Dobbs Houses Co., Inc.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The discharge of Clifton Ezell and William Staten by Respondent Services Immediately preceding the effective date of the contract between Respondent .Station and Respondent Services there were 17 or 19 persons employed by Respond- ent Station as porters, janitors, and maids. All of them went to work for Respond- ent Services on May 29. Included in this group were two porters , Clifton Ezell and William Staten. Ezell and Staten had joined the Union . They testified they were no more active in the Union and its activities ,than the other employees. Respondent Services discharged Ezell and Staten on June 6. The record contains no evidence that Respondent Services had any knowledge of Ezell's and Staten's union membership or activities. The record contains no evidence of antiunion animus on the part of Respondent Services. It is significant that of the 17 or 19 former employees of Respondent Station who became employees of Respondent Services on May 29, who Ezell and Staten admit were members of the Union and as active in it as they were , the only two who were discharged were Ezell and Staten . Transport Clearings, Inc., supra. I find that the General Counsel has not met the burden of proof required to sustain the alleged discriminatory discharges of Ezell and Staten. VI. THE ALLEGATIONS THAT RESPONDENT STATION ANNOUNCED AND GAVE A WAGE INCREASE IN VIOLATION OF SECTION s(a)(1) AND ( 3) OF THE ACT The complaint alleges that Respondent Station announced a wage increase on or about June 5 to be effective June 11 and that this rate was given for the purpose of interfering with the employees' organizational rights in violation of Section 8(a)(1) and ( 3) of the Act. Respondent Station's General Manager McGaba admitted the announcement and the pay raise which was a 10-cent increase to most of the employees .18 Further, he testified that as broad a raise was given to the employees in the previous year. Other than testimony by some of General Counsel's witnesses that they had received the raise, the foregoing is all the evidence that was adduced concerning the allegations . I find that the evidence does not prove that the raise was announced and given in violation of Section 8 (a)(1) and (3) of the Act as alleged in the complaint. CONCLUSIONS OF LAW 1. Respondent Station and Respondent Services are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Aldridge is an employer within the meaning of Section 2(2) of the Act. 3. Respondent Station, Respondent Services, and Respondent Aldridge do not constitute a single employer within the meaning of Section 2(2) and Section 2(6) and (7) of the Act. 4. Respondent Station , Respondent Services , and Respondent Aldridge have not violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. [Recommendations omitted from publication.] 18 Persons recently employed were not given a raise. In this group, there were "2 or 3 or 4" employees. Dobbs Houses Company, Inc. and Local 63, Restaurant, Cafeteria, and Tavern Workers, affiliated with Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO. Case No. 23-CA-1220. January 12, 1962 DECISION AND ORDER On October 17, 1961, Trial Examiner Fannie M. Boyls issued her Intermediate Report in the above-entitled proceedings, finding that 135 NLRB No. 29. DOBBS HOUSES COMPANY, INC. 237 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. Thereafter, the Charging Party filed exceptions to the Intermediate Report with a supporting brief. The General Counsel and the Respondent filed no exceptions. The Respondent filed a brief in support of the Intermediate Report. 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 McCulloch and Members Rodgers and Fanning]. 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 Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER The Board adopts the Recommended Order of the Trial Examiner with the modification of Section 2(b) to read: "Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 1 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges a violation of Section 8(a) (3) of the Act. 'In the notice attached to the Intermediate Report marked "Appendix" the words "A Decision and Order" are hereby substituted for the words "A Recommended Order of a Trial Examiner." In the event that this Order Is enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order." INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before me, the duly desig- nated Trial Examiner, in Houston, Texas, on July 11 and 12, 1961, upon a complaint issued by the General Counsel and amended by him at the hearing, and upon the answer of Dobbs Houses Company, Inc., the Respondent herein. The issues litigated were whether Respondent had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. Respondent and the General Counsel have submitted briefs, which I have duly considered. Upon the entire record and upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Texas corporation having an office and place of business at the Houston International Airport, Houston, Texas, where it is engaged in the restaurant 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and airline catering business. During the past 12 months, which is a representative period, its gross volume of sales was in excess of $500,000. During the same period, Respondent purchased and had shipped to it from outside the State of Texas ma- terials and supplies of a value in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. I further find that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Local 63, Restaurant, Cafeteria and Tavern Workers, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges that during the Union's organizational campaign-which commenced in February 1961 and' culminated in a Board-conducted election on June 2, 1961, which the Union won-Respondent, through some of its management and supervisory personnel, interrogated employees regarding the union membership, activities, and sympathies of themselves or other employees, threatened reprisals against employes for engaging in union activities, and discriminatorily discharged two of them, thereby violating Section 8(a)(1) and (3) of the Act. Testimony in regard to this alleged conduct was in sharp dispute. John W. Ragland, the general manager of Respondent's International Airport operations, testified, and I find, that upon being informed early in March by one of the waitresses that someone had approached her about signing a union card, he telephoned Newell N. Fowler, Respondent's labor relations attorney, in Memphis, Tennessee, and advised the latter of the Union's organizational attempt. Fowler advised him to "do nothing but sit tight and keep [his] eyes and ears open." A day or two later Fowler called Ragland and cautioned him not to question any employee about union activity and not to fire any employee without just cause. Ragland further testified that Fowler came to Houston on April 5 and, in an address to the supervisors, personally admonished them along the same vein. The question before me is whether Respondent adhered to these instructions of its labor relations adviser. A. The alleged interrogation of employees 1. Interrogation attributed to General Manager Ragland Wilbert Gilford, whose duties included washing dishes and setting tables for banquets, testified that between April 15 and 22, 1961, while he was at work, Gen- eral Manager Ragland approached him and that the following took place: Well, he asked what have the union people been telling me. I told him not anything because I hadn't had any dealings with the union. - And he goes on and asks was a Freddy Oliver talking about the union. I told him no, he only goes to the wrestling matches with me on Friday night and that's about all he talks about. And he asked me about Carrie Mathews and I told him I wouldn't think she would participate in such things, that she had been there approximately eighteen years. And he asked me what type of fellow was J. T. Stubblefield. I told him he was a nice fellow because he attended church practically every Sunday. And he asked me about Charley Taylor and his wife. I told him I knew because she was my sister and he just said that Charley Taylor was talking the union up pretty strong. I told him I didn't know anything about it, and in the conversation he told me not to fool with it. On cross-examination Gilford repeated the alleged conversation substantially as related above until reaching the point where Charlie Taylor's name was mentioned.' His testimony then was as follows: Then he goes on and asks me about Charley Taylor and his ex-wife. Q. You say he asked you about Charley Taylor. What do you mean about? A. Well, it was concerning some family affairs I think they had, and he asked me was Charley Taylor and his wife still together. I told him no, so far as I 'Charlie Taylor and J T. Stubblefield were plane loaders, Freddy Oliver was a busboy, and Carrie Mathews was a cook. DOBBS HOUSES COMPANY, INC. 239' know, I think they broke up, and he goes on and asks about, well, the girl Charley Taylor was supposed to have been going with. He asked me about her. And truly speaking, I didn't know anything about her. I mean, she is from my home town, but what they had been doing together or participating together, I don't know. Q. So he just came up to you and asked you about what one of his employees and his girl friend were doing, is that correct? A. Down through the conversation. Q. Well, Wilbert, are you sure that is all you talked about up there, just what you have told us? A. I am sure. I believe that in the testimony just quoted, Gilford meant only to expand upon, not to change, his previous testimony. Employee Lorene McGowen, a salad girl, testified that -about a week before the election, Ragland approached her in the cafeteria and asked her if she.was "for the, company" and that she told him "yes." Ragland, although not specifically asked about Lorene McGowen's testimony, denied that he had ever asked an employee if he was "with the company all the way" and I shall interpret this as a denial of her testimony. Ragland also denied asking Wilbert Gilford what the union people were telling him or whether Freddy Oliver was talking about the Union and stated that he did not believe he had mentioned, Carrie Mathews or Stubblefield in any conversation with Gilford. He testified that he and Gilford "were pretty good chums, you might say, I thought," and that he had asked Gilford whether he was "still on the grape" because Respondent in the past had sent Gilford home upon several occasions for excessive drinking and that he had also asked Gilford about Freddy Oliver and his knife and about Charley Taylor and his new girl friend. Ragland further testified that he discussed the Union with employees practically every day, answered their questions about the Union and the election, told them about company policy and solicited their votes and that he even held meetings with the employees on May 27 and 28 in which he asked the employees to vote for management in the forthcoming election but he in- sisted that he had followed Labor Relations Attorney Fowler's admonition against interrogating employees about union activities. Both Gilford and McGowen were simple colored employees whose demeanor- especially Gilford's-on the witness stand convinced me that they were earnestly attempting to tell the truth as they recalled it.2 Although, as indicated infra, I credit Ragland's testimony in some other respects , I do not credit it to the extent that it is. inconsistent with that of Gilford and McGowen. 2. Interrogation attributed to Assistant Catering Supervisor McKnight According to the undenied and credited testimony of Curtis Cal, a catering depart- ment employee, Mrs. McKnight, assistant supervisor of that department, asked him in late February or early March what he knew about the Union. When he replied that he did not know anything, the conversation ended. 3. Interrogation attributed to Assistant Manager Ed Palitsch Carrie Mathews, a cook, testified that in late March or early April she inquired of Assistant Manager Ed Palitsch as to the identity of a man she observed talking to. Mrs McKnight in the catering department ; that Palitsch identified the man as Mr. Fowler, Respondent's attorney; that in response to her question as to what Fowler's business was, Palitsch explained that Fowler's business concerned the Union and asked her, "Have you heard anything?"; and that when she replied that she had not, Palitsch remarked, "You must have heard something." Mathews testified in a con- vincing manner and I credit her testimony despite Palitsch's denial that he had any such conversation with her. 21 do not agree, as argued by Respondent in its brief, that Gilford impeached himself by testifying contrary to a statement given to a Board agent In purporting to relate in his testimony all the matters about which he had "talked" with Ragland, Gilford did not mention his own personal affairs In his statement to the Board agent, there appears the following, "He [Ragland] then asked me about some personal affairs of mine and I told him I didn't want to talk about it and that ended our conversation The last thing he said was 'Don't fool with it ' " Since Gilford had refused to talk to Ragland about his personal affairs, I do not regard his statement to the Board agent as inconsistent with his testimony. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Interrogation attributed to Chief Hostess Inez Rivera Lorene McGowen, whose testimony regarding Ragland's interrogation has pre- viously been described, testified further that about a week before the election Chief Hostess Rivera approached her as she started to get some towels from a closet and asked her whether she was for the Company. Employee Levi L. Leonard, a busboy, testified in similar vein that during April, as he was putting beer in the beer box, Rivera asked him if he "was for the Union." He also testified that in April, on the day following a union meeting in the home of employee Alberta Korenek, Rivera asked him whether he had attended the meeting and that he told her he had not .3 Rivera, although conceding that she knew of the meeting at Korenek's home be- cause she heard some of the girls talking about it, denied that she had ever asked Leonard or McGowen about the Union or union activities or discussed the Union with them. Leonard and McGowen impressed me as honest witnesses and I can perceive no reason why they should have fabricated the testimony they gave. I credit it. 5. Conclusions with respect to the interrogation During the preelection period when the interrogation took place, Respondent, through speeches of its general manager to the employees, and otherwise, was letting the employees know that it opposed the Union and was soliciting their votes for management and against the Union. In this context General Manager Ragland's inquiries of employee Gilford as to the union activities of several of his fellow workers and his questioning of McGowen as to whether she was for the Company constituted interference, restraint, and coercion of employees in the exercise of their organiza- tional rights guaranteed under Section 7 of the Act. So likewise did Chief Hostess Rivera's interrogation of McGowen and Leonard regarding their voting intentions and her inquiry of Leonard as to whether he had attended the union meeting at Korenek's home. Julius Corn and Sheldon Corn d/b/a Julius Corn and Co., 129 NLRB 1264; Journal Gaztte Company, 130 NLRB 69. Supervisor McKnight's inquiry of employee Cal as to what he knew about the Union and Assistant Manager Palitsch's questioning of Mathews, in a conversation initiated by the latter, as to whether she had heard anything about the Union, stands on a different footing. These casual inquiries, made early in the Union's organiza- tional campaign, amounted to nothing more than expressions of interest in what was taking place and were not likely to cause employees to fear reprisals for engaging in union activity. They were not, therefore, in violation of Section 8(a)(1) of the Act. Cf. Blue Flash Express, Inc., 190 NLRB 591. B. The alleged discriminatory discharges of Vice and Wright and threats of reprisal Annie Mae Vice and Lucille Wright were waitresses in the snack bar on the 10 p in. to 6:30 a.m. shift prior to their discharges on April 16, 1961, and worked without supervision except for the first half hour. They worked together on Friday and Saturday nights. On other nights another waitress, Jeannette Billier, worked with one or the other of them. -The complaint alleges, and the testimony of Vice and Wright supports the charge, that they were discharged because of their union mem- bership, sympathies, and activities. Respondent's answer denies that their discharges were discriminatorily motivated and at the hearing Respondent contended that they were discharged solely because they had repeatedly refused to serve readily available food to customers. The testimony of Vice and Wright as to the circumstances leading to their discharges is so totally different from and inconsistent with that of Respond- ent's witnesses that I must conclude that one side or the other has fabricated a story. Vice testified that she had been a member of the Union before she was employed by Respondent; that she signed a union card in March and gave it to a union repre- sentative in the lobby at the airport terminal where she worked; that she passed out cards to six or seven other employees; and that she attended a union meeting on April 15 at the home of one of the other waitresses, Alberta Korenek. Wright testified that she signed a union card in March at her home, passed out six or eight cards to other employees, and attended the union meeting at Korenek's home on April 15 .4 3 Employees Annie Mae Vice and Lucille Wright also testified that Rivera interrogated them in respect to union matters, and their testimony will be discussed infra in con- nection with a consideration of their alleged discriminatory discharges 4 According to Jeannette Bilker, she signed a union card on March 8, 1961, which Wright had given her and both she and Wright handed their signed cards to a union representative across the counter where they worked. DOBBS HOUSES COMPANY, INC. 241 The version of Vice and Wright as to what occurred after they reported to work- on the night of April 15 is substantially as follows: They arrived at work together about 9:30 p in. and, after signing in, sat in the waitresses' rest area or cubbyhole, drinking coffee. While they were there Chief Hostess Rivera came in and asked them whether they had gone to the union meeting and signed a card. When they did not respond, she asked if either of them had said anything to Leonard, the busboy, about the Union or persuaded him to sign a card. Vice stated that she had mentioned the Union to him but that he wanted to wait before signing a card. Rivera then stated, "Well, I will tell all of you, if you care anything about your job, you will leave the union alone." She concluded the interview by asking, "Have those union bums been staying out there all night?" Vice and Wright replied in the negative.5 Just before quitting time the next morning, according to Vice and Wright, General Manager Ragland told them he wanted to see them in his office when they finished their work. Wright went in first and Ragland assisted her in checking the money in the cash register against receipts. Vice arrived while the cash was being checked. When this was completed, he told them, ". . . I am going to have to let you all go." When they inquired why, he replied, "Because you have been taking up too much time with them union people." He then asked, "Did that union man spend the night in there last Friday night?" Vice replied, "No" and Ragland retorted that he had proof that the man had spent all night there. Vice and Wright then asked for their checks and Ragland said that he would mail them. According to Wright, toward the end of the interview, Ragland said something to the effect, "If this keeps up, I will have Kennedy's job," but she did not understand what he meant. Also according to the testimony of Vice and Wright, when they left Ragland's office, they walked straight to the cash register where Assistant Hostess Evelyn Poor was standing and asked her for their health cards. She handed the cards to them and they left Respondent's premises. They had no conversation with Poor or with anyone else before leaving. Both Vice and Wright categorically denied that they had ever refused to serve any available food. Each explained, however, that not infrequently the head cook, Walker, who prepared their supply of food for the night, failed to furnish a sufficient amount of some items. To rebut this prima facie case established by the testimony of Vice and Wright, Respondent brought forth an impressive array of witnesses. I shall summarize below the relevant portions of their testimony. According to General Manager Ragland, Vice and Wright were discharged solely for failure to serve readily available foods. He learned of their failure to serve such foods from Chief Hostess Rivera about April 5. He relayed this information to Labor Relations Director Fowler and they decided to hire a private investigating firm to investigate the charge and to act solely on the basis of the investigator's report. Accordingly, the firm of Bradley, Wilson & Associates was given the assign- ment. On April 11 or 12, Ragland received a report from that firm dated April 10, in which it was stated , inter alia, that shortly after 11 p.m. on April 8, agents of the firm entered the snack bar and placed an order for scrambled eggs cooked in butter, to be salted and peppered while they were cooking, and coffee; that "the older woman"-apparently Wright, although she does not appear old-took and pre- pared the order; that another customer at the far end of the bar ordered a hamburger, whereupon the other waitress, a red-headed person who answered to the name of "Ree," called out to the first waitress, "We don't have any hamburgers? Do we?" and the latter replied, after hesitation, that they were out of hamburgers; and that the customer thereupon ordered a ham and cheese sandwich. Ragland testified that the investigation was made on Friday night, April 7, but that he did not know in advance whether the investigation would be on the night of April 7 or 8. He explained, "I didn't know he was out there on that particular evening until I got his report." 6 He further testified that on Saturday morning, April 8, he and Assistant Manager Palitsch checked the amount of food left over 5 According to Wright, Rivera had upon a prior occasion questioned her as to what she knew about the Union and Wright had told her that she, Wright, had at one time "had a union house" and "knew it was good for working people." 6 The report itself, as already noted, states that the investigation was made on the evening of April 8, not April 7, as testified to by Ragland I believe that Ragland was unaware of this discrepancy when he testified, for at the conclusion of his testimony, when I asked, "Do you have any reason to believe that the investigator checked on the night of April 7, or into the morning of April 8?" be replied, "By their statement, yes." He did not clarify this issue, when I remarked , "I don't see anything in the statement about it." 634449-62-vol. 135-17 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the night before and found 15 of the 20 steakburgers supplied for the preceding night's trade were not used and that there did not appear to be a shortage of any other food item. According to Ragland, he telephoned Labor Relations Adviser Fowler a few days after receiving the investigator's report and advised him of its contents. Fowler advised him to discharge Vice and Wright immediately. Consequently, he called these two employees into his office at the end of their shift on the morning of April 16 and discharged them. He gave the following account of what was said: I told them that it had been reported to me that they had refused to serve food when it was readily available. And they immediately denied it. I said, "Well, I have definite proof that on last Friday night that you did refuse to serve someone." I believe Lucille broke in then and says, "Well, there are a lot of things you don't know around here, Mr. Ragland. Sometimes the coffee shop closes at 11:15." I said. "Well, that may be. If I knew everything that went on I would probably be in President Kennedy's shoes." Following this exchange, according to Ragland, Vice and Wright demanded their paychecks and he told them they could return later for their checks or he would mail them. As they left the office, Wright turned and said, "Mr. Ragland, I have enjoyed working for you" or words to that effect. Ragland denied that any mention was made of the Union or union organizers during this interview. Ragland was followed to the witness stand by Private Investigator Boyd F. Good- son, Jr., who had been assigned by the firm of Bradley, Wilson & Associates to check on Vice and Wright. Just before taking the stand, he had refreshed his recollection by reading the report dated April 10, which, he explained, had been dictated by a representative of his firm from notes made by him on April 8. He testified that the report erroneously stated the date of the investigation to be the eve- ning of April 8, whereas he distinctly remembered that, because of a previous assignment for that date, he had .to make the investigation at Respondent's premises on the evening of April 7. He testified in substantial corroboration of the state- ments made in the report. Assistant Hostess Evelyn Poor, who gave Vice and Wright their health cards after they were discharged, testified that when Wright came out of Ragland's office, she asked Poor, "Did you know Mr. Ragland let me go?", then explained that he had fired her for refusing to cook steakburgers. Poor further testified that as Wright left, she told Poor that she had enjoyed working with her and that Vice had merely said "Goodby" as she left. Darice Ryan, a relief cashier and hostess, testified that on the morning of April 16 when Wright emerged from Ragland's office, she stopped in front of Ryan for a few minutes and told her, "He let me go." Ryan inquired about what had happened and Wright explained, "He said I refused to cook steakburgers." Wright added, according to Ryan, that there was so much talebearing around the place that she did not mind leaving. Jeannette Billier, the waitress who worked with Vice or Wright in the snack bar on the night those two were not working together, had been working for Respondent since March 5, 1961. She testified that about 2 weeks after she commenced work- ing, Wright told her that Respondent expected too much of them-cooking, cash- iering, and serving as a waitress-and that she, Wright, did not intend to serve black-bottom pie, because she would have to walk to the kitchen to get it, or to serve steakburgers because they would have to be cooked, and that she was going to suggest ham and cheese sandwiches to customers instead. Billier further testified that Wright made these statements to her nearly every night; that Billier protested that she could not lie to a customer about not having food which was in fact avail- able; and that she reported Wright's proposals to Chief Hostess Rivera about 3 weeks or a month after she was hired. Rivera testified that during the last week in March she told General Manager Rag- land that Billier had reported to her that "they"-apparently Vice and Wright-were not serving the food available in the snack bar. She also testified, however, that Billier had reported only that Wright "was asking her not to serve food that was there available to be served'and that she could not do it." Rivera had been informed by Ragland before he discharged Vice and Wright that he was going to do so because of their failure to serve available food. She denied that sne had ever questioned Vice or Wright on the night of April 15 or at any other time about the Union or discussed it with them. Assistant Manager Edward Palitsch testified that sometime in March Ragland suggested to him that food sal es were "a little bit off" on Friday and Saturday nights. DOBBS HOUSES COMPANY, INC. 243 which were usually Respondent's biggest nights, and requested him to check all re- ceip`s and the amounts rung up on the cash register. He did so and found nothing significant in the results. About the same time he instructed the head cook, Walker, to prepare a certain amount of food items each night for the waitresses on the night shift in the snack bar. Walker did this until June 10, when, because of increased business, Respondent hired a cook for the night shift. Palitsch checked the cash receipts and food items remaining regularly for about a week and a half and period- ically thereafter, including those for the night of April 7, and found every item present which should have been there. In connection with this investigation, he made two food sales comparisons, one in March and the other on May 24. According to Palitsch, "The check showed that every way you checked it, no matter how you checked it, when they [Vice and Wright] were working we didn't take in as much money." A tabulation prepared by Palitsch and showing the daily sales for the snack bar between January 1 and May 22, 1961, was introduced in purported support of Palitsch's testimony.? Counsel for the General Counsel, in arguing that Respondent's asserted reason for discharging Vice and Wright is pretextual in nature and that the testimony of Respondent's witnesses should be rejected, points to various holes in their testimony. He points out, among other things, that Ragland, in an affidavit given to a Board agent prior to the hearing, asserted that a "friend" of his had ordered a steakburger at the snack bar and was told that Respondent was "out of" steakburgers, whereas on the witness stand he testified that he was referring to Private Investigator Goodson, who had ordered eggs rather than a steakburger, and that he did not even know Goodson; and that Ragland and Palitsch allegedly checked the leftover steakburgers on Saturday morning, April 8, rather than on Sunday morning, April 9, and could not have relied on the results of their check in deciding to discharge the two waitresses because the investigator's report purported to be in regard to the night of April 8. He urges that the testimony of Jeannette Billier should not be credited because of a confusion in her testimony as to dates when she allegedly made her report on Wright and because Billier discredited herself as a witness by at first positively denying that she had ever signed a union card, then later changing her testimony when con- fronted with her signed card. Counsel for the General Counsel also points out that Billier allegedly made a complaint only against Wright, and not against Vice; but that Private Investigator Goodson was instructed to report on both the waitresses. It must have been apparent to Respondent, however, that one waitress could not have gotten away with refusing to serve available food without the cooperation of the other waitress on her shift. Counsel for the General Counsel also calls attention to minor discrepancies between Rivera's testimony ,and her statement given a Board agent. Finally, he asserts that the pretextual nature of Respondent's defense is evi- denced by an attempt to shift its defense as to Vice by introducing testimony as to reasons for discharging her (such as her drinking habits and Respondent's dissatis- faction with the manner in which she rang up her checks on the cash register) which had not been mentioned by Ragland as motivating his action.8 I would find this pretext argument more persuasive if I were not convinced, as I am, that Vice and Wright were not telling the truth when relating what was said to them at the time of their discharge. It is inconceivable to me that Ragland, even if he had decided to find a pretext to discharge these two employees because of their 7 These figures show that the weekly sales were relatively low in January and the early part of February but that beginning about the middle of February, they increased almost steadily from $320.25 in the week ending February 19 to $618.76 in the week ending May 14 They show the following average nightly sales: In January, $36 for Sunday 'through Thursday and $50 for Fridays and Saturdays ; in February, $31 for Sunday through Thursday and $50 for Friday and Saturday ; in March, $50 for Sunday through Thursday and $60 for Friday and Saturday ; in April $62 for Sunday through Thursday and $62 for Friday and Saturday ; and in the first 22 days in May (when Respondent's statistics end), $81 for Sunday through Thursday and $95 for Friday and Saturday I am not convinced that these statistics support the conclusions which Respondent purports to draw from them, but I do not consider them critical in determining the issues in this case. 8 Counsel for the General Counsel argues, moreover, that Respondent in effect conceded that Vice and Wright were satisfactory employees by offering them employment shortly before the hearing at Dobbs Houses other than the one at which they had previously been employed. This offer, however, was clearly made in an attempt to settle the issues here involved and the jobs offered were at places where, unlike here, Vice and Wright would have worked under direct supervision. It manifestly would not effectuate the policies of the Act to draw an adverse inference from such an attempt to settle unfair labor practice charges 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities, would have gone to the trouble of consulting Respondent's labor relations attorney for advice and waiting for the report from a hired investigating agency to confirm the charge made by Billier or to find an ostensible excuse for discharging them, only to spoil such well laid plans by telling the employees they were being discharged for taking up too much time with the union people. And even if I were persuaded that Ragland might possibly have told them this in order to defeat the Union in the forthcoming election by furnishing an example of what might happen to union supporters, I cannot discount the testimony of Assistant Hostess Poor and Relief Cashier Ryan that Wright told them on the morning of April 16 as she emerged from Ragland's office that she had been discharged allegedly for refusing to cook steakburgers. Both Poor and Ryan impressed me as honest wit- nesses and displayed no hostility toward Vice or Wright, as did Rivera; nor had they been charged with any unlawful conduct, as had Rivera and Ragland; and I can perceive of no reason why they should have falsified their testimony. The state- ments which they attributed to Wright, moreover, appeared to me quite in keeping with Wright's character and personality as displayed on the witness stand. She seemed to be a warm-natured, spontaneous person whose inclination would be to explain what had just happened to her and to say, as she allegedly did to both Poor and Ragland, that she had enjoyed working for them. Crediting, as I do, the testimony of Poor and Ryan, I necessarily cannot credit the testimony of Vice and Wright as to what Ragland told them was the reason for their discharge. Indeed, I must conclude that their testimony in that respect was fabri- cated. And because of this conclusion I have no confidence in the truth of their testimony, otherwise convincing, that on the night preceding their discharge, Rivera interrogated them about whether they had gone to the union meeting and signed cards, and whether they had talked to Leonard about the Union, and warned them to leave the Union alone if they cared for their jobs. Nor can I rely upon their uncorroborated testimony as to the extent of their prominence in the Union's organizational campaign. Accordingly, despite the holes in testimony of some of Respondent 's witnesses pointed out by counsel for the General Counsel, I find, for the reasons set forth above and upon the entire record, that the General Counsel has not shown by a pre- ponderance of the evidence that Respondent was discriminatorily motivated in dis- charging Vice and Wright. N. THE REMEDY Having found that Respondent has engaged in an unfair labor practice, my Recom- mended Order will direct that it cease and desist therefrom and take the affirmative action customarily required to remedy such a violation of the Act. CONCLUSIONS OF LAW 1. Respondent, by coercively interrogating employees in regard to the union sympathies or activities of themselves or fellow employees, has engaged in an unfair ,labor practice within the meaning of Section 8 (a) (1) of the Act. 2. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. 3. The General Counsel has not established by a preponderance of the evidence that Respondent discharged employees Annie Mae Vice and Lucille Wright in viola- tion of Section 8(a) (3) and (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that the Respondent, Dobbs Houses Company, Inc., its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to the union sympathies or activities of themselves or fellow employees under circumstances constituting interference , restraint, or coercion in violation of Section 8(a)(1) of the Act. (b) In any like or related manner interfering with , restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which, I find, will effectuate the policies of the Act: (a) Post at its place of business at the Houston , Texas, International Airport, copies of the notice attached hereto marked "Appendix." Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by an authorized representative of Respondent, be posted by said Re- HEBRON BRICK COMPANY 245 spondent immediately upon receipt thereof and maintained by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-third Region, in writing, within 20 days from the date of this Recommended Order, what steps Respondent has taken to comply herewith. The allegations of the complaint that Respondent violated Section 8(a) (3) of the Act are hereby dismissed. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate our employees in regard to the union sympathies or activities of themselves or fellow employees under circumstances constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act, or in any like or related manner violate Section 8(a).(1) of the Act. DOBBS HOUSES COMPANY, INC., 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. Hebron Brick Company and General Drivers and Warehousemen, Local 123, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, Peti- tioner. Case No. 18-RC-4725. January 1P3, 1962 DECISION ON REVIEW AND ORDER On June 18, 1961, the Regional Director for the Eighteenth Region issued a Decision and Direction of Election in the above-entitled pro- ceeding (not published in NLRB volumes). Thereafter, the Em- ployer and the Intervenors, Local 901, United Brick and Clay Workers of America, and United Brick and Clay Workers of America, AFL- CIO, also referred to herein respectively as Local 901 and the Inter- national, in accordance with Section 102.67 of the Board's Rules and Regulations, filed with the Board timely requests for review of such Decision and Direction of Election, on the ground, inter alia, that the Regional Director erroneously found that the contract executed by the Employer and Local 901 was not a bar to the petition. The Petitioner, on July 14, 1961, filed its opposition to the requests. The Board by telegraphic order, dated July 19, 1961, granted the requests for review and stayed the election pending its consideration of the merits of the issues raised in the requests for review. There- after, the Employer filed a supporting brief. 135 NLRB No. 16.