Home Restaurant & Drive-In

HOME RESTAURANT DRIVE-IN 635 E. E. Majeroni and L. E. Majeroni, d/b/a Home Restaurant Drive-In and International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, General Team- sters Union 397 and Shirley Johnson. Cases Nos. 6-CA-1719 and 6-CA-1770. May 6, 1960 DECISION AND ORDER On December 3011959, Trial Examiner Thomas F. Maher issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Interme- diate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor prac- tices and recommended that the complaint be dismissed with respect to them. Thereafter, the Respondents filed exceptions to the Interme- diate Report With a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 2 of the Trial Examiner. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondents, E. E. Majeroni and L. E. Majeroni, d/b/a Home Restaurant Drive-In, York, Penn- sylvania, their agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Teamsters Union 397, or any other labor organization of their em- i We find , in agreement with the Trial Examiner , that while there may have been some economic justification , the Respondents in fact discontinued the first and third work shifts on March 17, 1959 , because the employees sought to organize themselves and joined the Union In addition to those reasons advanced by the Trial Examiner in support of this finding, we also rely upon the fact that during the past two winter seasons the Respondents operated on a three -shift basis despite monetary losses. In adopting that part of the Intermediate Report entitled "The Remedy," we specifi- cally find that tips are to be included as part of the wages that each of the discriminatees herein would have normally earned absent the discrimination against them. 127 NLRB No. 81. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees, by discharging, refusing to reinstate, or otherwise discriminat- ing against their employees because of their exercise of the right to self-organization or to join labor organizations or to engage in con- certed activities. (b) Threatening employees with loss of employment because of their union interest or affiliation; interrogating them with respect to the aforesaid Union, its membership, and their own interest and affilia- tion therein; and imposing rigorous working conditions upon their employees and enforcing revived working rules for the purpose of discouraging employee interest and membership in the aforesaid Union. (c) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the aforesaid labor organization, 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, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher; and Carol Miller immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other rights and privileges to which they would have been entitled absent the discrimination against them. (b) Make whole Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher, and Carol Miller for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" and in this Deci- sion and Order. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secur- ity payment records, timecards, personnel records and reports, and all other records necessary to analyze and compute the amounts of back- pay due under the terms of this Order. (d) Post at their drive-in restaurant in Erie, Pennsylvania, copies of the notice attached hereto marked "Appendix." I Copies of said 8 In the event that this Order is enforced by a 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." HOME RESTAURANT DRIVE-IN 637 notice, to be furnished by the Regional Director for the Sixth Region, shall, after being duly signed by an authorized representative of the Respondents, be posted by the Respondents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixth Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondents have taken to comply therewith. 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 discourage membership in International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Teamsters Union 397, or any other labor or- ganization, or discourage our employees from engaging in con- certed activities for the purpose of collective bargaining or other mutual aid or protection, by discharging, refusing to reinstate, or otherwise discriminating against our employees in respect to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT threaten or employees with loss of employment because of their union interest or affiliation, interrogate them with respect to union matters or their own union membership, or impose upon them rigorous working conditions or enforce revived working rules for the purpose of discouraging their union interest and membership. . WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organi- zation, to form labor organizations, to join or assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Help- ers of America, General Teamsters Union 397, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employ- 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment as authorized in Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher, and Carol Miller immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. WE WILL make whole each of the above-named employees for any loss of pay they may have suffered by reason of the discrimi- nation against them. All our employees are free to become, remain, or refrain from be- coming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. E. E. MAJERONI AND L. E. MAJERoNi D/B/A HOME RESTAURANT DRIVE-IN, 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 STATEMENT OF THE CASE Upon charges filed on April 28 and June 26, 1959, by International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, General Teamsters Union 397, herein referred to as the Union, and Shirley Johnson, respectively, General Counsel of the National Labor Relations Board on June 30, 1959, issued a consolidated complaint against E . E. Majeroni and L. E. Majeroni, d/b/a Home Restaurant Drive-In, herein referred to as the Respondents, alleging violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. In its duly filed answer Respondents, while admitting certain allegations of the complaint , denied the commission of any unfair labor practice. Pursuant to notice a hearing was held before me at Erie, Pennsylvania , on Sep- tember 9, 10, 11, and 14, 1959. All parties were represented at the hearing and were afforded full opportunity to be heard , to introduce relevant evidence, to present oral argument, and to file briefs. Parties waived oral argument at the hearing and in lieu thereof filed briefs with me thereafter. Upon consideration of the entire record and the briefs of the parties, and upon my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS The Respondents are a partnership doing business in and about Erie, Pennsylvania. They own and operate in that area a number of restaurant enterprises , including the Home Restaurant Drive-In, and are engaged in the retail sale of food and beverages, which during the preceding 12-month period was in excess of $500,000. While so engaged the Respondents purchased a substantial portion of its supplies from States HOME RESTAURANT DRIVE-IN 639 outside the Commonwealth of Pennsylvania. The Respondents concede they are engaged in interstate commerce within the meaning of the Act, and I so find. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether there is substantial evidence that Respondents and their supervisors by their conduct interfered with, restrained, or coerced their employees in the exercise of their statutory rights. 2. Whether Respondents curtailed their business operations solely for reasons of economic necessity, or additionally to obstruct and defeat the organizational efforts of their employees. 3. Whether Respondents terminated employees Andyjewski, Johnson, Fletcher, and Miller for cause stated herein or for reasons of their union affiliation and activity. 4. Whether the picketing of Respondents' premises and the distribution of a leaflet alleged to be false and malicious were such as to justify Respondents' refusal to reinstate the employees involved therein. IV. THE UNFAIR LABOR PRACTICES A. Introduction The Home Restaurant Drive-In is one of several establishments owned and operated by the Respondents, the only one involved in this proceeding. It is located at a busy intersection on the western outskirts of Erie, Pennsylvania, and during the summer months serves a clientele comprising holiday and vacation visitors to nearby Presque Isle, as well as the local trade. During the remainder of the year its principal source of revenue is the younger element of the community who traditionally haunt such establishments i Eighty percent of the Drive-In's customers are carborne To accommodate them in the parking area Respondent employs carhops. Waitresses perform their cus- tomary duties indoors. Prior to January 1, 1959, carhops were paid at the rate of 44i/2 cents per hour plus a number of fringe items, and in addition received from their patrons tips which averaged approximately $50 per week. After January 1, 1959, and during the period involved herein, their hourly rate was increased to 60 cents. Waitresses during the same respective periods received 50 cents and 60 cents per hour plus the identical fringe benefits, and they collected tips of the same ap- proximate weekly average. In addition the Respondents maintain the necessary cadre of cooking and cleaning personnel, and cashiers to staff three shifts, namely: First shift 7 a.m. to 5 p.m., second shift 5 p.m. to I a in., third shift 11 p in. to 7 a in. The total personnel complement at the Drive-In increases throughout each 1 Unless I specify otherwise the facts found herein are based upon the credited testi- mony of employees Newcomb, Raimondi, Scrivens, Could, Roberts, Irwin, Manning, Johnson, Fletcher, Andyjewski, Colangelo, Pettit, Pluskota, and Miller, and Respondent E E (Ted) \Ialeroni In many instances I find that two or more of the foregoing employees testify contrari- wise as to certain Items But as I deem them to be minor variations lacking significance to the general issues involved, I do not consider that they impair the credence of the testimony I have used to make the findings of fact herein Similarly, although I have credited the testimony of Respondent E E. (Ted) Majeroni in substantial part there are items of his testimony that I cannot credit Where such testimony conflicts with facts that I find herein I have specifically stated my refusal to accept this witness' version of the subject matter under discussion And although in certain instances I have, and in certain other instances I have not, credited Ted Majeroni's testimony I do not deem this varying treatment of his testimony to impair in any manner the evidence I have accepted and relied upon Majeroni appeared to me to be a toi thright, reliable witness who maintained a high degree of consistency in his testimony That lie on occasion denied facts testifiers to by other credible witnesses, or gave to other facts a flavor and appearance at odds with other credited testimony Is a natural phenomenon that I attribute to Majeroni's point of view which certainly differed from most of the other witnesses, to an attitude that was understandably partisan, and to a recollection of facts and incidents that had come to him, no doubt, in a confused manner I do not consider that these circumstances detract in any manner from the weight I have placed upon Majeroni's credited testimory. 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD year from approximately 30 in the winter months to 70 during the summer peak period. The operation of thee Drive-In restaurant is under the active management of Partner E. E. Majeroni, frequently referred to herein as Ted Majeroni. Under his overall direction carhops and waitresses are supervised by Sally Condela, who has full responsibility for their hire, fire, and discipline. Edgar Trimmer and Barbara Gifford supervised generally all operations on the work shift to which each is assigned.2 In the conduct of its normal operations certain practices are observed at the Drive-In which bear considerable significance to the issues raised herein. Thus in the service of food all items are ordered from the kitchen by the waitresses and carhops through a cashier stationed at a strategic spot in the kitchen. When the food is ready the employee pays the cashier for it before picking it up and serving the customer. Each waitress and carhop is given a daily $5 cash advance, called a "cat," to compensate for the expense incurred by her as a result of this prepurchase arrangement. Coffee is dispensed from the kitchen in the same manner, waitresses and carhops being required to prepay at the rate of 50 cents per pot, a pot containing a minimum of five cups. The food and coffee so procured is, in effect, resold to the customer by the carhop or waitress, as the case may be, who retains the money received, being required only to repay the cash advance, or "cat," at the end of her work shift. In addition to their usual duties the waitresses and carhops are also expected to perform a modicum of maintenance designed to keep the equipment in satisfactory condition. This, it would seem, included the cleaning of utility refrigerators, shelves, condiment holders, and decorative chrome. The carhops and waitresses wear uniforms suited to their respective assign- ments, the former dressing in slacks and the latter in the customary waitress uniform. For these uniforms Respondents provided a set allowance, periodically advanced, to provide for uniform purchase and upkeep. In addition, these employees are required by State law and company rule to wear hair nets. Scarves are permitted to be worn by the carhops as an adequate substitute. B. The advent of the Union On or about March 11, Respondents' employees expressed their first interest in self-organization. Joanne Pettit and her sister, Shirley Colangelo, employed as waitresses for 1 and 11/2 years, respectively, and Carol Miller and Charlotte Pluskota, carhops employed for the past 9 months and 11/2 years, respectively, were the first to discuss among themselves the idea of bringing in a union to represent them. At the suggestion of a truckdriver making deliveries at the restaurant the group chose Local 397, the Union herein, and selected Joanne Pettit to obtain further informa- tion. Pettit visited Ralph Texter, the Union's business representative, on March 1I and obtained from him a supply of authorization cards to be distributed among interested employees. From that date through March 14 the 4 named employees whom the Respondents and their supervisors considered to be the "ringleaders" of the union movement, obtained signed cards designating the Union as their bar- gaining representative from 16 of the restaurant's approximately 25 employees. This marked the culmination of a period of frantic activity on the part of the interested employees, and the beginning of an equally frantic period of obstruction on the part of the restaurant's management. During the week ending March 14, there had been a constant round of visits among employees, both on and off the premises, and during and after working hours. All were importuned by Pettit, Colangelo, Pluskota, or Miller to join the 2 By way of further identification of the supervisory personnel of the Home Drive-In it is significant to note that while Condela supervises the waitresses and carhops through- out the year and continuously exercises her usual hiring and firing authority, she was physically present on the job only during the 6-month period preceding, during. and following the summer season. For the remainder of the work year she performed her duties of job assignment and scheduling from her home. Barbara Gifford was identified on the record as a cashier as well as supervisor with authority to hire, fire, and discipline. She is the wife of one Jerry Gifford, manager of one of Respondents' establishments, The Beachcomber, and is the sister-in-law of Respond- ent E E (Ted) Majeroni. Edgar Trimmer, prior to March 1, 1959, was a part-time, weekend cook at the Drive-In, being otherwise employed full time at a nearby Ohio steel mill. Since March 1, 1959, he has been given supervisory authority, including the authority to hire, fire, and discipline employees on the work shift to which he was assigned. HOME RESTAURANT DRIVE-IN 641 Union, and the standard arguments were advanced to encourage full membership among the personnel3 By the evening of Friday, March 13, the efforts of the four girls were in full flower, and the first evidences of the Respondents' reaction to these efforts became apparent. C. The management reaction to the Union Edna Roberts, pastry cook, sounded the first alarm to the restaurant 's manage- ment. After having signed a union authorization card on March 13 at the behest of employees Colangelo and Pettit, she tried to locate Respondent Ted Majeroni. Failing to do so she phoned Jerry Gifford, identified in the record as manager of another of Respondents' restaurants, "The Big Guy," and the husband of Supervisor Barbara Gifford . Roberts told Gifford that she had signed a union card and that she was trying to locate Ted Majeroni and let him know what was happening. In the course of her conversation with Gifford she provided him with the names of all 16 employees who had signed cards.4 In a phone conversation with Ted Majeroni thereafter Roberts repeated to him the information she had given to Gifford. Thus alerted, first by Gifford 's word to him and thereafter by Roberts ' confirming phone call, Ted Majeroni went to the Home Restaurant Drive-In and commenced his investigation of the situation reported . And, in his own words, "ascertained the fact that it was true." Ted Majeroni's system of investigation was described in detail by the employees with whom he spoke on his return to the restaurant , and thereafter . Thus in the presence of Supervisor Edgar Trimmer he spoke to six of the employees then on duty, including Gould, Newcomb, and Manning, inquiring of them whether or not they had joined the Union . Newcomb told him that she had not joined ( although she had ), whereas Gould and Manning told him that they had joined . Thereafter, on various occasions between March 13 and 16 Majeroni sought out and questioned his other employees , including Thompson , the porter, and List, as to their union affiliation , thereby substantiating his credited testimony that "during the ensuing days I got in conversation with Edna Roberts and some of the other ones. I noticed one thing looking at the list of the employees that had signed these union cards, that it was quite unusual in one respect : it contained all the people under twenty-one years of age, and all the women." While Ted Majerom was thus engaged in verifying Roberts' report of union activity among his employees his supervisory force followed the same course. Supervisor Sally Condela , for example, although off duty and at home, telephoned employee Newcomb at the restaurant to ask her if she had joined the Union.5 Employee Miller testified that she was questioned by Condela as to her union membership at the same time. Several days thereafter Condela was still engaged in the same inquiry, having questioned employees Gould, Irwin, and Pluskota about the Union and their respective interests in it.6 Meanwhile on the night of March 13 Respondent Lamar (Bob) Majeroni appeared at the Drive-In and remained there throughout the night . During the course of the evening he prepared a statement for the signature of the employees on duty which read as follows: 3It appears from the record that of the 16 authorization cards allegedly obtained only 14 employees can be specifically identified . Thus employee Pettit signed her own card and procured signed cards from employees Shirley Johnson and Richard Manning. Employee Colangelo signed her own card and procured signatures from employees Edna Roberts and Elias Thompson Employee Pluskota signed her own card and procured cards from employees Shirley Newcomb and Marjorie Gould ( the success of her solicita- tion of employee Chester Griffen is not apparent from the record ) Employee Miller signed her own card and procured signatures from employees Kay Irwin , Angeline Raimondi , and Sylvia Andyjewski . Employee Fletcher's signed card is not shown by the record to have been procured by any of the four leaders. 4 The credited testimony of Roberts and Respondent Ted Majeroni. 5 The credited testimony of employee Nem comb undenied by Condela Condela's version of another incident to the effect that Newcomb approached her and asked if she were being fired is not credited as I view it to be inconsistent with Condela 's conduct at the time, as testified to by other employees and not denied by her. "The credited testimony of the employees involved . Condela was not questioned con- cerning this conduct . She was , however, asked whether she had told Pluskota that there was no good reason for Pluskota to join the Union Condela evaded this question by dis- cussing the alleged grievances of the girls Because of this and my general observation of the witness , I do not credit her testimony 560940-61-vol. 127-42 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is my understanding that Mr. Bob Majeroni has had complaints that the car- hops and waitresses were abused and mistreated Friday evening , March 13, 1959, by the cooks and supervisory personnel at the Home Drive-In, W. 8th & Peninsula Drive. To whom it may concern I the undersigned have not been mistreated or abused by anyone at the Home Drive-In, today , Friday, March 13, 1959. All waitresses and carhops on duty appear to have signed it.7 During the same period Supervisor Edgar Trimmer , who, by his own admissions, openly referred to Pettit and Colangelo as the "ringleaders," carried on his own program of inquiry. Thus he began by asking Colangelo if she had joined the Union and inquired of her whether she thought "Mr. Majeroni is going to let a Union come in here." When she said she did not know, Trimmer then asked her, "Do you think you are going to get away with it?" and he offered to make a bet that the Union "would not be allowed to come in." He concluded the conversation by telling Colangelo that she would be fired for joining the Union. About the same time he asked employee Miller if she had joined the Union and when she did not reply he stated, "Well I know you did." Several days thereafter he asked employee Fletcher what he expected to get out of the Union , followed by the remark, "You know, you will probably lose your job over this." About the same time he asked employee Scrivens what he knew about the Union 8 Fully advised of the extent to which the employees had organized, Ted Majeroni decided to call a meeting of his Drive-In employees for the purpose of ascertaining what grievances the employees were harboring against the Respondents. This meeting was called for Sunday night , March 15, and will be discussed in detail here- after. Meanwhile , Ted Majeroni stated that he "tried to caution everybody, the supervisors, not to take any steps or any action against any of these union activities." Majeroni's instructions must either have been misunderstood or ignored , for the events which transpired between the initial interrogation on March 13 and the employee meeting on March 15 belie any effort on the part of the supervisory staff, or indeed upon the part of Majeroni himself , to avoid "any other action against any of these employees ." In fact, the opposite effect appears to have been achieved, for beginning on the same March 13 the employees became aware that rules previously honored in the breach were being rigidly enforced In fact Supervisor Sally Condela , after having telephoned employees on the job to ask them if they had signed union cards , came to the Drive -In from her home and, by her own admission , told Supervisor Trimmer , then on duty, to keep the employees busy because they had been loafing .0 On more than one occasion that evening as waitresses would stop to talk to one another, Condela would be heard to say, "I'll have no talking here tonight " 10 This rule was carried to such an extreme , in fact, that at 3 a m. on the morning of March 14 , when employees Andyjewski and Miller were preparing to have their dinner in the Drive-In dining room , as was their custom, Supervisor Trimmer forbade their eating in the dining room together . ii During the same period the working rules were rigidly applied not only to insure a minimum of communication between employees but also to impose on them duties and re- quirements out of their usual routine Thus while working under Barbara Gifford's 71 do not accept Respondent Bob Majeroni ' s explanation of this incident , or of his presence at the Drive-In, namely that lie received a call from Union Representative Tester telling him that his employees were being mistreated and abused and that lie should go to the Drive-In and straighten the situation out While Majeroni may have received such a call ( and no one disputes his testimony ), I find upon the credible testi- mony of employee Roberts that Bob Majeroni , as well as his brother Ted \f .iieroni was on the telephone when she reported to them about the Union This I find to have been the principal reason for Bob Majerom 's presence at the Dace-Tn on March 13-14 8 Trimmer was not questioned concerning his conversation with either Miller or Scrivens In consequence their testimony stands undenied As to his testimony gen- erally I have carefully compared that given as a witness for Respondents soith his testi- mony as an adverse witness called by General Counsel, w,thout objection , under rule 43(b) of the Rules of Civil Proceduie I have also noted ceitain testimony given in answer to questions directed to it statement made sometime prior to the hearing P.ecause of the inconsistencies that I have noted in this comparison of testimony and because of Trimmer's efforts in his testimony as Respondents ' witness to offset any contrary impressions he may have made by his earlier testimony , I will credit this witness only on such matters as are corroborated by the credited testimony of other witnesses The testimony of Condela and Trimmer , corroborated by employee Newcomb 10 The credited testimony of employee Johnson 11 The credited testimony of employees Andyjewski and 'Miller. HOME RESTAURANT DRIVE-IN 643 supervision the girls were forbidden to communicate with one another, and in addition were not permitted to sit down during slack periods as had been their custom. Under Trimmer's direction they were required to clean and polish the same glass shelves and decorative chrome repeatedly throughout the day,12 thus carrying out Condela's instruction to him to "keep them busy." Indeed Trimmer's interpretation of these instructions appears to border upon the ridiculous when, on the morning of March 17, he assigned employee Fletcher the task of cleaning 25 pounds of shrimp and molding a total of 720 hamburger "patties" for a day's anticipated requirement of no more than 5 or 10 pounds of shrimp and from 120 to 140 hamburgers.13 D. The employee meeting and Candela's offer to resign When impressed with the full significance of his employees' organizational efforts Ted Majeroni called a meeting for Sunday evening, March 15. The meeting, according to Maleronr , was intended to explore the alleged grievances and com- plaints against Respondents and their supervisors . It lasted for approximately a half hour. It was attended by a majority of the employees, with "a few notable exceptions " Among those who did not attend were the leaders of the organizing campaign, Pettit, Miller, Pluskota, and Colangelo, who sought to persuade others not to attend.14 During the course of the meeting Ted Majeroni repeatedly asked any employee who had a complaint or grievance against the employer or his supervisor to speak up so that the issue could be thoroughly discussed . Although some employees were singled out for independent inquiry , no one presented a grievance . Whereupon Supervisor C ondela, who with Barbara Gifford appears to have been the focal point of the employees' unrest, stated that if it were her actions that were causing all of the confusion and complaint they should so state, and if a majority of the employees would vote against her in the matter she would resign her job Nothing further came of her offer. Gifford, although present , does not appear to have contributed anything to the meeting. E. Trimmer's visit to the union meeting While the employees' organizing efforts were in progress and while Respondents were making certain that the remainder of their employees would not be, to use Ted Majeroni's expression, "railroaded" into the Union, Edgar Trimmer, supervisor, in a moment of curiosity, arranged to attend a meeting of the Union. This he did by requesting employee Pettit's permission. Pettit's reply, which I deem to be acquiescence if not an outright invitation, was that "it's a free country" and he could do as he saw fit. While the record is unclear as to his attendance at a union meeting, it is undisputed that Trimmer did visit the union hall on a night on which a meeting was scheduled and that he had a prolonged visit and conversation there with 11*ion Representative Texter. It appears that Trimmer's plans to go, his request of employee Pettit, and his actual presence at the union hall were a matter of general knowledge among the employees at the time and were protested by none F. The layoff On March 17 the Respondents closed down the Drive-In except for the after- school and early evening hours. As a result of this curtailment, two working shifts were eliminated and the employees affected were notified of their termination by a telegram which stated: CLOSING TWO SHIFTS YOUR EMPLOYMENT REGRETTABLY TERMINATED-HOME DRIVE-IN According to Ted Majeroni, whose decision it was to reduce the operations and who sent the telegrams, everyone on the affected shifts was notified of his termination. The only exceptions were Edna Roberts, identified earlier as Majeroni's informant on union matters and the restaurant's sole pastry cook, and Elias Thompson, the porter Although Majeroni knew Thompson had signed a union card and the other 12 The credited testimony of employees Pettit and Colangelo 13 The credited testimony of employee Fletcher, not denied by Trimmer when testifying in Respondents' behalf "When asked why they opposed the meeting and did not attend it, employee Pettit could offer no reason 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD porter, Britton, had not, he testified that he terminated Britton because he had the least seniority of the two.ls It appears from the record, however, that for 3 days ending on March 17, the period during which Respondents were deliberating the curtailment of their opera- tions, the classified advertisement section of The Erie Times carried Home Drive-In's advertisement for carhops.ls In addition to the retention of Roberts and the planned retention of Thompson, other exceptions to the layoff program were also made. When the cutback occurred, employee Scrivens, a cook on one of the affected shifts, was laid off with the others. When Scrivens, whose lack of sympathy for the Union was admittedly known to Ted Majeroni, asked Supervisor Trimmer why he was being laid off, Trimmer said "he thought" that it was because "Mr. Majeroni had heard that [Scrivens'] name was on one of the cards that the Union had." When Scrivens denied his union sympathies Trimmer assured him that Majeroni would be so advised.'? Thereafter Scrivens approached Ted Majeroni and, after restating his opposition to the Union, asked for work. Majeroni arranged for him to work at another of Respondents' restaurants at ,a job that lasted but I day, and a week later called him back to work for an evening at the Drive-In, and another week later called him in for some painting work, on the completion of which Scrivens resumed his regular job.'s Meanwhile, on March 24 Carrie Ball, whose lack of union sympathy was admittedly known to Ted Majeroni who had been laid off with the others on the first and third shifts, was reinstated to work on the second shift, the only shift not discontinued. On or about March 31, according to Majeroni, the usual seasonal business increase prompted Respondents to resume their abandoned shifts, one being reinstituted on that date, and the remaining one on April 10. G. The picketing activity Following the layoff of the first and third shifts on March 17 and the receipt of telegrams by the affected employees, these employees met with Union Representative Texter, who in turn met with Respondents in an effort to effect reinstatement of the displaced workers. Beginning on March 23, however, and continuing for an unde- termined period thereafter, some of the laid-off employees, plus several to be con- sidered hereafter, who were discharged for reasons allegedly unconnected with their union affiliation, established a picket line in front of Respondents' Home Restaurant Drive-In and the Home Restaurant at Third and State Streets, Erie, Pennsylvania, owned exclusively by Respondent Lamar (Bob) Majeroni. During the course of the picketing at the Drive-In, concededly intended to acquaint customers with the em- ployees' dispute with Respondents and discourage their patronage, the employees dis- tributed to potential customers and passersby a leaflet entitled "The Majeroni Story." Because this leaflet and its contents , as well as its distribution, form Respondents' principal basis for refusing reinstatement to employees Pettit, Colangelo, Pluskota, Andyjewski, and Fletcher who distributed it, the leaflet is reproduced in its entirety as follows: 15 Elias Thompson's testimony is, in the main, incoherent. By comparing it, however, with the credited testimony of Ted Majeroni on the subject matter of Thompson's termi- nation, this much is clear : He was put to work on another shift, the morning shift upon which he had been working being discontinued. Therefore, when Thompson testifier) "the shift he wanted me on, I couldn't get in and out My transportation was too poor for that" he was, in effect, corroborating Majeroni's subsequent testimony. In this re- spect Majeroni stated: I went to Mr Thompson's house that night and presented him his check and said I was closing two shifts and would no longer need him unless he could work on the second shift. He said that he could. . . He was not there the next day A couple of days later he called and said "How about my job? Is it still open')" And he said, "Yes" I said, "You are suppose to come in" I said "You never showed up" And he said, "Well, I have trouble with the transportation on the second shift and I can't make It" On the strength of the foregoing I find, therefore, that Thompson was not among those terminated upon the abandonment of the two work shifts. 19 Ted Majeroni testified that ads were also placed for carhops and waitresses on five unspecified occasions after March 17. These ads, in anticipation of the usual seasonal hiring increase, are not to be confused with the ones specifically placed at the time of the layoff. 17 The credited testimony of Scrivens, not denied by Trimmer. 's Ted Majeroni confirmed Scrivens' account of the special treatment afforded him. HOME RESTAURANT DRIVE-IN 645 THE MAJERONI STORY (HOME DRIVE-IN RESTAURANT) On or about March 11, 1959, a large majority of the employees of Home Drive-In Restaurant authorized the General Teamsters Local Union #397 to represent them in regard to wages, hours of work and other conditions of employment. The Majeroni employees were not solicited by the Union but did go directly to the Union and ask for representation. Our wages are intolerably low--44 1/2 0 per hour during the summer season. We have been forced to work split shifts. Our supervisors have used foul language when giving us work orders . We have been compelled to make up the losses when customers forget to pay for their orders. We have never had rest periods or regular lunch periods. Our Supervisors have never shown respect for us nor have they ever been appreciative of extra effort on our part in handling extra work. Many of us were fired by our Employers for joining a Union. We have never had a regular work schedule and often reported for work and were immediately sent home . Then if we did not report for work when our Supervisors thought (without notice to us ) we should report for work, we were treated like stray animals. Our employers (Majeroni Brothers ) by their actions forced us to seek the help of a Union to have our working conditions straightened our (sic ) and to secure a decent wage for our work. We do have unfair labor practices charges filed against the Majeroni Brothers before the Pennsylvania Labor Relations Board for their discrimination against their employees. The Teamsters Union , on behalf of the employees of the Majeroni Brothers Home Drive-In Restaurant requests each of you to refrain from patronizing said Restaurant until such time as the Majeroni Brothers and their supervisors decide to correct the unfair conditions through bargaining with the Union chosen by the Majeroni Brothers employees. Employees' Committee Teamsters Local Union #397. H. The alleged discharges for cause 1. Sylvia Andyjewski Sylvia Andyjewski had been employed by Respondents as a waitress since June 1958. At the time of the union activity involved herein she was expecting the birth of her third child, due to arrive in June. By previous arrangement with Supervisor Gifford,19 employee Andyjewski was to continue in Respondents' employ until the end of March. Events which occurred on the night shift of March 13-14 appear, however, to have altered these arrangements. Thus, as described in detail above, the employees had begun their organizational efforts, had been seen congregating and soliciting union authorization card signatures, and had been questioned by their super- visors concerning the operation. Andyjewski was among those who signed cards that evening and was one of the employees upon whom strict adherence of the work- ing rules was imposed to the extent that she was forbidden by Supervisor Trimmer to eat, at 3 a.m., in the company of a fellow employee. During the course of the evening Supervisor Condela, whose activities were set forth in fuller detail above, came to Andyjewski and said, "Make this your last night. You're getting too big to work at the dining room." Andyjewski's employment was terminated as of that date. When the picket line was established in front of Home Restaurant Drive-In employee Andyjewski participated and was among those who distributed the pamph- lets to which Respondents objected. Following the birth of her child on June 5 she requested reinstatement to her job, making reference to current classified want ads by which Respondents were seeking carhops and waitresses. Supervisor Condela told her they had nothing to offer and that she should call later. She did call later and was told that Respondents had all the waitresses and carhops it needed. In addition to these attempts at reinstatement Andyjewski was also included among the group of employees who sought reinstatement by formal letters sent to Respondents on June 24, 1959, and again on an undetermined date in August 1959. 11 Gifford did not testify at the hearing and Andyjewski's testimony in this respect was not otherwise disputed. 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Ted Majeroni made it clear in his testimony that employee Andy- jewski would, under usual conditions, have been reinstated following the birth of her child. Because, however, she participated, in the company of other employees, in the picketing of the Drive-In and distributed what Majeroni considered to be false information, he refused to reinstate Andyjewski to the job from which she had been granted maternity leave. 2. Richard Fletcher Richard Fletcher began in Respondents' employ on June 3, 1957. During the summers of 1957 and 1958 he worked full time and throughout the intervening period he attended school, working part time whenever possible. As he did not return to school in September 1958 Respondents retained him as a full-time cook. According to Ted Majeroni, Fletcher's continued full-time employment during the 1958-59 season was made possible during that period by the absence from the city of Edgar Trimmer, then a regular cook and more recently, early in March 1959, promoted to supervisory status. On March 17, following an absence of a week due to illness, Fletcher reported to work on the morning shift. After working for 2 or 3 hours on an assignment of cleaning 25 or 30 pounds of shrimp and of molding approximately 720 hamburger patties, Ted Majeroni sent Fletcher home and told him to return in the afternoon. Upon his return Fletcher reported to Majeroni who told him he would have no further need for him until business picked up 20 By the weekend of March 14-15, Fletcher had joined the Union and this fact had been conveyed to Ted Majeroni by employee Edna Roberts.21 Although absent from work during the previous week, he received word of the employee meeting scheduled by Majeroni for the evening of March 15 and attended it. At the con- clusion of the meeting Supervisor Trimmer summoned Fletcher and asked him what the Union had to offer him. When Fletcher gave him a noncommittal answer Trimmer replied, "You know, you'll probably lose your job over this." 22 There- after on March 17, and prior to the notification to the employees that two shifts were to be abandoned, employee Pluskota, noting Fletcher's absence and recalling her conversation with Trimmer on the previous day to the effect that Trimmer would be taking Fletcher's place as cook, asked Trimmer "if Fletcher was going to come back to work or if he was just off for the day." Trimmer replied, "No. That's what happens when you join the Union." 23 3. Shirley Johnson Shirley Johnson was first employed by Respondents as waitress in June 1957 and has worked regularly from that time until her discharge on the early morning shift of March 14. As was true of the other employees at the Drive-In, Johnson had been previously solicited by Joanne Pettit for union membership and had signed a union authorization card on March 11. As employee Roberts testified to having given Respondent Ted Majeroni the names of all who signed union cards, and as Majerom confirmed this fact, it is to be assumed that Majeroni was specifically aware of Johnson's union affiliation, and I so find. Furthermore, Johnson testified credibly that on the night of March 15, immediately before her discharge, she was approached by one Anastasia Kingsley, employed as a carhop but assigned as a waitress tem- porarily for that evening, and related by marriage to Ted Majeroni. Kingsley asked Johnson if she had signed a union card; and when Johnson affirmed that she had, Kingsley-stated, "Well, you shouldn't have. There's going to be trouble " 24 Where- upon Kingsley left Johnson and walked to the kitchen. As she did so she passed 2° The reason thus assigned for Fletcher 's layoff is based upon Majeroni's credited testi- mony, and it is found by me to be one of the reasons for the general layoff As will be developed hereafter this is but one of several reasons for the layoff . Any inference , there- fore, that can be drawn from Majeroni 's testimony to the effect that lack of work for Fletcher was 'the only reason for Fletcher s termination on March 17 is hereby rejected. 21 The credited testimony of Roberts , affirmed by Majeroni The record is not clear as to the circumstances of Fletcher ' s first affiliation with the Union Thus, although absent from work for the week prior to March 15 , he testified that he joined the Union on March 13 , without indicating where this took place. As his interest immediately prior to March 15 is conceded by all, and is documented by the credited testimony of both Fletcher and Ted Majeroni , any discrepancy as to dates is deemed to be of no consequence to the issues herein. 22 The credited testimony of Fletcher. Trimmer's denial of this conversation is not credited 23 The credited testimony of Pluskota . Trimmer's denial is not credited. 24 The undenied testimony of Johnson . Kingsley did not testify at the hearing. HOME RESTAURANT DRIVE-IN 647 Respondent Lamar (Bob) Majeroni and was seen to nod her head to him I deem this incident, based upon credible testimony, together with the credited testimony of employee Roberts and Respondent Ted Majeroni, noted above, to be adequate evi- dence of Respondents ' knowledge of Shirley Johnson's union affiliation Shortly after Johnson 's conversation with Kingsley , Supervisor Condela came to Johnson and, after asking her if she wanted to work that evening, told her that she was being discharged. When Johnson asked the reason for her discharge, Condela replied, "I have a report that you're stealing coffee." This report, according to Ted Majeroni, was from his brother, Respondent Lamar (Bob) Majeroni, to the effect that Johnson-had been serving coffee without charging for it. Johnson finished working the shift and has not been in Respondents ' employ since. While the precise details leading up to Johnson 's dismissal are in conflict , the over- all circumstances are clear. Thus Johnson testified that 3 weeks before her discharge Bob Majeroni came to the Drive-In with another gentleman late in the evening and ordered coffee Johnson went to the kitchen and with Supervisor Barbara Gifford's approval 25 took a pot of coffee to the dining room without paying for it, as was normally required of waitresses , stating to Gifford as she did so , "this pot of coffee is for Bob." Whereupon she served Bob Majeroni and his friend with coffee without charging them for it 26 This procedure undoubtedly met with Bob Majerom's dis- approval, for several days later Supervisor Gifford instructed Johnson that hence- forth she was to require a signed slip from Majeroni when he wished coffee, and that upon presentation of the slip Gifford would give Johnson the coffee without re- quiring the usual prepayment Respondent Bob Majeroni confirmed Johnson's testimony that she had served him coffee without charging him for it. He contradicts her testimony, however, on numerous details. Thus he indicated that he was in a party of six, that he had ob- served Johnson giving coffee away fttquently, and that the incident causing John- son's discharge occurred no longer before the discharge than several days, and could well have happened on the day of the discharge itself. Because Bob Majeroni was uncertain as to the date of the occurrence, because his brother , Ted Maleroni, to whom he reported the incident , was positive that the incident did not occur on the day of the discharge , and because Bob Majeroni's testimony as to the number in his company conflicts with Johnson's account are all, in the main , irrelevant de- tails, I shall accept Johnson's account and reject so much of Bob Majeroni 's account of the incident as conflicts with it. In any event , the versions vary only as to in- cidental details, and one conclusive fact, the serving of free coffee , emerges from both versions, and I so find. Following her discharge , Shirley Johnson, unlike the discharged Richard Fletcher, took no part in the picketing and pamphlet distribution which followed the layoff of the first and third shifts on March 17. 4. Carol Miller Carol Miller's employment with Respondents began in the summer of 1958. Since that time she had been regularly employed as a carhop or waitress as conditions would require. When the interest in self-organization first developed among the employees it was Miller, together with employees Pettit, Pluskota, and Colangelo, who arranged the initial meeting with Union Representative Texter, and who thereafter were in- strumental in soliciting the total of 16 employees (including themselves) whose union affiliation was reported to Ted Majeroni. Indeed employee Miller's union prominence was such that Respondents' supervisors admittedly referred to her and to her three coorganizers as the "ringleaders" of the movement.27 Miller had been working on the late shift on Saturday, March 14, from 10 p m. until 4 or 5 a.m. Sunday, March 15. It appears from the record that work schedules were changed beginning on March 15 and that Miller was next scheduled to work from 5 p.m. that day until 1 a.m. on Monday, March 16. As Miller had previously been assigned day work on Sundays she was in doubt as to whether she should report at 12 noon Sunday, as she had reported previously, or at 5 p in. as stated on 25 Gifford did not testify at the hearing 2" Under usual circumstances , it should be noted , the waitress would have charged the customer for the food or drink for which she had already paid the cashier in the kitchen, and she would have kept the money in accordance with Respondents' operating practice. 27 It is of significance to the issues presented by Miller 's summary dismissal to note that it was she who had been singled out together with employee Andyjewski by Super- visor Trimmer at 3 a .m. on March 14 and forbidden to eat dinner together , or to converse with each other, all contrary to previous practice. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the newly posted schedule. She assempted to reach Supervisor Condela by phone to solve her dilemma but was unable to do so. Miller testified that on previous Sundays during the winter when the weather was bad, Condela had "left it up to [Miller] whether to come in noon hours or not." Accordingly, Miller concluded that as she had worked until 5 a.m. that morning, and as the weather was bad, she would come in at 5 p.m., the hour listed for her on the schedule. When she set out for work she was delayed by a flat tire on her car and was forced to call employee Pettit at her home and get a ride to work. At the same time she phoned the Drive-In and left a message for Supervisor Barbara Gifford to the effect that she would be delayed. Miller arrived at work at 5:20 p.m. Shortly after her arrival at work she received a phone call from Supervisor Condela, who wanted to know why Miller had failed to come in at noon. After Miller ex- plained to her that the weather was bad and that she was not clear what to do in the circumstance Condela informed her that another girl had been called in her place and that she should take the next 2 working days off. On March 17 Miller called Condela asking to go back to work and was told that she was discharged for "not coming in." Miller thereafter joined the employees of the discontinued first and third shifts in picketing Respondents' premises and distributing handbills.28 1. Respondents' refusal to reinstate As business improved at the end of March 1959 the two discontinued work shifts were reinstated, one on March 31, the other on April 10. Meanwhile the picketing at the Driven ceased. As the need for more employees increased, additional hir- ings were effected by Respondents, some through the medium of advertisements in the local papers. At no time, however, did Respondents make any effort to recall the employees who had engaged in the picketing or those whom it allegedly dis- charged for cause. On the contrary, despite two formal written requests for rein- statement filed with the Respondents, no offer of reinstatement has to the date of the hearing herein been forthcoming. J. Respondents' contentions and supporting arguments Respondents deny that they were motivated by considerations of union activity or affiliation when they terminated the employees involved in these proceedings. Thus they contend that employees Johnson and Miller were discharged for cause, the respective causes being the giving away of food and failure to report to work on time. They further contend that employee Andyjewski was not discharged but granted maternity leave; and that employee Fletcher was laid off for lack of work. The remaining employees specified in the complaint-Pettit, Pluskota, and Col- angelo-it is contended, were laid off as an incident to the economic curtailment of business operations, but were refused reinstatement because, following their layoff, they picketed the Respondents' premises and distributed to customers and passersby the leaflet "The Majeroni Story," containing allegedly false, scurrilous, and libelous matter, such conduct being designed to injure the Respondents and their business: Specifically as to employees Andyjewski and Fletcher, whose initial termination was allegedly of a temporary nature, Respondents contend that because they too par- ticipated in the picketing and leaflet distribution they thereby lost their claim to the reinstatement to which they might otherwise have been entitled. Anart from their argument and defenses directed to specific conduct alleged by the General Counsel to be violative of the Act and to the circumstances surrounding individual instances of discrimination, Respondents raise two basic contentions which they deem to be dispositive of the issues: (1) That the discontinuance of two working shifts, resulting in an extensive layoff of employees, was motivated by sound business consideration; and (2) that by circulating to Respondents' cus- tomers and passersby a leaflet which Respondents hold to be devoid of truth and substance, the employees involved have engaged in an activity unprotected by the Act and are therefore not entitled to reinstatement. 21 The foregoing facts relating to employee Miller's employment tenure and her termi- nation and to the circumstances surrounding the scheduling of her work are based upon Miller's credited testimony corroborated in part by the testimony of employees Pluskota and Colangelo. Supervisor Condela did not testify on the subject of Miller's tardiness or her discharge and Respondent Ted Majeroni made it clear in his testimony that whatever information he possessed concerning Miller's case came to him from Condela. It necessarily follows, therefore, that Miller's credited account of the incident stands unrefuted by competent, contrary evidence. HOME RESTAURANT DRIVE-IN 649 K. Analysis and concluding findings In their brief and at the hearing Respondents insisted that the first and third work shifts were discontinued on March 17 for reasons of business economy, after considerable thought and on the advice of their accountants. Upon the credited testimony of Respondent Ted Majeroni and his certified public accountant, Michael Yarbenet, I am persuaded that Respondents' plea of economic justification for the curtailment of the work shifts is well founded, and I so find. In so finding, however, it is not my purpose to preclude further findings that there may, or may not, have been other considerations present which could, or did, convert an essentially economic determination into a situation fraught with discriminatory implications. Suffice it to say, for the purposes of the issues present herein, that the curtailment of the work shifts and the resulting layoffs had economic justification, but that in the light of what transpired, as will be considered hereafter, the economic considerations are of no primary significance to the final disposition of the issues presented. For although it is well established that an employer is free to suspend operations for business reasons which are not concerned with protected employee activity,29 never- theless when there are also present reasons that are concerned with employee activity protected by the Act then "the fact that there was an economic reason . . . ceases to be controlling." 30 Having found as I have, therefore, that there were sound economic reasons for a shutdown of the first and third work shifts it becomes incumbent upon the General Counsel to show by credible evidence that there were also reasons for the shutdown that are concerned with protected employee activity. Upon my evaluation of the credited evidence before me, set forth in detail above, I am persuaded for reasons which follow that the General Counsel has established the existence of motives that are not only economic, but discriminatory as well. 1. Interference, restraint, and coercion The findings set forth above establish a clear pattern of panic on the part of the Respondents and their supervisors as soon as they learned of the unionization of their employees. No sooner had employee Roberts sounded the warning on March 13 than both Respondents and two of their supervisors converged upon the Drive-In in the middle of the night. This assemblage of the top echelon and the conduct which followed on that evening and thereafter clearly manifest concern and appre- hension over the coming of the Union. Thus both Ted and Bob Majeroni interro- gated their employees as to their union membership, while their supervisors, Trimmer and Condela, not only pursued a campaign of questioning, but by words and direc- tions made it clear to the employees that union membership was poor job security. For example, as found above, Supervisor Condela questioned employees Newcomb, Miller, Gould, Irwin, and Pluskota concerning the Union and their respective in- terests in it. During the same period Supervisor Trimmer engaged in like question- ing, directing his particular attention to employees Colangelo, Miller, Scrivens, and Fletcher. As the interrogation of their employees progressed it was impressed upon them that the Respondents intended to convey information rather than to seek it. Trim- mer, for example, disclosed Respondents' active opposition to the Union by asking Colangelo if she thought "Mr. Majeioni is going to let a Union come in here." And he prophetically disclosed the method of Respondents' opposition by following his interrogation of Fletcher with the remark, "You will probably lose your job over this." Whereas Trimmer's participation at this time was principally vocal, Supervisor Condela took a more positive form of counteraction. Thus, it will be seen that immediately upon her arrival at the Drive-In late on the night of March 13, she put into rigid operation rules and procedures completely at variance with past prac- tice, and not enforced prior to Respondents' awareness of the Union. As described "Great Falls Employers' Council, Inc, et at., 123 NLRB 974 30 Calefornaa Footwear Co, 114 NLRB 765, 767, enfd. sub nom N.L R.B v. Jack Lewis and Joe Levitan, d/b/a California Footwear Company & Trina Shoe Company, a Corpora- tion, 246 F. 2d 886, 890 (C A. 9). In the course of its decision the Board stated We can see no real difference between the case of an employer who decides to move his plant to run away from his union rather than for economic reasons and an employer, who, as here , moves his plant for economic reasons but decides to utilize the move as an opportunity to get rid of the union. . . . See also . N.L.R B. v. Whitin Machine Works , 204 F. 2d 883, 885 (C.A. 1). ,650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in detail above, Condela, and through her instructions Trimmer, made a deter- mined effort to prevent the employees from loafing on their early morning work shift, and forbade them, contrary to usual practice, to talk with one another or to have their dinner meals together. These incidents, it will be recalled, occurred on the very evening on which Respondent Bob Majeroni solicited the signatures of the same employees to a statement that they were not being abused or mistreated.3i In addition, they were forbidden to sit down during slack periods, contrary to usual practice; they were assigned an inordinate amount of maintenance and cleaning assignments; and in the case of Fletcher's hamburger-molding and shrimp-cleaning assignments, Respondents' reprisals against known union adherents reached a ridiculous extreme. Upon consideration of the foregoing summary of incidents, detailed in the preceding findings of fact, I am convinced that Respondents, in an effort to forestall the progress of their employees' self-organization, questioned them at length concerning it, threatened at least one of them, Fletcher, with discharge for his part in it, engaged in a campaign of reprisal by imposing, under the guise of revived rules, new and rigorous working conditions upon employees who, until their union efforts became known to Respondents, had enjoyed a relaxed working atmosphere during the late-hour shift of the winter season. Such conduct on the part of an employer and its responsible supervisors, and so timed, most certainly interferes with, restrains, and coerces employees in their guaranteed rights and no citation of Board and court authority is necessary to a conclusion that in the respects noted above Respondents have violated Section 8(a)(1) of the Act. In addition to the foregoing categories of interference, restraint, and coercion which I have found to be violative of Section 8(a)(1), the complaint also alleges that Respondents violated that section by (1) Supervisors Condela's and Gifford's offers to resign, "for the purpose of discouraging its employees from engaging in union and concerted activities," and (2) Supervisor Trimmer's engaging in sur- veillance of union activities. With respect to the offers to resign, the evidence discloses that at an employee meeting Condela agreed to resign if the employees voted against her handling of her job. There is no evidence that Supervisor Gifford made a similar offer. Upon review of pertinent legal precedent I am not persuaded that a supervisor who offers to quit her job at the request of those whom she supervises thereby interferes with, restrains, or coerces them in any respect whatever. Accordingly, I shall recommend that the allegation in the complaint alleging such conduct to be a violation be dismissed. With respect to Edgar Trimmer's proposed attendance at a union meeting and his visit to the union hall it should be noted that he did so after consulting with employee Pettit (one of the "ringleaders") and being told by her that "it's a free country " And it is to be further noted that during his visit to the union hall be conversed with Union Representative Texter, an active figure in the employee organization. "Surveillance" in its accepted terminology may be described as an attempt at discovery, clandestinely or by artifice. Trimmer's activity was open and aboveboard and not only with full knowledge of all concerned but with their permission. As this is not conduct which I consider to be proscribed by Section 8(a)(I) of the Act, I shall recommend that the allegation in the complaint referring to such conduct as a violation be dismissed In all other respects I find that Respondents have violated Section 8(a)(1) as alleged. 2. The March 17 layoff As noted above, it is not sufficient defense of their action for Respondents to prove to the satisfaction of all that the first and third shifts were closed down for reasons of economy. Upon the evidence presented by the General Counsel and found by me it is apparent that economy was but one of the reasons for the shutdown. The other reason, and the one which by law becomes the controlling one, is Re- spondent's antipathy towards the unionization of their employees and their deter- mined effort to thwart it. 31 "This statement was signed after the unfair labor practice had been committed and moreover the employees ' signatures on 'the . . . petition were obtained under circum- stances which indicated a separate unfair labor practice in violation of Section 8(a)(1) N L R B . v Habib Marcus r1/b/a Mai rag Bros , 272 F. 2d 253 (C A. 2). In the absence of an allegation in the complaint that the procuring of such a state- ment was unlawful I shall make no finding herein as to its legality. HOME RESTAURANT DRIVE-IN 651 Respondents' intent in this respect is manifest by an entire chain of events that ,could logically have had no other purpose. Thus, as soon as Ted Majeroni learned that employees had signed union cards management immediately established a full alert. Employees were closely questioned about the Union and their connection with it, some were asked to sign statements that they were well treated, others were the victims of revived rules requiring silence and a degree of decorum not usually imposed during the winter months and the early morning working hours In the days that followed, employees were watched carefully, some were given unnecessary or impossible tasks to perform, Fletcher was threatened with losing his job over the Union and, together with Johnson, and Miller, did lose his job under circumstances whose peculiarity will be considered in detail hereafter And finally, Supervisor Trimmer confided in one of the employees that one of the reasons Fletcher was being laid off was because his name was on a union card I have no alternative but to conclude that Respondents, in an effort to impede the progress of the Union and thwart the self-organization of the employees, seized upon the expedient of their unprofitable operations and discontinued them not merely because they were un- profitable but for the effect such action would have upon the union adherents involved.32 Nor do I rely entirely on the circumstances preceding the layoff to reach the conclusion I have reached. The manner in which it was effected and events occur- ring thereafter lend further evidence of Respondents' discriminatory motive. Thus it is significant that although every employee known by Respondents to have joined the Union was terminated, those who did not join (Scrivens and List) or who disavowed their membership (Roberts and Thompson) were not.33 And as further evidence of the questionable purpose of the March 17 layoff is the classified adver- tisements for carhops which appeared in The Erie Times for March 15, 16, and 17. Upon all of the foregoing, therefore, I conclude and find that Respondents discon- tinued their first and third shifts on March 17 because their employees had sought to organize themselves and had joined the Union, thereby discriminating against them in violation of Section 8(a) (3) of the Act. As such conduct likewise interferes with, restrains, and coerces employees in the exercise of the statutory rights, I find that by its conduct Respondents have also violated Section 8 (a) (1) of the Act. 3. The refusal to reinstate Upon the application for reinstatement of those laid-off and discharged employees who picketed Respondents' establishment and distributed the leaflets, "The Majeroni Story," Respondents refused, stating that by their conduct, designed as it was to injure Respondents and their business, the employees had lost their right to reinstatement. Respondents misconceive the character of protection bestowed upon the concerted activities of their employees and would impose rules of conduct not sanctioned by past holdings of the Board and courts. Thus they equate with the distribution of "The Majeroni Story" such proscribed conduct as the use of vile and obscene lan- guage,34 the timing of a strike so as to cause maximum plant damage as would occur in the failure to pour molten metal,35 the griping and complaining by employees at work who are not engaged in concerted activities,36 the calling of a strike in violation of the provisions of the War Labor Act,37 and circulating leaflets derogatory to an 32 "The abruptness of a discharge and its timing are persuasive evidence as to motiva- tion " N L R B v Montgomery Ward &'Co , 242 F 2d 497, 502 (C A. 2). See also : N L R B v Southern Desk Co, 246 F 2d 53, 54 (C A 4) 33 Indeed the only exception to this pattern, Carrie Ball, is further proof of the pattern's existence, for although Ball did not join the Union and was laid off, she was recalled within a week So it was with Scrivens who Ted Dlajeroni thought had signed a union card until set straight by Supervisor Trimmer Scrivens, though laid off, was promptly recalled and a determined effort was made to keep him busy 34 N L R B v united Steel Workers of America, C 10., Petitioner (Nutone, Inc., Inter- venor), 243 F 2d 593 (C A., D C.), reversed in other respects 357 U S 357. 3'-NLRB. v Marshall Car Wheel and Foundry Co of Marshall, Texas, Inc , 218 F. 2d 409, 413, footnote 7 (CA 5) 36 N L R B. v. Office Towel Supply Company, Incorporated, 201 F. 2d 838 (C.A. 2), wherein the court stated (at p. 841) that "Doubtless an employee's remark, which other- wise would justify a discharge, may be made in a context of concerted activity with the result ,that the'discharge of that employee for that remark is unlawful under the Act. . . . 37 Hamilton v. N.L.R B ( Kalamazoo Stationery Co ), 160 F. 2d 465 (C.A. 6). 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer under circumstances unconnected with a labor dispute.38 Lest there be any doubt, "The Majeroni Story" was distributed as an adjunct of the picketing of Respondents' Drive-In, a labor dispute protesting the termination of the employees on the first and third shifts. The picketing was in every respect peaceful and orderly. If then the picketing and the distribution are to be viewed as beyond the pale of the Act's protection, it must be for one of the enumerated -reasons, namely, damage to property, vilification, not in connection with concerted action, or contrary to law. Obviously "The Majeroni Story" was none of these. If it were to be considered bad at all, therefore, it would only be because it impugns the Respondents' product or service or, according to Respondents, because it is untrue. A reading of the leaflet clearly shows that it was Respondents' personnel policy and the way they treated their help that was being complained of. Nowhere does the leaflet refer to the quality of the food served, to the cleanliness of the facilities, nor to the reputation of Respondents as restaurateurs, as distinct from parties to a labor dispute. Accordingly, I viewed the appeal of the leaflet as the publicizing of an existing labor dispute, separate and apart from the quality of the product or service-a lawful appeal,39 and not a device to impugn the quality of Respondents' goods and services which would be clearly without justification or protection.40 The truth of "The Majerom Story" and its sincerity is another question. The record is replete, for example, with testimony of employees seeking to explain how they were being "treated like stray animals." Much of the complaints of overwork and rigid supervision is symptomatic of a class of young employees who would rather be visiting the Drive-In than working at it. But whether these indignities they were experiencing, many of them working at their first job, are real or fancied is of no relevance. For were reasonableness to be the test of a legitimate grievance and the prerequisite of concerted protest, few cases would ever be heard. It follows, therefore, that objection to hard work or to rigid supervision is always in order. Elsewhere in the record there is ample credited testimony, most of it by the distributors of the leaflet themselves, that the low wages they complained of were not the low wages they were receiving, and that their working conditions were not nearly as harsh as described in "The Majeroni Story." However offensive to our moral sensibilities the circulation of "The Majeroni Story" may be, it is well settled that the truth or falsity of the statements in question are not the test of their protected character.41 I am constrained to hold, therefore, that the extent to which the leaflet may have strayed from reality has no bearing upon the protection to which it is entitled as an adjunct to the picket-line activity. In this context, moreover, I would insert a comment directed to the credence I have placed upon the testimony of these employees. I believe that these people subscribed to much of what was stated in "The Majeroni Story." Nonetheless, a reading of their testimony, after observing them as witnesses, impresses me that they have a most peculiar understanding of their working responsibilities that can only be corrected by more work. I see nothing in their attitudes, however, that would reflect upon their truthfulness. As neither ambition, commonsense, nor sound judgment is the test of a truthful witness, I have credited these employees as witnesses for the reasons previously stated (footnote 1). In summary, therefore, because "The Majeroni Story" was devoted to an attack not upon Respondents' product or service, but upon his labor policies, in the context of a labor dispute, and because the truth or falsity of the statement is not deemed to be relevant to the protected character of the leaflet, I find that its distribution was a protected concerted activity and did not justify Respondents in their failure and 31N.L.R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.F.L. (Jefferson Standard Broadcasting Co.), 346 U.S. 464 Y. N.L R.B. v. Electronics Equipment Co. Inc., 194 F. 2d 650, 653-654 (C.A. 2) ; The Hoover Company v. NL.R.B., 191 F. 2d 380, 390 (C.A. 6). 40 N L R.B. v. Local Union No. 1229, International Brotherhood of Electrical Workers, A.FL. (Jefferson Standard Broadcasting Co.), supra; The Patterson-Sargent Co., 115 NLRB 1627. 41 The Patterson-Sargent Co , supra. Compare the Board's stated policy with respect to campaign statements made prior to representation elections : The truth or falsity of such assertions was not peculiarly within the knowledge of the Union. They could, in our opinion, reasonably be understood by the employees to be campaign propaganda and not assertion of the fact . The Board does not attempt to police this kind of campaign propaganda . [Duro Fittings Company, 123 NLRB 1568.] HOME RESTAURANT DRIVE-IN 653 refusal to reinstate those employees who engaged in the picketing and who dis- tributed the leaflet .42 Accordingly, I conclude and find that Respondents' failure and refusal to so reinstate the employees who picketed their establishment and distributed "The Majeroni Story" constituted a further violation of Section 8(a)(3) of the Act. 4. Sylvia Andyjewski According to Respondent Ted Majeroni , Sylvia Andyjewski's initial layoff was for maternity reasons and but for her participation in the picketing and leaflet dis- tribution she would have been eligible for continued employment when available for work after the birth of her child. While Respondents' defense for laying off Andyjewski might have been applicable for a termination at the end of March, because that is when her maternity leave would have started, it is no defense to a March 13 layoff. In the consternation that arose on Friday night, March 13, over the sudden news of unionization , Respondents and their supervisors did many things calculated to suppress or at least obstruct the movement that was afoot. Some employees were forced to eat alone, observe a ban of silence, or keep busy. Andyjewski was more vulnerable, first because she was a "ringleader" and second because she had the physical handicap of advanced pregnancy . Because of all of the circumstances attendant upon Respondents' reaction to the Union and because of Andyjewski's prominence in the Union, I am convinced, and find, that the reason of advanced pregnancy given her by Condela for her immediate layoff was not the reason but was merely a "cover" for Respondents' determination to check the union campaign and punish its adherents. Accordingly I find that employee Andyjewski was prematurely placed on maternity leave on Monday, March 13, instead of March 31 (end of March) as previously agreed upon, because of her union affiliation and her activity in its behalf, in violation of Section 8(a)(3) of the Act. As I have previously found that Respondents' refusal to reinstate those who engaged in the picketing of the premises and distributed leaflets constituted an independent violation of Section 8(a)(3) I find that by failing and refusing to reinstate Andyjewski, one of those who actively participated in the aforementioned concerted activity, upon her availability for work after maternity leave Respondents further discriminated against her in violation of Section 8(a) (3). 5. Richard Fletcher According to Respondents, Richard Fletcher was laid off on March 17 for lack of work. To the extent that all employees terminated March 17 were also laid off for lack of work (i.e., the discontinuance of the first and third shifts) Fletcher's termination would appear to be on no different footing. Respondents, however, singled him out for a peculiar kind of "lack of work." Thus, as a cook, he replaced Trimmer earlier in the year when Trimmer went to work full time in a steel mill. When Trimmer returned to work full time at the Drive-In on March 1, Fletcher was "in excess" and , according to Respondents , was let go "until business picked up." Respondents' rationalization has several obvious flaws which cast doubt upon the true reason for terminating an employee known to belong to the Union. In the first place Fletcher was not terminated upon Trimmer's return, but 2 weeks later, hence it could not have been the return of Trimmer that triggered the personnel action. Secondly, Trimmer's return should have made no difference under any circumstance, for he returned to be created a supervisor, and not as a cook who would replace another cook. Actually what occurred was that at the height of Respondents' campaign against the Union, after Fletcher had been told he would probably lose his job for joining the Union, Fletcher lost his job "for lack of work." And significantly, he was given his termination notice and the reason for it-lack of work-as he was busily engaged in performing an unusually extensive work 42 In his opening statement at the hearing , Respondents' counsel urged as one of the reasons for the refusal to reinstate these employees the fact that they carried on union activities on company time. Although this defense had not been interposed by Respond- ents in their answer to the complaint, relevant testimony was admitted at the hearing Respondents have since abandoned this defense , Respondent Ted Majeroni having testified that such activity was not a cause for his refusal to reinstate This disavowal is specifi- cally referred to in Respondents' brief to me. Accordingly I deem waived for all defense purposes any claim that the employees were refused reinstatement because they engaged in union activity on company time 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assignment, the cleaning of 25 pounds of shrimp, to be followed by the molding of enough hamburgers for days to come. Under all the circumstances, I am con- vinced, and find, that lack of work'was not the real reason for Fletcher's layoff. On the contrary I find that it was but an excuse on the part of Respondents to rid themselves of another union adherent. I find that such action clearly discriminated against Fletcher proscribed by the Act. 1 find that Respondents have thereby violated Section 8(a)(3) of the Act. Because I have found that Respondents' failure and refusal to reinstate those who engaged in picketing and distributing "The Majeroni Story" constitute a violation of Section 8(a)(3), it necessarily follows, inasmuch as Richard Fletcher was among this group, that Respondents, by failing and refusing to reinstate him, have further discriminated against him in violation of Section 8(a)(3). 6 Shirley Johnson Respondents insist that Shirley Johnson was discharged for giving away food and not because she signed a union authorization card. Respondents' method of dispensing food and coffee to the customers by a pre- purchase arrangement leaves no doubt but that any food or coffee that a waitress gives away has already been paid for by her and, technically, belong to her It is not for us, however, to criticize Respondents' stated objection to a waitress' giving away food and drink in its establishment, even food and drink she has paid for They are entitled to establish rules of conduct for their employees. Nor is it within our province to suggest better, or indeed more sensible, methods of i unnmg a busi- ness. But according to Johnson this practice she had indulged in appears to have been a usual one and no one had previously complained Accoidingly, I cannot credit Respondent Lamar (Bob) Majerom's testimony to the effect that he had noticed with surprise that Johnson was giving away coffee on numerous occasions and that the last incident when she served him and his friends free coffee, was the one that prompted his request that she be fired. On the contrary, I accept Johnson's version that sometime previous to the date of her discharge she did get a pot of coffee from the kitchen without paying, and that when Majerom noticed it he ad- vised Supervisor Gifford of the practice and it was corrected. This then, in my estimation, was the sole incident seized upon by Majeroni as a reason to recommend Johnson's discharge Had such a discharge occurred at any other time it would be plausible, however harsh But coming as it did, immediately upon the heels of Respondents' knowledge of Johnson's union affiliation and in the midst of the midnight consternation over the Union, I am presuaded that the reason assigned was not the true one for Johnson's dismissal. On the contrary, it is my opinion, based upon all of the circumstances herein, that when they learned of Johnson's union affiliation, Respondents under- took to impress upon her the folly of her ways, as they did by other and sundry means upon other employees working on the late shift on March 13. The most convenient weapon available was to brand the offending employee as a common thief. Because I deem the assigned reason to be but a pretext for Respondents' real reason for discharging Johnson I reject it On the contrary, I find that Shirley Johnson was discharged because she joined the Union, a clear discrimination viola- tive of Section 8(a) (3) of the Act. 7. Carol Miller Carol Miller's decision to come to work at 5 p in on Sunday, March 15, instead of at the customary 12 noon may well have been a faulty judgment on her part based upon a misunderstanding of her scheduling, or a poor guess as to weather conditions. Under normal circumstances, Respondents would have a right to handle the case as they saw fit, and if they saw fit, discharge her. But the circumstances surrounding Miller's discharge were not normal Labor relations, by March 15, were in a frenzy; so much so that a general employee meeting had been called for that evening. Antipathy toward the Union had been displayed in a variety of ways, and Carol Miller had already been questioned closely concerning her union affiliation and had been forbidden to talk with her fellow employees. Under such circumstances, I am convinced, and find, that Miller's failure to report to work at noon on March 15 was not the reason for her discharge but was, in fact, an excuse seized upon by Respond- ents to rid themselves of a known union protagonist. Because Respondents thus discriminated against Miller for reasons of a union activity I find they have thereby violated Section 8(a) (3) of the Act. HOME RESTAURANT DRIVE-IN 655 I have already found that Respondents unlawfully failed and refused to reinstate those employees who picketed the Drive-In and distributed leaflets in the process. As Carol Miller was among this group and as Respondents specifically refused to rein- state her for the reasons state, I find that they have violated Section 8(a)(3) as to Miller in this additional respect V. THE EFFECT OF THE -UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section IV, above, occurring in con- nection with the operations of the Respondents described in section 1, 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 com- merce and the free flow thereof. VI. THE REMEDY It has been found that the Respondents, by discharging and refusing to reinstate Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher, and Carol Miller discriminated against them in respect to their tenure of employment in violation of Section 8(a)(3) of the Act. I shall, therefore, recommend that the Respondents cease and desist therefrom and from infringing in any other manner upon the rights of employees guaranteed in Section 7 of the Act.43 I shall recommend that the Respondents offer to the aforementioned employees immediate and full reinstatement to their former or substantially equi- valent positions 44 without prejudice to their seniority or other rights and privileges. I shall also recommend that the Respondents make whole each of the aforemen- tioned employees for any loss of earnings they may have suffered because of the dis- crimination against them, by payment of a sum of money equal to the amount each normally would have earned as wages from the date of his discrimination to the date of the offer of reinstatement, less his earnings during said period, with backpay com- puted in the customary manner 45 I shall further recommend that the Board order the Respondents to preserve and make available to the Board, upon request, payroll and other records to facilitate the checking of the amount of backpay due and the rights of employment Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of Respondents occur in commerce within the meaning of Section 2 ( 6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2 (5) of the Act. 3. By discriminating in regard to the tenure of employment of Joanne Pettit, Shirley Colangelo, Charlotte Pluskota, Sylvia Andyjewski, Shirley Johnson, Richard Fletcher, and Carol Miller the Respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (a)(3) of the Act. 4. By the foregoing conduct, and by threatening its employees with loss of em- ployment if they joined the Union , by interrogating coercively its employees with respect to their union affiliation and their activities in its behalf, by imposing rigorous working conditions upon its employees and enforcing revived working rules to dis- courage their interest and membership in the Union , the Respondents have interfered with, restrained , and coerced their employees in the exercise of their eights guaran- teed by Section 7 of the Act and thereby have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices having occurred in connection with the, operation of Respondents ' business as set forth in section 1, above, have a close, intimate , and substantial relation to trade , traffic, and commerce among the several States and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication I 13 1\1 L R B v Lamar Creamery Co, 246 F 2d 8 (C A 5) 44 The Chase National Bank of the City of l eiv York, San Jima, Puerto Rico, Branch, 65 NLRB 827 mF. TV. Woolworth Company, 90 NLRB 289.