Howard Johnson Co.

548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Howard Johnson Company and Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Em- ployees and Bartenders International Union , AFL-CIO Howard Johnson Company and Lois Burkert. Cases Nos. 22-CA- 1052 and 22-CA-1075. October 29,1962 DECISION AND ORDER On May 23, 1962, Trial Examiner Samuel Ross issued his Inter- mediate Report in the above-entitled consolidated proceeding, finding that the Respondent had engaged in the unfair labor practices alleged in the complaints and recommending that Respondent cease and desist therefrom, as set forth in the attached Intermediate Report. There- after, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 Interest at the rate of 6 percent per annum shall be added to the backpay to be com- puted in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716. For the reasons stated in his dissenting opinion in that case , Member Rodgers would not award interest. 2 The notice appended to the Intermediate Report is hereby amended by deleting the phrase "This notice must remain posted for 60 days from the date hereof," and substitut- ing therefor the phrase "This notice must remain posted for 60 consecutive days from the date of posting. . . . . INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge of unfair labor practices filed by Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, on October 20, 1961, and amended on Novem- ber 28, 1961, and upon a like charge filed on November 21, 1961, by Lois Burkert, an individual , the General Counsel of the National Labor Relations Board issued complaints dated December 13, 1961, and January 5, 1962, respectively, alleging that the Howard Johnson Company (herein called the Respondent or the Company) had engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8(a)(1), (3 ), and (4) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act. In substance, the complaints allege that Respondent discharged and has refused to reinstate two employees because of their membership in and activities on behalf of the Union and because they gave testimony under the Act in a prior unfair labor practice case against Respondent. 139 NLRB No. 30. HOWARD JOHNSON COMPANY 549 The Respondent has filed answers denying the substantive allegations of the two complaints, the commission of unfair labor practices, and that it is an employer within the meaning of the Act. On January 5, 1962, the General Counsel of the National Labor Relations Board consolidated the two cases for hearing. Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross in New Brunswick, New Jersey, on Jan- uary 22, 1962. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to introduce evidence, to examine and cross- examine witnesses, to present oral argument, and to submit briefs. The filing of briefs was waived by all the parties. Upon the entire record in the case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, a Maryland corporation incorporated on March 10, 1961, has been engaged since June 30, 1961, in the operation of a chain of Howard Johnson restaurants on the New Jersey Turnpike, including the only one involved in this proceeding, known as Restaurant 8N located near Milltown, New Jersey, where Respondent sells and distributes food, beverages, and other related products to the general public. Respondent admits that for the year ending June 30, 1962, its gross revenues from the operation of its Milltown restaurant will exceed $500,000, and that during the same period, it has and will cause to be purchased and delivered to said restaurant from points and places outside the State of New Jersey, food and other products valued in excess of $50,000. Accordingly, I find and conclude that the Respondent is engaged in interstate commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO (herein called the Union), is a labor organization within the meaning of Section 2(51) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background-The prior unfair labor practice case against Respondent Before the Respondent undertook the operation of the chain of Howard Johnson restaurants on the New Jersey Turnpike, these restaurants were operated by Howard Johnson, Inc , of New Jersey (herein called the New Jersey corporation), the stock in which (except for one share) was wholly owned by Howard D. Johnson and his son and daughter. On April 11,1 following a consent election conducted by the Board, the Union was certified as a collective-bargaining representative of the em- ployees of the New Jersey corporation at its Restaurant 8N on the New Jersey Turnpike near Milltown, New Jersey.2 On May 16, the Johnson family transferred all of the stock in the New Jersey corporation, and all of their stock in 20 other corporations, in exchange for all the stock in the Respondent. From May 16 to June 30, the New Jersey corporation, although wholly owned by the Respondent, continued to operate the Howard Johnson restaurants on the New Jersey Turnpike, including Restaurant 8N. On June 30, the Respondent, as sole stockholder of the New Jersey corporation, caused the latter's assets, subject to its liabilities, to be transferred to itself, dissolved the New Jersey corporation, and assumed the opera- tion of the Turnpike restaurants, including Restaurant 8N, previously operated by its wholly owned subsidiary. Thereafter, on July 6, 1961, when the representatives of the dissolved New Jersey corporation 3 met with the Union's representatives, the company representatives advised the Union for the first time of the corporate change in the operation of the Turnpike restaurants, stated that they had no authority to bargain for the Respondent, but agreed to convey the Union's request that Respond- 1 This and all dates hereinafter refer to 1961 unless otherwise specifically noted. 2 Case No 22-RC-1106 3These included John IIipson, who is also vice president of Respondent and a member of its executive management committee, Daniel 0. Steele, who was then Respondent's labor counsel as well as labor counsel to New Jersey corporation, and Benton Caldon, then director of operations on the New Jersey Turnpike for the New Jersey corporation, as well as for Respondent. 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent "recognize them as a successor in the matter of negotiations , collective bar- gaining." Subsequently, in a Board proceeding based on the Union's charge that both the New Jersey corporation and Respondent had failed and refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act, the Re- spondent contended that it was under no legal compulsion to bargain with the Union because, inter alia, it is not a successor to Howard Johnson, Inc., of New Jersey; it did not assume any obligation of its predecessor in respect to the Union's certi- ficate; and because, in its operation of the restaurants on the New Jersey Turnpike, the Respondent is engaged in the execution of functions of the New Jersey Turn- pike Authority, a political subdivision of the State of New Jersey, and thus is "an integral part of the Authority," and exempt from the Board's jurisdiction under Section 2(2) of the Act. In Howard Johnson, Inc., of New Jersey and Howaid Johnson Company, 135 NLRB 1260, the Board sustained the Trial Examiner's conclusions that all of Respondent's contentions were without substance and/or merit, and that since July 6, the Respondent had failed and refused to bargain with the Union as the representative of the employees of Restaurant 8N, in violation of Section 8 (a) (5) and (1) of the Act .4 B. Respondent's refusal to reinstate Vera Wenzer and Lois Burkert Vera Wenzer and Lois Burkert were witnesses for the General Counsel in the prior unfair labor practice case against Respondent. On the issue raised therein by Respondent, that it was not a successor to the New Jersey corporation, Wenzer testified that after Respondent took over its operation, there was no change at Restaurant 8N, either in respect to personnel, management , menus, physical equip- ment, supplies, or in any other regard. The parties to the former case stipulated in respect to the testimony of Lois Burkert, that her testimony "would be substan- tially the same as the prior employees Mendoker and Wenzer." At the time of the previous hearing, Wenzer had been employed by Respondent and its predecessor as a waitress for about 10 years, and Burkert had been so em- ployed as a cashier for about 31/2 years. Both were at that time on leave of absence from Respondent's employ, Wenzer, because of recent major surgery, and Burkert, because of emergency hospitalization for thrombophlebitis. After the hearing in the former case, when, upon their physicians' advice that they could work again, they sought to return to their jobs, both were denied reemployment.5 1. The basic issue to be resolved The General Counsel alleges that the Respondent's refusal to reemploy Wenzer and Burkert was motivated by their activities on behalf of and their membership in the Union, and their testimony against Respondent in the previous unfair labor practice case. Respondent, on the other hand, maintains that Wenzer and Biirkert are still carried on Respondent's records as employees on leave status, and that its failure to utilize their services is in no way related either to animus against the Union or hostility to these employees because of their testimony in the earlier case, but solely because there was "no spot" for them at the time they sought to return to work due to a seasonal decline in business Although Respondent professes to be willing to reemploy Wenzer and Burkert as soon as a vacancy occurs for which they are qualified, Respondent had not recalled either of them at the time of the hearing in this case. An examination of the record discloses the following in respect to the employment of Wenzer and Burkert and their efforts to resume their employment at the con- clusion of their illnesses. 2 Wenzer's employment record with Respondent and its predecessor corporation, and her unsuccessful effort to return to work after her sick leave Vera Wenzer worked at the counter at Respondent's Restaurant 8N. As noted above she had been employed by Respondent and its predecessor, the New Jersey corporation, at Howard Johnson restaurants for 10 years. In January 1961, Wenzer and another employee, Margaret Mendoker, requested the Union to organize the employees of Restaurant 8N. Thereafter, Wenzer solicited signatures to union I in view of the above Board decision, I find and conclude that the Respondent's like contention in this case, that it is not an employer within the meaning of the Act because it is performing functions of the New Jersey Turnpike Authority, is without merit. 5 Wenzer sought to return on October 16, Burkert on November 21 HOWARD JOHNSON COMPANY 551 authorization cards. The New Jersey corporation campaigned actively against the Union. Wenzer was an observer for the Union at the election. After the Union's certification, she was a member of the Union's negotiating committee which met in May and June with the New Jersey corporation's representatives in the unsuccessful effort to negotiate a collective-bargaining contract. On July 17, Wenzer notified Respondent's hostess, Lillian Makara,6 that she had to go on leave of absence for an indefinite period to undergo "major surgery " On October 1, after surgery and convalescence, Wenzer notified Makara that she had been advised by her doctor that she could return to work on October 16. Makara said, "All right." 7 A few days later, at the request of Wenzer, Margaret Mendoker reminded Makara that Wenzer was returning to work on October 16 Makara replied that she already knew, and that she had a notation of it "marked out back." On or about October 9 or 10 Wenzer visited Restaurant 8N to make arrangements with Margaret Mendoker to attend the hearing in the prior unfair labor practice case against Respondent. During this visit, Makara quipped to Wenzer, "Have you got your working shoes ready for Monday?" Wenzer replied, "I have already taken them out of moth balls." a As noted above, on October 11, Wenzer testified in the Board hearing as a witness against Respondent. On October 16, Wenzer reported for work in her uniform about 6:40 a.m.,9 hung up her hat and coat, and proceeded to set out silverware and supplies at her regular station. She then went to the back of the restaurant and observed for the first time that her name was not on the schedule to work that day. Believing this to be an oversight, she waited for Morris Diamond, the restaurant manager, to arrive. When he did about 6:55, she told Diamond her name was not on the schedule. Diamond replied, "Yes, I know." Wenzer asked, "What does this mean?" Diamond re- sponded, "There is no spot for you now." He suggested that Wenzer go home. A short time, later, in Mendoker's presence, Wenzer asked Diamond when he would have a spot for her. Diamond replied, "I really don't know." Wenzer then went home, telephoned Makara, and inquired regarding the absence of her name from the schedule Makara replied, "There isn't any spot for you." She also told Wenzer that she "didn't know when there would be one." 3. Burkert's employment record with Respondent, and her unsuccessful effort to resume work after her illness Lois Burkert was employed as a daytime cashier by Respondent and its predecessor corporation since April 1958. She joined the Union after the Board election on March 7. On August 21, Burkert was rushed to the hospital. Through her husband, Burkert notified Respondent's Restaurant Manager Diamond that she was in the hospital suffering from thrombophlebitis, and that, according to the doctor's prog- nosis, she would not be able to return to work for about 3 months. In September, Burkert called Manager Diamond at Restaurant 8N to recommend a girl for em- ployment Diamond inquired about Burkert's health, and suggested that she not return until she was "good and well" because her condition was serious and not one with which "to fool around." As noted above, on October 12, Burkert attended the Board hearing to testify, on behalf of the General Counsel, in the previous unfair labor practice case against Respondent, and her testimony was stipulated by the parties. According to Burkert's uncontradicted testimony, about October 19, she visited Restaurant 8N and had a conversation with Hostess Makara, one of Respondent's supervisors. Makara said, "You were at the hearing [of the 8( a)(5) case], weren't you " Burkert responded in the affirmative. Makara then inquired when Burkert would return to work. Burkert replied that she definitely planned to return to work on November 21. Makara asked Burkert, "Why don't you wait until after [Thanks- 9 Although Respondent refused to concede that Makara is a supervisor within the mean- ing of the Act the uncontradicted record shows that her duties include the preparation of a weekly schedule by which she assigns the hours and days that waitresses and other employees work, that she has authority to give employees days off from work, and that, in the exercise of her duties, she exercises independent judgment. Accordingly, I find and conclude that Makara is a supervisor within the meaning of Section 2(11) of the Act. 7 There is a conflict in the record as to whether Wenzer or Makara then made a nota- tion on the latter's locker of the date on which Wenzer was to return Since there is no dispute that such a notation was made, I deem it unnecessary to resolve the conflict as to who made it 8 The foreeoine finding is based on the uncontradicted and credited testimony of Wenzer and Margaret Mendoker 0 Her regular hours were 7 a in. to 3 p m 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD giving]." Burkert responded that she preferred to work during the holiday because her husband and son would be away from home. According to the credited testi- mony of Lois Burkert and Vera Wenzer, on November 13, Burkert telephoned Respondent's Manager Diamond from the home of Wenzer,l° and told him that her doctor had authorized her to return to work on November 21. Diamond replied, "Well, we have no spot for you on the schedule ." Burkert asked , "What do you mean ? I have seniority over the other girls that are there. Can't you go by seniority?" Diamond replied that they could apply seniority, but that they were not going to do so. He suggested that if Burkert did not want to take his word for it, she could call the main office and speak to Mr. Caldon . 11 Burkert called Caldon the same day and complained about Diamond's refusal to reinstate her. Caldon promised to look into the matter . A few days later, Burkert called Diamond to inquire whether Caldon had contacted him. Diamond replied he had not. She asked Diamond whether this meant that matters stood the same way . He replied, "Yes " That same day, Burkert again called Caldon and was advised that because she had been out for such a long time, it would not be fair to ask other girls to leave so that she could come back. Burkert then requested a layoff slip so that she could apply for unemployment compensation . Caldon suggested she ask Diamond for it On November 20 or 21, Burkert visited the restaurant to ask Diamond for the layoff slip. On this occasion, Diamond said, "You know, Lois, you told me-that you weren't coming back to work." She replied, "You know that isn't true." 4. Respondent's policy and past practice in respect to leaves of absence As stated by its Labor Counsel Steele, Respondent's policy in respect to the re- employment of persons who take extended leaves of absence is as follows: it is our policy, to rehire any girls or any of our personnel who have been out for any period of time for whatever reason, so long as . . . their conduct and employment has been in the best interests of the Company.12 We are glad to get them back because we have trained them in our standards and particularly when the summer months come along, we like to have a back- log of these people whom we can call upon to help us through our busy period, so when we speak about leave of absence, we don't have any clearly defined leave of absence program whereby an employee can leave our employ for personal reasons and stay out an indefinite length of time. Notwithstanding Caldon's statement to Burkert which , inter alia, ascribed the length of her leave of absence as a reason for not reinstating her, and Steele's statement of the Company's policy which implies that Respondent has no policy which permits employees to "stay out an indefinite length of time" and expect reinstatement, the record shows that except for the last leaves of Wenzer and Burkett , no employee was ever before refused reinstatement by Respondent or its predecessor corporation when the employee sought to return to work after leave. Thus, in July and August 1960, Wenzer was out for 5 or 6 weeks to receive injections in her legs for varicose veins. At the conclusion of that leave, she was reinstated to her job Burkert had been on leave on two previous occasions , once in October 1959, when she was hospitalized for the removal of kidney stones, and again in May 1960, when she was out for "minor surgery." On each of these occasions, Burkert was out for 4 or more weeks and was reinstated to her job at the conclusion of her convalescence . The record further shows that other employees who went on extended leave, including Wilma Jacobs and Betty Ultsh, were returned to work at the conclusion of such leave. Respondent offered no proof that any employee was ever denied reemployment because of either the length or the indefinite nature of such employee 's leave of absence Moreover, the Respondent was quite obviously not concerned with the length of the instant leave of absence of either Burkert or Wenzer. Thus, as noted above, Respondent's Manager Diamond had suggested to Burkert that she stay out as long as necessary to get "good and well." Similarly , when on October 1 Wenzer notified Hostess Makara that she was returning on October 16, the latter gave no indication that there was any question regarding Wenzer's return because of the length of time she had been out on leave, but merely said, "All right." On the io Wenzer listened to the conversation on an extension telephone. n Benton Caldon , Respondent 's director of operations on the New Jersey Turnpike. 12 Respondent does not contend that Wenzer or Burkert were other than satisfactory employees , or that their "conduct and employment " was other than "in the best interests of the Company " HOWARD JOHNSON COMPANY 553 contrary, Makara indicated on October 9 or 10 when she asked Wenzer, "Have you got your working shoes ready for Monday?" that Wenzer's job was awaiting her. Respondent does not contend, and there is no proof in the record, that either Burkert or Wenzer extended her leave of absence beyond the time necessary to recover from their respective conditions. In view of all the foregoing, including Respondent's policy and past practice in respect to leaves of absence, I conclude that Respondent's denial of reinstatement to Wenzer and Burkert could not reason- ably have been based on the length of their leaves of absence, and that the assertion of this reason was pretextual. 5. Other reasons asserted by Respondent for its alleged inability to reinstate Wenzer and Burkert Respondent asserted several other reasons for its professed inability to reinstate Burkert and Wenzer despite its alleged readiness to reemploy them when there were vacancies for their qualifications. The Respondent first contends that its busi- ness is seasonal, that its personnel requirements are substantially lower during slack seasons, and that Burkert and Wenzer applied for reinstatement during a slow period when no vacanacies were available for them. Respondent further contends that Burkert and Wenzer were "inflexible" in respect to the hours and days on which they were willing to work, and that these "unreasonable conditions" could not be met by Respondent "in the winter months." a. Respondent's contention that jobs were not available for Wenzer and Burkert because they sought to return to work during the slack season The record clearly shows that Respondent's business, which caters primarily, if not exclusively, to the motoring public, is seasonal in nature-that its business is heaviest in the summertime when the public takes vacations and travels the most, and slowest in the winter when the weather is poor and motoring by the public is at its lowest. Thus, Respondent's records show that in July 1961, Restaurant 8N did a gross business of $59,967, in October sales dropped to $39,217, and in No- vember, the further decreased to $35,490. Respondent's Area Supervisor Robert Moinahan testified that Restaurant 8N employs about 50 percent fewer people in winter than it does in summer. However, during the summer months the Respond- ent employs many school and college girls who return to their studies when school reopens in the fall. Moinahan testified that it was also necessary to lay off some employees during the winter months. Respondent brought no records to the hear- ing to show the comparative number of employees utilized by Respondent during the summer and winter months, and offered no explanation for its failure to produce such records. In the absence of such records, the extent to which the exodus of school girls was in itself sufficient to reduce Respondent's personnel complement to its obviously lesser fall and winter requirements cannot be assessed. Under these circumstances, the inference is permissible that the records, if produced, would not support the testimony of Moinahan regarding the necessity for layoffs.13 How- ever, the record shows, independently of any inference, that during the fall and win- ter of 1961, notwithstanding the slack season, Respondent hired five or six addi- tional waitresses.14 In any event, the record is undisputed that Wenzer's employment had never before been affected by seasonal declines. Thus, according to her uncontradicted and credited testimony, she had never been laid off in prior years, and except for periods of illness, she had worked throughout the preceding winter of 1960. In respect to Burkert and the other cashiers, according to Burkert's uncontradicted testimony, the practice in prior years had been to divide the winter work equally among them by having each cashier take off in turn for a period of 6 weeks.15 During ,the previous winter, Burkert had worked during November and December 1960. Moreover, in 1959, Burkert had been reinstated to her job in November, a slack period, after her hospitalization for the removal of kidney stones. From the is See 2 Wlgmore, Evidence (3d ed), § 295; see also Whitin Machine Works, 100 NLRB 279, 285; Hilma H Erickson and Erik E. Erikson d/b/a Detroit Plastic Products Company, et al , 121 NLRB 448, 499 14 The details of such new hires will be reported hereinafter in connection with another contention of Respondent "Respondent's Manager Diamond testified that he did not want this practice repeated in 1961, but he offered no reason or explanation for his decision to terminate the practice. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing, it is quite obvious and I conclude that the failure of Respondent to reinstate either Wenzer or Burkert could not reasonably have been motivated by the seasonal nature of its business, and that the assignment of this reason for its alleged inability to reemploy them is merely another pretext on the part of Re- spondent. b. The alleged "inflexibility" of Burkert and Wenzer in respect to the hours and days that they were willing to work Respondent's further contention, that it was unable to reinstate Wenzer and Burkert because they were "inflexible" in regard to the hours and days that they were willing to work, may be summarized as follows: Before they went on leave of absence, Wenzer and Burkert worked only 4 days each week on the 7 a m. to 3 p.m. shift; they were both unwilling to work on weekends or on any other shift; at the time they sought to return to work, and ever since, Respondent has had no vacancies for the particular schedules that they preferred to work, at all the mate- rial times, Respondent has had vacancies for them on other shifts and weekends, and would have employed them if they had been more "flexible" and had not im- posed such "unreasonable conditions" on their hours and days of work. Since Wenzer and Burkert occupied different jobs, analysis of this contention requires separate consideration of the record in respect to each of these alleged discriminatees. (1) Burkert's alleged inflexibility in respect to days and hours There is no dispute in the record that before she became ill, Burkert, a cashier, worked 4 days a week, on Mondays, Tuesdays, Thursdays, and Fridays, on the 7 a.m. to 3 p.m. shift i6 Occasionally, she worked a 5-day week, and on request, in emergencies, she worked on Saturdays. Respondent offered no testimony to the contrary and brought no records to the hearing, although such were admittedly available, to disprove Burkert's testimony in this regard. I therefore conclude that there is nothing in Burkert's prior work record to support Respondent's contention that she was "inflexible" in respect to her days of work. In respect to the hours which she was willing to work, Respondent's Manager Diamond testified that in September, when Burkert came into the restaurant to pick up an insurance check, he asked her wheher she would be available for the 3 to 11 shift, or weekend work, and that she replied in the negative. According to Diamond, this conversation followed one a few days earlier, in which Burkert had allegedly said that she had been advised by her doctor that she would not "eve?" be able to come to work. When asked why, in view of her statement to him, he continued to carry Burkert on his employment roll, contrary to the general practice in such cases, Diamond contradicted his testimony regarding the earlier conversation, and testified that "she said that she probably couldn't come back and work the hours that she even did before, and further that she couldn't work three to eleven or weekends." Aside from the obvious contradiction in his testimony noted above, it is beyond belief that Diamond would have asked an employee who had just told him she was physically unable to work any more, whether she would work less desirable hours 17 Burkert denied that she had ever told Diamond that she would not be able to return to work, denied that she was ever asked by Diamond whether she would be willing to work a 5-day week or on weekends, and also denied that she was ever offered a job on a different shift. I was favorably impressed with Burkert's forthrightness, honesty, and demeanor on the witness stand, and I credit her denials. Burkert credibly testified that she would have accepted employment on another shift if it had been offered. Significancy, no witness for Respondent, not even Diamond, testified that any job on any shift was offered to Burkert when, on November 13, she notified Diamond that she would be able to return to work on November 21. Moreover, no offer of any job was ever made to Burkert there- after, even when she protested Respondent's refusal to reinstate her to Caldon, its director of Turnpike operations, or when later, as noted hereinafter, a vacancy oc- 18 Burkert testified without contradiction that when she first began to work at Respond- ent's restaurant, she had worked 5 days a week, the same as all other full-time employees. The record Is silent as to whether the reduction In her working days was pursuant to Burkert's renuest, or by direction of the emnloyer 17 Diamond's testimony in other respects was equally confused, self-contradictory, con- trary to his affidavit to the Board, implausible, and contrary to other witnesses for the Respondent, and I therefore do not credit it, except where it Is an admission against Interest, or accords with other testimony which I credit HOWARD JOHNSON COMPANY 555 curred. From the foregoing, I conclude that the credible record does not support Respondent's contention that Burkert was either "inflexible" or unwilling to work on days and hours other than her previous schedule. (2) Availability of work for Burkert The record likewise fails to support Respondent's final contention in respect to Burkert that it could not restore her to her former job at her regular hours without discharging another employee to do so 18 Thus, the record shows that Respondent hired no replacement for Burkert when she suddenly took ill, but merely transferred Violet Sodowski, a cashier with less seniority than Burkert, from the 3 to 11 shift, to Burkert's day shift job, and transferred Peggy Gandy, who worked in the gift shop at Respondent's restaurant, to take Sodowski's place. Accordingly, there was absolutely no reason, as far as the credible record shows, why Respondent could not have restored the status quo by merely putting all of these employees back in their original positions. Diamond testified that the reason he did not do so was that Burkert was only willing to work 4 days, and that he would then have been required to hire a girl for 1 day. I have hereinbefore found that Burkert had worked 5 days per week in the past, and that she had not been asked, and had not refused to work 5 days per week when she returned. Moreover, even on Diamond's discredited testimony, Burkert had been questioned regarding her availability for weekend work in September, 2 months before she was physically able to work again. So far as the record shows, she was never told, until the hearing herein, that work was available if she would work 5 days per week, or weekends, or on another shift. I therefore do not believe Diamond's asserted reason for not restoring Burkert, Sodowski, and Gandy to the jobs which each held before Burkert took ill. Indeed, because of its failure to do so, Respondent lost the services of Peggy Gandy on the 3 to I1 shift because Gandy wanted to work only 3 days a week, and quit when she learned that Burkert was not returning and that she would have to continue to work full weeks.19 After Gandy's termination, Respondent hired an- other cashier, Ann Kulesa, to take Gandy's place, but made no effort to ascertain whether Burkert would take the position. On the foregoing record, I conclude that at all material times there existed no impediment to Burkert's reinstatement to her former position without discharging anyone, and I, therefore, further conclude that Caldon's assignment of this reason to Burkert for Respondent's alleged inability to reinstate her was an apparent pretext to conceal the true reason or reasons therefor. (3) Wenzer's alleged inflexibility in respect to days and hours In respect to Wenzer's alleged "inflexibility" as to hours and days which she was willing to work, the record reveals the following: Before her departure, Wenzer regularly worked 4 days a week, on Mondays, Tuesdays, Thursdays, and Fridays, on the 7 a m. to 3 p m. shift. Wenzer testified that she also worked Saturdays when she was so scheduled, and that she occasionally worked on Sundays when requested to do so. She further testified that she never refused any request to work unless she had a previous engagement which could not be broken and that her timecards would disclose that she has occasionally worked 5 and 6 days a week According to Wenzer's uncontradicted testimony, the only condition which she imposed at the time she began to work in Restaurant 8N was that she wanted Wednesdays off, because that was the only day in the week that her husband did not work. Wenzer further testified that she had never been asked to work on the 3 to 11 shift and, therefore, had never had an opportunity to refuse work on that shift. When asked whether she now stood ready to work other shifts, Wenzer frankly responded, "If it is so ruled . . I will take it, but if I don't have to, I would rather not because, as I said, I feel it is further discrimination." Hostess Makara admitted that at the time Wenzer advised her that she was ready to return to work, she imposed no conditions in respect to days or time. Makara testified, however, that she knew that Wenzer would not work Thursdays, Sundays, or on the 3 to 11 shift because she had refused requests to do so in the Past On cross-examination Makara testified that the last such request was "a long time" ago. 29 Ac noted above, this was the reason given by Caidon to Burkert when she protested Diamond'e refusal to reinstate her to her former lob 19 Diamond testified that he told Candy that she would have to work the schedules which Respondent set, "as we had nobody else available " Obviously this was not so since Burkert was available, and the difficulty could have been eliminated by restoring her to her former job .556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's Manager Diamond testified that about a week or two before Octo- ber 16, the date on which Wenzer attempted to return, he asked her whether she would come in Saturdays or Sundays, or on the 3 to 11 shift, and that Wenzer replied in the negative. Although admittedly available, Respondent brought no records to the hearing to negate Wenzer's testimony that she had previously worked on Thursdays, Sundays, and on occasion, 5 and 6 days a week, and it offered no explanation for its failure to do so.20 I was favorably impressed with the forthrightness, frankness, apparent honesty, and demeanor of Wenzer on the witness stand. 1 have already indicated my lack of regard for the credibility of Manager Diamond's testimony, and I was similarly unimpressed with that of Makara 21 For all the foregoing reasons, including Re- spondent's failure to produce its records of Wenzer's days and hours of work,22 I do not credit Diamond's and Makara's testimony that Wenzer never worked Thursdays, and that she refused to work on Sundays, or on the 3 to 11 shift, and I credit the contrary testimony of Wenzer, that she cooperated with Respondent in respect to the days which she worked, and that she had not been asked to work on other than the day shift.23 Significantly, Respondent never apprised Wenzer on Octo- ber 16, or thereafter, that there were jobs available for her if she would work 5 days a week or on another shift, and no offer was ever made to Wenzer of any job on any shift. In view of all the foregoing, I conclude that the credible record does not support Respondent's contention that Wenzer was either "inflexible" or unwilling to work on days and hours other than her previous schedule. (4) Availability of work for Wenzer As noted above Respondent further contends that on and since October 16, the date on which Wenzer attempted to return to work, there has been no vacancy avail- able for her. In support of this contention, Hostess Makara testified on direct examination that Respondent has had "no opening" for Wenzer on daywork since October 16.24 However neither she, nor any other witness for Respondent, offered any testimony in respect to which employee was assigned to occupy Wenzer's regular station at the counter when Wenzer went to the hospital, and none that Respondent, on October 16, utilized fewer employees at the counter on the day shift.25 Moreover the record is likewise barren of any explanation why Wenzer could not have been restored to her regular station at the counter in the place of whoever took her place. The only explanation offered by Makara for not sched- uling Wenzer for the week beginning October 16 was that she had her "regular girls" who work "five days a week," that Wenzer was unwilling to work more than 4 days a week, and that it would be "unfair" to cut the other girls down to 4 days in order to make room for Wenzer. I have already indicated my lack of credence in Makara's testimony that Wenzer was unwilling to work more than 4 days a week. Indeed, the schedules produced by Respondent disclose that all the first-shift counter girls generally worked only 4 days per week, and less, on some occasions. It is, therefore, quite apparent that, contrary to the implication of Makara's testimony, 2D The only records produced by Respondent in respect to employment of waitresses and counter girls were the work schedules of the waitresses and counter girls for the period between the week ending October 1, 1961, and January 14, 1962, inclusive n E g , Makara at first evaded a direct answer to the question of what discussion she had with Diamond regarding Wenzer's return to work, by testifying , "He [Diamond] has nothing to say about the girls' schedules," then denied she had such a discussion, and then admitted that she had one, but only told Diamond that Wenzer wanted to return. In addition, as reported hereinafter, Makara at first denied, but later, on cross-examina- tion, admitted that there were several job vacancies which could have been offered to Wenzer, and her attempted explanations for her failure to do so were implausible and con- tradictory. 22 See footnote 13, supra. sa As noted above, Wenzer , although she regarded it as discriminatory, indicated her willingness to work on another shift "if it is so ruled " 21 Makara admitted that there have always been job vacancies on the 3 to 11 shift. She testified that she did not offer any of these jobs to Wenzer because "she knew" the latter would refuse to work those hours. In view of my conclusion hereinabove that Wenner had cooperated in respect to days and hours of work, and had never refused to work on the 3 to 11 shift, it follows that I do not credit Makara's explanation of her failure to offer any of such jobs to Wenzer. 25 As found above , Wenzer's employment had never before been affected by seasonal declines in business. HOWARD JOHNSON COMPANY 557 Wenzer, a counter girl whose employment at Restaurant 8N dates to the time when the restaurant first opened, was also a "regular" girl. Moreover, and also con- trary to Makara's testimony, Respondent's schedule for the week when Wenzer attempted to return to work discloses that only 5 out of the 12 girls who worked days that week, worked a full 5^day week.26 In view of the foregoing, it is fairly obvious that no credence can be placed on the explanation offered by Makara for the failure to schedule Wenzer for the week commencing on October 16. Moreover, the record likewise refutes Makara's testimony on direct examination that since October 16, there were no day-job vacancies to which Wenzer could be reinstated. Makara admitted on cross-examination that Doris Williams, a new employee who had been placed "on call," 27 was put to work on days in December "during the holidays when business picked up." When Makara was asked why Wenzer was not offered that job, she testified that the opening was only for 2 weeks. Respondent's schedules belie her testimony. They show that Williams was put back to work on November 5 when business was slow, not during the holidays when business picked up, that Williams thereafter worked regularly on days for at least 10 weeks, not 2 weeks, and that she apparently was still working at the time of the hearing.28 On another occasion during cross-examination, Makara testified that the reason Williams' job was not offered to Wenzer was that Williams was willing to work Saturdays, Sundays, and on any station and that Wenzer was not. I have already enumerated my reasons for not believing either Makara's or Diamond's testimony in respect to Wenzer's alleged "inflexibility." In view of the quite apparent unreliability of her testimony, and the shifting and changing reasons asserted by Makara for not offereing any job to Wenzer, I also place no credence in this reason for not doing so. Moreover the record discloses that in addition to Williams, Re- spondent has used a number of newly hired waitresses on the day shift since October 16.29 When asked why Wenzer, a long-time employee, was not reinstated in place of one of these new employees, Makara explained that one of them (Newton) needed the job more than Wenzer did. No explanation was offered by Makara in respect to the other two. Makara finally admitted that if she had made an effort, she could have found work for Wenzer on the day shift. Then, when asked why she did not make the effort, Makara again repeated the discredited reason that Wenzer was only willing to work on certain days. On the foregoing record, and in the light of Respondent's policy and uniform practice of reinstating experienced employees to their former jobs after leaves of absence, I am persuaded and find that the various reasons asserted by Respondent for its alleged inability to reinstate Wenzer, an admittedly satisfactory employee, to her former job or to the other day vacancies shown by the record, are quite apparent pretexts3o 6. Concluding findings in respect to Respondent's refusal to reinstate Wenzer and Burkert In the light of Respondent's policy and previously uniform practice of reinstating experienced and satisfactory employees such as Wenzer and Burkert, the availability of jobs which they could have filled, the failure of Respondent to advise them of such job openings, and the pretextual reasons asserted by Respondent for not reinstating them, Respondent's motivation for so doing is quite apparent. Respondent was opposed to bargaining with the certified representative of its employees, and sought -" The rest worked from 1 to 4 days 27 An employee who is "on call" is one who is in a standby status for use in the event of a sudden vacancy or other emergency. "The last schedule produced by Respondent, covering the week ending January 14, 1962, disclosed that Williams was still working on that date. 29 Betty Pischell was hired in June or July, and Ruth Sawyer and Betty Newton started to work during the week ending October 8. The latter two were hired during the period when, according to Respondent's other testimony, business is slow and it needs fewer employees. In addition, on October 16, the date when Respondent asserted It had "no spot" for Wenzer, Respondent hired two waitresses, Janet Schied and Gladys Kohen, and on January 8, 1962, it hired Joan Curtis, all for the second shift. None of these Jobs were offered to Wenzer. m Even assuming, arguendo, that Respondent had a valid reason for believing that these two employees preferred to work certain hours and days, it is significant that they were never advised until the hearing herein, that employment was available to them on other hours or days, and thereby were precluded from the opportunity of accepting such employment. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to evade its obligation to do so by , inter alia, contending that it was not a successor to the New Jersey corporation . In the resulting unfair labor practice proceeding against Respondent , Burkert and Wenzer gave testimony on the basis of which the Board concluded that Respondent's said contention was without substance or merit, and that it had violated Section 8 (a)(5) and ( 1) of the Act. The Respondent's representatives were present at the former Board hearing , and, therefore , Respondent had knowledge that Wenzer and Burkert so testified .31 Before they testified, there never was any question concerning Burkert's and Wenzer 's reinstatement at the conclusion of their convalescence . Thus, as noted above , Burkert was told by Manager Diamond to stay out as long as necessary to get "good and well " Similarly, when Wenzer told Hostess Makara that she was returning , the latter merely said, "All right," and asked her whether she had her "working shoes" ready . Nothing changed thereafter except that they gave testimony in the Board proceeding against Respondent. There is, of course, no direct evidence in the record that Respondent's refusal to reinstate Wenzer and Burkert to their former jobs was motivated by their testimony against Respondent in the earlier Board proceeding, but such direct evidence is "rarely obtainable." 32 There is , however, uncontroverted testimony in the record from which I am impelled to the inference that, in denying them reinstatement. Manager Diamond was following "orders " from his supervisors . Thus, on October 16, an hour after Wenzer went home, Mendoker said to Diamond, "I think it was a shame, the trick you pulled on Vera." Diamond replied, "Well you are on one side and I am on the other side and I can't say too much" Mendoker said, "I don't blame you, Mr. Diamond . I realize you get your orders just like we do " Diamond replied, "I am glad you feel that way. Let's say I didn't create the situation." 33 Moreover, Respondent's denial of discriminatory motivation for its failure to re- instate Wenzer and Burkert , and the pretextual reasons and incredible testimony which it offered in support of its alleged inability to reemploy them despite its professed readiness to do so, strongly suggests that "there is no alternative but to assume the truth of what [ it] denies " 34 For all the foregoing reasons , I infer and conclude that Respondent denied re- instatement to Wenzer and Burkert because they testified against it in the earlier Board case, and that the Respondent thereby engaged in unfair labor practices within the meaning of Section 8(a) (3), (4), and (1 ) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section 1, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States , and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily refused to reinstate Vera Wenzer and Lois Burkert, I will recommend that the Respondent be ordered to offer them immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and privileges , and make them whole for any loss of earnings they may have suffered because of the dis- crimination against them by the payment to each of a sum of money equal to the amount she normally would have earned as wages from the date she requested re- instatement to the date of the offer of reinstatement , less her net earnings during said period, with back pay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. a Moreover Operations Director Caldon and Hostess Makara knew that Burkert had testified before she sought reinstatement, and Manager Diamond similarly knew about Wenzer's 9ttend9neP at the Board hearing 12 Hartsell AfilTs Company v N L I? B , 111 F 2d 291 , 293 (C A 4) °Dlamond 's suggestion to P,nrkert, when he told her there was "no spot" for her, that she call the mom office and sneak to Caldon if she did not "take his word for It," further snnnorts the inference that Diamond was acting pursuant to orders in denying reinstate- ment to these two emplnvees of Dyer v DfcDovaall et al , 201 F 2d 265 , 269 ; N L R B v Walton Manufacturing Company R Loganville Pants Co , 369 U S 404 HOWARD JOHNSON COMPANY 559 I shall also recommend that the Respondent make available to the Board, upon request, payroll and all other records necessary to facilitate the determination of the amounts due under this recommended remedy. In view of the nature of the unfair labor practices committed, the commission of similar unfair labor practices reasonably may be anticipated. I shall therefore recommend that the Respondent be ordered to cease and desist from in any like or related manner infringing upon rights guaranteed to their employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By refusing and failing to reinstate Vera Wenzer and Lois Burkert because they testified in a prior Board proceeding against Respondent, thereby also discouraging membership in a labor organization, and interfering with, restraining, and coercing employees in the exercise of their rights under the Act, Respondent had engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(4), (3), and (1) and Section 2(6) and (7) 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, Howard Johnson Company, its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Refusing or failing to reinstate or otherwise discriminating against an em- ployee because he has given testimony in any proceeding under the Act. (b) Discouraging membership in and activities on behalf of Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (c) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organi- zations, to join or assist Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to Vera Wenzer and Lois Burkert immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination against them, as provided in "The Remedy" section of the Intermediate Report (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records, as set forth in "The Remedy" section of the Intermediate Report. (c) Post at its Restaurant 8N at Milltown, New Jersey, copies of the attached notice marked "Appendix A." 35 Copies of said notice, to be furnished by the Regional Director for the Twenty-second Region, shall, after being duly signed by w In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's order be enforced by a decree of a United States Court of Appeals, the words "Puissant to a Decree of the United States Court of Appeals, Enforcing an Ordei" shall be substituted for the words "Pursuant to a Decision and Order." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an authorized representative of the Respondent, be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for a period of 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered , defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-second Region, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recom- mended Order, what steps it has taken to comply herewith 36 ° In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read . "Notify said Regional Director, in writing, within 10 days from, the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT refuse or fail to reinstate, nor will we otherwise discriminate against any employee because he has given testimony in a proceeding under the National Labor Relations Act, as amended, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL NOT discourage membership in or activities on behalf of Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restau- rant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our em- ployees or in any other manner discriminating against our employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Hotel and Restaurant Employees and Bar- tenders Union, Local 4, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities. WE WILL offer to Vera Wenzer and Lois Burkert immediate and full rein- statement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become or remain or to refrain from becoming or remaining members of Hotel and Restaurant Employees and Bartenders Union, Local 4, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. HOWARD JOHNSON COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 744 Broad Street, Newark, New Jersey, Telephone Number, Market 4-6151, if they, have any questions concerning this notice or compliance with its provisions,