Parkway Manor-Village Inn, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1990

299 N.L.R.B. 574 (N.L.R.B. 1990)

574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Parkway Manor-Village Inn, Inc. and United Food
and Commercial Workers Local 1357, AFL-
CIO-CLC. Case 4-CA-17496
August 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On January 30, 1990, Administrative Law Judge
Richard H Beddow Jr issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting bnef, and the General Counsel filed an an-
swenng brief The Charging Party joined in the
General Counsel's brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions 1 and briefs and
has decided to affirm the judge's rulings, findings,
and to conclusions and adopt his recommended
Order 2
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by discharging
an employee for her union activities and repn-
mandmg another employee because of her union
activities We agree
The Respondent operates a family restaurant in
Allentown, Pennsylvania Since 1987 Robert Stm-
ner has been the Respondent's sole owner Robert
Stmner's wife, Joyce Stmner, works at the restau-
rant as a hostess The Respondent's employees
have never been represented by a union
On May 8, 1988 3 (Mother's Day), waitress Kath-
ryn Spencer, an 8-year employee of the Respond-
ent, had worked a long day and told Joyce Stmner
that she did not want to take any more tables after
8 p m because she was exhausted and had a head-
ache Over Spencer's objections, Joyce Stmner
continued to seat customers in Spencer's area Al-
though upset and m tears, Spencer served these
'The Respondent has excepted to some of the Judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 Member Cracraft adopts, for the reasons stated by the judge, the
judge's finding that the Respondent, through its attorney, violated Sec
8(aX1) of the Act by interviewing employee Brenda Mankos concerning
union activities and matters involving a forthcoming unfair labor practice
proceeding without providing her with the necessary affirmative safe-
guards As noted in his partial dissent, Member Oviatt also agrees with
the 8(a)(1) finding, for the reasons stated by the judge Chairman Ste-
phens does not rely on the Judge's analysis invoking Johnnre's Poultry Co,
146 NLRB 770 (1964), enf denied 344 F 2d 617 (8th Cir 1965), but finds
that, under all the circumstances, the questioning was coercive
3 All dates are 1988 unless otherwise indicated
people and continued working until 10 p m that
evening
The following day Spencer contacted the Union
and arranged to have a union meeting for the Re-
spondent's employees Also that day, Spencer sent
a letter to Joyce and Bob Stmner complaining
about having had to work from 10 30 a m to 10
p m the previous day The letter also said
2 We are not union members—but if we
were we would get a break to sit down to eat
and to rest No one should be required to
work 11 hours straight through without a
break and a meal
3, The main dining room last night was
where the people should have been seated
who came in late Kns and I were there long
after the waitresses who came in at 3 30
After so many faces, so many dinners and so
many lousy tips, it is pretty difficult to do a
nice job of waiting on people that come into
the restaurant later in the evening I did feel
quite bad for my 8 00 customers who got a
tired, irritable, and crying waitress What kind
of a way is that to run a restaurant?
I used to care about the work I did, and the
place that I worked for When I realize now
that my employers don't care at all about
me—I wonder why do I go the extra yard and
care about their restaurant? Over the years,
the people who work at the Village Inn have
had a drastic change in attitude I understand
why A little kind consideration, a few words
of thanks—these things would make a great
difference
Because you, Bob and Joyce, are the ones
who own this restaurant, I had to write to tell
you how I felt You can't expect people to
continue to give blood and give them no care
in return Your restaurant will surely fail
Robert Stmner reacted angrily to Spencer's
letter He told Joyce that he should fire Spencer
He testified that he got angry because he did not
like having an employee tell him that his restaurant
will fail
On May 24, the Union had its first meeting with
the Respondent's employees A second meeting
was held in early June These meetings were held
at Spencer's home Spencer began distributing
union literature and authorization cards to employ-
ees at the restaurant sometime after the May 24
meeting Robert Stmner testified that by mid-June
he knew that employees were involved in union ac-
tivity and suspected that Kathryn Spencer was one
of those involved
299 NLRB No 88
PARKWAY MANOR-VILLAGE INN 575
On July 6, Spencer prepared a takeout order and
added a gratuity to the check without first seeking
the customer's approval After paying, the custom-
er complained to Robert Stmner about having had
the gratuity added to the check &inner told Greg-
ory Wardenski, the Respondent's manager, about
the customer's complaint Stmner directed War-
denski to brmg the matter to Spencer's attention, to
get the gratuity back from her, and to return it to
the customer When Wardenski warned Spencer
not to add tips to the checks on takeout orders,
Spencer replied that she would no longer do take-
out orders Wardenslu made no further comment
and walked away
On July 16, Joyce Stmner approached Spencer,
who was taking a short break, and asked her to
prepare a takeout order Spencer refused to do so
Joyce Stmner next asked waitress Sally Miller,
who was also taking a short break Miller also re-
fused the request Stmner asked two other waitress-
es, who replied that they were too busy, before she
finally found a waitress who agreed to prepare the
takeout order
Having found someone to prepare the takeout
order, Joyce Stmner approached Wardenski and
asked what was going on She testified that she
thought that Spencer and Miller "had something
going between them" and that it "seemed like pick
on Joyce night" After speaking with Wardenski,
Stmner then went upstairs to her husband's office
She was visibly upset and complained to him about
Spencer and Miller
Seeing that his wife was upset by the matter,
Robert Stmner also became upset He went to
Wardenski and told him to discharge Spencer, stat-
ing that he could not take it anymore, "one inci-
dent after another" Stmner also told Wardenslu to
give Miller a warning
Waitress Kathleen Ambrosmo testified that wait-
resses at the Respondent's restaurant were general-
ly expected to prepare takeout orders unless they
were too busy Other waitresses testified that in the
past when they were busy, they had declined re-
quests to prepare takeout orders without giving an
explanation and were not disciplined
That evening, Wardenslu reprimanded Miller
and gave Spencer a note to call him at home
When Spencer did not call him that evemng, War-
denski called her the next morning and told her
that she was discharged for refusing to do the take-
out order Spencer's discharge occurred 2 days
before a third union meeting was to be held at
Spencer's home After this third meeting no further
union activity occurred
Applying the criteria set forth in Wright Line,
251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 US 989 (1982), approved
in NLRB v Transportation Management Corp, 462
U S 393 (1983), the judge found that the Respond-
ent's discharge of Spencer and reprimand of Miller
violated Section 8(a)(3) and (1) of the Act In its
exceptions, the Respondent argues that the judge
erred in finding a prima facie case because there is
no evidence that the Respondent intended to dis-
courage union activity by discharging Spencer and
reprimanding Miller Further, the Respondent
argues that the judge erred in finding that the Re-
spondent failed to show that Spencer would have
been discharged and Miller reprimanded absent
their union activities
We agree with the judge that the General Coun-
sel established a prima facie case that Spencer's
union activities were a motivating factor in the Re-
spondent's decision to discharge her Like the
judge, we rely on the fact that Spencer's May 9,
1988 letter to the Respondent was admittedly one
of the reasons the Respondent discharged her
The message conveyed in Spencer's letter is that
working conditions were unacceptable and would
be better if the Respondent's employees were rep-
resented by a umon We find the conveyance of
such a message to be protected union activity .1
Nevertheless, the Respondent's owner, Robert Stm-
ner, testified that it was not the union message that
angered him, but rather the letter's conclusion that
his "restaurant will surely fail" The conclusion is
inextricably tied to the protected message in the
letter, and thus does not serve as a lawful basis for
discharging Spencer Because the letter constitutes
protected union activity, and because the letter is
admittedly one of the reasons for which Spencer
was discharged, we find that a prima facie case has
been established 5
Having found a prima facie case, the burden
shifts to the Respondent to show that Spencer
would have been discharged even absent her union
activities 6 We find that the Respondent has not
met this burden The Respondent has not shown
that it would have discharged Spencer for any non-
union-related action absent her references to and
participation in union activity
4 Thus, we need not decide whether the sending of the letter constitut-
ed concerted activity protected from employer Interference by Sec
8(aX1) of the Act See Carpenters Local 925, 279 NLRB 1051, 1059 fn 40
(1986)
Our dissenting colleague finds that there is no pnma facie case be-
cause Stmner testified that he was angered by the prediction of the res-
taurant's failure Had this prediction been made apart from any message
concerning union activity, we would likely reach a similar result The
prediction, though, was communicated together with a message about
union activity Therefore, it must be considered in conjunction with the
other statements that were made
0 Wright Line, supra
576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
First, there is nothing in the record to indicate
that a refusal to prepare a takeout order is grounds
for any discipline at all, let alone discharge In the
past, waitresses declined takeout requests without
explanation and were not disciplined We acknowl-
edge that a refusal by a busy waitress and a refusal
by a waitress on break might reasonably be treated
differently—and, indeed, one employee testified
that waitresses, if not busy, were generally expect-
ed to prepare takeout orders The Respondent did
not show, however, that all the incidents of past
refusals in which no discipline was imposed in-
volved only waitresses who were busy at the time
of the request Thus, it has not been shown that
Spencer and Miller, by refusing Joyce Stmner's
takeout request, violated an established work rule
in a manner that necessarily led to discipline
Second, there is no evidence that Spencer's
adding a gratuity to a takeout order is grounds for
discharge The Respondent handled this incident
by requiring Spencer to return the gratuity Noth-
ing more was said about the incident and there is
no evidence that any further discipline was con-
templated
Like the judge, we find the Respondent's failure
to conduct an investigation of the takeout refusal
incident to be mdicative of the pretextual nature of
the reasons given for Spencer's discharge Spencer
was an 8-year employee of the Respondent The
Respondent's manager testified that she was a very
good waitress Even though the takeout incident
involved the owner's wife, the mcident was a rela-
tively minor one We also note that the disparity in
the penalties imposed on Spencer and Miller—dis-
charge for Spencer's refusal and a repnmand for
Miller's refusal—belies any claim that a refusal to
prepare a takeout order necessarily resulted in dis-
charge Nor can Spencer's discharge be explained
as a penalty imposed after lesser penalties were im-
posed for previous misconduct, since the Respond-
ent has not shown that it was operating under any
progressive system of discipline Under these cir-
cumstances, we find that the Respondent's extreme
reaction to the takeout incident, including its fail-
ure to conduct an investigation, supports a conclu-
sion that the Respondent seized on an apparent op-
portunity to discharge a known union supporter In
light of the above, we find that the Respondent has
not rebutted the prima facie case and thus Spen-
cer's discharge violated Section 8(a)(3) and (1) of
the Act
We also agree with the judge that the Respond-
ent violated Section 8(a)(3) and (1) of the Act by
issuing a warning to employee Sally Miller In sup-
port of this finding, we note that Joyce Stmner tes-
tified that she thought Spencer and Miller "had
something going between them" Having conclud-
ed that Spencer was unlawfully discharged, we
find that this statement establishes a prima facie
case that the Respondent believed Miller to be as-
sociated with a known union supporter and that
this was the reason for her reprimand Given the
fact that waitresses were permitted to decline take-
out requests without explanation and that there is
no evidence that other waitresses have been disci-
plined for refusing a takeout request, we further
find that the Respondent has not shown that Miller
would have been disciplined absent the Respond-
ent's perception that she was associated with Spen-
cer's union activities
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Parkway
Manor-Village Inn, Inc , Allentown, Pennsylvania,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order
MEMBER OVIATT, dISSCIltMg in part
This is a simple, factual case A waitress, Kath-
ryn Spencer, upset after a long and trymg day,
contacts a union She also writes her employer a
letter suggesting at one point that unionized em-
ployees would be treated better, bitterly conclud-
ing that "your restaurant will surely fail" The first
union meeting occurred several weeks later at
Spencer's home, and she began distributing cards at
work The owner, later, learned of the organizing
and concedes he suspected that Spencer was one of
those involved Who would not
Three months after the original incident, a cus-
tomer complained that his waitress had added a tip
to the bill for a takeout meal Reprimanded and
warned not to do so in the future, Spencer retorts
that she will no longer prepare takeout orders
A little more than a week later, Spencer refuses
the hostess' request to prepare a takeout order, as
does the next waitress asked, Sally Miller Two
more waitresses also refused The hostess who had
been rebuffed was Joyce Stmner, wife of the
owner She was not, however, part of management
Upset, she complained to her husband Her hus-
band, complaining of "one mcident after another,"
had Spencer discharged Miller was warned
As I said this, factually, is a simple case The ma-
jority, on these facts, finds a prima facie case that
Spencer's discharge and Miller's warning were
caused by the employees' interest in a union, as ex-
pressed in Spencer's letter That, the majority finds,
is established by Owner Stmner's testimony that he
was angered by the letter's prediction "your restau-
PARKWAY MANOR-VILLAGE INN 577
rant will surely fail" Stinner's anger at this threat
to his busmess is equated, by the majority, with
animus based on their finding that the threat is
linked to the protected message That is the only
evidence of animus that the majority musters to
support finding a prima fame case Finding the
prima facie case unrebutted, and linking Spencer
and Miller, the majonty finds both discharge and
warning unlawful
I see the situation differently There is no evi-
dence of preexisting ammus And it takes no unusu-
al capacity for empathy to appreciate the fact that
a businessman would be angered, as Stmner testi-
fied he was, at an employee's statement, "Your res-
taurant will surely fail" There is no call to look
beyond that to account for Stmner's anger
Though, as the majority concludes it in fact was,
Stmner's anger could have been linked to protected
aspects of the letter, that is not the only, or even
more likely, conclusion to be drawn And that is
the question Is it more likely than not that an em-
ployer—otherwise lacking umon animus—would
not be provoked by Spencer's baleful prediction I
would have been I think most would be That
bemg so, I find no prima facie case The series of
events, "one incident after another," readily ex-
plains the discharge and warning Because I find
that a preponderance of the General Counsel's evi-
dence does not support a pnma facie case, I could
dismiss those 8(a)(3) allegations
For the reasons stated by the judge, I agree with
my colleagues that the Respondent, through its at-
torney, violated Section 8(a)(1) of the Act by inter-
viewing employee Brenda Mankos concerning
union activities and matters involving a forthcom-
ing unfair labor practice proceeding without pro-
viding her with the necessary affirmative safe-
guards
Susan Stahl, Esq and Barbara C Joseph, Esq , for the
General Counsel
William H Fitzgerald, Esq and Oldnch Foucek III, Esq ,
of Allentown, Pennsylvania, for the Respondent
DECISION
STATEMENT OF THE CASE
RICHARD H BEDDOW JR , Administrative Law Judge
This matter was heard in Bethlehem„ Pennsylvania, on
March 6 and 7, 1989, and briefs' subsequently were filed
by both parties Upon motion of the General Counsel the
proceeding was reopened and a further hearing was held
in Philadelphia, Pennsylvania, on November 7, 1989, to
consider allegations in an amendment to the complaint
Supplemental briefs were filed The proceeding is based
upon a charge filed July 20, 1988, 2 by Umted Food And
Commercial Workers Local 1357, AFL-CIO-CLC The
Regional Director's complaint dated September 30, al-
leges that Respondent Parkway Manor-Village Inn, Inc,
of Allentown, Pennsylvania, violated Section 8(a)(1) and
(3) of the National Labor Relations Act by discharging
one employee and issumg a disciplinary warning to an-
other because of their union or other protected concert-
ed activities
The General Counsel also moved at the start of the
initial hearing to amend the complaint to allege that Re-
spondent, acting through its attorney, also violated Sec-
tion 8(a)(1) of the Act by interviewing an employee
without assuring the employee that her participation in
the interview was wholly voluntary or that no reprisals
would take place as a result of the interview The motion
was denied, however, in response to the General Coun-
sel's appeal the administrative law judge was directed by
the Board to permit the amendment and, accordingly,
the amendment was received at the further hearing
On review of the entire record in this case and from
my observation of the witnesses and their demeanor, I
make the following
FINDINGS OF FACT
I JURISDICTION
Respondent is engaged in the operation of a restaurant
in Allentown, Pennsylvania During 1988 it derived
gross revenues m excess of $500,000 and it annually pur-
chases and receives supplies and materials valued in
excess of $50,000 directly from points outside Pennsylva-
nia It admits that at all times material is it has been an
employer engaged in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the
Act It also admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
In 1987 Robert Sumer became Respondent's sole
owner Previously, he had operated restaurants for 35
years, including 12 years as a part owner of the Re-
spondent The restaurant is a general purpose, "up scale"
family style restaurant with approximately 100 to 110
employees Most of the approximately 40 waitresses em-
ployed at the restaurant work part-time as does Stinner's
wife, Joyce &inner, who works as a hostess (taking
names, sometimes seating customers, sometimes busing
tables and other miscellaneous duties), on Saturday eve-
mngs and some Sundays and holidays Gregory War-
denslu has been manager of the dining area 1-1/2 years
and supervises all waitresses Otherwise, Joyce Stmner
not shown to hold a title or to exercise authority that
would indicate that she was a statutory supervisor
The Union began an organizing campaign at the Re-
spondent's restaurant in response to a call on May 9 from
Kathryn Spencer and it scheduled a meeting for May 24,
to be held at Spencer's home Spencer worked regularly
The General Counsel's motion to correct the transcript dated April
27, 1989, is granted and received into evidence as 0 C Eidi 3 2 All following dates will be in 1988 unless otherwise indicated
578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as a waitress at the restaurant between April 1980 and
this time, without incident or pnor chiciplme
Employees were told of the planned union meeting by
Spencer through telephone calls to their homes or con-
versations while at work Approximately 10 employees,
mostly waitresses, attended the meeting The union rep-
resentatives spoke about unionization and handed out
union literature and authorization cards
In early June, 2 weeks after the May 24 meeting, a
second meeting was held at Spencer's home An employ-
ee organizing committee was formed and plans were
made to go forward with the organizing campaign The
majority of the five employees at the June meeting were
kitchen employees who had not been at the first meeting
A third meeting scheduled for Spencer's home on July
19 It was attended by different kitchen employees, how-
ever, no organizational activities took place but those in
attendance discussed Respondent's discharge of Spencer
which had occurred 2 days earlier Subsequent to that
meeting no further union activity occurred
Between the May 24 meeting at Spencer's home and
the time of her discharge, Spencer distributed union liter-
ature and authorization cards to employees who had not
attended the meetings She also engaged in numerous dis-
cussions about the Union with employees at the Village
Inn Often these discussions took place m one of the
booths in the East Wmg of the restaurant where the
waitresses would have their meals or sit and talk at the
end of their shift Spencer also testified that she had dis-
tributed authorization cards in the restaurant's kitchen
On May 9, the same day Spencer called the Union, she
sent a letter addressed to Joyce and Bob Shinier which
described the difficulties endured during her previous
day's work (Mother's Day) which extended from 10 30
a m to 10 p m The letter went on to say
2 We are not tuuon members—but if we were
we would get a break to sit down to eat and to rest
No one should be required to work 11 hours
straight through without a break and a meal
3 The main dining room last night was where
the people should have been seated who came in
late Kris and I were there long after the waitresses
who came in at 3 30
After so many faces, so many dinners and so
many lousy tips, it is pretty difficult to do a nice job
of waiting on people that come into the restaurant
later in the evening I did feel quite bad for my 800
customers who got a tired, irritable, and crying
waitress What kind of a way is that to run a restau-
rant9
I used to care about the work I did, and the
place that I worked for When I realize now that my
employers don't care at all about me—I wonder
why do I go the extra yard and care about their
restaurant? Over the years, the people who work at
the Village Inn have had a drastic change in atti-
tude I understand why A little kind consideration,
a few words of thanks—these things would make a
great difference
Because you, Bob and Joyce, are the ones who
own this restaurant, I had to write to tell you how I
felt You can't expect people to to continue to give
blood and give them no care in return Your restau-
rant will surely fail
At work that previous day Spencer had had a conflict
with Joyce Stmner over Stmner's seating customers in
Spencer's station at just before 8 p m when Spencer was
exhausted, had a headache after workmg all day, and ex-
pected to end her shift and go home Spencer told Stm-
ner that she did not want to take anymore tables, howev-
er, Stmner seated the customers in Spencer's area and
Spencer (and her daughter, also a waitress), served them,
even though she was upset and in tears at the time
Stmner testified that she knew that Spencer was upset
at having to serve the customers late in the evening but
said she did not think too much of their discussion, as
everyone was "testy" because of the heavy busmess that
day Approximately 1 hour later, however she told her
husband what had occurred Stmner testified that he also
did not find the incident to be a problem, said he placed
no significance on the mcident, and did not give Spencer
any discipline for her behavior
After receiving the letter, Joyce Stmner testified that
she read it once and did not think much of it one way or
the other but showed it to Robert Stmner when he re-
turned home She testified that he reacted with anger
and told her he should fire Spencer because they had
been in busmess for a long time and they should not
have a waitress working for them who would tell them
their business would fail He testified that he was upset
by Spencer's criticism of the way he ran his business and
said he thought her reference to a union was just a term
of speech
On July 6, a second mcident occurred mvolvmg Spen-
cer when she was requested to prepare an order for a
takeout customer She prepared the order and, without
the customer's approval, added a gratuity to the check
The total check was paid by the customer but subse-
quently the customer contacted Robert Stmner complain-
ing about the fact that the tip was added to the takeout
order and was not authorized by the customer Stmner
directed Wardensla to bring this matter to Spencer's at-
tention, to get the tip back from her, and return it to the
customer When Wardenski did so, Spencer said that she
would not do takeout orders any more, however, War-
denslu made no further comment
Sally Miller, a 14-year employee of Respondent, testi-
fied that on Saturday evemng, July 16, she was in the
kitchen taking a cigarette break when she was ap-
proached by Joyce Stmner and asked if she could do a
takeout order She answered Stmner with a simple "no"
without any explanation as to why, and Stainer said
nothing further to her Miller further testified that her
answer to Stmner's request was not made rudely, loudly,
or emphatically Miller went about her regular work
after this encounter, however, at the end of the shift she
was reprimanded by Wardensla for declining to do the
takeout order Miller also said there were other occa-
sions when she had declined to do a takeout order but
she had never been disciplined for doing so
Joyce Stmner testified that just prior to Miller's refusal
she had made the same request of Spencer who an-
PARKWAY MANOR-VILLAGE INN 579
swered with a plain "no" that Stmner described as being
spoken "not nicely like a verbal slap in the face"
Stmner first testified she then asked Miller to take the
order and that Miller said, "No, I cannot" Stmner then
corrected herself and said I really think it was Kathy
Ambrosmo I asked next and she said, "No I am really
busy" She next asked a waitress named Greta who re-
fused by wavering her order slips at Stmner and saying
that she "just got slammed" Finally, another waitress
was asked and agreed to do the order Stinner then went
to Wardenski and complained that Miller and Spencer
"had something going between them," that it seemed like
pick on Joyce night, the way she was treated, that some-
thing had to be done about take-out, and that Spencer
had "really yelled at me"
Within 20 minutes of the incident Stmner went upstairs
(describing herself as being really upset and Just about in
tears), and told her husband that "they are really angry
with me for some reason and I do not know why and I
am really upset about it" and that Spencer "just said no
and she practically spit it at me" Robert Stmner replied
that Spencer might be upset about a recent tip complaint
from a customer
Wardenski testified that Joyce Stmner told him of
having a problem getting somebody to get a takeout
order, that Spencer had given her a "flat" derual and the
other girls had said no, they were busy He then spoke
with Spencer and asked her why she did not take the
order and told her she was only going to create waves
Wardenski said that Spencer replied she would have
done it if he had asked, and Wardenski replied "that is
even worse" He did not report the conversation to
anyone else, however, later that evening Robert Stmner
came downstairs and told him to discharge Spencer and
give Miller a warning, "because nobody talk to my wife
like that"
Wardenslu gave Spencer a note to call him at home
and when she did not call that evemng he called her the
next morning and told her she would not be put on the
schedule anymore Spencer said, "Does this mean I'm
fired?" and Wardenslu said, "Yes" When Spencer asked
why he replied, "For refusing to take the takeout"
Joyce Stmner testified that when her husband came
home the next evening he told her that Wardenslu had
fired Spencer because she had put them through a lot of
hassle over the takeout order tip and that "it all was
building up" He also said he did not like Spencer's treat-
ment of his wife the previous day and said there also was
"the letter
Wardenslu testified that he had no meetings with Stm-
ner to discuss the Union's organizational attempt He also
said his general consensus about Spencer's work was that
"it was not that bad" and agreed that he probably had
told another waitress after Spencer was fired that Spen-
cer was a good worker He also said that this waitress
had asked him if Spencer was fired because of the Umon
and that a number of people were upset over her firing
Robert Stumer testified that his wife was "very upset"
when she told him about Spencer's refusal to take the
takeout order and said that Spencer had Just said no,
"not very polite like and very loud and she embarrassed
her" He agreed that he became upset and then told
Wardenski "that was it I cannot take it anymore One in-
cident after another lets get nd of her" He also ad-
mitted that the other incidents he referred to included
the Mother's Day and tip incidents and Spencer's letter
He further testified that he discharged Spencer because
she "abused" his wife and he Just did "not need that type
of aggravation"
Stmner admitted that around mid-June a waitress told
him that there was union activity occurring and his affi-
davit, confirmed by his reluctant testimony, indicated
that he suspected that Kathy Spencer was one of the em-
ployees involved in the Union
Other witnesses credibly testified that everyone, in-
cluding the waitresses and the kitchen employees, was
talking about the union campaign or passing out authori-
zation cards or union literature at the Respondent's res-
taurant in break areas, kitchen areas, and the parking lot
and where they could be heard or observed, especially
by Manager Wardenski
Although Wardenslu said he was "not sure" if Spencer
was involved in the Union, he testified that it was true,3
that at the time he fired Spencer he had heard rumors of
earlier union activity and information that the Union had
met at Spencer's house He also admitted that "sometime
in June" he had heard from Joyce Stmner that a few em-
ployees were trying to start a Union He mentioned this
to Robert Stmner who "Just laughed and shrugged it
off" Wardenslu also said it was possible he heard about
the meeting at Spencer's house from Joyce Stumer
Joyce Stmner testified that "in late spring or early
summer I really do not know it may have been
three or four weeks after Mother's Day," she became
aware that the employees were talking among them-
selves about forming a union and asked her husband
whether he had heard about it and he said he had but
didn't discuss it further
At the further heanng it was established that 10 days
before the initial hearing around 3 p m on Friday, Feb-
ruary 24, Manager Wardenslu called employee Brenda
Mankos at her home and asked her how soon she could
come into work that day because the lawyer for Stinner
was there and he wanted to talk to her Mankos said she
could probably be in by around 4 p as depending upon
when her husband got home from work that day
After Mankos' conversation with Wardenski, she con-
tacted Board Attorney Susan Stahl, who had subpoenaed
her for the March 6 hearing Mankos said she called the
Board attorney because she did not know if it was
proper for her to speak with Respondent's counsel be-
cause she had been subpoenaed by the National Labor
Relations Board Attorney Stahl told Mankos it was her
decision as to what she wanted to do and there was
nothing wrong with Mankos talking to Respondent and
its counsel Stahl also told her, however, that Respond-
ent was supposed to tell Mankos that she was there vol-
untarily and had to inform her of what they wanted and
assure her that she would not lose her job
Respondent's attorney, W\dham Fitzgerald, had inter-
viewed three other waitresses, including Cindy Brugger,
3 He affirmed statements contained m his affidavit to a Board agent
580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
earlier that same day before Mankos was called Brugger
was called as a witness by Respondent and testified that
prior to the interview he told them they did not have to
speak with him, it was voluntary, that nothing they said
could be used against them, and that nothing would
happen to them It was further established, however, that
Brugger joked with Fitzgerald about bemg warned of
her "nghts" and that she had initiated the meeting after
she had received a subpoena from the Board She testi-
fied that she first went to Owner Stmner about the sub-
poena and that he said he would take care of setting up a
meeting with his lawyer to answer her questions and ex-
plain what was going on Two other waitresses who had
been subpoenaed came to work at that same time and the
three spoke with Fitzgerald and Stmner, first individual-
ly and then as a group Brugger volunteered to Respond-
ent that she had met with a Board agent and explained
what had occurred, including her comment to the agent
that she did not know what the agent wanted from her
and the agent's response that she felt Brugger was hold-
ing back She testified that she was not asked by the
agent if she was for or against the Union but admits that
she was against the Union She was never called as a
witness
Fitzgerald testified that after he spoke with the other
waitresses, Mankos came to Stmner's office later the
same afternoon Stmner remained during the whole
period Fitzgerald testified that after introducing himself,
he said he
thanked her for coming m and I appreciated that
she was busy and that she was working later and I
appreciated her talung the time to meet with me,
advised her that it was not necessary for her to do
that and that certainly she did not have to but I ap-
preciated the cooperation and I told her that I
wanted to talk to her in connection with the hear-
ing that was coming up on March 6 in connection
with an unfair labor practice charge that had been
filed, that the subject was the discharge of Kathryn
Spencer, a former employee and that I was—I
would be inquiring as to what Ms Mankos knew of
that particular incident and the events leading up to
it
As I was going through that, I indicated to her
that it was my understanding that she had been sub-
poenaed to appear at the hearing I was going for-
ward with my, which is my general discussion with
a witness in terms of voluntariness of the statement
that they did not have to talk to me but I appreciat-
ed them doing so At that point she interrupted and
complained that she did not want to be involved
She did not know why she was here, that she was
upset
She was very nervous and agitated, I could see
that as I was talking with her She did not want to
be here, did not want to be involved, did not like
the subpoena I stopped what I was saying to her at
that tune and said, I cannot do anything about that
Of course, I was trying to calm her down and also
to, knowing that I wanted to continue my question-
mg later, she was again anxious about having to tes-
tify She said that she did not want to be subpoe-
naed, did not want to be involved
I told her that that was not my doing, that I
wanted her to understand that neither Mr Stinner
nor myself had subpoenaed her and expected her to
appear, that if she had a problem with this, she was
that concerned about it, she should talk to the
Board Agent It was the Board Agent who had sub-
poenaed her not me
Q Did she express to you fear about losing her
job if she cooperated with you?
A Not at that point, no
Q Okay, did she at anytime during this inter-
view, express that concern to you?
A Yes, later on in the discussion after we had
gotten back on track, I went through with her ex-
actly what I wanted to talk to her about, about
events leading up to the discharge of Kathryn Spen-
cer and what information that she might have and
the fact that no one, she had nothing to fear that
Mr Stmner was here and I was there That there
would be no reprisals, that I just wanted to get the
facts All that I was interested in talking to her
about was the issue on the upcoming hearing, that I
would not question her about anything having to do
with her own Umon activity, Union membership,
Union sympathy I indicated to her that I did not
want to know about whatever the sympathies were
of any of the employees that we were going to talk
about
Q Okay, then to what topic or subject matter did
the interview progress?
A The interview then got into an area for some
reason, I had been aware that she was alleging that
Mr Wardenslu had made a statement to her about
Union—the Umon having something to do with
Kathryn Spencer's discharge and that was totally—
a totally new fact In all of the discussions in the
preparation of the case, there was no mention of
this fact It was brand new and I asked her about
the conversation that she had with Mr Wardenslu
or was alleged to have had with him, either the
night of or the night following Kathryn Spencer's
discharge At that point, she said I do not want to
answer that
Q Okay, what did you say to her at that time?
A I told her that I was anxious to know that in-
formation, that it would be helpful, that it had to do
with the trial that was coming up and it would be a
big help to me and Mr Stmner if we knew what we
were facing in terms of what facts were going to
come out at the hearing
She again indicated that she did not want to do it
and I think that I tried for another approach that
well, we are just looking in terms of fairness to de-
velop facts, that is all that we really want You do
not even have to tell me what you said I do not
care what you said, just what did Mr Wardenslu
say She again said, I do not—I am not going to tell
you about it I am not going to tell you about it
PARKWAY MANOR-VILLAGE INN 581
I think that it was at that point that she made a
comment, that she was afraid of losing her job and
Mr Stinner piped up and said, nobody is going to
lose their job over this or something to that effect
and Brenda seemed to be—to accept that and at
that point, I thanked her again for coming in and
told her if there were any other questions or facts
that we might get back to her but again thanked her
for her cooperation and told her not to be nervous
and wished her well and that was it
Q Just so that we have the record clear, did Ms
Mankos continue to refuse to answer questions con-
cerning the Wardensla incident even after Mr &In-
ner assured her that her job was not in jeopardy?
A Yes
Mankos testified that Fitzgerald introduced himself as
Stmner's lawyer, shook her hand and asked her to sit
down, and asked her if she had been subpoenaed for
Kathy Spencer's hearing She replied that she had Fitz-
gerald then said Mankos was not there because of them,
that Respondent had not subpoenaed anyone and they
were not putting her through this
Later in the interview, Mankos addressed Stmner and
told him that she did not have anything against him, that
she was afraid for her job, and did not want to lose it
Stumer replied that she would not lose her job, that very
few people got fired from there
Fitzgerald then asked Mankos about an incident on
Mother's Day between Shriner and Spencer, and an inci-
dent on a Saturday mght when Spencer refused to do a
takeout order Mankos answered these questions, but
when Fitzgerald then asked her about a conversation she
had had with Manager Wardenski the day after Kathy
Spencer had been fired, Mankos said she did not want to
talk about that conversation Fitzgerald replied that Re-
spondent felt they had a right to know what they would
be up against, what the other side's case would be
Mankos restated that she did not want to talk about the
conversation and wanted to wait for the hearing Fitz-
gerald then said, "Well, you know what you're [sic] tes-
timony is going to be, don't you?" Mankos replied she
did, but she wanted to wait for the hearing Fitzgerald
then asked her if she had anything else to say and she
said no
Mankos also testified that at some point during the
meeting Fitzgerald also asked her if she had met with the
Board agent Even though she had met with the Board
agent, Mankos said no because she was afraid Stmner
would hold it against her and she was afraid of losing
her job She also said the interview lasted 20 minutes and
that Wardenslu stopped in for a minute
Mankos further testified that at no time did anyone tell
her the purpose of Fitzgerald's questionmg or that her
participation in the interview was voluntary and that
except for Stmner's response to her statement about
being afraid for her job, no one specifically assured her
that there would be no reprisals or that nothing would
happen to her if she did or did not participate in the
interview
III DISCUSSION
The issues in this case arose from events which oc-
curred contemporaneously with a union organizational
drive at Respondent's restaurant and resulted in the dis-
charge of one long-term employee and the disciplinary
warning to another
In a discharge case of this nature, applicable law re-
quires that the General Counsel meet an initial burden of
presenting sufficient evidence to support an inference
that the employee's union or other protected concerted
activity was the motivating factor in the employer's deci-
sion to terminate or discipline the employee Here, the
record shows that both disciplinary actions were ordered
by Owner Robert Stmner It also is clear that Stmner re-
ceived a letter from waitress Spencer in which she com-
plained about working conditions and specifically re-
ferred to union membership, saying
We are not union members—but if we were we
would get a break to sit down to eat and to rest No
one should be required to work 11 hours straight
through without a break and a meal
It also is clear that Spencer held several union organi-
zational meetings at her home that were attended by nu-
merous employees, that she engaged in discussion of the
Umon with employees and in the distribution of union
literature at the Respondent's restaurant, and that other
employees were aware of and discussed the union cam-
paign at work Although Manager Wardenslu said he
was "not sure" Spencer was involved, he admitted he
had heard rumors about the Union, including a rumor
that a meeting was held at Spencer's house that he said
he could have received from the wife of the Respond-
ent's owner Owner Stainer and his wife admitted their
awareness of union activity and Stmner admitted that he
"suspected" Spencer was one of those involved
As otherwise indicated above, Joyce Stmner admitted-
ly complained that Spencer and Miller "had something
going between them" when she described their turn-
down of the takeout order and told her husband about
the incident
Respondent's owner reacted to the latter information
by telling his manager to discharge Spencer and to warn
Miller because he could not take it anymore, "one inci-
dent after another" Stmner admitted that the letter from
Spencer was one of the incidents He also reacted imme-
diately and to the last so-called incident, without further
investigation, an action which otherwise is found herein
to infringe upon the employees' Section 7 rights
Under these circumstances, I find that the General
Counsel has met his initial burden by presenting a prima
facie showing, sufficient to show antiunion animus and to
support an inference that Spencer's union activities were
known to Respondent and were the motivating factor in
Respondent's decision to terminate her It also is shown
that Miller was suspected of acting in concert with Spen-
cer and therefore it also is inferred that the decision to
discipline her also was motivated by the same reason
Accordingly, the testimony will be discussed and the
record evaluated in keeping with the criteria set forth in
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wright Line, 251 NLRB 1083 (1983), see NLRB v Trans-
portation Management Corp, 463 U S 393 (1983), to con-
sider Respondent's defense and, in the light thereof,
whether the General Counsel has earned his overall
burden
Respondent's principal defense is based on its conten-
tion that the discharge and warning were an appropriate
and nondiscriminatory response merited by the employ-
ees' actions toward the owner's wife
First, it is observed that Joyce Stmner was not a statu-
tory supervisor She functioned as an employee and had
no special business status because of her relationship to
the owner It otherwise is not shown that any employee
engaged in any insubordinate conduct towards a supervi-
sor Manager Wardenslu's testimony that Spencer said to
him that she would have handled the takeout order if he
had requested it, must be considered to be an indication
that she in fact did not engage in insubordinate conduct
When Owner Robert Stmner learned from his wife
that employees Spencer and Miller had declined to
accept separate requests that they handle a takeout order,
he faded to respond in any appropriate businesslike fash-
ion, even though the incident clearly was a business
rather than a personal matter He made no investigation
whatsoever and did not ask the two allegedly hostile
waitresses, other employees who may have been present,
or his manager for any information whatsoever, instead,
he immediately directed the manager to terminate Spen-
cer and to warn Miller Most significantly, Stmner admit-
ted that the takeout order rejection was considered as a
final incident involving Spencer after her involvement in
other incidents which included her critical letter that
mentioned union membership
Here, I credit Miller's testimony that she replied to
Joyce Stmner with a plain "no," without further explana-
tion, inasmuch that Joyce Stmner's mitial testimony that
Miller said "no, I cannot" was qualified by her following
comment that "I really think it was Kathy Ambrosmo
that I asked next and she said no, I am really busy" I
further find that if Robert Stmner or Manager Wardenslu
in fact had investigated the incident it would have been
disclosed that in addition to Spencer and Miller at least
two other waitresses had rejected the takeout order, yet
no others were mentioned in Joyce Stmner's complaint
I also find that an investigation would have disclosed
that Stmner's apparent perception that Spencer had
"really yelled at me" was an embellishment of what she
later testified to was an answer of plain "no," "spoken
not nicely"
Here, I find that both Spencer and Miller had actually
answered "no," without yelling, in a flat tone that con-
veyed reluctance rather than hostility or insubordination
and therefore neither Spencer nor Miller could accurate-
ly be found to have engaged in the conduct of which
they were accused of by Joyce Stmner
In summation, I conclude that the allegedly critical
complaint against Spencer and Miller boils down to the
fact that they "just said no" to a request from another
employee (with no supervisory authority), to perform a
task m addition to the regular duty they were perform-
ing
Otherwise, it was not established that waitresses en-
gaged in working tables in the dining room were obligat-
ed to also do takeout work and it was not shown that a
refusal to do a takeout order was a violation of estab-
lished work rules Two waitresses rejected the assign-
ment with a "no, I can't" or a "no, I'm busy," however,
there is no indication of what tone of voice was in-
volved The actions of these other employees, who were
not disciplmed, were not even considered by manage-
ment in its rush to judgment on Spencer and Miller
There also is no plausible explanation for the disparate
treatment in the discipline that was given to Spencer and
Miller However, under the circumstances, especially
Robert Sunner's testimony noted above, I infer that it
was because of Stmner's perception of Spencer's most
prominent association with the Union As otherwise
noted, Joyce Stinner expressed her suspicion that Spen-
cer and Miller "had something going between them" and
I infer that Miller's alleged association with a suspected
union advocate was the motivating factor in her selec-
tion for a disciplinary warning
In conclusion, I find that the person perceived to be
the leading advocate for the Union, Spencer, was sum-
marily terminated without any investigation of the accu-
racy of the complaint against her or evaluation of possi-
ble mitigating circumstances or consideration of some
lesser degree of pumshment, despite her many years of
service as a satisfactory and effective employee Under
these circumstances, I conclude that the record support a
conclusion that the Respondent seized upon an apparent
opportunity to immediately rid itself of the most promi-
nent union advocate Its extreme and precipitous retalia-
tion for an unmvestigated and minor offence clearly is in-
dicative of the pretextual nature of Respondent's defense
and I find that it supports a conclusion that Spencer's
discharge was motivated by a discriminatory intent based
on her union activities
I further conclude that Respondent has failed to show
that Spencer would have been discharged absent her
union activities The General Counsel otherwise has met
its overall burden of proof and I find that Respondent's
discharge of Spencer is shown to have been in violation
of Section 8(a)(1) and (3) of the Act, as alleged
It also is clear that Miller's perceived association with
Spencer's activities was the controlling factor m her se-
lection for discipline and I find that Respondent's warn-
ing to Miller is shown to be unjustified and illegally mo-
tivated and a violation of Section 8(a)(1) and (3) of the
Act, as alleged
Turning to the additional issue of Respondent's alleged
improper interview of an employee prior to the hearing,
I find that the General Counsel has shown the applicabil-
ity of the Board's mandate in Johnnie's Poultry Co, 146
NLRB 770 (1964), a decision that qualifies the privilege
that an employer has to interrogate employees on mat-
ters concerning preparation of a defense for use in an
unfair labor practice trial In balancing this employer
privilege against the "mherent danger" to employees of
coercion, the Board requires that
he employer must commumcate to the employee
the purpose of the questioning, assure him that no
PARKWAY MANOR-VILLAGE INN 583
reprisal will take place, and obtain his participation
on a voluntary basis, the questioning must occur in
a context free from employer hostility to union or-
ganization and must not be itself coercive in nature,
and the questions must not exceed the necessities of
the legitimate purpose by prying into other union
matters, eliciting information concerning an employ-
ee's subjective state of mind, or otherwise interfer-
ing with the statutory rights of employees
Here, I credit the testimony of witness Mankos as
being the most accurate description of what occurred
during her interview by the Respondent's attorney I fur-
ther find that this testimony shows that she was not af-
forded the safeguards required by the Board's mandate 4
When Mankos was asked to come to the workplace to
be interviewed she was sufficiently apprehensive about
Respondent's request that she first called the Board's at-
torney for advice She was advised that Respondent's re-
quest was not improper, however, she specifically was
told that she had to be informed by the Respondent of
her "rights" Accordingly, I find that she was highly
likely to recognize and recall the details of the occur-
rence, especially those matters pertaining to the expected
assurances concerning her "rights" against reprisal, etc
Witness Fitzgerald, on the other hand, while admitting
to a generalized acquaintanceship with the safeguard re-
quirements of Johnme's Poultry, appears to have mini-
mized the significance of these provisions His testimony
and that of Respondent's witness Brugger show that they
joked about these "nghts" when he discussed them in
early interviews that same day The fact that he first
stated these "rights" to Brugger is not evidence that he
fully repeated them in his latter interview of Mankos
Moreover, Fitzgerald's own testimony indicates that he
merely was quickly summarizing the gist of what he as-
sumed he would have said under the circumstances
I credit Mankos' testimony that Fitzgerald omitted any
reference to assurances against any reprisals and that
nothing was said in this regard until Mankos herself
interjected that she feared for her job At this point she
was told by Stmner, not Fitzgerald, that "she would not
lose her job, that very few people got fired from there"
It is noted that even this statement offers no assurance
against some other form of reprisal Moreover, it is un-
likely that Mankos, who was an alert and forthright wit-
ness, would have asked about job security if she already
had been given assurance against reprisals I also credit
Mankos' testimony that Fitzgerald did not tell her the
specific purpose of the interview or that it was voluntary
and protected against reprisals
As noted by the General Counsel, Owner Stmner was
present at both Fitzgerald's interview with Mankos and
throughout the further hearing, yet was not called as a
'The Respondent cites the decision of U S Court of Appeals for the
Sixth Circuit in Dayton Typographic Service v NLRB, 778 F 2d 1188 (6th
Or 1985), which, in effect, qualifies the requirements of Johnnie's Poul-
try, and substitutes the "coercive" test for evaluating the legality of an
alleged 8(a)(1) Interrogation as set forth in Rossmore House, 269 NLRB
1176 (1984) Inasmuch as the involved matter is not within the jurisdic-
tion of the Sixth Circuit and Inasmuch as I otherwise conclude that the
evidence shows coercive elements in the interview, I find that Respond-
ent's argument in this respect is inapplicable
witness to corroborate Fitzgerald's testimony even
though he had previously testified at the earlier hearing
Accordingly, and in response to the General Counsel's
request, I find that this warrants the drawing of an ad-
verse inference and I therefore conclude that if Stinner
had testified further, his testimony would have been con-
sistent with that of witness Mankos
The record also shows that at one point in the inter-
view Fitzgerald persisted in asking Mankos about a con-
versation she had with Manager Wardenski, even though
she expressed a desire not to talk about it It also appears
that Fitzgerald adopted an authoritative posture during
the interview which conveyed the coercive impression
that his questions and statements were entitled to accept-
ance and obedience Whereas Fitzgerald's earlier inter-
view with Brugger was essentially that of a friendly wit-
ness, who apparently was eager to curry favor with the
Respondent, the latter interview with Mankos was
sought by the Respondent under conditions where she
was requested to hurry to work early and it was decid-
edly more hostile in nature Contrary to Respondent's as-
sertion that Mankos should be discredited for lying to
Fitzgerald during the interview, I find that her denial to
Fitzgerald's question which asked if she had met with a
Board agent (which she testified was done because she
was afraid Stmner would hold it against her and she
would lose her job), tends to show the actual coercive
effect that the interview was having upon the witness It
also appears that the constant attendance of Owner Stm-
ner during the interview (conducted in his office) also
had an intimidating effect
In addition to the question about meeting with a Board
agent, Mankos also initially was asked if she had been
subpoenaed by the Board (and answered she had) Ques-
tions concerning whether employees have given state-
ments to the Board or have been interviewed by Board
agents have been found to be coercive in nature and out-
side the conduct of permissible inquiry by an employer
or his agent See Montgomery Ward & Co, 155 NLRB
482, 488 (1965), and Johnnie's Poultry, supra at 775 fn 12
Under these circumstances, I find that the credible evi-
dence shows that Respondent's attorney failed to advise
employee Mankos of the full safeguards required by the
mandate of Johnme's Poultry, that her interview was con-
ducted without benefit of these safeguards, and that such
interview was coercive in nature and in violation of Sec-
tion 8(a)(1) of the Act, as alleged
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
2 By giving a disciplinary warning to Sally Miller and
discharging Kathryn Spencer on July 1, 1988, respective-
ly, Respondent engaged in unfair labor practices m viola-
tion of Section 8(a)(1) and (3) of the Act
3 By interviewing employee Brenda Mankos concern-
ing union activities and matters involving a forthcoming
unfair labor practice hearing without providing her with
the necessary affirmative safeguards, Respondent thereby
interfered with, restrained, and coerced her in the exer-
cise of her rights guaranteed in Section 7 of the Act,
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thus engaging in an unfair labor practice within the
meaning of Section 8(a)(1) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, it is recommended that the Respondent
be ordered to cease and desist therefrom and to take the
affirmative action described below which is designed to
effectuate the policies of the Act
With respect to the necessary affirmative action, I rec-
ommend that Respondent be ordered to reinstate Kath-
ryn Spencer to her former job or a substantially equiva-
lent position, without prejudice to her seniority or other
rights and privileges previously enjoyed, and make her
whole for any loss of earnings she may have suffered be-
cause of the discrimination practiced against her by pay-
ment to her a sum of money equal to that which she nor-
mally would have earned from the date of the discnmi-
nation to the date of reinstatement, in accordance with
the method set forth in F W Woolworth Go, 90 NLRB
289 (1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987), 5 and that Re-
spondent expunge from its files any reference to Spen-
cer's discharge, as well as the unlawful warning to Sally
Miller and notify them in writing that this has been done
and that evidence of this unlawful discipline will not be
used as a basis for future personnel action against them
Otherwise, it is not considered to be necessary that a
broad order be issued
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
ORDER
The Respondent, Parkway Manor-Village Inn, Inc ,
Allentown, Pennsylvania, its officers, agents, successors,
and assigns, shall
1 Cease and desist from
(a) Issuing a warning to employees or otherwise dis-
criminating against them because of their activities in
support of union affiliation for purposes of collective-bar-
gaining representation or otherwise engaging in protect-
ed concerted activities
(b) Discharging any employee for activity protected
by Section 7 of the Act
(c) Interviewing employees concerning union activities
and matters involved in pending unfair labor practice al-
legations in a manner which interferes with the nghts
guaranteed them in Section 7 of the National Labor Re-
lations Act
5 Under New Horizons, Interest is computed at the short-term Federal
rate for the underpayment of taxes as set out in the 1986 amendment to
26 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Steel Corp. 231
NLRB 651 (1977)
° If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(d) In any like or related manner interfering with, re-
straining, or coercing its 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 Kathryn Spencer immediate and full rein-
statement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her semonty or any other rights or privileges
previously enjoyed and make her whole for the losses
she incurred as a result of the discrimination against her
in the manner specified in the remedy section of the de-
cision
(b) Expunge from as files any reference to the warning
to Sally Miller and discharge of Kathryn Spencer and
notify them in writing that this has been done and that
evidence of the unlawful discharge and warning will not
be used as a basis for future personnel actions against
them
(c) Notify Brenda Mankos in writing of its assurance
that no repnsals will take place as a result of any matters
arising out of her interview by its attorney on February
24, 1989
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
records, reports, and other documents necessary to ana-
lyze the amount of backpay due under the terms of this
Order
(e) Post at its Allentown, Pennsylvania facility copies
of the attached Notice marked "Appendix " 7 Copies of
the notice, on forms provided by the Regional Director
for Region 4, after being signed by Respondent's author-
ized representative, shall be posted by Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
tices to employees are customarily posted Reasonable
steps shall be taken by Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
7 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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
Section 7 of the Act gives employees these rights
To organize
PARKWAY MANOR-VILLAGE INN

585
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT issue a warning to employees or other-
wise discriminate against them because of their activities
m support of union affiliation for purposes of collective-
bargaining representation or otherwise engage in protect-
ed concerted activities
WE WILL NOT discharge any employee for activity
protected by Section 7 of the Act
WE WILL NOT mterview employees concerning union
activities and matters involved in pending unfair labor
practice allegations in a manner which interferes with
the rights guaranteed them in Section 7 of the National
Labor Relations Act, as amended
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act
WE WILL offer Kathryn Spencer immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her semonty or any other nghts or privileges
previously enjoyed and make her whole for the losses
she incurred as a result of the discrimination against her
in the manner specified in the remedy section of the de-
cision
WE WILL expunge from our files any reference to the
warning to Sally Miller and discharge of Kathryn Spen-
cer and notify them m writing that this has been done
and that evidence of the unlawful discharge find warning
will not be used as a basis for future personnel actions
against them
WE WILL notify Brenda Mankos that no reprisals will
take place as a result of any matters ansmg out of her
interview by our attorney on February 24, 1989
PARKWAY MANOR-VILLAGE INN, INC