Piccadilly Cafeterias, Inc.

National Labor Relations Board - Board Decisions

Sep 13, 1977

231 N.L.R.B. 1302 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Piccadilly Cafeterias, Inc. and Retail Clerks Union,
Local 210, chartered by Retail Clerks International
Association, AFL-CIO. Cases 15-CA-5954, 15-
CA-5954-2, 15 CA-5954-3, and 15-RC-5797
September 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On February 4, 1977, Administrative Law Judge
Almira A. Stevenson issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent filed cross-exceptions and a brief in
support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order, except
as modified herein.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(1) of the Act by various
acts of its supervisory hierarchy which interfered
with, restrained, or coerced employees in the exercise
of their statutory rights. We affirm these findings. We
disagree, however, with the Administrative Law
Judge's failure to find that Respondent also violated
Section 8(a)(3) and (1) of the Act by terminating
Gloria Green, Dorothy Moody, Murray Washington,
and Bennette Glenn on December 13, 1975.
The Administrative Law Judge found that Green,
Moody, Washington, and Glenn were terminated for
economic reasons, and the basis for their selection
was job related. She concluded that the allegations
that the four employees in question were terminated
for discriminatory reasons were not supported by a
preponderance of the credible evidence.
As fully discussed by the Administrative Law
Judge in her Decision, and supported by the record,
the Respondent harbored strong union animus. Soon
after an election petition was filed by the Union the
end of October 1975, it sent a team of officials to
Shreveport for the express purpose of conducting a
campaign to dissuade employees from voting for the
Union.
t' he Respondent has excepted to certain credibility findings made by
the Administrative Laws Judge. It is the Board's established policy not to
overrule an Administrative law Judge's resolutions with respect to
credibility unless the clear preponderance olf all of the relevant evidence
231 NLRB No. 123
Each team member was assigned a certain group of
employees to interview, and based on a predesigned
interview form attempted to find out what problems
the employees had and to answer their questions.
Team members were instructed to and did contact
employees outside their assigned group and actively
attempted to persuade employees that they did not
need the Union. The team assembled about once a
week throughout the preelection period and discuss-
ed complaints voiced by employees and reported on
how they thought individual employees would vote,
as revealed from their contacts.
Although the team of officials was specifically
instructed not to ask questions or to engage in
conduct which would be violative of the Act, the
Administrative Law Judge found on the basis of
credible evidence that Respondent's officials, as well
as the majority of its supervisors, from the beginning
of the campaign engaged in coercively interrogating
numerous employees about their or other employees'
union activities, sentiments, or desires. In addition,
employees were promised job benefits if the Union
were not voted in and threatened adverse economic
consequences if the cafeteria were unionized. In
several instances employees were solicited to per-
suade others to support the Respondent's antiunion
campaign and were given the impression that there
was surveillance of employees' union activities.
The Respondent's campaign to defeat the Union
included several meetings with groups of employees
and the distribution of literature which pointed out
the disadvantages of belonging to a union and the
alleged malpractices engaged in by unions. During
the campaign Respondent's secretary-treasurer, Gar-
rett, with Assistant Manager Elias in attendance,
held several antiunion meetings with groups of
employees. At a meeting held on December 11,
Green, Moody, and Washington took issue with
Garrett's presentation and, as found by the Adminis-
trative Law Judge, Garrett became exasperated and
told Green, Moody, and Washington, as well as one
other employee, they would not be invited to any
more meetings because they had closed minds.
On December 13, 2 days after the above incident,
Assistant Manager LeBlanc called Green, Moody,
Washington, and Glenn to his office individually and
in the presence of District Manager Self and
Assistant Manager Elias told each of them that
because of newly opened eating establishments in the
area on December I and II business had fallen off
and Respondent had to reduce personnel for eco-
nomic reasons. The four employees were told that
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
1302
PICCADILLY CAFETERIAS, INC.
they had been selected because they were marginal
workers and that they would not be rehired in the
future. Each was nevertheless handed a Christmas
present of $80. Green's request to continue working
over the holidays was refused.
We note that all four terminated employees had
been hired when the Respondent's Shreveport
cafeteria first opened in August 1975, and they
enjoyed high seniority. Respondent admits that
seniority was not given any weight in its decision to
terminate the four employees and contends that the
selection was based on merit. Respondent pointed
out that the employees had in the past experienced
serious job difficulties, some of which it would
appear would have been sufficient at the time for
immediate dismissal.
Significantly, there is no evidence that the employ-
ees in question had ever received official reprimands,
had ever been suspended, or otherwise disciplined.
Glenn received a promotion and an increase in pay
during the period. We particularly note that the
termination took place almost immediately after
three of the employees involved had offended an
official of the Respondent by prounion remarks at an
antiunion meeting of assembled employees, and all
four terminations occurred less than a week before
the scheduled representation election.
As for the Respondent's contention that the
terminations were business motivated, contrary to
the Administrative Law Judge, we are unable to
agree that the evidence presented by the Respondent
supports this position. The Respondent's Shreveport
operation was a new business which opened in
August and the first full month of operation was
September. Although October's sales showed a
decline from September, November's sales showed
an increase over October. The Respondent in fact
expanded its payroll during November. While it is
true that sales for the month of December were down
about 5 percent from November, this fact was not
known to the Respondent at the time the termina-
tions were made. The accounting analysis which the
Respondent put forward to support the economic
basis for terminations at the hearing was admittedly
not prepared until a much later date.
I Member Murphy agrees that the discharges violated Sec. 8(aX3) and (l)
of the Act. In doing so, she finds it unnecessary to hold. as her colleagues
do. that the discriminatees were selected for discharge because of their
protected union-related activities. To be sure, their selection was suspicious:
set in view of certain credibility resolutions she believes that the record
tends to support the conclusions urged on us by the Respondent that in any
legitimate economic layoff the discriminatees would be the first to go. But.
as Ibund ahose. there was no legitimate economic layoff here: the economic
justiicat;ion was pretextual. Consequently. in view ,of that fact, the
background of extensive unlawful antiunion activity. and the timing.
Member Murphs finds that the purpose oft the layoff was to chill union
actisi[y among Respondent's employees and that except for such activity
there would have been no lavoff at times here relevant. It therefore follows
The Respondent's economic defense is further
weakened by the fact that, at the time it was claiming
financial hardship, Assistant Manager Elias hired a
floor assistant on December 11, 2 days before the so-
called reductions in force were made, and, on
December 14, a day after the terminations, Respon-
dent hired two additional employees: a customer
assistant and a pot washer. These were all jobs which
the terminated employees were capable of handling.
Moreover, at the same time it was claiming low
earnings, the terminated employees were each given
an accelerated Christmas bonus of $80. No explana-
tion was given for this generosity.
For all the above reasons we believe that the
economic basis for the terminations must be dis-
counted.
Because of the foregoing analysis of the evidence,
and a careful consideration of the record and
circumstances, including the Respondent's union
animus and illegal conduct, and the weaknesses of its
explanation of the timing and selection of the four
employees in question for discharges, we find that
the purported reasons for the December 13 termina-
tions were clearly pretextual. Accordingly, we find
that Green, Washington, Moody, and Glenn were
terminated for discriminatory reasons in violation of
Section 8(a)(3) and (1)2 of the Act.3
AMENDED REMEDY
Having found that Respondent discriminatorily
discharged Gloria Green, Dorothy Moody, Murray
Washington, and Bennette Glenn, we shall order it to
offer them reinstatement, with backpay computed on
a quarterly basis from the date of their discharge to
the date of an offer of reinstatement, as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950),
plus interest as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel
Corporation.4 Further, this conduct warrants issuance
of a board order. In all other respects, we adopt the
remedy recommended by the Administrative Law
Judge in the portion of her Decision.
that the discharges of Green. Washington. Moody. and Glenn were
discriminatory even if, as contended. they were selected for the layoff. not
because of their union activity. but because of their incompetence.
:' In view of our findings herein, we shall order that the ballots of Green.
Washington. Moody, and Glenn which were challenged at the election
conducted in Case 15-RC-5797 be overruled. and that these ballots be
opened and counted.
4 In accordance with our decision in Florida Steel Corporuaion. 231
NLRB 651 (1977). we shall apply (he current 7-percent rate for periods prior
to August 25, 1977. in which the "adjusted prime interest rate" as used by
the Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Piccadilly Cafeterias, Inc., Shreveport, Louisi-
ana, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as modified herein:
1. Delete paragraph l(b) and add the following:
"(b) Discharging employees in order to discourage
them from being or becoming union members or
supporting the union.
"(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act."
2. Add as paragraphs 2(a) and (b) the following,
relettering the present paragraphs accordingly:
"(a) Offer Gloria Green, Dorothy Moody, Murray
Washington, and Bennette Glenn immediate and full
reinstatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent jobs, without
prejudice to their seniority or other rights and
privileges, and make them whole for any loss of
earnings suffered by reason of Respondent's discrim-
ination against them in the manner set forth in the
'Amended Remedy.'
"(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this recommended
Order."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the challenge to the
ballots of Mary Clark, Linda Thomas, Jocelyn
Williams, Brenda Jones, Ruie Aleen Horton, Alvin
Bourke, and Willie Haskins, cast in the election
conducted in Case 15-RC-5797 on December 18,
1975, be sustained; that the challenges to the ballots
of Dorothy Goff, Deborah Cline, Azzie Jenkins,
Bennette Glenn, Gloria Green, Dorothy Moody, and
Murray Washington be overruled and those ballots
opened and counted; and that the Regional Director
shall issue and serve on the parties a revised tally of
ballots. If the revised tally of ballots indicates that
the Union has won the election, the Regional
Director shall issue the appropriate certification. In
the event the revised tally of ballots shows that the
Union has lost, that election shall be set aside and
the Regional Director shall direct a new election at
such time as he deems appropriate.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our em-
ployees about their or other employees' union
activities, sentiments, or desires; or create the
impression of surveillance of employees' union
activities; or imply that employees would receive
job benefits if Retail Clerks Union, Local 210,
chartered by Retail Clerks International Associa-
tion, AFL-CIO, is not voted in or that promo-
tions are a quid pro quo "no" vote; or solicit
employees to persuade others to support our
antiunion campaign; or promise to rectify em-
ployee grievances or other benefits to influence
votes; or threaten adverse economic consequenc-
es of unionization.
WE WILL NOT discharge employees in order to
try to discourage our employees from being or
becoming union members.
WE WILL offer Gloria Green, Dorothy Moody,
Murray Washington, and Bennette Glenn full
reinstatement to their former positions or, if these
positions no longer exist, to substantially equiva-
lent ones, without prejudice to their seniority or
other rights and privileges, and make them whole
for any losses they suffered because of our
discrimination against them, with interest.
WE WILL NOT in any other manner interfere
with, coerce, or restrain employees in the exercise
of the rights guaranteed to them by Section 7 of
the National Labor Relations Act, as amended,
PICCADILLY CAFETERIAS,
INC.
DECISION
STATEMENT OF THE CASE
ALMIRA ABBOT STEVENSON, Administrative Law Judge:
A hearing was held in this consolidated proceeding on June
21-25 and July 14-15, 1976, at Shreveport, Louisiana.
Retail Clerks Union, Local 210, chartered by Retail Clerks
International Association, AFL-CIO (Petitioner and
Charging Party, herein referred to as the Union), filed a
petition in Case 15-RC-5797 on October 20, 1975.
Pursuant to a Stipulation for Certification Upon Consent
Election, an election was conducted in the stipulated
appropriate unit on December 18, 1975. The vote was 40
for and 39 against the Union. There were 27 challenged
ballots, sufficient to affect the result. The Employer and the
Union filed objections. On December 19, 1975, the Union
filed and served on the Respondent the charge in Case 15-
CA-5954, and on December 29, 1975, filed and served the
APPENDIX
1304
PICCADILLY CAFETERIAS, INC.
charges in Cases 15-CA-5954-2 and 3. On March 31,
1976, the Regional Director issued a Report on Objections
and Challenged Ballots and Order Directing Hearing on
Objections and Challenged Ballots. In his report, the
Regional Director recommended that seven challenges be
sustained; that six be overruled; and that the Employer's
objections be overruled entirely; and he approved the
withdrawal of the Petitioner's Objections 1-5, 8-10, 12-15,
and part of Objection 7. The Regional Director also
recommended that a hearing be conducted with respect to
the challenged ballots cast by 14 employees, and with
respect to the Petitioner's Objections 6, 11, 16, and a
portion of Objection 7. The Regional Director found that
the conduct referred to in the latter-numbered objections
would be included in a complaint to be issued in Cases 15-
CA-5954, -2, -3.i On April 9, 1976, the Regional Director
issued an order consolidating cases and consolidated
complaint in Cases 15-CA-5954, -2, and -3; and an order
consolidating Cases 15-CA-5954, -2, -3, and 15-RC-5797.
The consolidated complaint was amended at the hearing
and duly answered by the Respondent.
The issues in this consolidated proceeding are whether or
not the respondent interfered with, restrained, or coerced
its employees in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, and discriminated
against certain employees in violation of Section 8(a)(3);
whether or not it interfered with the election conducted on
December 18, 1975; and whether the challenges to 14
ballots should be sustained or overruled.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the excellent briefs filed by the Respondent Employer and
the General Counsel, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
The Respondent is a Louisiana corporation engaged at
its cafeteria involved herein located in Shreveport, Louisi-
ana, and at other locations in Louisiana and other States in
the retail sale of food and beverages. During the past 12
months the Respondent had gross sales in excess of
$500,000, and purchased and received goods valued in
excess of $50,000 directly from points located outside
Louisiana. The Respondent admits, and I conclude, that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. Introduction
The Respondent operates more than 60 cafeterias
throughout the Southern States. None of them are
unionized. Its Shreveport facility was opened in August
The EmploVer filed exceptions to the Regional Director's report. but
the National Labor Relations Board adopted the Regional Director's
finding and recommendations.
1975 in the South Park Mall which accommodates 73 retail
outlets. It is a double lined cafeteria which at material
times employed a complement of 106 employees.
All the events described herein took place at or near the
Shreveport cafeteria during the fall and winter of 1975. The
amended complaint alleges, the Respondent does not
dispute, and I find that the following persons are supervi-
sors and/or agents of the Respondent within the meaning
of Section 2(1 1) and/or 2(13) of the Act:
William Richards
David Garrett
O. Q. "Dick" Quick
Malcolm Stein
William Schwarting
Ralph Self
Arthur LeBlanc
Bill Haskins
Richard Abraham
Alton Davis
Don Argrave
Charles Elias
Louis Russell
William Gilyard
president
secretary-treasurer
general mgr
district mgr
district mgr
district mgr
cafeteria mgr
cafeteria mgr
cafeteria mgr
cafeteria mgr
asst cafeteria mgr
asst cafeteria mgr
asst cafeteria mgr
cafeteria manager-trainee
Organizational activity began among the Shreveport
employees in early September 1975, shortly after the
cafeteria opened. Union President Aurbin Dickey, Busi-
ness Representative Roosevelt Smalley, and other union
organizers frequented the cafeteria, the lobby, and the
mall, contacting employees. Cards were distributed by
them and by employees, signatures were obtained, meet-
ings were held, and buttons were worn. Cafeteria Manager
LeBlanc received a recognition-demand letter on Friday,
October 17, and immediately informed his general manag-
er, O. Q. "Dick" Quick, and Secretary-Treasurer and
General Counsel David Garrett by telephone. Garrett
instructed LeBlanc to say nothing about the letter and to
assemble the supervisory staff for a meeting Sunday,
October 19. On that day, Garrett, Quick, and Ralph Self,
the district manager to whom LeBlanc was responsible,
arrived in Shreveport and met with LeBlanc and his
assistant managers, Don Argrave, Louis Russell, and Ellis
Gouch, chef Rotan Blocker, and head baker Clarence
Dixon. Garrett instructed the supervisors not to threaten
anybody, not to spy, not to talk to employees about the
Union, and to maintain normal operations. On October 20,
1975, the Union filed a petition for a Board election.
Garrett, Quick, and Company President Richards made
short visits to Shreveport after that, and, on November 17,
a company-dispatched team arrived to remain until the
Board election. The team was led by Garrett and consisted
of General Manager Quick, District Manager Ralph Self,
managers of other districts, Malcolm Stein and William
Schwarting, managers of other cafeterias, Richard Abra-
ham, Bill Haskins, and Alton Davis, and Manager-Trainee
William Gilyard. The dispatch of this team conformed with
the Respondent's practice of assembling such teams to deal
with crisis situations at individual cafeterias such as
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opening week, mismanagement, and, on one other occa-
sion, the advent of a union organizing drive at a Memphis
cafeteria, which was defeated.
All members of the management team testified that
Garrett informed them, at that first meeting on November
17, that their purpose was to win the Board-conducted
election. Each was given printed instructions not to
question or spy on employees, not to make any threats or
promises or any statement which might be misunderstood
as a threat or promise, and a list of questions and answers
which could be used in talking with employees. Each team
member except trainee Gilyard was assigned a certain
group of employees to interview. Each was given a supply
of newly devised personnel forms and instructed to begin
his interview with each employee by filling out the form
with information obtained from the employee. Team
members were then to talk to the employees, tell them how
the Company operated and the reasons why the Company
objected to unionization, find out what problems the
employees had, and answer their questions using the
printed "don'ts" and questions and answers as guidelines.
Team members were also instructed to get to know as
many employees as possible, in addition to those specifical-
ly assigned, and try to persuade them they did not need the
Union; and it is clear that most of them contacted many
employees.
The team assembled every week or so throughout the
campaign period and reported complaints voiced by
employees, and their current evaluations as to how they
thought individual employees would vote, based, they
testified, on how the employee felt about his job and
whether he had any complaints as revealed by their
interviews and discussions. Garrett testified that he
specifically instructed the team members not to ask any
employees how they felt about the Union, whether they
signed a card, or whether they had gone to union meetings,
and that he did so because it is illegal to ask and because
such questions create tension and a true reading cannot be
obtained that way as employees will lie. The managers
described in depth their techniques in interviewing employ-
ees, pursuing their campaign to win the election, and
obtaining information on their progress.
The Respondent's campaign also included several meet-
ings held with employee groups and distribution of
literature covering such subjects as union dues, fees, fines,
and assessments; union fines being upheld by the NLRB
and the Supreme Court; high salaries paid to officers of the
International Union; alleged mismanagement of the funds
of local unions; economic losses entailed by strikers and
the possibility of being replaced; fringe benefits paid by the
Respondent; and instructions on how to vote no.
Several employees were discharged or laid off on
Saturday, December 13, triggering a walkout by 30 or so
employees, most of whom returned to work for their next
scheduled shift.
The election was conducted on December 18 with results
described above.
2 [ credit this testimony by Moody and Washington. Although Moody
was prone to exaggerate the number of times she was interrogated, this
testimony is undenied, is mutually consistent, and it conforms with the
The complaint alleges, and the answer denies, that the
strike was an unfair labor practice strike; that the
Respondent unlawfully discharged these and other em-
ployees and refused to permit a striker to return to work;
and interfered with employees' rights under the Act.
B. Violations of Section 8(a)(l)
I. The team
The amended complaint alleges, and the Respondent
denies, that President Richards, Secretary-Treasurer Gar-
rett, General Manager Quick, District Managers Self,
Stein, and Schwarting, Cafeteria Managers Abraham, Bill
Haskins, and Davis, and Manager-Trainee Gilyard all
interrogated employees; that Garrett, Quick, Self, and Bill
Haskins created the impression of surveillance of employ-
ees' union activities; that Garrett, Quick, Bill Haskins, and
Self promised employees benefits if they would abandon
the Union; that Garrett also unlawfully threatened to
terminate and replace employees if they struck the
Respondent again; that Abraham threatened not to open
additional cafeterias if the Union was successful in
Shreveport; and that Quick unlawfully advised employees
he desired them to work for the Company in the election
campaign.
President Richards: Employee Dorothy Moody testified,
and I find, that about the last of November Richards sat
down with her at a table in the dining room and during
their conversation, which was devoted mainly to Richards'
reasons why Moody should vote against the Union,
Richards asked her how she felt about the Union. Moody
continued that she had additional conversations with
Richards after that and each time he asked her how she felt
about the Union or how she was going to vote, and she told
him each time she was going to vote no.
Employee Murray Washington testified, and I find, that
she was interviewed by Richards during Thanksgiving
week in a booth in the dining room; Richards filled out a
form from her answers to questions, and then asked her
how she felt about the Union. She said she told him she
had not decided but, if she had, she would not tell him; and
he told her he wished she would vote no. 2 I conclude that
President Richards coercively interrogated Moody and
Murray Washington, in violation of Section 8(a)(1).
Secretary-Treasurer Garrett: Employee Dorothy Moody
testified, and I find, that about a week and a half or 2
weeks before Thanksgiving she had a conversation with
Garrett in one of the booths in the dining area in which he
gave her reasons she should be against the Union and
asked her how she felt about the Union and how she was
going to vote, and urged her to vote no. Moody said she
told Garrett she did not want the Union and was going to
vote no. Moody said she had several subsequent conversa-
tions with Garrett when he would "stop by and talk," and
on each occasion he asked her the same questions.
Fannie Smith, an employee who was subsequently
promoted and is now head of the dish room, testified, and I
find, that Garett came up to her on one or two occasions
pattern of conduct found below to have been engaged in by Richards'
subordinate executives.
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PICCADILLY CAFETERIAS, INC.
and as he passed her "he would always holler at me when
he come by, Miss Smith, how you doing? Or Miss Smith
you still with us or you still going to give us a no vote or
something like this," and that she responded "yes, or un
huh, or something like that."
I find, as employee Mary White testified, that about a
week before Thanksgiving Garrett and Quick talked to her
in the storeroom, and that Garrett "asked me, he said, 'was
there any union meeting' and I told him I didn't know."3
On December 14, the day after an employee walkout
discussed below, Garrett called a meeting of all employees
on duty at the cafeteria. It is substantially undisputed that
Garrett told the assembled employees that when they had
walked out they were told they could not come back; the
Company subsequently realized that it had been wrong and
called them all back as they had offered to come back
before they were replaced; but, if they went on strike again,
the Company would attempt to replace them and, if it
replaced them before they came back, they would lose their
jobs because it was two strikes and you are out in this ball
game. 4
I conclude that Secretary-Treasurer Garrett coercively
interrogated Moody and White and reasonably can be said
to have created the impression that Fannie Smith's union
activities were under surveillance, in violation of Section
8(a)(1). On the other hand, I do not agree with the General
Counsel that Garrett's statement at the December 14
meeting can reasonably be said to have interfered with
employee rights, as the statements merely summarized
parties' legal rights in the situation described.
General Manager Quick: Mary White testified, and I
find, that during the week before Thanksgiving Quick
asked her, in the storeroom, how she felt about the Union
and she told him it made no difference to her. (It was then
that Garrett, who was present, asked her, as found above,
whether there had been a union meeting.)
Employee Vona Traylor testified, and I find, that at her
interview with Quick, about a week before Thanksgiving,
he filled out the personnel form and then asked her how
she felt about the Union; she told him she did not know
anything, and he wrote her answer on a tablet and told her
the Union was not good for the employees. Traylor also
testified, and I find, that Quick asked her the same question
again in early December during another conversation in a
booth with another manager present whom she recalled as
Alton Davis. I also find, as she testified, that, on this
occasion, Quick asked Traylor whether she had been to
any union meetings and, when she replied that she had,
asked how many people attended them and she said she
did not know; and he also asked her if she was against a
yes vote. I further find, substantially as she testified, that
Davis then said she was a strong person and not afraid to
speak up, and Quick told her the Company needed
somebody who was not afraid to speak up and asked how
:1 I credit this testimony of Moody, White, and Fannie Smith against
Garretl's denial that he had any conversations with them about the Union
while conceding he formed the impression that Moody was against the
Union. The demeanor of White and Smith was that of truthful witnesses and
the) were not impeached; Moody's testimony was consistent with theirs
here and I have credited her above on similar incidents. I do not, however,
credit testimony by employees Betty George and Rodney McCargo
regarding alleged interrogations, impression of surveillance, and an
she would like to represent the company side in the
election.
Bertha Washington testified, and I find, that, during a
conversation with Quick in the dining room in November
or early December, he told her he thought she had an open
mind and he wanted her to talk to the rest of the employees
to get them to vote no; and that she responded she would
think about it.
Employee Robert Green credibly testified that Quick
spoke with him in a dining room booth about 2 weeks
before the election; Quick asked how he was going to vote
and how he felt about the Union; as employees Clara
Kennedy and Carrie Mims walked past the booth Quick
asked Green if he knew how they were going to vote; Quick
also told Green he was moving up and asked if there was
anywhere else he wanted to work but Green said no.
Employee Maurice Thomas testified, and I find, that
about a week before the election Quick interviewed him in
a booth and filled out the personnel form. Quick then said
he wanted to talk about the Union. He told Thomas how
much the Company could do for him but, if the Union
came in and hurt the Company's growth, there would not
be as many opportunities for promotion as a union could
slow the growth of a company; but, if the Union was not
there, the chance of being promoted would be a whole lot
better and Thomas had an opportunity if he wanted to
grow with the Company. Thomas said he would like to try
a change in jobs; Quick said he would see what he could
do; he asked Thomas how he felt about the Union;
Thomas said he did not know. Quick told him to think
about it and Quick hoped he would go along with the
Company.
Rodney McCargo credibly testified as follows: "Three or
four days before the election . .. he told me . . . he had
. .an employment form to fill out .... And after I filled
it out, he asked me. . . whether I had decided to vote for
the union or not and I said, 'I haven't really decided,' and
then he asked me did I fill out a card, a union
representative card and I told him yes. And he asked me
where did I fill it out, . . . and I told him at Walgreen's
.... He asked me why I was wearing this union button
and I told him, if they would give me theirs I would wear
theirs too. Not any specific reason why I was wearing it
.... He asked me where some of [the union meetings]
were held and I told him I didn't know." The following
evening, during the Christmas party, Quick "asked me had
I decided to go for the union or not and I told him I didn't
know . . . he still asked me why I was wearing the union
badge and I said, 'why do you keep on asking me?' and he
said he was kind of concerned about it because if I was
wearing it, you know, there wasn't really no point in him
talking to me, because he could see which way I was going
to vote. And I said, 'Not exactly . .. I could change my
mind.' "
unlawful promise by Garrett. George's explanation of a contradictory
statement in her pretnal affidavit was not persuasive. and McCargo was too
garbled and vague to be reliable in the face of Garrett's more precise and
plausible accounts.
4 Failure to grasp the esoteric but critical difference between replacement
and discharge no doubt accounts for Irma Barfield and Clota Newton's
receiving the impression that Garrett said future strikers would be fired.
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Irma Barfield testified, and I find, that the day before the
election, Quick spoke to her in the dining room area, and
said, "Irma, I heard you changed your vote from yes to
no," and that the Company appreciated it. She told him
that she had not discussed her vote with anyone yet, and he
said, "Well, we would appreciate it if you would change
your vote." 5
I conclude that General Manager Quick coercively
interrogated employees, implied that employees would
receive job benefits if the Union was not voted in, gave an
employee the impression that her union activities were
under surveillance, and solicited employees to persuade
others to support the Respondent's cause in the election
campaign,6 in violation of Section 8(a)(1). I am of the view,
however, that an additional statement made to Traylor,
that she was getting a raise, probably referred to a
forthcoming increase in the minimum wage and was not
related to the organizing campaign or Traylor's part in it,
and I conclude it did not violate the Act.
District Manager Self: Mary White and Bertha Washing-
ton, whom I have credited generally, testified to separate
conversations with Self. He asked White, in District
Manager Stein's presence, "how did I feel about the
union," and she responded, "unions was all right." Self
asked Washington, after filling out the employment form,
"how I felt about the Union," and when she told him she
had no answer to that question because she was going to
vote whichever way would benefit her best, Self told her
she should consider voting no. Robert Green, whom I have
credited on other similar incidents and who was equally
credible here, was interviewed by Self shortly after
Thanksgiving. Self filled out the employment form, "and he
asked me how did I feel about the union." Green replied he
did not know anything about it, but Self asked him how he
was going to vote. Green replied he did not know, and Self
wrote down his reply.
I credit Dorothy Moody again here that at an interview
with Self a week or so before Thanksgiving he filled out the
employment sheet and then said, "I want to ask you this.
How do you feel about the union?" and Moody told him
she was going to vote no; and that Self came by and spoke
to Moody while she was working on the line several times
after that, and asked her how she felt about the Union and
how she was going to vote, and urged her to vote no, and
Moody continued to tell him she was going to vote no.
Employee Bennette Glenn credibly testified that Self
called Glenn to a booth in the cafeteria in November
saying he wanted to ask him a few questions if Glenn had
the time; Glenn sat down, and Self "asked me how did I
(' Credibility resolutions are based on the favorable demeanor of Mary
White (as found above) and Bertha Washington, who are credited generally.
Although I do not believe that Quick implied he would pay Traylor over $5
an hour if she took up the Company's cause, she seemed truthful otherwise
including conduct by Quick similar to conduct testified to by Bertha
Washington, Except for some uncertainty about the date, McCargo was
more specific as to his conversation with Quick. Careful study of Quick's
testimony reveals his account not to be very much different from Thomas'. I
do not credit Quick's denials of the remaining testimony because I believe
that he as well as the other executives were unable to resist obtaining the
information they wanted by direct questions. I do not, however, credit
Melody Smith that Quick interrogated her, because she stated in her pretrial
affidavit that no management representatives did so.
*i Authorities for finding such conduct unlawful are Montgomery Ward &
feel about the Union and I told him I didn't have anything
to say and he asked me, well, did I think that Piccadilly was
treating me fair and I said I didn't have anything to say
about that either." Self told him that that would be all, and
Glenn left the booth.
Colta Newton credibly testified that a week before the
election Self called her to a booth and filled out the
personnel form and then asked her how she felt about the
Union. Newton responded that the Union would be good
for employees as they did not get the right wages. Self said
the employees would soon be getting a nickel more and,
although he did not want to tell her how to vote, she should
vote no for her own good.
As above, I credit Irma Barfield that about 2 weeks
before the election Barfield went to a table where Self was
sitting and he told her, "Irma, I know you are attending
union meetings. I just wanted to let you know." Barfield
told him she was not attending union meetings but he said,
"[W]ell, he knew I was talking to union representatives."
Employee Vicky Sandefur [Thibodeaux], whom I credit
because in this instance her testimony fits the pattern,
testified that, in early December, Self interviewed her and
filled out the personnel form. He then put it aside and said
he wanted to talk about the Union. He asked her how she
felt about the Union and she replied she would rather not
answer because "either way I answer I make somebody
mad." He said, "I know you signed a union card like
everybody else did and . .. .he asked me if I knew about
these union meetings," and Sandefur said she did.
Maurice Thomas, whom I again credit, testified he was
promoted the day before the Board election, and he
encountered Self at the door of the employee's room. Self
told him he had heard about his promotion, "and he
congratulated me and patted me on the back and said, you
know how to vote." 7
I conclude that District Manager Self coercively interro-
gated employees, created the impression that employees'
union activities were under surveillance, and implied that
an employee's promotion was a quidpro quo for a no vote,
and that this conduct violated Section 8(a)(1).
District Manager Stein: I again credit Mary White that
during the conversation she had with District Manager Self
and Stein, sitting in the dining area 2 days before
Thanksgiving, discussed above, Stein asked her how she
felt about the union, whether she had signed a union card,
and "was there a union meeting."
Dorothy Moody is also credited that she met Stein when
LeBlanc brought him around and introduced him to the
employees working on line two. One day after that Stein
Co., Incorporated, 226 NLRB 184 (1976); Franklin Parish Broadcasting, Inc.,
222 NLRB 1133 (1976): and RuJy Concrete Company, 213 NLRB 724, 726
(1974). Cf. N.L.R.B. v. Monroe Tube Company. Inc., 545 F.2d 1320 (C.A. 2,
1976).
? Ralph Self, district manager with jurisdiction over the Shreveport
cafeteria, hired about half its employees. His testimony was frequently
vague, uncertain, and evasive, and his demeanor was unimpressive. I do not
credit his denials of the above testimony. No findings are based on
testimony by employee Tom Lutton regarding Self as portions were
implausible and he failed in my opinion satisfactorily to explain the absence
of portions of it from his pretrial affidavit. Nor do I credit Sandefur's
testimony about an alleged statement she overheard to employee Chris
Cornbower, because it lacked specificity and was not corroborated by
Cornbower whose failure to appear was not explained.
1308
PICCADILLY CAFETERIAS, INC.
returned to the line and started talking, "asked me how did
I like the pie counter and then he asked, he said, 'Is there
anything else in the cafeteria you think you could do better
than staying at the pie counter?' " Moody told him she
would give' anything a try, and he said, "Well, you never
know what might happen." Stein then started talking about
the Union, and asked her, "How do you feel about the
union?" He also said that, if the Union got in, it would not
give her anything at all it would only take away, "and then
he asked me, he said, 'How are you going to vote?' He said,
'Are you going to vote yes for the union and let it take
away from you or are you going to vote no?' " Moody
responded that she was going to vote no and she did not
feel the union was good for her.
Employee Bessie Williams credibly testified that, on
November 23, Stein interviewed her at a table in the dining
room, and filled out an employment form. "He then asks
me had I heard anything good about the Union and I told
him no. Then he asked me how did I feel about the Union
and so I told him I didn't feel you needed a Union at
Piccadilly. Then he felt that he had my vote and I told him
and he asked me was that right and I said that's right and
then he asked me if he could count on me and I said yes
you can count on me 'cause I don't feel we need a
Union." 8
I conclude that Stein interrogated employees about
union activities as alleged in the complaint, and thereby
violated Section 8(a)(l).
District Manager William Schwarting: Employee Adison
Williams is credited to the effect that she had a conversa-
tion in mid-December with Schwarting in a booth; he told
her he was working for Piccadilly and what his position
was; and "He asked me, you know, how did I feel about
the union." Williams responded that she could not afford
to pay union dues. Schwarting then asked her if she had
been to a union meeting. She told him that she had been to
one meeting, "and he said he didn't see no harm in, you
know, finding about the good or bad of a union."9
I conclude that Schwarting interrogated Adison Williams
about her union activities and thereby violated Section
8(a)(l).
Manager Richard AJraham: Irma Barfield, whom I again
credit, testified she talked with Abraham in a booth about
a week before Thanksgiving. Abraham filled out the
employment form and, after he finished, he said, "Well,
Irma, how do you feel about the union?" She told him she
felt okay and then, when he then asked her how she felt
about Piccadilly, she told him it was okay too and that she
liked her job. And then he said, "Well, Irma, I know you've
attended union meetings," and that he wanted to let her
know they were telling her lies.
I Stein testified that he contacted almost every employee during the
campaign. but had no discussion with Mary White at all and none with
Moody about the Union. His interview with Bessie Williams ended with the
personnel form, he said. because Williams refused to discuss anything else.
Williams appeared to be independent. forthnght, and honest. Stein was not
as credible as these three employees who testified against him.
" Schwarting testified that he talked to employees about the election, and
he assumed union meetings were being held. He denied, however, asking
Adison Williams any questions about the Union, how she felt about the
Union, or attending union meetings. or asking any employees questions
such as that. Adison Williams' demeanor was more committed to the facts
as she recalled them.
Murray Washington credibly testified that she had a
conversation with Abraham during Thanksgiving week in
the dining room, "about management there at Piccadilly,"
and he asked her what was the problem there. Washington
made some adverse comments about LeBlanc and Argrave,
and Abraham said the problem would be corrected "in
some kind of a way," and to give Piccadilly another
chance. "Then he asked me how did I feel about the
union"; and she told him she had not decided, and if she
had, she would not tell him.
I credit Adison Williams that Abraham talked to her in a
booth after filling out the personnel form. She asked him
whether the Company planned to open another cafeteria in
another mall, "The only thing he told me was that if the
Union, you know, got into this Piccadilly that they
wouldn't have another one over there in the [other]
Mall." 'o
I conclude that Abraham interrogated employees and
threatened adverse economic consequences of unioniza-
tion, in violation of Section 8(a)(l).
Manager Bill Haskins: I credit the following employee
testimony.
During his interview of Mary White in November,
Haskins asked White whether she had ever been in a union
before and, when she told him she had not, he asked her if
she was a member of the Retail Clerks; she said she was
not; he asked if she signed a card, and she told him yes.
Haskins talked with Clota Newton in a booth about a
week before the election and asked her how she felt about
the Union; she replied that the Union was good for the
employees and would guarantee them a decent wage and
job security.
Sometime in November, during a conversation in a
booth, Haskins told Bertha Washington if she would give
Piccadilly another chance and vote no there would be some
changes made in the cafeteria; she asked him what the
changes would be, and he told her she would see them for
herself. Later, when Assistant Manager Don Argrave was
transferred out of Shreveport, Haskins told Washington
that was one of the changes being made. He also told
Washington he knew there had been Monday night
meetings.
In a conversation with Dorothy Moody about the Union
once while she was working on the line, and in subsequent
conversations, Haskins asked Moody how she felt about
the Union and how she was going to vote; on each
occasion she told Haskins she did not feel the Union was
good and she was going to vote no.
While speaking to Gloria Green against the Union in the
dining room about 2 weeks before the election, Haskins
'0 Richard Abraham. manager of a Piccadilly cafeteria in Monroe,
Louisiana, testified to the best of his knowledge he filled out the personnel
form on Irma Barfield. He could not remember having any conversations
with Murray Washington. He testified he could not remember Adison
Williams' asking when he interviewed her whether there was to be another
Piccadilly but he said, if she did, the only answer he could have given was
that he did not know. He denied the unlawful statements attributed to him
by those employees. I credit the employees. Barfield's retort, when asked
why this evidence did not appear in her pretrial affidavit, that a lot went on
that did not appear in her affidavit, certainly seems to be true. Washington's
and Williams' detailed recall of their conversations with Abraham seemed
more reliable than his hazy denials.
1309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked her how she felt about it, and she told him it was all
right, it was nothing bad.
In a conversation with Vona Traylor around the first of
December in the dining room area, Haskins asked her how
she felt about the Union, and she replied that she felt the
employees needed the Union because people were cursed
and fired for no reason at all; Haskins wrote down her
answer.
A week before the election, Bill Haskins told Carrie
Mims, in a conversation with several floor assistants in the
dining room, that Piccadilly was going to win, and "I know
you are going to vote for Piccadilly. We can count on you
... . We can count on your vote." I
Accordingly, I conclude that Bill Haskins coercively
interrogated employees, created the impression that Carrie
Mims' union activities were under surveillance, and
promised Bertha Washington to rectify employee grievanc-
es for the purpose of influencing her vote in the election, all
in violation of Section 8(a)(1).
Manager A lon Davis: Davis is the manager of the
Respondent's cafeteria in Tulsa, Oklahoma. Testimony
against him is not of the same caliber as that outlined
above against other officials. Thus, Robert Green was
somewhat unspecific as to what Davis said to him. Vona
Traylor's identification of Davis was uncertain. Betty
George's pretrial affidavit contained no reference to Davis
and there is some difference between the accounts given by
her and Clota Newton as to what Davis said to them, both
accounts being in any event of doubtful coercive impact.
Eunice Mason's pretrial affidavit failed to conform entirely
with her testimony and her explanation of the variance was
not wholly convincing. I therefore find that the General
Counsel failed to present a primafacie case against Davis,
and I shall recommend that the complaint be dismissed as
to him.
Manager Trainee William Gilyard: Fannie Smith credibly
testified that on one occasion Gilyard said to her, "Ms.
Smith you going to give us a no vote, aren't you?" She told
him yes.
I think it quite likely Gilyard interrogated Smith as she
testified, and I must conclude that it violated Section
8(a)(1). On the other hand, I find no coercive impact in
additional remarks she testified to.
2. The staff
The management staff of the Shreveport cafeteria was
headed throughout by Manager Arthur LeBlanc who was
in overall charge. Don Argrave was assistant manager next
in authority under LeBlanc until he was transferred and
replaced by Charles Elias December i, 1975. Ellis Gough
(not involved in this proceeding) and Louis Russell were
second assistant managers. The Respondent concedes that
head baker Clarence Dixon and chef Rotan Blocker (also
not involved) are additional supervisors. Alvin (Bo)
Bourke, Willie Haskins, and Dorothy Goff, whose disputed
," Bill Haskins is the manager of a Piccadilly cafeteria in Norfolk,
Virginia. He testified that he discussed the Union with employees he was
assigned to interview as well as with about half the employees complement,
and he reported to Manager Quick how he felt all of these employees might
vote. He gave his version of conversations with all these employees except
C(ota, Newton, and he denied asking any of them how they felt about the
supervisory status is discussed below, were assistant chef,
relief chef, and head saladmaker, respectively.
LeBlanc testified he attended the campaign team
meetings on November 17 and 19 where he received the
sheet of "dont's" and was instructed not to talk to
employees about the Union. He was directed to continue
running the cafeteria and was not assigned any employees
to interview, although he was asked on occasion how he
thought one of the employees would vote. He filled out
none of the personnel forms, but he uses them now for all
who apply for employment. Charles Elias was the only
other member of the management staff who testified to
attending one or two of the campaign team meetings,
where he received the list of "dont's," but he said he was
not questioned by management about union support
among the employees.
The complaint alleges that LeBlanc, Russell, Bourke, and
Willie Haskins interrogated employees; that LeBlanc,
Elias, and Goff conveyed the impression of surveillance;
that LeBlanc agreed to discuss a pay raise contingent on
the outcome of the election; that Elias promised an
advance in pay if an employee would vote no, and
threatened loss of employment if the Union was voted in;
and that Willie Haskins offered a promotion if an
employee would vote no.
Shreveport Cafeteria Manager Arthur LeBlanc: The
testimony about LeBlanc was in my opinion unreliable.
Thus, I have discredited Betty George on this kind of
assertion because she told the Board agent before the
hearing that no supervisors talked to her about the Union.
Robert Green failed to mention LeBlanc in his pretrial
affidavit and I have not credited him in certain instances
above. As there is no other testimony of 8(a)(1) conduct by
LeBlanc, I cannot believe he singled out Clara Kennedy to
call into his office and quiz her about union meetings and
cards, in view of his more persuasive denial. I conclude that
the General Counsel failed to make a prima facie case
against LeBlanc and recommend dismissal of these
allegations.
Assistant Shreveport Manager Charles Elias. The only
witness against Elias was Melody Smith who testified he
told her he knew she was for the Union. I have not credited
Smith's testimony about alleged interrogation by General
Manager Quick, and she stated in her pretrial affidavit that
she was not questioned by management. No other
witnesses testified to 8(a)(l) conduct by Elias. I therefore
credit his denial and recommend that the allegations be
dismissed with respect to him.
Assistant Manager Louis Russell: I credit Jocelyn Wil-
liams, whose subsequent termination is discussed below,
that in late October or early November Russell "asked me
first had I ever worked at where there was a union? I told
him no, I hadn't, you know, on any other job that I had.
And he said, 'well, if I had the opportunity to be on the job
that did have a union, would I like it? you know. So I told
him, 'yes, I would'." It does not seem unlikely, all things
Union or whether they signed a union card; he conceded he could have told
Carrie Mims he knew management could count on her vote. The employee
testimony as to similar statements made to them is overwhelmingly against
Haskins. No reliance is placed on Robert Green's assertion that Bill Haskins
interrogated him as Green failed to offer any explanation for its absence
from the account of their conversation in his pretrial affidavit.
1310
PICCADILLY CAFETERIAS, INC.
considered, that this conversation took place even though
Russell denied it. I conclude that this conduct constituted
interrogation as it resulted in Williams' revealing her
attitude toward unionization, and that it violated Section
8(a)(l).
Assistant chefAlvin Bourke and relief chef Willie Haskins:
The General Counsel contends, and the Respondent
denies, that these men are supervisors.
Manager LeBlanc hires and fires employees, grants time
off and overtime, assigns employees to jobs, and generally
directs and supervises operations of the cafeteria. Assistant
managers also possess and exercise authority to hire and
suspend employees and to select employees for overtime.
They participate in decisions to promote and keep time.
There are sometimes three managers on duty, fewer at
other times, but never less than one. All managers visit
every department frequently throughout the day, supervis-
ing and working with employees, and serving customers.
They make out work schedules, observe and evaluate
employees' work, and give orders to employees, sometimes
directly and occasionally through others.
Bourke and Willie Haskins work under the chef, Rotan
Blocker. Also under his authority are 12 or 13 employees
including the butcher, the cooks, the preparation workers,
the pot washers, and the transfer employees who put food
on the line.
There is only one day of the week when all three chefs
work; on those days Blocker has the 7 a.m. to 3:30 p.m.
shift; Bourke the 12 noon to 9 p.m. shift, and Haskins
works as a butcher. Two other days Blocker and Bourke
work those same overlapping shifts and Haskins is off. Two
days Bourke is off, Blocker takes the 7 to 3:30 shift and
Haskins apparently takes the 12 to 9 p.m. shift. On
Sundays and Mondays, Blocker is off, Bourke works from
7 to 3:30, and Haskins from 12 to 9 p.m. It is clear,
therefore, that there are two operating chefs for 3-1/2 hours
a day but, for the majority of the time, 10-1/2 hours a day,
one of the chefs is alone in full immediate charge of as
many as 10 employees.
All three chefs cook when they are on duty. In addition,
chef Blocker makes up the weekly menu and assistant chef
Bourke and relief chef Haskins tell the employees how
much of each item to prepare and when to prepare it.
Recipes are supplied by the Company, but the chefs direct
the preparation; they also taste the food and, if not
satisfied, reject or order it corrected.
Managers hire employees and introduce them to the chef
on duty, who gives detailed instructions regarding their
duties, which the managers expect the employees to follow.
The chefs train, instruct, and help employees, tell them to
hurry, shift them around temporarily, tell them to clean up,
and to put food out or take it off the line. Robert Green,
dishroom and fry cook, and Tom Lutton, dishwasher,
butcher, and cook, testified, without dispute, that LeBlanc
informed them that Haskins and Bourke were over them
and were their supervisors, and Linda Thomas (Caldwell),
counter assistant and prep cook, testified that Assistant
Manager Russell told her the same thing. All three
12 Where testimony differs, the facts with regard to Goffs supervisory
status are hased on the testimony of saladmaker Mar) White, whose
demeanor was that of a straightforward honest witness and who was not
employees testified they followed orders of both Bourke
and Haskins. Green added that Haskins was strict and
occasionally chewed him out.
Assistant Manager Elias testified that employees are
brought before a manager if they refuse to follow the chefs'
instructions, and that he consults the chefs in evaluating
employees.
Chef Blocker makes up and posts the break schedules,
but Bourke and Haskins ask employees to wait when things
are busy and, Green testified, Haskins sometimes would
not even let him go to the men's room. Although the
managers determine overtime, it is undisputed that both
Bourke and Haskins occasionally ask employees to stay
and finish up and let them leave a few minutes early.
These largely undisputed facts show that both Bourke
and Haskins are, for a substantial part of the day and the
week, in full immediate charge of up to 10 employees
engaged in vital functions of the Respondent's operation. I
cannot agree with the Respondent that the nature of the
work is such that there is no opportunity for the exercise of
independent judgment. Thus, even though recipes, menus,
and work schedules are provided, and even though one or
more managers exercise frequent additional overall and
direct supervision, the immediate responsibility, borne by
Blocker, Bourke, and Haskins, for the preparation, timing,
and presentation of a variety of foods in an effective
manner constitutes, in my opinion, responsible direction of
employees requiring the use of independent judgment. I
therefore find that Alvin Bourke and Willie Haskins are
supervisors within the meaning of Section 2(11) of the Act.
Robert Green and Maurice Thomas testified that shortly
before the Board election Bourke asked Thomas how he
felt about the Union, and asked Green how he was going to
vote. Bourke admitted he asked Robert Green and several
other employees what they thought about the Union. I find
that Bourke unlawfully interrogated Green and Thomas in
violation of Section 8(a)( I).
It is undisputed, and I find, that Willie Haskins engaged
in the following conduct: About 2 weeks before the
election Haskins told Robert Green, "They would move
me up to a butcher. If I voted no." On another day when a
union meeting was scheduled, Willie Haskins asked Green
"where was the meeting going to be held." During the week
before the election, on a day when Irma Barfield was
wearing a yes button, Willie Haskins looked at the button,
and said, "You gonna vote for the union?" Willie Haskins
came up to Mary Clark on the line I day where she was
working and said, "I heard y'all got some union going
around here?" Clark replied she did not know about it.
I conclude that Willie Haskins interrogated employees
for the purpose of obtaining information about their union
activities, and promised benefits in exchange for abandon-
ing the Union, in violation of Section 8(aX )).
Dorothy Goff 12 Goff was transferred and promoted from
second saladmaker in Alexandria to head saladmaker in
Shreveport. She has on two occasions in the past been
detailed to assist at openings of new cafeterias.
impeached, and of Vona Traylor where consistent with White. Goff seemed
upon occasion to avoid answering directly and upon occasion gave
implausible answers.
1311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Responsible to the managers, Goff works the 7 to 3:30
shift after which the second saladmaker who is not
contended to be a supervisor takes over. Goff makes salads
most of her time and in addition directs six saladmaker
employees. She makes up the menu of 20 to 30 different
kinds of salads and dressings to be made every day from
recipes furnished by the Company. She tells employees
which salads to make and if necessary how to make them.
Some saladmaker employees make the same kind of salad
every day. Goff tastes the salads and, if they are not to her
satisfaction, she makes them over or fixes them. It is Goffs
responsibility to see that the salads are arranged on the line
and ready. Goff reports employees to the manager if they
mess up. If they goof off or take too many breaks, she tells
them they have to do their work and reports them to the
manager. She once threatened to have an employee fired
and took her to the office, but Argrave refused to fire the
employee because he considered her a good worker.
I do not think these facts establish that Goff possesses
and exercises true supervisory authority. Although she is
paid more than others in the salad department and Traylor
considered her the boss, there is no evidence that she was
held out to be a supervisor. Goff seems to have only the
same degree of authority, except perhaps for making up the
menu, as the second saladmaker whose employee status is
not in issue. Goff's direction of employees appears to be
minimal, and she does not order them to correct their
mistakes but corrects them herself. Moreover, the responsi-
bility of arranging the salads in a timely manner does not
entail the variety and scope of knowledge and logistics
required of the chefs. As she does not possess any of the
other criteria of supervisory authority described in Section
2(1 1), I find, on balance, that Goff is only a leadperson and
is not a supervisor as defined in the Act. Accordingly, I
recommend that the complaint be dismissed as to her.
3. Summary on Section 8(a)(1)
The members of the Respondent's management team
and staff may well have been instructed not to question
employees or engage in other conduct which might result in
unfair labor practice charges or voiding the election.
Secretary-Treasurer Garrett's articulation on the witness
stand of reasons why employees should not be interrogated
was impressive. Alas, it is plain that team and staff,
including Garrett himself, failed in practice to resist the
temptation to act directly instead of indirectly in their zeal
to win the election and keep tab on the progress of their
campaign. And what is more direct than asking, as so many
did, the simple question, "How do you feel about the
Union?" Contrary to the Respondent's contention, I see no
evidence of "collusion and instructed testimony" on the
part of the General Counsel's witnesses whom I have
credited in this aspect of the case. On the contrary, the
volume of believable testimony presented by the General
Counsel reveals that there was widespread failure by
management to restrict its campaign within the limits
established in Section 8(a)(1) of the Act.
':' The General Counsel presented no evidence to support the allegation
in the complaint that the Respondent constructively discharged Brenda
Jones. This allegation must therefore be dismissed.
C. Alleged Violations of Section 8(a)(3)
The complaint alleges that the Respondent terminated
eight employees between November 7 and December 14,
refused to reinstate a striker on December 17, and
constructively discharged an employee on December 6, all
because of their union activities.' 3
In resolving motivation questions involved here, I have
kept uppermost in mind the Respondent's determination to
defeat the Union's attempt to organize the employees and
its large-scale interference with employees' rights in doing
so. Also carefully considered are the facts that most of the
alleged discriminatees were active advocates of the Union
and my conclusion, based on the widespread interrogation
and additional evidence in the record, that management
came to know it. However, it must be pointed out, as will
appear in forthcoming discussions of credibility issues, that
testimony of employee witnesses about their separations
was not as reliable as it was on 8(a)(1) matters where their
jobs were not at stake. Frequently the corroboration was
the other way around; and management witnesses were
more plausible and in some instances supported by
apparently authentic documentary evidence.
1. Clara Kennedy
The complaint alleges, and the answer denies, that
Kennedy was discriminatorily discharged on November 7,
1975.
Kennedy was hired in September 1975 as a floor
assistant. She testified as follows regarding her discharge:
On November 7 LeBlanc called her in the offke and told
her she was fired. She asked him why, and he said he had
heard from a customer "that I supposedly [threatened to
kick] the baby out of Susie," referring to Susan Bourke, the
wife of assistant chef Alvin Bourke employed as a checker,
who was pregnant at the time. Kennedy asked LeBlanc
where Susie was and he said Susie was on her break and
then said something about being disobedient to dining
room leadman Azzie Jenkins.
LeBlanc and former employee Rose Marie (Shorty)
Wright gave the following account of events leading to
Kennedy's discharge: Wright observed Clara Kennedy
coming from line one into the dining room, and "she was
very, very mad and going very fast and I could tell she was
extremely mad and I said, 'Clara, what's the matterT And
she said 'I'm going to knock that baby out of her.' And I
said 'what do you mean, what are you talking about,
Clara?' And she said, 'Susan. I mean it Shorty, I'm going to
knock that goddamn baby out of her'." Wright advised
Kennedy to calm down and reported the incident to
LeBlanc immediately, asking him not to tell Kennedy "that
I was the one that reported it because I was afraid."
LeBlanc testified that disobedience to Jenkins was not a
factor in her termination. He discharged Kennedy because
of these threats to Susan Bourke, he said.
I credit Wright and LeBlanc whose accounts are
mutually consistent. Kennedy's demeanor was not impres-
sive. Moreover, she testified she did not include LeBlanc's
statement about the threat in her pretrial affidavit because
1312
PICCADILLY CAFETERIAS, INC.
she did not think the Board agent could find out about it;
she never denied making the threat, testifying only, "I
don't remember making no threat"; and I have discredited
her as against LeBlanc above. In these circumstances, I
find that the reason advanced by the Respondent was not a
pretext and that Clara Kennedy was discharged for cause.
Accordingly, I conclude that this allegation of the dom-
plaint should be dismissed.
2. Mary Clark
Clark was hired as a counter assistant on September 3,,
1975. She testified that on the first day Union President
Dickey and Business Representative Smalley appeared at
the cafeteria LeBlanc stood and watched for 10 to 15
minutes while she was in conference with them at a table in
the dining room and signed a card. They continued to
watch until she gathered up the 15 cards that had been
laying on the table, put them in her pocket, and walked out
into the mall with the union men; when she returned,
LeBlanc asked her who the men were and when she refused
to tell him told her not to talk to them any more. He then
told her she was not supposed to be in the dining room in
her uniform when she was off duty. After that, Clark
testified, LeBlanc began following her and watching her,
especially when she was conferring with or giving signed
cards to the union representatives, who came to the
cafeteria almost every day. She also testified that LeBlanc
recruited employee Sandy Griffith to get friendly with her
and find out what she was up to. and that Griffith
thereafter attempted to do so.
On October 25, 1975, 7 weeks after she was hired, Clark
sustained a back injury on the job and has never returned
to work; she denied ever receiving any notice of termina-
tion. She testified as follows: Two weeks after her injury,
she went to the cafeteria to pick up her check from
Argrave, and General Manager Quick asked how she was
and she told him not so hot. After that she left several
telephone messages for LeBlanc to let him know she was
still under a doctor's care. In November, she telephoned
Assistant Manager Argrave and advised him she did not
know exactly when she would return to work as the doctor
had not advised her; Argrave said, all right, keep in touch.
She attempted to vote in the December 18 election while
she was receiving workmen's compensation but she was
challenged by the Respondent she said, although the
Regional Director's report states she was challenged by the
Board agent because her name was not on the eligibility
list. In January, after the doctor advised he might release
her in February, she went to the cafeteria where Assistant
Manager Louis Russell asked her how she was doing. She
told him she was doing fair and that she hoped to return to
work soon. He informed her, however, that LeBlanc had
fired her although if it had been left to Russell he would
not have fired her. Clark asked for a "termination paper"
but Russell said she would have to get it from LeBlanc
because Russell would not know what to put on it. After
several attempts, Clark finally got LeBlanc on the tele-
phone in late January or early February and he told her he
had not known if she was coming back to work. When she
protested that he knew she was hurt, he said she was
replaced. He promised to send the termination papers but
never did so.
Arthur LeBlanc denied Clark's testimony and denied
knowing Roosevelt Smalley by sight before October 25, the
last day Clark worked. He testified he saw her in a booth
with a black man who he now believes to have been
Smalley, and he told her not to sit in the dining room
wearing her uniform when she was off duty. He denied
following Clark, and he and Sandy Griffith denied Clark's
testimony that LeBlanc recruited Griffith to find out about
Clark's activities.
Manager LeBlanc testified that on her last day he saw
Clark lying on the floor of the cafeteria and, when he
helped her up, she told him that she had fallen. Informed
that she felt she could not work any more and had to go
home, he helped her out where someone was waiting for
her. After that he saw her once in the cafeteria as a
customer, but has had no conversation with her.
Secretary-Treasurer Garrett testified he made the deci-
sion to terminate Clark based on company policy, as
advised by its insurance company, not to take back
employees with injured backs because they generate
expensive claims which increased insurance costs. Garrett
presented company records that Clark was paid in full
through November and explained it was company policy to
compensate employees for a week after they are injured
because in Louisiana employees are not paid for the first
week they miss work for an injury. He asserted that he
recommended, to LeBlanc he thought it was, that Clark be
taken off the payroll when he received the accident report
that she was out with a back injury.
Assistant Manager Argrave testified that when Clark
came to pick up her paycheck he asked her how she was
doing, but there was no discussion of her injury and he did
not tell her to keep in touch. He made out a slip on her
November 8, 1975, and mailed it to the Department of
Employment Security with a copy to Clark which was not
returned by the post office to his knowledge. The slip
referred to is in evidence and states, "Terminated - Hurt
on job - replaced." Argrave heard nothing further from
Clark, and he was transferred out of Shreveport on
November 30.
I cannot believe Clark on several of the matters to which
she testified. She failed to mention in her pretrial affidavit
that LeBlanc observed the union authorization cards
passing between her and Smalley in the dining area, or his
recruiting of Griffith to watch her. In view of the obvious
significance of these matters, I find it unlikely that she
would have failed to include them in her affidavit had they
not been subsequently imagined to support her case. Nor
can I believe that she was unaware of her termination until
January in view of the challenge to her vote at the
December 18 election.
Clark was one of the most active union supporters. I have
found that management became aware of her union
advocacy and she was dropped from the payroll on the
cutoff date for voting in the election. However, I am not
persuaded that her union activity was the reason she was
terminated, despite the commission of other unfair labor
1313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices listed above. In view of the unreliability of Clark's
testimony,'4 I accept as reasonable the testimony of the
Respondent's witnesses with regard to her. I do not doubt
the policy, recommended by an insurance carrier distin-
guishing back injuries from other injuries suffered on the
job, cruel as it may be, and no disparate treatment in its
application has been shown. Accordingly, I conclude that
the preponderance of the credible testimony fails to
support the allegation that Clark was terminated for
discriminatory reasons, and that it must be dismissed.
3. Linda Thomas
Linda Thomas (Caldwell) was hired in September 1975
as a counter assistant and was thereafter made a prepara-
tion cook. On November 9, 1975, Thomas hurt her
stomach lifting a heavy object at work and went home. She
testified she telephoned Assistant Manager Russell the next
day that she was ill and was going to see a doctor, and that
he directed her to get in touch with him after she saw the
doctor; that she told Russell over the telephone later that
day that the doctor had said she could come back in 2
weeks, and Russell said to keep in touch and to take care of
herself. Thomas' testimony continued: On December 1, the
doctor told her she could return to work December 2; he
gave her a written statement to that effect, but she did not
have it at the hearing. On December 3, she showed Russell
the doctor's statement; Russell told her she would have to
see either LeBlanc or Argrave about returning to work. She
showed LeBlanc the doctor's statement, and he said,
"okay, he would be talking to me about it later." On
December 14, 4 days before the election and the day
Thomas helped union officers pass out literature in the
mall, Thomas went to LeBlanc's office. She told him that,
although she had talked to him on several occasions, he
had never let her know anything about her job and she
wanted her job back, or any other job. LeBlanc said she
had been replaced and there were no other openings.
Assistant Manager Russell testified that on her last day
at work Thomas went home about 45 minutes early, saying
she did not feel good; but he had no subsequent
conversations with her, never heard from or saw her again,
and never saw a doctor's statement about her.
Manager LeBlanc testified that Argrave told him, on
November 9, Thomas went home sick and did not return.
He presented the Respondent's personnel record contain-
ing the statement that Thomas "went home sick and didn't
return" after working 7-1/4 hours on November 9, which
statement he said was written by Argrave at his direction.
LeBlanc testified, and Argrave confirmed, that Thomas'
job was held for her until the end of that week (November
15) when Thomas asked him over the telephone if
somebody could pick up her check and bring her uniform
back, and that was when he terminated her.
Thomas was not, in my opinion, a credible witness. She
failed to produce or even to try to locate the doctor's
statement she testified she received; she testified she told
Russell on November 10 she would return in 2 weeks but it
I I have found above that Eunice Mason, who testified to discriminato-
ry remarks about Clark made by Manager Davis and LeBlanc. was also an
unreliable witness.
51 I do not credit Eunice Mason that she overheard Argrave, assistant
is clear that she did not return for almost 4 weeks, during
which period the record fails to reliably establish her claims
to have communicated with management; there is no
indication she applied for or received workmen's compen-
sation and she was not paid for the lag week as Mary Clark
was. Thomas seems to have been one of the most active
union supporters and, as I have found, the Respondent
became aware of it.15 However, I do not believe she
received an injury of sufficient seriousness to keep her
away from work as long as she said. In these circumstanc-
es, I credit Russell's testimony that she never got in touch
,with him which is consistent with that of LeBlanc and
Argrave, whom I also credit here, that she was terminated
November 15 at her own implied request. I conclude that a
preponderance of the credible evidence fails to support the
allegation that she was discriminatorily discharged, and
that it should be dismissed.
4. Ruie Aleen Horton
The complaint alleges and the answer denies that the
Respondent constructively discharged Horton on Decem-
ber 6, 1975, by assigning her more arduous and less
agreeable tasks because of her union activities.
Ruie Aleen Horton (Davis) admittedly was unsure of her
hiring date, an issue in this case because of the dispute over
her eligibility to vote in the election, the parties stipulating
that the election cutoff date was November 8, 1975. She
testified at first that she worked at the cafeteria from
November 8 until December 6, 1975. She then admitted to
having no information and no personal recall of the date of
her hire. The Respondent's records, including her W-2
form which Argrave filled out and she signed, show, and, in
the circumstances I find, that her hiring date was
November 12, 1975.
Horton worked 7 consecutive days through November
18. November 19 and 20 were her days off. She was out
sick the following 9 working days, returning December 2,
when she worked 8 hours. December 3 and 4 were days off.
She worked 8-1/2 hours on December 5, and 3 hours on
December 6, 1975, her last day.
Horton's testimony about her union activity was so
inaccurate that I find most of it unreliable, and I also find
that she never wore a union button to work. I find,
however, as Assistant Manager Argrave testified, that she
mentioned in her hiring interview that she had worked at a
Safeway grocery store, he asked her if it was unionized, and
she said it was.
When hired, Horton had some experience as a cashier,
and she insisted she was hired as a cashier and worked as a
cashier, a job for which a uniform was optional, and
trained as a checker and helped out on the drink stand, for
which jobs a uniform was required. Argrave and LeBlanc
said she was hired as a cashier and checker trainee, but she
was classified as a checker, was paid $5 more a week than
floor and counter assistants, and at the end of her first
week she was not fast but she could check and cashier
alone.
chef Bourke, and relief chef Haskins say they would have to get rid of
Thomas when she returned to work. This testimony was not in Mason's
pretrial affidavit and she conceded she did not tell the Board agent about it,
and I have not credited Mason elsewhere.
1314
PICCADILLY CAFETERIAS, INC.
I find that Horton informed Argrave by phone she was
going to the hospital for an operation for female trouble,
and, as she did not know how long she would be away, she
was willing to quit. Argrave told her no, she was doing well
and he probably would have something for her depending
on how long she was gone. LeBlanc understood by
Argrave's report that Horton might be away 6 weeks or
more. When Horton returned to work on December 2,
LeBlanc expressed surprise to see her back so soon.
Because of Horton's continued vagueness and inaccura-
cies, I credit LeBlanc as follows: Horton had been in line
for a cashier's job when she went to the hospital, but when
such a job opened up while she was away LeBlanc gave it
to Boles, who had been a drink-stand employee and
trainee. When Horton returned she did checking and
cashier work her first day, the same plus drink-stand work
the second day. On her third day, December 6, she started
on the cash stand but he had two employees for that so he
put her on the floor for a while. Then he needed help on the
drink stand, and he told Horton she would be working
there and on the line and her days off would be changed
from Wednesdays and Thursdays to Tuesdays and
Wednesdays. Nothing was said or planned about reducing
her pay because relief checkers and cashiers are paid more
than counter and floor assistants. His intent, LeBlanc said,
was to give her a cashier-checker job when one opened up.
Horton accepted the drink-stand assignment at the time,
but subsequently came into LeBlanc's office and wanted to
know if she would be on the drink stand all the time. He
told her yes, the drink and the line. She asked why, and he
said she had enough training for the time being; he would
put her back in the checking and cash stands during the
slow part of the day and keep her familiar with checking
and cashiering, but she had completed her training and it
would be necessary to wait for an opening. Horton told
him, however, "that she didn't want to do that. That's not
the type of work she was used to and that she was going to
quit." LeBlanc told her he was sorry. LeBlanc conceded
that drink-stand work is busier and less agreeable, but
denied his conduct was designed to force Horton to resign.
Based on the credited facts, I find that, although Horton
may have understood she was hired as a cashier, she was
hired as a cashier and checker trainee and relief; that
management was entitled to fill the job which opened while
she was away sick as she herself did not even know how
long she would be gone; as she had finished her training
LeBlanc was entitled to assign her to other duties and to
relieve on the checking and cashier stands. Although it was
less agreeable work, she had done some of it before, her
pay was not reduced, and she was promised the next
opening in the job she wanted. Her union activity was
minimal, and I do not believe her confession to Argrave
that she had worked in a unionized store was the reason for
her job assignment. I conclude that a preponderance of the
evidence fails to support the allegation that Horton was
constructively discharged for discriminatory reasons, and it
should be dismissed.
5. Gloria Green, Dorothy Moody. Murray
Washington, and Bennette Glenn
The General Counsel contends these employees were
terminated on December 13, 1975, for discriminatory
reasons, and the Respondent contends they were laid off
for economic reasons.
All four of these employees were hired in August 1975,
the month the Shreveport cafeteria opened, Moody and
Washington as counter assistants, Green as a floor
assistant. Glenn was hired as a baker trainee and thereafter
promoted to second baker at an increase in pay. All of
them were active supporters of the Union.
During the campaign, Secretary-Treasurer Garrett, with
Assistant Manager Charles Elias in attendance, held
several antiunion meetings in the boiler room with
employees in groups of 9 to 10. The General Counsel
presented five witnesses as to what occurred at such a
meeting held on December I 1-Green, Washington,
Moody, Irma Barfield, and Vona Traylor. There are
variances among them as to which employees were the
most outspoken against Garrett and as to what they said.
Four of them mentioned Green; three mentioned Moody;
Washington mentioned herself although she omitted the
entire meeting from her pretrial affidavit; and Barfield
mentioned Washington but it seemed an afterthought;
three mentioned Traylor, Washington saying Traylor was
as outspoken as anybody; and Green said Traylor and
most of the people there were outspoken. All these
witnesses testified, however, that Garrett became exasper-
ated and told Green, Moody, and Washington (except that
Traylor said he told Green, Moody, and others, and Green
failed to include anyone other than herself in her pretrial
affidavit) they would not be invited to more meetings
because they had closed minds. Garrett remembered
Green, Moody, and Washington's speaking up but insisted
he had no reason to and did not make the statement to
them attributed to him. He said he became irritated at
Traylor because she disrupted the meeting by "hollering
that's lies, nothing but lies" at him, and he told her he was
not going to call her to any more meetings because she had
a closed mind. Elias remembered only Traylor, Green, and
Barfield's speaking up at the meeting, and he testified it
was only Traylor to whom Garrett said he would not invite
her again because her mind was made up.
This testimony convinces me that both sides may have
shaded their testimony to put their own cause in the best
light. I find that Garrett in exasperation made the remark,
as all testified, and that he made it to four employees-
Green, Moody, Washington, and Traylor.
It is substantially undisputed that LeBlanc summoned
the four employees to his office individually late in the
afternoon of December 13, and, in the presence of District
Manager Self and Assistant Manager Elias, told them
Shoney's had opened a hamburger place across the mall
and he could no longer afford to keep all his employees, he
had to terminate them and did not plan to rehire them in
the future, and handed each a Christmas present of $80. I
also find, as the employees testified, that LeBlanc told
Green he was terminating the slow workers, and that he
1315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused Glenn's request to continue working over the
holidays.1 6
Garrett, Quick, and LeBlanc gave the following testimo-
ny in support of the Respondent's defense that the
terminations were based solely on economic considera-
tions.
Starting from a low point in September, sales by the
Respondent's cafeterias generally follow a seasonal pattern
of building up to a high point in December. Therefore, the
Respondent continued its usual hiring practices at Shreve-
port, replacing quits, throughout November. But Novem-
ber sales by the cafeteria were disappointing, showing only
a mild increase, and in early December a layoff was
discussed. It was decided, however, to take no action at the
time in the hope that sales would pick up in December.
That did not happen. On the contrary, on December 1,
Walgreen's opened a lunch counter in the mall and
cafeteria sales dropped $700 for the day and $2,500 for the
week, at the very time, Quick testified, when there should
have been a 10-15 percent increase. Then, on December
11, Shoney's opened a hamburger place in the mall across
from Piccadilly, and the next day there was another drop of
$700. On December 11 or 12, LeBlanc reported that the
106 employees on the payroll were more than he needed,
and Garrett and Quick made the decision to authorize a
cutback. LeBlanc was instructed to select employees for
layoff. He was also told not to select on the basis of
seniority as that was contrary to company policy, but to
select the poorest or least productive workers and to be
sure he did so as unfair labor practice charges would
probably be filed if any were prounion. LeBlanc selected
I I employees, 3 floor personnel, 4 from the counter, I from
the bakery, 2 from the dishroom, and I transfer employee
(10 percent of the 106-employee complement), clearing his
choices with Garrett, Quick, and Self. However, in view of
the employee walkout after these four were terminated, the
plan was not carried out as to the other seven. Quick
testified that, in taking part in this decision, he realized that
an unfair labor practice charge would probably be filed,
but he pointed out that, if these four had not been laid off,
the cafeteria would have lost money, as even so the profit
for December amounted only to $200. By the time of the
hearing in this proceeding, Quick said, the complement had
been reduced to approximately 78 employees.
Set forth below is a table of monthly sales and labor cost
figures beginning in September 1975, the first full month of
Shreveport operation, and, for comparison therewith, of a
cafeteria in Monroe, Louisiana, which the Respondent
considers the most comparable in size and location, and
percentages computed therefrom.
Shreveport
Sept
Oct
Nov
Dec
Jan
Feb
Kar
Apr
May
145,528
138,113
138,742
131,552
102,834
90,904
109,226
112,568
117,258
47,898
43,306
43,130
48,425
39,859
33,453
36,165
35,783
37,293
32.9
31.4
31.1
36.8
38.8
36.8
33.1
31.8
31.8
Monroe
Labor
Sales Cog t
Sept
Oct
Nov
Dec
Jan
Feb
Mar
Apr
Kay
$1 30,999
133,308
144,480
156,060
128,547
125,442
139,034
139,462
150,159
$38,682
40,009
38,416
43,272
41,682
37, 347
41,001
40,497
43,148
Percent
29.5
30.0
26.6
27.7
32.4
29.8
29.8
29.0
28,7
The Respondent also presented figures demonstrating
that the labor cost percentage for all the Respondent's
cafeterias for the month of December was 29.6 percent, for
comparison with the 36.8 percent figure for Shreveport, the
second highest percentage in the Company for that month.
The Respondent's witnesses conceded they did not have
in their possession at the time they decided on the layoff
the tables and figures introduced at the hearing. They
contend, however, that the tables and figures prove their
decision to have been the right one.
I accept the purely economic aspects of this evidence,
which are not unreasonable and are essentially undisputed,
and find that company sales generally follow a pattern of
starting from a low point in September and rising monthly
throughout the fall to the high point of the year in
December; that the monthly sales and labor costs of the
Company and the Monroe and Shreveport cafeterias were
as the Respondent's documents show them. On the same
basis, I find that the opening of the Walgreen's lunch
counter caused daily sales at the Shreveport cafeteria to
drop $700 and weekly sales to drop $2,500; that the
Shoney's opening December I caused another $700 drop;
and that the Shreveport cafeteria showed a profit of only
$200 for December. It also seems to me that these facts
would have justified a 10-percent cutback in employee
complement on or about December 13.
Still to be decided is whether this was the reason for
laying off these four employees as the Respondent's
witnesses testified, or whether it was merely a pretext to
conceal an unlawful reason as the General Counsel
contends.
The testimony regarding the selection of these employees
was as follows:
Gloria Green: LeBlanc testified Green was the slowest
assistant on the floor; she spent too much time washing
towels and talking to other employees. He said he spoke to
Green five or six times, the last about a week before he laid
her off, telling her she would have to pick up speed and not
to talk to other employees while she was doing anything
because it kept the others from working, and although
Green told him she would do better, she did not. Green
denied that LeBlanc ever spoke to her about leaving her
work and talking to other employees. She said she was told
once, during her first week on the job, that she walked too
slow but that she walked faster after that; that her work
"s I do not credit Washington's testimony that LeBlanc offered her a
reference. The General Counsel's contention that Glenn offered to work at
any job is not supported by the record.
1316
PICCADILLY CAFETERIAS, INC.
was not otherwise criticized; and that Self told her 2 weeks
before she was terminated criticized; and that Self told her
2 weeks before she was terminated that she was one of the
better workers.
Dorothy Moody: LeBlanc testified that after business
began to slow down Moody began to be inattentive,
frequently leaving her work station on the pie counter; that
he spoke to her about it four or five times but she just
laughed and came out with different excuses. Moody
testified she never left the pie counter unless properly
relieved.
LeBlanc and Quick testified that Murray Washington was
selected for layoff because of an incident during the first or
second week of December when Quick told Washington
she did not have enough punch in the glasses on the drink
stand, "and she said, ho, ho, ho. Big deal," and did not do
anything about the drinks. Moreover, despite their repeat-
ing the instructions on subsequent occasions, Washington
continued to ignore them, LeBlanc finally concluding "she
was just doing it purposely." On cross-examination,
LeBlanc conceded that the refusal of an employee to carry
out an order of a member of higher management by
laughing and refusing to do anything about it would be
grounds for immediate termination. Washington claimed
she received compliments on her work from LeBlanc,
Russell, and Argrave, and that, on one occasion only,
General Manager Quick showed her, and other employees,
how far to fill the punch glasses. She denied responding
with "Big deal," or refusing to obey.
Bennette Glenn: Glenn worked as second baker under
head baker Clarence Dixon; Shirley Brian was third baker.
Glenn's duties were to bake pies and bread and see that the
serving counters were fully supplied with those items. He
reported to work at 12 p.m. every day except Sunday and
Monday when he was required to report at 7 a.m. because
Dixon was off. LeBlanc testified as follows about Glenn:
He was the only one of the four whose termination was
listed in the Respondent's personnel records as caused by
"work unsatisfactory," as well as reduction in force. When
Glenn was first employed, he seemed to be catching on to
the work pretty well; there was an opening for a second
baker and he was promoted. However, after that he was
late most of the time on Sundays when he was in charge
and was supposed to get employees started; Glenn was late
his first Sunday and although LeBlanc spoke to him about
it, he was late again the next Sunday and the head baker,
who had come in to help him, had to go for him. Also,
Glenn was frequently out of the bake shop and had to be
hunted up when needed. About a week before his
termination, LeBlanc testified and Assistant Manager Elias
confirmed, LeBlanc called Glenn into the office because he
had ruined a batch of pecan pies which had to be thrown
out; Glenn said he thought he could do better, and
LeBlanc gave him another chance. Although Self suggest-
ed, only an hour later, that LeBlanc was having so much
trouble with Glenn he should let him go, LeBlanc replied
that he had just promised Glenn another chance. LeBlanc
testified he would expect a second baker to be able to make
"All the familiar pies that we run as a regular," about 16
different kinds.
Assistant Manager Argrave testified he also remonstrat-
ed with Glenn for being late to work. Glenn was replaced
by Shirley Brian who was promoted to second baker.
LeBlanc said she wore a union button; he, Garrett, and
Manager Davis considered her prounion, and Quick
thought she was a member of the organizing committee.
Glenn testified he was tardy on two Sundays and Dixon
came to get him on one of them, and LeBlanc talked to him
twice about being late to work, but no one else remonstrat-
ed with him. Glenn said LeBlanc complimented him twice,
and also told him once his pies "weren't together." He may
have spoiled some pies, he said, but management told him
"there is so much stuff spoiled." He seldom attempted
pecan pies and could not make strawberry chiffon, he said,
so he made only easy pies like chocolate, coconut, and
lemon. Glenn was unable to name any other kinds of pies
on the Piccadilly menu.
It seems to me that here again all the witnesses were
guilty of some shading of the facts. On balance, I believe
the employees shaded more than management did, and I
find that Green was one of the slowest floor assistants and
that LeBlanc spoke to her more than once about it; that
Moody became lax about leaving the pie counter unattend-
ed and was cautioned about it; that Washington was
pointedly indifferent to instructions about doing her job
properly; and that Glenn was a disappointment both in
attendance and aptitude as second baker.
Conclusions
The General Counsel is supported on this issue by the
facts that management knew these four employees were
advocates of the Union; the Respondent admittedly was
hostile to the Union and waged a vigorous campaign
against it, which included unfair labor practices consisting
mostly but not entirely of interrogating employees;
Secretary-Treasurer Garrett demonstrated his irritation at
Green, Washington, and Moody, as well as another
employee not chosen for layoff, for challenging his
antiunion statement; the terminations were timed only 2
days after Garrett's demonstration, at the height of the
union campaign, and only 5 days before the Board election
in which the Respondent could have expected all four to
vote for the Union. As against this, the Respondent's
defense is supported by the following: The sales perfor-
mance of the cafeteria was disappointing, culminating in a
drop of sales in December which should have had the
highest sales of the year; the timing of the layoff coincided
with a sharp decrease in business at the opening of
Shoney's on December II, after an equal drop at the
Walgreen's opening on December I; the testimony that an
I I-employee layoff was decided upon and was not fully
carried out only because of the strike is undisputed, and the
layoff would have been a reasonable 10 percent of
complement justified by the subsequent figure of a 9-
percent sales drop for December; it is undisputed that it
was contrary to company policy to lay off in inverse order
of seniority; each of these employees' work performance
was deficient in some way which would justify selection for
an economic layoff on a performance basis. No more
logical candidates for layoff on the basis of performance
have been put forward; and Glenn was replaced by an
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee who was as active a union proponent as he was.
Moreover, the fact that the selectees' deficiencies have been
tolerated over a period of time until the advent of a union
election does not carry the usual undermining force when
economic conditions justify a layoff and account for the
timing, and when selections are made on a nonseniority
basis. That Murray Washington was not discharged
immediately for insubordination 2 weeks before the layoff
does not help the General Counsel's case, as I cannot say,
in the light of this record, that the Respondent was
unaware of Washington's union adherence at that time or
that it treated her in a disparate manner if it was. Nor can I
find the economic defense shaken by the hiring of three
new employees in early December in view of the undis-
pu'edi explanations. Thus, Assistant Manager Elias hired a
floor assistant replacement on December 11 because
LeBlanc had failed to instruct him not to do so. A customer
assistant was hired on December 14 because she was in the
cafeteria when the December 13 walkout occurred, asked
for a job, and was hired because management did not know
then when the strikers would return. One other employee
was hired on December 14 as a pot washer, a hard job
difficult to fill with female employees, and there is no
indication that any of the layoffs would have taken such a
job if it had been offered to them.
After carefully considering all the facts, I find that, to the
extent that the General Counsel established a prima facie
case on this issue, the Respondent's defense reduced it to
no more than a mere suspicion. As the terminations can be
accounted for by economic and nonmerit considerations as
well as by antiunion considerations, I conclude that the
allegations are not supported by a preponderance of the
credible evidence and must be dismissed.
6. The strike
The evidence is undisputed, the Respondent appears to
concede, and I find that approximately 30 employees who
were on duty around 6 or 7 p.m., December 13, walked off
the job in protest against the Respondent's discharge or
layoff of the four employees discussed above. The strikers
assembled in the mall with Union President Dickey and
other union officials and, after half an hour or more, they
attempted to return to work upon instructions of the Union
but were informed by various management representatives
that they were fired for striking.' 7 The next day all save
those discussed below were summoned to return to their
jobs on their next regular shift and none suffered any loss
of pay.
As the strike was caused by the terminations of Green,
Moody, Washington, and Glenn, and as I have found no
unfair labor practices in their terminations, it follows, and I
find, that the strike was not an unfair labor practice strike.
7. Jocelyn Williams
The complaint alleges Jocelyn Williams was discharged
on December 14, the day after the strike, for discriminatory
reasons. The Respondent contends she in effect quit.
17 The complaint does not allege a violation of the Act by the
Respondent for this conduct, except to the extent discussed below.
Williams was hired on September 25 as a food server on
the line. She testified that Assistant Manager Russell
complimented her work on several occasions.
Williams suffered an injury to her leg on the job late in
October. The leg was bandaged at Assistant Manager
Russell's direction. Williams completed her work that day
but, she testified, the leg continued to distress her and she
was allowed to leave work early on several Sundays after
that because her leg hurt. Finally, on Sunday, November
16 (when she had worked only 2 hours of her shift) her leg
collapsed and Russell permitted her to go home again. She
then consulted a doctor who diagnosed a fungus infection
and put her leg in a cast. She testified that she called the
cafeteria everyday for 2 weeks after that, letting Russell,
Argrave, or LeBlanc know she was not able to come back
to work because she was wearing a cast and could not get a
shoe on. During that period she received in the mail 10 to
15 pieces of antiunion literature from the Respondent,
including a sample ballot. On December 15, she spoke to
LeBlanc again on the telephone and informed him she had
a doctor's statement and was ready to come back. LeBlanc
told her, however, that he had a lot of employees at that
time, did not need her, and would call if he did need her.
He never called.
Argrave testified he had no contact with Williams after
the last day she worked. Russell testified that Williams
scraped her ankle against a dish cart, causing a little
bleeding, and that first aid was administered. She contin-
ued to work and continued to wear a bandage although he
did not remember the matter coming up again. He testified
that she went home early on several occasions, but not in
connection with her leg injury as he recalled. On her last
day, she went home early but he did not know why, and he
heard nothing from her after that.
LeBlanc testified Williams left work on a Sunday
(November 16) saying she was sick. Argrave told LeBlanc
he had talked to her and she was not coming in the next
day. LeBlanc next heard from her in January when she
asked if she could come back to work. He informed her
that business was slow and all jobs were filled. She asked
when she might return and he suggested perhaps March.
Although Williams missed a lot of work, LeBlanc consid-
ered her performance satisfactory.
The Respondent's records show that of the last six
Sundays (October 12, 19, and 26 and November 2, 9, and
16) she was scheduled to work, she worked only 4-1/2
hours on four of them and 2 hours on the last two. She
worked a full 8 hours only one Sunday, October 19. She
worked a full 8 hours on weekdays, except for Monday,
October 20, when she worked 4 hours; Monday, October
27, when she worked 7 hours; Friday, November 7, when
she was absent; and Wednesday, November 12, when she
worked 2 hours. She worked 9 hours Saturday, October 18.
The records bear the notation "Replaced off sick
11/16/75" and show she was carried on the payroll as
absent until the end of her last week, Saturday, November
22.
Williams was an appealing witness in some ways, but,
upon analysis, much of her testimony here is highly
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PICCADILLY CAFETERIAS, INC.
improbable. Her claim that she was allowed to leave work
early on Sundays because her injured leg is of doubtful
credence because it does not seem reasonable that this
would happen only on Sundays, and because of the
regularity of the hours missed each time, exactly 3-1/2.
Similarly questionable was her claim that her final
departure and extended absence were caused by the leg
injury which she suffered on the job. Thus, she failed to
describe the nature of the injury, and we have only
Russell's testimony that she scraped her ankle on a dish
cart and was treated with methiolate and a Band-Aid and
that he did not recall her mentioning the matter again.
There is no indication that she claimed workmen's
compensation even though she was off from work for a
month before she claims to have been well enough to
return to work. It also seems improbable that she would
telephone the cafeteria every day for 2 weeks to tell
management the same thing; whereas the Respondent's
records are consistent with the testimony of its witnesses,
that she went home sick and, hearing nothing further from
her, they carried her on the payroll for only a week after
her departure and then replaced her. In view of these flaws
in her testimony, I cannot find Williams to be a reliable
witness on the circumstances of her discharge. According-
ly, even though she may have been known to be prounion
and even though her continued receipt of company
campaign propaganda was not refuted or explained, I must
conclude that the allegation that she was terminated for
discriminatory reasons is not supported by a preponder-
ance of the credible testimony and must be dismissed.
8. Vicky Sandefur
The complaint alleges, and the answer denies, that
Sandefur participated in the December 13 strike, made an
unconditional offer to return to work December 17, and
that the Respondent refused to reinstate her.
Vicky Sandefur (Thibodeaux) was a floor assistant. At
the time of the strike she and a few other employees went
to the office to get their paychecks before walking out and
she told LeBlanc and Elias, "they just wasn't treating
everybody right and fired them for no reason." Thereafter,
upon instruction of Union Representatives Dickey and
Johnson, they returned to the cafeteria where the new
manager said the strikers were fired.
The following day, Sunday, December 14, Sandefur met
Union Representatives Smalley and Johnson who advised
her that all strikers had been sent telegrams and to go home
and see if she received one. Sandefur had moved recently
without giving the Respondent her new address, but she
found no telegram at her old address. She then went to the
cafeteria with her roommate and fellow employee, Donna
Reed, looking for one of the managers. Before they found
one of them, a cook told them that they had walked out
and could not come in, and they left the cafeteria. About 4
p.m. that day, Reed telephoned the cafeteria, and then
informed Sandefur that Elias said they should report back
to work Monday, December 15, at their regular time.
However, Sandefur testified, she and Reed had an
argument later that day, Sunday, December 14, and agreed
not to live together from then on, and for this reason
Sandefur decided not to work at Piccadilly any more. She
therefore did not return for her regular shift either
December 15 or 16.
Sandefur testified that on Wednesday, December 17,
which she mistakenly thought was the election day, she
went to the cafeteria for the sole purpose of voting. She
said she did not intend to work and would turn in her
uniforms. She said that, upon arrival, she asked Assistant
Manager Elias if she could vote in the election, and he first
told her she could not vote, but then said her job was still
open if she wanted it. Telling her then to wait a minute, he
summoned Secretary-Treasurer Garrett who informed her
he had filled her job; as he thought she had quit to get
married, he had taken her off the schedule when she did
not report for her shift. Sandefur testified she did not
remember, but she did not think she ever told the
Respondent she quit, and she was not sure if she did quit.
She did remember that Elias asked if she were getting
married, and that she said yes. She did not cast a ballot in
the election.
Secretary-Treasurer Garrett testified that Reed came in
on Monday, turned in her uniforms, and said she was
leaving town and Sandefur was getting married. Garrett
testified he asked the managers about Sandefur after that
but no one had seen her and therefore on Wednesday,
December 17, he deleted her name from the list of eligible
voters in the election, replaced her on the work schedule,
and marked her timecard as a quit; he denied seeing her
that day.
Garrett and Assistant Manager Elias testified they did
not see Sandefur again until December 19 when Elias
observed her in the cafeteria wearing street clothes and
carrying her uniforms; he asked her if she was quitting, and
she said she was. Elias took her in the office where they
found Garrett. Elias asked her why she was quitting and
she said she was getting married. Garrett told her he had
assumed she had quit and had replaced her, and wished her
good luck in her forthcoming marriage.
I do not credit Sandefur, whose testimony is uncorrobo-
rated, as against Elias and Garrett. Moreover, it does not
seem reasonable, in view of her purported frequent and
close association with union officials, that she would refuse
the Company's offer of reinstatement because she decided
for reasons unrelated to the strike to quit and not show up
for 2 days without notice to her employer, and then visit
the cafeteria carrying her uniforms to turn in and with no
intent to work, and expect to vote in the election. Similarly,
if she had gone there when she says she did and was in
disagreement with the result, it seems unlikely that she
would not have appeared again the next day to cast a
challenged ballot. Crediting Elias and Garrett here,
therefore, I find that Sandefur never made an offer to
return to work after the strike and that the Respondent did
not refuse to reinstate her as alleged in the complaint.
IV. CHALLENGES TO BALLOTS AND OBJECTIONS TO
ELECTION
A. Challenges
The challenges to the ballots cast by the following should
be sustained:
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mary Clark Jocelyn Williams
Bennette Glenn Brenda Jones
Gloria Green Ruie Aleen Horton
Dorothy Moody Alvin Bourke
Linda Thomas Willie Haskins
Murray Washington
The challenge to the ballot of Dorothy Goff should be
overruled.
The ballots of Deborah Cline and Azzie Jenkins were
challenged by the Petitioner on the ground that they are
supervisors. Floor assistants work in the dining room
carrying trays, pouring coffee, and cleaning tables. Several
of them testified that they considered Cline and Jenkins
floor supervisors, and two testified that Manager LeBlanc
called the assistants together and introduced Cline as their
new floor supervisor. They said that Cline posted their
work and break schedules; kept track of the food
employees ate for the purpose of deducting the cost of it
from their pay; spent most of her time relieving the cashiers
and checkers, working in the office, running the adding
machine, and taking money to the bank. Three assistants
said Cline was not on the floor to see that the assistants did
their job, but one said Cline gave orders to the assistants.
Manager LeBlanc testified that Cline was an hourly
employee whose wage was higher than that of floor
assistants. She was responsible for posting the menu board,
tolling daily receipts and posting employees' meal tickets,
counting the money, making out deposit slips, and taking
money to the bank. He said Cline also worked on the floor
pouring coffee, cleaning tables, and that she relieved the
cashiers and checkers. She saw that the dining rooms were
in good shape and, at times directed employees to clean a
room. He said, if an employee refused her instructions,
Cline referred the problem to LeBlanc. He has asked Cline
how employees were doing, but she had no authority to
recommend personnel action.
The floor assistant witnesses testified that Jenkins
assigned them to areas of the dining room they were to
work in, and asked them to delay their breaks when the
dining rooms are busy; that Jenkins cleaned tables when
the rooms were busy, otherwise she served coffee and tea,
and that she wore a badge designating her as assistant
supervisor. One assistant said Jenkins once falsely accused
her of being disobedient and not doing what Jenkins told
her to do. An assistant said Jenkins gave orders and
assigned special duties, posted break schedules, told
employees when to take breaks, and told employees to stop
talking and get busy. Azzie Jenkins testified that she was
promoted from floor assistant to her present position at an
hourly wage which pays her $100 a week ($15 more than a
floor assistant, $10 more than a cashier-checker), but she
wears the same uniform the floor assistants wear. She does
tell employees what to do, reminding them of their duties,
but most of her time she is cleaning tables, pouring coffee,
and carrying trays, setting up condiment stands, and
refilling salt and pepper shakers. The managers are on the
floor 20 times a day, she said, and they give orders for
"' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
Jenkins to relay to the floor assistants. Jenkins helps to
train new floor assistants and, when new managers ask how
they are doing, Jenkins tells them fine or bad. She also tells
the manager if one is not doing her work right and he talks
to her. Jenkins said she posts the breaktime schedules, and
tells employees to postpone breaks (but not lunch hours)
when they are needed on the floor. The managers keep
time on the employees although Jenkins tells them if
employees are late. LeBlanc has remonstrated with an
employee for not doing what Jenkins told her to do.
The facts set forth above, which are not contradictory in
any significant way, reveal Cline and Jenkins to be
essentially leadpersons, similar to working foremen, whose
authority is, like that of Dorothy Goff, limited to direction
of routine duties and reporting transgressions. I find they
are not supervisors as defined in the Act, and that the
challenge to their ballots should be overruled.
B. OJjections
Based on findings and conclusions above, Petitioner's
Objection 6, that specific gifts were offered in return for a
commitment to vote against the Union, and Objection 7,
that employees were discharged because of their union
activity, should be overruled; and that Objection II, that
potential voters were polled prior to the election, and
Objection 16, that the Employer committed numerous
violations of Section 8(a)(1), be sustained.
I further find that the Employer's conduct herein found
objectionable interfered with the employees' free choice of
representatives and was of sufficiently substantial nature to
affect the results of the election. Therefore, if, upon the
opening and counting of the ballots to which challenges
have been overruled, the Union does not have a majority,
the election must be set aside and a new election held.
V. REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that the Respon-
dent be ordered to cease and desist therefrom, and from
infringing in any like or related manner on its employees'
exercise of their rights under Section 7 of the Act. I shall
also recommend that the Respondent post appropriate
notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
The Respondent, Piccadilly Cafeterias, Inc., Shreveport,
Louisiana, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Coercively interrogating employees about their or
other employees' union activities, sentiments, or desires;
implying that employees would receive job benefits if the
Union is not voted in or that an employee's promotion is a
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.
1320
PICCADILLY CAFETERIAS, INC.
quidpro quo for a no vote; soliciting employees to persuade
others to support the Respondent's antiunion campaign;
promising to rectify employee grievances or other benefits
to influence votes; creating the impression of surveillance
of employees' union activities; or threatening adverse
economic consequences of unionization.
(b) In any like or related manner interfering with,
coercing, or restraining its employees in the exercise of
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its Shreveport, Louisiana, cafeteria copies of
the attached notice.19 Copies of said notices, on forms
provided by the Regional Director for Region 15, after
being duly signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. The Respondent shall also take reasonable steps to
insure that the notices are not altered, defaced, or covered
by any other material.
"' In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges violations of the Act not
found herein.
IT IS FURTHER ORDERED that the challenges to the ballots
of Mary Clark, Bennette Glenn, Gloria Green, Dorothy
Moody, Linda Thomas, Murray Washington, Jocelyn
Williams, Brenda Jones, Ruie Aleen Horton, Alvin Bourke,
and Willie Haskins cast in the election conducted in Case
15-RC-5797 on December 18, 1975, in an appropriate unit
of the Respondent's employees be sustained; that the
challenges to the ballots of Dorothy Goff, Deborah Cline,
and Azzie Jenkins be overruled and their ballots opened
and counted. If, upon the counting of all valid ballots
including all ballots to which challenges have been
overruled, the Union does not win, then it is further
ordered that the election be set aside and that a new
election be conducted at such time as the Regional
Director deems appropriate.
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
1321