Jorgensen's Inn

National Labor Relations Board - Board Decisions

Jan 25, 1977

227 N.L.R.B. 1500 (N.L.R.B. 1977)

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 § 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