Historic Smithville Inn

78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Historic Smithville Inn and Hotel, Motel and Res- taurant Employees Union , Local 508, AFL-CIO Local 508, AFL-CIO Historic Smithville Inn, Quail Hill and Hotel, Motel and Restaurant Employees Union , Local 508, AFL-CIO. Cases 4-CA-4146 and 4-CA-4151 January 10, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 29, 1967, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices alleged in the complaint and recommend- ing that it cease and desist therefrom and take cer- tain affirmative actions, as set forth in the attached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed cross-exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,I conclusions, and recommenda- tions of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE PROCEEDING GEORGE J. BOTT, Trial Examiner : Upon charges of un- fair labor practices filed by Hotel , Motel and Restaurant Employees Union , Local 508 , AFL-CIO, herein called the Union, on December 5, 1966 against Historic Smithville Inn and on December 9, 1966 , against Histor- ic Smithville Inn and Quail Hill, herein called collectively the Employer or Respondent, the General Counsel of the National Labor Relations Board issued a consolidated complaint on April 3 , 1967, in which he alleged that Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended , herein called the Act. Respondent's answer admitted certain allegations of the complaint but denied the commission of any unfair labor practices. A hearing was held before me in Atlantic City, New Jersey , on May 16 and 17 , 1967. Subsequent to the hearing, General Counsel and Respondent filed briefs which I have considered. Upon the entire record in the case and from my obser- vation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS On the basis of the admitted allegations of the com- plaint, I find that Smithville Inn and Quail Hill are New Jersey corporations engaged in the business of operating restaurants in Smithville, New Jersey. These corpora- tions are affiliated businesses with common officers, ownership, directors, and operators, and constitute a sin- gle-integrated business enterprise having a common labor policy affecting the employees of said corporations. In the course and conduct of its business, Respondent annually has a gross volume of business in excess of $500,000 and annually purchases and receives goods and supplies valued in excess of $50,000 from outside the State of New Jersey. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, Historic Smithville Inn and Quail Hill, Smithville, New Jersey, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I Respondent's exceptions directed to the credibility resolutions and al- leged misconduct of the Trial Examiner are without merit. The Board will not overrule the Trial Examiner's resolutions as to credibility , unless a clear preponderance of all relevant evidence convinces us that they are in- correct. Upon the entire record, such a conclusion is clearly not warranted herein. Standard Dry Wall Products , 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting and the Issues After a meeting of not more than a dozen of Respond- ent's employees on November 28, 1966, at the Union's headquarters in Atlantic City, where an organizational drive was planned, the Union, commencing on the follow- ing Wednesday night, November 30, and continuing on every night thereafter until December 7, held meetings for employees at Jo-Jo's Bar and the Beachcomber, both establishments located near Respondent's restaurants. On Friday, December 2, 1966, the Union demanded recognition as the statutory representative of Respond- ent's unit employees. The Union's communication on 169 NLRB No. 23 HISTORIC SMITHVILLE INN December 3 and subsequently denied the request both orally and in writing. I On December 7, 1966, the Union called a strike and began to picket the Respondent. Picketing apparently continued for about 3 weeks but it is not clear just how long the strike lasted. During this brief but intense and unsuccessful drive to organize Respondent's employees, however, Respondent is alleged to have discharged Magaret Jackson, one of its waitresses, because of her union activities, and to have engaged in various acts in violation of Section 8(a)(1) of the Act, such as illegal in- terrogation; a promise of benefits; threats related to the employees union activities; and surveillance of employee activities and meeting places. Respondent denies the acts of interference, restraint, and coercion in violation of Sec- tion 8(a)(1) of the Act, and it contends that Jackson was discharged for cause. B. AllegedActs of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) of the Act 1. Surveillance of union meetings Charles Miller described himself as a "coordinator" in charge of "handling of correspondence, coordination of the three restaurants as far as repairs, construction, park- ing lots, safety, security, and general manager." He is concedely a supervisor and agent of Respondent. Miller admits having been at Jo-Jo's bar on Thursday, December 1, and Saturday, December 3, and also leav- ing the establishment and visiting the adjoining Beachcomber bar on December 3 at approximately the same time as the employees moved their union meeting from Jo-Jo' s to the Beachcomber. It would be well to re- call here that the Union held meetings for the employees at Jo-Jo's which is south on U.S. 9 from Smithville, New Jersey, and a convenient and popular stopping place for Respondent's employees after work, every night from Wednesday, November 30 to December 7, 1966. Jo-Jo's contains a barroom, with a semicircular bar large enough for approximately 20 to 30 stools, and a room containing a pool table separated from the bar by a partition and entered through an entrance close to the bar and near the main entrance but not closed by a door or curtain. The union meetings were held in the so-called poolroom which had no door and can be at least partially viewed from certain seats at the bar. There was a substan- tial amount of testimony taken about Miller's location at the bar during his visits to Jo-Jo's, but the witnesses did not agree on where he was and what he could'see, without a little effort. General Counsel's witnesses had him close to the poolroom entrance staring intently in that direction. Respondent's witnesses moved him back some way from the entrance, and described him as disinterested in the happenings in the adjoining room, chatting only about piz- zas, pool and six-packs. I find it not particularly impor- tant to completely resolve the location problem for it is evident that Miller was present during the meetings, and it is clear to me from the evidence that he could see Respondent's employees entering the bar and continuing 1 There is no allegation in the complaint of refusal to bargain in violation of the Act. The Union insisted on recognition on the basis of signed authorization cards, but the Employer demanded a Board election The record does not disclose how many authorization cards the Union had in its possession when it sought recognition, and the number of employees in the unit for which the Union demanded recognition is also uncertain. 79 on into the poolroom where the union activity was going on. What is important, of course, is Miller's motive in visiting the establishment when he did.2 A number of General Counsel's witnesses placed Miller in Jo-Jo's bar more than once during the critical period. John Timperio, president of the Union, testified that, as employees from Respondent started to enter Jo- Jo's to attend a union meeting at approximately 8:30 p.m., Miller was sitting at the bar. Employees continued to ar- rive until around 9 p.m., he said, and Miller was still there. Timperio said that his position at the head of a group of tables which had been assembled in the pool- room enabled him to see Miller sitting at the bar. He said Miller could look into the room and did so. Timperio ob- served him for about 10 minutes after the meeting started but not thereafter, because he became involved in con- ducting the meeting. On Saturday night, December 3, Timperio saw Miller at the bar again. According to him, Miller was seated in "roughly" the same position as earlier in the week and remained there while employees were entering the meet- ing room. Employees complained to Timperio about Miller's presence, so he made arrangements at the Beachcomber, an adjoining bar, to use their private room. As Timperio and the employees left Jo-Jo's for the Beachcomber around 10 p.m., Miller was still sitting at the bar in Jo-Jo's, Timperio said. Margaret Jackson, the alleged discrimmatee in this case, said she saw Miller at Jo-Jo's bar on Wednesday, Thursday, and Friday of the week in question. She also saw him at the Beachcomber on Saturday night, after the union meeting was transferred there. Miller testified that he knew Jo-Jo's bar and the Beachcomber very well and had visited Jo-Jo's "man, many times," or "an average of three or four times a week." He said he got there at approximately 9:30 p.m. on December 1 but no one from management sent him and his visit was entirely on his own. John Ferrie, one of the bartenders at the Inn, accompanied Miller that night because Ferrie was without a car, and Miller offered him a ride home. On the way, Miller said, they both decided to stop at Jo-Jo's. As indicated earlier, Miller said he sat a greater distance from the poolroom than Timperio had indicated, and he denied that he frequently looked into the poolroom while he was there. Asked if he knew before he went to Jo-Jo's that there was to be a union meeting that night, he replied that he had heard rumors that there was to be a meeting of em- ployees but he denied that he knew it was to be a "union meeting." He said he did not make the visit because of the rumors, for the "decision was made in transit between Smithville and Jo-Jo's," but he added that "it may have been with a certain amount of curiosity that prompted me to stop there." Miller did not go to Jo-Jo's on Friday, December 2, he said, but he did go alone on Saturday night, December 3. He testified that he remained only 15 minutes, and because the bar and poolroom were crowded he left and went to the nearby Beachcomber bar where he stayed for a half hour. He said there was no meeting in progress 2 Exaggerations or inconsistencies in the testimony have not been over- looked for whatever bearing they may have on the credibility of the par- ticular witness, however. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD while he was at Jo-Jo's, that he did not know that there was going to be one when he went there, but he "probably assumed that there was going to be" one, and that when he left for the Beachcomber he had no knowledge that the union meeting at Jo-Jo's was being transferred to the Beachcomber. He did recognize certain employees of Respondent who were at Jo-Jo's when he was there enter the Beachcomber after he did. I do not believe Miller's statements that his two visits to Jo-Jo's bar and his leaving of Jo-Jo's on Saturday night, December 3 for the adjoining Beachcomber were motivated by social, personal, or other considerations, unrelated to the union activities of Respondent's em- ployees. First of all, as already set forth, Miller's own ver- sion contains admissions that he was at least partially motivated by his awareness that the employees were hav- ing some kind of a meeting. He said, for example, that although the decision to stop at Jo-Jo's for a drink was made while he was driving Ferrie home, "a certain amount of curiosity" also might have prompted him to visit the bar. Similarly, on Saturday night, when he returned to Jo-Jo's either to drink or play pool, he said he didn't "know" that there would be a union meeting there, but he added that he "probably assumed" there would be. In addition to these admissions, Miller's testimony in this area was evasive and contradictory, thereby indicating that the purported reasons for his conduct were not the real ones. Under cross-examination Miller said, in response to a question about his knowledge that a "union meeting" was in progress at Jo-Jo's before he got there, that the "first hint" he had that the employees were trying to organize was obtained after he arrived. He admitted, however, that he stated in an affidavit given the Board that he became aware that the Union was organizing when he heard "rumors at the Inn that the union was hav- ing the meeting at Jo-Jo's." He then maintained that the word "union" was an "oversight" in the affidavit which he executed. This testimonial maneuvering reflects ad- versely on Miller's credibility.3 There are at least two inadequately explained coin- cidences appearing in Miller's version. Margaret Jackson, the dischargee in the case and apparently a regular visitor to Jo-Jo's after working hours, credibly testified that Miller used to frequent Jo-Jo's regularly, but his visits stopped sometime in the summer of 1966. Miller did not completely agree on the time when his habits changed, but he conceded that he ceased making regular stops in August 1966. He maintained that he commenced to patronize the bar again in November 1966, but he was careful not to say that he resumed his earlier habit of frequent visits, and he was unable to fix exactly the time when he started again. Not only is the coincidence of the union meetings and Miller's presence odd and unex- plained but here again Miller appeared evasive and con- tradictory, for he started off on direct examination with the flat statement that he frequents Jo-Jo's "an average of three of four times a week" and it was only on cross-ex- amintation that it was learned that his routine had been in- terrupted many months before and never reestablished on the same basis. The other most interesting coincidence in time is Miller's appearance at the Beachcomber on the same night that the Union moved its meeting there because the employees were concerned about Miller's ap- pearance at Jo-Jo's. Miller's explanation of his move to the Beachcomber was lame and actually not supported by facts. In substance he said he left Jo-Jo's because it was so crowded that he couldn't sit to drink and was unable to play pool. Therefore, he went to the Beachcomber, completely unaware of the meeting just being moved to that location. It is significant that the Beachcomber con- tains no pool table, although the "19th Hole," another nearby saloon which Miller and Crawford, a bartender at Respondent, have frequented, does. In addition, Gross- croft, Respondent's supply chief who was at Jo-Jo's when Miller arrived on December 3, testified that Miller saw him and his wife and came and "sat behind us." Finally, when Miller arrived at the Beachcomber he asked em- ployee Jane Ellenbart, who was sitting at the bar, "Is there a meeting here tonight." Since he had testified that his move to the Beachcomber was made in ignorance of the employees' activities, he explained his question as like asking "Is there a dance tonight" when one sees an orchestra arrive; the analogy being that because he at that very moment saw employees from Smithville Inn coming into the Beachcomber from Jo-Jo's, this automatically prompted his inquiry. The explanation of this coincidence also does not ring true.4 Other factors detract from Miller's credibility. He de- nied facts which he would normally have known and ac- tions which he would have reasonably taken, tending all the while to understate and underplay his activities at the places where the meetings were held. On direct examina- tion he said he could not recall seeing Timperio, the Union's president, at Jo-Jo's, and it was not until cross- examination that he admitted that it was "obvious" to him when he got to Jo-Jo's that the Union was attempting to organize employees because "Timperio was there as pre- sident of the Union," and either Crawford or Ferrie pointed this out to him.5 Miller conceded that while he was at the Beachcomber "there were many people coming in and going out of the closed room," but at first he claimed that he didn't know that they were Respondent's employees, because he did not watch them. It appears however, as Miller later stated, that Respondent's employees wear distinctive costumes and Miller recognized them as employees. He then maintained that he recognized the persons entering the room as "people" only employed by Respondent not 8 As will appear in the discussion of Jackson's discharge, infra, the union activity at the Smithville Inn itself as early as November 28 or 29 was known to supervisors. Supervisor John Hand testified that he knew of the "union activity" at the Inn before he went to Jo-Jo's bar on December 1, for he had seen a union card at the Inn. 4 Other interesting coincidences one of which I find it unnecessary to resolve are: Miller said that very few of the management staff went to Jo- Jo's, yet Robinson, Respondent's executive chef who does not drink and goes there rarely, was present with his wife, either on December 3 or 4, during a union meeting, and John Hand, a supervisor who also frequents Jo-Jo's on rare occasions , was there on December 1 during a meeting. Both Hand and Robinson knew that union activity had commenced at Respondent. Hand knew that a meeting would occur the night he visited Jo-Jo's, and the next day he told Robinson that he had met the Union's president. In Hand's case, although the complaint does not allege it as an unfair labor practice, nevertheless, as bearing on the alleged innocence of Miller's attendance at the places where the meetings were held; I find that Hand, with knowledge that a union meeting was being held, visited Jo-Jo's for the purpose of observing the union activities. 5 It further appeared from his testimony that "Timperio was in the pool room," but Crawford and Ferrie, Miller's asserted source of information about Timperio, testified that they did not point Timperio out to Miller or refer to the poolroom. This, I find, was grossly exaggerated and pretended indifference on their part. Crawford even denied that Miller even looked into the poolroom. Ferrie said Miller did look into the poolroom, "but everyone was sitting on the table at the time." HISTORIC SMITHVILLE INN 81 as union adherents , but it also appears that he gave an af- fidavit to the Board during the investigation of this case in which he stated that while he was "at the Beachcomber the union people came into it and had a closed meeting. I saw who was there because they came in while I was there." This inconsistency and his pretending to be blind to people in colonial dress are additional indications of his unreliability. Finally, Miller said he made no reports to any manage- ment official about what he saw at Jo-Jo's or the Beachcomber . Mrs. Noyes , coowner of the Inn with her husband, testified that she heard that the Union was pay- ing for drinks at Jo-Jo's , and, in her December 7 letter to the Union denying recognition , she used this information as one of the reasons for refusing to honor the Union's majority claim. Miller testified that when he asked for his bar bill at Jo-Jo's, the bartender told him the drinks were on the Union. It's likely that Miller told Mrs . Noyes this fact, if it is a fact,6 and I find it abnormal for a "coordina- tor" whose duties encompass "security" to be so reticent about a union's drive to organize his employer . I find that he did keep higher officials informed, and his conceal- ment of it is another factor indicating that his role at the bars was different from what he said it was. I find, in accord with the allegations of the complaint, that on or about December 1 and 3, 1966, Respondent, through Charles Miller, engaged in surveillance of union meetings and activities at which employees participated at places known as Jo-Jo 's and the Beachcomber. By such conduct, Respondent violated Section 8(a)(1) of the Act. 2. Alleged threats and interrogation by Frank Dominico, Respondent's kitchen manager Margaret Jackson , discharged by Respondent on Satur- day, December 3, 1966, allegedly for her union activities, attended all the union meetings at Jo-Jo's bar. She testified that on Wednesday night, November 30, while she was sitting at Jo-Jo's bar in the company of other waitresses and waiters employed by Respondent, Kitchen Manager Dominico entered . A union meeting was going on at the time in the adjoining poolroom, and Jackson said she asked another waitress what was going on in the side room . The waitress told her it was a union meeting and if she were "smart" she wouldn't go in. Jackson said she entered the room anyway, stood and listened for a while , and then returned to the bar where Dominico was now seated and sat next to him. Jackson testified that she had a 20-minute conversation with Dominico during which he referred to the fact that employees were signing union cards. According to her, Dominico stated that he controlled the "kitchen help, the Puerto Rican help and they would all do as he said, and that none of them would go out on strike." He also said that if the waiters and waitresses struck "600 Dagos would take over their jobs." Jackson added that Dominico told her that Mrs. Noyes, coowner of the Inn, had sent him to Jo-Jo's bar to discover the key organizers, that he knew three of them, and would find out who the others were . Dominico then asked Jackson if she had signed a union card , and she admitted that she had. Dur- ing the evening, Jackson said, she and Dominico "had quite a conversation involving the people ,, most of it con- cerning union activities that were going on, why we wanted a union , etc." Although Jackson said she laughed when Dominico said he could replace the waiters and waitresses with "600 Dagos," she maintained that Dominico seemed "quite stirred up" and was not joking. Dominico was admittedly at Jo -Jo's bar after work every night of the week during which the Union was meeting there, but he testified without contradiction, and I credit him here, that he has been visiting the bar every night, except on his night off, for many years and Wed- nesday, November 30, was his night off. Dominico de- nied that he had been sent to Jo-Jo's bar to observe em- ployees or that he had ever reported what he had seen to any management official . He said he never told "any em- ployee" (including Jackson, I assume, although he did not specifically include her by name), that he had been sent to the bar to uncover the union adherents , and he denied that he had ever interrogated or threatened any employee. He stated that he knew Margaret Jackson, but said he did not speak with her at Jo-Jo's because Wednesday, November 30, was his day off and he was not there that night. He concluded his direct examination by stating that "naturally" he did not tell Jackson that if the employees struck he would replace them with "600 Dagos." Dominico had been president of a local union in another city for a substantial period of time some years ago, and he indicated that since he knew that unfair labor practices could involve management in legal problems, he "never mentioned no union to anybody" at Jo-Jo's. Respondent contends that Jackson is a liar and that Dominico's version is more logical and truthful . I am puz- zled by and not satisfied with either version . At first glance, Jackson's account seems illogical. She had been interested in the Union for several days, was one of a small group who distributed union cards and she had so- licited at Respondent's restaurant that very evening. Yet, that night, before the Dominico conversation , she pre- tended to another employee that she did not know that a union meeting was being held in the adjoining room and that she was only mildly interested. Subsequently, when Dominico arrived and, after confessing that he was spy- ing for Mr. Noyes, asked her if she had signed a union card, she readily admitted it. Peculiar as these actions ap- pear, however, they were not completely out of character for Jackson, because on the next night, when Supervisor Hand arrived at Jo-Jo's, Jackson, as Hand conceded, took him into the union meeting room and introduced him to Timperio , the Union's president, who proceeded to ex- plain the benefits of unionism to him. Jackson either trusted or did not fear Hand, and it may be that she felt the same about Dominico whom she had known as a friend for some years . Moreover, I found Jackson to be generally accurate and persuasive , and I am not inclined to find her account of this incident incredible on its face. If Dominico had been a more positive , and direct witness, however, I might credit more of his denials and reject some of Jackson's account, but Dominico was vague and uncertain, and he impressed me, as did Miller, as conceal- ing what happened and how much he really knew about what was going on. Dominico clearly was not telling the truth when he said that he did not speak with Jackson at Jo-Jo's bar. If he merely meant that he did not speak with her on Wednesday, November 30, because he didn't visit Jo-Jo's that night, then he was deliberately trying to evade the 6 Crawford and Ferrie, Miller's companions , did not mention it. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue.7 Under cross-examination Dominico conceded that he may have talked with Jackson on other evenings that week, for he said "When I see her in there, I say hello and stuff like that. I might buy her a drink." Asked specifically if he had talked with her at the bar, he shrewedly replied that he "had never sat next to her," but that "Every once in a while maybe she will come up to me and start talking." He stated that they were "friendly," however, having worked together and having seen each other at Jo-Jo's. There is no question in my mind that the two talked that week and that Dominico was much more loquacious than he indicated. I am also convinced that Dominico discussed the union activities that were going on at Respondent's restaurants and at Jo-Jo's. First, Dominico was a steady patron of Jo-Jo's who knew that meetings were being held there. Second, he knew that cards were being distributed at Respondent early that week, for he said that on November 28 one of the em- ployees he supervised handed him a union card which he gave to Mr. Noyes. He also volunteered that on Tuesday night, November 29, at Jo-Jo's, Fred Rigsby, a cook at Respondent, told him that "we've got all your buddies signed up." There was conversation about the union ac- tivities with Dominico certainly, and he was not telling the truth when he said he had none with Jackson. I credit Jackson, and I find, as she testified, that Dominico told her that he was sent to Jo-Jo's to determine the identities of union adherents; he interrogated Jackson about her union activities; and he threatened to discharge em- ployees if they struck. By such conduct, Respondent vio- lated Section 8(a)(1) of the Act. 3. Interrogation of employees by Mrs. Noyes The complaint alleged that on or about December 5, 1966, Respondent, through Mrs. Ethel Noyes, inter- rogated employees at Respondent's premises about their union activities, but the only witness called to support this allegation was Angelo Fotiou, who left Respondent's employ shortly before December 7, the day of the strike, and who is now self-employed. Fotiou could remember nothing of the interview he had with Mrs. Noyes, which was the basis of the allegation, without looking many times at the affidavit he had given the Board during the in- vestigation, and there is some question that he had any recollection of the events even after reading his affidavit. At least that is the way it appears from the transcript, but it is my recollection that Fotiou, although he has a lan- guage problem, is a very intelligent person who preferred not to have to say too much, against anyone. It is clear, despite these difficulties, that he was called from his sta- tion to talk with Mrs. Noyes and that dining room manager, John Gruhle, was also present. The questions which Mrs. Noyes asked Fotiou also bore on the union activities which were occurring, but how much it is al- most impossible to say. Fotiou said Mrs. Noyes wanted to know why the "people were upset" and "what was going on," but then he suffered a loss of memory and had to read his affidavit. He said he told Mrs. Noyes he be- longed to the Union, but it also appears that he had been 4 If Jackson was confused about what night she had her talk with Dominico, he was as much in error as she about what union activities hap- pened on the evenings he actually was at Jo-Jo's. He testified that on Tuesday, November 29, there was a union meeting going on at Jo-Jo's, but this is contrary to the testimony of all other witnesses. 8 Mrs Noyes admitted in her testimony that it was possible that she had talked with Fotiou, although she had given the Board an affidavit in which a member for some time, and Mrs. Noyes knew it. Fotiou then said he couldn't remember whether Mrs. Noyes asked him about his membership. Fotiou also stated at another point that Noyes asked him if he had signed a union card, but he diluted this statement by adding "she asked me off-hand, lets put it that way." He concluded by agreeing that he would have to read his affidavit to be able to say what Mrs. Noyes said to him and what he replied. I am unable to make a finding of improper interrogation on Fotiou's testimony alone, but General Counsel argues that Gruhle unequivocally corroborated Fotiou's testimony by admitting that "there were rumors of union activity and we were interested in what was going on." This was not all of Gruhle's explanation for his inquiries to Fotiou and other undisclosed employees for he added that Mrs. Noyes asked Fotiou "what is going on around here, what is all of this buzzing about, why is everybody in huddles, why aren't they tending their business?" He explained that this question was asked because "nobody was minding the store, so to speak. There was nobody on the stations, the customer was going neglected." With this explanation adding a proper basis for the inquiries it can't be said that Fotiou's nebulous testimony finds corrobora- tion in Respondent's witnesses." I find that General Counsel has not established by a preponderance of the evidence that Respondent, through Mrs. Noyes, coercively interrogated employees, as al- leged. 4. Alleged promise of benefits Clarence Harris, employed as a chef, did not cross the Union's picket line on December 7 but stayed home for a day or two, during which period Earl Robinson, execu- tive chef and Harris' supervisor, visited him at his home. After talking with Robinson, Harris returned to work, and the complaint alleged that Robinson promised him a benefit if he would terminate his union activities. Like Fotiou, Harris didn't want to "involve" himself in the proceeding and he contributed little to it.9 For reasons similar to those in Fotiou's case, the record will not sup- port a finding that Respondent illegally promised him a benefit, although it is clear that Robinson discussed Har- ris' job with him before Harris decided to go back to work. Harris first testified that Robinson visited his home and asked him what he intended to do during the strike. In this part of Robinson's testimony no promise of any kind ap- pears, for all Robinson, according to Harris, told him was that he was a good employee, that Mrs. Noyes wanted him back at work, but it was up to him to make the deci- sion. If he did return, Robinson added, his job would be "insured" and he would have nothing to worry about. At this point, however, Harris' memory failed him and he had to be led into stating that Robinson said "I may help you," and that by such remark Robinson meant that "if I needed an extra day off to take care of some business, [he] would arrange it." Harris went to work that day, he said, and telephoned Mrs. Noyes from one of the restau- rants in the Smithville Inn complex. All that he could re- she denied that she had spoken with him at all during this period. Nevertheless, although, I am convinced that the conversation occurred and it bore on the union activities of the employees, Fotiou 's vacillation makes the evidence of coercive interrogation less than enough to sustain the necessary burden. 9 Harris twice said that he did not want to appear as a witness and wanted "no part" in it HISTORIC SMITHVILLE INN call of their conversation was that she "welcomed him back." Harris' memory did not seem to improve even after he read the affidavit he had given the Board during the investigation. Robinson denied that he had promised Harris anything to get him to return to work, and although he did not specifically deny that he told Harris that he could arrange an extra day off for him if he needed it, he indicated that employees do get extra time off with his permission in emergencies. The record also shows that prior to the hearing Harris signed an affidavit for Respondent's counsel stating, in part, that no management official had ever promised him "any benefit except protection from unlawful conduct," that the "only promise of benefit made to me by Mrs. Noyes or Mr. Schmidt was that they would take care of me and my job so I would not lose it if the union did come in," and that he had been told by undisclosed persons that something might happen to him or his family if he con- tinued to cross the picket line. I find, in the circumstances, namely, Harris' poor memory, real or pretended; his prior inconsistent state- ment; Robinson's denial or explanation of whatever fu- ture benefit was mentioned; and the uncertainty and lack of precision regarding the promise itself, that General Counsel has not established this allegation by a prepon- derance of the evidence. 5. Respondent's questionnaire The complaint alleged that "on or about December 18, 1966, Respondent ... distributed to, and solicited from employees, at its premises, questionnaires which inter- rogated employees about their preference for a Board conducted election or an impartial card check as a means of determining union support among employees." Respondent's answer admitted this allegation, and the questionnaire is in evidence. The questionnaire, entitled "VOLUNTARY STATE- MENT OF EMPLOYEES," initially notes that although the Employer asks employees to sign it and place their in- itials in the box of their preference, they are under no obligation to do so. The document then informs the employees that the Union claims to represent a majority of Respondent's employees; the Union wants the Employer to regard the showing and counting of union application cards as proof of its claim; the Em- ployer prefers a National Labor Relations Board election to determine whether the employees want a union; the Union refuses an election as the "method for proving their dubious claim and for ending the present picketing and strike;" and the Employer doubts the Union's claim and regards cards as a most unreliable method of showing the choice of a majority of employees. After the above preamble, the employee is then asked to mark with his initials in the appropriate space his choice of two alternatives. The first states that he prefers a secret election to determine whether the employees "want or do not want a union." The second states that he prefers a show of union cards to some impartial third 10 Like in political polls and others in the social field, results obtained from this type of survey are clearly conditioned by environment, timing, the phrasing of the question to mention the number of choice, and by countless subjective considerations. A strike, like greater social upheavals, for example, is a factor which would influence an answer And when the question is do you want to vote now, not did you designate the Union as your representative some time ago, the answers establish 83 party as the best way of determining the same issue. There is then a space for signature prefaced by a dis- claimer of pressure or undue influence and a statement that the purpose of the signer is to inform the Employer how he feels about "alternatives which cause the existing dispute between Historic Smithville Inn and the picketing unions." The questionnaire was utilized long after the Respond- ent had denied the Union's demand for statutory recog- nition. Respondent contends, however, that it was provoked by Timperio's oral claims that Respondent's employees wanted the Union to be recognized on the basis of a show of cards rather than an election. Schmidt said Timperio made this claim twice, once on December 17, and again in January 1967. I have grave doubt that Respondent prepared the questionnaire because Tim- perio said the employees (as distinguished from the Union as an entity) wanted a card check rather than a vote. The document is dated December 18, only a day after Timperio made the claim, and it does not even state that it is being used because the Union claimed that em- ployees, as such, wanted a card check. In any case, I find, on the basis of Board decisions, that the use of the questionnaire interfered with employee rights under Sec- tion 7 of the Act, and was not protected by the First Amendment to the United States Constitution or by Sec- tion 8(c) of the Act, as Respondent contends. The questionnaire is based on the assumption that a majority of employees had signed cards designating the Union to represent them, for otherwise it was pointless. By telling employees what their employer wanted, sug- gesting that "the existing dispute" (the strike and picket- ing) could be resolved by a choice between the "alterna- tives," namely a vote or a card check; and by asking the subjects of the poll to disclose their identities, if they chose, Respondent without legitimate reason impinged upon the right of employees to remain mute and let the Union speak for them, and subtly coerced them in the direction their employer wished them to go.' ° In Struksnes Construction Co, Inc., 165 NLRB 1062, the Board announced new standards for judging the legitimacy of interrogation in this field. The Board said it was adopting ... the following revision of the Blue Flash criteria: Absent unusual circumstances, the polling of employees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere. In my opinion, Respondent's interrogation did not relate to the truth of the Union's claim of majority but at best to whether employees agreed with their employer or the Union on the method for resolving the claim. I am also of nothing reliable about the validity of the Union's "claim of majority" when it was made. This is at least close to inquiring into an employee's thoughts or afterthoughts to negative the overt action of having signed a card, which the cases say may not be done. See Joy Silk Mills v. N.L R.B., 185 F.2d 732 (C.A D.C ), cert. denied 341 U.S 914; N.L.R.B. v Southbridge Sheet Metal Works Inc , 380 F 2d 851 (C.A 1). 350-212 0-70-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the opinion that clear and specific assurances against reprisal if an employee did not sign or indicate his choice are not contained in the document, and I have also found that Respondent engaged in other unfair labor practices in violation of the Act. But laying all these considerations to one side, the poll was not by secret ballot, obviously, prefacing a document, the form and thrust of which cries out for personal identification, with the words you "are under no obligation" to sign although "your employer asks you to" is not the same as holding a secret-ballot election with no conditions." I find, on the basis of the principles in the cited case, that, by the use of the questionnaire, Respondent engaged in an additional violation of Section 8(a)(1) of the Act. C. The Discharge of Margaret Jackson Margaret Jackson had been employed by Respondent as a waitress for a little over 5 years when she was discharged on Saturday, December 3, 1966. Jackson was one of the first to become interested in the Union for she attended the organizational meeting at the Union's Atlan- tic City headquarters on November 28, 1966, where she and a few other employees were given union cards for dis- tribution. Jackson made her first distribution at the Inn on Wed- nesday evening, November 30, when she gave out 11 cards and had some returned to her immediately. She said that the Respondent knew of this activity because Mrs. Lois Muller, sister of Mrs. Noyes, coowner, was standing nearby, looking at her as she signed up another waitress for the Union while they sat at a table during a dull period. Later that evening, after Jackson had completed her duties and was resting before leaving the restaurant, Gruhle, the dining room manager, told her that Mrs. Noyes was "upset" because union cards were being passed out "at work." Gruhle and Noyes did not deny this testimony.- Apparently, Respondent's waiters and waitresses work in pairs, one concentrating on the customers and the other kitchen. Jackson's partner was James Dent, and as an ad- ditional indication of company knowledge and interest in her union activities, she testified that, on Wednesday evening, November 30, Dent told her that while he was in the kitchen, Hand, assistant chef, had put his hand in Dent's jacket pocket searching for something. Jackson, in order to find out what was going on, removed the union cards she had,in her apron pocket to a safer place, and en- tered the kitchen. She said that Hand approached her and silently put both hands in her apron pockets which con- tained only a pencil and a customer due book. Jackson asked Hand if he was looking for union cards, and she said that he admitted he was, and walked away. Jackson engaged in other union activities. She attended the union meetings at Jo-Jo's bar, described above, and she moved to the Beachcomber with the other employees on Saturday' night. There is no question that she was seen at these places by management representatives for Coor- dinator Miller admitted he saw her at Jo-Jo's, and con- ceded that he probably saw her at the adjoining Beachcomber. During the week in which the Union held meetings at Jo-Jo's, other management representatives were present; namely, Robinson, Grosscroft, Dominico, and Hand, and Jackson was seen by some of them on some nights. I have already found that Dominico asked her if she had signed a card, which she admitted, and she introduced Hand to Timperio, the president of the Union, no later than Thursday, December 1. Jackson did not work on December 1 and 2, and when she reported at her regular time on Saturday, December 3, she was not permitted to clock in but was told that Merrill, the Inn's manager, wanted to talk with her. Be- fore Jackson could find Merrill she was met by Gruhle, who showed her a yellow sheet of paper, containing cer- tain computations which he said had been prepared by the bookkeeping department, and told her that because she had been late for work on 21 of the preceding 31 days he was releasing her. Jackson was regularly scheduled to report for work at 3:30 p.m., except on Sundays when she reported at 11:30 a.m. She conceded that for 3 years or more she was frequently late for work and that on Tuesdays she was later than usual because she had to take her small child for regular medical treatments. Respondent's officials were aware of her problem, she said, for they had had discussions with her about it. Although she claimed that she had never been warned that she would be discharged if she did not improve, she conceded that she had several conversations over the years with Gruhle, dining room manager, about reporting late. She also admitted that Gruhle, Merrill, and she met with Mrs. Noyes on one oc- casion about a year before her discharge. She said, how- ever, and this is uncontradicted, that Mrs. Noyes told Merrill and Gruhle that Jackson was one of her better waitresses and she would "do everything possible" to keep her employed. Jackson claimed that her discharge, coming as it did without warning, was a shock to her, and she stated that although other waiters and waitresses have reported late, no one to her knowledge has been discharged because of it. 13 Respondent contends that Jackson was discharged because of chronic tardiness. The core of Respondent's defense is its claim that it made its decision to discharge Jackson in late November before anyone knew that she was active in the Union,14 but delayed effecting it until Saturday, December 3, 1966, on advice of counsel. Mrs. Noyes is coowner and secretary-treasurer of Respondent. The substance of her testimony is that although Jackson was actually informed about her discharge on December 3, she had discussed her case with Merrill and Gruhle at least a week earlier, at which time they recommended Jackson's discharge. She told her managers that she would give them an answer at the 11 Any ballot cast in a National Labor Relations Board election which bears a signature or an identifying mark is void 12 In a speech to employees on December 4, 1966 , Mrs. Noyes stated that "On Wednesday, November 30, 1966, we learned for the first time that the Hotel & Restaurant Employees Union is attempting to organize our employees." 11 Termination records of other employees in evidence, which were presented by Respondent to show that other employees were discharged for being late, do not, except in one case (employee Donald Hill, who as discharged in 1962), bear out Respondent's contention, because in the other cases there were added reasons for discharge, such as , "drunkness," "constantly out," and "failure to report " for work. Moreover, in my opinion, they add little to the case, for, if others were fired for tardiness, the question still remains as to why Jackson, the most tardy of all, was not discharged until she became active in the Union. 14 At least one of Respondent's representatives , Merrill, manager of the Inn, said that he had no knowledge of Jackson 's union activity until he saw her on the picket line on December 7. HISTORIC SMITHVILLE INN 85 beginning of the following week, and, on Monday, November 28, she advised them she "agreed" with their recommendation. Changes in the New Jersey Law regulating wages and hours of employees in establishments such as Respond- ent's were to go into effect on December 15. Mrs. Noyes said that she and her staff were confused about the law's meaning and application and so she telephoned her labor relations lawyer in New York, N.Y., on November 30 and asked him to come to Smithville and interpret the regulations.15 During the telephone conversation, Noyes told her attorney that she had also heard "rumors" that the Union was attempting to organize Respondent's em- ployees. When she mentioned this subject, Schmidt told her to remember what he had told her years before during another campaign to organize employees, namely, not to threaten employees or to discharge anyone until he could talk with her. This advice caused Noyes to comment that she had aproblem because "we had already made up our minds to letting" Jackson go, but Schmidt told her to wait until he got there. Schmidt arrived in Smithville on Saturday, December 3. Noyes said a conference was held and Gruhle and Merill were in attendance as needed. Some sort of record of Jackson's attendance had been compiled which Schmidt looked at it and, according to Noyes, said that management was "perfectly justified in letting the girl go as we had planned to do." Jackson was terminated that af- ternoon. Attorney Schmidt testified that he was retained on November 30, 1966, when Mrs. Noyes telephoned him about the New Jersey wage-and-hour problem. During the course of their conversation she mentioned that she had heard rumors of union activity the day before and Schmidt then advised her generally, as he had during the earlier effort to organize the Inn, that Respondent should make no promises or threats and should not discharge anyone. Noyes said that she "had just agreed to discharge a girl named Margaret Jackson," and Schmidt advised her to "hold it up" until he had a chance to talk with her about it and "make sure that it is proper." After he arrived Saturday, December 3, he first met with Respondent's official on the wage-and-hour matter and later discussed Jackson. He said he asked for timecards or a summary of her record, and it was given him. When he asked for records of other employees for comparison purposes, he was assured by those present "there were no employees who had a record of tardiness like Margaret Jackson." Schmidt asked the group if anyone knew at the time the decision was made to fire Jackson that she was a union member, and he said that they assured him that they didn't even know it at the moment. He also asked Mrs. Noyes if anyone had reported that Jackson was engaged in union activity and she said no one had. In that case, and "in view of the serious nature of her tardiness," he advised that there was no legal objection to her discharge and Mrs. Noyes could do it without being concerned "about any unfair labor practice." Mrs. Noyes, then "confirmed the decision she had already made to discharge" Jackson, Schmidt concluded. John Gruble has been dining room manager for 10 years and has supervised Jackson for 5. During the 5 years he has known Jackson, no one else has been as tardy as she, and he couldn't recall anyone in his entire career who matched her record for lateness. He had spoken with Jackson many times in the past about this problem and remembered doing it again in May or June 1966. On two occasions, Gruhle, Merrill, and Jackson met with Mrs. Noyes to discuss the matter, Gruhle said, but nothing was accomplished because Mrs. Noyes would not do anything about it. Jackson had testified that Mrs. Noyes had said she was one of her best waitresses, and Gruhle agreed that Jackson "is an excellent waitress, she fulfills her duties probably better than any other ... ." Although Jackson should have reported for work at 3:30 p.m., she seldom got there before 4:15, Gruhle said, and despite their talks about her habit of being late nearly every day, Jackson didn't improve. "In fall or late winter" of 1966, Gruhle and Merrill had another talk with Jackson and threatened either to "take that station away" or replace her completely if she didn't conform.16 He said that Jackson answered that it was impossible for her to re- port on time. It appears that some arrangement was made for Jackson to report even later than usual on Tuesdays, but Gruhle said she still couldn't make the extended deadline. Finally Gruhle reported Jackson to Merrill and Mrs. Noyes again and recommended her discharge. This oc- curred either in late November or early December, he said, and both he and Merrill saw Mrs. Noyes who asked for "positive proof of" Jackson's tardiness. He obtained information from the accounting department from Jackson's timecards which he recorded on a sheet of paper and showed to Mrs. Noyes. He said Mrs. Noyes then agreed that Jackson should be dismissed. Gruhle said that there was an interval between his discussion with Mrs. Noyes about Jackson and Jackson's actual dismissal. Asked the reason, he explained that "Merrill and I had discussed this on a Monday, sir, which would have been the 28th. Mr. Merrill is off on a Tuesday night. Perhaps we could get to Mrs. Noyes then, Monday, he is off all day on Wednesday, we work together on Thursday, but I am off Thursday afternoon and I am off all day Friday. So we don't actually get back together until Saturday." The Jackson matter was discussed in conference by Mrs. Noyes, Schmidt, Merrill, and himself, Gruhle said, and Jackson's record was reviewed. Gruhle saw Jackson at 4 p.m. that day and discharged her, telling her it was for tardiness. Manager Merrill testified that during his 6 years as manager he knew no other employee who was late for work as often as Jackson, and he and Gruhle spoke with her on several occasions about it. He said they told her her conduct was "bad for the morale of the entire dining room organization" and must be "adjusted." Asked if he told her that if she did not comply, she would be separated, he replied, "I did, I probably did," but amended his answer to say that he had no particular recollection of informing her that she would be discharged if she did not improve. In any case, he said that he and Gruhle visited Mrs. Noyes and recommended Jackson's discharge "just before Thanksgiving," and Mrs. Noyes told them to report back for her answer on the following Monday. This was not the first time he had recommended that Jackson be fired for he had done it as early as 1965 without success. His last recommendation to Mrs. Noyes was in Gruhle's presence, and they had with them figures on a yellow pad showing Jackson's recent record of tardiness. Gruhle and Merrill were both 15 The hour at which this call was made and completed was not fixed Attorney Schmidt said he was in court and had to return the call is Jackson had one of the best stations in the restaurant. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uncertain about the dates and content of their conversa- tions with Jackson about her tardiness. Gruhle was clearly confused about talking with Jackson in "fall or late winter" and threatening to replace her. Merrill was sup- posed to have been present at this time, but he had no recollecion of it. I find that any conversations with Jackson about her faults in which either Gruhle or Merrill participated occurred no later than the summer of 1966 and that no one made a direct threat to discharge her if she continued to report late. I do not credit the testimony of Respondent's witnesses that Margaret Jackson was terminated without knowledge of her union activities on December 3 because of chronic tardiness and that a final decision in her case had been made on November 28. Jackson was the worst employee that anyone in management could re- member, as far as her ability to get to work on time was concerned, but Mrs. Noyes would never consent to discharge her because, as everyone agreed, she was an excellent waitress. 17 But the strangest thing in this case, next, perhaps, to the timing of Jackson's discharge, is the failure of Jackson's protector to give any indication in her testimony about what caused her to reverse her position and withdraw her support from the employee when she did. Mrs. Noyes is the key figure in Jackson's case, and I find her skeletal account of Jackson's last days as a waitress disturbing and indicative of a concealed motive. Not only is there no explanation about her change in at- titude toward Jackson and her known shortcoming,18 careful reading of her testimony discloses that she never said in so many words that she was unaware of Jackson's activities in the union area and never flatly stated that she fired her because she was always late and for no other reason. Actually, all that her testimony adds up to is that she gave her consent to letting Jackson go and she had not personally observed any union activity on Jackson's part or by any other employee. It was Schmidt who said that he asked Noyes and the others if they knew whether Jackson was a member of the Union or had been reported as such. This does not appear in Noyes' testimony, or in Gruhle's or Merrill's, and if Schmidt did ask the question as he testified, and if Noyes said she was unaware of Jackson's membership or even her loyalties as late as December 3, it would not be the first time that a client mislead an attorney. to Circumstances do not support the contention that a final decision to discharge Jackson was made on Monday, November 28, but point rather in the other direction. Mrs. Noyes said she "agreed with Merrill and Gruhle" on the 28th that Jackson should be terminated, but the "tim- ing was up to them." On Wednesday, November 30, her attorney told her not to discharge anyone, she said, and she agreed. Nevertheless she made no effort to counter- mand her instructions to Gruhle and Merrill, had no way of knowing whether Jackson had already been fired or was going to be fired, and, indeed, made no investigation of her status at all. She admitted that she took no steps to make sure that Jackson would still be employed when her 17 Jackson asked for Tuesday as her day off because she had greater dif- ficulty getting to work on time that day, but Gruhle refused it. She also asked him to assign her to another dining room where her tardiness would be less important, but Gruhle also refused this request because "she was a good employee , a good waitress." 18 Jackson's habit of lateness had not worsened during the month before her discharge ; if anything, she had improved somewhat, as her time records show. attorney arrived on Saturday, December 3, to discuss the labor relations situation with her, including the propriety of her decision to let Jackson go. Jackson was eliminated quickly and contrary to custom, and these are circum- stances indicating that the actual decision was made on Saturday, December 3. Mrs. Noyes said that "normally" an employee is permitted to finish the week, which ends on Sunday, if they are being terminated, but, she said "if a person had done something very wrong, we would let him go immediately." Jackson was not permitted to finish the week, and was not even permitted to work Saturday, and this is an added indication that she had done something "wrong" or different at least from her long- tolerated tardiness. Finally, in this area, Merrill's and Gruhle's testimony does not really support the position that on November 28 they had been authorized to discharge Jackson at a time to be decided by them. They never said so. All that Merrill said was said was that when he and Gruhle saw Mrs. Noyes about Jackson before Thanksgiving she told them she wanted to think about it and to return on Monday. His testimony is silent about what happened on Monday, November 28. Gruhle's explanation of the time which elapsed between decision and discharge is even inconsistent with Mrs. Noyes'. I have set it out above as he gave it; in sum, he said that he and Merrill couldn't "actually get back together until Saturday" to see Mrs. Noyes because they had different days off. There was no reason to see Mrs. Noyes again if he had been authorized to fire Jackson, and there would appear to be no reason for further discus- sions with Merrill, if that is what he meant, when he finally had been given his long-sought permission to discharge her. I am convinced, and I find, that if Merrill and Gruhle had discussions with Mrs. Noyes prior to November 28 in which Jackson's discharge was recom- mended or requested, Mrs. Noyes made no decision in the matter on November 28, but kept the case in her hands and under advisement as she always had in the past until she made her "final" decision on December 3. I also find that by December 3 Respondent's officials were fully aware of the extent of Jackson's involvement in union activities. Mrs. Noyes testified that at the time of her telephone conversation with Schmidt on November 30 she had al- ready heard rumors of a union meeting in Atlantic City and meetings at Jo-Jo's bar. The meeting in Atlantic City was on November 28 at union headquarters and is the one which Jackson attended with a small group of other employees. The meetings at Jo-Jo's have been fully described, of course, and Jackson attended them all. Jackson testified credibly that on Wednesday, November 30, during the evening, she began her distribution of union cards at the Inn. She said that Mrs. Muller, Mrs. Noyes' sister, saw her but Mrs. Muller denied it.20 I am unable to resolve this conflict. Jackson seemed to be telling the truth and it seems that Mrs. Muller and waitress Moore were actually where Jackson said they 11 Schmidt couldn't know what was in his client's mind ; all that he could do was to advise on the basis of what he was told. 20 Employee Elizabeth Moore, who Jackson said was standing next to and talking with Mrs. Muller at the time, did not help to resolve this issue in her testimony. Strangely enough, she said she recalled an incident when she and Mrs . Muller were watching Jackson, but said "she never seen anything." HISTORIC SMITHVILLE INN 87 were, but Muller also appeared candid. In any case, I find that Jackson was distributing cards, as she testified, and that, in addition, Gruhle told her that evening that Mrs. Noyes was "upset" because union cards were being passed out at work.21 I also credit Jackson as against Su- pervisor Hand in her testimony that, on Wednesday even- ing, November 30, Hand put his hands in her apron pockets searching for union cards. Hand's denial was weak and ineffectual He admitted that he might have been looking for a pencil. Hand also admitted that he was aware of union activity at the Inn before December 1, because "it was rumored" and had also seen a union card.22 Hand was present at Jo-Jo's bar on December 1. In- consistently, he testified that he did not know that Jackson was then active for the Union, but he admitted that she introduced him to Timperio, the Union's pres- ident, that night, and he reported this fact to Supervisor Robinson the next day. I have found earlier that Frank Dominico, another of Respondent's supervisors, was present at Jo-Jo's bar on many nights when union meetings were held and that he asked Jackson if she had signed a card. Even if Dominico had not asked this question, he could not have failed to see and know what union activities were going on at Jo- Jo's; and Jackson was an important part of them. Dominico also conceded that he was aware of some union activities early that week. I have also found that Charles Miller was also present at Jo-Jo's at least on December 1 and 3, and so on December 1 he was clearly in a position to see that union activities were going on and that Jackson was a part of them. In sum, regarding Respondent's knowledge, despite Respondent's witnesses' attempts to understate what they knew or clearly believed, it was well known that union activity had commenced at the Inn during the first part of the week of November 28 and was continuing dur- ing the week at Jo-Jo's bar. Respondent was more than mildly interested in the union activities of its employees and the identity of those engaged in them. Jackson went to the first union meeting, distributed union cards at work, went to all meetings at Jo-Jo's bar and did not con- ceal her activity from management after Wednesday, November 30. I find that by that time and certainly be- fore her discharge on Saturday, December 3, Respondent well knew that Jackson was active for the Union. Respondent was not neutral in the campaign to or- ganize its employees, rather it opposed the Union and was hostile to it. Although'Respondent's written commu- nications to its employees are not alleged to have violated the Act and seem to be protected by Section 8(c) of the Act, they are not as objective as Respondent contends, and taken with other facts show a definite union animus.23 Employee John Bora was told by coowner Mr. Noyes on the first day of the strike while he was picketing that he was "done here." Mr. Noyes weakly denied the threat and admitted that he was angry at the time. Bora was cor- roborated by employee McAndrews, and I find that Noyes made the remark. Mrs. Noyes made a speech to employees on December 4 from a prepared text. It seems, however, that she de- parted from the script prepared by her attorney, because employee Smith testified, and Mrs. Noyes did not con- tradict him, that she told employees that she knew of the union activity, that the Union's officials were racketeers, that the employees should be careful about what they were doing, and that she could not see what the Union could do for employees that she couuld not do for them. Smith also testified that sometime before Christmas Mer- rill accused him of "talking about the union again" and told him to get the "hell back to your station and stay there." I credit Smith's testimony. Smith also testified, but Gruhle denied it, that on December 2 or 3, Gruhle warned him to be careful because he had orders to put "pressure" on him. I credit this testimony. I find and conclude that when Respondent discharged Margaret Jackson on December 3, 1966, it was substan- tially motivated by union considerations in doing so. Summarized briefly, my conclusion is based upon these salient factors: Jackson, an excellent waitress and an early, active and known union organizer, was discharged, suddenly and without warning, at the height of the Union's campaign, and on the very day the Respondent received the Union's demand for recognition, allegedly for something she had been constantly and notoriously doing during her 5 years of employment. Respondent op- posed the Union and kept its activities under surveil- lance. To rebut General Counsel's prima facie case of discrimination, Respondent offered evidence, purporting to offset the strong inference in Jackson's favor which might be drawn from the timing of her discharge, which I have discredited, for reasons stated, both as to the alleged time the decision was made to discharge Jackson and the reason for it. Succinctly, Respondent's asserted reason for its action is pretextual. By discharging Jackson because of her union activities, Respondent violated Sec- tion 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 21 Supervisor Dominico was given a union card by one of his employees and he showed it to Mrs. Noyes early that week. Gruhle testified that dur- ing this important week there "were rumors of union activity and we were interested in what was going on-" 22 I credit James Dent's denial that Hand searched him and that he told Jackson so Nevertheless, Jackson's testimony was in all significant respects It must also be noted that Dent said that he had heard "rumors" that Hand was looking for a union card, that the rumor was "all over the Inn," and that he told Jackson about it . He seemed to contradict himself about telling Jackson, but he also said she said that Hand might look in his pockets It seems there was a conversation in this area , therefore. 23 Mrs. Noyes' written text of her December 4 speech reads, in part, that the Company does not think it would be to the employees' advantage to join a union and will exercise its right of free speech to persuade em- ployees not to vote for a union Another document, which Respondent distributed to employees in January 1967 (Resp. Exh 20aa), is, to say the least, a pitch or individual bargaining against collective bargaining, for it states, in part, that union organizers are "strangers" and there is nothing that the Company would give the employees at the request of "such strangers" that it would not "be more willing to give directly to you at your own request." 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respond- ent cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. It will be recommended that the Respondent offer em- ployee Margaret Jackson immediate and full reinstate- ment to her former or substantially equivalent position, without prejudice to seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimination against her by payment to her of a sum of money equal to that which she would have earned as wages from the date of the discrimination against her to the date of offer of reinstatement less interim earnings , and in a manner con- sistent with Board policy set out in F. W. Woolworth Company, 90 NLRB 289. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that the Respondent preserve and, upon request, make available to the Board, payroll and other records to facilitate the computation of backpay. It will also be recommended, in view of the nature of the unfair labor practices the Respondent has engaged in, that it cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization as defined in Sec- tion 2(5) of the Act. 3. By discharging Margaret Jackson as found herein, the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3), and (1) of the Act. 4. By engaging in the conduct found to be violations set forth in section III B , the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Historic Smithville Inn and Quail Hill, Smithville, New Jersey, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in the Union, or in any other labor organization, by discharging, laying off, or 24 In the event that this Recommended 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." otherwise discriminating in regard to the hire or tenure of employment of employees, or any term or condition of employment. (b) Interrogating its employees as to their sympathies for or activities on behalf of the Union, or any other labor organization, in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (c) Keeping union meetings or other union activities of employees under surveillance. (d) Threatening employees with discharge if they go on strike. (e) Coercively polling employees about how they wish to exercise their rights under Section 7 of the Act. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties except as qualified by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer to Margaret Jackson immediate and full rein- statement to her former or substantially equivalent posi- tion without prejudice to her seniority or other rights and privileges, and make her whole. for any loss of earnings she may have suffered by reason of Respondent's dis- crimination against her as set forth in that section of the Trial Examiner's Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of America of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and 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, all payroll records and other records necessary to analyze the amounts of backpay as set forth in "The Remedy" section of this Decision. (d) Post at its Smithville, New Jersey, restuarants in- volved herein copies of the attached notice marked "Appendix. 1124 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent or its representatives,shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.25 25 In 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 Respon- dent has taken to comply herewith." APPENDIX HISTORIC SMITHVILLE INN 89 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership in Hotel, Motel and Restaurant Employees Union, Local 508,AFL-CIO, or any other labor organization, by discharging or refusing to reinstate any of our em- ployees, or in any manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning activities on behalf of the above-named or any other labor organization, in a manner constituting inter- ference, restraint , or coercion violative of Section 8(a)(a) of the Act. WE WILL NOT threaten employees with discharge or other reprisals, in order to discourage union mem- bership or activities. WE WILL NOT engage in surveillance of union meetings or activities. WE WILL NOT conduct polls of our employees in which we ask them how they want to exercise the rights which the National Labor Relations Act guarantees them. 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 or- ganizations, to join or assist the above-named or any other labor organization to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion or to refrain from any or all such activities ex- cept to the extent that such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8(a)(3) of the Act, as amended. WE WILL offer to Margaret Jackson immediate and full reinstatement to her former or a substantially equivalent position without prejudice to seniority and other rights and privileges and make her whole for any loss of pay suffered as a result of discrimina- tion against her. Dated By HISTORIC SMITHVILLE INN AND QUAIL HILL (Employer) (Representative) (Title) Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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, 1700 Bankers Securities Building, Walnut & Juniper Streets, Philadel- phia, Pennsylvania 19107, Telephone 597-7601.