Lakewood Inn, Inc.

National Labor Relations Board - Board Decisions

Apr 27, 1970

182 N.L.R.B. 127 (N.L.R.B. 1970)

LAKEWOOD INN,-INC.
Lakewood Inn,, Inc. and Local 79 , Building Service
Employees International Union , AFL-CIO and Frida
Higgins. Cases 7-CA-6734 and 7-CA-7374
April 27, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 26, 1969, Trial Examiner James V.
Constantine issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom,
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision, and a'supporting brief. The General Counsel
then filed cross-exceptions to the Trial Examiner's Deci-
sion, accompanied by an argument in support of 'cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial Exam-
iner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.'
The Board has considered the Trial Examiner's Decision,
the exceptions, cross-exceptions, and briefs, and the
entire record in these cases, and hereby adopts the
findings, conclusions, and recommendations of the Trial
Examiner, with the following modifications.
The Trial Examiner found that, in offering former
waitress Higgins' a job as hostess, the Employer had
not fulfilled its obligation under a settlement agreement
to offer her reinstatement to her former or a substantially
equivalent position.' He found that a waitress position
was available at the time of the offer of the hostess
position, and reasoned that in any event the job of
hostess was not substantially equivalent to that of wait-
ress.' We adopt the Trial Examiner's result, but for
reasons set out below.
As described more fully in the Trial Examiner's Deci-
sion, an informal settlement agreement' was entered
The General Counsel excepts to a ruling by the Trial Examiner
which precluded evidence of a statement made by the Respondent
at or about the time of its offer of reinstatement to Higgins as a
hostess if proved, the statement would have tended to show that
the Respondent had no intention of reinstating Higgins to her former
job, even if available. In view of our disposition of these cases, we
find that the ruling was not prejudicial error
Y At the hearing in these cases, the Respondent admitted certain
allegations in the complaint, including that its discharge of Higgins
violated Section 8(a)(3) and (1)
The inadvertent reference to "waitress" at the fourth paragraph
of section III, B , 2, of the Trial Examiner's Decision is hereby corrected
to read "hostess "
The informal agreement has been vacated by the Regional Director
for Region 7
127
into by the parties in Case 7-CA-6734, whereby the
Employer agreed , inter alia , to offer Frida Higgins "rein-
statement to her former or substantially equivalent posi-
tion as a waitress to the first such job opening which
occurs after February 1, 1969. . . ." By letter dated
January 29, 1969 ,5 the Employer offered Higgins a posi-
tion as hostess after stating that it had "no waitress
openings at the present time ." Higgins declined the
offer.
On February 1, according to the settlement agreement
the first date Respondent was obligated to offer Higgins
any available waitress position, the employment of wait-
ress Teegardin was terminated. The parties stipulated
that, after February 1, the Employer first hired new
waitresses on February 28 and March 22.
The Employer does not take issue with the law as
stated by the Trial Examiner that, where a discrimina-
tee's former position is. available, the Employer must
reinstate him to that position. Chase National Bank,
65 NLRB 827, 829, and cases cited in the attached
Trial Examiner's Decision. The Employer argues that,
although a waitress left its employ on February 1, there
is no evidence that at that time there was a waitress
job available, as no one was then hired. This does
not help Respondent, however, for, even, assuming,
arguendo, that there is insufficient evidence to show
that Higgins' former position was available on February
1, the Respondent did hire a new waitress on February
28, and another on March 22. Thus Higgins' former
position was vacant on some date shortly after February
1" and the Respondent failed to offer it to her.
The sole remaining question is whether, prior to Febru-
ary 28 or March 22, Respondent satisfied its obligation
to Higgins by offering her a "substantially equivalent"
position, that of hostess. If so, the Respondent would
not have been required to offer 'Higgins reinstatement
to the subsequent waitress vacancies. For the reasons
given by the Trial Examiner, however, we agree with
his finding that the hostess position was not substantially
equivalent to Higgins' former' position as waitress.7
THE REMEDY
We adopt that portion of the Trial Examiner's Decision
entitled "The Remedy," but delete from the part which
deals with the method to be used in making whole
Frida Higgins the reference to "(c) any other offsets
agreed to by the parties and incorporated into or recog-
nized by said informal settlement agreement.""
All dates are 1969 unless otherwise noted
In its brief to the Board, the Respondent argues that on February
28 it hired only a part -time waitress and that Higgins ' former full-
time job was therefore still not available. However, it is clear that
the waitress hired March 22 worked full-time and, like Higgins , worked
split shifts (The Respondent testified that at all times relevant it hired
only split-shift waitresses.) As indicated , neither the February 28 position
nor the March 22 position was offered to Higgins
' We find no merit in the Respondent's argument that estoppel or
laches should be applied herein because of facts discussed in the
attached Trial Examiner ' s Decision N L R B v J H Rutter-Rer Mfg
Co,Inc,396US 258
" We are unable to determine what this language , which appeared
182 NLRB No. 27
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, as modified below, and hereby
orders that the Respondent, Lakewood Inn, Inc., its
officers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner's Recommended
Order, as herein modified.
Delete paragraph 2(a) and substitue the following:
"(a) Offer Frida Higgins immediate and full reinstate-
ment to her former position as waitress, discharging,
if necessary, any employee hired after the date of her
discharge, without prejudice to her seniority and other
rights and privileges enjoyed by her, and make her
whole for any loss of pay she may have suffered by
reason of Respondent's discrimination against her, in
accordance with the method described by the Trial Exam-
iner in the section of his Decision entitled "The Remedy"
as modified hereinabove in that portion of the Board's
Decision entitled "The Remedy."
in the settlement agreement that was set aside, may refer to Any
claimed deductions from backpay will in any event be subject to determi-
nation in connection with the computation of the amount due
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE , Trial Examiner : These are
two unfair labor practice cases commenced pursuant
to Section 10(b) of the National Labor Relations Act,
as amended , herein called the Act. 29 U.S.C. 160(b).
In Case 7-CA-6734 , the charge was filed on May 8,
1968, by Local 79, Building Service Employees Interna-
tional Union , AFL-CIO. In Case 7-CA-7374 , the charge
was filed on June 13 , 1969, by Frida Higgins. Both
charges name Lakewood Inn, Inc., as the Respondent.
Thereafter the General Counsel of the National Labor
Relations Board , through the Acting Regional Director
for Region 7 (Detroit , Michigan), in a single document
dated July 24, 1969, (a) consolidated said two cases
and (b ) issued a consolidated complaint based on both
of said charges . In substance said consolidated complaint
alleges that Respondent has violated Section 8(a) (1)
and (3 ), and that such conduct affects Section 2(6)
and (7), of the Act. Respondent ' s original answer denied
that it committed any unfair labor practices and set
forth certain affirmative defenses more fully described
therein.
Pursuant to due notice this consolidated case came
on to be heard , and was tried before me, on September
22, 1969, at Marshall , Michigan. All parties were repre-
sented at and participated in the hearing , and had full
opportunity to adduce evidence , examine and cross-
examine witnesses file briefs , and offer oral argument.
When the General Counsel rested , and again at the
close of the hearing , the Respondent moved to dismiss.
These motions were denied. When the case closed the
General Counsel and the Respondent argued orally. A
brief has been received from the Respondent.
This consolidated case presents the issue of whether
Respondent, which admittedly discharged Frida Higgins,
a waitress, contrary to the provisions of Section 8(a)
(3) of the Act, offered her "reinstatement to her former
or substantially equivalent position which occurs after
February 1, 1969, and before reinstating or employing
any other person to such position." The quoted words
set forth in the preceding sentence are taken literally
from an informal settlement agreement more fully
described below.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, a Michigan corporation, is engaged at
Battle Creek, Michigan, in operating a retail restaurant,
bar, and food service business. During the calendar
year 1968 Respondent received gross revenues exceeding
$500,000, purchased and received goods'and services
valued in excess of $50,000 directly from points outside
the State of Michigan, and purchased alcoholic beverages
valued in excess of $50,000 from the Michigan Liquor
Control Commission, which purchased the same directly
from suppliers located outside the State of Michigan.
I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7), of the Act, and
that it will effectuate the purposes of the Act to assert
jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
Local 79, Building Service Employees-International
Union , AFL-CIO, herein called Local 79 or the Union,
is a labor ' organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prior Proceedings in Case 7-CA-6734
As noted above the charge in Case 7-CA-6734 was
filed on May 8, 1968, by Local 79. It alleges that Respond-
ent violated Section 8(a)(1) and (3) of the Act. The
latter subsection involves an accusation that Respondent
discharged Frida Higgins on or about February 21, 1968,
because she participated in union activity. Thereafter,
on July 24, 1968, the parties executed an informal settle-
ment agreement disposing' of said charge. See Respond-
ent's Exhibit 1. Among other things said agreement
obligated Respondent, and it agreed, to:
1. Post copies of a notice attached thereto at its
"plant" and maintain said posted copies for a period
of at least 60 consecutive days from the date of posting;
and
LAKEWOOD INN, INC.
2. Make whole Frida Higgins- by paying her the sum
of $1,080.
The copy of the notice which the, agreement•required
Respondent to post also provided that Respondent would
not engage in certain 'unfair labor practices and that
Respondent
Will place Frida Higgins on a preferential reinstate-
ment list and'offer her reinstatement to her former
or substantially equivalent position as a waitress
to the first such job opening which occurs.after:
February 1, 1969, and before reinstating or employ-
ing any other person to such position. (See Resp.
Exh. 2.)
Respondent complied with and fulfilled the notice
posting requirements of the agreement and also made
whole Frida Higgins by paying to her the amount spec-
ified therein. Further, Respondent has not committed
any unfair labor practices violative of Section 8(a)(1)
of the Act since signing said agreement. However, the
parties are at issue on the question of whether Respond-
ent has made a valid offer to reinstate Frida Higgins
"to her former or substantially equivalent position as
a waitress to the first such job opening which occurs
after February 1, 1969.
B. The Issues Presented by the Consolidated Complaint
On June 13, 1969, Frida Higgins filed the charge
in Case 7-CA-7374, alleging , so far as` now material;
that Respondent has discriminatorily refused to'reiristate
her to her waitress job, contrary to the provisions of
Section 8(a)(3) of the Act. Finding probable merit in
this charge, the Regional Director vacated and set aside
the informal settlement agreement (Resp. Exh. 1)- on
the ground that it had,not been honored by Respondent;
and he thereupon revived the, charge,in Case 7-CA-6734.
(See paragraph 13 of the consolidated complaint.) As
noted above a consolidated complaint then issued based
on the charges in Cases 7-CA-6734 and 7-CA-7374.
At the trial Respondent orally admitted those allega-
tions of the consolidated complaint relating to the 8(a)(1)
violations (paragraph 9(a) through and including 9(o))
and those asserting that Frida Higgins was discharged
for her union and other protected activities . Accordingly,
I find that Respondent committed said acts, and that
they constitute violations of the Act. These violations
all antedate the' informal settlement agreement and con-
stitute the foundation of the charge in Case 7-CA-6734.
Consequently the only remaining dispute now to be
resolved by me is- whether Frida Higgins has been ten-
dered a valid offer to reinstate her to her former or
substantially equivalent position of employment as a
waitress . This issue is presented by•the charge in- Case
7-CA-7374 and by paragraph 10 and the pertinent por-
tions of paragraphs 11 and 12 of the consolidated com-
plaint.
129
1. General Counsel's evidence regarding the offer to
reinstate Frida Higgins
By letter dated January 29 , 1969 (G . C. Exh. 2),
Respondent ' s manager , Mark Steinbrunner , wrote to
Frida Higgins that
Have no waitress opening at the present time.
Do have a hostess job open at double the salary
you received as a waitress . This job pays $2.50
per hour vs $1.25 as a waitress . The hours are
substantially the same you worked before leaving
us last February.
Believe this affords you a golden opportunity
to go forward in this business . Kindly reply within
one week regarding this offer , since I can't keep
the job open longer than this.
Hope to hear from you within the next seven
days.
A copy 'of said letter together with a covering letter
was mailed by Respondent to the Board's Regional
Director on January 31, 1969. Said Director neither
replied thereto nor otherwise notified Respondent that
said offer to reinstate failed to comply with the settlement
agreement in Case 7-CA-6734, although the Director -
received said letter.
However , Frida Higgins answered the above letter
offering her a position as hostess by her letter dated
February 5, 1969 . (See G . C. Exh. 3.) In it she wrote
to Manager Steinbrunner
I have checked into the matter and have been
advised that , according to the order of the
N.L.R.B ., I am to be offered reinstatement to
my former position as a,waitress.
I appreciate your offer of a job as hostess;•but,
as I have no previous experience , I would rather
you offer me the job as waitress at your first
opportunity.
A copy of said letter was mailed by her to the NLRB
Regional Office in Detroit , Michigan.
When Frida Higgins was first employed by Respondent
as a waitress she worked at night i . e., 5 p.m. to closing.
Later she worked a split shift . A split shift girl works
lunches and evenings. She was compensated at the
rate of $1.05 an hour ; i.e., $1.25 less 20 cents because
of tips. In addition she received tips averaging $1 an
hour . As a waitress she received orders from Manager
Mark Steinbrunner , Maitre d'Hotel Ralph Constantine,
and Hostess Helen Mack . Her duties as a waitress
required her to take orders from , and serve dinners
to, customers and to clean up her station before she
quit at the end of her working day. She also had to
wear a uniform consisting of a black skirt and white
blouse, which she purchased with her own funds. At
no time had she ever worked at Lakewood Inn or-
elsewhere as a hostess
-She observed that hostess Helen Mack, one of those
from whom she took orders, wore evening dresses pur-
chased by , Mack herself Higgins characterized, these
as "dresses that you would wear out in'the evening.
You wouldn 't wear them down town in the day time,
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
usually ." Another hostess , Marie , wore "approximately
the same . Very nice dresses . . . Expensive clothes."
Unlike the waitresses , hostesses did not wear a uniform
while on duty.
A hostess performs the following tasks: She assigns
stations and work tables to the waitresses , takes charge
of the cash register , supervises the waitresses and the
busboys, seats customers as they enter , answers the
telephone , and takes reservations for parties . Waitresses,
including Higgins, perform none of these functions.
Hostesses eat in the main dining room , whereas waitress-
es use a back room by the kitchen , according to Higgins.
During her employment at Lakewood Inn Higgins
observed that no waitress was ever made a hostess.
Higgins explained that she did not accept Respondent's
offer of employment as a hostess for three reasons:
(a) lacking experience as a hostess she felt that she
could not qualify "to hold this job," (b) it was no
a position substantially equivalent to that of a waitress,
and (c) she did not have the clothing required by such
a job and could not afford to buy the clothing necessary
therefor.
Higgins testified that on infrequent occasions she
directed customers at Lakewood Inn to a nearby table,
but she did not consider this as "seating " them as
a hostess would . And Higgins once heard that Hostess
Mack waited on a table, but "there was a terrible
row over it ." However , hostesses sometimes will clear
a table.
The foregoing evidence is an abridgment of the testi-
mony of Frida Higgins. Another witness who testified
for the General Counsel is Hazel Pultorak. A condensa-
tion of her testimony follows:
Pultorak was employed as a waitress by Lakewood
Inn from October 1963 to July 1968. As such she received
orders from Manager Steinbrunner , Maitre d 'Hotel Con-
stantine , and Hostesses Mack , Marie , and Held. Her
pay was $1.05 (i.e., $1.25 less 20 cents for tips) an
hour plus tips averaging $ 1 an hour . She was required
to wear a uniform while on duty, which she was obligated
to buy herself . It consisted of a white blouse, black
skirt, white apron , and white shoes. Her duties as a
waitress included waiting on customers , cleaning up,
dusting , filling sugar bowls and cracker baskets, and
"taking care of condiments , butter , and cream."
Helen Mack was a hostess while Pultorak worked
at Lakewood Inn. Mack did not wear a uniform, as
did the waitresses . Pultorak described Mack ' s attire
as "high fashion clothing , mostly straight line dresses
with quite a lot of decorations and they were very
tight and she wore them very short." Mack ' s duties
included seating customers , answering the telephone,
taking cash, and listening to customers ' complaints.
But Pultorak performed none of these tasks, although
she occasionally seated customers . During the period
Pultorak worked at Lakewood Inn no waitress was
made a hostess ; but Ann Harris , the office girl, acted
occasionally as a hostess "when they were short hand-
ed."
Pultorak identified the apparel of Marie , another host-
ess at Lakewood Inn, as "very moderate . . . of a
nice length , very expensive , real tailored looking clothing
. . . it was not high fashion . . . or tight." Further,
Pultorak depicted hostess Held's working garments as
"very expensive clothing. . She [Held] said much
of it was never purchased around here ." On occasion
hostess Held did wait on tables at busy times.
Beverly Teegardin was the last witness for the General
Counsel . A summary of her testimony ensues.
From February 1964 to February 1, 1969, Teegardin
worked at Lakewood Inn as a waitress , for which she
received $1.05 an hour;, i.e., $1.25 less 20 cents for
tips. She also took in $•l.,an hour average in tips. In
this capacity she received instructions from Manager
Steinbrunner , Maitre d ' Hotel Constantine , and the host-
esses. She wore a uniform made up of a black skirt,
a white blouse , and white shoes, which she purchased
herself. Her tenure as a waitress ended on February
1, 1969.
Teegardin ' s obligations as a waitress included waiting
upon customers at tables, making up cracker baskets,
and straightening out the service area where coffeepots
were kept. Hostess Mack wore clothing "considered
evening apparel to the point of cocktail gowns and
dresses. They were jeweled , beaded , out of laces , satin-
very expensive." Mack took telephone calls, made reser-
vations, booked parties , seated customers , took cash
from customers , and ran the cash register . Teegardin
did not engage in any of these tasks, although she
sometimes seated customers after 11 p . m. who came
in for cocktails. (No meals were served after 11 p.m.)
Also she averred that while serving as a waitress at
Lakewood Inn no waitresses were made hostesses.
Teegardin further testified that hostess Marie , an older
woman, wore "very expensive and well cut clothes.
She didn't overdress but was very lovely." And Hostess
Held dressed "very, very expensively, very nicely-
expensive to the point where she told me she could
not purchase her clothing in Battle Creek but had to
go to St. Louis and Chicago to get them."
It was stipulated by the parties that Respondent's
records disclose that (a) it hired one Florence Elaine
Arnold as a waitress on February 28, 1969; (b) it hired
Jackie Delores Price as a waitress on March 22, 1969;
and (c) these were the first such persons hired as waitress-
es on or after February 1, 1969. These records also
show that said employees were paid $ 1.25 an hour.
See General Counsel's Exhibits 4 and 5.
It was also stipulated by the parties that Respondent
mailed to the Regional Director a copy of the offer
to Higgins (G.C. Exh. 2), and the same was received
by him on or about February 3, 1969.
2. Respondent ' s evidence relating to its offer to reinstate
Frida Higgins
Liselotte Held worked for Respondent from August
1963 to June 16 , 1964, and since January 8, 1968. She
worked as a hostess during the above periods except
that from December 8, 1968 , to January 8, 1969, she
was employed as a waitress. As a waitress she set
LAKEWOOD INN, INC. 131
up and cleared tables and also served and waited on
customers. For this work she was paid by the hour.
Held's duties as a hostess required her to seat people,
take telephone calls, set up and clear tables , take over
the telephone reservations for parties , wait on customers
if necessary , assign tables to waitresses , and receive
money payments from customers . She waited on tables
only when business " is very severe [and the waitresses]
can't take care of it." This "depends on business,"
but often occurs on Saturday nights.
When Held worked as a waitress she wore a uniform
composed of a black skirt , white blouse , black apron,
and white shoes "as required by the establishment."
She bought these herself . Her clothing when she was
employed as a hostess was described as "street clothes,
clothes that you would wear in any office , sweater,
blouse, skirt . . . no one makes any requirements what
type of clothing you have to wear ." She also referred
to it as "clothing that I go out to dinner , clothing
I go out to lunch in . . . [but not ] high fashion."
According to Held her experience obtained as a wait-
ress helped her in performing her duties as a waitress.
As a hostess she "had occasion " to set up and clear
tables and wait on customers . Whether she waited on
tables depended on "how busy we are , and it all depends
[on] how many girls are not sick ... When the waitresses
are able to take care of the tables properly I only
perform my duties as a hostess ." Although a restroom
is provided for the waitresses near the kitchen to be
used only by permission , Held does not use it; but
she can go there if she so desires. Among others,
she is authorized to give the girls permission to use
it. She gives instructions to waitresses only at meetings;
but she also does oversee their work , assigns tables
to waitresses , and points out to them deviations from
their duties , such as not "leaving their tables properly
set up for the next shift" or coming in late for work.
Respondent offered Dorothy Deese as its final witness.
A summary of her testimony follows.
Deese has been employed by Respondent since
November 1963, doing waitress work. Sporadically she
will be called on to act as a hostess. As a waitress
she puts water on tables , " sets up [her] station, sees
the silverware and everything is correctly placed," waits
on customers , and, if no busboy is around , cleans up
tables and sets them "back up for the next customers."
She punched a clock and was paid by the hour.
She also has rendered a little service, but quite irregu-
larly, as a hostess for Respondent . But essentially she
is a waitress . In her capacity as a hostess she assigns
tables to waitresses , seats customers , takes cash , sched-
ules parties , cleans tables when busboys are so occupied
that they are behind in their work, "helps set the water
on," and , when waitresses are so rushed as to "need
help, will also help them out." "Once in a while"
she waits on tables but only when a waitress is so
busy that she needs assistance , and then only if she
can get away from other duties as a hostess. Although
a hostess does not punch a clock , she is paid by the
hour.
Deese ' s garb worn as a hostess is "just . . . regular
street clothes ." Management has not told her what
to wear . However , she wears a uniform when serving
as a waitress . And being a waitress helps her to perform
her duties as a hostess.
C. Concluding Findings and Discussions
Upon evaluating the record as a whole I am convinced,
and therefore find, that Respondent was obligated to
reinstate Frida Higgins as a waitress but has not offered
Frida Higgins her former position as a waitress at Lake-
wood Inn although such a job opening existed on and
after February 1, 1969. Further , I find that if Respondent
could lawfully fulfill this requirement of-reinstating Hig-
gins by tendering her a position substantially equivalent
to that of a waitress, it has not discharged said obligation
by offering her a position as hostess. For I find on
the record developed at the trial that the position of
hostess is not substantially equivalent to that of a wait-
ress. These ultimate findings are based on .-the entire
record and the following subsidiary findings, which I
hereby find as facts.
1. Initially I find that the applicable terms of the
informal settlement agreement of July 27, 1968 (Resp.
Exh. 2; see also paragraph 11 of the consolidated com-
plaint), do not confer on Respondent an option to offer
Higgins her former job as a waitress or a substantially
equivalent position . Rather , I find that Respondent was
compelled to offer her reinstatement as a'waitress if
such a position existed on and after February 1, 1969.
This finding flows from the Board's doctrine that " .
Where a discriminatee's former position is in existence
the restoration of the status quo requires that
the employer reinstate him to that position." Chase
National Bank, 65 NLRB 827, 829. Accord: Trinity
Valley Iron and Steel Company, 158 NLRB 890, 895.
This is so even though the Respondent ' s undertaking
arises as a result of a settlement agreement . N.L.R.B.
v. Draper Corporation, 159 F.2d 294, 297 (C.A. 1).
2. Secondly, I find that on and after February 1,
1969, an opening for a waitress existed at Lakewood
Inn. On this aspect of the case I find that Beverly
Teegardin, a waitress, was no longer employed by
Respondent on and after February 1, 1969, so that
on and after that date a vacancy as a waitress was
available to offer to Higgins. Since such a position
was open , an onus was imposed on Respondent to
offer the same to Higgins in order to sustain Respondent's
duty to restore the status quo. Hence I find that Respond-
ent was not vested with an alternative of proffering
to Higgins a position substantially equivalent to that
of a waitress.
Also, I find that a position as waitress became available
on February 28, 1969, when Respondent hired Florence
Elaine Arnold as a waitress, and on March 22, 1969,
when Respondent hired Jackie Delores Price as a wait-
ress. And I further find that either of these two positions
should have been offered to Higgins, but neither was
so offered. Since these jobs were available, I find that
the status quo could be restored solely by tendering
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of them to Higgins; and I further find that Respond-
ent could not elect to offer a substantially equivalent
position in order to discharge its obligation to reinstate
Higgins.
In this connection I find , if material , that Respondent's
offer to Higgins dated January 29, 1969 (G. C. Exh.
2), was a continuing one until I week following January
29, 1969 , and that it was not necessary to repeat it
whenever during that period a vacancy occurred at
Lakewood Inn which qualified as a proper position within
the contemplation of the informal settlement agreement.
3. In any event , even if Respondent was vested with
an option to offer Higgins a substantially equivalent
position to that of a waitress , and thereby would have
complied with its covenant as expressed in the settlement
agreement , I find that tendering Higgins . a position as
hostess did not offer her a position substantially equiva-
lent to that of a waitress . While the functions of a
hostess and those of a waitress may overlap 'or coincide
in minor details, I find that they are widely divergent
in their essential attributes
Thus a hostess must handle cash and be in charge
of the cash register . This is a function which a waitress
may well wish to avoid as it not only involves the
possibility of committing errors which may cause finan-
cial loss to the employer , but it also exposes the cashier
to risks of bodily harm attendant upon an armed robbery
at the restaurant . Then, again , a hostess must dress
in a manner befitting the position of one who must
present a good appearance to the public. Such dress
is changed daily. This is more expensive than wearing
the same waitress clothing each day, even though the
identical uniform may be changed at frequent intervals.
Further , a hostess must be able to meet, greet, and
handle the public . This demands unusual tact and some
understanding of the psychology of humans as well
as the responsibility of placating and satisfying unhappy
or recalcitrant customers . Finally, even though not a
supervisor , a hostess oversees and directs the waitresses
and also assigns tables to the latter . This is an exacting
role which requires an ability to manage employees
in a skillful manner . A waitress is not called upon
to perform the same. Only in a relatively minor sense
can it be said that a waitress performs some of the
foregoing arduous functions.
Board decisions classifying hostesses for unit purposes
are not helpful . Although those decisions include nonsu-
pervisory hostesses in a unit which also embraces wait-
resses, the Board ' does not differentiate between the
respective functions of these two classes of workers.
Marshall Field & Company, 93 NLRB 182 ; Canal Street
Hotel Corporation, 127 NLRB 880, 884 . But the Board
recognizes that hostesses may be supervisors even when
they occasionally perform some of the conventional
tasks of waitresses Manger-Savannah Corporation,
Inc., 126 NLRB 1136, 1140; Mission Valley Inn, Inc ,
124 NLRB 963, 964-965 Cf. Nebraska Power Company,
46 NLRB 601, 606.
4. Respondent further insists in its brief that, in any
event,
the General Counsel should be estopped by its
own conduct from asserting the claim of non-com-
pliance in this case . That contention rests on the
acknowledged fact that the Regional Director for
the Seventh Region had full knowledge of the Com-
pany's offer of reinstatement for nearly five (5)
months before the Complaint in Case No.
7-CA-7374 was filed . . . . If the Company's
offer in January of 1969 was not a proper one,
then the General Counsel could have and should
have treated the question as one of compli-
ance.... ,
But I find that mere -delay or laches alone does not
defeat an unfair labor practice proceeding . This, is
because neither the United States nor an agency thereof
is subject to the defense of laches in enforcing a public
right . W. C. Nabors Co. v. N.L.R.B., 323 F.2d 686,
688-689 (C.A. 5), cert. denied 376 U.S. 911. "The
fact that these proceedings operate to confer an inciden-
tal benefit on private persons does not detract from
this public purpose " Nabors case , supra at 688-689.
Nor is the General Counsel estopped because the
Regional Director failed to respond to Respondent's
communication transmitting to said Director a copy. of
its offer of a hostess position made to Higgins by
Respondent. Absent evidence that Respondent gave
some indication that it sought assistance or advice as
to,the effectiveness of said offer , the Regional Director's
failure to answer Respondent does not rise to the stature
of estoppel . J. H. Rutter-Rex Manufacturing Company,
Inc., 158 NLRB 1414, 1443-44 . The covering letter
to the Regional Director enclosing a copy of Respond-
ent's offer of a hostess job to Higgins is not in evidence.
Hence I cannot find that Respondent in its said covering
letter expressed a wish to obtain the Regional Director's
views on the adequacy of the offer of a hostess job
to Higgins . And the .record is otherwise barren of evi-
dence that Respondent desired guidance from the Region-
al' Director as to whether the offer to Higgins satisfied
the requirements of the informal settlement agreement.
Hence I find that the Regional Director was not required
to communicate with 'Respondent after he received a
copy of the offer of a hostess job to Higgins . It follows,
and I find , that the General Counsel is not estopped
to proceed to try the consolidated complaint.
Although Rutter-Rex, supra , to some extent was mod-
ified by the court of appeals, which held that unreasona-
ble delay may sometimes mitigate the remedy available
to correct unfair labor practices , I do not construe
the court ' s opinion as going so far as to bar an unfair
labor practice proceeding merely because of inordinate
delay in issuing a complaint (399 F. 2d 356 (C.A. 5)).
Indeed the court in Rutter-Rex reaffirms the doctrine
promulgated in the Nabors case, supra. Moreover, the
Board has successfully obtained from the United States
Supreme Court certiorari to review the circuit court's
decision in Rutter-Rex , 393 U.S . 1117. In any , event,
I am bound to follow the Board ' s decision in Rutter-
Rex until the Supreme Court of the United States,has
ruled otherwise or the Board adopts a contrary rule.
Iowa Beef Packers , Inc., 144 NLRB 615,;616., .
LAKEWOOD INN, INC 133
Accordingly, I find that the affirmative defenses of
laches and estoppel are not well taken and, therefore,
are insufficient to compel the dismissal of the complaint
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
described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow of commerce
able request , make available to the Board or its agents
all pertinent records and data necessary to aid in analyz-
ing and determining whatever backpay may be due
The Recommended Order provides for broad relief
This is warranted in view of the fact that the informal
settlement agreement contains a similar provision (Resp
Exh 2) However, this text has been omitted from
the notice to be posted because it was previously posted
pursuant to the informal settlement agreement (Resp
Exh 2 )
Upon the basis of the foregoing findings of fact and
the entire record in this case , I make the following
CONCLUSIONS OF LAW
V THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that
it be ordered by the Board to cease and desist therefrom
and that it take specific affirmative action, as set forth
below, designed to effectuate the policies of the Act
Respondent has complied in all respects with the
informal settlement agreement (Resp Exh 1) except
that it did not offer Frida Higgins her former position
of waitress Thus it has posted an appropriate notice
(Resp Exh 2), and has not engaged in any unfair
labor practices since then other than its failure to offer
Higgins a position as waitress Accordingly, I find that
it will not effectuate the purposes of the Act to require
Respondent to post again a notice reciting former viola-
tions which it has not repeated Hence the notice which
I shall recommend to be posted will relate only to
the reinstatement of Higgins and making her whole
for any loss of pay
Since Respondent has not made a proper offer to
reinstate Higgins, I shall recommend that it be ordered
to offer her immediate and full reinstatement to her
former position as waitress or, if none is available,
to offer her a position substantially equivalent to that
of waitress I shall further recommend that Higgins
be made whole for any loss of earnings suffered by
reason of the discrimination against her
In making Higgins whole Respondent shall pay to
her a sum of money equal to that she would have
earned as wages from the date of her discharge to
the date of reinstatement or proper offer of reinstate
ment , as the case may be , less (a) her net earnings
during such period, (b) the sum of $1,080 already paid
her as back wages in accordance with the informal
settlement agreement, and (c) any other offsets agreed
to by the parties and incorporated into or recognized
by said informal settlement agreement Such backpay
shall be computed on a quarterly basis in the manner
established by F W Woolworth Company, 90 NLRB
289 To any net backpay, if any, remaining after the
deductions above mentioned have been made , interest
shall be added Such interest shall be at the rate of
6 percent calculated by the formula set forth in Isis
Plumbing & Heating Co , 138 NLRB 716 I shall also
recommend that Respondent preserve and, upon reason
1 Local 79 is a labor organization within the meaning
of Section 2(5) of the Act
2 Respondent is an employer within the meaning
of Section 2(2), and is engaged in commerce as defined
in Section 2(6) and (7), of the Act
3 By discriminating in regard to the tenure of employ
ment of Frida Higgins, as a waitress , thereby discourag-
ing membership in Local 79, a labor organization,
Respondent had engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act
4 By engaging in conduct delineated in paragraphs
9(a) through and including 9(o) of the consolidated com-
plaint , Respondent has committed unfair labor practices
within the meaning of Section 8(a)(1) of the Act
5 The foregoing unfair labor practices affect com
merce within the purview of Section 2(6) and (7) of
the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case , I recommend that the Board enter an Order that
Respondent , its officers , agents, successors , and assigns,
shall
I Cease and desist from
(a) Discouraging membership in Local 79 or any
other labor organization by discharging employees or
otherwise discriminating in any manner in respect to
their tenure of employment or any term or condition
of employment
(b) In any other manner interfering with restrain
mg or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act
2 Take the following affirmative action designed to
effectuate the policies of the Act
(a) Offer Frida Higgins immediate and full reinstate
ment to her former position as waitress , or if it is
not available , to a position substantially equivalent there
to, without prejudice to her seniority and other rights
and privileges enjoyed by her, and make her whole
134 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
for any loss she may have suffered by reason of Respon
dent's discrimination against her, in accordance with
the method described in section V, above entitled ' The
Remedy '
(h) Notify said Frida Higgins if presently serving
in the Armed Forces of the United States of her right
to reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act as amended, after discharge
from the Armed Forces
(c) Preserve and upon reasonable request make
available to the Board or its agents for examination
and copying, all payroll records and reports and all
other records necessary to ascertain the amount of back
pay due under the terms of this Recommended Order
(d) Post at its restaurant at 27 Hulbert Lane Battle
Creek, Michigan, copies of the attached notice marked
"Appendix "i Copies of said notice on forms provided
by the Regional Director for the Region 7, after being
signed by a duly authorized representative of Respon
dent, 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 displayed
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered defaced, or covered
by any other material
(e) Notify the Regional Director for Region 7 in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith 2
' In the event no exceptions are filed as provided by Section 102 46
of the Rules and Regulations of the National Labor Relations Board
the findings conclusions recommendations and Recommended Order
herein shall as provided in Section 102 48 of said 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
In the event that the Board s 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 be
changed to read Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board
2 In the event that this Recommended Order is adopted by the
Board this provision shall be modified to read Notify said Regional
Director in writing within 10 days from the date of this Order what
steps Respondent has taken to comply herewith
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that
WE WILL offer Frida Higgins immediate and
full reinstatment to her former position of waitress
or, if such is not available, to a position substantially
equal to it, without prejudice to her seniority and
other rights and privileges enjoyed by her We
will also pay her whatever loss of pay she may
have suffered as a result of her discharge by us,
with interest at 6 percent per annum
LAKEWOOD INN, INC
Dated By
(Employer)
(Representative ) (Title)
Note We will notify the above mentioned employee
if presently serving in the Armed Forces of the United
States of her right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
500 Book Building, 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone 313-226-3244