Treadway Inn

National Labor Relations Board - Board Decisions

Jul 31, 1970

184 N.L.R.B. 715 (N.L.R.B. 1970)

TREADWAY INN 715
Yankee Trader , Inc., d/b/a Treadway Inn and Hotel,
Motel & Restaurant Employees & Bartenders
Union , Local 466 , AFL-CIO. Case 3-CA-3980
July 31, 1970
DECISION AND ORDER
By MEMBERS FANNING, MCCULLOCH, AND JENKINS
On May 5, 1970, Trial Examiner George Turitz
issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and
was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. The Trial
Examiner also found that Respondent had not en-
gaged in certain other unfair labor practices and
recommended that these allegations of the com-
plaint be dismissed. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner, as modified below.
1. While discussing the Union with several em-
ployees, Respondent's Food Manager Van der
Woude was asked "what would happen to [the em-
ployees] ... overtime since the normal practice in
union houses [was that employees] ... worked ...
40 hours." Van der Woude testified that he stated
that he "didn't know, but from what I understood,
the union would have to put on `x' number of peo-
ple so that the house could not afford to pay over-
time and everbody would have to go on 40 hours."
The Trial Examiner found that, by this statement,
Van der Woude threatened employees with loss of
overtime and extra work if they organized, in viola-
tion of Section 8(a)(1). Respondent excepts to this
finding by the Trial Examiner and contends that
such a statement is protected by Section 8(c) of the
Act. However, we agree with the Trial Examiner's
finding. The record does not establish that Van der
Woude had any way of knowing what demands the
Union might make or how the Respondent might
attempt to compensate for any increased expenses
arising from union demands, and his prediction was
purely speculative. As the Supreme Court stated in
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618
(1969):
[An employer's prediction about the con-
sequences of unionization] must be carefully
phrased on the basis of objective fact to con-
vey an employer's belief as to demonstrably
probable consequences beyond his control ...
in case of unionization.
Since Van der Woude's prediction was not based
on "objective fact ... as to demonstrably probable
consequences," it was violative of Section 8(a)(1).
2. In ' finding that Respondent violated Section
8(a)(1) by interrogating employee McMillen about
signing a union authorization card, the Trial Ex-
aminer found that Respondent's Manager Zitrin
"had somehow found out that McMillen had signed
the card." Since this statement has no basis in the
record and is speculative, we do not adopt it,
although we agree with the Trial Examiner that
Zitrin's interrogation of McMillen was violative of
Section 8(a)(1).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, Yankee
Trader, Inc., d/b/a Treadway Inn, Rochester, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order, as so modified:
1. Amend paragraph 1(c) by changing the
period at the end thereof to a comma and by ad-
ding the following: "and, in implementation of such
soliciting , urging, or suggesting , assisting employees
in the preparation of letters or other documents by
I No exceptions were filed to the Trial Examiner's findings that Respon-
dent did not violate Section 8(a)(3) by discharging employee Shapiro, and
that Respondent did not violate Section 8(a)(1) by interrogating and
requesting employee Shapiro to inform it of union activities of other em-
ployees, by threatening to reduce benefits , eliminate overtime , and make
other changes if the employees unionized , by requesting that the employee
Deberardmis "get [the union ] off [Respondent 's] back", and by threaten-
ing to defeat the Union by replacing employees who joined or assisted the
Union Accordingly , such findings are adopted proforma
= The findings and conclusions are based , in part , upon credibility deter-
minations of the Trial Examiner , to which Respondent has excepted. After
a careful review of the record , we conclude that the Trial Examiner 's credi-
bility findings are not contrary to a clear preponderance of all the relevant
evidence. Accordingly, we find no basis for disturbing those findings Stan-
dard Dry Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A. 3)
184 NLRB No. 81
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which employees could revoke their union mem-
bership or designation cards."
2. Delete paragraph 1(d).
3. Renumber paragraph 1(e) as 1(d).
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner : Upon a charge
and two amended charges filed by Hotel , Motel and
Restaurant Employees and Bartenders Union,
Local 466, AFL-CIO (" the Union "), on December
22, 1969 , January 6, and February 6, 1970, and
served on December 23, 1969, January 15 and
February 6, 1970, respectively , upon Yankee
Trader, Inc., doing business as Treadway Inn
("Respondent" and, at times , "Treadway"), the
General Counsel of the National Labor Relations
Board (" the Board"), through the Regional
Director for Region 3, on February 12, 1970, is-
sued a complaint and notice of hearing against
Respondent . The complaint was thereafter
amended in certain respects . Respondent filed an
answer in which it denied all allegations of unfair
labor practices . A hearing was held at Rochester,
New York, on March 19 and 20, 1970, before the
Trial Examiner named above . The General Coun-
sel, Respondent, and the Union were represented at
the hearing by their respective counsel, and
Respondent has submitted a brief to the Trial Ex-
aminer.
Upon the entire record and from his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, Yankee Trader, Inc., is, and has
been at all times material herein, a New York cor-
poration having a place of business in Rochester,
New York, where it is engaged, under the name of
Treadway Inn, in operating a motel and performing
related services. In the course and conduct of its
business operations at its motel Respondent an-
nually receives gross revenues in excess of
$500,000, and annually receives goods valued at in
excess of $10,000 which are transported to said
place of business in interstate commerce directly or
indirectly from States of the United States other
than the State of New York. Respondent rents less
than 75 percent of its rental units to guests who
remain for one month or longer. It is found that
Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of
the National Labor Relations Act, as amended (the
Act).
II. THE LABOR ORGANIZATION INVOLVED
Hotel , Motel and Restaurant Employees and Bar-
tenders Union , Local 466, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were
Respondent's allegedly discriminatory discharge of
Charles Shapiro, its interrogation of employees as
to their union membership and desires, its solicita-
tion of withdrawals from the Union, and various al-
leged threats of retaliation because of the em-
ployees' membership in, and activities on behalf of,
the Union.
A. Interference, Restraint , and Coercion
In the middle of December 1969 the Union
started a campaign to organize Respondent's em-
ployees. Zitrin, Respondent's manager, was in-
formed that a number of strangers were going
through the maintenance section, hallways, and
hotel rooms of the motel apparently seeking to in-
terest employees in a labor organization. He in-
structed his department heads and various em-
ployees to notify him if any unauthorized in-
dividuals were in "unauthorized sections" of the
hotel. Charles Shapiro testified that after union,
authorization cards had been circulated among the
employees Zitrin, putting one of the cards into his
pocket as he passed by Shapiro one day, called
Shapiro a derogatory ephithet with obscene and in-
sulting connotation. He stated that when he asked
for an explanation, Zitrin said that the Union had
given Respondent problems in the past and he
would not tolerate having the Union. Shapiro
protested, "I don't know anything about it," Zitrin
replied, according to Shapiro, "You know about all
of these cards going around." A moment later he
said, Zitrin, asked him to come to the office, where
he recounted past difficulties caused by the Union's
alleged resort to violence, and repeated that he
would not tolerate having a union which, in any
event, the employees did not need. He then asked
Shapiro to inform him of which employees were
passing out cards and to report to him if any out-
side organizers came into the kitchen. Shapiro also
testified that Zitrin said, "We never had these cards
before and all of a sudden you come here and these
cards are starting to float around." He did not in-
dicate at what point in the conversation that was
said. Zitrin testified that he had no recollection of
having called Shapiro the derogatory name, denied
categorically having done so in connection with any
question as to unionization, and denied having had
TREADWAY INN 717
the conversation as described by Shapiro. As
Shapiro was an interested witness and was not cor-
roborated, and as he did not impress the Trial Ex-
aminer as an especially reliable witness, it is found
that the General Counsel has failed to prove by a
preponderance of the evidence that Zitrin made the
various statements ascribed to him by Shapiro. It
will be recommended that subparagraphs (a), (b),
and (f) of paragraph VI of the complaints be
dismissed.
On December 17 Zitrin held meetings of the em-
ployees in the various departments and addressed
them. Shapiro testified that at the meeting he at-
tended Zitrin pointed out that Respondent gave the
employees jobs without asking for money, in con-
trast to the Union, which, he said, took the em-
ployees' money. He said that Respondent had given
the employees all the benefits it could possibly give
and all the benefits the Union could offer. He
testified, also, that Zitrin said that if the Union
came in, Respondent would permit employees to
work only on jobs to which they were assigned, and
they would have to clock out and leave when that
job was finished, and that Respondent would not
permit them to work on other assignments and thus
earn overtime pay. Zitrin testified credibly that in
the question and answer period of one of the
meetings the question of whether an employee
could work on more than one job was brought up
and that he replied that he understood that with a
union contract each employee had a classification
and that the union did not permit employees to do
any other kind of work. He flatly denied saying that
the Respondent would not permit overtime.
Shapiro was not corroborated. It is found that the
General Counsel has failed to establish by a pre-
ponderance of the evidence that Zitrin threatened
that Respondent would deprive the employees of
overtime or extra work if they joined or assisted the
Union. It will be recommended that subparagraph
(e) of paragraph VI of the complaint be dismissed.
Shapiro testified that shortly after the meetings
just described he had a conversation about the
Union with Van der Woude, Respondent's food
manager. He stated that Van der Woude said that
Respondent could discharge the entire kitchen
crew and keep the kitchen going by flying in per-
sonnel from other parts of Respondent's chain, but
that Respondent would not do it since it had ascer-
tained that having the Union would not be too
costly, although it would be very inconvenient. As
to this last, he said, according to Shapiro, that the
Union would not permit it to assign employees to
other than their regular jobs, that Respondent
would have to have a man assigned to each station,
and that when overtime was needed, "the company
will not go for it. We will bring in extra help if we
have [to] rather than pay the overtime to the in-
dividual." Shapiro testified that Van der Woude
also pointed out that the hotel maids finished their
work in 6-1/2 hours and relaxed the remainder of
their 8-hour day, but that if the Union got in,
Respondent would require them to clock out as
soon as they had completed their work.
Van der Woude admitted having indicated to
Shapiro that Respondent might fly chefs in to keep
the kitchen going. However, he testified that the
occasion was a discussion between him and Shapiro
as to the possibility of a strike and that it was
Shapiro who made the original comment and that
he merely agreed with Shapiro, at the same time
saying that he did not know what Respondent
would do. The Trial Examiner has credited Van der
Woude's testimony as to what was said in the con-
versation. It is found that Respondent did not
threaten to defeat the Union by replacing em-
ployees who joined or assisted the Union with chefs
brought in from other parts of the country. It will
be recommended that subparagraph (d) of para-
graph VI of the complaint be dismissed.
Van der Woude testified that he recalled no con-
versation with Shapiro about overtime but testified
that he had made similar comments to other em-
ployees 'who asked him what would happen to their
overtime in view of the normal practice in union
houses of working 40 hours a week. He stated that
he told them that he understood that the Union
would require Respondent to employ a certain
number of employees, so that, as a consequence,
Respondent would not be able to afford to pay
overtime and all employees would be limited to a
workweek of 40 hours. According to both Van der
Woude and Shapiro, Van der Woude said (a) that
the Union's manning requirement would cause
extra expense; (b) that Respondent would compen-
sate for this by using extra employees, presumably
at straight-time rates, when additional work was
required, rather than use regular employees work-
ing overtime at premium rates as in the past; and
(c) that the decision to save money in this manner
would be Respondent's, not the Union's. Thus Van
der Woude was not stating what he reasonably be-
lieved would be the likely economic consequences
of unionization outside Respondent's control. He
was, rather, telling employees that Respondent, on
its own initiative and of its own volition, would cur-
tail overtime in the event that the employees chose
to have a union. It is found that Respondent
threatened employees with loss of overtime and
extra work if they joined or assisted the Union and
that Respondent thereby violated Section 8(a)(1)
of the Act.
Van der Woude testified that he recalled no con-
versation with Shapiro about the maids being
required to clock out when they finished work. The
General Counsel offered no corroborative
evidence. It is found that the General Counsel has
failed to prove by a preponderance of the evidence
that Respondent threatened to deprive the maids of
rest time if the employees chose to bargain collec-
tively.
In December 1969 Donato Deberardinis, one of
Respondent's bartenders, replying to Zitrin's criti-
cism of certain of his conduct, assured Zitrin that
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he no longer belonged to the Union, that he knew
who they were and what was going on, and that
they would never get in at Respondent's motel.
Zitrin replied, "As long as you know them, get
them off my back." It is found that Zitrin's remark
was not coercive. It will be recommended that sub-
paragraph (g) of paragraph VI of the complaint be
dismissed.
On December 29, 1969, McMillen, a busboy in
the coffee shop, signed a union authorization card
at the solicitation of a waitress. McMillen, an ex-
tremely shy individual, felt conflict after signing the
card. He testified, credibly, "Well, at first when I
signed it, I felt some sort of pressure, I don't know
just what kind of pressure, but it was there and I
felt it. I felt some pressure from the Union and I
don't know what the other one was." Some 10 or
15 minutes later, while crossing the corridor
between the coffee shop and the kitchen in the
course of his duties, he was met by Zitrin, who had
somehow found out that McMillen had signed the
card. Blanche Hauser, Respondent's sales manager,
happened to pass by at the time and Zitrin called
her over. He asked McMillen if he had signed a
card for the Union. McMillen testified, "I had no
other choice but to tell him that I did." He told
Zitrin that he had been tricked and had not wanted
to sign the card. Zitrin said that he could get his
card back, and he asked McMillen to accompany
him and Hauser to the sales office.' There Zitrin
asked McMillen if he wanted to join the Union and
McMillen said that he did not. Zitrin then asked if
he wanted to sign a statement to that effect and he
said that he would. McMillen explained that after
talking with Zitrin, he thought that he might as well
sign the statement because of the amount of dues
involved. Hauser gave him a piece of stationery and
told him what to write. He wrote: "I wish to recall
that voting card that I singed [sic] today December
29th. James Richard McMillen." Hauser gave him
an envelope and stamp and told him how to address
it. McMillen accompanied Hauser to a mail box in
which she deposited his letter. He subsequently
signed two more authorization cards for the Union.
Zitrin and Hauser described the incident somewhat
differently. McMillen impressed the Trial Examiner
as a truthful witness, although somewhat suggesti-
ble at times, and his testimony has been credited
over that of Zitrin and Hauser.' While McMillen,
apparently because of conflicting pressures, was
troubled at having signed the card and, as, he
testified, "wanted to forget about the whole union
matter altogether," he did not request Respondent
to help him get his card back. That idea originated
with Respondent, and it was carried out under
Respondent's supervision and its direct participa-
tion. It is found that by its solicitation of the
withdrawal and its assistance' and participation
therein Respondent violated Section 8(a)(1) of the
Act. See N.L.R.B. v. United Biscuit Company of
America, Union Biscuit Division, 208 F.2d 52 (C.A.
8), cert. denied 347 U.S. 934, enfg. 101 NLRB
1552.
Zitrin's questions to McMillen as to whether he
had signed a union card and whether he wanted to
be a union member had no legitimate purpose.
Distinguish Blue Flash Express, Inc., 109 NLRB
591. On the contrary, his purpose was to lay a foun-
dation for the illegal engineering of McMillen's
withdrawal from the Union. In his speeches Zitrin
had manifested to the employees Respondent's
hostility to unionization. As a result, his action as
innkeeper in interrupting McMillen's work to
question him about having signed the card, in such
a manner, moreover, as to convince McMillen that
he had by some means already found out,3 neces-
sarily created an atmosphere inspiring fear. An em-
ployee thus confonted and questioned by Respon-
dent's highest authority could not feel that he was a
free agent with respect to unionization, and it is sig-
nificant that McMillen testified, "I had no other
choice but to tell him what I did." This feeling of
lack of freedom was aggravated by moving the con-
ference into the sales-banquet office, where the in-
terrogation continued. It is found that Respondent's
interrogation of McMillen was in violation of Sec-
tion 8(a)(1) of the Act.
B. The Discharge of Charles Shapiro
Respondent 's kitchen and serving staff were
under the overall supervision of its food manager,
Van der Woude . The kitchen personnel numbered
approximately 25. It included four full -fledged
cooks , namely the second cook , the saute cook,
the broiler cook , and the relief cook , and a cook-in-
training who acted as cook 's helper." The second
cook worked on the day shift , preparing all food,
including sauces, for both shifts for the dining room
and coffeehouse and for banquets ; he was assisted
by the cook's helper. The saute and broiler cooks
worked the night shift , and the relief cook normally
replaced these various individuals on their days off.
In August 1969 Gibson , one of Van der Woude's
staff, went on vacation . Gibson , a young man of 22
who had worked in the motel for 5 years, was the
saute cook, but once a week he acted as second
cook. While on vacation he had a heart attack, and
Van der Woude understood that he would never
return to work in Respondent's kitchen.
In about late September or early October 1969
Van der Woude was dissatisfied with the then
' McMillen used the term sales office The office was used not only by
the sales manager , but also by the banquet manager and by the head waiter
'The main point of difference was that Zitrin and Hauser insisted that
the former did not accompany McMillen to the office The Trial Examiner
is convinced that McMillen 's testimony on this matter was correct It
should be noted , however , that the point is not important , since it is plain
that whatever Hauser did with McMillen was at Zitnn's bidding
' The General Counsel did not allege or contend that by this incident
Respondent created the impression of surveillance of the employees' union
activities
'The remaining kitchen personnel were salad workers , bakers, dish
washers, and cleanup people
TREADWAY INN
second cook and sought a replacement. He spoke
with one James Bond, who, however, expressed
reluctance to take the job because he was then
working under a contract which was not to ter-
minate until the end of the year. Van der Woude
brought him to Zitrin, who offered him legal
assistance to "break" the contract. Bond said he
would think about it. On about October 17 Van der
Woude interviewed Charles Shapiro, an ex-
perienced cook, who worked full time as chef at
night at a restaurant called the Rio Bamba. Because
of extraordinary medical expenses Shapiro was
seeking a second job. Van der Woude told Shapiro
that he was committed to hire Bond, but that he
would let Shapiro know if Bond refused the job.
Shapiro's interview with Van der Woude took
place on a Friday or Saturday. During that weekend
the second cook whom Respondent was seeking to
replace suddenly walked off the job. Van der
Woude contacted Shapiro and asked him if he
could start on Monday. Shapiro accepted. In order
to accomodate Shapiro in connection with his job
at the Rio Bamba, it was agreed that instead of
working the usual 8-hour shifts he would work six
7-hour shifts, quitting an hour earlier each day than
Respondent's normal schedule required. After
Shapiro had been working several days, Van der
Woude received a letter from Bond rejecting the
job. He told Shapiro, who testified, that, in
response to his question, Van der Woude said that
the job was his permanently. This was denied by
Van der Woude. He testified that about 3 weeks
after starting Shapiro asked him if he could have
the day-shift job on a full-time basis and that he put
Shapiro off.
On December 1 Gibson returned to the job, but
only for 4 hours a day. On December 30 he brought
Van der Woude a certificate from his physician cer-
tifying that he was able to work 8 hours a day. The
next day, Wednesday, when Shapiro was about
finished with his shift, Van der Woude called
Shapiro in. After telling Shapiro that he ap-
preciated his having helped him out, he said that
Gibson was ready to return to work and Shapiro
would no longer be needed. Shapiro testified that
he replied that he appreciated the fact that Van der
Woude had given him the job and that if he ever
could help him out he would. Wednesday was the
middle of the payroll week and was not the usual
payday.'
Van der Woude admitted that Shapiro's pred-
ecessor was a permanent employee and, if
satisfactory, would not have been displaced by Gib-
son, and that the same would have been the case
with Bond if he had accepted the job. Nevertheless,
he testified that he hired Shapiro as a temporary
employee and that after about 3 weeks, when
Shapiro asked whether he could have the job on a
full-time basis, he put Shapiro off with an indefinite
' Shapiro recalled that this happened at about 12 30 and that he was not
paid for a full day Van der Woude's testimony that it took place at the end
719
answer, since, he had some doubt that Shapiro
could carry two jobs satisfactorily. He also testified
that Gibson, although not so accomplished as
Shapiro, had much ability and that he told Gibson
during November that he was entitled to the second
cook's job if and when he could work full time.
Shapiro testified that on his first day of employment
Van der Woude told him that Bond had rejected
the job and that Shapiro could have it as long as he
wished. He also testified that after a time he
requested a wage increase from Van der Woude,
who replied, "Let's see how things go for now and
let things ride the way they are." The Trial Ex-
aminer found Van der Woude the more convincing
witness and, on the basis of his testimony, finds that
Shapiro was hired as a temporary employee and
that this status was not changed during his employ-
ment.
CONCLUDING FINDINGS WITH RESPECT TO
SHAPIRO'S DISCHARGE
The second cook's job was the heart of Respond-
ent's operation so far as the purveying of food was
concerned. Except for what the broiler cook did on
the night shift, the second cook did all the actual
cooking for all meals served, whether night or day,
in the dining room, the coffeehouse, and the
banquet rooms. Van der Woude's preference not to
have to depend permanently on a "moonlighter"
for that crucial position, and his selection of Gib-
son, an able long-time employee , seem most
reasonable. It may be that most employers con-
fronted by that situation, would not have acted as
hastily as did Van der Woude in terminating
Shapiro without notice the very day after Gibson
presented his physician's clearance. Shapiro's ser-
vices had been satisfactory and highly useful to
Respondent, and there was no particular need to
promote Gibson that quickly. However, even as-
suming, arguendo, that Van der Woude's action
represented a deviation from some sort of norm, it
is plain that it was not so unreasonable as to war-
rant, standing by itself, an inference of discrimina-
tory motive. The record is devoid of evidence that
anything happened that would have caused Re-
spondent on that particular day to discriminate
against Shapiro or any other employee. While the
Union's letter demanding recognition was mailed
that same day, there is no evidence that this had come
to Respondent's notice. Indeed, there is little in the
record to contradict Van der Woude and Zitrin's
testimony that they understood that Shapiro was
opposed to the Union. The only evidence offered as
to Shapiro's union activities was his own testimony.
He stated that in December Litto, the Union's in-
ternational representative, encountered him at the
Rio Bamba and, hearing that Shapiro was working
for Respondent, gave him authorization cards to
of Shapiro 's shift was apparently borne out by Respondent's time records,
which General Counsel examined during the hearing
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distribute. He said that he turned the cards over to
Ziegler, his helper, and Heinz, a baker. He also
testified that employees questioned him as to wage
rates and overtime under a union and that he
replied with information of a general nature. How-
ever, Shapiro did not testify that he solicited em-
ployees other than Heinz and Ziegler. Moreover,
his testimony stands bare of corroboration; and in
his investigatory affidavit he stated, "To my
knowledge prior to my discharge, the company
never heard me talking about the union to anyone
nor did they see me passing any cards nor did they
know that I was already a union member." At the
hearing he testified that his affidavit was inaccurate
and that while under cross-examination he recalled
that Van der Woude, who knew that the Rio
Bamba was a union house, had commented to him,
"You are in the union. You know what it is."
It is found that the General Counsel has failed to
prove by a preponderance of the evidence that
Respondent discharged Shapiro because of his ac-
tivities on behalf of the Union. It will be recom-
mended that paragraphs VII, VIII, and IX of the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set
forth above in section III, occurring in connection
with its operations described in section I, have a
close, intimate , and substantial relationship to
trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
As it has been found that Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that the Board issue the Recommended
Order set forth below requiring Respondent to
cease and desist from its unfair labor practices and
to take certain affirmative action which will effec-
tuate the policies of the Act.
Upon the basis of the foregoing findings of fact
and of the entire record in this case, the Trial Ex-
aminer makes the following:
CONCLUSIONS OF LAW
1. Respondent , Yankee Trader, Inc., doing busi-
ness as Treadway Inn, is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent is, and at all times material has
6 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of 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 In the event
been, an employer within the meaning of Section
2(2) of the Act.
3. Hotel, Motel and Restaurant Employees and
Bartenders Union, Local 466, AFL-CIO, is a labor
organization within the meaning of Section 2(5.) of
the Act.
4. Respondent has not engaged in any unfair
labor practice by its termination of the employment
of Charles Shapiro.
5. By interfering with , restraining , and coercing
employees in the exercise of the rights guaranteed
in Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
6. The unfair labor practices described above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in
this case , and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, Respon-
dent, Yankee Trader, Inc., d/b/a Treadway Inn, its
officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with loss of overtime
or extra work if they join, remain members of, or
engage in activities on behalf of, Hotel, Motel and
Restaurant Employees and Bartenders Union,
Local 466, AFL-CIO, or any other labor organiza-
tion.
(b) Interrogating employees concerning their
union membership or desires in a manner , or under
the circumstances , constituting interference,
restraint , or coercion within the meaning of Section
8(a)(1) of the Act.
(c) Soliciting, urging, or suggesting to employees
that they revoke cards signed by them applying for
membership in the Union or any other labor or-
ganization , or designating the Union or any other
labor organization as their bargaining agent.
(d) Assisting employees in the preparation of
letters or other documents by which the employees
could revoke their union membership or designa-
tion cards.
(e) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which,
it is found, will effectuate the policies of the
Act:
(a) Post at its office and place of business
located in Rochester, New York, copies of the at-
tached notice marked "Appendix."6 Copies of said
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals , the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read " Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
TREADWAY
notice, on forms provided by the Regional Director
for Region 3, after being duly signed by a represen-
tative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by it to insure that said notices are
not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
IT IS FURTHER RECOMMENDED that the complaint
be dismissed insofar as it alleges unfair labor prac-
tices not specifically found in this Decision.
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 3 , in writing , within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which both sides had the opportuni-
ty to present their evidence, a decision has been is-
sued finding that we violated the law and ordering
us to post this notice. We intend to carry out the
order of the Board and abide by the following:
WE WILL NOT threaten you with loss of over-
time or extra work if you choose to bargain
collectively through Hotel, Motel and Restau-
rant Employees and Bartenders Union, Local
466, AFL-CIO, or any other labor organiza-
tion.
WE WILL NOT question you about your union
membership or desires in such a way or under
such circumstances as to interfere with your
union activities.
INN 721
WE WILL NOT suggest or urge that you
revoke union membership or designation
cards, nor will we assist you in preparing such
revocations.
WE WILL respect your rights to self-organiza-
tion, to form, join, or assist any labor organiza-
tion, and to bargain collectively in respect to
terms or conditions of employment through
Local 466 or any other representative of your
own choosing, and to engage in other con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection,
or to refrain from any or all such activities, and
WE WILL NOT interfere with, restrain, or co-
erce you in the exercise of these rights, except
insofar as these rights might be affected by a
contract with a labor organization, if validly
made in accordance with the National Labor
Relations Act, whereby membership in a labor
organization is a condition of employment
after the 30th day following the date of such
contract or the beginning of such employment,
whichever is later.
YANKEE TRADER
INC., D/B/A TREADWAY
INN
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board 's Office, Fourth Floor, The 120 Building,
120 Delaware Avenue, Buffalo, New York 14202,
Telephone 716-842-3100.