Atlanta Big Boy, Inc. #3

ATLANTA BIG BOY, INC. 591 Atlanta Big Boy, Inc. # 3 and General Teamsters Local Union No. 528 Case 10-CA-8196 November 17, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 17, 1970, Trial Examiner Jerry B. Stone 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 Decision. Thereafter, the Respondent filed exceptions to the Decision 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. 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 brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Atlanta Big Boy, Inc. #3, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 I The Respondent's exceptions are in part directed to credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find insufficient basis for disturbing the Trial Examiner's credibility findings in this case. 2 The Notice to Employees in the Appendix is amended by adding the following to the third indented paragraph: WE WILL NOT interfere with, restrain, or coerce employees in the exercise of their rights of self-organization, by threats of discharge or other reprisals. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, was tried pursuant to due notice on May 13, 1970, at Atlanta, Georgia. The charge and amended charge were filed on March 31 and April 14, 1970, respectively. The complaint in this matter was issued on April 15, 1970. The issues are simple and concern whether Respondent (1) violated Section 8(a)(1) by interrogation as to union activity and by threat of discharge because of union activity, and (2) violated Section 8(a)(3) by its discharge of Wells because of union activity. All parties were afforded full opportunity to participate in the proceeding, and briefs filed by the General Counsel and the Respondent have been considered.' Upon the entire record in the case and from my observation of witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER2 Atlanta Big Boy Inc. #3, the Respondent, is, and has been at all times material herein, a Georgia corporation, with its principal office and place of business located at Atlanta, Georgia, where it is engaged in food preparation and service. Respondent is a wholly owned subsidiary of Atlanta Big Boy Management, Inc., which operates and supplies several restaurants in the Atlanta metropolitan area . The annual gross revenue of Atlanta Big Boy Management, Inc., exceeds $500,000, and it annually purchases restaurant supplies that are shipped directly to it from outside the State of Georgia valued in excess of $50,000. Based upon the foregoing, it is concluded and found that the Respondent is, and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I The Respondent, in his brief, requests reconsideration of a trial ruling concerning the evidentiary rejection of an affidavit of J. B . Bach. The Respondent contends that such affidavit should be received into evidence on the basis of a "necessity exception" to the hearsay rule. The Respondent cites a number of cases related to "necessity exception" and makes argument thereon . Suffice it to say that neither the testimonial evidence nor statements of counsel, separately or in composite effect , meet the criteria set forth in such cases relating to the "necessity exception." Hamberger, the witness, testified in a general manner to the effect that he last saw Bach on April 7, 1970. that he had tried several times to reach Bach, and that he last tried to reach Bach on the evening of May 12 and the morning of May 13, 1970. In answer to a leading question, Hamberger testified to the effect that the effort to contact Bach had been continuous since April 7, 1970. Hamberger' s testimony did not go into detail otherwise as to the efforts to locate Bach. As indicated, I do not find the testimony of Hamberger nor the statements of counsel (relating to the reason for not subpenaing Bach or noncompliance with regulations as to related procedural requests for the presentation of the affidavit) to reveal due and diligent effort to secure Bach as a witness. Furthermore , the circumstances do not reveal that the affidavit of Bach meets the guarantee of trustworthiness included in the criteria of the "necessity exception" referred to by the cases cited by counsel. Thus, Bach was an agent of the Respondent and gave the affidavit during the investigatory stage of the unfair labor practice charges. The circumstances are not of such a nature as to minimize the importance of the cross-examination aspects concerned in the normal application of the "hearsay rule." Accordingly, I reject Respondent's request for a change in my ruling concerning the rejection of Bach's affidavit as evidence. 2 The facts are based upon the pleadings and admissions therein. 186 NLRB No. 67 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE LABOR ORGANIZATION INVOLVED3 interview of employee Stewart is revealed by the following credited excerpts of Stewart's testimony. A. Yes. One Sunday night I was working and Mr. Bach and Mr. Early were both there and they called me back into the back dining room and they talked to me and they wanted to know why the waitresses were quitting and why they couldn't-why they had had so many to quit. Q. Do you remember when that was? A. It was the Sunday before Lynn was fired. Q. Sunday before the Monday. Is that what you are saying? A. Yes, sir. Q. Who was doing the talking, Mr. Bach or Mr. Early? A. Mr. Bach. Q. How did the conversation begin? What was the subject? A. He asked me why people were quitting and why they hadn't been able to keep waitresses because most of the waitresses were there anyway- Q. Did you answer him? A. I said that it was the supervision. Q. Is that what you said just generally or did you specifically say that? A. No. I said the supervision, in those words. Q. Now, did he mention or did he not mention the subject of union and how did he if he did? A. Yes. He did. We talked for a little while about who had quit- MR. HARRISON: I am sorry. I can't hear the witness. THE WITNESS: We talked about who had been quitting and he asked me if I knew anything about anyone trying to organize a union and I didn't say anything and he kept on asking me and then he said well, we know someone is trying to organize a union and so you might as well tell us because we know who she is and I still didn't say anything and he said it is Lynn Wells, isn't it? I said yes. Q. And then what happened after that when Lynn Well's name was brought up? testimony to such effect, it is discredited. The resolution of Early's credibility in such regard is set forth later herein in section B, pertaining to the issues concerning Bach 's interview of employee Stewart. Further, Phillips, Respondent's dining room supervisor, testified that she knew nothing of Wells' activity on behalf of "International Woman's Day," and that she and Bach had a discussion about Wells just prior to the discharge of Wells. Under such circumstances it clearly is not reasonable to believe that Respondent had knowledge of Wells' activity on behalf of "International Woman's Day" at the time of Wells' discharge on March 2, 1970. r The facts are based upon the credited testimony of Donna Stewart. There were two presented as witnesses to the events involved herein. Stewart testified in a fully frank, forthright, and truthful manner. The Respondent elicited from Stewart the fact that she had met Wells about 9 months before May 13, 1970. From this the Respondent argues a conjecture of bias on the basis of friendship or kindred aims in the "International Woman's Day." This conjecture, however, is not supported by the evidence. Early testified in a conclusionary manner that "Unionism" was not involved , that "Woman's Day" was involved. Despite this, when asked to relate in substance the conversation between Bach and Stewart, Early made no mention of either "Unionism" or "Woman's Day." In sum, I found Stewart to be more fully frank, forthright, and truthful than Early. I credit Stewart's version of the facts and discredit Early's testimony inconsistent with the facts found. General Teamsters Local Union No. 528, the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES4 A. The Setting The Respondent opened a new restaurant in Atlanta, Georgia, on Monday, February 16, 1970. During the preceding days the Respondent interviewed and hired employees and prepared for the opening of the restaurant on Monday. In such preparation the Respondent conduct- ed a "dry run" with the waitresses to see how they would perform. The Respondent also held a general meeting on Sunday, February 15, 1970, wherein the employees were introduced to management, were made acquainted with their supervisors, and were shown how the operations would go. Lynn Wells was interviewed and hired by the Respon- dent to report to work on Monday, February 16, 1970. Several days after Wells started to work on February 16, 1970, Wells contacted Cook, district representative, Gener- al Teamsters Local Union No. 528.5 Thereafter, during the period of time from that date until around March 2, 1970, Wells spoke to fellow employees, male and female, about whether there was a need or interest in a union. During the same period of time, Wells spoke to a number of female employees about "International Woman's Day," about literature pertaining thereto, about a proposed march on March 8, 1970, pertaining thereto, and gave out to employees some pins (buttons) about "International Woman's Day."6 B. Interrogation and Threats, March 1, 19707 On Sunday night, March 1, 1970, Bach conducted interviews of a number of employees. With Bach at the time of the interviews, or at least for the most part, was Supervisor Early. What transpired with respect to the 3 The facts are based upon the pleadings and admissions therein. 4 The facts relating to the unfair labor practices are based upon a composite of the credited aspects of the testimony of Cook, Wells, Stewart, Phillips, Early, Haney, Todd, and Brown, and the exhibits in the record. 5 The question of Wells' union activity was fully litigated. Testimony of Cook, Wells, and Stewart clearly was to the effect that Wells engaged in union activity. Thus, Wells clearly stated the names of some of the employees contacted by her. Respondent presented Lewis, Haney, Todd, and Brown as witnesses to dispute the fact of Wells' union activity. Lewis, Haney, Todd, and Brown presented the testimonial appearances of witnesses who wanted to persuade that they had not been engaged in union activity or remotely touched by the question of union activity. Cross- examination of Brown, however, clearly revealed that Wells had in fact contacted her about the idea of joining a union . I found Cook, Wells, and Stewart to present the testimonial appearances of witnesses who were frank, forthright, and truthful witnesses on the point involved and credit their testimony. I found Lewis, Haney, Todd, and Brown not to be completely frank and forthright in their testimony inconsistent with the facts found herein, and discredit their testimony inconsistent with the facts found and set forth herein. 6 The facts are undisputed that Wells engaged in activity on behalf of "International Woman's Day." With the exception of Early's testimony, there is no testimony or evidence otherwise to reveal that the Respondent had knowledge of Wells' activity on behalf of "International Woman's Day" at the time of her discharge on March 2, 1970. As to Early's ATLANTA BIG BOY, INC. 593 A. Well, he started telling me all the reasons that we didn't need a union and He said that we could take any problems to the management. We didn't-a union wasn't needed for waitress work. Q. Tell us whether or not he asked you anything specifically about Lynn Wells during your talk about the union. A. He asked me if Lynn had been talking to some of the waitresses who had dust quit and I said I thought she probably had. Q. Did he mention any waitresses by name? A. Yes. He asked me if she had dust talked to Shannon who had just quit and I said yes. I knew she had talked to Shannon and that Shannon was already thinking about quitting before Lynn had talked to her. Q. Did he mention any other waitresses by name? A. I don't think so. Q. How did the conversation end about the subject of the union? A. Well, after he had told me the reasons for not having the union he said if anyone is trying to organize a union we need to get rid of her and then I went back to work. Considering all of the foregoing, I conclude and find that the Respondent, by Bach, on March 1, 1970, (1) interrogated an employee about union activities of its employees and (2) threatened that employees would be discharged if they engaged in union activities. Such conduct is violative of Section 8(a)(1) of the Act. I so conclude and find. C. The Discharge of Wells, March 2, 1970 Lynn Wells was interviewed and hired by the Respon- dent on February 12, 1970, and reported to work on February 16, 1970. Wells worked thereafter until March 2, 1970 On March 2, 1970, the Respondent discharged Wells. The issue is the reason for Wells' discharge. The only evidence relating to conversations between Manager Bach and Wells on March 1 and 2, 1970, consists of the testimony of Wells. The Respondent extensively cross-examined Wells about material issues and about other issues related to arguments concerning Wells' credibility. Such facts 8 As to most of Wells' testimony, I found her to appear to be a fully frank, forthright, and truthful witness As to much of Early's testimony, I found him not to appear to be a frank, forthright, and truthful witness As to this particular incident, there is little insight that can be gained from their specific testimony Considering the nature of the question as to "arrests" on the application form and the probabilities from all of the circumstances, I am persuaded that Wells did not ask Early about "arrests" and that her testimony is false thereto 9 There was much testimony relating to the conversations as to why Wells could not be at the February 15, 1970, meeting, and as to the date of Wells' marriage Thus, Supervisors Phillips and Early testified to the effect that Wells was excused from the February 15, 1970, meeting because she was getting married that weekend Todd testified to "hearsay" of a conversation by Wells to similar effect Wells testified to the effect that she told Early and others that she was in the process of getting married that week Taking due note of the multiplicity and confusion of the questions and answers and the logical consistency of facts, the facts reveal, as recognized by Respondent's counsel in his brief, that Wells' marriage date was February 22, 1970 Considering this, and the logical consistency of all the facts, I find Wells' testimony as to the fact that she told Early and others that she was in the process of getting married that week to be more reliable than the different but almost similar versions of other witnesses I note further that the notation on Wells' application for employment --will related to the material facts and to credibility questions may be summarized as follows. 1. Wells was interviewed and hired by the Respondent on February 12, 1970, with reporting date to be Monday, February 16, 1970. 2. Wells falsely answered a question on her application form in that she indicated that she had never been arrested. Wells attempted to explain by stating that she had asked Supervisor Early whether "arrest" meant "arrested" or "convicted." Wells testified that Early had said "just put convictions." Wells credibly testified to the effect that she had been arrested but had no final convictions. Early credibly testified to the effect that he and Wells had not discussed the question of "arrests" at the time of her hiring.8 3. Wells told Early and others that she (Wells) could not be at a proposed company meeting on Sunday, February 15, 1970, that she was in the process of getting married that week, and that she would report to work on Monday, February 16, 1970 9 4. Wells reported to work on Monday, February 16, 1970, and worked thereafter until March 2, 1970. 5. On February 19, 1970, Wells secured blood tests for her marriage on the weekend. Wells was late for work, reporting at 11:05 a.m. instead of 1 I a.m. Wells was late on this occasion but with permission to do so in order to get her blood tests.io 6. Wells was married on February 22, 1970.11 7. Wells contacted the Union around February 18, 1970, and thereafter spoke to employees, male and female, preceding and after work and during lunchbreaks about the need for a union and about having a union.i2 8. During the time of her employment, and during nonwork hours, Wells spoke to some of the female employees about "International Woman's Day" and a march for such purpose on March 8, 1970. Wells also gave some of the employees literature and pins concerning "International Woman's Day." i3 9. Wells was reprimanded on only one occasion during her employment. This reprimand was by Supervisor Phillips on February 27, 1970, and was caused by Wells' reporting to work wearing a blouse that needed to be ironed.i4 be married in a week"-and the lack of change in notations when Wells returned the form on February 16, 1970, are consistent with the findings herein 10 The facts are based upon Wells' credited testimony 11 The facts are based upon Wells' credited testimony. 12 As indicated in section A, I credit the facts as set forth there and here 13 The facts, as indicated in section A. are based upon the credited aspects of Wells' testimony Haney testified to the effect that on one occasion she saw Wells sell and give "International Woman 's Day" pins to two customers Wells credibly testified that two organizers of the movement were customers one day and spoke to her about the movement Wells credibly testified that she neither sold nor gave the women "pins," that she told them she could not talk about the movement while working As a witness, Wells impressed me with an overall appearance as a fully frank, forthright, and truthful witness I was not impressed by Haney to the same extent Rather, Haney impressed me as a witness not telling the truth as to whether Wells had talked to her about union activity, and as a witness desirous of impressing others with her opposition to Wells and the Union I credit Wells' version of the facts and discredit Haney's version of the facts inconsistent with the facts found i4 The facts are based upon Wells' credited testimony . Phillips' testimony to some extent was to the effect that Wells was warned about the (Continued) 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. The Respondent contends that Wells was late for work on the morning of February 27, 1970, starting to work at 11:09 instead of 11 a.m., and was late that afternoon-starting to work at 5:05 p.m. instead of 5 p.m. The Respondent contends that Supervisor Phillips warned Wells about these two incidents as to being late. Wells testified that on one occasion, other than the lateness on February 19, 1970, that she recalled failing to punch the timeclock and being told by Phillips that this was all right-to just punch in. Phillips testified to what was shown on certain timecards of Wells. Phillips appeared in most instances to be reading from the timecards and not to be testifying as of personal recollection. Wells, at one point in her testimony, testified to the effect that on one occasion during the week ending February 28, 1970, she worked from 11 a.m. one day until 3:30 the next morning. A careful review of the cards indicates that the 1 I a.m. to 3:30 a.m. testimonial incident occurred on February 27, 1970. Phillips testified in effect that on the afternoon of February 27, 1970, she spoke to Wells about being late. I note that the timecard record for Wells' work on February 27, 1970, as computed for pay purposes, presents inconsis- tencies . Thus, the timecard reveals a clocking in at 11:09 a.m. and out at 11:10 aim. The record reveals no explanation unless the clocking out occurred when Wells was sent off the floor to change her blouse. The timecard record indicated payment to Wells on the basis that she worked continuously from 3:21 p.m. February 27, 1970, to 2:46 a.m. on February 28, 1970. The timecard record indicates that Wells was not paid for the time of work between 11:20 a.m. on February 27, 1970, to 3:21 p.m. Considering all of the foregoing and Wells' appearance as a witness, I credit her testimony to the effect that she was not warned about being late. I further find that she was at work at or about 11 a.m. on February 27, 1970, neglected to clock in on time, and that Phillips told her to punch in, that this was all right. I discredit Phillips' testimony inconsistent with the facts found. I found Phillips, as indicated, not to appear to be an objective witness. 11. The Respondent contends that Phillips warned Wells about being late on February 28, 1970. Phillips testified to the effect that Wells was supposed to be at work at 5 p.m., that Wells showed up about 5:40 p.m., and that she could not remember what excuse Wells had. The timecard records reveal that Wells clocked in at 4:50 p.m. As indicated, Wells' testimony was to the effect that she remembered one lateness for the blood test (February 19, 1970), and one failure to properly clock in. As indicated also, I found Phillips to appear to be an unobjective blouse, was spoken to about her shoes, and was warned about being late. Phillips did not appear to be a completely objective witness and appeared to want to go further than just testify as to facts . Phillips' testimony revealed in effect that for the first 3 weeks she was being somewhat lenient. I do not doubt that Wells was spoken to about her shoes. I am convinced, however, that it was not in the tone of a reprimand . As indicated elsewhere herein, I am convinced that Wells was not reprimanded about being late. I credit Wells' testimony because of her overall good appearance as a frank, forthright, and truthful witness and the ring of truth in her testimony. I discredit all testimony inconsistent with the facts found herein. 15 Phillips' testimony was to the effect that if a change were made, it was made with prior approval by Wells. Phillips' testimony revealed that she did not make the change . Thus Phillips' testimony is not reliable to witness. I am not impressed that her testimony reflected her own recollection. Rather, I am convinced that Phillips' testimony consisted of a rationalized attempt to show that Wells was late. I discredit Phillips' testimony to the effect that Wells was late on February 28, 1970, or to the effect that she warned Wells about being late on February 28, 1970. 12. On Saturday night, February 28, 1970, the Respon- dent had changed the schedule of work so as to have Wells working on March 1, 1970, from 11 a.m. to 2 p.m. and from 5 p.m. to close. What transpired with respect to this change is revealed by the following credited excerpts from Wells' testimony.15 A. Well, all during the week before on the time schedule which they post a week ahead of time, I had been scheduled to work from 11:00 to 2:00. That night they changed the schedule to have me working also from 5:00 to close. And it was a Sunday and I had already arranged to go visit with someone out of town and so I told this to Mr. Bach the night before and he said that if I couldn't rearrange it to tell him in the morning. So I tried to rearrange it but couldn't and I called him at 8:30 or 9:00 o'clock Saturday morning and told him that I could still work from 11:00 to 2:00 which I had been scheduled to work but I couldn't come in for the later hours and he said that he didn't need me from 11:00 to 2:00 so I might as well not come in. 13. On the night of March 1, 1970, as previously indicated, Bach interviewed some of the employees, including Stewart. Bach interrogated Stewart about union activities of employees, about union activities of Wells, and threatened to discharge employees who engaged in union activities.16 14. On March 2, 1970, Bach apparently told Supervisor Phillips that Wells had not worked on Sunday, and had not called in. Bach and Phillips had a conversation about Wells. The details are not in the record except to reveal that in effect nothing was discussed about Wells in connection with the "International Woman's Day." Bach indicated that it was time for him to take over as is revealed by the following credited excerpt from Phillips' testimony: A. I know that we had talked about it and he said that it was out of my hands that he would see to it because I was new in supervision and she had been told-that he would see when it was time for him to take over. What occurred thereafter is revealed by the following credited excerpts from Wells' testimony: 17 A. I reported for work that morning and immedi- ately after I reported for work Mrs. Phillips, my establish whether a change was made or not. In this and other respects, Phillips revealed herself as an unobjective witness. To the extent that her testimony is to the effect that a change was not made, it is discredited. 16 The findings and details of this event are set out more fully in section C above. 17 The facts are based upon the credited testimony of Wells. Wells as a witness appeared to be a fully frank, forthright, and truthful witness. I have considered the fact of her false statement about "arrests" on her application for employment and her testimony in this proceeding pertaining thereto . Her demeanor as a witness, her testimony otherwise, and the logical consistency of all the facts compel and persuade me that her testimony is true and credible as indicated herein. I credit her testimony concerning the events of her discharge. ATLANTA BIG BOY, INC. 595 supervisor, said that Mr. Bach wanted to talk to me in the back room. So I went to the back dining room and Mr. Bach sat me down and said that he wanted to talk to me. At that time he said we didn't need you. We don't need union in the restaurant business, that it's different in organizing in a factory or something of that nature and that waitresses got good wages and good tips and especially at Atlanta Big Boy we receive particularly good wages compared to the restaurants in town. He went on to say that they couldn't have people organizing unions in the restaurant business and at Shoney's and he would have to get rid of the problem and let me go. Q. Tell us whether or not there was any mention of the International Woman's Day in this conversation? A. No. Contentions Conclusions The General Counsel contends that Wells was discharged because of her union activity. The Respondent contends that Wells was discharged because she did not work on Sunday, did not call in about being late on Sunday, and was insolent concerning remarks in her conversation with Bach about activities on behalf of "International Woman's Day." 78 The facts overwhelmingly reveal Wells' union activity, Respondent's knowledge thereof and related threats of discharge for such activity, and that Wells was discharged for her union activity. Such conduct of Respondent is violative of Section 8(a)(1) and (3) of the Act. I so conclude and find. within the meaning and in accord with the Board's decisions in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, excepting as specifically modified by the wording of such Recommend- ed Order. Because of the character of the unfair labor practices herein found, the Recommended Order will provide that the Respondent cease and desist from the specific unfair labor practices found , and that it cease and desist from in any other manner interfering with , restraining, and coercing employees in the exercise of their rights guaran- teed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. Atlanta Big Boy Inc. #3, the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Teamsters Local Union No. 528, the Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Lynn Wells on March 2, 1970, the Respondent has discouraged union membership by dis- criminating in regard to tenure of employment, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By interfering with , restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. IV 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 Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that Respondent discriminatorily discharged Lynn Wells on March 2, 1970, in violation of Section 8(a)(3) and (1) of the Act, the Recommended Order will provide that Respondent make offer of reinstatement to Wells,19 and make Wells whole for loss of earnings is I find no evidence to reveal that Respondent had knowledge of Wells' "international Woman's Day" activity at the time of her discharge 19 Despite Wells' marriage , she appears to still use her maiden name The remedial order and notice will use the name "Wells" with the understanding that it is applicable to her within the context of her married name as well RECOMMENDED ORDER20 Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, it is recommended that the Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of their rights of self-organization, by threats of discharge or other reprisals. (b) Coercively interrogating any of its employees as to their or other employees' union activities or desires. (c) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment, or any term or condition of employment, in order to discourage membership in any labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer Lynn Wells immediate and full reinstatement to 2O In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her former position or, if such position is no longer available, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her, in the manner described in the Remedy section of the Trial Examiner's Decision. (b) Notify Lynn Wells 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. (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 necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Post at its plant at Atlanta, Georgia, copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.22 IT IS FURTHER ORDERED that the allegations of the complaint not specifically found herein to constitute violations of the Act be dismissed. 21 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 22 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Lynn Wells immediate and full reinstatement to her former position or, if such position is no longer available, to a substantially equivalent position, without prejudice to her seniority or other rights previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her. WE WILL notify Lynn Wells 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. WE WILL NOT coercively interrogate any of our employees as to their or other employees' union activities or desires. WE WILL NOT discharge, layoff, or otherwise discriminate against employees in regard to hire or tenure of employment, or any term or condition of employment, in order to encourage or discourage membership in any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of General Teamsters Local Union No. 528, or any other labor organization. Dated By ATLANTA BIG BOY INC. #3 (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Peachtree Building, Room 701, 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.