Post Houses, Inc.

POST HOUSES, INC. 1159 WE WILL NOT threaten employees with reprisals , in order to discourage union membership or activities. WE WILL NOT create the impression among our employees that we are engaging in surveillance of their union activities. WE WILL NOT in any other 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 the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection or to refrain from any or all such activities. WE WILL offer to Thomas Arrington , Rondy Tedder, Luke Warren, and Melvin Wood immediate and full reinstatement to their former or a sub- stantially equivalent position without prejudice to seniority and other rights and privileges and make them and John Pennell and David Martin whole for any loss of pay suffered as a result of the discrimination against them. SCHNEIDER MILLS, INC., AND JIMMY AND JOSH, INC., Employer. Dated-- ----------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1624 Wachobia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 2145. Post Houses, Inc. and Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL- CIO. Case 6-CA-3401. November 18, 1966 DECISION AND ORDER On July 5, 1966, Trial Examiner David S. Davidson issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Decision, a supporting brief, and a reply brief, and the Charging Party filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Exam- iner's Decision, the exceptions and briefs, and the entire record in the 161 NLRB No. 102. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' [The Board adopted the Trial Examiner 's Recommended Order with the following modification : [1. Add the following immediately below the signature line of the Appendix attached to the Trial Examiner 's Decision : [NoTE.-V\Te will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Serv- ice Act, as amended, after discharge from the Armed Forces.] 'While we agree with the Trial Examiner that Respondent unlawfully refused to bar- gain with the Union, we do not adopt his characterization of the unit for which bargain- ing was requested as an inappropriate one. Notwithstanding the inclusion of seasonal em- ployees therein, it was an essentially appropriate unit, and there was a sufficient identity between it and the unit, excluding seasonals, which the Trial Examiner considered ap- propriate to justify a conclusion that Respondent's refusal to bargain applied to both units. We also agree with the Trial Examiner that the student and other seasonal employees do not have a reasonable expectation of future employment. Accordingly, following long exist- ing Board policy, we would not afford them a voice in the selection of a bargaining repre- sentative and would not include them in the unit. We do not believe that such established precedent, set forth in the numerous cases cited by the Trial Examiner, should be reversed at this time. Member Brown agrees with the finding of a 8(a) (5) violation. However, he would include the seasonal employees in the bargaining unit, and count the authorization cards of Weldon Byers Ramsey, Linda Long, and Harold Miller, the validity of which the Trial Examiner did not decide. With the addition of these three cards, he finds that the Union represented a majority in the appropriate unit, which includes the seasonal employees, whether or not the seasonal employees are entitled to a voice in the selection of a bargain- ing representative, an issue which Member Brown need not decide, and he would order bargaining in a unit which includes seasonals. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on August 10, 1965, by Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, referred to herein as the Union, the General Counsel issued a complaint on November 16, 1965, against Respondent, Post Houses, Inc. The complaint alleges that Respondent violated Section 8(a)(1) of the Act by threats of reprisal, creating the impression of surveillance of the union activities of its employees, promising and granting wage increases, and interrogating employ- ees concerning union membership, activity, and sympathies. The complaint alleges further that on July 4, 1965, Respondent discriminatorily discharged Joseph Duffy in violation of Section 8(a)(3) and that since on or about July 8, 1965, when the Union represented a majority of its employees in an appropriate unit, Respondent refused to recognize and bargain with the Union in violation of Section 8(a)(5) of the Act. Respondent denies the commission of any unfair labor practices. A hearing was held before Trial Examiner David S. Davidson in Bedford, Penn- sylvania, on January 25 and 26, 1966, at which all parties were represented. At the close of the hearing oral argument was waived, and the parties were given leave to file briefs, which all parties filed.' 1 Pursuant to stipulation of the parties at the hearing, Respondent's Exhibit 11, a list of employees and their dates of hire, was submitted after the close of the hearing. As part of this exhibit, Respondent submitted a list correcting certain dates of hire which were stipulated at the hearing. As the other parties do not object to its receipt, the list of cor- rections is received as part of the exhibit. POST HOUSES, INC. 1161 Upon the entire . record in this case and from my observation of the witnesses and their demeanor while testifying, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Delaware corporation , is engaged in the operation of restaurants in a number of States, including one at Breezewood , Pennsylvania, the only location involved herein. Its principal office is located in Detroit, Michigan. During the 12-month period preceding issuance of the complaint , a representative period, Respondent's gross volume of business exceeded $25 million. During the same period, Respondent at its various restaurants received goods and materials valued in excess of $100,000 from across State lines . I find, and Respondent admits, that Respondent is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR UNION INVOLVED Hotel & Restaurant Employees and Bartenders International Union , Local Union No. 397, AFL-CIO, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and undisputed facts Respondent's Breezewood restaurant opened in May 1964. It was designed pri- marily to serve passengers on scheduled and chartered buses rather than to attract local trade . As bus traffic stopping at Breezewood increases substantially during the summer months, the restaurant has employed a number of seasonal employees, most of whom were students, in addition to regular year-round employees. At the restaurant Respondent operates a bake shop in which it bakes sweet rolls, dough- nuts, and other items. Initially, the output of the bake shop was used entirely in connection with Respondent's restaurant operations , but in December 1964, Respondent started to sell sweet rolls and doughnuts to other restaurants in Breezewood.2 From the outset, as employees were hired to work at the restaurant, they were informed that it is Respondent's policy to evaluate employee performance at the end of 30 days, 6 months, and 1 year of employment and from year to year there- after. Employees rated satisfactory or better in their evaluation were to be given increases shortly thereafter following processing of requests through Respondent's home office in Detroit . Those rated unsatisfactory were to be put on probation and discharged if their performance did not improve. Insofar as the record indicates, until May 1965, the evaluation policy was regularly followed. In early May 1965, the Union began a campaign to organize the employees at the Breezewood restaurant. Among the earliest signers of cards authorizing the Union to represent them as collective -bargaining representative were two brothers, Joseph Duffy and Jack Duffy, both of whom were employed by Respondent as bakers. During the next 2 months, a number of other employees also signed cards. Before June 15, William Graves, manager of the restaurant learned of the Union's campaign . He also learned that Joseph Duffy and Vera Chirdon,3 another employee, were active in the campaign . About this time Graves alerted Division Manager Moore and Regional Manager DeSay, whose offices were not in Breeze- wood, to the activity. In reporting to them, Graves described the campaign as "serious." 4 DeSay and Graves decided that Graves should instruct the supervisors at Breeze- wood as to their rights with respect to the union activities , and he did so. On June 23 , Moore and DeSay paid a visit to the Breezewood restaurant. They traveled to Breezewood together, arriving late in the evening. On the way, they discussed how the Union would affect Respondent, what they had done wrong, 2 The Breezewood restaurant is the only restaurant in Respondent 's system which en- gages in this activity. 8 Mrs. Chirdon was promoted to a supervisory position in August 1965. s Graves testified that by this he meant that there was a good chance that the employ- ees would be organized. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and, as Moore put it, what-they could do to keep it from being necessary for the employees to have a union. Failing to obtain motel accommodations for the night upon their arrival at Breezewood, they decided to stay at the restaurant and work through the night. During the night they inspected personnel records and dis- covered that Graves had not completed the evaluations for a number of the employees who had been working at the restaurant for 1 year.5 The investigation revealed that Graves had started the evaluation reviews for those then due them in May but had only completed them for about a third of the group. During the night Moore and DeSay also talked with employees on the night shift and dis- covered that the employees were unhappy basically for two reasons. They did 'not like Kenneth Krebs, assistant manager of the Post House, and they were upset because the evaluations had not been completed.e' On the morning, of the June 24, Moore and DeSay spoke to Graves and reprimanded him for his failure to com- plete the required employee evaluations. Graves sought to excuse his tardiness on the ground that some of his help had been transferred from the restaurant and he was burdened with extra duties which kept him from completing the evaluations. Moore instructed Graves to finish them during the next 2 days. Moore and DeSay also discussed with Graves the union activity at the restaurant, the reasons for it, and what could be done about it. According to Moore, in connection with the union activities, they discussed getting company policies back into effect so that there would not be unrest and the employees would not need outside-help? While at Breezewood, Moore also talked to Krebs about the difficulties he was having in supervising other employees. Moore informed Krebs that he was being put on probation for 30 days and was assigned to work on the first shift with Manager Graves to see whether Graves could get him in line .8 On June 24 and 25, while Moore and DeSay were still in Breezewood, Graves proceeded to complete all the overdue employee evaluations and requested raises for all the employees evaluated, approximately 19 in number.9 During his evalu- ation interviews with employees, Graves did not mention the Union, and there is no indication that Respondent sought to capitalize upon the June 24 and 25 evalu- ations and the related increases in subsequent campaigning against the Union.io Shortly after the visit of Moore and DeSay to the restaurant, the sales of baked goods to other restaurants ended under circumstances which are in dispute and will be discussed below. On July 4, Graves notified Joseph Duffy that he was laid off "due to loss of our outside business." Graves also told Duffy at the time that s According to Moore, because the evaluation policy was new in the Company and be- cause the anniversary of the opening of the Ereezewood restaurant had just passed, he intended to check on the implementation of the evaluation policy regardless of the union activity at the Post House. . 8 There is no evidence that the Union was mentioned by Moore or DeSay in talking with the employees, and there is no allegation or, evidence that they engaged in unlawful in- terrogation of employees during their visit to the restaurant - 7 There is no indication that any policy other than that requiring employee evaluations had been neglected., 8 At the end of his probationary period, Moore and DeSay were of the opinion that Krebs was not making progress. They transferred him to Cleveland to give him a final chance before separating him in consideration of the fact that his wife was pregnant. Krebs' per- formance in Cleveland was unsatisfactory. After, 2 weeks Krebs was advised to take his vacation and see if he could straighten himself out. While on' vacation Krebs resigned. e The raises became effective about 2 to 4 weeks later due to normal delays in processing the requests through Respondent's home office. On cross-examination Graves was asked if all the requests for raises during this period were preceded by evaluation reviews. Graves initially answered affirmatively and then stated, "I Imagine I put some through without it." When asked further how many were put through without evaluation, he replied, "This is hard to say. There would be some " The record does not establish whether such raises were exceptional, and there is no further evidence with respect to such raises. As there is no evidence otherwise that any employee received an increase to which he was not en- titled under Respondent's established policy I find this testimony too fragmentary to con- clude that there was a deviation from policy in granting the increases. w During the months of July, August, and thereafter, following the Union's request for recognition and the filing of its representation petition, Respondent continued to conduct evaluations and grant increases as they became timely. POST HOUSES, INC. 1163 be had been thinking of recommending him for another raise,ii and that he would make every effort to bring him back on a job comparable to the baker's job if and when an opening arose. Two days later, on July 6, 1965, Union Business Agent Askew by letter to W. K. Hall,12 director of labor relations for Respondent's parent corporation, claimed to represent "a majority of your employees" at the Breezewood restaurant, offering to submit authorization cards to any third party for a check and requesting a meeting to negotiate a contract. By letter dated July 9, Hall replied: Your letter of July 6th, 1965, indicates you have signed membership cards from a majority of the employees at the Breezewood Post Houses operation. It is the Company's position that the matter of representation be established by an N.L.R.B. election. On July 16, 1965, Harvey Morse, an International representative of the Union's parent International, telephoned Hall, and orally requested recognition. Hall responded that he believed they should go to an election. The appropriateness of the unit for which the Union sought recognition was not questioned or discussed. At this time Morse also told Hall "that Mr. Graves had fired his number one boy, Joe Duffy." Morse asked Hall if Duffy could be put back to work at any work that was available. Hall replied that he knew nothing about it, but would investi- gate and call Morse back. Upon checking with Graves, Hall discovered that Duffy had seniority which Hall felt should have entitled Duffy to a lower rated job if there was no work for him as a baker. Hall believed that there must be something for Duffy at the peak of the summer, instructed Graves to find something for him, and told Morse that if Duffy wanted a lower rated job he could have it. Graves then offered Duffy a job as a porter at $1.10 an hour, 20 cents less than he had earned as a baker. Duffy accepted the offer, returned to work on July 20, and worked until mid-October when he left to take a better paying job.13 On July 19, 1965, the Union filed a petition in Case 6-RC-3898, in which it described as the appropriate unit: Included, All employees; Excluded, Office clerical, guards, gift shop, and supervisors as defined in the Act. A hearing on the representation petition was held on August 3, 1965. At the hearing Hall, who represented Respondent, took the position that seasonal employ- ees, substantial in number, should be excluded from the unit.14 Askew took the position implicit in the petition that seasonal employees should be included.15 The parties otherwise agreed as to the composition of the unit. No decision was ever issued in the representation case, apparently because of the charges and complaint herein. B. The alleged violations of Section 8(a) (1) 1. The violations attributed to Mrs. Foor The complaint alleges that Edna Foor, second shift supervisor, during June, threatened that Respondent might close or move the restaurant if the employees chose to be represented by the Union. Three employes, Yarlett, Edgar Ramsey, and Long testified that Foor had a conversation with a group of employees on her shift in which such a remark was made. However, these three witnesses displayed little recollection of the incident other than the key statement alleged as a violation, and there were conflicts in their testimony as to where the talk occurred, when it occurred, and how the group was convened. In these circumstances, although I 11 Duffy had received a 5-cent-an-hour raise on May 27, 1965, a little more than a month before. 12 Hall's offices are located in Detroit, Michigan Askew had previously been referred to Hall by Graves in a telephone conversation. "After his return, Graves offered Duffy a better paying job at Respondent's Pittsburgh restaurant which Duffy turned down 14 According to Hall, when he received the Union's request for recognition he was not aware of local conditions at the restaurant and responded in accord with Respondent's standard procedures with respect to recognition requests. He testified that between the time the petition was filed and the representation hearing was held, he learned of the nature of the Breezewood operations and the unit issue. 15 On the petition the Union indicated that there were approximately 90 employees in the unit. There were approximately 90 employees at the restaurant including seasonal employees. 1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do not credit Foor who denied that the conversation took place ,16 I am not per- suaded that these witnesses had sufficient recollection of the conversation to support their testimony as to the content of Foor's remarks. The complaint also alleges that during August 1965 , Foor interrogated employees concerning their union membership , activities , and desires. The only evidence in support of this allegation is the testimony of Yarlett. According to Yarlett, after the second union meeting ,17 Foor told him that she heard the Union had a pretty good turnout at the meeting and asked if the Union was going strong. Yarlett replied that he believed it was. Yarlett denied that he told Foor he had gone to the meeting before she questioned him, but conceded that he had made his attendance at the meeting known to others on the shift working in his vicinity .18 In these circumstances , and in the absence of any evidence of systematic interrogation of employees by Foor or any other supervisor during the Union 's organizational campaign, I find the evidence insufficient to establish that her question was a coercive inquiry into employee union activities rather than merely a casual question prompted by Yarlett's voluntary disclosure of his attendance at the union meeting to others then at work. 2. The June 24 and 25 employee evaluations and the related wage increases The General Counsel and the Union contend that the evaluation interviews on June 24 and 25 and the related raises given thereafter to 19 employees, described above, were for the purpose of discouraging membership in and activities on behalf of the Union in violation of Section 8(a)(1), relying in support of their position upon Exchange Parts Company, 131 NLRB 806, affd. 375 U.S. 405, and Greenfield Components Corp., 135 NLRB 479, enfd. 317 F.2d 85 (C.A. 1), Respondent on the other hand contends that because the increases were granted pursuant to, established policy placed in effect before the inception of the union campaign, the increases did not violate the Act, relying on Jackson Tile Manufacturing Company, 122 NLRB 764; Phillips Manufacturing Company, 148 NLRB 1420; and General Industries Electronics Company, 152 NLRB 1029. The question presented by this aspect of the complaint is close, and, in my view, is not squarely met by the cases relied upon by the parties. The complaint does not attack the normal implementation of Respondent's evaluation policy. The vice, if' any, in the June 24 and 25 evaluations and related increases does not lie in the fact that the employees were evaluated and given increases but stems rather from the timing and circumstances of these particular increases. There are factors which tend to support the General Counsel's contention. Moore and DeSay were aware of the union activity before visiting Breezewood. They dis- cussed it en route. They talked with employees while at Breezewood and ascer- tained that delay in the evaluations was a cause of employee dissatisfaction. They instructed Graves to conduct the evaluations immediately, and further instructed him to implement policies generally concededly so that the employees would feel that outside help was not necessary. In these circumstances, even accepting Moore's assertion that absent the union activity he would have instructed Graves to effec- 16 Foor denied knowledge of union activity in the restaurant until sometime in July. Following her testimony , Graves testified with respect to his instruction of supervisors with respect to the union activities in mid-June. Graves initially testified that he talked to his supervisors (in the plural ) after talking to DeSay. He then , however, recanted as to Supervisor Foor, and testified that he did not talk to her about the union activities until sometime in July when she came to him to ask about them. In mid-June there was only one other supervisor at the restaurant. Graves testified otherwise that there was so much talk about the Union In the restaurant that it was hard not to hear it and that he heard about the Union on different shifts. Moore testified that on June 23, he learned the reasons why the employees wanted a union after talking to the employees on Foor's shift and probably to Foor. In the light of these facts and my observation of both Graves and Foor, I am convinced that Graves changed his testimony so as to avoid creating an obvious conflict with Foor's testimony and that his initial testimony as to his talks with supervisors , rather than his changed testimony, is to be credited I do not credit Foor 17 The Union held four meetings of Respondent's employees during the summer of 1965 on June 23, July 19, August 11, and September 1 >e In reference to this incident Foor was asked "Did you ever at any time ask Mr. Yarlett about how many people went to a union meeting " She replied, "I did not even know they were having union meetings at the time." She did not testify otherwise with respect to this Incident. POST HOUSES, INC. 1165 ;tuate the evaluation policy for the employees who were overdue, one may reason- ably infer that he would not have instructed Graves to proceed with the same haste if there had been no concurrent attempt to organize the employees. Nonetheless, the fact remains that it is beyond challenge on this record that there was a clear policy established without regard to union considerations requir- ing employee evaluations and that Graves was about a month late in its imple- mentation as to some employees when Moore arrived. There is no evidence that as a consequence of Moore's instruction anyone received an evaluation and increase who should not have received them about a month earlier pursuant to policy. The same business reasons which led Respondent to establish the policy warranted its continuing enforcement, and indeed with the exception of this one lapse, it appears that it was enforced both before and after the events of May and June. In these circumstances, I find it impossible to conclude that as a normal man- agement response Moore would not have instructed Graves to catch up on the implementation of Respondent's policy in the absence of union activity at the restaurant. Respondent was clearly entitled, and probably required, to keep the evaluation policy in effect. And if entitled to keep it in effect, it would seem clear that Moore was entitled to see that it was properly administered and that the short lapse in its implementation was repaired.19 Indeed, once Moore had discovered that Graves had not completed the evaluations as required, he was faced with a difficult choice. To have suspended implementation of the policy entirely because of the union activity would have laid Respondent open to charges on that account.20 It is true, as I have indicated, that the haste with which Graves was instructed to act may well be attributed to the union activity of the employees. But if, as I believe, Moore had a right to instruct Graves to enforce the evaluation policy and the evaluations were already a month overdue, Moore had the right to require some haste in the matter, and any difference in the timing of the evaluations which may be attributable to Moore's awareness of the employee unrest over the overdue evaluations is at best immeasurable. In sum, I conclude that whatever dividend Moore hoped or intended the imple- mentation of the policy might produce in terms of dissuading employees from seeking "outside help," Respondent's actions with respect to the evaluations were -substantially the same as they would have been absent union activity 21 To put it otherwise, even if the Respondent were ordered to disregard the union activity of its employees in implementing the evaluation policy, I am satisfied that it would be entitled to and would act in substantially the same manner as it acted here. In these circumstances, I conclude that a violation of the Act ought not to be found. 3. Other violations attributed to Manager Graves The complaint alleges that on June 21, 1965, Manager Graves threatened an employee by telling him Respondent might discontinue the operation of the bakery shop if the employees chose the Union to represent them. In mid-June Joseph Duffy saw Graves in his office at Duffy's request. Graves testified without contradiction that at this time Duffy sought to persuade Graves that he had nothing to do with the Union and asked for a raise. According to Graves he told Duffy that it was entirely up to Duffy if he wanted to vote for the Union or become involved with it. Duffy testified that during the course of this conversation, Graves told him that if the Union got in, there would be too many rules and regulations to follow, and he would probably have to close the bake shop. Graves denied that he made this statement testifying that he told Duffy only that "if he decided in favor of the union and the union came in, there is a possibility that there might be some restrictions according to the contract." Duffy, who was only briefly cross-examined with respect to this conversation, generally appeared to be candid and truthful. Graves on the other hand, for reasons elsewhere set forth, did not so impress me. Moreover, Graves' version of the critical statement has the appearance of a portion of a longer statement, for according to Graves, he stated only that there would be "restrictions" without indicating their nature or their consequences. I conclude that Duffy rather than Graves is to be credited as to the disputed statement. 29 See M. h A. Power Cooperative, Inc, 154 NLRB 540 (TXD). 20 See International Ladies Garment Workers' Union, AFL-CIO, 142 NLRB 82, 143 NLRB 1168, enfd. insofar as material 339 F.2d 116 (C A. 2). a No discussion of the Union occurred during the evaluation interviews and no sub- sequent effort appears to have been made to capitalize on the evaluations in the course of an antiunion campaign. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel relies on the testimony of Jack Duffy, who is still employed by Respondent, to support two further allegations of violation of Sec- tion 8 (a)(1) by Graves. Jack Duffy testified that shortly after the June 23, union meeting Graves talked to him about his attendance at union meetings . Duffy testi- fied that in this conversation Graves told him it was up to Duffy whether or not he wanted to go to union meetings, that it would not better Duffy that much if he went, and that Graves would have "five guys there watching." Graves denied that he had five or any other number of persons go to union meetings and then report back to him, but he did not otherwise testify as to this conversation. Jack Duffy also testified to a second incident in August when he asked Graves for a raise. Duffy initially testified that Graves replied that if the Union did not come in , Graves would give him a raise and Respondent would get its restaurant business back referring to the sales of baked goods to other restaurants . On cross- examination Duffy testified that Graves replied that he would give him a raise when they got "things straightened out" by which Graves meant if the Union did' not win and they got the restaurant business back . Duffy also adhered to his initial testimony that Graves specifically referred to the Union both in reference to the wage increase and regaining the restaurant business . Apart from Graves' specific denial of the statement to which Duffy initially testified, Graves did not deny that he had a conversation with Jack Duffy in August nor did he testify otherwise with respect to it. I have found elsewhere that Graves was not a reliable witness, and the conclusionary nature of his denials affords little basis for their evaluation apart from the rest of his testimony. With respect to the first incident I conclude that Duffy credibly testified based upon actual recollection. As for the second, however, Duffy's cross-examination leaves in substantial doubt whether his testi- mony reflects recollection of what Graves said or merely his subjective interpre- tation of Graves' statements since forgotten . I conclude that his testimony as to this incident is insufficient to establish that Graves made promises to him at that time conditioned upon defeat of the Union. 4. The violation attributed to Krebs The complaint alleges that during July, Krebs , who was then assistant manager, threatened employees by telling them they would have to purchase their uniforms and pay for their cleaning if the employees chose to be represented by the Union. The only evidence relating to this allegation was the testimony of Krebs. According to Krebs, when Moore and DeSay visited the restaurant from June 23 to 25, they told him to take the employees aside singly and to talk to them in order to dis- courage them from supporting the Union. Krebs testified that DeSay told him that if anything came up it would be his word against the employees'. He also testified that DeSay told him to tell the employees of their benefits and what Respondent could do to them . According to Krebs, neither Moore nor DeSay mentioned uni- forms or told him either what to say or what not to say. Krebs testified that about a week thereafter , pursuant to his instructions he called a group of about eight employees together on the second shift and told them that if the Union came in the emvloyees would have to pay for their launder- ing of their uniforms 22 Krebs' recollection as to all dates and a number of details was concededly poor, and his testimony that he talked to a group of employees pursuant to instructions is not consistent with his testimony that his instructions were to talk to the employees singly.23 On the other hand, Krebs named five employees to whom he made the statements in question. None of them were called as witnesses, and there was no showing that any of the five were unavailable to testify or that their sympathies or interests were more allied with one side than the other. In these circumstances, if Krebs had fabricated the incident out of resentment over his transfer from Breezewood as Respondent contends, there is no apparent reason why contradictory evidence should not have been adduced. Krebs had none of the appearance of a rehearsed or inventive witness. I conclude that Krebs testified 22 At all times material, Respondent has provided uniforms for employees and paid for their laundering. s3 Although the evidence is clear that Krebs was assigned to work with Graves on the first shift after June 24, in the absence of any evidence to contradict Krebs' testimony that he "maybe" filled in a couple of nights for others after he was transferred to the first shift, I do not find that his transfer to the first shift warrants the conclusion that the incident could not have occurred as Krebs testified. POST HOUSES, INC. 1167 credibly that he threatened employees as alleged in the complaint about a week after June 24. 5. Concluding findings as to Section 8(a)(1) On the basis of my findings above I find that Respondent violated Section 8(a) (1) of the Act by Graves' threat to Joseph Duffy in mid-June that if the Union came in there would be too many rules and regulations to follow and he would probably have to close the bake shop; by Graves' statement to Jack Duffy shortly after June 23 that he would have five persons watching if Jack Duffy attended union meetings, and by Krebs' statement to a group of employees some- time during the month after Moore and DeSay visited Breezewood that if the Union came in they would have to pay for the laundering of their uniforms, I find, however, that there is not sufficient evidence to establish the remaining alle- gations of violation of Section 8(a)(1) set forth in the complaint. C. The alleged violation of Section 8 (a)(3) 1. The evidence Joseph Duffy was hired by Respondent as a baker on August 18, 1964. Before he was hired, baking was done by Joseph's brother Jack and Katheryn Karns. After Joseph Duffy was hired, Mrs. Karns was transferred to other duties at which she worked until she was laid off in the fall of 1964. Karns was recalled in April 1965, and her duties after her recall are in dispute. Both Duffy's worked 6 days a week from 6 a.m. to 1:30 p.m. As conceded by Manager Graves, they were good bakers and performed their work satisfactorily. During his employment Joseph Duffy , who started at $1 an hour, was given sev- eral increases including one on May 27, 1965 , which brought his rate of pay up to $1.30 an hour. Karns, who was not considered by Graves to be a good bakery employee, was paid $ 1 an hour at the time of the events here in question. As set forth above, in December 1964, the bake shop at Breezewood started to make baked goods for sale to other restaurants in Breezewood. The baked goods sold were of the same varieties as, and were prepared each day along with, those baked for sale in Respondent's restaurant. Each morning Duffy boxed, prepared sales slips for, and delivered the baked goods to the other restaurants. This activity consumed about an hour of his time each day . According to Moore, , the outside sales were started on a trial basis, partly as a means of justifying the retention of Joseph Duffy as a second baker.24 According to Graves, Respondent had three principal customers for such sales, and during the months of February to June 1965, the sales to the largest of these customers averaged about $60 a month , with sales increasing as the summer months approached .25 It would appear that average monthly sales of baked goods to other restaurants were not in excess of three times this amount and were pos- sibly less. According to Graves, the restaurants which purchased Respondent's baked goods had greater volume of business in the summer, although they experi- enced less fluctuation than Respondent as they had more local patronage. As already set forth, business at Respondent's restaurant, which is largely dependent upon stops by scheduled and chartered buses, increases significantly during the summer months when Respondent finds it necessary to hire a substantial number of seasonal employees. Graves estimated that during July and August, Respondent's restaurant uses about 20 percent more baked goods than in February and March, and the quantity of baked goods consumed at Respondent's restaurant during the summer months exceeds the total production for inside use and sale to other restaurants during the winter. It is admitted that by June 15, Graves was aware of the union activity at the restaurant and had heard that Joseph Duffy was an active union supporter. Either then or at the time of Moore's visit to Breezewood, Graves by his own testimony identified Joseph Duffy to Moore as a union instigator.26 u Moore and Graves each testified that this was done at the other's suggestion. a Krebs estimated weekly sales at approximately $125. However, Graves' testimony was supported in part by invoices to the restaurant which Graves testified was Respondent's largest customer. There is no evidence to show the basis of Krebs' estimate or whether he was in a position to have had accurate knowledge of the sales. In these circumstances I credit Graves. 26Moore denied that Graves identified him as an instigator , testifying that Graves said only that Duffy was "connected with union activities." 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Around June 15, when Graves contacted his superiors to notify them of the union activity at the restaurant, he also called a meeting with other restaurant managers from the Breezewood area. Whether there were one or two such meet- ings and what happened is sharply disputed. According to Graves, there was a single meeting held on June 14 or 15, which he called because he felt it was his duty to inform other restaurant managers in the area that there was union activity in Breezewood. The meeting was held at 3:30 p.m. and attended by the managers of the Holiday Inn and Howard John- son's, Bittner, the owner of Snyder's Gateway, and a Miss Painter. Graves testi- fied that Krebs was not present at the meeting but arrived 10 minutes before its end 27 According to Graves, they discussed various ideas relating to the union activities, and he described for the benefit of others present the union representa- tives, their cars, how he was handling himself, and what actions he had taken. Graves testified that he did not tell the others present that he was going to cut off the outside brake business in order to interfere with or stop the union drive. Former Assistant Manager Krebs testified that before Duffy was laid off, he and Graves met with the managers or owners of other local restaurants who bought bakery products from Post Houses. According to Krebs' belief, there were two such meetings from I to 2 weeks apart at which they discussed what could be done to cope with the union prob- lem.28 At one of the meetings, believed by Krebs to have been the second, Graves brought up the idea of causing Duffy's layoff by cutting off the outside restaurant business. According to Krebs, Graves said that if the Holiday Inn said it no longer needed doughnuts, this would cut off business and permit him to lay off Duffy for lack of work. According to Krebs, after this meeting the restaurants called and stopped ordering bakery products. No witnesses other than Graves and Krebs testified as to these meetings. As set forth above, from June 23 to 25, Moore and DeSay visited Breezewood. Moore and Graves testified that during this visit they discussed the discontinuation of the sales of baked goods to outside restaurants. According to Moore, Graves had originally persuaded him to try the outside sales on the representation that there was enough business to justify an extra baker, and Moore had told Graves in January or February that he would check back later to determine whether the outside sales were profitable. Moore and Graves testified that in June, after they looked at sales, cost, and production records, they concluded that the outside sales were a real burden to Respondent,29 and Moore instructed Graves to discontinue the outside sales. At the same time, they testified that they decided that they would have to get rid of one baker. In their discussion, they mentioned that it would probably be Joseph Duffy because he was the second baker. However, according to them, the decision as to the identity of the person to be laid off was left to Graves. Graves testified that he informed the customers of the decision to terminate the sales on June 26 30 Graves testified that by July 1, he decided that Joseph Duffy would be laid off, but held off as long as he could and laid him off on July 4. There is no evidence that Duffy was given any advance notice of his layoff. At that time Graves told Duffy that "due to the loss of our outside business, I could no longer keep him on as a baker, but that I would make every effort to bring him back into something of an equal capacity later." Graves did not, however, offer to keep Duffy on at a lowering paying job, explaining in his testimony that because of Duffy's ability to be a good baker, Graves believed he would not consider pot, pan, and dishwashing at his level. n Graves did not testify how long the meeting lasted. 23 Krebs, who testified that he was not good at remembering dates, placed both meetings in July, but also testified that they were before Duffy's discharge. 9 Apart from figures as to the volume of sales to one customer and evidence as to the time spent by Duffy on the outside sales, no other evidence was produced in support of this conclusion. 80 According to Graves, in mid-May before this decision was made, Bittner had com- plained about Respondent's prices and had told Graves that his original supplier would give him a price on sweet rolls about 10 percent less than Respondent's. Graves also testi- fied that another customer had a similar offer. There is no contention, however, that any of the customers initiated the termination of their patronage of Respondent for this reason. POST HOUSES, INC. 1169 According to Graves, from that point Jack Duffy did all the baking required for Respondent's restaurant, with the aid of Katheryn Karns on only one or two occasions. Karns testified, contrary to Graves, that she was recalled to work in April 1965, and worked in the bakery from then until September 1965. She testified that during the summer she worked the same hours and days as Jack Duffy, and made sweet rolls, doughnuts , and small pies and turnovers for the snack bar. She testified further that during this period she was occasionally sent to the salad department to help and to the cafeteria to serve coffee. She also did some bus girl work in July and August. However, she estimated that she spent 75 percent of her time in the bakery. In September, Karns was transferred out of the bakery and put back on the night shift and was later laid off. As indicated above, following a conversation between Union Representative Morse and Hall, director of labor relations for Respondent 's parent corporation, Duffy was offered employment at a lower paying job, and he returned to work on July 20, remaining until mid-October when he left to obtain a better job. 2. Concluding findings with respect to Duffy's discharge Apart from the disputed evidence with respect to Graves' statement to the owners and managers of other Breezewood restaurants, there is substantial evidence to support the allegation that Duffy's layoff was caused by his union activities. As I have found above, Duffy was labeled by Graves as an instigator of the union activities at the restaurant, and only a few weeks before July 4 Graves threatened Duffy that bringing the Union into the restaurant could lead to rules and regula- tions which would probably cause Respondent to close the bake shop. Moreover, although Graves testified that after Joseph Duffy's layoff Jack Duffy did all the baking, I cannot credit Graves in this regard. Katheryn Karns testified with considerable conviction and certitude , and was corroborated by the testimony of Mrs. Sperau and Krebs. While no production records were introduced, Graves conceded that even without the outside sales, the volume of baking required for Respondent's internal use during the summer months exceeded the combined pro- duction for inside use and outside sale during the early spring months, and rose by 20 percent over Respondent 's winter needs. Whether or not the outside sales were profitable , I find it difficult to believe that Graves would have retained both Jack and Joseph Duffy throughout the winter to perform a volume of baking that could have been handled by one baker.31 Yet to believe Graves, I would have to so find, for if Jack Duffy could have handled all the baking during the summer months, he could have handled the smaller volume of baking for both inside and outside use during the winter months as well. Moreover , that two bakers were required to handle the summer baking is further indicated by the fact that Joseph Duffy was hired as a second baker during the previous summer, and before he was hired, Karns worked in that capacity. At that time, the outside sales had not yet begun. I conclude that Graves' testimony in this regard is not to be credited, and that following Duffy's layoff, Karns performed substantial baking duties 32 It is not difficult to discover why Graves sought to convey the opposite impres- sion, for by his own testimony Joseph Duffy was retained as a baker in the fall of 1964, and Karns was moved to another job and then laid off while Duffy was retained because Graves considered him a better baker. In the light of this history, the fact that Karns was retained in the bake shop in 1965, after being recalled to it in April, in preference to Joseph Duffy gives rise to a strong inference that Duffy's layoff was dictated by other than economic considerations,33 even if the 31 The outside sales required only 1 hour a day of Joseph Duffy's time for packaging and delivery. The remainder of the time both Duffys baked to produce no more than what Respondent required during the summer 32 In this regard I note also that Graves in an affidavit given the General Counsel dur- ing the investigation of this case stated, "We, Post House, do not always keep the senior employees in cases where there is an outstanding employee who is less senior, and in Joseph Duffy's case, his brother Jack, and Katheryn Karns , the other two bakers were senior to him and were kept." Graves' only explanation for this statement was that Karns should have been described as a baker 's helper. 33 With respect to Duffy's earlier retention over Karns, Graves testified , "I felt I was not getting my dollar value out of her in the bake shop." 264-188-67-vol. 161-75 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside sales had been unprofitable and should have been discontinued as a matter of sound business. Of course, if the outside sales were discontinued for discriminatory reasons, that it would be even clearer that Duffy's layoff was discriminatory. In my view, the evidence warrants such a finding. Thus, Duffy was told at the time of his layoff that it was due to loss of business, not to a decision by Respondent to terminate its outside baked goods sales. Although conclusionary testimony was adduced that analysis of sales, production, and cost records showed that the outside sales were a burden on Respondent, the only evi- dence from Respondent's records offered to support this testimony related to sales. Yet absent evidence relating to costs and production, the sales figures have no significance.34 In this setting the testimony relating to the meeting or meetings between Graves and the other restaurant managers and owners must be assessed. There is no dispute that at least one meeting was held at which Graves conceded there was discussion of means to counteract the union activities. In dispute is whether at this or a second later meeting prior to Duffy's discharge, Graves put forward the suggestion that the other restaurants teiminate their purchases of baked goods to provide an excuse to lay off a baker. While the credibility issue is sharp and must be made in the absence of testimony of any of the other restaurant owners or managers who were claimed to have been present, I am persuaded that Krebs rather than Graves is to be credited in this regard. Although Krebs was vague as to detail and unable to state dates, he related the meeting in time to other events and his lack of cer- tainty as to detail did not appear to be evasive. On the other hand, from Graves' testimony with respect to Foor's knowledge and Karns' duties, as well as my obser- vation of Graves while he testified, despite his admissions of knowledge and concern over the union activities, I am convinced that Graves was not candid or trust- worthy in his testimony concerning the critical facts in this case. Under all the circumstances, I conclude that Krebs rather than Graves is to be credited as to the meetings with the other restaurant managers.35 In view of all the circumstances set forth above, I conclude that Respondent solicited the cessation of purchases of outside baked goods by other restaurants to furnish a pretext for the layoff of Duffy so that Respondent would remove a union instigator from the restaurant in order to discourage the union activities of its employees.36 In reaching this conclusion I have considered the statement by Graves to Duffy at the time of his layoff that he would make every effort to bring Duffy back to the restaurant in an equivalent job as well as the subsequent reemployment of Duffy in a lower paying more menial job. With respect to the first, as Graves had no equivalent job then open, and there is no evidence that he had reasonable expectation that one would open, it is difficult to construe Graves' comments as any more than a self-serving gesture. This view is supported by his failure to inquire whether Duffy would be interested in working at any other job in the restaurant, a procedure which was apparently normal in the light of Hall's subse- quent action 37 While Hall's subsequent instruction to Graves to reemploy Duffy Sf Respondent contends that the burdensomeness of the outside sales is demonstrated by the fact that Respondent's weekly outside sales sere less than Joseph Duffy's weekly pav But as Joseph Duffy spent only an hour a day exclusively devoted to the outside sales, and spent an indeterminate amount of time with his brother making the products for outside sale along with those for Respondent's use, his total salary clearly is not attributable to outside sales, and there is no way of knowing on the record whether or not the labor costs attributable to the outside sales were excessive. 35Respondent contends that Krebs' had an obvious bias against Respondent because of the circumstances of his departure from Respondent's employ and that he should there- fore be discredited. While I detected no reluctance on the part of Krebs to testify against Respondent, after hearing Krebs' testimony and observing him as a witness, I am not persuaded that he testified untruthfully out of resentment against Respondent. On the other hand the interests of Graves, who was still manager of the restaurant, coupled with the nature and manner of his testimony led me to the conclusion that his testimony was colored by self-interest. ae In this connection I do not credit the testimony of Moore and Graves as to their discussion of the outside bake sales on June 24 and 25, their motivation in reaching their decision , or how the sales were terminated. 87 Graves explained that his failure to offer Duffy a lesser job was based on his belief as to Duffy's desires, not on the grounds that no job was available or that his failure to make such an offer at times of layoff was routine. POST HOUSES, INC. 1171 may indicate Hall's prior lack of awareness as to what had happened at Breeze- wood, the reinstatement of Duffy in a job inferior to that from which he was laid off after Union Representative Morse complained neither serves to establish an absence of discrimination 38 nor to remedy the discrimination which had occurred. To the contrary, the continued employment of Karns in the bake shop after Duffy's reemployment, despite Graves' admitted dissatisfaction with her in that capacity, indicates that Graves had no desire to remedy the discrimination against Duffy. I find under all the circumstances that the layoff of Duffy violated Section 8(a)(3) of the Act. D. The alleged violation of Section 8(a)(5) 1. The appropriate unit As set forth above, during the summer months Respondent hires a substantial number of seasonal employees. Their duties and classifications are the same as those of the year-round or regular employees. Most of the seasonal employees are obtained from the surrounding area through the Bedford, Pennsylvania, Employ- ment Security Office, but some are hired as a result of direct application at the restaurant. Respondent does not attempt to recruit summer help directly and makes no effort to contact former summer employees and seek to reemploy them. Respondent informs the employment office that it is seeking employees for the summer months, but employees are not necessarily told at the time of hire that their employment is temporary. During the two seasons that Respondent had oper- ated prior to the hearing, a large percentage of the summer employees were stu- dents. Of those students who worked as seasonal employees during the summer of 1964, only three were hired for the following summer when they requested reem- ployment. Insofar as the record shows, none of the nonstudent seasonal employees who worked during the summer of 1964 were employed during the following summer. The seasonal employees are not eligible for vacations, pensions, or hospitaliza- tion insurance coverage applicable to regular employees. These benefits require from 6 months to 1 year of continuous service for eligibility. Two students who worked as summer employees testified with respect to their employment. Cheryl Riley, one of the three summer employees who worked in both 1964 and 1965, testified that she was told at the end of the 1964 season that she could work during her Christmas vacation if she wanted and that she should come in the following summer if she wanted a job. She did not work at Christmas time but returned and was reemployed in May 1965. When she left again in July 1965, nothing was said to her about further employment. Rodney Willer, who first worked during the summer of 1965, asked Graves at the end of August if he could work weekends during the winter. Graves told him that Respondent did not need him for weekend work, but said he could work over the Christmas vacation and asked him to return the next summer if he could.39 At the hearing Respondent's counsel read a list of the 87 employees on Respondent's payroll as of July 6, 1965, identifying 47 of them as regular, 14 as seasonal, and 26 as seasonal-student employees. As to the latter two groups, Respondent's counsel also read into the records dates of hire and termination.40 The General Counsel stipulated as to the dates read by Respondent' s counsel and agreed that the employees identified by Respondent as students were students. The General Counsel declined to stipulate further with respect to the list. Subsequent to the stipulation, Graves testified that an additional employee, R. L. Dicken, who was described as seasonal during the reading of the list, was also a student. In the absence of conflicting testimony, I so find. The evidence also shows that Dicken is If Graves did not disclose the reasons for Duffy's layoff when Hall investigated after Morse's inquiry, then Hall's instruction to Graves could not reflect either way upon the motivation for Duffy's layoff. If Graves disclosed the reasons for the layoff as discrimina- tory, then the instruction to find Duffy another job would indicate either that it was self- serving or that Hall disagreed with Graves' action and sought to repair it without patently undermining Respondent's defense to a possible charge. Thus, the instruction to reemploy Duffy is not inconsistent with a finding that the layoff was discriminatory. 39 Although other employees whom the Respondent contends should be excluded as sea- sonal or student employees appeared as witnesses, they were not questioned as to the duration of employment or their expectation of future employment. 10 See footnote 1, supra. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and three other employees identified as students continued working for Respond- ent after the end of its busy season as regular part-time employees. However, according to the uncontradicted testimony of Graves, at the time of the Union's demand for recognition they had no reasonable expectation of continued employ- ment after the end of the season. No further evidence was adduced with respect to the identity of the regular and seasonal employees, other than testimony of Linda Long, who was identified on Respondent's list as a regular employee but testified that she had told her super- visor, Foor, that she only intended to work at the restaurant for the summer as a temporary job. The complaint alleges, and the General Counsel and Union contend that a unit of all employees is appropriate. The Respondent contends that a unit including Respondent's regular employees, but excluding all seasonal and student employees is appropriate.41 Under Board policy of some standing, on the facts set forth above, I find that the seasonally employed students and the other seasonal employees, who appear to have no reasonable expectation of future employment when terminated at the end of the season, should be excluded from the unit of regular employees. Brown- -Forman Distillers Corporation, 118 NLRB 454; Lilliston Implement Company, 121 NLRB 868; Freeman Loader Corporation, 127 NLRB 514; George Groh & Sons, 141 NLRB 931, 939. The General Counsel and the Union cite no authority to the contrary, but the Union contends that the temporary status of these employ- ee's should' render them at most ineligible for purposes of determining the Union's m'ajorit'y, without excluding them from the unit. The Union argues that their exclu- sion would permit the undermining of bargaining unit employment and standards by use of a large work force outside the unit to perform duties identical to those performed by the bargaining unit employees. At one time, the Board followed the practice urged by the Union. Grinnell Pajama Corp., 108 NLRB 289, 291, footnote 6; Fort Pitt Packaging Co., 108 NLRB 1433; L. Wiemann,Company, 106 NLRB 1167; Producers Rice Mill, Inc., and Producers Dryer, Inc., . 106 NLRB 119, 122; H. P. Wasson and Company, 104 NLRB 249, 250; Arkport Dairies, 100 NLRB 386; S & L Co. of Pipestone, 96 NLRB 1418; R. Appel, Inc., 95 NLRB 7. However, subsequent to the decision in Fort Pitt Packaging Co., supra, the Board changed its policy, and it has for some time considered unit placement and voting eligibility as inseparable issues, excluding from bargaining units those iempo"raiiy, seasonal, or casual employees who under the earlier policy would have been included in the units but deemed ineligible to vote. Montgomery Ward & Co., 110 NLRB 256, 258; Albers Super Markets, Inc., 110 NLRB 474; Mdssiichuserts' Institute of Technology (Lincoln Laboratory), 110 NLRB 1611, 1613; Sears Roebuck & Company, 112 NLRB 559, 569, footnote 28; Consolidated Paper & Box Manufacturing Company, Inc., 115 NLRB 187, 190; American Rice Growers Coo'per'ative Association, 115 NLRB 275, 278; Swift & Company, 115 NLRB 755, 756; Wilshire Manufacturing Company, 115 NLRB 1499, 1500-01; Brown-Forman Distillers Corporation, 118 NLRB 454; E. F. Drew & Co., Inc., 133 NLRB 155, 157; George Groh & Sons, 141 NLRB 931, 939; The Richman Brothers Company, 157 NLRB 1681. The rejection of the earlier policy appears to be based on the view that any employee who may be represented as the result of an election should have the right to vote in the election, although I am unable to discover a comprehensive state- ment of the reasons which led, the Board to reject the earlier policy. See Sears Roebuck & Company, supra, 112 NLRB at 569, footnote 28. I am satisfied, how- ever, that these decisions reflect deliberate and longstanding policy which is con- trolling in the determination of the unit question in this case. Accordingly, I find that the appropriate unit consists of all employees at Respondent's Breezewood, Pennsylvania, restaurant, excluding seasonal employees, guards, professional employ- ees, and supervisors as defined in the Act. With respect to the complement of employees at the restaurant on July 6, there is no evidence that any of the employees designated by Respondent as regular was other than a regular employee, except for Linda Long. Miss Long who went to work on June 20 by her testimony falls in the category of temporary summer employees and should be excluded from the unit. Likewise,, I think it clear under the Board's decisions cited above that all those employees who were established to u Although, there was a stipulation at the representation case hearing to exclude gift shop employees , no one now seeks their exclusion, .and no evidence was introduced to in- dicate that they should be excluded from any unit found appropriate. POST HOUSES, INC. 1173 be students should be excluded. With respect to the remaining employees identified by Respondent as seasonal, the General Counsel makes no contention other than that all should be included. The Union contends, however, that a statement of Hall, who represented Respondent at the representation hearing should be used as a standard to determine which of the remaining employees should be excluded. At that time Hall stated that he believed that all employees hired before June 15, or retained on Respondent's payroll after September 15, should be considered regular employees. However, no stipulation was entered to this effect, and the basis for this arbitrary division was not explored at the hearing before me. In the absence of any evidence to contradict Graves' testimony with respect to these employees, I find in accord with Respondent's contention that they were seasonal employees and are excluded from the unit. 2. The Union's majority As of July 6, the Union had 43 signed authorization cards in its possession.42 Of the 46 regular employees found above to have been in the appropriate unit on that date, 25 had signed such cards 43 Respondent contends that these cards should not be accepted as proof of designation of the Union as the employees' repre- sentative for purposes of collective bargaining, but concedes that under exsiting precedents the Board would so view them. In this connection, Respondent relies on testimony of Vera Chirdon that at the June 23 union meeting, Union Repre- sentative Morse told the 20 to 25 employees there assembled that the Union needed to have half the employees sign cards in order to have an election. Mrs. Chirdon testified that Morse also said that the purpose of signing the cards was to have the Union represent the employees.44 Chirdon, who was given cards to get signed by other employees also testified that nothing was said about an election when she was given the blank ' cards and she in turn said nothing to employees about an election when she asked employees to sign them. Respondent also relies on the testimony of one other employee, W. W. Rizer. He testified that when he was given the card to sign, he was told that "it was for the union to represent us." He added that as he had belonged to a union once before, he expected an election, but nothing was said to him about an election and he understood the card to mean that the Union would represent him. It is clear the validity of the cards as desig- nations of the Union as the representative of the employees is not impaired by the evidence45 I find that as of July 6, 1965, the Union had valid authorization cards in its possession signed by a majority of the employees in the appropriate unit. 3. The Union's request to bargain Particularly in the light of the Union's representation petition and the position taken in connection therewith, the Union's initial request for recognition must be con- strued as a request for recognition as representative of all employees at the Breeze- wood restaurant, including the seasonal employees, with only the usual statutory exclusions.46 It is thus clear that there is a variance between the unit for which the Union sought recognition and that found appropriate herein. The variance in terms of numbers is substantial, although in terms of classifications and duties of employees it is not. The unit which the Union sought and still seeks is larger than that found appropriate. As noted above, Respondent did not take issue with the appropriateness of the unit in its response to the Union's request for recognition. u Included in this mumber is the card of Joseph Duffy whose layoff I find above violated Section 8(a) (3) of the Act. Excluded from this number are the cards of Weldon Byers Ramsey, Linda Long, and Harold Miller. Although I am satisfied that each signed a card, the testimony leaves in doubt the dates on which they were signed In view of my findings herein, I find it unnecessary to determine these dates, but note that all three cards were date stamped by the Board's Region 6 on July 21, 1965, and were thus signed on or be- fore that date. 41Attached hereto as Appendix A is a list setting forth the names of all employees on the payroll on July 6, the categories in which they fall, and whether or not they had signed authorization cards before July 6. "I note in this connection that of the cards found to have been signed by regular em- ployees before July 6, all but four were signed before June 23, and none were signed on that date. "Jas. H. Matthews & Co., 149 NLRB 161, enfd. 354 F2d 432, 437 (CA. 8). Joy Silk Mills v. N.L.R.B., 185 F.2d 732, 743, cert. denied 341 U.S. 914; Southridge Sheet Metal Works, Inc., 158 NLRB 819. " No one contends to the contrary. 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue raised by Respondent with respect to the adequacy of the Union's request is similar to that which confronted the Trial Examiner and the Board in Columbine Beverage Company, 138 NLRB 1297. There as here, the union failed to exclude a substantial number of temporary employees who were mostly students from the unit for which it requested recognition. 138 NLRB at 1310-11. With respect to this discrepancy the Trial Examiner concluded, "I am doubtful that this discrepancy alone would be viewed by the Board as sufficient to justify the refusal to bargain, though. I think the matter is one of some substance." 138 NLRB at 1314. He recommended dismissal of the refusal-to-bargain allegation, however, on other grounds. On exceptions, the Board disagreed with the Trial Examiner's recommended basis for dismissal of the complaint and found that there had been a refusal to bargain. Although the Board's decision does not discuss the variance issue, it follows from the Board's conclusion and its adoption of the Trial Exam- iner's findings and conclusions insofar as consistent with the Board's Decision and Order that the Board adopted the Trial Examiner's findings and conclusions with respect to the variance between the unit for which the union requested recognition and that found appropriate. These is no material difference between the facts in this case relating to this issue and those before the Board in Columbine. Respondent relies on the Board's decisions in Sportswear Industries, Inc.. 147 NLRB 758, and Business Supplies Corp. of America, 147 NLRB 121, to support an opposite conclusion. In Sportswear Inc., the complaint alleged a refusal to bar- gain in a unit narrower than that for which the union had demanded recognition and petitioned. The broader unit was appropriate, and the Trial Examiner had found the narrower unit inappropriate. The Union had a majority in the smaller unit but not in the unit in which it made its claim. In these circumstances, the Board with- out deciding the appropriateness of the smaller unit held. "Once having defined the unit it claims to represent, and having made a bargaining demand on that basis, the Union has thereby established a frame of reference for measuring the validity of its demand. `Such a requirement imposes on the union representative only the obligation to say what he means. Failing to do so [the union] cannot be considered as having made the sort of request to bargain which imposes upon an employer a legal obligation to comply."' [Quoting C. L. Bailey Grocery Com- pany, 100 NLRB 576, 579.] 47 While the language quoted above from Sportswear might on initial reading be deemed sweeping enough in its import to cover the present case, analysis of Sports- wear and the precedents on which it is based persuade me that its holding applies only to those cases in which the unit alleged in the complaint is narrowed from that set forth in the demand and the unit described in the demand is itself an appropriate unit. Where, as here, the variance between the appropriate unit and the unit requested results not from a change in the union's position but from inappropriateness of the unit for which recognition was requested different considerations apply. The question is not whether the union representative said what he meant. He did. But what he said and meant does not describe an appropriate unit. The question which must be answered is whether the variation between what he said and what he should have said is so substantial that the demand may be said to fail to establish a frame of reference against which to measure the validity of the demand. In the light of the Board's decision in Columbine, supra, I conclude that the failure of the Union to exclude seasonal employees from the unit requested herein did not render its request for recognition fatally defective. 4. The alleged refusal to bargain Having concluded that the Union's request to bargain was sufficient and that the Union represented a majority of the employees in the appropriate unit at the time of its request, it remains to be decided whether Respondent refused to bargain in violation of Section 8(a) (5) when it responded by informing the Union that it would require the Union to establish its majority through an election. As the Board has recently stated: 48 Whether an employer is acting in good or bad faith in questioning the union's majority is a determination which of necessity must be made in the light of 47147 NLRB at 760-761. In Business Supplies Corporation of America, 147 NLRB 121, the unit in which the demand was made was inappropriate and substantially smaller than the appropriate unit in which there was no evidence of majority The question of variance was not presented. 48 Aaron Brothers Company of California. 158 NLRB 1077. POST HOUSES, INC. 1175 all the relevant facts of the case , including any unlawful conduct of the employer, the sequence of events, and the time lapse between the refusal and the unlawful conduct . Where a company has engaged in substantial unfair labor practices calculated to dissipate union support, the Board , with the Courts' approval , has concluded that employer insistence on an election was not motivated by a good-faith doubt of the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union . However, this does not mean that any employer conduct found violative of Section 8(a)(1) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to -bargain finding. For instance, where an employer's unfair labor practices are not of such a character as to reflect a purpose to evade an obligation to bargain , the Board will not draw an inference of bad faith. Here, Respondent laid off Joseph Duffy in violation of Section 8(a)(3), a viola- tion which "goes to the very heart of the Act." N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). It is true that this violation and the violations of Section 8 (a)(1) which I have found occurred before the Union's demand for recognition . However, whether Respondent's conduct preceded or followed the Union's demand is not important .49 What is significant is the purpose that may be inferred from its conduct. Here, Graves admittedly considered the organizational efforts "serious" and likely to succeed . He consciously adopted a policy of opposi- tion to the Union and during the visit of Moore and DeSay to the restaurant on June 23-25 they determined to do what they could to persuade the employees that they did not need the Union . To be sure, lawful efforts of Graves in pursuit of that end do not establish a rejection of the principle of collective bargaining. How- ever, when Graves, Respondent 's highest official at Breezewood, went beyond such efforts and discriminatorily laid off Duffy , whom he had identified as an instigator of the Union, it is clear that he thereby sought to frustrate the rights of the employees to determine free of interference whether they desired representation and thereby to evade any obligation to bargain. I conclude , therefore, that Respondent's refusal to recognize the Union was not in good faith and violated Section 8 (a)(5) .50 N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Post Houses , Inc., described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, as alleged in the complaint, I shall recommend that Respondent be ordered to cease and desist therefrom and take certain affirmative action. 19 In this connection I reject Respondent 's contention that the cutoff dates established for objections to elections in Ideal Electric and Manufacturing Company, 134 NLRB 1275, and Goodyear Tire & Rubber Company, 138 NLRB 453, preclude basing a refusal-to-bargain finding on predemand violations of the Act . These decisions establish administrative rules of convenience pertaining to the setting aside of elections where a party proceeds to an election despite the prior occurrence of unfair labor practices They may require a party to elect either to file charges and forgo an immediate election or to proceed with an elec- tion and forgo the opportunity to protest its results . But it does not follow that the Board in establishing firm administrative rules relating to elections decided that predemand con- duct could never constitute evidence of a bad -faith refusal to bargain where as here the party chooses to file charges rather than proceed with an election . Cf. Irving Air Chute Co., 149 NLRB 627, enfd. 350 F.2d 176 ( C.A. 2). If Respondent 's contention were accepted, the filing of a petition would be a prerequisite to the validity of any charge alleging conduct designed to frustrate a union majority. 50 Even assuming that no violation of Section 8(a) (5) were established I would find in any event that a bargaining order would be warranted to remedy the violation of Section 8(a) (3) which occurred at a time when the Union had acquired its majority . Western Aluminum of Oregon, Incorporated, Western Aluminum Corporation, and Oregon Screen Corporation, 144 NLRB 1191. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I have found that Respondent discriminated against Joseph Duffy by laying him off on July 4, 1965, and did not reinstate him to the job to which he was entitled, I shall recommend that Respondent be ordered to offer him immediate and full reinstatement to his former or a substantially equivalent position , without prejudice to his seniority and other rights and privileges and to make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of the sum of money equal to the amount he nor- mally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings, to which is to be added interest at the rate of 6 percent per annum , in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. As I have found that Respondent's violations reflected a purpose to evade the obligation of collective bargaining , I am of the opinion that there exists a danger of commission of other and further unfair labor practices and shall recommend that Respondent be ordered to cease and desist from infringing in any other man- ner upon rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent Post Houses, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All employees at Respondent's Breezewood , Pennsylvania, restaurant, exclud- ing seasonal employees , guards, professional employees , and supervisors as defined in the Act constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times since July 6, 1965, the Union has been, and now is , the exclusive representative, of the employees in the said unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By threatening employees with reprisal as a consequence of their union activities and creating an impression of surveillance of union activities so as to interfere with, restrain, and corce its employees in the exercise of rights guaran- teed them by Section 7 of the Act; by discriminating in regard to the hire and tenure of employment of employees thereby discouraging their membership in the Union; and by refusing to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit above, all as found above, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1), (3) and (5) 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 pur- suant to Section 10(c) of the Act, I hereby recommend that Post Houses, Inc., Breezewood, Pennsylvania, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Threatening employees that its bake shop will close , that they will be required to pay for the laundering of their uniforms , or that any other reprisals will be taken for engaging in union activities. (b) Creating an impression of surveillance of union activities. (c) Discouraging membership in Hotel and Restaurant Employees and Bar- tenders International Union, Local Union No. 397, AFL-CIO , by discriminating against employees in regard to the hire and tenure of employment or any term or condition of employment. (d) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other conditions of employment with Hotel and Res- taurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph 3 of the section of the Decision entitled "Conclusions of Law." (e) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Hotel and Restaurant Employees and Bartenders International Union, POST HOUSES, INC. 1177 Local Union No. 397, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Joseph Duffy immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss he may have suffered by reason of the discrimination against him in the manner set forth in the section of the above Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applicaiton in accord- ance with the Selective Service and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to 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 relevant and necessary to a determination of compliance of paragraphs below. (d) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (e) Post, in conspicuous places at its Breezewood, Pennsylvania, place of busi- ness including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix B " 51 Copies of said notice, to be fur- nished by the Regional Director for Region 6, after being duly signed by Respond- ent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.52 51 In the event that this Recomended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order 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 "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 521n the event that this Recommended Order is 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 I REGULAR EMPLOYEES A. Card signers with dates of signing 1965 1965 1 Barclay, D E----------- May 14. Karns, K. E------------ May 21 2. Chirdon, V. T_____ ____ May 15. Karns, K. L------------ July 2 3. Clark, O. D------------ May 17 16. Karns, S. J------------- May 22 4. Conover, R L---------- May 22 17 Otto, M. M------------- May 18 5 Cooper, B. J----------- May 17 18. Painter, M. F----------- May 16 6. Davidson, J. T---------- June 28 19 Plummer, J. F---------- May 22 7. Davis, E. P------------ May 17 20. Reed, I. R-------------- May 17 8. Deshong, M. R--------- May 12 21 Rizer, W. W------------ May 12 9. Duffy, J. B------------- May 11 22. Shauf, W., Jr----------- June 28 10. Duffy, J. D------------- May 11 23. Snively, T-------------- July 1 11. Foor, F. F-------------- May 12 24. Sperau, P. D----------- May 18 12. Giffin, J. M------------- May 12 25. Swope, D. W----------- April 2 13. Hammond, R. J--------- May 17 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Nonsigners 1. Border, N. A. 7. Johnson, L. M. 14. Snively, V. R. 2. Clark, F. M. 8. Latta, R. L. 15. Snyder, T. A. 3. Clark, M. S. 9. Layman, P. 16 Swartzwelder, E. B. 4. Clingerman, G. J. 10. Leader, M. J. 17. Thomas, D. R. 5. Conner, F. E. 11. Miller, M. 18. Veach, P. J. 6. Hale, M. L. 12. Miller, V. R. 19. Walters, R. S. 13. Smith, J. E. (Jr.) C. Employees as to whom date of card signing was disputed 1. Miller, H. R. 2. Ramsey, W. B. If. NONSTUDENT SEASONAL EMPLOYEES A. Card signers with dates of signing 1965 1965 1. Clark, P. W------------- June 26 4. Singer, R. L------------ June 25 2. Crouse, E. E____________ July 2 5. Truax, L. J------------- June 27 3. Morton, C. L----------- July 3 B. Nonsigners 1. Brown, D. L. 4. Foor, G. 6. Klemens, D. P. 2. Claybaugh, D. R. 5. Hillegas, N. M. 7. Stinson, D. P. 3. Crouse, W. M. 8. Yarlett, J. L. C. Employees as to whom the date of card signing was disputed. 1. Long, L. F. III. STUDENT EMPLOYEES A. Card signers with dates of signing 1965 1965 1. Calhoun, L. D---------- June 30 8. Ramsey, E. M---------- June 23 2. Clark, W. L------------ June 25 9. Reed, M. L------------- June 18 3. Clouse, G. M----------- June 25 10. Riley, C. D____________ July 2 4. Dicken, R. L------------ June 25 11. White, A. A____________ July 3 5. Hoffman, F. H---------- June 24 12 Willer, R. L------------ June 6 6. Mearkle, G. C---------- May 25 13. Young, J.R------------- June 27 7. Mills, J. B-------------- June 25 B. Nonsigners 1. Clark, M. L. 6. Keebaugh, D. M. 10. Smith, L. B. 2. Diehl, G. R. 7. Over, A. R. 11. Smith, L. R. 3. Jenkins , L. J. 8. Peake, L. K. 12. Whitefield, C. L. 4. Johnston, E. A. 9. Rice, R. L. 13. Willer, L. E. 5. Karns, E. M. 14. Yoder, D. R. It is further recommended that the complaint be dismissed insofar as it alleees unfair labor practices not found herein. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL offer to Joseph Duffy immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss he may have suffered as a result of discrimination against him. WE WILL bargain collectively, upon request, with Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL- CIO, as the exclusive representative of all the employees in the bargaining BRYAN BROTHERS PACKING CO. 1179 unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit it: All employees at our Breezewood, Pennsylvania, restaurant excluding sea- sonal employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT threaten our employees that our bake shop will close, that they will be required to pay for the laundering of their uniforms, or that any other reprisal will be taken for engaging in union activities. WE WILL NOT create the impression that we are engaged in surveillance of employee union activities. WE WILL NOT discourage membership in Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, or any other labor organization by discriminatorily discharging, or laying off any of our employees. WE WILL NOT refuse to bargain collectively with Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL- CIO, as the exclusive representative of all the employees in the bargaining unit described above. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Hotel & Restaurant Employees and Bartenders International Union, Local Union No. 397, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified to the Labor-Management Reporting and Disclosure Act of 1959. POST HOUSES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 644-2969. Bryan Brothers Packing Company and Amalgamated Meatcut- ters and Butcher Workmen of North America , AFL-CIO, Local 515. Case 26-CA-2334. November 18, 1966 DECISION AND ORDER On July 28, 1966, Trial Examiner Marion C. Ladwig issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He further found that Respondent did not engage in certain other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent filed exceptions to 161 NLRB No. 107.