Union News Co.

National Labor Relations Board - Board Decisions

Apr 22, 1955

112 N.L.R.B. 420 (N.L.R.B. 1955)

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent , N. D. Cass Company, Athol, Massachusetts , is engaged in
commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 154, United Furniture Workers of America, CIO, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Arvid
Labor, Laura Labor, and Laura Gravel, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 ( a) (3) and
(4) of the Act.
4. By such discrimination which is also interfering with, restraining , and coerc-
ing employees in the exercise of the rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices against Francis E.
Bowers.
[Recommendations omitted from publication.]
Union News Company and Retail Wholesale and Department
Store Union , Local 506, Retail , Wholesale and Department Store
Union, CIO. Case No. 10-CA-1611. April 22, 1955
DECISION AND ORDER
On December 3, 1953, Trial Examiner Bertram G. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
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 copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed ex-
ceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner only insofar as they are consistent with this
Decision and Order.1
1. The complaint herein alleges, in substance, that the Respondent
violated Section 8 (a) (3) of the Act by discharging four employees,
Bernice Louise Hood, Almogene Nix, Alice B. England, and Julia
Mae McClusky, all employees at the Respondent's restaurant located
r After the hearing the Geneial Counsel , the Respondent , and the Charging Union stipu-
lated that the total gross annual sales of the Respondent 's interstate restaurant chain for
the year 1953 exceeded $10,000,000 This stipulation is hereby received and made part of
the record. We find that the Respondent is engaged in commerce within the meaning of
the Act and that It meets the jurisdictional standards for the restaurant industry. See
Backfords Inc, 110 NLRB 1904.
112 NLRB No. 57.
UNION NEWS COMPANY 421
in the Greyhound Bus Terminal at Gadsden, Alabama, and known
as the "Gadsden Cafe," for engaging in union activities, and that the
Respondent violated Section 8 (a) (1) of the Act by instructing its
employees not to engage in union activities and by interrogating its
employees regarding their union activities.
The Trial Examiner found that the Respondent did discharge the
aforesaid employees because of their membership in the" Charging
Union and thereby violated Section 8 (a) (3) of the Act. He also
found that the Respondent violated Section 8 (a) (1) of the Act as
alleged in the complaint. The Respondent excepts to all of the find-
ings of the Trial Examiner, contending that the findings were improper
in that the Trial Examiner erred in crediting the testimony of Hood,
Nix, England, McClusky, and Brooks, another employee who was
allegedly interrogated and threatened but who was not discharged.
The Respondent also contends that the Trial Examiner erred further
in not crediting the testimony of Snyder, the Respondent's manager,
and Weeks and Bedsole, the Respondent's witnesses.
One of the critical bases for the Trial Examiner's finding of dis-
crimination is his acceptance of Hood's disputed testimony with re-
spect to an alleged conversation with Snyder, as set forth below. It
is apparent from the Intermediate report that his credibility findings
in this instance and others were based in large part on his observation
of the witnesses . Ordinarily , as the demeanor of witnesses is a factor
of consequence in resolving issues of credibility, and as the Trial Ex-
aminer, but not the Board, has had the advantage of observing wit-
nesses while they testify, it is our policy to attach great weight to a
Trial Examiner's credibility findings insofar as they are based on
demeanor2 However, where the clear preponderance of all the rele-
vant evidence convinces us that the Trial Examiner's credibility reso-
lutions are incorrect , we cannot , despite our usual regard for the Trial
Examiner's findings, leave them undisturbed.3 We believe that the
case at bar presents such a situation to the extent that the Trial Exam-
iner credits the testimony of Almogene Nix and Bernice Hood in find-
ing discrimination as to the former.
Both Hood and Nix testified that they joined the Union by signing
union cards while at work at the Respondent's restaurant at approxi-
mately 4 o'clock in the afternoon of August 19, 1952. Hood testified
that after she left the Respondent 's restaurant upon completion of her
day's work at 11 p. in. on August 19, she went home and about 2 hours
later, at 1 o'clock on the morning of August 20, she received a phone
call from Snyder , the Respondent 's manager . She stated that Snyder
told her, in substance, that if she intended to retain her job as a waitress
for the Respondent it would be necessary for her to withdraw from
2 Standard Dry Wall Prodauct8, Inc, 91 NLRB 544, 545 , enfd . 188 F. 2d 363 ( C. A. 3).
8 Custom Underwear Manufacturing Company, 108 NLRB 117
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union and tear up her union card. Hood further testified that
Snyder told her that he was going to discharge Nix the next morning
because of her union activity. Nix testified that at approximately
11 o'clock on the morning of August 20, the day after she joined the
Union, she called Snyder at the restaurant to ask him the hours of
her tour of duty as waitress for that day and was told by Snyder that
she was discharged. She further testified that when she inquired of
Snyder as to the reason for her discharge he told her that she could
just say that for the record she had failed to wear her hair net as
required by Respondent's company regulations.
Snyder, testifying to the contrary, insisted that he had discharged
Nix on the morning of August 19 because she had consistently and
willfully refused to wear a hair net while waiting on tables and
handling food although instructed to do so 3 clays earlier when she
had first reported to work for limn. He further testified that he had
no knowledge of any union activity on the part of either Hood or
Nix or any other employee as early as August 19 or 20.4 The Respond-
ent's other witnesses corroborated Snyder's testimony regarding Nix's
refusal to wear a hair net. He also denied that he had called Hood
at her home on the morning of August 20, or at any time having such
a conversation w ith her as she alleged.
Were there no other evidence in the record beside the foregoing
regarding the events of August 19 and 20, we would leave undisturbed
the credibility findings of the Trial Examiner with regard to Hood
and Nix. 13owever, introduced and admitted into evidence at the
hearing were the union cards of Hood and Nix which substantiate
the fact that they did join the Union at the time and date to which
each testified, namely, August 19. Also introduced into evidence at
the hearing, and unattacked as a record kept in the regular course of
business, was the payroll record of the Respondent covering the week
during which the events hereinabove described took place and which
included August 19, 1952. This payroll record proves conclusively
that on August 19, 1952, Hood had her day off and was not working
at the Respondent's restaurant as she had testified and that Nix's last
day of work for the Respondent was August 18.
Inasmuch as we find that Nix was discharged on August 19, at
11 a. in., a full 5 hours before she joined the Union and that Hood
did not work on that day, we cannot credit Hood's testimony as to
her alleged conversation with Snyder on August 20 concerning Nix's
discharge, nor can we credit Nix's testimony that she signed her union
card when she was at work on August 19. Thus, the credited evidence
upon which the finding of discrimination depends "carries its own
41-le testified that he first learned that the Union was attempting to organize the
employees when its delegate made a demand to bargain several days after Nix was dis-
charged
UNION NEWS COMPANY 423
death wound and ... cannot in law be credited." s There being no
other basis in the record for sustaining the complaint allegation of
discrimination against Nix, we shall dismiss it.
Hood further testified that within a day or so after Nix's discharge
she told Snyder that she had torn up her union card and disassociated
herself from the Union. She pronounced herself ready and willing to
continue in the Respondent's employ as a nonunion employee. Addi-
tionally, she testified that Snyder then requested her to interrogate
other employees, namely England, Brooks, and McClusky, as to
whether or not they had joined the Union. Hood, according to her
testimony, proceeded to carry out these instructions from Snyder and
later reported to him that each of the employees questioned had stated
that she was not a member of the Union. Moreover, England, Brooks,
and McClusky each independently testified that upon being queried by
both Hood and Snyder as to union membership, each denied her mem-
bership.
The foregoing shows that the Respondent had no knowledge of
Hood's union membership on and after the date of her professed dis-
avowal of union allegiance or of the union membership of England
and McClusky. Moreover, there is no other evidence in the record
from which it can be reasonably inferred that the Respondent knew,
or had any independent means of obtaining knowledge, that Hood
did, in fact, continue her membership or that any of these complain-
ants were members of the Union at the times of their respective dis-
charges. On this state of the record, we find that a prima facie case
of discrimination has not been made and shall, therefore, dismiss the
complaint as to Hood, England, and McClusky as well as Nix.
2. As heretofore stated, the Trial Examiner found that the Re-
spondent violated Section 8 (a) (1) of the Act by instructing its em-
ployees not to engage in union activities. The only evidence support-
ing this finding is the testimony of Hood. Inasmuch as we have here-
tofore refused to credit her with respect to the alleged conversation
with Snyder, we are unwilling to base any finding on her uncor-
roborated testimony. Accordingly, we'do not adopt this finding of
the Trial Examiner.
3. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by coercively interrogating its employees.
As we have set forth above, Hood's testimony that at Snyder's request
she questioned Brooks, England, and McClusky as to their union
membership is corroborated in part by the testimony of each of these
former employees who also testified that not only were they inter-
rogated as to their union membership by Hood, but also by Snyder,
himself. McClusky testified that she was interrogated by Snyder
6 N. L. R. B. v Robbins Tire and Rubber Co, 161 F 2d 798, 800 (C. A. 5).
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several times . We, like the Trial Examiner , accept this testimony
as credible . Thus, there can be no doubt that interrogation by Snyder
and Hood took place.
The interrogation in this case cannot be explained as an under-
standable desire by the Respondent to ascertain the Union 's majority
status, for there had been no claim for recognition before the wide-
spread questioning . Rather, Manager Snyder's repeated interroga-
tion of the same employee establishes affirmatively that his purpose
was to accomplish more than merely obtain information. Also indica-
tive of an intent to intimidate all the restaurant employees is Snyder's
enlistment of Hood's aid , thus insuring a more widespread and sys-
tematic interrogation . Finally, this questioning technique , coming
from the virtual boss of the restaurant who clearly had absolute power
to determine who should work at all , removes this case from the
purview of the rule on interrogation announced by the Board in its
Blue Flash decision.'
Under the foregoing circumstances, we find that the interrogation
tended to restrain and interfere with the Respondent's employees
in the exercise of the rights guaranteed them under the Act,' and we
shall order the Respondent to cease and desist from such conduct.°
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that :
1. The Respondent, Union News Company, Gadsden, Alabama, its
officers, agents, successors, and assigns, shall:
A. Cease and desist from :
(1) Interrogating or questioning its employees concerning their
union interest, attitude, membership, or activities in a manner consti-
tuting interference, restraint, or coercion in violation of Section 8 (a)
(1) of the Act.
(2) In any related manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join Retail, Wholesale and Department Store
Union, CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right may be affected by an agreement
6 Blue Flash Express, Inc., 109 NLRB 591
BBlue Flash Express. Inc, supra ; craber Manufactnrinq Company/, Inc, 111 NLRB 167.
8 Member Murdock joins in finding the interrogation unlawful for the reasons set forth
in the dissenting opinion in the Blue Flash Express case, supra.
UNION NEWS COMPANY 425
requiring membership in a labor organization as a condition of em-
ployment as authorized in Section 8 (a) (3) of the Act.
B. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(1) Post at its restaurant in Gadsden, Alabama, copies of the
notice attached hereto marked "Appendix." 9 A copy of said notice,
to be furnished by the Regional Director for the Tenth Region, shall,
after being signed by the Respondent's representative, be posted im-
mediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(2) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FUIiTIIER ORDERED that so much of the complaint herein as
alleges that the Respondent violated Section 8 (a) (3) of the Act, be,
and the same hereby is, dismissed.
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
9In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees as to their union inter-
ests, attitude, membership, or activities in a manner constituting
interference, restraint, or coercion in violation of Section 8 (a)
(1) of the Act.
WE WILL NOT in any related manner interfere with or restrain
our employees in the exercise of their rights to self-organization,
to form labor organizations, to join or assist Retail, Wholesale
and Department Store Union, Local 506, Retail, Wholesale and
Department Store Union, CIO, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and
to refrain from any or all such activities except to the extent
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such right may be affected by agreement requiring mem-
bership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act.
All our employees are free to become or refrain from becoming
members of the above-named Union or any other labor organization
except that this right may be affected by an agreement in conformity
with Section 8 (a) (3) of the amended Act. We will not discriminate
in regard to hire or tenure of employment or any term or condition
of employment against any employee because of membership in or ac-
tivity on behalf of any such labor organization.
UNION NEWS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge made by Retail, Wholesale and Department Store Union, Local
506, Retail, Wholesale and Department Store Union, CIO, herein referred to as the
Union, filed October 23, 1952, and thereafter amended on February 27, 1953, the
General Counsel for the National Labor Relations Board, herein referred to as
the General Counsel and the Board, respectively, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued his complaint, dated February 27, 1953,
against the Union News Company, herein referred to as the Respondent, alleging
that it had engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National
Labor Relations Act, 61 Stat. 136, as amended, herein referred to as the Act.
Copies of the charges, complaint, and notice of hearing thereon were duly served
on the Respondent.
With respect to the unfair labor practices the complaint alleges in substance that
the Respondent through its officers, discharged Almogene Nix on August 19, 1952,
Bernice Louise Hood on September 6, 1952, Alice B. England on September 1,
1952, and Julia Mae McClusky on September 5, 1952, and thereafter failed and
refused to reinstate them as employees, because of their membership in and activi-
ties on behalf of the Union, that Emory P Snyder, its manager of the Gadsden
Cafe, on or about August 19, 26, 28, and 30, 1952, interrogated the employees
about their union membership, sympathies, and activities, and that Snyder on or
about August 19 and 26, 1952, instructed its employees to refrain from talking to
representatives of the Union.
Respondent filed its answer in which it denies knowledge that the Union was
and is a labor organization within the meaning of Section 2 (5) of the Act; denies
that Alice B. England was discharged, and otherwise denies that it committed any
unfair labor practices As a separate and affirmative defense it alleges that the
said employees were discharged for just cause and not because of membership
in or activities on behalf of the Union
Pursuant to notice a hearing was held at Gadsden, Alabama, on June 29 and
30, 1953, before the Trial Examiner duly designated by the Chief Trial Examiner.
The General Counsel, the Union, and the Respondent were each represented by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence material to the issues was afforded all parties.
At the close of the hearing, counsel for the respective parties were granted
20 days' time to file briefs. Several extensions of time to file same were granted,
all of which have now expired. No briefs have been filed by any of the parties.
UNION NEWS COMPANY 427
Upon the entire record in the case , including all exhibits received in evidence, and
from his observation of the witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF TILE RESPONDENT
The Respondent is a corporation with principal offices and place of business in
New York, New York It is engaged in the operation of a nationwide chain of res-
taurants , cafes, and newsstands in railroad and bus terminals throughout the United
States, including a restaurant named the Gadsden Cafe in the Greyhound bus sta-
tion of Gadsden , Alabama. It has about 68 collective -bargaining contracts in force
covering its various establishments . This proceeding is conceined only with the
Gadsden Cafe
The Trial Examiner finds that it was and is engaged in interstate commerce
within the meaning of Section 2 ( 6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Retail, Wholesale and Department Store Union , Local 506, Retail , Wholesale and
Department Store Union , CIO, hereinafter referred to as the Union , is a labor or-
ganization admitting to membership employees of the Respondent.
III THE UNFAIR LABOR PRACTICES
A Interference , restraint, and coercion
This case was initiated by the Union upon filing a charge with the Board against
the Respondent The complaint alleged, inter alia, that Snyder , Respondent's man-
ager of its Gadsden Cafe and restaurant , interrogated employees on specified dates
about their union membership , sympathies, and activities and instructed employees
to refrain from talking to representatives of the Union.
Snyder was in full charge of the cafe and restaurant . He had authority to employ
and discharge the employees He spent from 12 to 18 hours a day in carrying on
his duties at the cafe. His hours were irregular and the employees who worked
came under his personal supervision at all hours of the day and night . The employees
ordinarily worked in three 8-hour shifts from 7 a. m. to 3 p. m ; 3 p. in. to 11 p. m.;
and 11 p. m. to 7 a. m., except in certain instances when hours of the shifts were
changed at either end to accommodate the trade or the convenience of the employees.
During the material times herein, the Respondent had in its employ 10 employees,
a majority of whom were waitresses.
Employee Hood had previously worked at the cafe under Snyder's supervision.
About 3 months after she left the Respondent 's employ, Snyder had visited at her
home and suggested that she again accept employment at the cafe , which she did as
a waitress . She was so engaged for a period of approximately 6 weeks. Nix also
was employed by Snyder as a waitress . Three days after her employment she
and Hood signed union cards . The cards were signed by them at about 4 p m.
while they were at work in the cafe. They engaged in soliciting the other employees
to join the Union and sign the cards . About 1 a. m. the following morning Snyder
called Hood at her home. The testimony of Hood relative to this and other con-
versations with Snyder is credited by the Trial Examiner and is as follows:
Q. What was the conversation?
A. Well, Mr. Snyder told me that he had heard we had signed union cards
and he wanted to know if I had signed one and I told him "Yes," and he said
everyone that had signed a card was going out the next morning.
The WITNESS : He asked me would I back out , tear up my card, but if I
didn't it would mean my job and I told him I would if it meant my job, so
he said Jean Nix was going out the next morning and I asked him , "Well, do
you want me to come to work tomorrow morning?" and he said, "Yes, come
on in," and that 's all that was said.
Trial - Examiner EADIE : He said Jean Nix was going out the next morning?
The WITNESS : Yes, sir, that she was going out, meaning that she would be
fired the next morning.
Q. (By Mr. Hamilton. ) That's what you understood that to mean, that
she would be fired the next morning?
A. Yes, sir.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And you said you would not withdraw your card?
A. I said I would.
Q. (By Mr Hamilton.) Did you have any further conversation about the
Union with Mr. Snyder?
A. Yes, sir. The next afternoon when I went to work.
Q. Where did this take place?
A. In the cafe there at the cash register. I was up there and Mr. Snyder
had me stacking cigarettes and he told me he'd rather I'd quit working than to
see me get mixed up with the Union and that I could quit 2 or 3 days-and
hire me back and that would be the best thing to do. He told me to call Jean
and tell her that I had torn up my card.
Q. When you say Jean, who do you mean?
A. Miss Nix.
Q. Well, did you have a further conversation then about the Union?
A. Not no more than he asked me to try to find out if the other waitresses
had joined the Union, the new ones that he had come in that he had hired.
Q. When did he ask you this?
A. Right after he had hired Alice England and Carolyn Brooks.
A. Well, after he hired them he asked me did I know whether they had
signed Union cards or not and I told him no, and he asked me would I find
out for him and [ told him yes.
* * * * *
A. Mr. Snyder told me that if any Union man came in to talk to me, for
me to tell him I was satisfied with my work the way it was, and not to say
anything more to him.
Q Well, I believe you stated Mr. Snyder asked you to find out whether
Miss Brooks and Mrs. England had signed cards?
A. Yes, sir.
Q. Did you at any time later have a conversation with him as to whether
or not you had found that out?
* * * * *
A. Yes, sure, I asked them and I told Mr. Snyder they had not signed.
Q. How long after Mr. Snyder asked you to find this out, was it that you
told him they had not signed Union cards?
A. Not more than two hours
Q. Were you asked about any other employees besides Mrs. England and
Miss Brooks?
A. Yes
Q. About what other employees were you asked?
A. Julia McClusky. I was asked to find out if she had signed a union card.
* * * * * *
A. That was about the same time as he asked me about Carolyn and Alice.
Q. Now were Carolyn and Alice working at the time Jean Nix was working
there?
A. No, sir, they were not.
* * * * * *
A. They were hired the night after she [Nix] was fired, I don't know how
many days it was, but it wasn't very long after.
Q. (By Mr. Rhea.) Miss Hood, after you signed the union card was Miss
Nix working at the Gadsden Cafe?
A. You mean the next day after we signed the card?
Q. Yes.
A. No, sir.
Almogene Nix (Wofford) testified credibly that she had been asked by Snyder
to work in the cafe of the Respondent; that she had accepted employment and had
worked there for a period of 3 or 4 days; that on the second day Synder had told her
she would have to wear a hair net, which she then purchased and wore thereafter dur-
ing her employment; that on the morning following the signing of the union card by
her, and of Snyder's talk on the phone with Hood, she called Snyder on the phone
and inquired of him what hour he expected her for work, to which Snyller replied
UNION NEWS COMPANY 429
that she was not to report for work but was to come in and get any wages that were
then due.
Alice B. England testified credibly as follows:
Q. Now did you have any conversation with Mr. Snyder at anytime about
the Union? -1
A. Well, he used to ask me, he just asked me had I joined the Union and I
would tell him, "No," but I had and it went on like that after I had joined the
Union, after I signed the card, he asked me before I went to work had I joined
the Union and I told him no.
Q. When was it that you say he asked you had you joined the Union, was
that before you went to work for the Company?
A. No, he didn't ask me before I had started to work for the Company, if
I had joined a Union, it was after I went to work, right afterwards.
Q. I thought you said before you went to work?
A. Oh, I meant a lot of days before I went to work, he asked me if I had
joined the Union.
Trial Examiner EADIE: And you told him no.
The WITNESS: Yes, sir, I would tell him no.
Trial Examiner EADIE: But you had.
The WITNESS: Yes, I'd joined the Union.
Q. (By Mr. Hamilton.) Now where did you sign the card?
A. Up at Louise's house.
Q. Was that at the union meeting?
A. Yes.
Julia Mae McClusky was questioned and testified credibly as follows:
Q. Well, from what you just said, I take it you did have a conversation with
Mr. Snyder about the Union, is that correct?
A. Yes, sir, some few times.
Q. Where would these conversations take place?
A. Usually in the kitchen, that's where I worked.
Q Well, when was the first conversation you had with Mr. Snyder about
the Union?
A. Well, the morning , the next morning after the men were in so I learned,
he came and asked me did I sign a card and I told him No, I hadn't signed one,
cause I didn't even know they had been there. That was the truth.
A. He asked me if I had signed a card that evening before or that afternoon
and I told him "No," I didn't know nothing about no card. He asked me if
I had signed one and I told him "No," that I had not signed one.
* * * * * * *
A. Well, one afternoon when I was out sweeping in the back he came out-
side and said, "Julia, have you signed the Union card?" and I told him "No,"
but I had, and he said, "If anybody comes in and asks you to sign a union card,
don't sign it, there 's nothing to it," and I says, "I don't know nothing about no
Union."
In the recital of the above-quoted testimony by the respective witnesses, their
bearing and demeanor under direct and cross-examination, convinced the Trial
Examiner that the material facts as testified to by them were the true facts sur-
rounding the transactions herein. They were, in the opinion of the Trial Examiner,
also supported by circumstances and collateral evidence, while on the other hand
the testimony and demeanor of Snyder did not convince the Trial Examiner that he
told the truth or limited himself while on the witness stand to a narration of the facts
involved.
The Trial Examiner finds by a fair preponderance of the substantial evidence that
the Respondent committed unfair labor practices in the interrogation of its em-
ployees about their union membership, sympathies, and activities and instructed
its employees to refrain from talking to representatives of the Union , in violation
of Sections 7 and 8 (a) (1) of the Act.
B. The discharges
1. Almogene Nix (Wofford)
Nix had been employed by Snyder as a waitress in Respondent's cafe at Gadsden,
Alabama. She was told by Snyder that it was essential for her to wear a hair net.
She requested time off from her duties to purchase one and thereafter wore it while
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in her duties as a waitress for the Respondent About the third day of her
employment she and a fellow employee, Louise Hood, signed union cards during
their working hours while engaged in their work at the cafe. They also requested
other employees to loin the Union and sign cards.
After the signing of the union cards on her last day of work she called Snyder
the next morning on the phone Concerning the conversation and her discharge she
testified credibly as follows-
A. The day I signed that card was my last day to work for them.
Q. How were you notified of your termination?
A. By phone.
Q Who did you talk with?
A. Mr. Snyder.
Q. What was the conversation?
A Well, I wanted to know what time I was supposed to report for work
that day and Mr Snyder said he woudn't need me anymore.
Q. Was that all of the conversation9
A. No it wasn't.
Q. What was the rest of the conversation?
A. I asked him why he didn't need me anymore.
Q. What did he say?
A Well, he used some filthy language in explaining why he didn't need me.
Q Well, without using the exact filthy language, what did he say, if you
can tell?
A. Well, after he used the filthy language, he said he didn't like what had
happened last night there, and I said what do you mean and he said, "I'm
not gonna talk anymore, any further, just for the record I'm saying you don't
have a hair net, you didn't have one on yesterday.
Q. He said that "for the record he was saying, you didn't have a hair net
on yesterday?"
A That's right
Q. How long after you signed a card was this conversation?
A. That was the next morning after I had signed the card the previous after-
noon.
Q. Now after you got off from work to get a hair net, did you at any time
work without a hair net on?
A. Not that I remember.
A. Every time I asked him why he discharged me, he would tell me and
used a lot of filthy language, that he didn't like what had happened last night,
and when I kept persisting with the question of why I had been fired, he said
"lust for the record" and then he mentioned the hair net.
Snyder's testimony concerning the conversation between him and Nix is not
credited. He admits that he had a conversation at the time and place testified to
by Nix. He does not deny, however, some of the more essential and material por-
tions of the conversation.
There is no dispute in this record that the waitresses were required by Snyder to
wear hair nets during their tours of duty. The testimony of Nix is credited to the
effect that on her second day Snyder informed her to that effect. He allowed her
to take time off to purchase one and she wore it thereafter. Prior to Snyder's refer-
ence to hair nets the rule or regulation was not called to her attention and necessarily
her omission in not wearing one on the first day and until he called her attention
to it sometime during the second day cannot be charged to Nix as a violation of the
requirement. When Nix returned to work after the purchase of the net Snyder was
present at the cafe and supposedly saw her. If she had not purchased and worn one
it is more than likely he would have reprimanded her at that time. He did not do
so and it is obviously conclusive that she had purchased and worn one. Snyder
worked 12 hours the last day of Nix's employment, but he made no protest to her
that she was violating any rule during that time Snyder testified that he was not
present during the last day that Nix worked, although the payroll offered in evidence
by the Respondent and received in evidence shows his presence at the cafe for his
usual 12 hours of work.
The testimony of Ethlyn Weeks, in substance to the effect that Nix did not wear
a hair net, is discredited by the Trial Examiner. The third and last day of Nix's em-
ployment Weeks was absent. Nix was not advised of the requirement for the hair
UNION NEWS COMPANY 431
net until sometime during the second day and of course did not wear one until told by
Synder to do so. Weeks' shift was from 11 p. m. to 7 a. m , while Nix's shift was
from 3 p. m. until 11 p. m., so that the only opportunity Weeks had of making her
observation was the few minutes when they should meet at the cafe upon the change
of shifts.
By a fair preponderance of the substantial evidence it is found that Nix was dis-
charged from the employ of Respondent for the sole reason that she had joined the
Union and had engaged in union activities with fellow employees and that her dis-
charge by Respondent was not for the reason that she had disobeyed a rule or direc.
tion that she wear a hair net while in its employ.
2. Bernice Louise Hood
Hood previously had worked for the Respondent as a waitress for a period of
several months. After a lapse of about 6 weeks Snyder went to her home and re-
quested that she again accept a job at the cafe. She accepted his offer and continued
in Respondent's employ as a waitress for approximately 6 weeks. During a portion
of that period Nix was also employed as a waitress. The third day of Nix's em-
ployment Hood and Nix signed union cards and engaged in further union activities.
As related above, Hood and Nix signed union cards while at the cafe about 4
o'clock in the afternoon. About 1 a. in. the next morning Snyder called Hood at
her home and told her that those employees who signed union cards would be dis-
charged. He asked her if she would renounce the Union, tear up her card, and tell
Nix she had done so. She agreed to those terms in order to retain her job. At the
time, however, she had no idea of carrying out Snyder's suggestion About 2 weeks
thereafter Snyder discharged her.
The testimony of Hood is credited by the Trial Examiner to the effect that Snyder
had at no time told her that her work was unsatisfactory. On the day of her dis-
charge she had worked her usual shift at the cafe and had gone home The night
shortly after midnight, Snyder called her on the phone and stated that her work was
unsatisfactory and that she need not report for work that afternoon.
The Trial Examiner discredits the following testimony of Snyder as to his reason
for discharging her:
Well, she sat down quite a bit, she read magazines, and wouldn't help wait on
the customers and I called her up and told her not to come in any more.
Little if anything is left to the realm of speculation in finding that the discharge of
Hood by Snyder was made by him for the sole reason that she engaged in union
activities distasteful to his desires. The preponderance of the substantial and credible
evidence supports the contention of General Counsel that Hood was discharged by
Respondent for her union activities and was not discharged for any unsatisfactory
work on her part.
3. Alice England
England was employed as a waitress by Respondent on or about August 19,
the date that Nix was discharged. At the solicitation of Hood she signed a union
card on August 28 and attended a union meeting held at the home of Hood.
Concerning conversation with Snyder, England was questioned and testified credi-
bly as follows.
Q. Now, did you have any conversation with Mr. Snyder at any time about
the Union?
A. Well, he used to ask me, he just asked me had I joined the Union and I
would tell him no, but I had and it went on like that after I had joined the Union,
after I signed the card; he asked me before I went to work had t joined the Union
and I told him no.
Q. Now, how were you notified that your employment was terminated?
I * * * *
A. Well I went up, he called me up there while the bus was unloading for a
15-minute rest period, he called me up and said, "You want to quit, don't you"?
and I said, "No, I don't want to quit," and he said, "Yes, you do, don't you"? and
I said, "No, I don't, I said, I don't want to quit, Mr. Snyder" and then lie said,
"Well, I think you do want to quit" and I said, "Now if you want me to, just say
so," and he said, "Oh, yes, you do, you look tired and sleepy," and I said, "I had
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plenty of rest" and he said , "Where do you go at night usually" and I said, "I
usually go home and go to bed ," and he said , "Well, you want to quit, don't you?"
and I said , "No, I don't want to quit , but if you want me to, 1 will," and so I
signed the pay roll , put my name after where I was supposed to get my money
on it and then he told me to go back and tell the girls that I had quit and not
tell them that he wanted me to. ... .
Snyder 's version of the conversation between England and him is as follows:
A. Why, I just called up, I had the pay roll to fix up and I just called her up
and said, "I'm asking you to quit," and she said, "0. K." and that 's all there was
to it.
The Trial Examiner finds by a preponderance of the substantial evidence that
England was discharged by Respondent on or about September 1, 1952, because of
her union membership and activities.
4. Julia Mae McClusky
McClusky had been employed by Respondent since April 1952. Her duties were
those of washing dishes, waiting on the colored customers in the back of the cafe,
baking pies, and fixing plate lunches. She joined the Union on August 19, 1952, at
the solicitation of Hood and Nix and attended a union meeting at the home of Hood.
Her testimony is credited concerning conversations she had with Snyder. In sub-
stance Snyder had interrogated her repeatedly relative to her membership in the
Union. She had applied to Snyder and was granted permission by him to take a week
off to pick cotton.
Concerning her discharge, McClusky testified credibly as follows:
Well, I had been asking Mr. Snyder for about two or three weeks off to
let me go pick some cotton and he'd tell me all the time I would have to do
my work. Well, I wasn't going to leave unless he give me his consent and
I mean, you know, so on Friday after the Friday I left, well on Monday or
Tuesday it was, why they asked me, that was the time that she asked me
had I joined the Union. Well, that coming Friday he brought me my pay
in the kitchen and he says, "Well here's your pay," and then he says, "You
can have your week off now," and he turned and walked away and I went up
to the front and asked him "does you call yourself firing me or laying me off,"
and he says, "you wanted a week off, didn't you" and I said, "Yes, I asked
you for a week off," so he says "You are getting it," well the next following
Friday I went to picking cotton, I picked that week, I left home to go pick
cotton and I went to the drug store and I called and asked him if he wanted
me to come back to work that day and he said, "Jerry is doing the job, I
done got him straightened out now."
Snyder's testimony concerning the termination of McClusky's services, which was
not credited by the Trial Examiner, is as follows:
Well, she wasn't exactly discharged. She wanted a week off and in the mean-
time I got a porter. She was listed as a porter: Well, in the meantime I got a
male in there, Franklin was his last name and I found that Franklin could
do a better job, could do more work than she could and when she come back
I told her I had gotten somebody to take her place.
The record offers substantial evidence that Snyder had threatened that those
employees who signed union cards and/or had joined the Union would not be
permitted to work for Respondent. In support of such a policy he had interrogated
his employees as to their union affiliations and activities. From his interroga-
tions he acquired knowledge, which became the knowledge of the Respondent, of
the employee's union affiliations, sympathies, and activities. He had made known
to Hood in no uncertain terms that he would not keep in the employ of Respondent
any employees who disregarded his wishes or desires. The General Counsel has
proven by a fair preponderance of the substantial evidence a compelling and suffi-
cient motive for his reason in discharging McClusky while the Respondent has
failed to produce any substantial evidence that McClusky was an unsatisfactory
employee.
The Trial Examiner finds that the Respondent discharged and refused to reemploy
McClusky for the reason that she had engaged in union activities.
UNION NEWS COMPANY 433
Conclusion
Summarizing the foregoing findings, the Trial Examiner finds by a fair pre-
ponderance of the credible and substantial evidence that the Respondent discharged
Almogene Nix on August 19, 1952, Bernice Louise Hood on September 5, 1952,
Alice B. England on September 1, 1952, and Julia Mae McClusky on September 6,
1952, and thereafter failed and refused to reinstate them, because of their member-
ship in and activities on behalf of the Union.
The Respondent, by and through Emory R. Snyder, its manager, interrogated its
employees at the Gadsden Cafe about their union membership, sympathies, and
activities and instructed its employees to refrain from talking to representatives of
the Union.
By its said acts Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and
(7) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with operations of the Company described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent, Union News Company, engaged in certain
unfair labor practices, the Trial Examiner will recommend that it cease and desist
therefrom and take the following affirmative action designed to effectuate the
policies of the Act: (1) Offer Almogene Wofford, also known as Almogene Nix,
Bernice Louise Hood, Alice B. England, and Julia Mae McClusky immediate
and full reinstatement to their former or substantially equivalent positions,' without
prejudice to their seniority or other rights and privileges, (2) make each of the
above-named employees whole for any loss of pay each may have suffered by
reason of the Respondent's unlawful discharge, by payment to each of them a sum
of money equal to the amount each would normally have earned as wages from
the date of her discharge to the date of the Respondent's offer of reinstatement,
less the net earnings of each during said period;2 (3) the Respondent Company
shall upon request, make available to the Board, payroll and other records to
facilitate the checking of the amount of back pay, which shall be computed in ac-
cordance with the Board's customary formulae; 3 and (4) that the Respondent
Company be ordered to cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of the rights guaranteed by
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Retail, Wholesale and Department Store Union, Local 506, Retail, Whole-
sale and Department Store Union, CIO, is a labor organization within the meaning of
Section 2 (6) and (7) of the Act.
2. The Respondent, Union News Company, is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
3. By discharging Almogene Wofford, commonly known as Almogene Nix,
Bernice Louise Hood, Alice B. England, and Julia Mae McClusky from its employ,
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
3The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 627.
2 Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v N. L. R. B ,
311 U S 7.
3 F IT' Woolworth Company, 90 NLRB 289.