?" Tupycia also overheard Mary Morris demand to speak to Mr. Jorgensen and heard Mary Morris scream into the telephone, "Why did you fire me for that reason? . . . [T ]hat thing that you call a wife also just fired me too." 51 Despite Tupycia's testimony, Respondent in its brief asserts "Her [Moms'] belligerency spilled over to Mrs Jorgensen, she became rude to her too. She lied about what Val had said. In the end her bellicose attitude, especially toward Mrs Jorgensen, resulted in her discharge Mr Jorgensen just couldn't take from Mary Moms the latter's reference to his wife as 'that thing you call a wife' " 52 The evidence does not suggest that there was any change in Stoneley's workdays between July and the date of her termination 53 Virginia Stoneley testified that in previous years persons who assisted 10. Virginia Stoneley Virginia Stoneley had been employed continuously as a cashier and hostess in the restaurant for about 5-1/2 years until her termination in early January 1976. Mrs. Stoneley attended the three union meetings . On the Saturday following the first union meeting, Richard Jorgensen questioned her about the matter and Virginia Stoneley told him that she had attended the meeting. She, however, declined to tell Jorgensen who else had attended the meeting or to inform Mrs. Jorgensen, who had joined them, whether specific individuals had attended the meeting. Barbara Waleck testified without contradiction that while Virginia Stoneley was still in the employ of the restaurant Richard Jorgensen remarked to her that "he knew that Virginia was one of his most loyal employees and he couldn't understand her feeling as to why she felt he deserved a union now." Also, according to Virginia Stoneley, beginning about 2 weeks after the first union meeting Richard Jorgensen's manner towards her changed in that he ceased engaging her in casual friendly conversa- tion and generally avoided speaking with her. Virginia Stoneley testified that prior to July 1975 she worked on Wednesdays and Thursdays and on Saturdays from noon until 5 p.m.52 She further testified that in July and August 1975 Debra Pailes assisted by performing the functions of a hostess. Pailes left the employ of the restaurant the last week of August or the first week of September.53 After Pailes left in 1975, Charlotte Jorgensen at some point during each evening would take cash, thereby relieving Virginia Stoneley of that function 54 The last day Virginia Stoneley worked for the restaurant was the Saturday after Thanksgiving. The restaurant then closed until before Christmas. Virginia Stoneley was scheduled to return to work on Wednesday, January 7, 1976. However, about an hour before she was to report, she received a telephone call from Valentina Tupycia informing her not to come in because Mrs. Jorgensen was going to take her job. Mrs. Stoneley, nevertheless, went to the restaurant where she spoke with Jorgensen who confirmed that she was discharged because Mrs. Jorgensen was going to assume herjob.55 11. Conclusions I have found that General Counsel did not prove any discrimination against Patricia Rountree and I shall dismiss the complaint as to her. On the other hand, largely based upon direct evidence of unlawful motivation, I have found that Respondent unlawfully refused to restore Steven Collins to his job after he recovered from his injuries. The decision regarding the other seven alleged discriminatees is more difficult to reach. As there is no dispute that they were her during the summer months normally left the employ of the restaurant early in September 54 Virginia Stoneley testified that in prior years when the summer employee who assisted her left she received no other assistance and worked entirely alone. 55 Valentina Tupycia testified that the reason Virginia Stoneley no longer works for the restaurant is that "Mrs. Jorgensen assumed her responsibility and wanted to take over the Job for this period JORGENSEN'S INN discharged, which is discrimination within the meaning of Section 8(a)(3),56 a violation is established if it is proved that the discharges were "to discourage membership" in the Union. "[T]he somewhat simplistic equation that punish- ment because of union activity must equal discrimination to discourage membership" is normally applied in deciding such cases .57 Thus, the inquiry here is whether the discharg- es were the result of union activity. To a greater degree than in most cases that determination depends upon circumstan- tial evidence because the defense was perfunctory as Richard Jorgensen, who alone made the decision to discharge the employees, did not testify. The subject of investigation is his motivation. "The Board has the burden of showing improper motivation" on the part of the Employer.58 Had Richard Jorgensen testified, then the reasons he would have advanced for each of the discharges and the credence given those reasons would have had significant bearing upon the decision. However, the only management representative called as a witness by Respon- dent was Valentina Tupycia. She testified that she did not make the decision to discharge any of the persons named in the complaint and that generally Richard Jorgensen did not confide to her his reasons for the discharges. Accordingly, absent substantial evidence to refute the proof adduced by General Counsel, the principal issue for resolution is whether, upon the largely uncontested evidence, has General Counsel established prima facie violations of Section 8 (a)(3). In its Third Annual Report, the Board for the first time explained comprehensively its "method of weighing the evidence to determine whether the employer discriminated because of union affiliation or activity."59 Not since then has the Board undertaken any similar review in its Annual Reports although "[s ]ince that time the courts and the National Labor Relations Board have fluctuated with regard to the elements which must be proven, the burden of proof, and the type of evidence required to make out a Section 8(a)(3) violation." 60 The generally accepted constituents of the prima facie case were expressed in Whitin Machine Works, 61 in the following manner: When a charge is made that by firing an employee the employer has exceeded the lawful limits of his right to manage and to discipline, substantial evidence must be adduced to support at least three points. First, it must be shown that the employer knew that the employee was engaging in some activity protected by the Act. Second, it must be shown that the employee was discharged because he had engaged in a protected activity. . . . Third, it must be shown that the discharge had the effect of encouraging or discouraging member- ship in a labor organization. . . . The first and second 56 See Shieber, Section 8(a)(3) of the National Labor Relations Act, a Rationale Part I Discrimination, 29 LA L Rev. 46 (December 1968). 57 See Christensen and Svanoe, Motive and Intent in the Commission of Unfair Labor Practices The Supreme Court and Fictive Formality, 77 Yale L J. 1269, 1274 (June 1968) 58 Stone & Webster Engineering Corp v. N L R B, 536 F.2d 461 (C A 1, 1976). The meaning of the term "motivation" will be discussed below. 59 3 NLRB Ann Rep 81 ( 1939) See Ward , Proof of "Discrimination" Under the National Labor Relations Act, 7 George Washington L. Rev 797, 806, et seq (May 1939) 1513 points constitute discrimination and the practically automatic inference as to the third point results in a violation of ยง 8(a)(3)... . Until there is a reasonable basis in the evidence for making these findings, the employer need not excuse or justify his action... . Fourteen years later they were restated by the Supreme Court in N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967), as follows: First, if it can reasonably be concluded that the employer's discriminatory conduct was "inherently destructive" of important employee rights, no proof of an antiumon motivation is needed and the Board can find an unfair labor practice even if the employer introduces evidence that the conduct was motivated by business considerations. Second, if the adverse effect of the discriminatory conduct on employee rights is "comparatively slight," an antiunion motivation must be proved to sustain the charge if the employer has come forward with evidence of legitimate and substan- tial business justifications for the conduct. Thus, in either situation, once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected employee rights to some extent, the burden is upon the employer to establish that he was motivated by legitimate objectives since proof of motivation is most accessible to him.62 According to one writer, "[e ]stablishing the prima facie case under the Great Dane decision consists of showing that the employer engaged in `discriminatory conduct which could have adversely affected employee rights to some extent.' An important element in showing discrimination is the presentation of direct or circumstantial evidence that the employer had knowledge of union activity and the particular employee's involvement therein and that the employer's consideration of such activity was a factor which prompted, caused, or motivated the alleged discrimi- natory conduct. . . . The illegal intent or motivation of the employer may be inferred from the nature of the discrimi- natory conduct itself. The inference arises automatically once theprima facie case is established. The burden of proof then shifts to the employer to show that he was motivated by `legitimate and substantial' business reasons. If his conduct fells within the `inherently destructive' category, the Board may find an unfair labor practice in violation of section 8(a)(3) whether or not he asserts a business justification. If the employer's conduct falls within the `comparatively slight' category then he may rebut the inference of illegal motivation by presenting business justification. If the Board determines that the justification is 60 Honore , Employer Discrimination Under Section 8(a)(3), 5 Toledo L. Rev 722, 725(Spnng1974). 61 N L.R.B v. Whiten Machine Works, 204 F 2d 883, 884-885 (C.A. 1, 1953). 62 Justices Harlan and Stewart in their dissent refer to the majority's decision as an "alteration of the burden" of proof in 8(a)(3) cases because "the Board is required to find independent evidence of the employer's antiunion motive only when the employer has overcome the presumption of unlawful motive which the Court raises." 1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD `legitimate and substantial' the mference is rebutted and the burden shifts back to the General Counsel who must then affirmatively prove anti-union motivation by additional evidence. Only then is an unfair labor practice established under the second category. The clarification of those situations in which illegal intent may be inferred and those in which it must be proved is the important contribution of Great Dane to section 8(a)(3) litigation."63 What is meant by the term "motivation" still remains the subject of scholarly pursuit. One writer points out that there is "a distinction between employer intent and motive which is frequently overlooked in the analysis of section 8(a)(3). The two terms are often used interchangeably by the Court (and others) in the 8(a)(3) context, or smudged together under more generic rubrics, such as `scienter' or `animus.' Clear analysis requires that intent and motive be segregated with respect to 8(a)(3) in view of the [Supreme] Court's reliance upon the `common-law rule that a man is held to intend the foreseeable consequences of his conduct,' a reliance first announced as to 8(a)(3) in Radio Officers and reiterated in Erie Resistor and Brown Food. "64 Another writer observed that "Great Dane Trailers had in any case marked a deliberate restatement of the motive test in operation . . . and . . . establishment of motive as the benchmark of the violation has obscured the actual basis of decision, and the process of decision has been warped by the necessity to frame results in terms of motive."65 Two other authors suggest that confusion arises because the term "motive" is used with respect to both the intent to discriminate and the intent to encourage or discourage union activity. They argue that the two uses should be distinguished. Their thesis is that motive in the sense of "a consideration prompting an action" is what is meant when the reference is to discrimination; and this kind of motive is properly part of the prima facie case. On the other hand, motive in the sense of "something within that incites to action" is what an employer has when he acts with a purpose to encourage or discourage union activity. This is the antiunion motivation or illegal intent that may be inferred from "discriminatory conduct which could have adversely affected employee rights to some extent" and which must be affirmatively proved under the second prong of the Great Dane test once the employer has met his burden of showing a legitimate and substantial business justification.66 The unfortunate complexity in ascertaining whether in any particular situation General Counsel has made out a prima facie case has not been alleviated by recent Board decisions. For instance, the Board reproved an Administra- 99 Honore , supra at 776-778 64 Oberer, The Scienter Factor in Sections 8(a)(1) and (3) of the Labor Act Of Balancing, Hostile Motive, Dogs and Tails, 52 Cornell L Quart 491, 504- 505 (Spring 1967) as Christensen and Svanoe, supra at 1314, 1315 The same authors point out that in the early days of the Act "motive" was "treated not as an essential element of the substantive violation, but as an evidentiary aid in determining whether protected union activity had in fact been the cause of the terminations" (Supra at 1275) See also N LR B v Dan River Mills, Incorporated, Alabama Division, 274 F 2d 381, 384 (C.A 5, 1960). 66 Shieber and Moore, Section 8(a)(3) of the National Labor Relations Act A Rationale -Part 11 Encouragement or Discouragement of Membership in any Labor Organization and The Significance of Employer Motive, 33 La L. Rev I, 37-51 (November 1972) 97 North Adams Inn Corporation, 223 NLRB 807 (1976). tive Law Judge for failure in his decision to "conform with our well-established definition of animus,"67 without citing where the "well-established definition of animus" appears. In Redwing Carriers, Inc., 224 NLRB 530 (1976), the Board without reference to the criteria set forth in Great Dane indicates that union animus is a necessary element of a prima facie case . Similarly, in John L Donnelly, Sr., et al., d/b/a Shelby Liquors and Athens Distributing Company, a Division of Shelby Liquors, 208 NLRB 859 (1974), the Board states that "[i In the absence of any union animus and discriminatory motivation, we need not determine whether Respondent had good cause, bad cause, or no cause at all for discharging Appelbaum." Here again the Board without referring to the criteria in Great Dane and without distin- guishing between or defining the two terms indicates that either "union animus" or "discriminatory motivation" is an essential element of theprima facie case 68 In the instant proceeding, as Richard Jorgensen, who alone was responsible for the discharges under consider- ation, did not justify, the Respondent has not come forward with evidence of "legitimate and substantial business justifications" for the discharges.69 Accordingly, to the extent that motive is a necessary element of the prima facie case, "motive" in the sense of "a consideration prompting an action" is what General Counsel has to prove.70 In determining whether the evidence establishes prima facie that a discharge was the result of union activity the most significant factors normally considered in evaluating the proof are: 1. Knowledge on the part of the employer of the discharged employee's union activities or sympathies. 2. The employer's opposition to the organization of its employees and its hostility toward the union in- volved and those who support it. 3. Timing, or the relationship between the dis- charge and other critical events. 4. The reasons given by the employer for the discharge. a. As to Susan Mekler Respondent knew not only that Susan Mekler supported the Union but also that she had actively assisted the Union in its campaign. Mekler was effectively discharged on September 24 by Richard Jorgensen when she telephoned to inform him that she was too ill to work and he advised her that if she were absent another time she would be fired. It is not necessary to question whether the reason given sa See also Bayliner Marine Corporation, 215 NLRB 12 (1974). 69 A distinction is drawn between the reasons given the employees for their terminations as to which the employees and others may testify, and the business justifications for the discharges as to which normally only the individuals who decided to effect the terminations can testify. 70 "What determines whether the employer's conduct was violative of Section 8(aX3) in discharge cases is not its antiunion animus but whether its 'consideration prompting an action - motive ' for the discharge was the employee exercise of the Section 7 right to support a union, or the employee's inefficiency If it was the former, the discharge is violative of Section 8(aX3) even though the employer was not motivated by antiunion animus; if it was the latter, the discharge is not violative of Section 8(aX3) even though the employer was virulently opposed to unions." (Footnotes omitted.) Shieber and Moore, supra at 40 JORGENSEN'S INN Mekler for her termination was plausible because the discrimination , which I find was unlawful , was Respon- dent 's refusal to accede to Mekler 's request that she be permitted to work only on weekends after her college classes began in the fall of 1975. In past years, when Mekler was attending high school , Respondent had accommodated her in that fashion . Tupycia's testimony that she could not accommodate Mekler in 1975 because it would have been difficult to hire another waitress to work only on the 2 weekdays that Mekler wanted to give up was not true as Tupycia also testified that six waitresses who were then employed only on weekends had requested additional weekday work . Furthermore , Mary Grassi, a college student, began as of September 26 working as a waitress on weekends only. Tupycia's disingenuous explanation for not offering the job to Mekler was that, "I didn't think [Mekler ] would be interested." I find specious Tupycia's explanation as to why she refused to permit Mekler to work only on weekends beginning in September 1975. In view of Respondent's opposition to the organization of its employees and its knowledge that Mekler had actively assisted the Union, I infer that Respondent's refusal on August 31-9 days after the election and still a critical time in regard thereto as objections to the election had been filed and were pend- ing-without any valid reason and contrary to past practice to limit her work schedule to weekends was because of her union activities . The evidence shows that Respondent anticipated that Mekler would have difficulty meeting her work schedule once her college classes began . Thus, I further infer that Respondent refused to permit Mekler to work only weekends in order to develop an ostensibly nondiscriminatory reason to discharge her. Her discharge, therefore , I find was because of her union activities. I further find the discrimination discouraged membership in the Union and coerced , restrained, and interfered with employees ' exercise of their Section 7 rights in violation of Section 8(a)(1) and (3). b. As to Jennie Lippiello The evidence regarding the termination of Jennie Lippiel- lo is essentially the same as with respect to Susan Mekler except that Jennie Lippiello did not herself engage in any union activities . However, Richard Jorgensen knew that Jennie 's mother, Erma, "was one of the first ones in the union" and that her sister71 was an "open and articulate union sympathizer ." As no credible reason was advanced by Respondent for its discrimination against Jennie Lip- piello , I find that it was either because Respondent thereby sought to retaliate against her mother and her sister for their union activities or because it suspected that she too supported the Union . Discrimination for either reason is unlawful . Accordingly , I find that the discharge of Jennie Lippiello on September 19 violated Section 8 (a)(1) and (3) of the Act. c. As to Sharon Deibert 1515 Respondent knew Sharon Deibert to be an "open and articulate union sympathizer ," She had been working only on weekends until Wednesday , August 27 . On Sunday, August 31 , Tupycia asked Deibert to work regularly on Wednesdays and Deibert responded that she was willing but would not be able to report at 4 p .m. after her college classes began . On September 27, Richard Jorgensen dis- charged Deibert because she had been reporting to work late on Wednesdays . This reason was contrived . For the reasons stated above , I find that the discharge of Sharon Deibert violated Section 8(a)(1) and (3). d. As to Andrea Stoneley Richard Jorgensen knew that Andrea Stoneley had attended a union meeting, as he mentioned that fact to Mark Beardsley when he asked Beardsley whether An- drea's mother also had attended the meeting. The nature of the interrogation suggests that Jorgensen believed that Andrea Stoneley supported the Union . Andrea Stoneley worked as a pantry girl 4 to 5 days per week in the summer of 1975 . At the end of August , she informed Tupycia that she did not wish to work on Wednesdays and Thursdays after her college classes began . Tupycia denied the request, although in 1974 the Respondent had accommodated Stoneley in that respect , and Tupycia warned Stoneley that she would be required to report to work at her usual starting time of 3 p .m. On October 3, Charlotte Jorgensen dis- charged Andrea Stoneley with the explanation that she had been absent too many times in September. The evidence is that Andrea Stoneley was excused from work by Tupycia on 2 days during September , was absent because of illness on October 1, and had not otherwise failed to report to work as scheduled . Thus , the reason given to Andrea Stoneley for her discharge was specious. Andrea Stoneley, whom Respondent presumed support- ed the Union, was discharged just a little more than a month after the election while the results of the election were still undetermined . As the reason given to Andrea Stoneley for her termination was fallacious, and as no other explanation for her discharge has been offered by the Respondent , I find, in the light of Respondent 's strong opposition to the organization of its employees, that Andrea Stoneley was discharged because of her union sympathies and that Respondent therefore has violated Section 8(a)(1) and (3) of the Act. e. As to Paul Gensheimer Although Paul Gensheimer actively supported the Union in its organizing campaign there is no direct evidence in the record that Respondent knew of his activities. Gensheimer was discharged on August 24, the day after he became involved in a fight while at work . I find that General Counsel has not proved that Gensheimer was unlawfully discharged. 71 See G .C. Exh 5 1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD f. As to Mary Morris Respondent knew that Mary Morris had actively sup- ported the Union's campaign. Although there is no evi- dence that Morris was an unsatisfactory waitress, there is ample evidence that she behaved insolently towards Valen- tina Tupycia and Charlotte Jorgensen.72 Richard Jorgensen discharged Morris the night after Moms had an unpleasant encounter with Mrs. Jorgensen and informed her that it was because she had been rude to his wife. Factors indicating that union activity was a motivating reason, at least in part, for Morris' discharge are: her prominence in support of the Union's organizing cam- paign; Respondent's oppostion to the Union and its hostility towards employees who supported the Union as reflected by the unlawful discharges and the other unlawful conduct found above; 73 and the timing of the discharge which occurred while the outcome of the Board election was still undetermined. On the other hand, Moms had engaged in the conduct which she was told was the reason for her discharge and it is not implausible that an employer would discharge an employee for such reason . Taking account of all these factors, I find that Morris' union activities contributed, at least in part, to the decision to discharge her and Respondent by terminating her employ- ment has violated Section 8(a)(1) and (3). g. As to Virginia Stoneley Virginia Stoneley, who had been continuously employed by the restaurant as a cashier and hostess for 5-1/2 years, and who was questioned by Richard Jorgensen about her attendance at a union meeting, was summarily notified on January 7, 1976, the day she was scheduled to return to work after an extended holiday, that she was discharged because Mrs. Jorgensen was replacing her in her job. I find that General Counsel has established prima facie that Virginia Stoneley was discharged because of her union activities and I further find that Respondent thereby has violated Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. 72 Morns' testimony would indicate that Charlotte Jorgensen provoked her to make offending comments 73 In North Adams Inn Corporation, 223 NLRB 807 (1976), the Board criticized the Administrative Law Judge for relying in part upon "the lack of Having found that Respondent unlawfully deprived Mark Beardsley of work on August 22, 1975, I shall recommend that Respondent pay to Beardsley the wages he lost plus interest thereon at the rate of 6 percent per annum. Having found that Respondent unlawfully changed its policies regarding the collection of tips by waitresses by prohibiting customers from adding tips to the other charges on credit cards and by prohibiting waitresses from adding a 15-percent tip to the customer's check where a large party of eight or more is served, I shall recommend that Respondent restore the policy regarding the collection of tips which existed prior to the change on August 23, 1975. Having found that Respondent unlawfully refused to reemploy Steven Collins on July 14, 1975, and unlawfully discharged employees Susan Mekler on September 24, 1975; Jennie Lippiello on September 19, 1975; Sharon Deibert on September 27, 1975; Andrea Stoneley on October 3, 1975; Mary Morris on October 11, 1975; and Virginia Stoneley on January 7, 1976, I shall recommend that Respondent offer each of them immediate and full reinstatement to his or her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to such employee's seniority and other rights and privileges, and make such employee whole for any loss of earnings that the employee may have suffered by reason of the discrimination against him or her by payment to the employee of a sum of money equal to that which he or she normally would have earned from the aforesaid date of termination or refusal to reemploy to the date of Respon- dent's offer of reinstatement, less the employee's net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to such backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent's unlawful activities, including the discrimi- natory discharges and the unlawful refusal to reemploy Steven Collins, go to the very heart of the Act and indicate a purpose to defeat self-organization of its employees. The unfair labor practices committed by Respondent are potentially related to other unfair labor practices proscrib- ed by the Act, and the danger of their commission in the future is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the recommended Order herein is coexten- sive with the threat. Accordingly, in order to make effective the interdependent guarantees of Section 7 and thus effectuate the policies of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon the rights of the employees guaranteed in the Act is deemed necessary. N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1942); N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: hostility displayed by the Respondent towards other employees who supported the Union [as tending ] to show that it had not discnminatonly discharged three union adherents " It may be that the Board will also object to the converse JORGENSEN'S INN 1517 CONCLUSIONS OF LAW 1. By discriminatorily discharging Susan Mekler on September 24, 1975; Jennie Lippiello on September 19, 1975; Sharon Deibert on September 27, 1975; Andrea Stoneley on October 3, 1975; Mary Moms on October 11, 1975; and Virginia Stoneley on January 7, 1976; by discriminatorily refusing to reemploy Steven Collins on July 14, 1975; by discriminatorily depriving Mark Beards- ley of work on August 22, 1975; and by discriminatorily changing its policies regarding the collection of tips by waitresses , thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER74 Respondent, Jorgensen's Inn, Stockholm, New Jersey, its agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of their employment in order to discourage membership in Bartenders, Culinary Workers and Motel Employees Union Local 158, AFL-CIO, or any other labor organization. (b) Unlawfully questioning employees about umon activities, including their presence at Board proceedings, whether they filed unfair labor practice charges with the Board, whether they and others attended umon meetings, how they voted in Board elections, and the identity of the union leaders. (c) Soliciting employees to voice their grievances while leading them to believe that their grievances will be remedied in order to discourage support of the above- named Union, or any other labor organization. (d) Threatening employees with discharge or with other reprisals to discourage membership in or activity on behalf of the above-named Union, or any other labor organiza- tion. (e) Granting employees wage increases in order to induce them to refrain from joining or assisting the above-named Union, or any other labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Steven Colins, Susan Mekler, Jennie Lippiello, Sharon Deibert, Andrea Stoneley, Mary Morris, and Virginia Stoneley immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make each of them whole for any loss of earnings he or she may have suffered by reason of Respondent's unlawful discrimination in the manner set forth in the section of this Decision entitled "The Remedy." (b) Make Mark Beardsley whole for the wages he lost by reason of Respondent's unlawful discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Restore the policies regarding collection of tips by waitresses which existed prior to August 23, 1975. (d) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its place of business in Stockholm, New Jersey, copies of the attached notice marked "Appendix." 75 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations in the complaint of violations of Section 8(aXl) and (3) be dismissed except insofar as specific findings of violations of those sections have been made above. 74 In the event no exceptions are filed as provided by 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 by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 75 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or refuse to reemploy employees, change our policies regarding the collection of tips by waitresses, deprive employees of work, or otherwise discriminate against employees in regard to their hire, tenure of employment, or any term or condition of employment in order to discourage mem- 1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership in Bartenders , Culinary Workers and Motel Employees Union Local 158, AFL-CIO, or any other labor organization. WE WILL NOT unlawfully question employees about union activities , including their presence at Board proceedings or whether they filed unfair labor practice charges with the Board, whether they and others attended union meetings, how they vote in National Labor Relations Board elections, or who the union leaders are. WE WILL NOT solicit grievances from our employees and lead them to believe that their grievances will be remedied in order to discourage support of or member- ship in Bartenders, Culinary Workers and Motel Employees Union Local 158, AFL-CIO, or any other labor organization. WE WILL NOT threaten employees with discharge or other reprisals in order to discourage membership in or activity on behalf of the above-named Union, or any other labor organization. WE WILL NOT grant wage increases in order to induce employees to refrain from joining or assisting the above- named Union, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations , to bargain collectively through represen- tatives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Steven Collins, Susan Mekler, Jennie Lippiello, Sharon Deibert, Andrea Stoneley, Mary Morris, and Virginia Stoneley immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substantially equivalent positions, with- out prejudice to their seniority and other rights and privileges and WE WILL make each of them whole for any loss of earnings he or she may have suffered by reason of our unlawful discrimination against him or her, with interest at 6 percent per annum. WE WILL make Mark Beardsley whole for any loss of earnings he suffered by reason of our unlawful discrimi- nation against him, with interest at 6 percent per annum. WE WILL restore the policies regarding the collection of tips by waitresses which existed prior to August 23, 1975. JORGENSEN'S INN Copy with citationCopy as parenthetical citation