Master Food Services, Inc., Noah Robinson, and Al Williams d/b/a A & W Catering Co.

National Labor Relations Board - Board Decisions

Jul 12, 1982

262 N.L.R.B. 804 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Master Food Services, Inc., Noah Robinson, and Al
Williams d/b/a A & W Catering Co. and Local
129, Chicago School Lunchroom Employees
Union, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO.
Case 13-CA-19283
July 12, 1982
DECISION AND ORDER
BY MEMBERS FANNING, ZIMMERMAN, AND
HUNTER
On April 14, 1981, Administrative Law Judge
Marion C. Ladwig issued the attached Decision in
this proceeding. Thereafter, Respondents and the
General Counsel filed exceptions and supporting
briefs. The General Counsel also filed a brief in re-
sponse to Respondents' exceptions, and Respond-
ents also filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
Respondents have excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
Additionally, Respondents assert that the Administrative Law Judge's
findings are a result of bias and prejudice. After a careful examination of
the entire record, we are satisfied that this allegation is without merit.
In adopting the Administrative Law Judge's Decision, however, we
place no reliance on his discussion of Noah Robinson's credibility in sec.
II,D,I, par. 6, of his Decision. However, it is clear from a careful reading
of his Decision and the record that the Administrative Law Judge's
credibility resolutions were based on many factors in addition to the
point noted in that paragraph of his Decision.
X The Administrative Law Judge concluded that Respondents did not
violate Sec. 8(a)(l) of the Act by discharging Supervisor Pearline Curtis.
We agree.
In our recent decision in Parker-Robb Chevrolet, Inc., 262 NLRB No.
58 (1982), we held that the protection of the Act does not extend to su-
pervisors who are disciplined or discharged as a result of their participa-
tion in union or concerted activity. In so doing, we overruled DR W Cor-
poration d/b/a Brothers Three Cabinets, 248 NLRB 828 (1980), on which
the General Counsel relied in arguing that Curtis' discharge was unlaw-
ful, and similar cases to the extent those cases held that a violation is es-
tablished when the discipline or discharge of supervisors is "part and
parcel" of an employer's pattern of unlawful conduct directed against
employees. Accordingly, we conclude in agreement with the Administra-
tive Law Judge, for the reasons fully set forth in Parker-Robb, that there
is no basis for finding the discharge of Supervisor Curtis unlawful. Fur-
thermore, we find Talladega Cotton Factory. Inc., 106 NLRB 295 (1953),
also relied on by the General Counsel, inapplicable to the facts of the in-
stant case.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondents, Master Food
Services, Inc., and Noah Robinson, Chicago, Illi-
nois, their officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge: This
case was heard at Chicago, Illinois, on June 2 and No-
vember 12-13, 1980. The charge was filed by the Union
on November 8, 19791 (amended July 10. 1980), and the
complaint was issued on December 28 (amended May 20,
1980, and at the hearing). The primary issues are wheth-
er Respondent Noah Robinson 2 (a) threatened to dis-
charge college cafeteria employees unless they retrieved
their union cards, (b) threatened to close the cafeteria if
the Union became the bargaining representative, (c) dis-
criminatorily discharged six cafeteria employees because
of their union support, (d) unlawfully discharged the su-
pervisor, (e) thereafter unlawfully discriminated against
the employees by prohibiting an alter ego, Al Williams,
from employing them, in violation of Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended,
and whether (f) Noah Robinson is personally liable and
subject to a remedial order.
Upon the entire record, 3 including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and by
Respondents MFS and Robinson, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Master Food Services, Inc., an Illinois corporation, has
engaged in the business of providing cafeteria services to
City Colleges of Chicago, including cafeteria services at
Chicago Urban Skills Institute (CUSI), Olive-Harvey
College, Kennedy-King College, and Malcolm X Col-
lege, in Chicago, Illinois, where in 1979 it admittedly de-
rived gross revenues in excess of $500,000 and received
goods valued in excess of $5,000 directly from outside
the State.
I find that it has been an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
I All dates are in 1979 unless otherwise indicated.
2 The names of Respondents appear as amended at the hearing
I The General Counsel's unopposed motion to correct transcript, dated
January 13, 1981, is granted and received in evidence as {G C. Exh. 33.)
262 NLRB No. 105
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A & W CATERING CO.
1I. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent Noah Robinson, as the sole stockholder of
Immaculate Maintenance, Inc., has "been doing business
with the city colleges since 1972 in the maintenance de-
partment." Operating as a union contractor, he has a
cost-plus contract with City Colleges of Chicago to pro-
vide cleaning services for eight of the colleges. These in-
clude two smaller colleges, Chicago Urban Skill Institute
(CUSI) and Olive-Harvey College (where the cleaning
crews consist of 6 or 7 persons), and two larger colleges,
Kennedy-King College and Malcolm X College (where
the crews have 30 to 40 persons).
In January 1975, Robinson agreed to begin performing
additional services for City Colleges. As president of
Stanley Ryan, Inc. (one of a number of corporations in
which he owned all or a majority of the capital stock),
he signed a contract, agreeing to operate the Kennedy-
King and Malcolm X cafeterias. The contract (G.C. Exh.
3) required City Colleges (acting through the board of
trustees of Community College District No. 508) to pro-
vide rent free the cafeteria facilities, all of the equipment
(excluding "consumable" items, such as napkins, tooth-
picks, etc."), utilities, repairs and maintenance, and the
dining-area janitorial service (performed by Immaculate
Maintenance). Stanley Ryan, as the operator, was re-
quired to provide workmen's compensation, liability, and
other insurance.
Having no experience in cafeteria operations, Robinson
entered into a subcontract with the former operator,
Am-Food Industries, to operate the cafeteria "as a sub-
contractor of Stanley Ryan Associates." (G.C. Exh. 9A.)
By June or July 1975, Robinson had incorporated Food
Service Management Co. (FSM), another corporation in
which he was the sole stockholder, to operate the two
cafeterias as a division of Stanley Ryan. According to
Robinson, FSM experienced financial losses in the next 2
years. In late April 1977, as FSM's board chairman, Rob-
inson sent creditors a letter (G.C. Exh. 9A) in which he
reported that one creditor was threatening to "drive
FSM Corporation into bankruptcy" rather than accept
Robinson's second debt reduction plan, and wrote: "Big
deal. Nothing from nothing leaves nothing. If FSM Cor-
poration goes-or is driven-out of business, Stanley
Ryan will probably be in the market for another subcon-
tractor. The beat goes on." When he sent a copy of this
letter to Vice Chancellor Irving Slutsky, the City Col-
leges official with whom Robinson dealt on cafeteria
matters between 1975 and 1980, Slutsky objected that
subcontracting of the cafeteria operations without City
Colleges' approval was "contrary to policy." On May 9,
1977, as president and chief executive officer of "Food
Service Management Co., a Division of Stanley Ryan &
Associates, Ltd.," Noah Robinson sent Slutsky a letter,
confirming "our conversation of this morning." In the
letter, Robinson falsely asserted, "Stanley Ryan has
never subcontracted the Malcolm X or Kennedy-King
College cafeteria operations." He then added that "Noah
Robinson is the sole owner of the FSM Corporation"
and claimed "From time to time, in the beginning, we re-
tained 'consultants' to advise us until we acquired the au-
thority of knowledge in manual food operations. Now
we're on our own." (G.C. Exh. 9B.)
By June 1977, Robinson had incorporated another
solely owned corporation, Respondent Master Food
Services, Inc. (MFS), to replace FSM which went out of
business. (G.C. Exh. 2.) However, he began using still
another name, the fictitious corporate name of "Master
Food Vendors," the name of the Respondent in the
original charge. He did not correct this misnomer in his
November 27 pretrial affidavit. Instead he falsely
claimed, "I own all the stock in an Illinois corporation
called Master Food Vendors, Inc.," and asserted "Master
Food Vendors (MFV) is engaged in the business of pro-
viding manual food services to several cafeterias for the
City Colleges of Chicago." (G.C. Exh. 21.) He never in-
corporated a company under that name.
In early 1978. Robinson agreed to begin operating two
additional cafeterias for City Colleges in the name of
Master Food Vendors. They were the smaller cafeterias
at CUSI and Olive-Harvey. On February 7, 1978, the
City Colleges board approved Vice Chancellor Slutsky's
recommendation that its July 1, 1976, contract with
Gourmet Catering, Inc., to operate the two cafeterias, be
assigned to "Master Food Vendors (Stanley-Ryani Asso-
ciates, Inc.)" which "are one and the same Company,
such notification having been provided to the Board by
letter." (G.C. Exh. 7.) (The evidence does not reveal
Robinson's motivation for using the MFV misnomer
after MFS was incorporated.) The assigned contract was
similar to the contract Robinson had signed in 1975 to
operate the larger cafeterias at Kennedy-King and Mal-
colm X Colleges but it specifically provided (in sec. 16,
G.C. Exh. 6) that "this Agreement may not be assigned
without prior written consent of the Board," thereby
prohibiting Robinson from selling or subcontracting the
contract without prior City Colleges' approval.
By May 1979, Robinson was also using the correct
name of MFS in the cafeteria operations. On May 4,
Slutsky wrote him at Master Food Services, Inc., extend-
ing the CUSI and Olive-Harvey contract through June
30, 1980. (G.C. Exh. 8A.) On June 6, Slutsky similarly
notified Robinson that "the Board of Trustees has ap-
proved the extension of the existing agreement with
Master Food Service, Inc. (Stanley-Ryan, Inc.) for food
service at Kennedy-King and Malcolm X Colleges for
the period July 1, 1979 through June 30, 1978." (G.C.
Exh. 10B.)
All four of the cafeterias were being operated non-
union. By October 1979, the two larger cafeterias, at
Kennedy-King and Malcolm X, were operating at a
profit. As admitted in Robinson's November 27 pretrial
affidavit (G.C. Exh. 21, p. 2., par. 6). "We do make
profit at Kennedy-King and Malcolm X and therefore
were subsidizing CUSI and Olive-Harvey. At CUSI and
Olive-Harvey we have to pay a 10% royalty to the City
Colleges-which we do not have to pay royalty at Ken-
nedy King and Malcolm X. We have similar labor costs
at all 4 colleges-at Kennedy King and Malcolm X
volume of sales in about $1200 plus per day versus about
$500 plus per day at CUSI." (Because of the unprofitabi-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lity of the two smaller cafeterias, the royalty was not
being paid.)
This proceeding arose when the Union sought recogni-
tion as the bargaining representative of the employees at
the smaller unprofitable CUSI cafeteria.
B. Threats To Close and To Discharge Employees
About 2 p.m. on Friday, October 26, International Or-
ganizer Frank O'Brien (who was organizing on behalf of
the Union, Local 129), met with Cook-Manager Pearline
Curtis and six employees at the CUSI cafeteria. He
passed out union authorization cards and all seven of
them, Curtis, Cora Bonner, Kenneth Hardiman, Ronald
Henderson, Bernice Johnson, Erma Jordan, and Lorraine
Mosley, plus Ruben Reed who was washing pots at the
time, signed them. The following Monday or Tuesday,
O'Brien telephoned William Stratton, an official of Local
304 (another Chicago local of the same International),
told him all of the CUSI employees had been signed up,
and asked him to intervene with Noah Robinson in the
hopes of getting voluntary recognition.
About 11:30 on Tuesday night, October 30, Alfreda
Vaughn (one of Noah Robinson's "key" assistants as dis-
usssed later) telephoned Manager Curtis at her home. As
Curtis credibly testified, Vaughn said, "I'm calling for
Noah. Noah wants to know if you all talked to a union
man.... Well, did you all sign any papers or any kind
of a contract? . . . Well, if you haven't then don't be-
cause Noah don't want no union in." (Vaughn did not
testify.)
About 9 o'clock the next morning, October 31, Noah
Robinson telephoned Curtis at work and told her a
"friend" (evidently referring to William Stratton) had
told him that all the "kids" at CUSI "had signed up for a
union." As testified by Curtis (who impressed me by her
demeanor as being an honest, forthright witness), Robin-
son began by asking, "What's going on down there?"
and "Well, what about the union?" Curtis answered, "I
talked to Freda last night and I told Freda that we
hadn't joined no union. We talked to the union man."
She denied signing "any papers or anything," but finally
admitted, "Well, we signed some cards." About an hour
later, Robinson called back, asked when everybody got
off, and instructed Curtis to "hold everybody there till I
get there. I want to have a meeting with everybody."
Robinson arrived at the cafeteria about 2:15 or 2:30 p.m.
and met with Curtis and six of the employees (everybody
on duty that day except Reed, who again was still wash-
ing pots). As Curtis credibly testified, Robinson said he
was really surprised when "his friend called him" and
told him that the people at CUSI had signed up for a
union. "He said he did not want no union. He didn't
want none of his schools unionized because the unions
[were] nothing but a bunch of headaches and they were
gamblers, crooks and murderers." He threatened that
"before he would have any of his schools unionized he
would close them down." He asked the employees if
they knew any way to get the union cards back; said he
was supposed to have a meeting with "his friend" the
next day for the friend to show him the cards; said he
"didn't want to see them"; and threatened that "if the
guy showed him those cards that we were all going to
be fired." I discredit Robinson's denials (his credibility is
discussed later, and find that Robinson's threats on Octo-
ber 31 to discharge the employees unless they retrieved
the union cards and to close the cafeteria before he
would have any of his schools unionized were coercive
and violated Section 8(a)(l) of the Act.
C. Alleged Discriminatory Discharge
1. Evidence of discrimination
On November 1, the day after Noah Robinson threat-
ened the CUSI cafeteria employees with discharge and
closure, he telephoned Vice Chancellor Slutsky. As
Slutsky (a credible witness) testified, Robinson said "he
was contemplating or talking about transferring the
[CUSI] contract to some other company and I said I
could not allow that, it has to be done by official board
authorization, I have to know more about any other po-
tential vendor that you would want to introduce." Nev-
ertheless, that same day, Robinson wrote Slutsky, stating
that he had already spoken to President Peyton Hutchi-
son on this matter, and claiming that Hutchison had
"concurred on our proposed action." Robinson also
stated, "Reiterating our telephone conversation of this
morning, it is our intent, subject to your approval, to sell
or sublet the C.U.S.I. manual food operation to A & W
Catering, Inc., Al Williams, President and owner ... we
intend to shut down our operational involvement and
dismiss the entire work crew [emphasis supplied] at the
close of business tomorrow, November 2, 1979." (I note
that, on November 7, Hutchison wrote Robinson, assert-
ing that the "sentence which reads, 'I have spoken to
Mr. Peyton Hutchison on this matter and he concurred
on our proposed action,' is not accurate.... I must
remain neutral regarding this matter." (G.C. Exh. 12.) As
justification for the action, Robinson explained in the
November 1 letter that "Just recently, attempts have
been initiated by an outside union (infested with unsa-
vory, hoodlum-types) to organize the cafeteria workers";
cited "the same problem at Kennedy-King several years
ago"; and stating "Now, they're back, and I want no part
of them"-attaching 1974 and 1977 newspaper clippings
of a "gang chief' killing, etc., in Stratton's Local 304.
Robinson then added that the "primary consideration"
was economic.
About 9 or 9:30 o'clock the next morning, Friday, No-
vember 2, Al Williams (then a grill cook at the Olive-
Harvey cafeteria, G.C. Exh. 21, p. 4, par. 10) went to the
CUSI cafeteria. (Williams, one of the Respondents
herein, did not file an answer, make an appearance at the
hearing, or testify.) As Manager Curtis credibly testified,
Williams "came in and . . . told me that Noah had sent
him down to take inventory. .... First he was talking to
me about letting the union man come in and he said that
he wished that I hadn't because Noah was very upset."
Later Williams called Curtis in the office and told her,
"Pearl, that was Noah on the phone and he told me to
tell you that starting Monday a new catering service
would be taking over the cafeteria." He smiled and said,
"You know that's a lie, don't you Pearl? ... That's me."
806
A & W CATERING CO.
About 2:30 that Friday afternoon, November 2, Noah
Robinson went to the CUSI cafeteria with the final pay-
checks (the paychecks which were due on November 1
and also second paychecks for November I and 2, the
first 2 days of the next pay period), and met with Man-
ager Curtis and employees Bonner, Johnson, Jordan, and
Mosley in the cafeteria office. As Curtis credibly testi-
fied, Robinson announced that "Starting Monday the
cafeteria will be under different management," told her
that he was holding her responsible as the leader, and
"said that we had all signed ourselves out of a job and
from now on to watch what you sign." In the conversa-
tion he said, "I hold Pearl fully responsible because she
should have called the office to find if he was interested
in us signing up for the union." He said he "was sorry he
had to do this, but he had to lay everybody off" because
of what they had done "about this union thing"; that he
could not ever use any of them at CUSI anymore, espe-
cially Curtis; and that maybe he would be able in the
long run to place them at other schools but never at
CUSI-indicating his intentions of controlling future
hiring at the CUSI cafeteria.
Al Williams began managing the CUSI cafeteria the
next Monday morning, November 5, with a completely
different crew-without retaining any of the eight per-
sons who had signed union authorization cards. I dis-
credit Robinson's claim that he suggested to them on
November 2 "that they ought to contact [Williams]
about the possibility of working in his crew," and that
"since that time several of those people in attendance did
contact him and did go to work for him." (As discussed
below, I find that much of Robinson's testimony was fab-
ricated.) It is otherwise undisputed that none of the eight
card signers present on November 2 ever worked for
Williams "during his tenure" as manager of the CUSI
cafeteria. Instead of permitting cashier Cora Bonner to
be retained by Williams in the CUSI cafeteria, Robinson
transferred her to the MFS cafeteria at Malcolm X Col-
lege (where she had remained a maintenance employee
of Immaculate Maintenance while working part time at
the CUSI cafeteria, substituting for cashier Ann Jones
who was on sick leave) and "allowed" Williams to take
one of the Malcolm X cashiers to work at CUSI.
(Bonner is the only card signer who is not alleged to be
a discriminatee.) Another card signer, Ruben Reed,
asked Robinson for employment in early 1980 and was
sent to Malcolm X College where he worked a short
time for MFS or Immaculate Maintenance. The only
CUSI cafeteria employee who was retained by Williams
was Ann Jones, the cashier on sick leave when the cards
were signed. Robinson testified that she "stayed on and
was hired by Mr. Williams as cashier during his tenure."
Robinson admitted that when City Colleges hired new
contractors, both in the cafeteria and maintenance de-
partments, the practice had been for the staff to "remain
even after the operating contractor is gone. .... When I
went to Kennedy-King and Malcolm X, the crew was al-
ready there working for the previous contractor opera-
tor.... We retained the same people.... When we
came [to CUSI in February 1978] we kept everybody
there." Yet, when Williams became the CUSI cafeteria
manager on Monday, November 5, he did not retain any
of the persons who had worked in the cafeteria on
Friday, November 2.
On December 20, Robinson sent Vice Chancellor
Slutsky a letter, written "In response to your request for
clarification on the proposed authorization for transfer"
of the CUSI cafeteria operation rights from MFS to A &
W Catering Co. Robinson asserted in the letter that A &
W had been operating the cafeteria for several weeks
"on a trial basis under our auspices." He gave, as the
"rationale for requesting the transition," first "Economic
considerations" and then asserted: "Union organizing ef-
forts. There have been escalating efforts by the Hotel
and Bartenders union to organize the cafeteria workers.
For MFS to have to sign an agreement with any union
would entail granting additional economic considerations
(i.e., higher wages, increased benefits, etc.) that we just
could not bear." (G.C. Exh. 13).
Thus, in addition to Robinson's threats on October 31
to discharge the CUSI cafeteria employees and to close
the cafeteria before he would have any of his schools
unionized, the evidence shows that (a) Robinson wrote
Slutsky on November I that he intended to "dismiss the
entire work crew" on November 2, even though the ad-
mitted practice at the city colleges was for the cafeteria
staffs to remain when the operators change; (b) Robin-
son, when delivering the employees' final paychecks on
November 2, told the employees that they had signed
themselves out of a job, that he had to lay everybody off
because of what they had done" about this union thing,"
that he could not use any of them at CUSI anymore, and
that maybe he would be able to place them later at other
schools, but "never" at CUSI; (c) Williams retained one
cafeteria employee who was absent when the union
cards were signed but none of the eight card signers; and
(d) Robinson admitted in his December 20 letter to
Slutsky that the union organizing efforts were a motiva-
tion for his actions.
2. Respondents' contentions
Ignoring his own statement in his November 1 letter
to Vice Chancellor Slutsky that he intended to "dismiss
the entire work crew," Respondent Noah Robinson
claimed at the hearing, "I did not discharge anyone,"
and "There was nothing to lead me to believe that they
would not be there after I left." I discredit these claims
as fabrications.
The brief, filed on his and Respondent MFS's behalf,
contends that "it is obvious that the operation of the
cafeteria at CUSI was discontinued for business (namely,
economic) reasons and was not motivated by an antiun-
ion animus." In making this contention, the brief ignores
Robinson's admission that he told everybody the union
and the economics were the two reasons he was "getting
out." (In view of this admission, other credited testimo-
ny, and the fact that Robinson impressed me by his de-
meanor on the stand as being willing to shape his testi-
mony to fit his defenses, I discredit his denial that he re-
called telling Al Williams, during the period from
Wednesday, October 31, to Friday, November 2, that the
Union had signed up the employees at the CUSI cafete-
ria. The brief also ignores Robinson's December 20 letter
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Slutsky, admitting that he had taken the action he did
because of economic considerations and the "escalating
efforts by the Hotel and Bartenders union to organize
the cafeteria workers," as quoted above.
The brief further contends that "it is apparent that the
evidence does not preponderate in favor of a finding
that, in discontinuing the operation of the CUSI cafete-
ria, the Respondents were motivated by a desire to chill
unionism at their other cafeterias or businesses." The
brief argues that "Robinson is involved in other compa-
nies that cover six different industries and six different
unions," and cites his testimony that he has never before
had a charge of unfair labor practice filed against him.
(This argument refers to the Union representing employ-
ees performing cleaning services under his cost-plus con-
tract with City Colleges, the driver and loader locals
representing employees of a milk company, and various
construction unions.) The brief cites the fact that card
signer Cora Bonner was thereafter employed in MFS's
Malcolm X cafeteria (but transferred from the CUSI
cafeteria where she signed the union card). Ignoring the
credited testimony that Robinson told the employees on
October 31 that "before he would have any of his
schools unionized he would close them down," as found
above, the brief argues that there was "no evidence" that
the Respondents believed the union organizing at CUSI
to be a first step in organizing the other cafeterias.
In MFS' first answer (G.C. Exh. I1E), filed by Robin-
son himself on January 1, 1980, he admitted the allega-
tions that the supervisor and employees were discharged
on November 2, and alleged that they were terminated
because the CUSI cafeteria operation was "sold" (an al-
legation which was clearly false). Robinson also alleged
in the answer that MFS "has had no official or formal
contact with or from Frank J O'Brien [who filed the
original charge on behalf of Local 129, Chicago School
Lunchroom Employees Union, on November 8] or any
other official union representative, on the C.U.S.I.
matter. 'Unofficial' sources within the union [evidently
referring to Local 304 official Stratton] informed us of
the union's possible interest in attempting to organize
C.U.S.I. cafeteria workers." Thus, Robinson was admit-
ting knowledge that Stratton was to speak for the Union
(Local 129). I discredit his testimony that he believed the
employees had signed a "slip" for Local 304.
3. Concluding finding of discrimination
This is not a case where a contractor, faced with a
continuing unprofitable operation, refused to renew the
contract at its expiration, or obtained authorization to
transfer or subcontract the contract to a third party. If
that had happened here, the new contractor or subcon-
tractor would have followed the past practice of retain-
ing the cafeteria employees, as Robinson had done when
he replaced earlier contractors at City Colleges cafete-
rias.
Here, the CUSI and Olive-Harvey cafeterias were un-
profitable and may have been since Robinson agreed in
February 1978 to operate them. Yet having found that
the two larger cafeterias (at Kennedy-King and Malcolm
X Colleges) were making a profit, Robinson had contin-
ued to operate the two smaller cafeterias. Nevertheless, 3
days after Robinson learned that the Union was organiz-
ing the CUSI cafeteria employees, he discharged seven
card signers (the manager and six cafeteria employees),
and transferred the eighth one (who also worked under a
union agreement in the maintenance department at Mal-
colm X), having in the meantime threatened them with
discharge unless they retrieved their union cards and
with closure before he would have any of his college
cafeterias unionized. As found, he told the employees
they had signed themselves out of a job. Under these cir-
cumstances, I find that the General Counsel has made a
primafacie showing that their union activity was a moti-
vating factor in Robinson's decision to discharge the six
CUSI cafeteria employees, and that the Respondents
have failed to demonstrate that Robinson would have
taken the same action against them had they not engaged
in the union activity. Wright Line, a Division of Wright
Line, Inc., 251 NLRB 1083 (1980). I therefore find that
Respondents Robinson and Master Food Services discri-
minatorily discharged employees Kenneth Hardiman,
Ronald Henderson, Bernice Johnson. Erma Jordan, Lor-
raine Mosley, and Ruben Reed to discourage union
membership, in violation of Section 8(a)(3) and (1) of the
Act. On the other hand, I agree with Respondents Rob-
inson and MFS that, as a statutory supervisor, Manager
Crafts was not unlawfully discharged. I therefore dismiss
the allegation in the complaint that her discharge violat-
ed Section 8(a)(1) of the Act.
D. Williams as "Alter Ego"
1. The circumstances
In Robinson's November 27 pretrial affidavit (G.C.
Exh. 21, p. 3, par. 9), he claimed that on Wednesday,
October 31, after learning about the union organizing in
the CUSI cafeteria, "I reviewed various proposals which
I had received from various businesses over the year to
take over CUSI." At the hearing Robinson testified that
he did not remember reviewing written proposals, and fi-
nally admitted that he had not received any proposals.
Having received no proposals to buy or subcontract the
unprofitable operation, Robinson hastily entered into a
verbal arrangement with one of the MFS employees, Al
Williams, who had done some catering work on the side.
On Friday morning, November 2, Williams went to the
CUSI cafeteria to take inventory. As discussed above,
when he told Manager Curtis in the cafeteria office that
Robinson had just called and said to advise Curtis that
"starting Monday a new catering service would be
taking over the cafeteria," he smiled and said, "You
know that's a lie, don't you Pearl? . . . That's me."
Williams had previously been a manager, but was
working as a grill cook at MFS' Olive-Harvey cafeteria
before becoming manager at CUSI on November 5. He
had done some catering work under the name of A & W
Catering Co. Some indication of the limited scope of this
catering service is the undisputed testimony that in Octo-
ber, while working at Olive-Harvey, he telephoned
CUSI Manager Curtis "and wanted to know if he could
borrow some punch bowls" for catering a breakfast. Ac-
cording to Robinson, Williams was a super cook and a
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A & W CATERING CO.
good planner, but, "One of the problems that we had
with Mr. Williams, when he worked with us . . . was
that he was not always dependable" (emphasis supplied),
and "we had difficulty finding him when he was in our
employ because he moved from house to house and
'shacked' with people, on occasion." Robinson painted a
different picture of Williams when writing Vice Chancel-
lor Slutsky on December 20 (G.C. Exh. 13) seeking au-
thorization to transfer the CUSI cafeteria operation
rights to Williams. Robinson represented in the letter
that Williams had worked as cafeteria manager at Mal-
colm X, Kennedy-King, Olive-Harvey, and CUSI and
"has been one of our most valuable and productive em-
ployees over the years, and I would not hesitate to rec-
ommend him highly." Robinson then added (implying
that he intended to continue having responsibility over
the CUSI cafeteria operation), "He is a person that I can
work comfortably with."
The following day, December 21-7 weeks after Rob-
inson assertedly was "walking out" on the CUSI cafete-
ria operation-he wrote Slutsky another letter (G.C.
Exh. 14), withdrawing his request that the "rights and/or
authorization to manage" the cafeteria be transferred to
A & W Catering Company. Robinson wrote that it was
the opinion of counsel that by virtue of A & W's hiring
and "paying its employees with their own A & W
checks," buying "all of its food products direct from
their suppliers," and managing the cafeteria operations,
and the fact that he and MFS had no equity interest, fi-
nancial involvement, or management role in the day-to-
day operating affairs of A & W, "it is perfectly legiti-
mate for A & W to operate under our auspices," pending
any negotiated buy out which "should take quite some
time." This was about 3 weeks beyond the 30-day trial
period which, according to Robinson, Williams began
operating the cafeteria "under our auspices." Terms for a
transfer of the contractual rights were never agreed
upon.
As manager of the CUSI cafeteria, Williams was per-
forming much the same function as the previous man-
ager. Cafeteria Manager Curtis had done all the ordering
of food and supplies, maintained the inventory, and kept
the employees' timesheets. Robinson admitted that the
MFS managers at the college cafeterias generally would
do the hiring and firing of cafeteria employees and were
"responsible for the day-to-day operations." There were
two principal differences in Williams' function. Although
he performed these same duties, Robinson sharply limit-
ed his choice of employees. On the last workday before
Williams became the CUSI manager, Robinson dis-
charged seven of the eight employees on duty in the
cafeteria (transfering the eighth), and told them that he
would never assign them to work again at the CUSI
cafeteria. Robinson permitted Williams to hire only one
CUSI employee (the cashier on sick leave when the
union cards were signed), and "allowed" Williams to
take one of Robinson's Malcolm X cashiers (the one re-
placed by the eighth card signer transferred from the
CUSI cafeteria). The other principal difference was that
Williams-at the time Robinson wrote the December 21
letter to Slutsky, and presumably until Williams aban-
doned the CUSI cafeteria as discussed below-paid the
cafeteria employees with A & W checks. The evidence
does not disclose any change in the preparation of the
payroll or in the performance of other clerical or book-
keeping duties. (There is no showing that Williams had
any other employees. The December 21 letter disclaims
"any equity interest or financial involvement or manage-
ment role in the day to day operating affairs of A & W
Catering," without making any reference to performing
clerical and bookkeeping services for Williams.) The
documentary evidence does show that Williams was not
required to pay all the expenses of the cafeteria. MFS
continued to provide, in December and in February,
March, and April 1980, insurance coverage for the CUSI
cafeteria as required in MFS' contract with City Col-
leges. (G.C. Exhs. 27, 29, 32A, and 32B.) When asked
whether Williams would pay any sum of money for the
right to operate the cafeteria, he answered, "Not a
dime."
Vice Chancellor Slutsky had no dealings with Wil-
liams concerning the operation of the CUSI cafeteria
during the time Williams was the manager there, and
continued to deal solely with Noah Robinson about the
operations. On May 13, 1980, Slutsky notified Robinson
that, purusant to the provision for extension of the con-
tract by mutual agreement, MFS's CUSI and Olive-
Harvey contract was extended through June 30, 1981.
(G.C. Exh. 8B.)
Robinson's credibility was seriously impugned by his
claim on the last day of hearing that he did not know if
Williams was still operating the CUSI cafeteria. On the
day before, Robinson was in the courtroom assisting his
counsel when Vice Chancellor Slutsky testified that Rob-
inson's brother (John Robinson, the MFS operations
manager) was acting manager at CUSI and when his
counsel's hearsay objection was sustained. Of course the
stricken testimony is not evidence, but the fact that this
question was raised the day before is of relevance in de-
termining the truth of Robinson's claim of lack of knowl-
edge on the last day of hearing.
When questioned further about this claim, and specifi-
cally asked if it was a fact that from time to time his
brother had been operating the CUSI cafeteria, Robinson
answered, "I do not know that to be a fact."
Later in the day Robinson was called as the only de-
fense witness. In an apparent attempt to explain his lack
of knowledge of the CUSI cafeteria operation, he testi-
fied:
Q. During the year, 1979, what, if any, duties did
you have in connection with Master Food Services,
Inc., and the operation of these cafeterias?
A. None. Although I was the owner of the cor-
poration, I never had any operational or administra-
tive duties as relates to the company.... I have
been asked by the chancellor to go into problem sit-
uations, as Mr. Slutsky said yesterday. ....
Q.... During the year 1979, would you tell us
what percentage of your time was devoted to the
operation of Master Food Services?
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Zero.
On the first day of hearing, before this issue and the issue
of whether he should be individually liable were raised,
Robinson gave a different version, describing his partici-
pation in the management of the City Colleges cafeteria
operations and other businesses from his offices at 10842
South Michigan. He testified, "I don't care who washes
dishes or serves food, as long as they are clean and re-
spectable and come to work on time and have the proper
attitude. That responsibility is generally left with the
[cafeteria] manager to make recommendations." But if it
is "a major employee, say like a manager, or a chief
cook," then he personally has the "final say." He testi-
fied that Operations Manager John Robinson "reports to
me. I am the boss. I am the last word, the buck stops
here"; "I am the boss and the owner." He further testi-
fied, "I happen to have a staff of management employ-
ees, quasi-management people, who assist me in the var-
ious facets of overseeing the various enterprises I am in-
volved in." He gave a list of 11 such persons, including
Alfreda Vaughn, who assists in the "area of accounting
and finance or loan packaging." (Vaughn is the corpo-
rate secretary of various companies, G.C. Exh. 3, and ac-
cording to Robinson in his pretrial affidavit, G.C. Exh.
21, p. 5, par. 14, "is the Comptroller and does financial
counseling and money management of all the various
businesses that I am connected to." I overrule the hear-
say objection concerning her conversation with Manager
Curtis on October 30.) Robinson related, "at my regular
staff meeting I will try to familiarize my key people with
a whole range of things I am involved in" and "I may
have any individual make a phone call on my behalf or
attend a meeting . . irrespective to what payroll or
what company they officially work for." As an example
at MFS, "there might be a dispute between a manager
and an employee. Whoever is available that could serve
in a mediating role might be sent out to investigate the
situation.... I try to make it a rule of thumb to hire
people that are multi-disciplined and multi-talented, that
is can do more than one thing. That is why they are of
value to me." He named five of his key assistants who
were on the payroll of Breadbasket Commercial Associ-
ation, a federally funded, nonprofit organization which
he incorporated in 1970 for the promotion of minority
businesses. He gave as another example one of these five,
Kathy Gates, who "may have had some sort of role" as
"assistant to me in excepting some of my various corpo-
rate functions" for MFS, "But she does likewise with the
construction companies or the other, too." (He was re-
ferring to about 10 or 15 companies, in the construction,
dairy products, cleaning service, fast food, cleaning
chemical, and consultant industries.) Thus, in describing
how he operated his various businesses and utilized the
services of his key assistants without regard to the sepa-
rate corporate entities, Robinson revealed more of his
personal involvement in the operation of MFS than he
was willing to admit on the last day of hearing.
On cross-examination Robinson testified that after the
first 30 days (ending about December 5), Williams "was
not making money and I had no indication after the 30
days that he was doing any better than we had done or
the previous person before." He answered no, he had not
checked with Williams since February 1980, and claimed
that he did not know whether Williams had been on the
CUSI premises since February 1980. Upon being asked
"when was the last time Mr. Williams was operating the
cafeteria?" he answered, "It could have been any time
after November 5 right up till right now." I consider
these claims of unawareness inconceivable.
Undoubtedly in May 1980, when the MFS contract to
operate the CUSI cafeteria was extended another year
by mutual agreement, Robinson knew who was manag-
ing the cafeteria. And Robinson must have known in
August what was happening there. On August 28, 1980,
Vice Chancellor Slutsky wrote Robinson a letter (which
he acknowledged receiving, in which Slutsky stated that
President Hutchison was very angry about the situation:
"If one were to look into that kitchen early in the morn-
ing or late in the afternoon, they would find food lying
around, roaches scurrying around and the general condi-
tion of the service area so bad that any desire to eat in
the cafeteria would permanently disappear"; and warning
of "drastic changes in the food management" if "immedi-
ate strong corrective measures are not taken." (G.C.
Exh. 18.) When asked if he had had a conversation with
Slutsky concerning the operation of the CUSI cafeteria
as recently as August 18, 1980, Robinson answered, "I
have conversations with Slutsky several times a week."
If Robinson actually had not known who was running
the cafeteria, he certainly would have determined that
information on that occasion. The CUSI contract was
not canceled. Slutsky testified on November 12, 1980,
that Noah Robinson was currently operating the cafete-
rias at CUSI, Kennedy-Kinlg, Malcolm X, Olive-Harvey,
and The Loop Colleges.
At one point in his testimony, Robinson indicated
awareness that Williams was no longer managing the
CUSI cafeteria. He testified that "Ann Jones, who was
cashier at CUSI, under our tenure, stayed on and was
hired by Mr. Williams as cashier during his tenure. To
my knowledge, she may still be there." (Emphasis sup-
plied.)
Under all the circumstances I discredit Robinson's
claim that he did not know whether Williams was still
operating the cafeteria, and find to the contrary that
Robinson was aware that Williams had abandoned his
management of the CUSI cafeteria. (I agree with the
General Counsel that "Robinson's testimony was thor-
oughly unreliable.")
2. Contentions of the parties
The General Counsel contends that the alleged closing
and transfer of the CUSI cafeteria operation to Al Wil-
liams constituted a "sham transaction," quickly undertak-
en to avoid bargaining with the Union; that Williams
temporarily operated the CUSI cafeteria as a "disguised
continuation" of the MFS operation; that the overall
management of the cafeteria was continuously in Robin-
son's hands during the period when Williams was present
on the premises; and that MFS and Robinson thereafter
reasserted total control. The General Counsel argues that
Williams never paid any money for the right to operate
810
A & W CATERING CO.
the cafeteria, had no written or oral contract, and
"owned no capital assets that would commit him to a
continued operation of the business." Pointing out Robin-
son's and MFS's continued control of the operation, the
absence of an arm's-length transaction, the uninterrupted
continuation of the same operation with the same equip-
ment at the same place and serving the same customers,
and the illegal purpose of the transaction, the General
Counsel contends that Robinson engaged Williams as a
temporary manager who was an alter ego of MFS and
Robinson and a single employer with them within the
meaning of Section 2(2) of the Act.
Respondents Robinson and MFS contend in their brief
that the evidence failed to establish the single-employer
allegations in the complaint, contending: "The evidence
failed to show that Robinson or M.F.S. had any financial
interest in A & W. It failed to show that they benefited
in any way from the operation of the CUSI cafeteria
after November 2, 1979 nor did it show that they in any
way controlled the day to day operations of CUSI after
that date."
3. Concluding finding of alter ego
After considering all the evidence, I find that Re-
spondents Noah Robinson and Al Williams did not have
a bona fide, arm's-length relationship; that Robinson's
purported sale or transfer of the CUSI cafeteria oper-
ation to Williams, one of the MFS grill cooks, was a
sham transaction which was hurriedly devised to prevent
unionization of this and other City Colleges cafeterias;
and that Williams' position under the verbal arrangement
"was essentially that of a manager." Big Bear Supermar-
kets #3, 239 NLRB 179, 184 (1978), enfd. 640 F.2d 924
(9th Cir. 1980), cert. denied 449 U.S. 919.
Williams, with no financial investment in the operation
and no agreement to purchase that part of the MFS cafe-
teria business, managed the CUSI cafeteria in much the
same manner as the former manager, "under the aus-
pices" of MFS. Robinson continued to deal with City
Colleges Vice Chancellor Slutsky in carrying out MFS's
contractual obligations to operate this and other college
cafeterias, and MFS continued to bear at least part of the
operating expenses at the CUSI cafeteria by paying for
the contractually required insurance coverage. Robinson
sharply limited Williams' choice of employees, by not
permitting Williams to retain any of the employees who
had signed union authorization cards. Williams did begin
paying the employees with A & W catering checks, but I
find this to be part of a subterfuge, to disguise Robin-
son's and MFS's continued control over the operation
and to give a false impression that Williams was operat-
ing the CUSI cafeteria as a separate, independent busi-
ness.
Thus, during the time Williams operated the CUSI
cafeteria under the name of A & W Catering, MFS and
A & W were not distinct businesses. Williams was acting
as MFS's manager and agent in operating that part of
MFS's interrelated college cafeteria business. He and the
other cafeteria managers performed similar functions,
under the MFS common management. As demonstrated
by Robinson's sharp limitation on Williams' choice of
employees, Robinson and MFS had centralized control
over the labor relations at this and other City Colleges
cafeterias where MFS had the contractual operating
rights and obligations. MFS also had common ownership
and financial control of this as well as the other college
cafeterias, in view of the fact that Williams made no fi-
nancial investment, he had no contractual rights to the
operation, and MFS continued to subsidize the operation
from profits at MFS' larger cafeterias.
I therefore conclude, in agreement with the General
Counsel, that Al Williams was Respondents MFS' and
Robinson's alter ego with respect to the CUSI cafeteria.
Accordingly I find that Williams, MFS, and Robinson
constituted a single employer within the meaning of Sec-
tion 2(2) of the Act, and that both MFS and Robinson
unlawfully discriminated against card signers Kenneth
Hardiman, Ronald Henderson, Bernice Johnson, Erma
Jordan, Lorraine Mosley, and Ruben Reed in violation
of Section 8(a)(3) and (1) of the Act when Robinson pro-
hibited Williams from employing them on and after No-
vember 5, following their unlawful discharge by Robin-
son on November 2. Inasmuch as Williams was acting as
merely an agent, at all times under the control of Robin-
son and MFS, I find that it would not effectuate the poli-
cies of the Act to make him personally responsible for
the unlawful discriminatory action. Bon Hennings Log-
ging Co., etc., 132 NLRB 97, 98 (1961).
E. Robinson's Personal Liability
1. Changing corporate entities
As found above, Noah Robinson operates various busi-
nesses and utilizes the services of "key" assistants with-
out regard to separate corporate entities. He has operat-
ed the City Colleges cafeterias under various names:
Stanley, Ryan, Inc. (also called Stanley Ryan & Asso-
ciates, Ltd. and Stanley-Ryan Associates, Inc.), Food
Service Management Co. (his solely owned corporation
which was operated as a division of Stanley Ryan before
going out of business), Master Food Vendors (a fictitious
corporate name), and Master Food Services, Inc. (one of
the Respondents herein). He has operated the CUSI cafe-
teria under the name "Master Food Vendors (Stanley-
Ryan Associates, Inc.)," and later under the name
"Master Food Services, Inc." (MFS). When asked at the
hearing if there was a real line of demarcation between
his various companies, he answered, "The only thing
consistent and constant is me."
City Colleges Vice Chancellor Slutsky testified on the
second day of hearing that Noah Robinson was currently
operating the five cafeterias. The next day (November
13, 1980, the final day of hearing), when the General
Counsel asked Robinson which cafeterias MFS was "cur-
rently operating," he claimed that MFS was operating
four of them. Later, near the close of the hearing, he
again claimed that MFS was "currently operating" City
Colleges cafeterias. However, when asked about MFS
checks to support his contention that MFS was buying
supplies for the cafeterias, he finally revealed that MFS
"went bankrupt on June 6, 1980" (4 days following the
first day of hearing)-a fact which he had appeared to be
attempting to conceal. Although he had been talking to
811
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Slutsky "several times a week" about the operation of
the cafeterias, he admitted that City Colleges was not
aware that he had filed a bankruptcy petition for MFS
over 5 months earlier. Concerning the bankruptcy, the
evidence does not reveal whether MFS's bookkeeping
records reflect all of the revenues, or whether some of
the revenues are shown under another name. (The May
16, 1980, extension of the Kennedy-King and Malcolm X
contract, for the period from July 1, 1980, through June
30, 1981, was under the name of "Stanley, Ryan Asso-
ciates, Inc. (also known as Master Food Services, Inc.),"
G.C. Exh. 10C). In support of Robinson's claim at the
hearing that the overall operation of the cafeterias was
unprofitable, his counsel introduced in evidence MFS's
1977 Internal Revenue Service "Initial Return" and its
1978 and 1979 returns (all filed within the preceding 30
to 60 days), showing that MFS suffered a loss in each of
the last 3 fiscal years, ending June 30, 1980. (Resp. Exhs.
2, 3, 4.) However, the gross receipts shown on the re-
turns were substantially less than the 1979 "gross rev-
enues in excess of $500,000" admitted at the hearing.
Without explanation, the IRS returns show gross receipts
of only $388,493.17, $461,356.87, and $412,060.91, respec-
tively.
After discussing the evidence, the General Counsel
argues in his brief, "Because of the manner in which
Robinson organizes and operates his myriad business, it is
difficult to ascertain precisely which legal entity actually
is accountable for a particular operation."
2. Liable as alter ego
Noah Robinson, the sole stockholder who personally
controlled the operations of MFS, was responsible for
the commission of all the unfair labor practices. He per-
sonally threatened to discharge the CUSI cafeteria em-
ployees unless they retrieved their union cards; threa-
tended to close the cafeteria before he would have any
of his schools unionized; discriminatorily discharged six
cafeteria employees because of their union activity; and
prohibited Al Williams, the new manager, from employ-
ing any of them. He was named individually as a Re-
spondent, and he was represented by counsel at the hear-
ing.
I agree with the General Counsel that Noafi Robinson
is the alter ego of MFS, and that under the circumstances
of this case, "it is absolutely necessary to hold Robinson
personally liable so as to avert the frustration of the poli-
cies of the Act" and "to ensure that any remedies or-
dered can be effectuated." Ski Craft Sales Corp., the alter
ego of or successor to Horowitz Bros. Mfg. Corp., etc., 237
NLRB 122 (1978). Concerning the contention made in
Respondents' brief, that the naming of Robinson as a re-
spondent after he refused to stipulate to certain necessary
jurisdictional allegations in the complaint "smacks of vin-
dictiveness on the part of the General Counsel," I find
this contention to be wholly unwarranted.
3. Section 10(b) defense
The original charge was filed on November 8, 1979,
alleging 8(a)(l) and (3) violations on November 2, 1979,
against Master Food Vendors Inc. (one of the names
under which Noah Robinson operated the CUSI cafete-
ria). The original complaint was issued on December 28,
1979, against Master Food Services, Inc. (a corporation
solely owned by Robinson), and was served on MFS
"Attn: Noah Robinson" on December 31, 1979. (G.C.
Exh. l(d).) On January 1, 1980, Robinson personally
filed an answer. (G.C. Exh. I(e).) Thus, well within the
Section 10(b) 6-month limitation period, Robinson not
only had actual notice of the charge and the proceeding
in which the legality of his conduct was in issue, but he
personally filed an answer in defense of the alleged viola-
tions.
On July 10, 1980, about 5 weeks after Robinson filed a
bankruptcy petition for MFS, the first amended charge
was filed, adding Robinson as a respondent. Thereafter
he was represented by counsel at the hearing, and the
issues of his alter ego status and personal liability were
fully litigated and briefed by the parties.
Having found that Robinson is the alter ego of MFS,
that the original charge was timely filed, and that Robin-
son had actual notice of the proceedings in which his
conduct was in issue, I find that the service of the origi-
nal charge on Respondent MFS constituted valid service
also upon Respondent Robinson. G & M Lath and Plaster
Co., Inc. etc., 252 NLRB 969, 978 (1980). I therefore
reject the contention that the naming of Robinson as an
additional respondent was barred by Section 10(b) of the
Act.
CONCLUSIONS OF LAW
1. By discriminatorily discharging employees Kenneth
Hardiman, Ronald Henderson, Bernice Johnson, Erma
Jordan, Lorraine Mosley, and Ruben Reed on November
2, 1979, because of their union activity, Noah Robinson
and Master Food Services, Inc. (MFS), engaged in unfair
labor practices affecting commerce within the meaning
of Section 8(a)(3) and (1) and Section 2(6) and (7) of the
Act.
2. By failing and refusing to reinstate employees Har-
diman, Henderson, Johnson, Jordan, Mosley, and Reed
on and since November 5, 1979, because of their union
activity, Robinson and MFS further violated Section
8(aX3) and (1) of the Act.
3. By threatening to discharge cafeteria employees
unless they retrieved their union cards, and by threaten-
ing to close the cafeteria before Robinson would have
any of his schools unionized, Robinson and MFS violat-
ed Section 8(a)(1) of the Act.
4. The November 2 discharge of the cafeteria supervi-
sor did not violate Section 8(aXI) of the Act.
5. As alter ego of MFS, Robinson is personally liable
to remedy the unfair labor practices.
THE REMEDY
Having found that Respondents Robinson and MFS
have engaged in certain unfair labor practices, I find it
necessary to order them to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Respondent Robinson and MFS having discriminatori-
ly discharged six employees, I find it necessary to order
812
A & W CATERING CO.
them to offer them reinstatement with compensation for
lost pay and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of
reinstatement, less net interim earningi, in accordance
with F. W Woolworth Company, 90 NLRB 289 (1950),
plus interest as computed in Florida Steel Corporation,
231 NL.RB 651 (1977). See, generally, Isis Plumbing &
Heating Co., 138 NL.RB 716 (1962). Inasmuch as Re-
spondents Robinson and MFS have engaged in such
egregious misconduct as to demonstrate a general disre-
gard for the employees' fimndamental rights, I find it nec-
essary to issue a broad order, requiring them to cease
and desist from infringing in any other manner upon
rights guaranteed employees by Section 7 of the Act.
Hickmotr Foods, Inc., 242 NLRB 1357 (1979).
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section
13(c) of the Act, I hereby issue the following recom-
mended:
ORDER4
The Respondents, Noah Robinson and Master Food
Services, Inc., Chicago, Illinois, their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, failing, or refusing to reinstate, or oth-
erwise discriminating against any employee for support-
ing Local 129. Chicago School Lunchroom Employees
Union, Hotel and Restaurant Employees and Bartenders
International Union, AFL--CIO, or any other union.
(b) Threatening to discharge employees unless they re-
trieve their union cards.
(c) Threatening employees with closure to avoid
unionization.
(d) In any other manner interfering with, restraining,
or coercing their employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Kenneth Hardiman, Ronald Henderson, Ber-
nice Johnson, Erma Jordan, Lorraine Mosley, and Ruben
Reed immediate and full reinstatement to their former
jobs or, if their jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed, and
make them whole for any loss of pay or other benefits
they may have suffered by reason of the discrimination
against them in the manner set forth in the remedy sec-
tion of this Decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
4 In the event no exceptions are filed as provided Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(c) Post at their cafeteria at Chicago Urban Skills In-
stitute, Chicago, Illinois. copies of the attached notice
marked "Appendix." 5 Copies of said notices, on forms
provided by the Regional Director for Region 13, after
being duly signed by Respondents' authorized repre-
sentative, shall be posted by Respondents immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps Respond-
ents have taken to comply herewith.
IT IS AI-SO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
I In the event that this Order is enforced by a Judgment of a United
Stales Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Ordcr of the National LaHbr Relations Board."
APPENDIX
NOTICF To EMPLOYEES
Pos UED BY ORDER OF THE
NATIONAI LABOR REL ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
The Act gives employees these rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for the purpose of collective
bargaining or other mutual aid or protection
To refrain from doing any or all of these
things.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting Local 129,
Chicago School Lunchroom Employees Union,
Hotel and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, or any other union.
WE WILI. NOT threaten to discharge employees
unless they retrieve their union cards.
WE WIL.L NOT threaten closure to avoid unioniza-
tion.
WE Wi1.1 NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of their rights mentioned above.
WE WILL offer Kenneth Hardiman, Ronald Hen-
derson, Bernice Johnson, Erma Jordan, Lorraine
Mosley, and Ruben Reed immediate and full rein-
statement to their former jobs or, if their jobs no
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and WE WILL
make them whole for any loss of pay or other bene-
fits, plus interest.
NOAH ROBINSON AND MAS'IEx FOOD
SERVICES, INC.
814