Morrison Cafeterias Consolidated, Inc.

MORRISON CAFETERIAS CONSOLIDATED, INC. Morrison Cafeterias Consolidated, Inc. and Morrison Cafeteria Company of Little Rock, Inc. and Hote'-Motel , Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO. Case 26-CA- 1520 June 30, 1969 SUPPLEMENTAL DECISION AND AMENDED ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On August 4, 1964, the National Labor Relations Board issued its Decision and Order in this proceeding,' finding in relevant part that the Respondents constituted a single employer under the National Labor Relations Act, as amended, and that the Respondents violated Section 8 (a) (1), (3), and (5) of the Act by closing their Little Rock, Arkansas, cafeteria. Thereafter, while the Respondents' Petition to Review and Set Aside the Board's Order and the Board's answer and cross application for enforcement of its Order were pending before the United States Court of Appeals for the Eight Circuit, the Supreme Court rendered its decision in N.L.R.B. v. Darlington Manufacturing Company, 380 U.S. 263. On June 25, 1965, the Board moved the Court of Appeals to remand the instant case and, on July 15, 1965, the court granted the Board's motion "with leave to make reconsideration of its holding, in the light of N.L.R.B. v. Darlington Manufacturing Company, 380 U.S. 263, and with report of the result of such reconsideration to be made by it in relation to the pending petition for review." On September 16, 1965, the Board issued its Order affording the parties opportunity to file briefs with respect to the effect on the issues of this case of the Supreme Court's decisions in both N.L.R.B. v. Darlington Manufacturing Company, supra, and Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203. Pursuant to the Board's Order, the Respondents and the General Counsel filed briefs, and the Charging Party filed a motion to reopen the record. On February 4, 1966, the Board (Member Jenkins dissenting) granted the Charging Party's motion and issued an order reopening the record and remanding the case for further hearing before Trial Examiner A. Bruce Hunt. The Board's Order directed the Trial Examiner to receive additional evidence bearing on the "purpose" and "effect" of the closing of the Little Rock, Arkansas, cafeteria, 177 NLRB No. 113 591 more specifically as related to the issue of whether such closing was motivated at least in part by a purpose to chill unionism among employees in any of the other Morrison cafeterias, and whether the Respondents may reasonably have foreseen that such closing would be likely to have that effect, and further ordered that upon conclusion of such hearing the Trial Examiner should prepare a Supplemental Decision. On February 17, the Respondents filed a motion for a court order (No. 17893) restraining the Board from holding a further hearing. On March 2, 1966, the Court of Appeals for the Eighth Circuit denied the Respondents' motion. The hearing on the Board's remand was conducted on August 3 and 4, 1966, and on March 15 and 16, 1967, at Mobile, Alabama. On September 25, 1968, Trial Examiner A. Bruce Hunt issued his Supplemental Decision, attached hereto, in which he concluded, upon reconsideration of the Board's original finding herein, that the Respondents violated Section 8(a)(3) of the Act by closing the Little Rock cafeteria and terminating the employees employed there, that, under Darlington, the 8(a)(3) allegations must be dismissed; and recommended that the Board reaffirm its 8(a)(1) and (5) findings, and modify the original remedy as specified in the Remedy section of his Supplemental Decision. Thereafter, the Respondents and the General Counsel filed exceptions to the Trial Examiner's Supplemental Decision and supporting briefs. 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 remand hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board' has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' '148 NLRB 139 'Chairman McCulloch and Members Brown and Zagora all agree with the Trial Examiner's 8(a)(l) findings, conclusions , and order Chairman McCulloch and Member Brown agree with the Trial Examiner's findings, conclusions, and order as to Sec 8(a)(5). Chairman McCulloch and Member Zagoria agree with the Trial Examiner's dismissal of the 8(a)(3) allegations of the complaint. Member Zagora agrees with Chairman McCulloch's separate opinion as to the 8 (aX3) aspects of the case, and Member Brown agrees with Chairman McCulloch' s separate opinion on the 8(aX5) aspects of the case . The partial dissents of Members Brown and Zagoria and the separate opinion of Chairman McCulloch are set forth below 'The Respondents except to the Trial Examiner's credibility resolutions It is the Board's established policy, however, not to overrule a Trial Examiner's resolution as to credibility unless, as is not the case here, the preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A 3) i 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AMENDED ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Amended Order the Revised Recommended Order of the Trial Examiner and hereby orders that the Respondents, Morrison Cafeterias Consolidated, Inc., and Morrison Cafeteria Company of Little Rock, Inc., Little Rock, Arkansas, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Revised Recommended Order. CHAIRMAN MCCULLOCH: I agree fully with the findings, conclusions, and recommendations of the Trial Examiner. I do not agree with Member Brown's recommended finding that the closing of the Little Rock cafeteria was violative of Section 8(a)(3) of the Act, or with Member Zagoria's proposed dismissal of the refusal-to-bargain allegation of the compliant. Under Darlington, supra, the closing of one of a number of plants operated by the same employer is discriminatory only when the following two elements are present: (1) a purpose on the part of the employer to"chill" unionism in any of his remaining plants; and(2) the employer must reasonably have foreseen that such closing would likely have that effect. The Trial Examiner concluded that the evidence was insufficient to establish a "chill" unionism motive on the part of Respondents. Member Brown relies for a contrary finding principally on a statement made by Everett Mills, a minor supervisor at Respondents' Mobile cafeteria, to Bessie Hastings, an assistant manager at the same cafeteria, during an organizational campaign at the Mobile cafeteria almost 2 years after the 'closing of the Little Rock cafeteria. According to the credited testimony, Mills said to Hastings that Respondents had closed the Little Rock cafeteria rather than have it as an example for the remaining cafeterias. However, as found by the Trial Examiner, there is no evidence that Mills was privy to the decision to close the Little Rock cafeteria, or that any management official told him that the cafeteria was closed in order to have an effect elsewhere. In fact, at the time of the closing of the Little Rock cafeteria, there was no organizational activity elsewhere in Respondents' cafeteria. The Union did not commence its organizational activities at the Mobile cafeteria until a year and a half after the Little Rock closing. Under the circumstances, the Trial Examiner correctly found, in my opinion, that Mills' comment to Hastings, and somewhat similar remarks by other minor supervisors to employees at the Mobile cafeteria, long after the Little Rock cafeteria closing, were no more than attempts to take advantage of the closing to persuade employees at the Mobile cafeteria to resist the organizational activities of the Union. As to Member Zagoria's view that the Supreme ,Court's ruling in Darlington, supra, precludes a finding of an 8(a)(5) violation in the unilateral partial closing of a business because employees have selected a bargaining representative, unless the Board also finds that the purpose of the closing was to "chill" unionism elsewhere in violation of Section 8(a)(3), this interpretation of Darlington has previously been rejected by the Board.' The Board (Member Jenkins not participating) said in Ozark Trailers, 161 NLRB at 565: ...that holding [Darlington] cannot be relevant to the issue before us which involves Respondents' duty to bargain about the partial closing of their business.' We perceive nothing in that portion of the Darlington decision dealing with the discriminatory partial closing of a business which suggests the inapplicability of the collective-bargaining requirement of the Act to Respondents' decision to close down the Ozark plant. Indeed, as the Darlington decision affirms the propriety of the application of Section 8(a)(3) to a partial closing of a business, it would be anomalous to find that Section 8(a)(5) is without governing authority in such situations.' 'Royal Plating and Polishing Co , Inc , 152 NLRB 619, 622. 'Ibid. MEMBER BROWN, dissenting in part: I agree with Chairman McCulloch that the Respondents violated Section 8(a)(5) by failing to notify the Union of the decision to close the Little Rock cafeteria and to bargain about that decision and the effect of the closure upon employees in the appropriate unit. Contrary to the majority of my colleagues, however, I would further find that, in closing that operation, Respondents sought to chill unionism at its remaining cafeterias and thereby also violated Section 8 (a)(3) of the Act. When the Union began its organizing campaign at the Little Rock cafeteria, Respondents met this initial union effort with hostility and discriminatory discharges.' The Union nevertheless won a Board-conducted representation election, only to have Respondents shut down the cafeteria the same day the election results were announced. Mills, supervisor at one of Respondents' Mobile cafeterias, later said of this shutdown that "they had the cafeteria down there [in Little Rock] and rather than have a union to go in they gave the cafeteria up. That it would be better to lose it than to have a union go in and have an example for the rest of the cafeterias over the nation." Other officials also told cafeteria employees in Mobile, where a sister local of the Union was conducting an organizing campaign , and in Atlanta, where no such activitiy was taking place, that the Little Rock cafeteria had been closed because of the Union and if employees should decide on a union, Respondents would be, 'Ozark Trailers. Incorporated, 161 NLRB 561, 564-565 'Morrison Cafeteria Company of Little Rock, Inc., 135 NLRB 1327, enfd. 311 F.2d 534 (C A. 8). iMORRISON CAFETERIAS CONSOLIDATED, INC. 593 forced to take the same action as it did in Little Rock. These later statements persuasively buttress Mills' assertion that Respondents desired to set an example, of the consequences of unionization for, employees in other locations. I am convinced that the closing at Little Rock, the only one of Respondents' 40-50 cafeterias where employees had selected a union, was part of Respondents' plan to prevent unionism at all cafeterias. I consider it significant in this connection that Little Rock was the site of the Union' s initial organizational success and, in my view, Respondents closed down at once lest such success stimulate future unionization at Respondents other operations. If the Union were stopped in this manner here, and thus dramatize for all its employees that unionization could only be achieved at the cost of their jobs, Respondents stood a good chance to forestall organizing attempts elsewhere.' The lesson was verbalized by Respondents' aforementioned threat of closure at Atlanta, for example, despite the absence of organizational activity at that cafeteria. MEMBER:ZAGORIA, dissenting in part: I agree with the Trial Examiner's conclusion that the evidence before us is insufficient to warrant a finding, under the Supreme Court's decision in Darlington, supra, that the Respondents were motivated in closing their Little Rock cafeteria by a purpose to chill unionism in their remaining cafeterias, and that, therefore, the 8(a)(3) allegations must be dismissed. I disagree, however, with my colleagues' finding that the Respondents violated Section 8(a)(5) of the Act by failing to notify the Union of the decision to close the cafeteria and to bargain about that decision and its effects on the employees in the appropriate unit. The Supreme Court's ruling in Darlington completely foreclosed finding an unlawful refusal to bargain in the instant case, either as to the decision to close or as to the effects of that decison. A finding of an 8(a)(5) violation under Darlington depends entirely upon a finding of an 8(a)(3) violation. Hence, the partial closing of a business, like the complete cessation of business, cannot be found to constitute a violation of Section 8(a)(5) in the absence of motivation aimed at achieving the prohibited effect, that is, to chill unionism in other parts of the enterprise. In other words, as I read the Supreme Court's decision in Darlington, as long as it is not for the purpose of chilling unionism among his remaining employees, an employer may close part of his business "for any reason he pleases." It is plain that the reason the Respondents closed this cafeteria was to avoid bargaining with the cafeteria employees' newly designated representative. As the Respondents were lawfully entitled to do this, how can they be 'In Darlington Manufacturing Company v N.L.R.B., 397 F 2d 760, 772 (C.A. 4), cei't denied 393 U.S. 1023, the court held that contemporaneous organizational activity at other plants is not a prerequisite to finding a "chilling" motivation. required to bargain, when that is the very thing they could lawfully close down to avoid doing? As the permanent closing of the Little Rock cafeteria' stands in the same posture, under Darlington, as a complete cessation of business, the Respondents were removed from the coverage of the Act with respect to their Little Rock operations when the permanent shutdown was effected. Unlike a situation where a union is the certified bargaining representative prior to the decision to close, or where the parties have an established bargaining relationship, the Respondents had no obligation to bargain with the Union prior to the shutdown and, as the shutdown was lawful under Darlington, they had no obligation to consult with the Union concerning the shutdown or to remedy its effects on the employees involved.' In these circumstances, a finding of an 8(a)(5) violation or a provision for remedy because of the partial shutdown in the instant case would, in my opinion, be inconsistent with the Supreme Court's ruling in Darlington. As our earlier findings of 8(a)(1) violations, committed before the Respondents' decision to close the cafeteria, are not affected by the conclusions reached herein, I would approve an order requiring the Respondents to cease and desist from engaging in the 8(a)(1) conduct herein found. 'My conclusions herein are based on a finding that the Respondents have permanently closed their Little Rock operations. 'Cf. A C Rochat Company, 163 NLRB No 49, Ozark Trailers, incorporated and/or Hutco Equipment Company and/or Mobilefreeze Company, Inc, 161 NLRB 561 TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE A. BRUCE HUNT, Trial Examiner: On April 22, 1964, I issued my decision in this proceeding, and on August 4, 1964, the Board affirmed. 148 NLRB 139. The Respondents, Morrison Cafeterias Consolidated, Inc. and Morrison Cafeteria Company of Little Rock, Inc., sought review by the Court of Appeals for the Eighth Circuit, and the Board sought enforcement, No. 17832. While the matter was pending, the Supreme Court decided N.L.R.B. v. Darlington Manufacturing Company, 380 U.S. 263, and that opinion prompted the Board to move the Court of Appeals to remand the case for reconsideration by the Board in the light of Darlington. The Respondents (Petitioners in No. 17832) did not object, and on July 15, 1965, the Court granted the Board's motion. Thereafter, the Union, Hotel-Motel, Restaurant Employees Union, Local No. 200, moved the Board to reopen the record for the purpose of receiving additional evidence. Over the Respondents' objections, on February 4, 1966, the Board (Member Jenkins dissenting) granted the Union's motion and remanded the case to me for a further hearing and a As originally tried, this was a consolidated proceeding involving two cases, 26-CA-1514 and 26-CA-1520. The portion of the complaint which was based upon the charge in the former case (the suspension of Cololsees Bowers) was dismissed by me, and no exceptions to that action were filed by the General Counsel or the Union Thereafter, only 26-CA-1520 remained an active case. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supplemental decision . On or about February 17, 1966, the Respondents sought an order in No 17832 restraining the Board from holding a further hearing, and during the same month the Board filed its opposition . On March 2, 1966, the court of appeals denied the motion to restrain the Board . The hearing on remand was conducted by me on August 3 and 4 , 1966, and March 15 and 16, 1967, at Mobile, Alabama. The General Counsel , the Respondents and the Union were represented . Upon the entire record and my observation of the witnesses , I make the following: SUPPLEMENTAL FINDINGS OF FACT 1. RESTATEMENT OF CERTAIN FINDINGS Morrison Consolidated, the parent corporation , utilizes subsidiary corporations through which to operate cafeterias and restaurants in various Southern and Southwestern States. Morrison Little Rock, a subsidiary, operated a cafeteria in Little Rock , Arkansas, which was closed by the Respondents on April 19, 1963 , promptly after the Union won a Board-conducted election. At all times material, the Respondents constituted a single-integrated enterprise with common officers and directors who administered a common labor policy.' In my earlier decision , I found that the Respondents had committed certain independent violations of Section 8(a)(l). 148 NLRB at 143 - 144. Those findings are not in issue under the remand . The present issues involve alleged violations of Section 8(a)(3) and (5) in the Respondents' closure of the cafeteria in Little Rock and terminating the employees there without notice to the Union and without affording the Union an opportunity to bargain. At the initial hearing, the Respondents contended that they closed the cafeteria solely for economic reasons, and I found that the cafeteria had not been a profitable operation . See, e .g., 148 NLRB at 145 - 146. On the other hand, the Respondents conceded at that hearing that the cafeteria would not have been closed on the day of the election if the Union had lost, and I found that "the closure was triggered by the Union 's victory in the election" and that "[i]f the employees had not selected the Union to represent them , they would have retained their jobs for an indeterminable length of time." 148 NLRB at 146. I found also, at page 147, that "[w]hen the Respondents closed the cafeteria without notice to the Union concerning that action and without an offer to bargain about it, and when the Respondents, a few days later, ignored the Union's telegram of April 19 and dealt unilaterally with employees concerning work in other cafeterias in the chain , the Respondents demonstrated that their hostility to collective bargaining , exemplified by violations of Section 8(a)(1) and (3) in 1961 and violations of Section 8(a)(1) in 1963 before the closure, had not ceased." I have no reason now to modify those findings, and I reaffirm them . On the other hand, I do not fully reaffirm certain conclusions that I reached . I concluded first "that the Respondents, by closing the cafeteria in Little Rock under the circumstances and for the reasons found, thereby terminating the employees' employment in that city, violated Section 8(a)(3) and ( 1)"; and, secondly, "that the Respondents , by unilaterally closing the 'My finding at 148 NLRB 140 that Morrison Consolidated' s general offices were in Tampa, Florida, should be modified. Such offices are now in Mobile, Alabama cafeteria and by unilaterally dealing with employees concerning employment at cafeterias elsewhere , violated Section 8(a)(5) and ( 1)." 148 NLRB at 147. These conclusions must now be reconsidered in the light of Darlington and the evidence at the reopened hearing. Before discussing Darlington , it is appropriate to point out that , with the closing of the cafeteria , Morrison Little Rock went out of business because it did not operate any other cafeteria , but Morrison Consolidated , the parent corporation , remained in business , and, in any event, the two corporations constitute a single integrated enterprise. 11. THE DOCTRINE OF Darlington The Supreme Court held that "when an employer closes his entire business , even if the liquidation is motivated by vindictiveness toward the union , such action is not an unfair labor practice " 380 U .S. at 273-274. The Court held also at pages 274-275 that The closing of an entire business, even though discriminatory , ends the employer-employee relationship; . . . On the other hand , a discriminatory partial closing may have repercussions on what remains of the business , affording employer leverage for discouraging the free exercise of Sec . 7 rights among remaining employees of much the same kind as that found to exist in the "runaway shop" and "temporary closing" cases.. .. [We] are constrained to hold .. . that a partial closing is an unfair labor practice under Sec. 8(a)(3) if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing would likely have that effect. In applying the quoted text to the facts found below, it should be borne in mind that the Supreme Court held too that"[i]t does not suffice to establish the unfair labor practice charged here to argue that the . closing necessarily had an adverse impact upon unionization in such other plants," and emphasized that in a case such as Darlington , unlike some other cases which had been before the Court, "a showing of motivation which is aimed at achieving the prohibited effect" is a prerequisite to a finding that Section 8(a)(3) has been violated. 380 U.S. at 276. Ill. FACTS AND CONCLUSIONS In support of their contentions , the General Counsel and the Union rely upon events, or alleged events, that occurred upon or near the premises of subsidiaries of Morrison Consolidated in Atlanta , Georgia, and Mobile, Alabama . In the latter city , a sister local of the Union in this case attempted to organize the employees of two subsidiaries during 1964 and 1965. As a consequence of events occurring during the organizational campaign, charges were filed against the subsidiaries , a complaint was issued, and I heard the cases which are referred to herein as the "Mobile cases," 15-CA-2635 and 15-RC-3029. Counsel for the General Counsel moved that the Mobile cases be consolidated with the instant case for a hearing, and counsel for the various respondents opposed . I denied the motion because the law firm which represents the respondents in the Mobile cases is not the firm which represents the Respondents in the instant case. On the other hand, by stipulation in the Mobile cases, the entire record on remand became a part of the record in MORRISON CAFETERIAS CONSOLIDATED, INC. the Mobile cases.' Consequently, most of the findings below will be treated in my decision in the Mobile cases, sometimes at greater length than herein. That decision, TXD-520-68, is issued simultaneously herewith. The evidence concerning alleged events in Atlanta will be considered before that relating to alleged events in Mobile. Harold Cruse worked in various cities as a waiter for subsidiaries of Morrison Consolidated. One such subsidiary is Morrison Cafeteria Company of Atlanta, Georgia, Inc. Cruse testified concerning a conversation which he had in Atlanta with Charles Vason, a supervisor and No. 2 waiter there. According to Cruse, during 1963 Vason arrived in Atlanta following the closure of the cafeteria in Little Rock and said to Cruse that "they closed it up on account of the union with the election and . transferred [Vason] to Atlanta." Cruse's testimony is inaccurate insofar as he testified that Vason was transferred to Atlanta after the closure. The cafeteria in Atlanta was opened during March 1963, the month preceding that in which the cafeteria in Little Rock was closed, and Vason was transferred from Little Rock so as to be in Atlanta on the opening day. If Cruse quoted Vason correctly that the Little Rock cafeteria was closed "on account of the union" - and Vason was not a witness to dispute the accuracy of that quotation - the quotation has no probative value here. Such a remark reflects a motive in closing, not a motive to chill unionism in other cafeterias. Moreover, if the latter motive could somehow be read into Vason's remark, I would not find that Vason occupied such a status as to bind the Respondents by the remark. Although a supervisor of waiters, he earned only 25 cents per hour in wages, and received the balance of his income in tips. He played no part in'the closure of the cafeteria in Little Rock. Cruse also testified that during or about April 1963 he talked in Atlanta with T. A. Cowart who is a vice president of Morrison Consolidated and of one or more of the subsidiaries. According to Cruse, Cowart said to him that Cowart "hope[d] you all will do a good job and build up the business and have a good future and don't let happen here - you old employees - what happened in Little Rock. Keep things like that out of here." Cruse testified that he then asked, "What?," to which Cowart replied, "Keep the union out. Keep it clean and you have 'At the hearing on remand, counsel agreed to enlarge the record herein by incorporating portions of the record in the Mobile cases . The agreement covered all testimony concerning alleged threats to close a cafeteria in Mobile if such alleged threats did not contain a specific reference to the cafeteria in Little Rock. Following the hearing on remand , counsel for the General Counsel proposed a written stipulation to counsel for the Respondents . It was rejected as embracing more testimony than that covered by the agreement made at the hearing . Counsel for the General Counsel then moved that I enlarge the record herein in accord with his proposed stipulation . Counsel for the Respondents filed a memorandum in opposition . By letter of April 5, 1968, to the attorneys, I requested that they refer me to the specific portions of the transcript in the Mobile cases which should be made a part of the record herein pursuant to their agreement at the hearing . On April 22 and 25, respectively, counsel for the Respondents and the General Counsel replied . On April 29, counsel for the Respondents wrote to me again The letters of April 5, 22, 25, and 29, 1968, are hereby received in evidence as Trial Examiner 's Exhibits 2, 3, 4, and 5 , respectively . The transcript in the instant case is hereby enlarged by the incorporation of testimony from the Mobile cases as cited in Appendix A, attached hereto. In view of my findings and conclusions recited hereinafter, I do not believe that a threat of closure in Mobile, when not accompanied by a reference to the closure in Little Rock, has any probative value on the issues on remand . Therefore, I enlarge the record herein in accord with my understanding of counsel 's agreement at the hearing, but I make no findings in this case involving the evidence that is cited in Appendix A, omitted from publication. 595 a good future." Cowart denied that he spoke of the Little Rock closure to any employee including Cruse, and it should be noted that there had been no union activity at the cafeteria in Atlanta. It suffices to find, as I do, that the remarks attributed by Cruse to Cowart (1) need not be interpreted as a threat to close the cafeteria in Atlanta if the employees there should become organized and (2) cannot be interpreted as attributing to the Respondents' closure of the cafeteria in Little Rock a motive to chill unionism elsewhere. We turn now to events in Mobile during the organizational campaign conducted at three cafeterias there by Local 176, a sister local of the Union in the instant case. Prior to that campaign , Cruse was transferred from Atlanta to work in one of those cafeterias. He became a union adherent. The manager at that cafeteria was James Moore. Cruse testified, and I find, that Moore spoke to him of his union adherence and about January 1965 said, inter alia, that "[i]f you get the union in here we are going to close the doors and it will be the same as it was in Little Rock. They don't have no jobs there at Morrison and you won't have them down here." Cruse testified further, and I find, that on April 15, 1965, Moore said to Cruse, inter alia, "Well, you know if the union wins the election here it will be just like it was in Little Rock. We will close the doors and you will be out. You will have no job . . . "' I regard Moore's remarks as an effort on his part to make maximum use of the closure of the cafeteria in Little Rock during April 1963 as a means of frustrating the organizational campaign in Mobile approximately 2 years later . I see in the remarks no probative value in establishing that a motive in closing the cafeteria in Little Rock was to chill unionism elsewhere. James E. Holland is identified in my initial decision as an officer and director of the parent corporation, Morrison Consolidated, who made several addresses to employees in Little Rock in an attempt to defeat the union in the election there. 148 NLRB at 144. He played a substantial part in the closing of the Little Rock cafeteria. 148 NLRB at 144-146. Holland is also an officer in each of the various subsidiary corporations that operate the numerous cafeterias. During Local 176's organizational campaign in Mobile, Holland addressed employees in that city upon several occasions. An issue is whether he referred to the closure in Little Rock. Holland testified that he had two written speeches which he delivered to employees, and that he did not depart from the texts. Neither speech contains a reference to the 'Cruse's testimony is not entirely in accord with an affidavit which he gave to the General Counsel prior to testifying The affidavit does not recite that Moore referred to the closure in Little Rock during the conversations about January 1965, but it does recite that Moore made such reference upon another occasion . Turning to Moore's testimony , he denied that he ever spoke to Cruse about the union activity Moore testified further that he learned before the union activity began that Cruse would "do his job properly" only when Cruse knew that Moore was watching, and that Moore did not speak to Cruse about the union activity because Cruse "wasn't loyal to the company" or to "anyone above him," so much so that Moore concluded that Cruse "certainly wasn't going to try to help the company in any way" and "was just a lost cause as far as any help" to the Company Moore impressed me unfavorably. Too, the remarks attributed to him by Cruse are consistent with remarks made by management to other employees Finally, in contrast to Moore 's professed evaluation of Cruse's not doing "his job properly," the fact is that Cruse worked for the Morrison chain over a period of 16 years in cafeterias in 12 cities. Such a record of employment attests to Cruse's efficiency as an employee 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD closure in Little Rock.' Holland testified also that he held several meetings with small groups of employees at which he read from two collective labor agreements negotiated with other employers by Local 176 and from a book entitled The Enemy Within by the late Robert F. Kennedy. According to Holland, he did not mention the closure in Little Rock during any of the small meetings On the other hand, there is contrary testimony by two employees, Eddie Johnson and Eddie Tolbert. Johnson testified that upon one occasion Holland said inter alia "that the same thing that happened in Little Rock could happen at Morrison's [in Mobile] and that if the union did come in that they would close down and that no one could make them give us our job back if they closed down . An affidavit which Johnson had given to the General Counsel does not support the quoted testimony, but this fact does not serve to impeach Johnson for reasons recited in the footnote.' Johnson impressed me as telling the truth and Holland, on the other hand, did not impress me as having been truthful when he testified that he did not depart from the written texts of his speeches or make additional remarks than to read from the book and the collective labor agreements. For these reasons, and for the additional reasons recited in the footnote,' I credit Johnson's testimony and find accordingly. Tolbert attended several meetings at which Holland spoke, and he testified that Holland mentioned the closure upon more than one occasion. According to Tolbert, Holland said that the cafeteria in Little Rock had been closed because of the union and that the same thing would happen in Mobile in the event of a union victory. I credit Tolbert's testimony and find accordingly! I conclude, however, that Holland's remarks do not establish a motive in 1963 to 'Holland's speeches were received in evidence as Resp . Exhs II and 12, but 11 is not in the exhibit file It is, however, in the exhibit file in the record in the Mobile cases as G C. Exh 34 'On July 6, 1965, Johnson gave an affidavit to R. E. Jackson, an attorney on the staff of the General Counsel The affidavit attributes remarks to someone identified as "Mr Harland" who spoke to employees and it is apparent from Tolbert's affidavit, discussed below, that on July 6 Jackson had not learned the correct spelling of Holland's name Johnson's affidavit does not attribute to the speaker any reference to the cafeteria in Little Rock, but it recites that the speaker "said lots of things" not set forth in the affidavit Attorney Jackson, when taking the affidavit, was investigating the Mobile cases The instant case had not been remanded by the court of appeals This explains Jackson's failure to inquire of Johnson whether Holland had spoken to employees in Mobile of the closure in Little Rock It does not, however, explain Johnson's failure to volunteer to Jackson that Holland had so spoken , but, as recited, the affidavit says that "Mr Harland" said "lots of things" not set forth in the affidavit 'Johnson's testimony that Holland spoke of the closure of the cafeteria in Little Rock is believable Morrison Little Rock had demonstrated a willingness to violate Sec. 8(aX3), (135 NLRB 1327, enfd 311 F 2d 534) and Morrison Little Rock and Morrison Consolidated were motivated in closing the cafeteria there by the result of the election, 148 NLRB at 146 in certain respects, Holland's testimony is inconsistent He testified that during the organizational campaign in Mobile, he did not remember "the Littic Rock case " As the citations in this footnote reflect, there had been two unfair labor practice cases involving the Little Rock cafeteria I do not believe that Holland told the truth in this instance He had been active in the closure and surely he recalled it. He testified also that he did not speak to employees in Mobile of the closure in Little Rock because he thought that the closure "had nothing to do with the Mobile operations" and because he knew that to speak of the closure would have been "against the law, and [the Respondents ] didn't close the cafeteria in Little Rock due to the union anyway " 'On July 8, 1965, Tolbert gave an affidavit to Attorney Jackson. Holland's name is spelled correctly therein, and remarks are attributed to him at only one of his meetings with employees , the one on the day before the election . The remarks, which contain no reference to the closure of the Little Rock cafeteria, are not the main subject of the affidavit, and the chill unionism by closing the cafeteria in Little Rock At most, his remarks concerning the closure reflect an effort in 1965 to utilize the fact of closure as a means to cause employees to fear loss of their jobs in Mobile if they should vote in favor of union representation. We come to the remaining evidence upon which the General Counsel and the Union rely. Bessie Hastings, who was named Bessie Sweeney at times material, held the position of assistant manager at one of the cafeterias in Mobile. Everett Mills was the production and procedures supervisor of the subsidiary corporation which operates that cafeteria. Hastings testified concerning a conversation that she had with Mills. According to Hastings, during the organizational campaign in Mobile, Mills told her that "[t]hey had the cafeteria down there [in Little Rock] and rather than have a union to go in they gave the cafeteria up. That it would be better to lose it than to have a union go in and have an example for the rest of the cafeterias over the nation ." On the other hand, Mills denied that he ever discussed the Little Rock closure with Hastings, but he testified that he spoke to her concerning "methods to be used to combat this [union] campaign," telling "her as part of management things that we were going to do concerning presenting the company's position." Mills testified further that his only discussions concerning the closure in Little Rock were with individuals in the main office of Morrison Consolidated, the parent corporation. In deciding this issue of credibility, I have weighed the fact that Hastings was discharged by the subsidiary corporation for which she worked and that she acknowledged having felt very strongly that her discharge had been unfair.' I believe that Hastings was a credible witness and I was unfavorably impressed by Mills' denial that he spoke with her concerning the closure in Little Rock. Accordingly, I credit her testimony. In respect to the first portion thereof, i.e., that Mills told her that "rather than have a union to go in they gave the cafeteria [in Little Rock] up," I have found that the Respondents were motivated in closing the cafeteria by a desire to avoid bargaining with the Union. I see nothing in this portion of Mills' remarks to Hastings which reflects a motive to chill unionism in other cafeterias. In respect to the second portion, i.e., that Mills also said to Hastings that "it would be better to lose it [the cafeteria in Little Rock] than to have a union go in and have an example for the rest of the cafeterias over the nation," I regard that remark as the strongest bit of evidence in the General Counsel's and the Union's favor but as too weak to warrant a finding under Darlington that the Respondents were motivated in closing the cafeteria by a desire to chill unionism in the remaining cafeterias. The cafeteria in Little Rock was located far from any other cafeteria in the Morrison chain, and there was no organizational activity in any other cafeteria until Local 176 began its activity in Mobile about 1 1 /2 years after the closure in Little Rock. Additionally, there is no evidence that Mills played any part in that closure or even knew of it until afterwards, nor is there evidence that anyone in management spoke to him of the closure as "an example for the rest of the cafeterias over the nation." Insofar as I can determine, Mills' comment to Hastings concerning document contains no reference to remarks by Holland at other meetings which Tolbert attended According to Tolbert, when the affidavit was taken, he did not think of Holland's remarks concerning the cafeteria in Little Rock, and later counsel for the General Counsel raised the subject when interviewing him. 'The circumstances surrounding Hastings' discharge are recited in my decision in the Mobile cases. MORRISON CAFETERIAS CONSOLIDATED, INC. .,an example" may have been no more than his own opinion ; formed nearly 2 years after the closure, of an advantage to be gained by it. In summary , I conclude that the allegations that the Respondents violated Section 8 (a)(3) must be dismissed. There remain, however, the allegations that Section 8(a)(5) was violated. Although, by the closure, Morrison Little Rock went out of business entirely, Morrison Consolidated went out of business only partially, and the record is clear that the two Respondents constitute a single, integrated enterprise . Moreover, Holland's testimony is clear that he regards the entire enterprise involving the parent and all subsidiary corporations as one company. Thus, he referred to himself as "[v]ice president of the whole company." I find that we have here a partial closing of a business with an object of avoiding collective bargaining with the employees' representative. I find also that the Respondents, by failing to notify the Union of the decision to close the Little Rock cafeteria and to bargain about that decision and the effect of the closure upon employees in the appropriate unit , violated Section 8 (a)(5) and (t). McGregor Printing Corporation, 163 NLRB No. 113, and cases cited at footnote 9 therein. IV. THE REMEDY I reaffirm the first paragrpah of the remedy in my decision, 148 NLRB at 148, which relates largely to my rejection of the General Counsel' s request that the Respondents be required to "reinstate" the Little Rock operation . The remainder of the remedy is rewritten as follows. Morrison Little Rock, although still retaining its corporate existence, has not operated a cafeteria for more than 5 years. There is no evidence that Morrison Little Rock will open another cafeteria or that Morrison Consolidated contemplates again engaging in business in Arkansas. Because, however, the future cannot be foreseen and one or the other of the Respondents may resume operations in Little Rock , I shall recommend that the Board retain jurisdiction herein so that it may consider the implications of any resumption if such should occur. A. C. Rochat Company, 163 NLRB No. 49. The type of bargaining order to be issued in this case may be found in Transmarine Navigation Corporation, 170 NLRB No. 43, where the Board set forth "a limited backpay requirement designed both to make whole the employees for losses suffered as a result of the" employer's refusal to bargain and "to re-create in some practicable manner a situation in which the parties' bargaining position is not entirely devoid of economic consequences for the Respondent [s]." Accordingly , I shall recommend that the Respondents bargain with the Union, upon request, concerning the effects of the closure of the cafeteria in Little Rock upon the employees who were in the appropriate unit at the time of closure , embodying in a signed agreement any understanding which may be reached, and that the Respondents pay to such employees amounts equal to their respective earnings when last in the Respondents' employ from 5 days after the date of this Supplemental Decision until the occurrence of the earliest of the following conditions: ( 1) the date the Respondents bargain to agreement with the Union on those subjects pertaining to the effects of the closing upon employees in the unit; (2) a bona fide impasse in bargaining; (3) the failure of the Union to request bargaining within 5 days after its receipt of this Supplemental Decision, or to commence negotiations within 5 days of the Respondents' notice of its desire to bargain with the Union; or (4) the 597 subsequent failure of the Union to bargain in good faith; but in no event shall the sum to be paid to any of the employees exceed the amount he or she would have earned from the date of the closure of the cafeteria, April 19, 1963, to the time when he or she secured equivalent employment elsewhere; provided, however, • that the sum shall not be less than an employee would have earned for a 2-week period when last in the Respondents' employ, except for any of the approximately half dozen employees who were transferred to other cafeterias in the Morrison chain (148 NLRB at 145) who shall receive backpay for only an appropriate portion of the 2-week period if he or she began work in another such cafeteria within less than 2 weeks after the closure of the Little Rock cafeteria. In many instances the sum can be determined by the normal wage rates paid to employees. In the instances of waiters and any other employees whose earnings consisted largely or in part of tips from customers, the wage rates will not be determinative of the earnings. I shall recommend further that the Respondents preserve and make available to the Board or its agents, upon request, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay under the terms of these Recommendations. In view of the fact that notices to employees cannot now be posted by the Respondents in the cafeteria in Little Rock, I shall recommend that the Respondents send, by first class mail, appropriate notices to all persons who were in their employ in Little Rock during April 1963, at such persons' last known addresses, and that the Respondents publicize the notices in one of the principal daily newspapers in Little Rock. Because of the nature of the Respondents' invalid conduct and its underlying purpose and tendency, I conclude that the unfair labor practices found are persuasively related to the other unfair labor practices proscribed and that danger of their commission in the future is to be anticipated from the course of the Respondents' conduct in the past. Therefore, in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend further that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in said section. N.L.R.B. v. Express Publishing Company, 312 U.S. 426 (1941); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). 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, 2 and 3. I reaffirm these three Conclusions of Law in my original decisions (148 NLRB at 150) which relate to the composition of the appropriate unit and the Union's status as a labor organization and exclusive representative of employees in the unit. I modify the remaining conclusions of law as follows. 4. By interfering with, restraining, and coercing employees in the exercise of their rights under the Act, and by refusing to bargain collectively with the Union, the Respondents have engaged in and are engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7). 5. The allegations of the complaint that the Respondents violated Section 8(a)(3) have not been sustained. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD REVISED RECOMMENDED ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that the Respondents, Morrison Cafeterias Consolidated, Inc. and Morrison Cafeteria Company of Little Rock, Inc., their officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit. (b) Interrogating employees concerning union activities, threatening to terminate business operations if employees should select a labor organization to represent them, and soliciting employees to eavesdrop on union activities and to report to management concerning such activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with said labor organization concerning the effects of the closure of the cafeteria in Little Rock upon the employees who were in the appropriate unit at the time of closure, as set forth in "The Remedy" section of this Supplemental Decision. (b) Pay to such employees amounts equal to their normal earnings , as set forth in said remedy section. (c) Preserve and make available to the Board or its agents all payroll and other records, as set forth in said remedy section. (d) Place as advertisements, once a week for 8 consecutive weeks in one of the principal daily newspapers in Little Rock, exact signed copies of the attached notice marked "Appendix".'° (e) Mail to their former employees in Little Rock signed copies of said notice (to be prepared by the Respondents on forms furnished by the Regional Director for Region 26, as provided in said remedy section. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps each of the Respondents has taken to comply herewith." "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 court, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 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 each of the Respondents has taken to comply herewith " IT IS FURTHER RECD' IMENDED that the Board reserve to itself the right to reconsider and modify the provisions of this Revised Recommended Order if made necessary by circumstances not now apparent. IT IS FINALLY RECOMMENDED that the complaint be dismissed insofar as it alleges that the Respondents violated Section 8(a)(3) of the Act. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, We are publicizing this notice in order to notify our former employees at the cafeteria in Little Rock which we closed in 1963 that: WE WILL NOT interrogate employees concerning union activities , threaten to terminate business operations if they should select a union to represent them, or solicit employees to eavesdrop on union activities and to report to management concerning such activities. WE WILL NOT violate any of the rights which our employees have under the National Labor Relations Act to join a union and to engage in union activities, or not to join a union and not to engage in such activities. WE WILL, upon request by Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, bargain collectively with that labor organization concerning the effects of the closure of our cafeteria in Little Rock upon the employees who were in the bargaining unit at the time of closure. WE WILL, in the manner required by the National Labor Relations Board, give backpay to our former employees. Dated By MORRISON CAFETERIAS CONSOLIDATED, INC. AND MORRISON CAFETERIA COMPANY OF LITTLE ROCK, INC. (Employer) (Representative) (Title) If the former employees have any questions concerning this notice or whether the Employer is complying with its provisions, they may communicate with the Labor Board's office at 3507 Federal Building, 700 West Capital Avenue, Little Rock, Arkansas 72201, Telephone 534-3161.