Dobbs Houses, Inc.

DOBBS HOUSES, INC. 885 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent committed unfair labor practices within the meaning of Section 8(b) (7) (B) of the Act by picketing Joiner, Inc., since May 31, 1961, with an object of forcing or requiring Joinei, Inc., to recognize or bargain with Respondent as the representative of its employees, and forcing or requiring the employees of Joiner, Inc., to accept or select it as their collective-bargaining representative, although Respondent was not then certified as the representative of Joiner, Inc.'s employees. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Dobbs Houses, Inc. and Hotel and Restaurant and Bartenders Union, Local 886, AFL-CIO. Case No. 10-CA.-46844. February 7, 1962 DECISION AND ORDER On August 22, 1961, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the said complaint be dismissed, ,as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions and a supporting brief. The Respondent filed a brief in support of the findings made in the Inter- mediate Report but excepted to the Trial Examiner's failure to make certain additional findings. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel. Accord- ingly, the Board adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, only insofar as they are consistent with the decision herein. The complaint alleged that the Respondent unlawfully discharged 16 waitress-employees because they had engaged in a concerted walk- out or strike for their "mutual aid and protection" within the meaning of the quoted terms as used in Section 7 of the Act. The Trial Ex- aminer dismissed the complaint on finding that: (a) the preponder- ance of the evidence failed to establish that the strike was motivated by any reason other than the discharge (or what the employees assumed to be the discharge) of a supervisor, Assistant Manager Cooper; 1 and I It is not clear that Cooper was in fact discharged ; however, the employees and Cooper so assumed as of times here relevant. It Is the employees' assumption-rather than the fact of discharge-to which we hereafter refer In using the terms "discharge" of Cooper. 135 NLRB No. 86. 886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) this discharge action was of no legitimate concern to the employees within the meaning.of Section 7 of the Act. We disagree with both aspects of the above findings for the reasons hereafter -set forth. The facts bearing on the issue of motivation are not in dispute.' There is no question that the strike occurred in a context of employee ,dissatisfaction with certain working conditions predating the strike ,by about 2 months. Nor is there any question that the grievances in- volved conditions which actually existed or that such conditions in- volved matters of normal concern to.employees. Thus, a part of these grievances arose over Respondent's nonfulfillment of the promises made on hire that the low regular rate of pay (25 cents per hour) would be supplmented by granting commissions on the employees' sale of special drinks, by splitting with them a percentage of hat-check tips; and by providing adequate free meals. Another area of grievances concerned day-to-day working condi- tions impairing the,employees' efficiency in the performance of their normal tasks. Most of the latter grievances stemmed from or were aggravated by the asserted abuse of White's -supervisory authority a Thus, the employees were frequently upset by White's indecent ad- vances to waitresses; his constant use of offensive,and abusive language -in supervising them; 4 his harassment of them in insisting, for ex- ample, that food be served before the customers were ready for it; and his manifested disregard for their well-being by refusing to respond or help on one or two occasions -when employees fainted while at work. Complaints concerning these matters-had been made to management representatives, including White, 'Cooper, Hattaway, and Eason, the last two being traveling supervisors s Except for Cooper, whose -power,to ,act was limited, no one representing management had given any +indication to the employees up to the date the walkout occurred -that management was interested either in ameliorating the conditions 2 The record reflects no substantial disagreement between the parties over material events. The parties' disagreement goes, rather, to the proper inferences to,be drawn as they bear on the issue of the employees ' strike objective. a White was the manager of the operations here involved , and was the highest ranking supervisor with whom the employees had day-to-day contact. * The Trial Examiner infers that White's use of vulgar or profane language ( evidenced by uncontradicted employee testimony ) as a source of grievance is to be discounted be- cause the employees were accustomed to the use of similar language in their conversa- tions ,with each other. We find no justification for such an inference For it was White's relationship to the employees as a supervisor at the times the complained of language was used that gave rise to the grievance. 5 Cooper admitted receiving the complaints . Prickett, the hostess , and spokesman for the waitresses, testified without contradiction that: "I told Mr. Hattaway the conditions that we were working under ; that we were not being fed ; and we were being cursed ; and the fact that Mr. White put his hands on u; improperly ; . ." and "several of the girls and myself talked with him at length about them [sic] getting the percentage on the Polynesian drinks and the hat check girls getting percentage of the tips up front And he said that that was entirely up to the manager-to each individual manager of the Luau." Mrs. Eason, whose function it is to train waitresses, testified for the Re- spondent that the girls complained about the food. Hattaway and White did not testify. DOBBS HOUSES, INC. 887 giving rise to their dissatisfaction or in giving the employees' com- plaints any consideration." On March 2, the waitresses walked out following a series of up- setting occurrences that day. In the kitchen and in the presence of some of the waitresses, Manager White cursed "every black s.o.b. from the front door to the back door" and told the employees to get out, he did not want to see them any more. Later, while the waitresses were discussing this event,' Assistant Manager Cooper joined them and stated that White had accused him of trying to organize a walk- out. At Cooper's request, a number of the waitresses went to White and denied that Cooper had made any efforts to organize a walkout. White indicated he had reason to believe otherwise. Cooper subse- quently began to leave the premises under circumstances indicating that he believed White had discharged him and that the waitresses thought so as well. As Cooper was leaving, Prickett, the hostess, telephoned Henry S. Dean, one of Respondent's vice presidents, and advised him of the various events of that day, stated that the waitresses were planning a walkout, explained that she was sym- pathetic to them because they, had been mistreated, and mentioned some of their complaints and the fact that they "could not get through" to White. Prickett thereafter reported to some of the waitresses that Dean had not provided "any solution" but that she would try to call Dobbs (Respondent's president). Thereafter, the waitresses together with Prickett all walked off the premises. When White observed them doing so, he called out to them that Cooper had not been discharged, but the waitresses continued to walk out. All those who then walked out were fired the following morning by Dobbs under the circumstances detailed by the Trial Examiner. In sum, the question of whether the employees acted concertedly on March 2, for their "mutual aid and protection" within the meaning of those terms as used in Section 7 of the Act, was presented for deter- mination on the record establishing that : (1) there were preexisting conditions of work giving rise to employee dissatisfaction and unrest e As set forth in the Intermediate Report, Cooper attempted to remedy certain of the ,day-to-day conditions about which the employees complained , to the extent that his posi- tion permitted him so to do Further, unlike White , he had attempted to bring these ;matters to higher management 's attention, and acted as a "buffer" between the employees .and White. a The Trial Examiner found , in effect, that white's remarks were addressed solely to the Negro employees , and therefore could not be viewed as being more than "secondarily offen- sive to the waitresses who were .white." However, there is testimony that some of the waitresses interpreted the offensive remarks as including themselves since his remarks ,encompassed employees from the "front door" to the "back door." In any event, even if we adopt the Trial Examiner 's euphemistic description ,of White's remarks as "secondarily offensive," it does not derogate from the fact that it had an exceedingly disturbing and upsetting impact upon the waitresses . Thus, the Negro employees to whom the remarks may have been confined were fellow employees with whom the waitresses worked in close cooperation ; White was the common supervisor of both groups ; and the remarks were characteristic of White's conduct toward all of .them. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the kind frequently leading to strikes or other concerted action; (2) White was ,responsible for certain of the conditions giving rise to the dissatisfaction and unrest; (3) White's capability or lack of it as a supervisor had a direct impact on the employees' performance of their daily tasks; (4) White engaged in conduct on March 2-apart from that directed to Cooper alone-which offended and upset the employees and aggravated the preexisting grievances ; (5) White made statements to Cooper which led both Cooper and the employees to believe Cooper had been discharged ; (6) Cooper's discharge would have removed from the supervisory ranks the sole "buffer" between the difficulties the employees encountered under White and would have left them with White-a supervisor they regarded as inefficient and incapable; and (7) while the employees' concerted walkout action occurred immediately after White's "discharge" of Cooper, White's statements to the employees that Cooper had not in fact been dis- charged did not bring the employees back. Analyzing the foregoing items of evidence on a fragment-by- fragment basis, the Trial Examiner concluded that neither the griev- ances predating the occurrence of the strike nor any of the events of March 2-apart from Cooper's discharge-"caused" the strike. We are unable to follow his reasoning. It is, of course, true that there is no evidence that the employees considered taking concerted protest action as a means of resolving the preexisting grievances before March 2. But it does not automatically follow that such matters were erased from their minds when they decided to walk out. Indeed, the record establishes to the contrary. Accordingly, while the timing of the walkout decision may justify inferring that it was "triggered" by the discharge of Cooper, we are satisfied that such discharge action "caused" the walkout only because it was the "last straw" in the accumulation of grievances and other aggravations producing condi- tions of unrest. But a determination that Cooper's discharge was one of the "causes" of the strike-or even that it was the only direct "cause" of the strike-does not aid the Respondent'here. For, under well-established precedent, concerted action by employees to protest an employer's selection or termination of a supervisory employee is not automati- cally removed from the protection of the Act. Each case must turn on its facts. Where, as here, such facts establish that the identity and capability of the supervisor involved has a' direct impact on the employees' own job interests and on their performance of the work they are hired to do, they are legitimately concerned with his identity.8 Therefore, strike or other concerted action which evidences 8 Phoenix Mutual lAfe Insurance Company, 73 NLRB 1463 , enfd. 167 F. 2d 983 (C A. 7) ; Ace Handle Corporation, 100 NLRB 1279, 1290 ; Container Mfg. Co ., 75 NLRB 1082. Cf. Fontaine Converting Works, Inc., 77 NLRB 1386. DOBBS HOUSES, INC. 889 the employees' concern is no less protected than any other strike which employees may undertake in pursuit of a mutual interest in the im- provement of their conditions of employment. We conclude, accord- ingly, that the employees who walked out engaged in a protected economic strike,9 and that Respondent was not privileged, therefore, to discharge them for engaging in the strike. We turn then to Respondent's claim that it had hired replacements for the strikers before it advised the strikers that they were dis- charged. Because he found the strike unprotected, the Trial Ex- aminer found it unnecessary fully to determine the merits of -the replacement claim. The record shows that the strike occurred about 7 p.m. on March 2; that the strikers came to meet with Dobbs about 8 a.m. the next day when he flew in from Birmingham for that purpose; that Dobbs dis- charged them at that time; and that, about one-half hour later, he denied their specific request for reinstatement when they returned in a group and advised him (as he testified) that they were "ready to go back to work on my terms and conditions." 10 The sole evidence `supplied to support the replacement 'claim was Dobbs' testimony that he had telephoned nearby establishments some time before the above meetings with the strikers, to ascertain avail- ability of help for assignment to, the struck operation. But nothing in his testimony, or in any other evidence here pertinent, establishes either that any specific individual was in fact hired as a "permanent replacement" before the 'strikers requested reinstatement, or that, indeed= any agent of Respondent knew tivho or what' number of alleg- edly available waitresses from other establishments would actually appear to accept permanent employment in the struck establishment. Moreover, we note that the testimony of Respondent's own witnesses establishes that there were no new employees at the struck operation 9 The protection of Section 7 which guarantees to employees concerted action is not dependent on the Respondent's good-faith belief that such action was undertaken for reasons of no legitimate concern to the employees . See and compare N L.R.B. v. Puerto Rico Rayon lIslls, Inc, 293 F 2d 94 ( C A.'1) ; Cusano d/b/a American Shuffleboard 00. V. N.L R B., 190 F. 2d 898 (C.A. 3) ; Salt River Valley Water Users Association v. N L R.B., 206 F 2d 325 ( CA. 9). For this reason, neither the fact that the Respondent was justi- fied in taking discharge action against Cooper, nor its belief that it was therefore also justified in discharging the employees protesting its action , has any relevance to the issue here presented . Similarly, as the facts establish that the employees sought to serve legiti- mate interests of their own, and the fact that their action also benefited Cooper 's separate interests as an incidental matter is also irrelevant. 10 Dobbs told the strikers that he had replaced them and was discharging them becalse they had failed to return to work the prior evening , despite his having been assured by Prickett that they would return. However, we do not understand Respondent as here contending that the failure of the waitresses to end the strike the previous night-as distinguished from the act of engaging in the strike itself-afforded it an independently valid reason for discharge . In any event, it isclear ' that the waitresses ' action on the previous night may be deemed , at most , to reflect a determination to continue the strike, and was no less protected than the act of striking. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at either of the times the strikers met with Dobbs on the morning of March 3.11 In these circumstances, and in light of the timing of the discharge action, we find that the Respondent did not, substantiate its replace- ment claims 12 and that, indeed, Respondent on March 3 discharged the 16 striking waitresses here involved and failed to reinstate them upon application because they had engaged in protected concerted activity. It automatically follows that the Respondent thereby discriminated against its employees and interfered with, `restrained, and coerced them in the exercise of rights guaranteed them by the Act, thereby violating Section 8 (a) (1) of the Act. THE REMEDY Having found that the Respondent has engaged in conduct violative of Section 8 (a) (1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that on March 3,1961, Respondent unlawfully dis- charged and refused to reinstate the employees named in Appendix A attached hereto. It will therefore be ordered that the Respondent offer to each of them immediate and full employment in the positions in which they would have been employed but for the unlawful conduct of the Respondent found herein, or in a substantially equivalent posi- tion, without prejudice to their seniority or other rights and privileges. It will further be ordered that the Respondent make them whole for any loss of pay suffered by each of them by reason of the discrimina- tion against them.'-' Loss of pay, based upon earnings which each of them normally would have earned from March 3, 1961, the date of the discrimination against them, to the date of offer of employment, less net earnings, shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. In accordance with our customary practice where a Trial Exam- iner has recommended dismissal of a complaint, we shall exclude from the computation of backpay the period between issuance of the Inter- mediate Report in the instant case and issuance of this Decision and Order. Because the unlawful conduct found to have been committed by the Respondent infringes fundamental rights guaranteed by the Act, the commission of other unfair labor practices may reasonably be ant ici- pated. It will therefore be recommended that the Respondent cease 11 we note, also, that one of the nonstriking waitresses reporting for work about 9 a in. testified that she was the only waitress on the floor at that time and that there were no new employees there. u New Orleans Roosevelt Corporation, 132 NLRB 248 1$ There is no question that the order requiring reinstatement of the discharged em- ployees and making them whole is fully supported by the finding of the Section 8(a) (1) violation. Latex Industries, Incorporated, 132 NLRB 1. Cf. Fant Milling Company, Inc. d/b/a Gladiola Bigcust Company, 134 NLRB 591. DOBBS HOUSES, INC. 891 and desist from in any manner infringing upon the rights guaranteed its employees and prospective employees by Section 7 of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dobbs Houses, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging its employees for engaging in concerted activities for the purposes of their mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist labor organizations, to bargain collectively thrqugh representatives of their choosing, and to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to employees named in Appendix A, attached hereto, rein- statement to their former or substantially equivalent, positions, with- out prejudice to their seniority or other rights or privileges, in the manner herein. provided in, "The Remedy." (b) Make whole, in the manner herein provided in "The Remedy," these employees for any loss of earnings that they may have suffered by reason of the Respondent's discrimination against them. (c) Preserve and, upon request, make available for the Board or its agents, for examination and copying, all payroll records, social' security payment records, timecards, personnel, records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (d) Post at its plant in Birmingham, Alabama, copies of the notice attached thereto marked "Appendix B." 14 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be 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 to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Tenth Region, in writing,, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 14 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." 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billie L. Hudson Patricia Cash Betty Shea Judy Schreiber Grerrye McPherson James Harris Patricia Smith Hazel Harris APPENDIX A Janet Strickland Sue Wright Loretta Merrell Gussie Marquis Rose Sparks Maudean Snider Billie Joe Dowling Anna Smith APPENDIX B 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 discharge our employees because they engaged in concerted 'activities for the purpose of their mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities. WE WILL offer to the employees named below immediate and full reinstatement each- to her former or substantially equivalent position, without prejudice' to her seniority or other rights and' privileges previously enjoyed, and make each whole for any loss of pay she may have suffered by^reason of her unlawful discharge: Billie L. Hudson Patricia Cash Betty Shea Judy Schreiber Gerrye McPherson James Harris Patricia Smith Hazel Harris Janet Strickland' • Sue Wright Loretta Merrell Gussie Marquis Rose Sparks Maudean Snider Billie Joe Dowling Anna Smith All our employees are free to become, remain, or refrain from becoming or remaining members of any labor organization. DOBBS HOUSES, 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. DOBBS HOUSES, INC. 893 ^- -Employees may, communicate' directly with the Board's Regional Office (528 Peachtree-Seventh Building,,50 Seventh Street NE., At- lanta, Georgia; Telephone Number, Trinity 6-3311, Extension 5357) 'if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein alleges that the Company has violated Section 8(a) (1) of the National Labor Relations Act, as amended, 73 Stat. 519, by discharging 16 employees 1 on or about March 3, 1961, and thereafter failing and refusing to reinstate them because they ceased work and engaged in a strike on or about March 2, 1961. The answer admits the strike, the discharge, and the failure and refusal to reinstate, but alleges that the strike or refusal to work was not protected concerted activity. A hearing was held before Lloyd Buchanan, the duly designated Trial Examiner, at Birmingham, Alabama, from June 6 to 9, 1961. Pursuant to leave granted to all parties, briefs have been filed by the General Counsel and the Company, the time to do so having been extended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS It was admitted and I find that the Company, a Tennessee corporation with principal office and place of business in Memphis, Tennessee, is' engaged in the operation of retail chain restaurants and catering services in various southeastern States; that it maintains and operates a restaurant (called Luau) in Birmingham, Alabama; that during the calendar year 1960 its gross revenue from operations was more than $500,000; that during said year it purchased and received supplies valued at more than $50,000 from suppliers located outside the State of Alabama; and that it is engaged in commerce within the meaning of the Act. H. THE ALLEGED VIOLATION OF SECTION 8(a)(1) A. Working conditions and the walkout During the dinner hour on March 2, 1961, Betty Ruth Prickett, the head hostess and a supervisor within the meaning of the Act, and the 16 named employees, most of them waitresses, concertedly ceased work and walked out of the Birmingham Luau. The issue is whether this' action constituted protected concerted activity prompted by conditions of employment, or whether it was prompted by the suspension or what appeared to be the discharge of the assistant manager, Cooper, also a super- visor within the meaning of the Act .2 The Luau was opened for business in the latter part of December 1960. On behalf of the General Counsel it was testified that from the beginning, working conditions were unsatisfactory, even execrable: White, the manager, had allegedly promised commissions on certain drinks, but these were not paid; meals were not provided as promised, and charges were made for them; and White was constantly guilty of profanity and unkind language, and he publicly petted and pawed some of the wait- resses. White did not testify. The Company declared that he is no longer in its employ, that he was in Columbus, Ohio, at the time of and prior to the hearing, and that it had requested but had been unable to obtain his presence at the hearing. 1 Billie L. Hudson, Patricia Cash, Betty Shea, Judy Schreiber, Gerrye McPherson, James Harris, Patricia Smith, Hazel Harris, Janet Strickland, Sue Wright, Loretta Merrell, Gussie Marquis, Rose Sparks, Maudean Snider, Billie Joe Dowling, and Anna Smith. 2 The General Counsel in his brief interestingly argues that the walkout was protected even if and because the 'employees thus protested the-discharge of Cooper, who was the "only one to whom they could look for occasionally satisfactory working condition . . . . 11 citing Ace Handle Corporation, 100 NLRB 1279. It is farfetched to claim, in the face of their contrary explanation for the walkout, infra, that in walking out these employees were making known to management (without prior protest or discussion), their views concerning Cooper and the need to retain him, and that the walkout was therefore, a protected activity. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company witnesses testified that commissions are not paid on drinks until after a preliminary testing period and after the element of novelty has largely been dissipated (this does not meet the claim that, whether authorized or not, White had promised commissions); that food was available as promised but that employees were required to pay for special items which they requested. (White allegedly provided vegetables beyond the requirements of duty, but he demurred with respect to such items as steaks and chops); and that White was not uncommonly profane and had not been seen to molest the waitresses. It appears from the mass of testimony received, bearing in mind the personalities of those who tetified and the extent of their credibility, that the truth with respect to these matters was somewhere between the extremes described. But the findings here do not depend on resolution of these conflicts in testimony. With respect to com- missions on drinks, there being no basis for a medial finding on the question whether immediate commissions were promised, it is unnecessary to make a finding although it is to be noted that there were no complaints to senior supervisors concerning this easily measured item of income allegedly denied. As we shall again note that cir- cumstance like the other conditions alleged had persisted for more than 2 months. It was admitted that the fact that White "had a reputation had something to do with" his later transfer. When that occurred, we were not told. These were reasons for action against him by the Company after the walkout. They may have warranted earlier action by the Company and by the employees; but no earlier action was taken by the Company, and the question remains whether the employees struck on March 2 for those reasons. We shall consider, infra, the significance of these various conditions. More immediate, and allegedly a cause of the walkout, was an incident in the kitchen on the morning of March 2, witnessed by some of the waitresses and reported to others: White came into the kitchen (the kitchen help are colored) and cursed "every black ass S.O.B. from the front door to the back door," telling them to get out and that he did not want to see them any more. Various kitchen employees denied the occurrence. On behalf of the General Counsel it was testified that this incident upset the waitresses to the point where Prickett told them to wait until the night shift came on before walking out; the girls were nervous, dropped dishes, and at 2 o'clock she again told them to forget it and wait for the night shift. Prickett returned to work about 5:45 that afternoon and, while the girls were dis- cussing that morning's events, Cooper joined them and reported that White had accused him of trying to organize a walkout. At Cooper's request about eight of the girls went into the kitchen where each denied to White that Cooper had tried to organize any walkout White declared that since 5 pm. he had received three tele- phone calls to the effect that Cooper was organizing a walkout of the employees. According to Snider, the telephone rings simultaneously at her cashier's desk and in White's office, and she knew that he had received only two calls that day, one from his son and one from Memphis. I credit the testimony of Jones, a baker in the kitchen, that Cooper had urged that the kitchen help not return on Friday, March 3, and that he had paid them on March 2, a day earlier than usual; and that after quitting work at 5 p.m. and before she arrived home, she telephoned White from downtown Birmingham and told him what Cooper had said. Whether, as Jones testified, she had misunderstood the ques- tion when she earlier denied that she had told White about this or she was reluctant to testify concerning it, her later testimony in this connection appeared to me to be truthful as she faced a careful cross-examination and consistently maintained that Cooper had spoken to her and that she had called White. What appeared to me to be a reluctance to testify to this is of a piece with her failure to tell White about it before she left the Luau, all of this being quite understandable as we recognize the relation- ship between the various individuals involved. One need not speculate whether a hesitancy to "get involved" was overcome by realization that Cooper had engaged in self-seeking and seriously disloyal tactics. Not until after she had admitted that she told counsel for the Company about it and at his request repeated it over the tele- phone to Dean, a company vice president, was Jones led to testify concerning her call to White. Dean is stationed in Birmingham but his direct authority is over other operations. Robinson, a cook, testified similarly that Cooper had urged him on March 2 not to come in the next day, and said that he would pay the kitchen help and did pay them on March 2, the next day being the normal payday. Cooper allegedly promised better conditions if White were thus removed and Cooper replaced him. I have considered the proof that in 1957, at the age of 16, Robinson pleaded guilty to a charge of grand larceny (not crimen falsi), received a sentence of 3 years which was sus- DOBBS HOUSES) INC. 895 pended, and was placed on probation for 5 years ; he has not violated his probation. Moore, another cook, testified credibly to the same effect as did Robinson. We recall that White did not appear at the hearing. Cooper did not testify con- cerning the urging attributed to him that the kitchen help not come in on March 3, and his payment of their wages on March 2; nor did he appear, although theretofore present throughout the hearing, to testify in rebuttal concerning these matters. Fur- ther with respect to the truth of the testimony concerning what Cooper had told the employees or some of them, while he questioned some of the waitresses in White's presence as we have noted, he did not question any of the kitchen help. Whether Cooper was then discharged by White or merely suspended is not al- together clear. But what had occurred between them in White's office after they spoke to the waitresses in the kitchen, or thereafter is no more important to resolu- tion of the issues before us than are the details of conversations which Cooper had with various company officials. Cooper allegedly thought that he was discharged, and the waitresses thought so as well. We are still concerned with the reason for the waitresses' walkout. As Cooper left or was leaving, Prickett telephoned Dean and allegedly told him that the waitresses were planning a walkout and that she did not feel that she should talk them into staying because they had been mistreated. Dean asked to speak with Cooper, and did. Prickett then told some of the girls in the dining room that Dean had not provided any "solution," and said that she would call Dobbs in Memphis. Prickett testified that she tried to call Dobbs, the company president, from the Luau but that it was noisy and she could not hear, and that she thereupon left as did the waitresses and went to Howard Johnson's next door, where she did call Dobbs. Dean's version of his conversation with Prickett is that she told him that Cooper had been fired (he was struck by that opening phrase), and that the girls were upset and fixing to walk out. In response to Dean's question, Prickett said that she could not "get through" to White, and Dean then asked to speak with Cooper (not White), who charged that he had received a raw deal. When Dean asked about the waitresses walking out, Cooper assured him that they would not; he would not let them. Dean testified uncertainly that Prickett mentioned food in that conversation or a later one which he had with her that evening, and in the second call referred to White's cursing the employees that morning. As we shall soon see, we need not rely on Dean's version; Prickett's is significant. Before he left the Luau, Cooper allegedly saw' several of the waitresses in the lobby, and one or two of them told him that they had, taken' all that they could and were going to walk out. Just what prompted this is not clear from Cooper's testi- mony; Cooper now twice advised them not to walk out on his account, and they replied that it was not on his account but because of the conditions. While the latter alleged remark conveniently provided an economic reason for the strike, of greater significance is the fact that Cooper, knowing the conditions under which these employees worked and the circumstances which obtained prior to their walk- out, believed that it was prompted by the action taken against him. We are led to a similar finding if we consider the, alleged admission after March 2 by Cooper to a supervising hostess that he made up his mind to organize a walkout after he was accused of doing that. Such a decision would have been made before the walkout about which he was talking in fact occurred, and it is consistent with the testimony and finding that the walkout was prompted by the action taken against Cooper. If this contradicts Cooper's testimony that he told the girls not to strike, on his account, it indicates that he did arrange the walkout after White's accusation against him; and under those circumstances it could hardly be found that the strike was not prompted by'the action against him. Whatever the, propriety of any earlier planning by Cooper with respect to the waitresses, there is no evidence of such planning, the testimony in this connection being confined to his remarks to kitchen help. What he now did was allegedly spontaneous, and its connection must be found with the immediate action taken against him rather than by any sympathy on his part for the waitresses and their grievances. From her testimony that she was the leader of the strikers and that she was led, by White's vulgar remark to Cooper about no one walking out on him in 20 years, to walk out and take the girls with her, Prickett was evidently with the first to leave the restaurant and therefore at or near the door when Cooper left. This further appears from her testimony that White followed Cooper out and called after him. Yet Prickett did not testify concerning Cooper's alleged advice to the girls, as he left, that they not walk out on his account. Having heard and observed these wit- nesses, I do not credit this too pat attempt by Cooper to remove his discharge as the reason for the strike. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is not to say, "Post hoc, ergo propter hoc." But there is no sufficient explana- tion for the delay of the walkout until about 7 or 7:10 p.m. If, as Prickett testified, with all of the long-standing reasons and the upsetting provocation of White's language in the kitchen, the waitresses that morning decided to wait until the evening waitresses came to work (some at 5 p.m., the others at 6 p.m ), the walkout did not occur until 1 or 2 hours after these started to work. Prickett herself returned about 5:45 p.m., but it does not appear that there was then any decision to walk out be- cause of the earlier events or conditions. Although about 4.30 one of the waitresses told Snider, who came to work at 4 p.m., what White had said that morning, Prickett apparently did not discuss any of these matters with Snider until about 6:30, and then only to tell her of White's accusation against Cooper. Further indicative of the importance of Cooper's discharge as the immediate cause of the strike is Merrell's testimony of indecent treatment to the point that, when, on March 1, the day before, White had profanely insisted that she serve her guests before they were ready for the next course, she had told Pricket that she could not take any more, but Prickett advised her to stay on and think it over. Merrell did stay on despite this instance of unfair and unwise treatment which directly affected her and although she was understandably upset by it, she felt called upon and did explain the matter to her guests. But with Cooper's suspension or apparent discharge the next day, there was no longer any further urging by Prickett or willingness by Merrell and the others to stay on. Again, 2 weeks before, White had so upset Marquis that Prickett advised her to, go home. She returned after White called her the following day. This apparently serious incident, with loss of at least tips to the employee, had not prompted con- certed action. According to Marquis and Sparks, some of the girls twice spoke to White shortly before they walked out. But allegedly disturbed by their working conditions, and with all of the girls talking about what White had said that morning, they did not discuss these matters with him: both times they went into the kitchen to tell him that Cooper had not tried to organize the waitresses and that it was unfair of White to accuse Cooper of that and refuse to hear them Their concern over their own working conditions appears to have been submerged in their distress over Cooper. But then, dissatisfied with White's refusal to hear them about Cooper, their dissatisfaction and concern suddenly shifted from Cooper to the food situation and White's "complete actions towards the girls," and they decided to call Dobbs and tell him about the food situation and the failure to pay commission on drinks. I do not believe it. Whatever his shortcomings, White correctly interpreted the walk- out as connected with Cooper. This explains his call as the girls left, that they return, and that Cooper had not been fired. Thus even without that special scrutiny demanded by the self-serving aspect of the testimony concerning intent or motivation, that testimony does not show that the walkout was in protest of working conditions and that it constituted protected concerted activity. I do not credit the testimony that the waitresses were ready to. walk out on the morning of March 2 because of working conditions brought to a- head by White's offensive remark in the kitchen that morning (The very words. used show that White was not addressing the waitresses, who are white, although according to Prickett, who was not there, and to Marquis, who was, he addressed all who were in the kitchen at the time ) Although offensive, the remark was not addressed to the waitresses, and was but secondarily offensive to those waitresses who heard it; more remotely so to the majority, who did not even hear it. As for the waitresses being ready to walk out when Cooper left, it is not at all clear why one or two were led to tell him immediately, after his conversation with White in the latter's office, that they had taken all that they could and were going to walk out. Nor was there any basis in the events or facts to that point, including White's mistreatment of the girls (they do not appear to have known then of the discussion in White's office) for Cooper's admonition that they not take such action on his account. According to Cooper himself, the girls had been talking all after- noon about walking out-certainly not at that time on his account. Neither, without condoning such language, do I find that what White called out to Cooper was the straw that broke the camel's back, to use Prickett's expression. (Prickett would have it that, himself suspended or discharged because of a false charge that he had incited the girls to walk out, which he had lust vigorously denied, Cooper now told White that the girls would walk out; and although they had not gone out, White was replying to Cooper and referring to the girls when he profanely said that no one had walked out on him in 20 years ) Such language from White. DOBBS HOUSES, INC. 897- was allegedly commonplace according to the General Counsel's witnesses. Further, there is credible testimony that several of the strikers employed similar vulgarities. on the picket line in April. This was denied by Merrell, who at first denied that she had been present. Although she attended throughout the hearing, Anna Smith, apparently the most vocal on the picket line, was silent at the hearing. She was not called and did not deny the testimony by waitresses Wilson and Cowley. There is other evidence of profanity among the waitresses. While under some circumstances there may be significant differences between the use of profanity among women and between the sexes , there is not such a difference here as to affect the issue of White's profanity : women who use among themselves the language at- tributed to some of the strikers would hardly find shocking to the point of walkout the language which White used. I believe and find that the truth concerning White's language was probably somewhere between what the General Counsel's witnesses. testified to and the almost complete denial of any profanity on White's part by the Company's witnesses. The proclivity of the waitresses or some of them for pro- fanity and its use among them suggest that they would not have walked out because of the profanity used by White, and that they did not. As noted, they did not walk out over his allegedly vile language on the morning of March 2. The last straw, in, fact the reason for the walkout, was the discharge of Cooper. The preexisting conditions had not prompted the walkout. Now, with the incidents in which Cooper was involved, and with nothing else intervening, they did walk out. Working conditions were not as bad as pictured by some of the witnesess. But if food to be provided was not quite as some employees expected whether or not they were promised better, if some were unfairly and for more than 2 months denied' commissions on certain drinks (I believe that if any expected commissions, they had misunderstood; certainly they had not complained to the various company officials about this), if White shocked some with profanity which appeared not to have been beyond the practice of some of the waitresses, if he had throughout their employment pinched or patted some of them, it certainly was within the employees'- rights to strike for better working conditions. The question here is not whether they could have but whether they did strike for those reasons. The conditions which existed had not compelled a strike before March 2; they did not compel or cause the strike on that day. When Prickett called Dobbs in Memphis immediately after the walkout on March 2, any reference to working conditions was certainly not unimportant to her. I credit Dobbs' testimony that she had first stated to him that the reason for the walkout was the alleged discharge of Cooper. Dobbs was a truthful witness, even to the point of admitting that Prickett may have added reference to the meals and working conditions, and admitting further the reasons or some of the reasons for White's transfer, which occurred some 6 weeks after the walkout. An -employer may have sufficient and valid reasons to discharge employees; but when discharges are triggered or in fact prompted by protected concerted activities, the Act is thereby violated? Similarly for a long time there may have been sufficient reason here to prompt an economic strike; but the strike was in fact prompted by the discharge of Cooper, 'a supervisor (or his and the waitresses' impression that he had been discharged), and his discharge was not itself connected with protected concerted activities. As we have probed for the reason for the walkout, we find the explanation in the circumstances which immediately preceded it, i.e., that the poten- tial causes had not prompted it. What the strikers could not "take" was the action taken against Cooper. Substantiating this is Wilson's testimony that girls' coming out of the kitchen said that White and Cooper were fussing and that, if the latter left, the girls would go with him. Nor did Prickett deny Wilson's testimony that Prickett told her that the other girls were leaving,and, while she was not telling Wilson what to do, it would not do unless all went out. This finding of the reason for the walkout is further supported by the testimony that as he left the Luau, Cooper said, "Girls, you don't know how much I appreciate this." Cooper testified only that he did not recall that he had told the girls that he would "never forget this"; but truthfully that he would not deny it. Still further confirmation may be found in the fact that, while Prickett told the union representa- tive why the girls had walked out, the first picket signs carried mentioned only the 8 N L R B v. Electric City Dyeing Co, 178 F 2d 980, 983 (C A 3). See also Fontainebleau Hotel Corporation d/b/a Hotel Fontainebleau, 131 NLRB 14 634449-62-vol 135-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 25-cent wage which they had been receiving and which was not assigned by the witnesses as a cause of the dissatisfaction, while none of the conditions which they allegedly could no longer take and which were cited as the reason for the strike was mentioned. An experienced union representative would not cite the Cooper dis- charge or suspension as the reason for the strike; the strikers themselves and Cooper now know that. But the working conditions mentioned were not the reason either,, and were not listed on the signs. Similarly, Snider had several opportunities to explain why she walked out on March 2. She testified that she had not known that there was going to be a walkout until she saw the girls leave; no one asked her to join, but she checked out and followed the others within 5 minutes; as Cooper was leaving, she heard White say only, "I'll call you when you get home"; she had received no ill treatment for several days although as noted above McPherson had told her of White's remark that morning; White had hurt her feelings before, but she "thought things would get better"; and she walked out shortly after Cooper was discharged. Appreciating the significance of this testimony, the General Counsel attempted in several ways to show that Snider had not known of Cooper's apparent discharge before she walked out. But Snider made it clear that she did know of this before she walked out. Neither did she walk out, she said, because the other girls walked out. Her con- clusionary statement that she walked out because throughout her period of employ- ment she had not been receiving what she had been promised and because of "the unfavorable working conditions" stands without support or explanation for walking out when she did. Here as elsewhere the explanation lies in the additional fact of the action taken against Cooper. We need not here analyze all of Prickett's testimony although all of it has been considered. But even in her first conversation with Dean, the first company repre- sentative to whom she spoke after the walkout, when she allegedly spoke of the girls planning to walk out because they were mistreated, Dean's reply was admittedly to ask whether Cooper was there! I do not believe that Dean was guilty of such a non sequitur: He would be expected to ask for White, not Cooper, unless, as Dean himself testified, Prickett actually told him that the girls were upset over Cooper's discharge and were planning to leave. According to Dean, although he was not permitted to testify concerning his impression of the reason for the walkout, as Prickett spoke to him her reference to food came as an afterthought. The fact appears to be as testified by Wilson, who joined in the walkout but was not with the others on March 3, returning instead to work at her usual time on that day: Several girls reported that Cooper had been fired, and they said that all of the girls would walk out if he left. It may be noted also that, when Prickett told the girls on the morning of March 2 to wait until the night shift came on before walking out, she allegedly spoke of straightening out matters with Dobbs. But she did not communicate with Dobbs until after the walkout that night. The walkout, because it was prompted by Cooper's discharge or suspension, was not protected within the meaning of the Act, and the Company was within its rights in discharging the strikers. Whether applied to employers or employees, the law is technical. Slight changes in the facts can lead to different findings; the facts here indicate the findings made. That Cooper sought White's job, on the latter's transfer or otherwise, is clear from his own testimony; and he several times told a company official of the "serious" situation among the employees. We need not pursue any implication that Cooper may have instigated employee dissatisfaction and the walk- out or that he tried to take advantage of such dissatisfaction. Nor need we decide whether he thereby obtained employee support. Having found that the walkout was prompted by Cooper's discharge, we need not pinpoint the reasons for that attempt to support him. Certainly he appears to have been more sympathetic in his dealings than White (toward whom he appeared embittered as he testified) was, especially during the period of approximately 10 days shortly before March 2, when White was absent and Cooper was in charge. In the wealth of evidence which points to the reason for the strike, we should not overlook the fact that one of the strikers was James Harris, a bartender. It does not appear that he was himself affected by White's profanity, patting, or pawing, or the other alleged reasons. On the other hand, the reason found, i.e., the action against Cooper, would as reasonably motivate Harris. When Prickett spoke to Dobbs from the other restaurant on the evening of March 2, it was agreed that .the latter would meet with the girls at the Luau the DOBBS HOUSES, INC. 899 following morning; in the meantime, they were to return to work. Prickett and some of the girls did return but found the front door, which they normally used, locked. Neither they nor prospective patrons could enter. From Prickett's testi- mony that she later called the girls who had not been there that day and told them to be at the Luau at 8 o'clock the next morning, and that "Anna Smith called the rest of the girls," it appears that not all of them had returned to the Luau after Prickett spoke with Dobbs. According to Marquis, Prickett told them, when they found the door locked, to return at 8 a.m. (In other testimony only Hudson was identified as not working on March 2.) Whatever the reason or explanation for the failure to return in a body, when Dobbs arrived on March 3, he learned that the girls had not gone back to work the evening before and that the Luau had remained closed. It thus appeared to him that they had not lived up to Prickett's assurance that they would return, and he told them to take their checks and get off the property. He refused to discuss matters with them or to listen to them. Dobbs testi- fied, as did Prickett, that he referred to their failure to return the night before. I do not credit Sparks' and Merrell's denials. It is unnecessary to consider the Company's defense that subsequent events deny the strikers the protection of the Act. Further it is clear that Dobbs' request to Prickett on March 2 that the strikers' return did not lend protection to the earlier unprotected concerted activities. Any waiver or condonation by Dobbs (this has not been urged by the General Counsel) was conditioned on a return which was not effected. Whatever the Company's rights when the employees walked out, those rights were not lost because of the circumstance (unfortunate to those em- ployees who sought to return, because they could not; to the employer because it could not operate again that evening) that the employees may have been pre- vented from reentering. Clearly Dobbs wanted them to return at once; there is no evidence that the Company's officials intentionally excluded them. Dean, arriving shortly after the walkout, found the waitresses no longer there. Prickett testified that she saw him enter as she was returning but still a block away. If White had locked the door after the waitresses and patrons left, and without waitresses meant to exclude other patrons, this is readily understandable without further reflection on either side; but also without modifying their preexisting rights and disabilities. There is no evidence that White knew that the waitresses wanted to return on the evening of March 2 and that he willfully excluded them. There is no question but that the waitresses normally entered and left the res- taurant by the front door. Finding that door locked when they or some of them returned, and unable to get in, as were restaurant patrons who came to the front door, they left. But here we must bear in mind that this was no normal situation. With the waitresses gone and the guests who had been inside departed, the Company justifiably did not want other patrons to enter. Hence the front door was locked. The reason for this should have been quite clear to the returning waitresses, who in this unusual situation should have tried another door and actually made their return known. Prickett, an intelligent witness, was quite disingenuous in her statement that she did not,know why the door was locked. I credit the testimony that Sims, the bartender, was at the locked front door to permit guests to leave, explaining while he was there to those guests who sought to enter. Sims had admitted Dean and then left the door before the waitresses returned. From Sims' testimony that he remained at the door for 20 to 30 minutes after Dean came in, it would appear that the girls did not return at all. Nor in a conversation with Dean later that evening did Prickett tell him that she had seen him go in or that the girls had re- turned but had found the door locked. Finding this additional obligation on the strikers, that they should have tried another door or otherwise made their return known to White when they had themselves caused the shutdown and exclusion of patrons may add some equity to the Company's position. It certainly does not indicate that Dobbs acted unlawfully in discharging the strikers on March 3. While Dobbs testified that he had replaced the waitresses with as many as he would now need, there is no evidence that he had in fact obtained all of the neces- sary replacements before he discharged these waitresses. Such prior replacement would be necessary and a sufficient defense were this a protected economic strike; it is immaterial here. If Dobbs was in error in his belief on the morning of March 3 that the strikers had not lived up to Prickett's assurance to him that they would return (we have 900 DECISIONS OF NATIONAL'I:ABOR RELATIONS BOARD noted that some apparently had not returned), such error did not create a liability such as would exist had the strike been a protected activity'and the employees en- titled to reinstatement upon application prior to replacement. The loss occasioned' the Company by a walkout which might have been ended quickly and without penalty was now aggravated by the shutdown for the entire evening (aside from subsequent loss, difficult to measure, resulting from even a brief closing). The events and circumstances, including the locked door, are chargeable to the strikers, since they had set such events in motion. A contrary holding against the Company, would be prerequisite to a finding of violation. The walkout was unprotected; it continued so despite whatever attempt was made to return; and, aside from any question of actual replacement as distinguished from availability of replacements. from other Dobbs establishments nearby, those who walked out could be discharged. as unprotected strikers even if replacements were not first obtained. I have not overlooked variances and other elements which cast doubt on the testimony of witnesses. Thus I do not rely on such testimony as Sims' beyond the fact that he was at the locked door for a while as guests left. Other aspects of his testimony, particularly concerning his own background, were plainly unreliable; they need not be detailed. B. Merrell and Hudson What has been said concerning the group of strikers generally needs to be supple- mented Eby consideration of certain facts. Whether Merrell, who testified that she- walked out for her own reason, not those of the others, her reason being White's. remark on the morning of March 2, was engaging in concerted activities, her activity was at best in concert with those who, it has been found, were engaging in un- protected activities. Hence her own walkout was unprotected, this aside from the question of causation, considered supra. Here again, although the alleged reason was a remark that morning, she acted only after the action taken against Cooper. (As much can be said with respect to Wright, whom the General Counsel sought toy call at the close of the hearing to testify that she had said that she would not go out because of Cooper's discharge and was assured that the others were not going out for that reason. Nor have I relied on Wright's alleged impression that the others. were in fact walking out because of Cooper's discharge!) As for Hudson, she had been off on March 2 and was not guilty of any un- protected activity on that date. She was due to report for work at 4 p.m. on March 3, and there is no suggestion that she would have been discharged had she, like Wilson, reported when due. But in response to a telephone call from Prickett ,the night before, Hudson made common cause with the strikers and was in the group which came to see Dobbs early on March 3. If, despite her presence with the strikers on the morning of March 3, she was not in fact one of those whom Dobbs charged with failing to return the evening before, her presence now indicated" that she was. Since she created this situation, it was no great or undue burden for her to have attempted to explain to the Company later if she could not when she was with the group that she had not in fact made common cause with the others even though she appeared to do so. An employee wrongfully discharged need not normally take the initiative to ob- tain reinstatement. But having given the appearance of being a striker when Dobbs discharged the group, Hudson could reasonably be expected to explain that the facts were not as she had made them appear to be, and to request reinstatement or at least appear for work at the usual time. The evidence in the case has been analyzed in greater detail than may have been necessary to find and indicate the situation with respect to the strike and discharges. We need not create a major industry of analysis of each pertinent statement in the- record. 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 Company is engaged in commerce within the meaning of the Act. 2. The Company has not engaged in unfair labor practices within the meaning- of Section 8 (a) (1) of the Act. ' [Recommendations omitted from publication.]