187 N.L.R.B. 420 (N.L.R.B. 1970)

Loby's Cafeteria

National Labor Relations Board - Board DecisionsDec 23, 1970

187 N.L.R.B. 420 (N.L.R.B. 1970)

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Charlena Loblanco, an Individual , d/b/a Loby's Cafeteria and Hotel & Restaurant Employees and Bartenders Union, Local 847, AFL-CIO. Case 26-CA-3638 December 23, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On August 20, 1970, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that Respondent had engaged 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. He further found that Respon- dent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the allegations pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with supporting brief, and the General Counsel filed cross-exceptions with support- ing brief and an answering brief. 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 connection with this case to a three-member panel. 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 Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions,2 and recom- mendations of the Trial Examiner, as modified below. We agree with the Trial Examiner that Respondent violated Section 8(a)(1) by telling the employees at a February 21 meeting that Respondent was "not going to have a union," as this clearly indicated that support for a union would be futile. The Trial Examiner also found that, at this same meeting, Respondent stated that dissatisfied employees could get their "separation slips" and promised the employees paid vacations and holidays; but he concluded that these statements could not reasonably be interpreted in context as threats or inducements to abjure union activity. We do not agree. All three remarks in question were made by the same person, at the same place, within a short period of time, to the same employees, and one comment was an open attempt to discourage union activity. Under such circumstances, we find that all three of Respondent's statements should be construed together, and so construed they contain unlawful 187 NLRB No. 54 threats and promises violative of Section 8(a)(1) of the Act.3 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 Trial Examiner as modified below and hereby orders that Respondent, Charlena Lobianco, an Individual, d/b/a Loby's Cafeteria, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Add the following as paragraphs 1(c) and 1(d) and reletter the subsequent paragraph accordingly: "(c) Threatening employees with discharge for engaging in protected activities. "(d) Promising employees benefits to dissuade them from engaging in protected activities; provided, however, that nothing in this Order shall be construed as requiring Respondent to vary or abandon any economic benefit or any term or condition of employment which it has heretofore established." 2. In footnote 2 of the Trial Examiner's Decision substitute "20" for "10" days. 3. Delete the notice attached to the Trial Examin- er's Decision and substitute the notice attached hereto. i After a careful examination of the record in this case , we find no merit in Respondent 's contention that the hearing conducted herein resulted in a denial of due process Respondent testified at length in support of her position , and she called a number of witnesses to lend additional support Respondent does not allude to any particular evidence that was prejudicially excluded at the hearing Respondent's allegation that unspecified "evidence now available" would cause us to reach a different result is not sufficient basis for reopening the record. Respondent 's motion to reopen the record and/or remand is denied as lacking in merit. 2 The Respondent excepts to certain credibility resolutions made by the Trial Examiner . It is the Board 's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F.2d 362 (C.A. 3, 1951). 3 Chairman Miller would not find these additional violations of the Act for the reasons set forth by the Trial Examiner. 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 NOT discourage membership in Hotel & Restaurant Employees and Bartenders Union, Local 847, AFL-CIO, or any other labor organiza- tion, by discharging employees or otherwise discriminating in any manner in respect to their LOBY'S CAFETERIA tenure of employment or any term or condition of employment. WE WILL NOT tell employees that Loby's Cafeteria will not have a union. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the Act. WE WILL NOT threaten employees with dis- charge for supporting a union. WE WILL NOT promise employees benefits to discourage them from supporting a union. WE WILL offer Anna Lancaster, Lillie Mae Smith, and Carzester Smith each immediate and full reinstatement to her former position, or if such position no longer exists, to a substantially equivalent one, without prejudice to their seniority and other rights and privileges enjoyed by each, and make each whole for any loss of pay she may have suffered by reason of her discharge, with interest thereon at the rate of 6 percent. All our employees are free to become or remain, or refuse to become or remain, members of said Local 847, or any other labor organization. CHARLENA LOBIANCO, AN INDIVIDUAL, d/b/a Loby's Cafeteria (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, and, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces in accordance with the Selective Service Act and the Universal Military Training Act. 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Trial Examiner: This is an unfair labor practice case litigated pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act. It was commenced by a charge filed on April 2, 1970, by Hotel & 421 Restaurant Employees and Bartenders Union , Local 847, AFL-CIO. Said charge names as the Respondent , Charlena Lobianco , an Individual , d/b/a Loby's Cafeteria. Thereafter , on April 24, 1970, the General Counsel of the National Labor Relations Board , herein called the Board, through the Regional Director for Region 26 (Memphis, Tennessee), issued a complaint against said Respondent. In essence said complaint , which is based on the foregoing charge , alleges that Respondent has violated Section 8(a)(1) and (3 ), and that such conduct affects commerce within the meaning of Section 2(6) and (7) of the Act. Respondent has answered admitting some facts but denying that she committed any unfair labor practices. Pursuant to due notice this case came on to be heard, and was tried before me, on June 3, 1970, at Memphis, Tennessee . All parties were represented at and participated in the hearing , and had full opportunity to offer evidence, examine and cross-examine witnesses , file a brief, and present oral argument . A brief has been received from the General Counsel. This case presents the issues of whether Respondent: (1) Warned employees it would be futile for them to select a union as she would not have a union at her establishment; (2) promised employees benefits if they would cease their union support and activities ; and (3) discharged three employees for union membership or activities. 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 operates a food concession service at the Defense Depot Memphis , herein called Depot. Said Depot, a field station of the Defense Supply Agency of the United States Department of Defense , receives , stores , and ships military supplies and equipment utilized by the Armed Forces of the United States. Since on or about February 20, 1970, when Respondent commenced operating said concession, Respondent has had gross sales of approximately $600 per day which, projected on an annual basis, will aggregate to approxi- mately $156,000 in gross annual revenues. In operating said concession Respondent exerts a substantial impact on the national defense. 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 policies of the Act to assert jurisdiction over Respondent in this proceeding. Ready Mixed Concrete & Materials, Inc., 122 NLRB 318. II. THE LABOR ORGANIZATION INVOLVED Hotel & Restaurant Employees and Bartenders Union, Local 847, AFL-CIO , herein called the Union , is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Evidence About October 1969, the Union commenced an organiz- ing drive at Burke 's Cafeteria at the Memphis Defense 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Depot. Respondent on February 22, 1970, succeeded Burke in operating the cafeteria at said Depot . See General Counsel 's Exhibit 4. All Burke 's employees were retained by Respondent except one who left Some employees joined the Union. As a result, the Union on March 3, 1970, filed a petition for an election . See General Counsel 's Exhibit 2(A). A hearing was held on this petition on March 18, 1970. See General Counsel's Exhibit 2(C). In addition, the Union held a meeting for said employees on January 10, 1970. One of said employees attending was Respondent Lobianco , who later succeeded Burke as the operator of said cafeteria. In fact Mrs. Lobianco signed a union card. Among others present at said meeting were employees Lillie Mae Smith and Carzester Smith, two of those alleged in the complaint to have been illegally discharged. The campaign was renewed by the Union about February 24, 1970, when Respondent actually commenced operations as the concessionaire at said Depot. Among those assisting in this campaign were employees Anna Lancaster , Carzester Smith , and Lillie Mae Smith. About February 21, 1970, Mrs. Lobianco held a meeting of employees. First she told employees that those who were satisfied could stay and that those who wanted to leave could obtain a "separation slip." They all expressed a desire to continue on the job. Then she added, "Well, the main thing , I'm not going to have a union." Then she promised to give paid vacations and holidays , outlining the terms on which they would be earned. Mrs. Lobianco testified as a witness for the General Counsel. As such she gave the reasons why employees Anna Lancaster, Carzester Smith, and Lillie Mae Smith were discharged. A summary of her testimony describing those reasons follows. Anna Lancaster wanted temporary work because she did not want to lose her social security benefits . Also, she was always "saying something that was not very nice to be saying out in public ," using "curse words , profane words." In fact Anna mentioned that she had "a dirty tongue." Further, Anna "just did not please" her employer. Moreover Anna was "always complaining ... . wanted to do things her way instead of my [Lobianco's ] way." Mrs. Lobianco insisted that she discharged Lillie Mae Smith in part because Mrs. Smith refused "to use the old food first"; i.e., she should follow the maxim "first in, first out." But Mrs. Smith used the most recent deliveries of meat first , contrary to express instructions from Mrs. Lobianco . Thus, to give an example , two sides of meat in the freezer had become molded because they were not used. In addition Mrs. Smith was "partial to customers," according to Mrs . Lobianco. Thus Mrs. Smith "was putting double hamburgers" into sandwiches without identifying the same for the cashier . Hence the cafeteria's cashier would charge for a single , rather than a double , hamburger. Such identification was to be made by "putting two toothpicks in them." Mrs. Lobianco on several occasions had instructed Mrs. Smith to use two toothpicks for double hamburgers, but the latter "frequently" failed to do so. In addition, Mrs. Smith gave unusually generous portions when serving her relatives, according to Respondent. Another reason prompting Mrs. Lobianco to discharge Lillie Mae Smith is the latter's habit of "not keeping her station clean." Notwithstanding that Mrs. Lobtanco warned Mrs . Smith "a lot of times" about this , the latter nevertheless persisted in this objectionable habit. Still another complaint which Mrs. Lobianco had about Mrs. Smith 's work came from customers . "Several of the customers were bringing back sandwiches .... They were not appetizing." All in all Mrs. Smith was unsatisfactory as an employee . Beatrice Harris was hired to replace Mrs. Smith. Mrs. Lobtanco outlined the factors inducing her to discharge Carzester Smith . Although Mrs . Smith was employed as a pastry cook, and was a "fine" and "wonderful" employee as such , the cafeteria "did not have a position open for an 8-hour pastry cook ." This is because Mrs. Lobianco changed to buying instead of making pies. But Respondent did continue to make her own rolls, corn muffins, cakes , cobblers, and other desserts. Consequently , Mrs. Smith was assigned to work on the grill, but apparently she was unable to perform the tasks attendant thereon . In fact Mrs . Smith "came crying in the office" and insisted to Mrs. Lobianco that, "I can't work down in there . Give me my release ." So Mrs. Smith was given work "on the floor ." But she was "too slow on the floor." Notwithstanding that there was not enough pastry work for Mrs. Smith, according to Mrs. Lobianco, the latter nevertheless hired Mary Louise Williams as a pastry cook to replace Mrs. Smith and to do "whatever [else] I [Mrs. Lobtanco ] wanted her to do." This ends Mrs. Lobianco's testimony for the General Counsel regarding the three discharges. Anna Lancaster testified regarding the circumstances surrounding her discharge. A summary of such testimony follows. For about 3 years before Mrs. Lobianco took over the cafeteria at the Depot , Mrs. Lancaster worked there as a dishwasher. She continued to be so employed when Mrs. Lobianco started to operate said cafeteria about February 21, 1970. Shortly before February 21, the Union instituted an organizing campaign at the cafeteria . Mrs. Lancaster signed a union card and also , at the request of one Roosevelt Lee, distributed union cards among the employ- ees. While so engaged in union activity as an employee of Burke 's, Mrs. Lancaster talked to Mrs. Lobianco about the Union . Mrs. Lobianco also signed a union card. After February 21, 1970, the Union resumed its organizational drive . Mrs. Lancaster again distributed cards to the employees and succeeded in convincing all of them , seven in number , to sign cards. On March 27, 1970, Mrs. Lancaster was discharged by Mrs. Lobianco with the words, "Here's your money and your slip. I have someone coming in Monday." No oral reason was given for this action at the time. But the dismissal slip read , "Temporarily." Apparently Mrs. Lancaster concluded from this that Mrs. Lobianco "wanted somebody regular, that I wanted temporary work." But Mrs. Lancaster never said she would quit her job. Actually, Mrs. Lancaster had told Mrs. Lobranco no more than that the former would work until July, and the latter approved this . Mrs. Lobianco told the latter that while Mrs. LOBY'S CAFETERIA Lancaster was gone after July a replacement would be hired for her and "you can come back [after] 2 months," assuring her that "you have a job as long as I have a place." But at no time during this conversation did Mrs. Lobianco allude to Mrs. Lancaster's work habits. Mrs. Lancaster further testified that she never used profane language to Mrs. Lobianco or the customers. (Carzester Smith corroborated her on this.) However she occasionally cursed the machine she worked at whenever it "got out of fix." Carzester Smith is another employee alleged to have been discnmmatonly discharged. A summary of her testimony follows. Miss Smith, a pastry cook for Loby's Cafeteria, signed a union card, given to her by employee Anna Lancaster, on February 26, 1970. She also attended a union meeting before February 21, with, among others, Mrs. Lobianco. On March 27, 1970, Respondent discharged Carzester Smith because the former "had no need for a pastry cook ... that was all [Smith] was qualified for." Respondent also told Smith that a customer complained that Miss Smith was "too slow" on the grill and the steam table when she worked at those positions, so that she could not be assigned thereto. But, according to Miss Smith, Respondent had never informed the former that any customer had complained of Miss Smith's slowness at such work; nor had any customers asked her to speed up service on the grill or steam table, and she denied being a slow worker. Anna Lancaster corroborated Miss Smith that customers did not complain about Smith and that Smith was not a slow worker. According to Miss Smith, she devoted about 3 hours a day in baking pies. Further, she denies that she ever offered to quit because some of the work was not acceptable to her. Mrs. Lillie Mae Smith corroborated Miss Smith's testimony that the latter was a fast worker. Lillie Mae Smith testified regarding her discharge. A summary of her testimony on this branch of the case ensues. Mrs. Smith served as a short-order cook at Loby's Cafeteria, and for about 16 years before that at Burke's Cafeteria, Loby's predecessor at the Depot. Prior to Christmas 1969, she attended union meetings, at one of which Mrs. Lobianco was also present, and signed a union card. Shortly after Mrs. Lobianco started to operate the cafeteria, Mrs. Smith again signed a union card. On March 31, 1970, Mrs. Smith was discharged. Describing her work habits, Mrs. Smith claimed that she always maintained a clean grill; protested that she complied with Mrs. Lobianco's directive to use old meat first and not to use freshly delivered meat until the old ran out; and that customers never complained about the food she prepared. Further, Mrs. Smith insisted that Mrs. Lobianco never remarked that the former was using new meat before the old or otherwise warned or reprimanded her concerning her work. In fact, only once was food returned to her, and that was a cheeseburger which turned out to be too small because it "drawed up" while being prepared. And at no time, according to Mrs. Smith, did she treat her relatives any better than the other customers. In addition, she followed instructions by always placing two toothpicks 423 on double hamburgers to disclose that a higher price should be charged therefor. Nor did Mrs. Lobianco ever tell her that she was not placing the proper number of toothpicks on double hamburgers. Carzester Smith and Anna Lancaster both corroborated Lillie Mae Smith's contention that the latter kept her grill clean. Mrs. Carzester Smith also testified that Lillie Mae Smith used old meat before using fresh meat; and Anna Lancaster claimed that she heard no customer complaints about Lillie Mae. B. Respondent's Evidence As noted above, Mrs. Lobianco testified as a witness for the General Counsel. After the latter rested she did not testify as part of her defense. However I shall treat the testimony she gave on behalf of the General Counsel as having been reoffered as part of Respondent's case. It is not necessary to repeat here such testimony, as it has been recited in connection with the General Counsel's case. Other witnesses testified for Respondent to support her defense. An abridgment of their testimony follows. Mrs. Dorothy Greene, a witness for Respondent, testified that Mrs. Lobianco never threatened any employ- ees about joining a union and that Anna Lancaster used "some" profane language "when employed by" Respon- dent. In addition, Mrs. Lobianco showed Mrs. Greene two bundles of meat which had molded. Although she was not certain when this occurred, Mrs. Greene stated that it took place after Lillie Mae Smith was discharged. Mary Louise Lyne testified that she heard Anna Lancaster use profane language "on the floor .. . with customers." Anna Tyre testified to the same effect. However, Mrs. Lyne added that this was part of Mrs. Lancaster's "clowning around" and humor, and that the customers enjoyed it. In fact, according to Mrs. Lyne, "Anna is very humorous and .. . we all enjoyed her humor." Also, Mrs. Lyne testified that "they [the customers] did sometimes say" that Mrs. Carzester Smith "was slower." This occurred before Respondent took over the cafeteria. But she added that "it still does not really happen"; "that .. . we've had others who were slow"; and that customers have complained about these others. Anna Tyre, however, testified that "Carzester Smith" "couldn't make the area." Mrs. Tyre, the cashier, also insisted that Lillie Mae Smith did not "identify" sandwiches which the latter prepared; i.e, double hamburgers or double eggs did not have two toothpicks on them. However, Mrs. Tyre adnutted on cross-examination that, since the sandwiches were wrapped, she had no way of determining whether sandwiches for which customers paid were single or double. In fact, she testified on cross-examination that "I couldn't definitely say it [failure to identify double sandwiches] happened one time a day.. . . C. Concluding Findings and Discussion 1. As to warning employees of the futility of selecting a union It is not controverted, and I find, that at a meeting of 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees held about February 21, 1970, Mrs. Lobianco told them, "Well, the main thing, I'm not going to have a union ." I find that this contravenes Section 8(a)(1) of the Act as it emphasizes to employees the futility of having a union. Although on this date Mrs. Lobianco had obtained the concession to operate the Depot's cafeteria , she did not actually commence running it until February 24. Hence she was not technically the employer of those to whom she spoke. Nevertheless Section 8(a)(1) applies to her under the circumstances , so that she may be held accountable for utterances which interfere with, restrain, or coerce employ- ees in the exercise of rights guaranteed in Section 7. See Section 2(3) of the Act, where the statute provides that "the term `employee ' shall include any employee , and shall not be limited to the employees of a particular employer ... . Accord. Ravena Sportswear, 142 NLRB 1299, 1314-15, 1324, fn. 33. At this meeting Mrs. Lobianco also told employees they could continue as her employees or, if they were dissatisfied , they could leave . I find that this does not threaten employees or warn them to refrain from having a union . Although this statement was made at a meeting where Respondent states she would have no union, I find that the latter statement and that concerning quitting are disjointed and are not reasonably related to each other. Hence I find that asking those who were dissatisfied to quit does not violate the Act. 2. As to promise of benefits to repudiate the Union At the said meeting Mrs. Lobianco promised paid vacations and holidays, pointing out that they did not enjoy such under Burke's Cafeteria, her predecessor. It is not unusual for the successor or new owner of an established business to outline to the employees his employment policies and other matters pertaining to their work. I find that is precisely what Respondent did; i.e., apprising employees of how she was going to treat them. But Respondent did not expressly or by reasonable implication refer to such benefits as inducements to cause employees to abjure union activities. Rather, I find that she mentioned these as part of a program which she intended to institute as the new owner, and that they were not calculated to discourage union activities. And I find that a new owner may describe his program as it affects employees so long as it is not intended to undermine a union. Hence I find that this aspect of the case has not been established by the record. 3. The discharge of Anna Lancaster Upon the record developed in this case , I infer, and therefore find, that Anna Lancaster was discharged for union activity, and that the reasons given at the trial are a pretext to disguise the true reason. This ultimate finding is based on the entire record and the following factors which I find as subsidiary facts: a. Anna was active in the union movement. This of course is not a guarantee against discharge for cause. N.L.R.B. v. McGahey, 233 F.2d 406, 413 (C.A. 5). But the elimination of active union adherents often tends to discourage other employees in being interested in the union. "Obviously the discharge of a leading union advocate is a most effective method of undermining a union organizational effort." N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5). b. Respondent had knowledge of Lancaster's union membership and activity. This is because I find that Respondent's cafeteria employed so few employees that I regard it as a small plant. Under the Board's small plant rule knowledge of union activity at such plant may be imputed to the employer. Angwell Curtain Company, Inc. v. N. L. R. B., 192 F.2d 899, 903 (C.A. 7). c. Respondent entertained antiunion hostility, as found above. While this alone does not compel the conclusion that Lancaster was discriminatorily discharged, it may be evaluated in determining the true reason inspiring a discharge. N.L R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5); Maphis Chapman Corp. v. N.L.R.B., 368 F.2d 298,304 (C.A. 4). d. Lancaster was not effectively warned that her conduct, which for the first time was depicted and complained of at the trial, exposed her to the risk of discharge. In this respect I credit Lancaster and do not credit Respondent to the extent the latter 's testimony is inconsistent therewith . Failure to warn under the circum- stances is significant and is entitled to probative value. E. Anthony Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (C.A.D.C.); N.L.R.B. v. Melrose Co., 351 F.2d 693, 699 (C.A. 8). Assuming, however, that cause existed for Lancaster's discharge, I find that Respondent condoned or overlooked such conduct by doing nothing about it over an appreciable length of time. Hence the sudden reliance on such conduct long after Respondent became aware of it tends to show, and I find, that it was used as a pretext. In this connection I find, crediting Lancaster, that she did not offer to quit and that she was not insubordinate. I do find that she used profane language, but not to customers. However, I further find that Respondent was cognizant of this and did nothing about it until the date of discharge. It is true, and I find, that Lancaster did not desire to prejudice her social security benefits by working too long in any one year, and that she notified Respondent thereof. But I find that Respondent agreed to this arrangement and consented to retain Lancaster until July 1970, and to recall her thereafter in 1970 when such recall would not interfere with receipt of social security payments. e. Lancaster was given no reason when she was discharged. This, together with the abruptness of the discharge , carries some weight in arriving at the result that she was discriminatorily discharged. Virginia Metalcrafters, Incorporated, 158 NLRB 958, 962. f. It is not necessary that union activity be the only reason responsible for Lancaster 's discharge . It is sufficient in finding her termination to be unlawful that her union activity is a motivating or substantial ground for her dismissal . N.L.R.B . v. Lexington Chair Co., 361 F.2d 283, 295 (C.A. 6). And I expressly find that union activity was a LOBY'S CAFETERIA 425 substantial-although not necessarily the only-ground leading to her discharge. g. "Direct evidence of a purpose to discriminate is rarely obtained , especially as employers acquire some sophistication about the rights of their employees under the Act; but such purpose may be established by circumstantial evidence ." Corrie Mills v. N.L.R.B., 375 F.2d 149, 152 (C.A. 4). "Nowadays it is usually a case of more sublety.... . N.L.R.B. v. Neuhoff Bros., 375 F.2d 372, 374 (C.A. 5). Nevertheless , the burden of proving a violation of the Act rests upon the General Counsel . I find that he has sustained such burden regarding the discharge of Lancaster. 4. The discharge of Lillie Mae Smith A close perusal of the records convinces me, and I find, that Lillie Mae Smith was discharged for being a member of the Union and that the reasons given for her discharge are a pretext. This conclusion is based on the entire record and the following facts which I hereby find: a. Mrs. Smith belonged to the Union and Respondent knew this. b. Respondent entertained union ammus and stated there would be no union at the cafeteria. By discharging union members Lobianco could prevent the union from successfully organizing the employees. c. Respondent and her cousin, Mrs. Tyre, gave false reasons concerning Mrs. Smith's preparation of double sandwiches, a key reason allegedly for terminating Mrs. Smith. Giving a false reason warrants the inference, which I draw, that the true reason was union membership. Joseph Antell, Inc v. N.L.R.B., 358 F.2d 880 (C.A. 1); Sterling Aluminum v. N. L. R. B., 391 F.2d 713, 723 (C.A. 8). In finding that a false reason was given, I credit Mrs. Smith. I do not credit Mrs. Lobianco or Mrs. Tyre for the reasons outlined below. (1) As to Mrs. Lobianco. Apart from demeanor, upon which I rely, Lobianco testified that Smith was not identifying double sandwiches by placing toothpicks thereon. But admittedly such sandwiches were wrapped in such a manner that visual inspection thereof could not reveal whether they were single or double. Hence Respondent's categorical assertion that toothpicks were being omitted from double sandwiches, absent evidence to support such claim, patently cannot withstand scrutiny. Yet no such evidence was adduced by Respondent. Conse- quently, no evidence corroborates the claim that toothpicks were missing from such sandwiches. In the same vein, Lobianco's contention that Mrs. Smith was warned about such practice also must fall because the nature of the sandwiches could not be detected by merely observing the wrapping. Hence it is difficult to perceive why a warning was given about a condition not apparent from an inspection of the wrapped sandwich. (2) As to Mrs. Tyre. For the reasons mentioned above as to Mrs. Lobianco I do not credit Mrs. Tyre who insisted that Mrs. Smith's double sandwiches lacked proper identification. However, Mrs. Tyre claimed that on one occasion a customer complained he was overcharged for a double sandwich, said customer (X) claiming that another customer (Y) paid less for "the same thing." This contradicts Mrs. Tyre's statement that Mrs. Smith never identified double sandwiches, for patently they were used on X's double sandwich. Further, there is no evidence to show that "the same thing" refers to a double sandwich; or, if it does, that Mrs. Tyre mistakenly charged Y for a single sandwich; or that X knew that Y's sandwich was a double one. Hence for this additional reason I do not credit Mrs. Tyre that Mrs. Smith was derelict in the duty to identify double sandwiches. d. Crediting Mrs. Smith, I find that she performed her work properly and efficiently, and I do not credit Respondent's contrary evidence. In arriving at these credibility resolutions I have taken into consideration the fact that neither Mrs. Lobianco nor Mrs. Tyre's testimony upon a key issue, i.e., the proper identification of double sandwiches, survives critical analysis. e. It is sufficient to show that a substantial or motivating ground for Mrs. Smith's discharge is her union activity. It need not be the only ground. I find that her union membership is a substantial reason producing her discharge although it may not necessarily be the only ground therefor. f. Finally, I rule that the burden of proof is on the General Counsel to prove his case . And I have not overlooked the modern doctrine that direct evidence of a desire to discriminate is rarely available because employers have acquired sophistication as to how to get rid of union members for alleged cause. Hartsell Mills v. N. L. R. B., 111 F.2d 291, 293 (C.A. 4); N. L. R. B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8). Therefore it is not unusual for an employer to point to an employee's real or doubtful shortcomings when discharging an employee because of antiunion considerations, although such shortcomings would not otherwise have resulted in the discharge. 5. The discharge of Carzester Smith On the record unfolded relating to Carzester Smith's discharge, I am persuaded, and find, that she was dismissed for being a union member, and that the reasons given for her discharge, i.e., that she was "too slow on the floor" and also quit, are a pretext to disguise the true reason. While this ultimate finding is based on the entire record , it is also derived from the following subsidiary findings, which I hereby find as facts: (a) Miss Smith signed a union card. Respondent was aware of this because knowledge thereof is imputed under the Board's small plant doctrine. Miss Smith also attended a union meeting. Respondent had actual knowledge thereof as Respondent also attended said meeting. (b) Respondent opposed a union at its plant and so stated to employees. This constitutes union animus . Although this alone is inadequate in establishing that a discharge has been discriminatorily motivated, it nevertheless is an ingredient in ascertaining the actual reason behind a discharge. (c) Respondent gave a false reason for discharging Carzester, viz, that a pastry cook was no longer needed at the cafeteria. Although pies were no longer baked at the cafeteria, other bakery products continued to be baked there. These included rolls, corn muffins, cakes, cobblers, and desserts. In fact, another person, Mary Louise Williams, was hired to replace Carzester "as a pastry cook." 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus I find that a pastry cook was still needed, and that a false reason was assigned when Carzester was let go for the asserted reason that the pastry cook's duties had been abolished. Giving a false reason authorizes the inference, which I draw, that it conceals the true reason. And I find that the true reason, under the circumstances, was union membership. No different result is dictated because Respondent no longer baked pies on the premises. This is because this operation took up but 3 hours of Carzester's time, so that she still devoted a major portion of her time in baking products other than pies. In fact Carzester's replacement continued to bake such other products. Nor is another result required because Carzester's replacement, Mrs. Williams, in addition to baking duties, also did "whatever [else] I [Respondent] wanted her to do.': This is because such replacement is not shown to have done anything else, and also because the replacement was hired primarily as a pastry cook and not as a person to perform unidentified functions. Since Carzester admittedly was a fine pastry cook, patently there was no occasion to hire someone else to do this work. (d) I find that Carzester performed her nonpastry cooking work in a satisfactory manner and that she was never warned that she was so derelict in the performance of such other work that she exposed herself to the risk of discharge therefor. In this connection I credit Carzester and do not credit Respondent's contrary evidence. Failure to warn carries probative weight in establishing that work now alleged to be unsatisfactory had not been considered so in the past. Hence such failure to warn justifies the inference-and I draw it-that unionism, rather than defective workman- ship, inspired the discharge. And I specifically find that Carzester did not quit or offer to resign. In this respect I credit Carzester and do not credit Mrs. Lobianco on the question whether the former quit or asked for "a release." (e) Carzester was abruptly discharged. N.L.R.B. v. Montgomery Ward & Co., 247 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. This also is an element which may be considered in arriving at the conclusion that Carzester was fired for being a union member. It is not customary to discharge a satisfactory employee precipitously. (f) While I am of the opinion, and find, that Carzester's union membership led to the loss of her job, it is not necessary to find that this was the only reason which caused this outcome. For it is sufficient to establish such violation by showing that such membership was a substantial cause for her dismissal. Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (C.A. 10). I so find. Hence I find that it is immaterial that another cause may have entered into the decision to discharge Mrs. Smith. N.L.R.B. v. Symons Mfg. Co., 328 F.2d 835, 837 (C A. 7). In this connection, I have not overlooked the doctrine that nowadays employers have acquired sufficient experience regarding employees' rights under the Act to advance specious arguments to defend discharges of employees for engaging in protected activi- ties. But I place minor emphasis upon this doctrine; the case has been decided principally upon the analysis set forth above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Those activities of Respondent set forth in section III, above, occurring in connection with her 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. V. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that she cease and desist therefrom and that she take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminated against Anna Lancaster, Lillie Mae Smith, and Carzester Smith in discharging them, it will be recommended that Respondent be ordered to offer to each immediate and full reinstatement to her former position or, if such is not available, one which is substantially equivalent thereto, without prejudice to their seniority and other rights and privileges. It will further be recommended that Anna Lancaster, Lillie Mae Smith, and Carzester Smith be made whole for any loss of earnings suffered by reason of the discrimination against them. In making Anna Lancaster, Lillie Mae Smith, and Carzester Smith whole Respondent shall pay to each a sum of money equal to that which each would have earned as wages from the date of her layoff to the date of reinstatement or a proper offer of reinstatement, as the case may be, less her net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent calculated by the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent preserve and, upon reasonable request, make available to the Board or its agents, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate notices. The discriminatory discharges go "to the very heart of the Act." N. L. R. B. v. Entwhistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Accordingly, the Board's Order should be broad enough to prevent further infraction of the Act in any manner; and I so recommend. Cf. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587. Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union 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 LOBY'S CAFETERIA 427 employment of Anna Lancaster, Lillie Mae Smith, and Carzester Smith, thereby discouraging membership in the Union, a labor organization, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 4. By stating to employees that she is not going to have a union at her cafeteria, Respondent committed an unfair labor practice proscribed by Section 8(a)(1) of the Act. 5. The foregoing unfair labor practices affect commerce within the purview of Section 2(6) and (7) of the Act 6. Respondent has not committed any other unfair labor practices alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in this case, I recommend that the Board issue an Order requiring that Respondent, her agents, successors, and assigns, shall: 1. Cease and desist from (a) Discouraging membership in the Union, 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) Telling employees that Respondent is not going to have a union at her cafeteria (c) In any other manner interfering with, restraining, or coercing her employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Anna Lancaster, Lillie Mae Smith, and Carzester Smith immediate and full reinstatement each to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to their seniority or other rights and privileges previously enjoyed by them, and make each whole for any loss of pay she may have suffered, with interest at the rate of 6 percent, by reason of Respondent's discrimination against her, as provided in the section above entitled "The Remedy." (b) Notify said Anna Lancaster, Lillie Mae Smith, and Carzester Smith, if presently serving in the Armed Forces of the United States, each 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, if any, of backpay due under the terms of this Recommended Order. (d) Post at her cafeteria at Memphis, Tennessee, copies of the attached notice marked "Appendix." i Copies of said notice, to be furnished by the Regional Director for Region 26, after being signed by a duly authorized representative of Respondent or by Respondent, shall be posted by her immediately upon receipt thereof, and be maintained by her 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 26, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.2 IT IS FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. i 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 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 "