Lawler's Cafeteria & Catering Co.

National Labor Relations Board - Board Decisions

Aug 29, 1962

138 N.L.R.B. 352 (N.L.R.B. 1962)

352 DECISIONS OF NATIONAL LAEOR RELATIONS BOARD
of neutral employees . We have seen , as a representative of the Company testified,
that the conveyors "are an integral part of our production facility." Too,
the shift from production of old to new model refrigerators and ranges during 1958
was dependent upon the rearrangement and enlargement of the conveyors , and thus,
to paraphrase a statement of the Supreme Court in this case, "the tasks of the neutral
employees aided the Company 's everyday operations." It seems to me that work on
.an integral part of production facilities as an essential step to resuming the produc-
tion of finished products is clearly related to the plant 's normal operations. This
,conclusion dictates dismissal of the complaint , but the second prerequisite will be dis-
cussed with reference to the conveyor work.
Turning to the second prerequisite , that the work of the neutral employees who use
the separate gate "must be of a kind that would not, if done when the plant were
,engaged in its regular operations , necessitate curtailing those operations ," the Gen-
eral Counsel argues that the plant's normal operations were not curtailed by the
'work of the contractors ' employees on the conveyors because "normal operations
were not carr:ed on during the shut -down period . . . ." The General Counsel thus
reads the prerequisite as though the Court had not used the phrase , "if done when
the plant were engaged in its regular operations ." I cannot agree with the General
Counsel because I believe that that phrase is very meaningful . It is interesting to
note that the Company takes a different position than the General Counsel. The
Company argues that "normal or regular operations of the Company's plant include
an annual vacation shutdown . . ." and thus that the work of the contractors during
the shutdown period was performed during normal operations without curtailment
of the operations . This argument, according to the Union, "smacks of sophistry."
I cannot agree with the Company 's contention As I construe the pertinent por-
tions of the opinion in United Steelworkers , read in the light of the facts there, and
bearing in mind that they "are not unduly difficult to understand ," I believe that
the Court said in substance that the work of employees who use the separate gate must
be not only unrelated to the normal operations of the primary employer , but must
also be of kinds that could be performed by neutral employees while the primary
employees continued with their work. Viewed in that light , the second prerequisite
also is absent . The neutral employees could work on the conveyors only when
production employees were not at work. To quote Chadbourne again , "it just isn't
possible to operate the plant and do this kind of work "
For the reasons related, I find that the Respondent has not engaged in unfair labor
practices and I recommend that the complaint be dismissed . This recommendation,
I reiterate , is made without having to decide which of the various projects described in
section III , E and F , above, were related to the normal operations of the Company.
Lawler's Cafeteria & Catering Company and Hotel, Motel,
Restaurant and Club Employees Union Local 353, affiliated
with Hotel & Restaurant Employees and Bartenders Inter-
national Union , AFL-CIO. Case No. 16-CA-1619. August 29,
1962
DECISION AND ORDER
On June 1, 1962, Trial Examiner James F. Foley issued his Inter-
mediate Report in the above=entitled proceeding, finding that the Re-
spondent had engaged in the unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent filed exceptions to the Interme-
diate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
138 NLRB No. 40.
LAWLER'S CAFETERIA & CATERING COMPANY 353
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and
hereby adopts the Trial Examiner's findings,' conclusions, and recom-
mendations, except as modified herein .2
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Lawler's Cafe-
teria & Catering Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Interrogating employees with respect to union membership,
union activity, or other concerted activity in a manner constituting
interference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
(b) Threatening employees with the closing down of the cafeteria
or with other reprisals if they become members of or assist Hotel, Mo-
tel, Restaurant and Club Employees Union Local 353, affiliated with
Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, or any labor organization, or engage in other union ac-
tivity, or embrace union membership.
(c) Engaging in surveillance of employees' union or other concerted
activities.
(d) Ordering or instructing employees to report what they see or
hear at union meetings or at other concerted activities, and interrogat-
ing them with respect to what they see or hear at such activities.
(e) In any like or related manner interfering with, restraining, or
coercing employees with respect to the exercise of their rights to en-
1 We agree with the Trial Examiner that by its conduct with respect to employee Wade
the Respondent engaged in unlawful surveillance in violation of Section 8(a) (1) of the
Act. However , contrary to the Trial Examiner , we do not adopt his finding insofar as it
implies that interrogation is the equivalent of surveillance
2 We find merit in Respondent ' s exceptions to the scope of the order recommended by
the Trial Examiner and shall issue a narrow order See Max Silver , Irwin Silver, and
Edward Braude, co-partners , d/b/a Max Silver & Son, 123 NLRB 269, National Shirt
Shops of Delaware, Inc, at al, 123 NLRB 1213 We also find merit in Respondent's ex-
ceptions to the Trial Examiner 's recommendation that the notice herein be posted at each
of the other cafeterias operated by Respondent . As the conduct in issue here occurred
solely at the Ford plant cafeteria , and there is no indication that employees at Respond-
ent's other cafeterias were aware of Respondent 's unfair labor practices , we shall not
require posting at the other cafeterias See Rickel Bros, Inc, 128 NLRB 448 , 449, foot-
note 2 Further , as Respondent no longer operates the Ford plant cafeteria , we shall not
require any posting but shall direct that Respondent mail copies of the notice to those
individuals who were in its employ at Ford Electric Steam Radiator Corporation, a
subsidiary of Landers , Frary and Clai k , 136 NLRB 923.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gage in union or other concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to refrain from any
or all such activities.
2. Take the following affirmative action which it is found will effec-
tuate the purposes of the Act.
(a) Mail to each individual employed by it at the Ford plant cafe-
teria on March 30, 1962, a copy of the attached notice marked "Ap-
pendix." 3 Copies of said notice, to be furnished by the Regional
Director for the Sixteenth Region, shall, after being duly signed by
Respondent, be sent to these individuals at their last known address.
(b) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Deciee of the United States Court of Appeals, Enforcing an Order"
APPDENDIX
NOTICE TO ALL EiuIPLOYEzS
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT question our employees with respect to union
membership, union activity, or other concerted activity in a man-
ner constituting interference, restraint, or coercion in violation
of Section 8(a) (1) of the Act.
VVE WILL NOT threaten our employees with the termination of
our business operation, or threaten them with other reprisals,
if they designated the Hotel, Motel, Restaurant and Club Em-
ployees Union Local 353, affiliated With Hotel & Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, or any
other labor organization, as their collective-bargaining repre-
sentative.
WE WILL NOT engage in, or attempt to engage in, surveillance
of our employees' union or other concerted activities.
EVE WILL NOT order or instruct employees to report what they
see or hear at union meetings or at other employees' concerted
activities, or interrogate them as to what they see or hear at such
activities.
Wi WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of their rights to en-
gage in union or other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
LAWLER'S CAFETERIA & CATERING COMPANY 355
All our employees are free to become, remain, or refrain from be-
coming or remaining members of the Hotel, Motel, Restaurant and
Club Employees Union Local 353, affiliated with Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO, or any
other labor organization.
LAWLER'S CAFETERIA & CATERING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth 2, Texas, Telephone Number, Edison 5-4211, Extension 2131,
if they have any question concerning this notice or compliance with
its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Case No. 16-CA-1619 was brought under Section 10 (b) of the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act, on a
charge filed February 20, 1962, by Hotel, Motel, Restaurant and Club Employees
Union Local 353, affiliated with Hotel & Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, herein called the Union, and amended by the Union
on March 5 and 21, 1962, and April 16, 1962. On March 22, 1962, General Coun-
sel issued a complaint premised on the charge as amended on March 21, 1962. On
April 20, 1962, General Counsel issued an amended complaint premised on the
charge as amended on April 16, 1962. The amended complaint alleges acts of in-
terrogation, surveillance , and threats by Respondent in violation of Section 8(a)( I)
of the Act.' Respondent filed an answer to the amended complaint on April 24,
1962, wherein it denied that it was engaged in commerce , and that it engaged in the
unfair conduct of interrogation , surveillance , and threats alleged in the amended
complaint. A hearing on the amended complaint and answer was held before Trial
Examiner James F. Foley on April 30, 1962.
Respondent , General Counsel, and Charging Party were represented at the hearing,
and all parties were afforded an opportunity to be heard, to introduce evidence, make
oral argument, and file briefs. Counsel for Respondent and General Counsel filed
briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent , a Texas corporation , at all times material to this proceeding, main-
tained its principal office and place of business 'at Dallas, Texas , and engaged in the
operation of cafeterias at six locations in and around Dallas, Texas. It discontinued
the operation of one of these cafeterias , the Ford plant cafeteria , on March 30, 1962.
During the 12-month period prior to March 22 , 1962, Respondent purchased goods,
materials , and equipment with a value in excess of $10,000 from suppliers in the State
of Texas who purchased them directly from points outside the State of Texas, and
did a gross volume of business of $500,000 . I find that Respondent is engaged in
The original complaint , like the charge amended as of March 22, 1962, contained an
allegation of a discriminatory discharge by Respondent of employees at its Ford plant
cafeteria The amendment to the charge of April 16 , 1962, deleted the claim of dis-
criminatoiy discharge The complaint was amended on April 20 , 1962, to delete the
allegation of a discriminatory discharge.
(;62353-63-vol. 138 24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
commerce within the meaning, of Section 2(6) and (7) of the Act, and that assertion
of jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
1. Undisputed facts
The alleged unfair labor practices occurred at Respondent's Ford plant cafeteria,
located at the Ford Motor Company assembly plant at East Grande Street, Dallas,
Texas. Respondent began operating this cafeteria in 1957 under a contract with the
Ford Motor Company. It employed approximately 16 persons at this location. The
contract with the Ford Motor Company gave the Respondent and the Ford Motor
Company the option to terminate the contract on 30 days' notice. At the time the
conduct in issue occurred, Respondent employed approximately 180 employees at all
its cafeterias, including the 16 employees at the Ford plant cafeteria. The president
and majority stockholder of Respondent is Carlton Lawler, and he operated the six
cafeteria locations from the main office at Elm Street, Dallas, Texas. The manager
of the Ford plant cafeteria was Ben Tarrant.
Respondent became aware of union organizational activity by the Union on
Wednesday, February 14, 1962, although it did not learn the identity of the union
doing the organizing. The awareness started with information received by Tarrant
from employees. About 5 p.m. on February 14, Tarrant communicated with Lawler
by telephone, and informed him of the organizational activity. On Thursday, Febru-
ary 15, 1962, about noon, Lawler talked to employees Tyler and McCallum in the
office of the Ford plant cafeteria about the organizational activity of the Respondent,
and shortly afterward spoke to all the employees regarding it as they were assembled,
at his request, in the storeroom of the cafeteria. Tarrant talked to employee Wade
about the union activity after the meeting on February 15 and also talked to em-
ployees Wade, McCallum, and Booty about this activity on February 16 and 19, 1962.
On Friday, February 16, 1962, the Union held a union meeting at which were present
employees of Respondent's Ford plant cafeteria. Respondent knew on February 15
that the union meeting was scheduled for February 16. On Monday, February 19,
1962, the Union filed with the Board's Regional Office at Fort Worth, Texas, a peti-
tion for certification as collective-bargaining representative. Respondent received
notice of the filing of this petition on February 21, 1962. On February 24, 1962,
Tarrant received from the Ford Motor Company security officer at the Ford plant
two signs fashioned from cardboard which were found in the restroom of the Ford
plant employees and in the vicinity of the cafeteria. Printed with black crayon on
one sign was the statement "BRING YOUR LUNCH MONDAY," and on the other
sign, the statement "DON'T EAT IN HERE."
On February 26, 1962, Respondent posted on the bulletin board at the Ford plant
cafeteria a copy of letter to the Ford Motor Company in which it exercised its option
under its contract with the Ford Motor Company to terminate the contract. It gave
the termination date of March 30, 1962. Alongside this letter was a notice to all
employees of the Ford plant cafeteria that their employment would be terminated
as of March 30, 1962, the date on which Respondent was terminating its relationship
with the Ford Motor Company as the operator of its cafeteria. The Ford plant cafe-
teria employees of Respondent were terminated on March 30, 1962. The cafeteria
was operated beginning April 2, 1962, the following Monday, and is being operated
by an organization or company known as Nationwide. It employed all the employees
of the Ford plant cafeteria beginning April 2, 1962, except Manager Tarrant, and
has continued to employ them except for terminations occurring in the course of
business. Shortly after April 2, 1962, Nationwide signed a collective-bargaining
contract with the Union for the Ford plant cafeteria employees.
2. Issues in the case
The issues are whether President Lawler of Respondent illegally interrogated and
threatened employees Opal Tyler and Viola Frances McCallum in conversations he
had with them on February 15, 1962, at his request, in the office of the Ford plant
cafeteria, about the organizational activity of the Union, and illegally threatened em-
ployees in an address he gave to assembled employees on the same date shortly after
the conversations with the employees Tyler and McCallum. The record also raises
LAWLER'S CAFETERIA & CATERING COMPANY 357
the issues whether conduct of Manager Tarrant on February 15, 16 , and 19, 1962,
,constituted acts of surveillance and interrogation in violation of Section 8(a)(1) of
the Act.
3. Evidence in controversy
On Thursday, February,15, 1962, shortly before noon , Manager Tarrant called em-
ployee Opal Tyler into his office. President Lawler was present and engaged em-
ployee Tyler in a conversation? He said to her that she was doing a good job,
that he heard a union was coming in, and asked her if she had been contacted by
the union, and what union it was. She said she heard the rumor that a union was
-coming in, but did not know its name. Lawler then said that if the Union came in,
it would expect him to pay the employees $4 more per day. He continued that he
could not pay this increase and would not pay it. According to him, Respondent had
never had a high income year. He said that the Respondent made $6,000 the first
year, a little less the following year, and maybe a little more the next year. He
expected the Respondent to have a good income for the year just ended. Lawler
then said that Respondent would not go union and would not sign a union contract,
he "would pull out and quit." He stated to employee Tyler that the employees should
go union if they wished to do so, it was their privilege, and if a new manager took
over the operation of the cafeteria, they could sign a contract with him. On cross-
examination, employee Tyler denied that Lawler said anything to her in regard to
what may have happened at the cafeteria during organizational activity there approxi-
mately 3 years before. She did say on cross-examination that Lawler said that all
he had to do was to give proper notice under the contract he had with the Ford
Motor Company to operate the cafeteria, and to leave or terminate the connection
Respondent had with the cafeteria as its operator.
On February 15, 1962, employee Viola Frances McCallum, like employee Tyler,
was also called by Tarrant into his office shortly before noon. President Lawler was
there and engaged employee McCallum in a conversation. Lawler asked her if she
had heard anything about a union and she answered that she had. He continued that
he figured that she would have because her husband worked in the plant, which
was union. She said that she had not heard about the Union through him. Lawler
then said that he wanted to give his side of the story about the union activity, that it
was only fair he should do so. Lawler continued that he could not go union, and
wanted the employees to know it before they went union. He said he wanted the
employees to do what they wanted to do, that he was just not able to go union, that
if they went union and brought in the union contracts to him, he just could not sign
them because he did not feel like he could afford to do so. He was there to make
money and not to lose it. Lawler asked employee McCallum if she was going to
the union meeting on Friday. She said there was a union meeting and she was
going. He asked her at this time what the name of the union was, but she did not
know the name. He asked her if she could get a union card or something of that
nature with the name of the Union on it. She said she would obtain a card at the
Friday union meeting 3
About 12 to 12:30 a.m., on February 15, shortly after the individual conversations
with Tyler and McCallum, Lawler spoke to the 16 employees of the Ford plant
cafeteria assembled in the storeroom. Manager Tarrant was also present. Lawler
said to the assembled employees that he understood a union was coming in, and that
they were attending a union meeting the next day. He told them that they had a
right to attend the union meeting, that it was their privilege to do so, and he assured
them that they would not be fired for attending the meeting, but that he wanted
to tell his side of the story with respect to the union activity. He then said he had
heard that union representatives had told some of the employees that they would
get a sizable increase in pay if a union represented them, and that it was his under-
standing the increase would cause an additional expense in wages of about $20,000
a year. He said that in the first year of operation, Respondent made $6,000, a
little less the second year of operation, and a little more than the second year during
the third year of operation. He then said that in the year 1961, Respondent had made
21 have credited employee Tyler's testimony with respect to what Lawler said to her,
and employee McCallum's testimony of what he said to her, on February 15 Their testi-
mony is unrebutted except with respect to a reference Lawler said lie made to United
Automobile Workers organizational activity during his conversations with Tyler and with
McCallum. I do not credit Lawler with respect to this incident for the reasons stated
in footnote 5, infra.
3 She obtained a union card at the meeting and dropped it off downtown at Lawler's
main office . He was not there, so she gave it to employee Nannie Sue.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a little over $4,000 at the Ford plant cafeteria, and that they knew the employees of
the Ford plant would not pay enough for food to justify Respondent assuming the
responsibility for the additional cost for wages.
Lawler further said to them that he could not afford to pay the union wages, that
he was there to make money, not to lose it. If there was a union, and he was re-
quested to pay the increase in wages, he would be unable to do so and would have
to cancel the contract for the operation of the cafeteria 4 He stated that rather
than encounter the same problems he had experienced when the United Automobile
Workers attempted to organize his employees at the cafeteria when he first began
the operation in 1957, and have union representatives contacting him at the Ford
plant cafeteria and at his downtown office, and before he would experience the loss
caused by the additional wages, he would refuse to sign the union contract, and
then terminate the contract with the Ford Motor Company on 30 days' notice.
He said that the employees might very well continue to work at the cafeteria, but he
would not be their employer He also said that he could give the employees work at
Respondent's other cafeterias, but he would not do so as he would be afraid that
they would start union activity at those locations .5
Shortly after Lawler addressed the assembled employees, Manager Tarrant called
employee Leo Wade into his office. Lawler was present Tarrant asked Wade if any-
one had contacted him about the Union. Wade replied he did not know, but his foster
mother would know because she was at home all the time. His foster mother was
telephoned, and Tarrant asked her it anyone had called about the Union, and
that if anyone did so to find out the name of the Union. On February 16, Manager
Tarrant asked Wade if he was going to attend the union meeting, and Wade replied
that he did not know. Tarrant then told Wade he could take off at noon, find out
what he could, and let him know. He was also to let him know if any of the em-
ployees attended the meeting. He instructed Wade to call him at his home and give
him the information. Wade called Tarrant at his home on Friday evening. He
told Tarrant that, no employees were present at the meeting. He did not tell him the
name of the Union as he did not have it at that time. On the following Monday,
February 19, Tarrant asked Wade if any employees attended the union meeting,
and Wade again said he did not know On February 19, Manager Tarrant had Leo
Wade call employee Don Lee Booty into his office. Wade told Booty, prior to his
going into Tarrant's office, that Tarrant wished to know whether he had attended
the union meeting on the prior Friday. When he entered Tarrant's office, he said
to Tarrant that he had attended the meeting. On February 19, Manager Tarrant also
called employee McCallum into his office. He asked her if she had obtained the
papers for President Lawler She said she had obtained a union card, and, in reply
to his inquiry as to what she had done with it, she said that she had dropped it off at
the downtown office of Lawler. He was not there, so she gave,it to employee Nannie
Sue 6
4. Respondent's defense
Respondent's defense as developed by the testimony of President Lawler was
that Respondent did not desire to undergo again the experience it had in the fall
of 1957 when the United Automobile Workers, AFL-CIO, attempted to organize
* The contract had a 30-day cancellation clause.
5 The findings as to what Lawler said to the assembled employees on February 15 Is a
composite of the testimony of employees Tyler, McCallum, Leo Wade, and Annie Mae
Giles and President Lawler I have not credited Lawler's testimony that in his address
to the assembled employees, he referred to the activity of the United Automobile Workers
in the course of their organizational efforts in 1957 when Respondent first assumed the
operation of the cafeteria at the Ford plant I take this position in view of Tyler's silence
about it on direct examination, and her denial on cross-examination that he referred to
it, the silence of employee McCallum with respect to it on direct examination, the failure
of Respondent's counsel to cross-examine her, the silence of Leo Wade in his direct ex-
amination as to any reference made by Lawler to the incident, and the failure of Respond-
ent's counsel to cross-examine Wade on it Moreover, Lawler in his testimony merely
stated as a conclusion that be referred to the incident, but failed to testify as to what
he actually said to the employees about it. Lawler also testified that in his conversations
with employees Tyler and McCallum he referred to it, but I do not credit his testimony
in view of Tyler's denial, the failure to cross-examine McCallum, and Tyler's and
McCallum's silence about it on direct examination
B Employees McCallum, Wade, and Booty testified as to the incidents on February 15, 16,
and 19 involving them and Manager Tarrant Manager Tarrant did not testify So the
testimony of the employees is unrebutted
LAWLER ' S CAFETERIA & CATERING COMPANY 359
the cafeteria employees at the outset of Respondent's operation of the cafeteria.
He testified that at the ,time of this organizational activity, employees of Ford Motor
Company, who were members of United Automobile Workers, posted signs in the
vicinity of the cafeteria, on which were requests to the employees not to patronize
the cafeteria. The result, according to Lawler, was a boycott of the cafeteria. In
his testimony of what he said at the February 15 meeting of employees, he said he
referred to the problem of having the union's representatives calling on him at the
Ford plant cafeteria or at his downtown office if a union was designated by the
employees to represent them.
The next defense, as developed by Lawler's testimony, is that Respondent would
lose money under a union contract, and was within its rights to anticipate such an
eventuality by planning to close down the cafeteria if the employees selected a
union to represent them, .and to apprise the employees of what would happen if they
selected a union to represent them. Lawler readily admitted that no union repre-
sentative had contacted him, Tarrant, or any other representative of Respondent,
with respect to wages, hours, or other working conditions of Respondent's employees
at tht Ford plant cafeteria. He testified that on February 24 a piece of cardboard
on which were the words "BRING YOUR LUNCH MONDAY," and another piece
of cardboard bearing the words "DO NOT EAT IN HERE," were given to Tarrant
by the security officer of the Ford plant. The security officer stated to Tarrant that
the pieces of cardboard were found at the entrance of the cafeteria and in the
restroom for the Ford plant employees. There is no evidence to connect the placards
or signs with the Union or with Respondent's cafeteria employees. According to
Lawler, they were similar .to the signs or placards Ford plant employees placed at
or near the cafeteria when United Automobile Workers attempted to organize the
cafeteria employees in the fall of 1957. Lawler stated that the volume of business
dropped 20 percent on Monday, February 26. He admitted, however, that this
economic setback had nothing to do with his decision to cease operating the cafeteria.
B. Analysis and concluding findings
It is clear from Lawler's testimony that one of the reasons for Respondent's deci-
sion on February 26, 1962, to cease operating the Ford plant cafeteria as of March
30, 1962, was the belief of Lawler that Respondent could not operate it at a profit
if it had to pay union wages to the employees, which he felt it would have to do if
the employees selected a union to represent them. Respondent was aware on Febru-
ary 21 of the petition for certification as collective-bargaining representative of
Respondent's Ford plant cafeteria employees filed with the Board on February 19
by the Union, and was aware since February 14 of the organizational activity by
a union among ,the Ford plant cafeteria employees.
It is also clear, however, from Lawler's testimony and undisputed employee testi-
mony that at the February 15 meeting, Lawler stated that one of the reasons he
would terminate the Ford plant cafeteria operations if the employees designated a
union to represent them was that he objected to dealing with union representatives,
and that he also said he would not employ the Ford plant cafeteria employees at
Respondent's other cafeterias because they would engage in union activity at these
other cafeterias. These statements of Lawler disclose a union animus, and a plan
to terminate Respondent's operation of the Ford plant cafeteria if the employees
intended to or did select a union to represent them. The evidence shows clearly
that Lawler addressed Respondent's assembled Ford plant cafeteria employees only
a few minutes after he had the individual conversations with employees Tyler and
McCallum. It is obvious, therefore, that what Lawler said to Tyler and McCallum
in the conversations he had with them were appraised or understood by these em-
ployees in light of statements made by him at the meeting of assembled employees.
The statements of Lawler during his conversations with Tyler and McCallum, in
view of his statements at the meeting of assembled employees clearly disclosing
union animus, contained a threat to close the business of operating the Ford plant
cafeteria if a union represented the employees. The questions Lawler asked Tyler
and McCallum about the union activity in the cafeteria and the identity of the
Union, in view of Lawler's disclosure of a union animus at the meeting of assembled
employees, constituted illegal interrogation within the meaning of Section 8(a)(1).
It would be sheer naivete to hold that they were considered by Tyler and McCallum
.as innocent inquiries as to the identity of the Union organizing the employees.
As found above, Lawler's address to the assembled employees on February 15
contained a threat to terminate .the Ford plant cafeteria operation if the employees
designated a union to represent them. Lawler's statements at the February 15 meet-
ing of employees that he objected to dealing with union representatives , and that he
would not give the employees jobs at the other cafeterias Respondent operated be-
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause they would engage in union activity at these cafeterias, are reasonably calcu-
lated, and were reasonably calculated, to mean that he would terminate Respondent's
connection with the Ford plant cafeteria if the employees designated a union col-
lective-bargaining agent even though their demands in regard to wages, hours, and
other working conditions, through union representatives, still permitted Respondent
to operate at a reasonable profit. In these circumstances, I find an illegal threat
was made irrespective of the merit of the Respondent's position that Lawler merely
informed the employees that union representation would give rise to adverse eco-
nomic consequences over which Respondent would have no control, and force
Respondent to discontinue the cafeteria operation? N.L.R.B. v. Jamestown Sterling
Corp., 211 F. 2d 725, 726 (C.A. 2).
Wade's testimony regarding his February 15, 16, and 19 conversations with Man-
ager Tarrant is unrebutted. The questions and statements made by Tarrant therein
clearly constitute interrogation, attempts at surveillance, and surveillance. Tar-
rant's questions to Wade about the identity of the Union during the February 15
afternoon conversation shortly after the meeting of employees is part of the inter-
rogation. After Lawler's statements at the meeting of all employees, the questions
asked of Wade, in Lawler's presence, were more than innocent inquiries. Tarrant's
questions to employee Booty on February 19 also constitute interrogation and sur-
veillance and his question to employee McCallum on the same date were unlawful
interrogation. Both Booty and McCallum were present when President Lawler
addressed the assembled employees on February 15, and disclosed his union animus.
For the above reasons, I conclude and find that Respondent by the conduct of its
President Lawler on February 15, 1962, and that of its Manager Tarrant on February
15, 16, and 19, 1962, violated Section 8 (a) (1) of the Act .8 While it can be claimed
that the amended complaint does not allege clearly the violations by Tarrant, these
violations were adequately litigated.9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes threatening and obstructing commerce and
the free flow thereof.
V. REMEDY
Having found that Respondent engaged in conduct that constitutes unfair labor
practices, I shall recommend a broad order requiring Respondent to refrain from
engaging in such conduct and similar or related conduct. The broad order is war-
ranted by the interrogation, surveillance, and threats engaged in by Respondent. I
shall also recommend the posting of a notice. The Respondent has disclosed hostility
to union organizational activity, and a purpose to discourage it not only at the Ford
plant cafeteria but at the other cafeteria locations as well. It therefore appears
to the Trial Examiner that an appropriate and adequate remedy is one that applies
to all the cafeterias operated by Respondent. I shall recommend to the Board
that it require the Respondent to post the notice at all the cafeterias it is operating,
at places where notices to employees are customarily posted. Since the Ford plant
cafeteria, Dallas, Texas, is now being operated by another company, and the persons
Respondent employed there are now employed by the other company, it would
not be appropriate to require the posting of the notice at that location.
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I make the following:
7It is not necessary here to find whether or not Lawler's statement regarding the finan-
cial impact of union representation on Respondent , standing alone, constituted an expres-
sion of opinion protected by Section 8(c) of the Act , since the threat to close the plant
down if the employees designated a union to represent them as their collective-bargaining
representative is present in any event It is to be noted , however, that representatives
of the Union had not approached Lawler or other of Respondent ' s representatives, and
the record Is empty of any evidence other than Lawler's opinion showing increased operat-
ing costs that would result from union represented employees . See N .L R.B. T. W. C
Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 276 ( C.A. 5) ; and International
Union of Electrical , Radio and Machine Workers, AFL-CIO ( NECO Electrical Products
Corp ) v. N L R.B , 289 F. 2d 757 , 763 (C A D.C.).
8 Citizen's Hotel Company, d/b/a Tesas Hotel, 131 NLRB 834 ; Capitol Fish Company,
126 NLRB 980.
8 See Capitol Fish Compdny, 126 NLRB 980 , footnote 2.
ADMIRAL LINEN SERVICE 361
CONCLUSIONS OF LAW
1. Respondent Lawler's Cafeteria & Catering Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and Hotel, Motel, and
Restaurant Club Employees Union Local 353, affiliated with Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
2. By interrogating employees with respect to union membership and activity,
threatening them with terminating the business if they selected the above-described
Union or any labor organization to represent them , and engaging in, and attempting
to engage in, surveillance of employees' union activities , Respondent engaged in
conduct that interfered with, coerced, and restrained employees in regard to the
exercise of rights guaranteed them in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Admiral Linen Service and Local 131 , Laundry and Dry Clean-
ing International Union , AFL-CIO
Admiral Linen Service and Local 131, Laundry and Dry Clean-
ing International Union , AFL-CIO. Cases Nos. 23-CA-1291-2
and 23-CA-1328. August 29, 1962
DECISION AND ORDER
On May 23, 1962, Trial Examiner Thomas S. Wilson issued his In-
termediate Report 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 Interme-
diate Report. Thereafter, the Respondent filed, exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report and the entire record in the case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner as modified herein.'
'Concerning the remarks of John and Duff Trimble found violative of 8(a ) ( 1) by the
Trial Examiner , we specifically rely upon the testimony of employee Brown that they said
the employees would no longer get turkeys or chickens for holidays , bonuses, and the
privilege of "breaks"; and of employee Dickerson that they said if the Union came in
the employees would have to start working again on Saturdays and their "time would
be cut." However the Board finds merit in the Respondent 's exception to the Trial
Examiner 's finding that the speech of Clifford G Sihawd was violative of Section 8(a) (1)
of the Act . No written text of the speech is in evidence and the only credited testimony
concerning it Is that of Shawd himself . Although the noncoerciveness of the effect of
138 NLRB No. 48.