Union News Co.

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.