Morrison Cafeteria Co., Inc.

MORRISON CAFETERIA COMPANY, INC. 593 Morrison Cafeteria Company , Inc. and Morrison Food Service of Alabama , Inc. and Hotel & Restaurant Employees and Bartenders International Union, Local -176, AFL-CIO. Cases 15-CA-2635 and 15-RC-3029 November 17, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On September 26, 1968, Trial Examiner A Bruce Hunt issued his Decision in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondents had not engaged in certain other unfair labor practices alleged in the amended complaint and recommended that such allegations be dismissed. He also recommended that the objections to the elections in Case 15-RC-3029 be sustained, the results of the elections be set aside, a second election be conducted among employees of Morrison Cafeteria Company, Inc., and that that case be closed insofar as it involves Morrison Food Service of Alabama, Inc. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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, the brief, and the entire record in this case, and hereby adopts the findings," conclusions, and recommendations of the Trial Examiner except as modified below We find, in agreement with the Trial Examiner, that the Respondents violated Section 8(a)(1) of the Act by (1) threats that the Respondents would not have a union and would close the Mobile cafeterias; (2) requests to employees to report to management if anyone spoke to them concerning the Union; (3) The Respondents except to the credibility resolutions made by the Trial Examiner It is the Board' s established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Such a conclusion is not warranted here Standard Drv Wall Products . Inc . 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We note that the Trial Examiner 's Decision, apparently inadvertently, in one instance referred to the date of the Union's letter requesting recognition and bargaining as June 20 , 1964, rather than December 20, 1964, the correct date repeated inquiries of employees concerning their attendance at union meetings; (4) inquiries as to how employees intended to vote in the-election,(5) promises of wage increases after the election; (6) threats- of discharge of employees who joined 'or voted for the Union, and (7) attempts, including letters to all employees signed by President Gibbons, to instill in the employees a sense of fear that unionization would bring on strikes and a loss of fobs.' We further find, for the reasons stated by the Trial Examiner, that the Respondents violated Section 8(a)(3) and (1) by the discharge of seven employees for their union activities. The Trial Examiner found, and we agree, that the Union represented a majority of the employees in the appropriate unit at the Dry Dock cafeteria' and that a bargaining order is appropriate. We find that the Respondents' extensive violations of Section 8(a)(I) and (3) would reasonably be expected to have the effect of undermining the,Union's majority, and that they' destroyed the conditions necessary to the holding of a free and fair election We conclude that, in order to protect the statutory rights and interests of employees and to remedy the violations of Section 8(a)(I) and (3) committed, it is essential that the Respondent Morrison Food Service of Alabama, Inc., be ordered to recognize and bargain with the Union as the statutory representative of its employees for the purposes of collective bargaining.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that the Respondents, Morrison Cafeteria 'Company, Inc , and Morrison Food Service of Alabama, Inc., Mobile, Alabama, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein The Gibbons letters, particularly when considered in context with Respondents' other unfair labor practices and communications to employees, are fairly to be viewed, in the opinion of a majority of the Panel, not as an honest prediction, but as an implied threat, so intended and understood, that Respondents would not bargain in good faith with the Union even if it was selected by the employees, but would instead force the Union to strike with a consequent loss of jobs and other economic detriment to employees Member Zagoria would not find the Respondents' letters violative of the Act See General Automation Manufacturing, inc , 167 NLRB No 66, fn 7 Over the Respondents' objection, the Trial Examiner permitted the General Counsel to litigate the employee status of Jeanette Yeager, who obtained a substantial number of the Union's designation cards Although Yeager had been found to be a supervisor in the prior representation case (15-RC-3029), in which the General Counsel was not a party, the Trial Examiner found, on the evidence presented in this proceeding, and we agree, that Yeager was not a supervisor We further find that the Trial Examiner was correct in permitting the status of Yeager to be litigated before him Clothing Workers v N L R B (Sagamore Shirt Co ). 365 F 2d 898 (C A D C ). Heights Funeral Home, Inc v N L R B, 385 F 2d 879 (C A 5) 'N L R B v Gissel Packing Company, 395 U S 575, George A Angle, d/b/a Kansas Refined Helium Company, 176 NLRB No 115 179 NLRB No. 97 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD modified. Delete in paragraphs A,2,(c) and B,2 of the Recommended Order the words, "to be prepared by this Respondent IT IS FURTHER ORDERED that the elections held in Case 15-RC-3029 on April 15 and 16, 1965, be, and they hereby are, set aside, and that that case be remanded to the Regional Director for Region 15 for the purpose of conducting a new election among employees of Morrison Cafeteria Company, Inc., at such time as he deems the circumstances permit the free choice of a bargaining representative, and that that case be closed insofar as it involves Morrison Food Service of Alabama, Inc. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE A BRUCE HUNT, Trial Examiner: These consolidated cases involve allegations (I) that the Respondents, Morrison Cafeteria Company, Inc and Morrison Food Service of Alabama, Inc , violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U S C Sec. 151, et seq , and (2) objections to two elections filed by Hotel & Restaurant Employees and Bartenders International Union, Local 176, AFL-CIO' On various days during August 1966 and March 1967, 1 conducted a hearing at Mobile, Alabama, at which the General Counsel and the Respondents were represented A procedural issue concerning objections to- one of the elections is discussed hereinafter By stipulation of counsel, the record in this proceeding includes the record on remand, made on August 3 and 4, 1966, and March 15 and 16, 1967, in Morrison Cafeterias Consolidated, Inc and Morrison Cafeteria Company of Little Rock, Inc , Case 26-CA-1520, at -which I was the Trial Examiner, herein sometimes called the Little Rock case The-Board's decision and my original decision in that case are reported at 148 NLRB 139 My supplemental decision in that case is TXD-519-68, issued simultaneously herewith.' Upon the entire record and my observation of the witnesses, I make the following FINDINGS OF FACT I THE RESPONDENTS AND THEIR PARENT CORPORATION Morrison Cafeteria Company, Inc (Morrison Cafeteria or Morrison's), and Morrison Food Service of Alabama, Inc (Morrison Food Service or Morrison's), are Alabama corporations having their principal offices in Mobile, Alabama. The former operates two cafeterias in Mobile and the latter operates cafeterias in Alabama for use by employees of industrial employers, schools, hospitals, and other installations. Each of the Respondents annually has a gross revenue exceeding $500,000 and receives- products valued in excess of $50,000 which are shipped to it-directly from points outside the State of Alabama I find that the Respondents are engaged in commerce within the meaning of the Act. The complaint alleges, and the Respondents deny, that the Respondents are wholly owned subsidiaries of Morrison Cafeterias Consolidated, Inc (Morrison Consolidated), have common offices, interlocking Boards of Directors and substantially the same corporate officers, and constitute a single integrated business enterprise This allegation is supported by the record' J H Gibbons is the president of Morrison Consolidated and all of its subsidiaries, the latter being the corporations which operate the cafeterias James H. Holland is an officer and director of the parent corporation and an officer in each bf the subsidiaries His testimony in the Little Rock case on remand, which is a part of the record here, is that he regards the entire enterprise involving the parent and its subsidiaries as one company Thus, he referred to himself as "[v]ice president of the whole company." John W. Hill is a vice president of Morrison Food Service and Morrison Consolidated He testified for the Respondents in the instant case that Morrison Consolidated "is the company itself." Morrison Consolidated is not a respondent in this proceeding 11. THE UNION Hotel & Restaurant Employees and Bartenders International Union, Local 176, AFL-CIO, is a labor organization which admits to membership employees of the Respondents. III. THE UNFAIR LABOR PRACTICES A The Issues During September 1964, the Union began an organizational campaign among employees at the two public cafeterias operated by Morrison Cafeteria in Mobile, one located on Royal Street and the other on Highway 90 During November 1964, the Union began its activity at a cafeteria operated by Morrison Food Service in Mobile upon the premises of Alabama Dry Dock and Shipbuilding Co for employees of the Dry Dock Those employees are represented by a labor organization, and one of that organization's members, Milford ("Sonny") Yeager, took an active part in the organization of Morrison Food Service's employees in the cafeteria Yeager's wife, Jeanette, worked for Morrison Food Service, and she too took an active part in the Union's organizational efforts at the Dry Dock cafeteria One of our main issues is whether Jeanette Yeager was a supervisor within the meaning of the Act If she was, many of the applications for membership in the Union which employees of Morrison Food Service signed may not be counted in determining whether the Union ''Charges were filed in Case 15-CA-2635 on April 16 and May 10, 1965, and March 28, 1966 A complaint was issued on January 18, 1966, and on the same day the Regional Director issued ( I) an order directing a hearing on objections to elections which had been filed by the Union in Case 15-RC-3029 and ( 2) an order consolidating the cases On April 14, 1966, the Regional Director issued an amended complaint and notice of hearing As more fully set out in TXD-519-68, counsel for the General Counsel moved that I consolidate the Little Rock case with the instant cases for hearing, and I sustained objections to the motion which counsel for the various respondents filed 'In my original decision in the Little Rock case , I made certain findings concerning Morrison Consolidated and its relationship to its subsidiary corporations Eg, 148 NLRB at 140 and 145 Those findings were based in part upon admissions In my Supplemental Decision in the same case, issued simultaneously herewith, I made like findings It should be noted that only the record in that case on remand is a part of the record here It should be noted additionally that , while all of the record on remand is relevant here on the issues of credibility , some of the evidence related to alleged events outside Mobile, Alabama, involving subsidiary corporations which are not respondents here - MORRISON CAFETERIA COMPANY, INC. possessed majority status at the cafeteria Other principal issues are whether the Respondents inter alia interrogated and threatened their employees, and promised employees benefits, as means of undermining the Union, and invalidly discharged certain employees The remaining principal issues are whether there is merit in the Union's objections to elections, whether the objections to the election at the Dry Dock cafeteria may be considered by me, and whether, in the light of the facts recited below, Morrison Food Service -should be required to bargain collectively with the Union as the representative of employees at the Dry Dock cafeteria - B Prefatory Statement By letter of December 20, 1964, M B Race, a representative of the Union, wrote to Gibbons, president of the Respondents and their parent corporation, saying that the Union represented a majority of the employees of Morrison Food Service at the Dry Dock and of Morrison Cafeteria at the two public cafeterias, and requesting recognition and negotiations On December 28, Gibbons replied on the stationery of the parent corporation, declining to meet with Race and saying that the Respondents doubted the appropriateness'of the unit and that the Union possessed majority status at any of the three locations. Also on December 28, Race filed a petition in Case l5-RC-3029 with the Board's Regional Office On January 26, 1965, a hearing was held upon the petition On March 18, 1965, the Regional Director issued his Decision and Direction of Election in which he found, inter alia , that the single unit requested by the Union was inappropriate, and that instead,' as contended by Morrison's, the employees at the public cafeterias and the employees at the Dry Dock cafeteria constituted two separate appropriate units On April 15 and 16, respectively, elections were held at the Dry Dock cafeteria and at the public cafeterias The Union lost both elections. Subsequently, the Union filed its objections, dated April 22, 1965, to alleged conduct by the Respondents affecting the results of both elections ° We turn now to acts of the Respondents prior to the elections C Events and Conclusions I Events at the Dry Dock cafeteria This cafeteria was operated by Morrison Food Service on the premises of the Dry Dock for use by employees of the latter. The contractual relationship between the two employers is one whereby Morrison Food Service can cease its operation of the cafeteria upon 30 days' notice to the Dry Dock Company At times material before February 1, 1965, Theodore Rehwinkel was the manager at the cafeteria He is still in the employ of Morrison Food Service Between February I and March I, 1965, Everett Mills, the production and procedures supervisor for Morrison Food Service, was acting manager at the cafeteria On March 1, Clifford Waldron became the manager The assistant manager was Bessie Sweeney Hastings Hastings was a witness for the General Counsel, and certain matters relating to her credibility will be recited before there is a discussion of her testimony concerning alleged unfair labor practices and her conversations with The Respondents have preserved their positions in respect to certain issues in the representation case 595 other representatives of management Hastings began work for Morrison Food Service in 1958 or 1959 and advanced to the position of assistant manager at the Dry Dock cafeteria She was discharged during the latter part of 1965 because of an altercation in the cafeteria between herself and the man named Hastings to whom she was married at the time of the hearing She testified that she felt "[a]bsolutely" that Morrison Food Service had been "quite unjust" in discharging her and that she should have been transferred "somewhere else" in view of her length of service and the fact that she had lost four fingers and a part of the thumb of her right hand while at work While testifying, the stump of Hastings' hand was enclosed in a glove except when she removed it momentarily to disclose the lost portions Her uncontradicted testimony is that she had been directed by a superior to grind hamburger, that she had protested even to the point of tears that she did not know how to use the grinding machine, and that the result of following her superior's order was the injury to her hand. Notwithstanding Hastings' strong feelings that she had been treated unfairly, she did not respond to two subpoenas and testificandum which were served upon her by undisclosed means A third subpena was served by a United States marshal, and she then came to the hearing Additionally, by her demeanor, she did not impress me as eager to testify against Morrison Food Service or as being willing to falsify because of her strong feelings toward that respondent During December 1964, shortly after organizational activity began at the Dry Dock cafeteria, an employee named Jean Young signed a union card Young told Hastings that she had done so and that another employee, Jeanette Yeager, was active in behalf of the Union Hastings had not known of the organizational movement, and she told Rehwinkel of it Thereafter, Hastings spoke with Rehwinkel about the Union upon various occasions, and at times additional persons in management were present At the first of such conversations, Mills was present According to Hastings , whose testimony I credit, Mills and Rehwinkel "were talking back and forth," saying that "[w]e would -decide who was the strongest member in the union and that we would make it rough on them to try to get them to quit," and that Rehwinkel said that "he knew that Yeager was involved in the union deeply . and that he would find ways and means to try to get rid of her . "' The quoted remarks among representatives of management, not having been communicated to employees, do not constitute violations of the Act, but the remarks have probative value in resolving other issues , herein Additional conversations which Hastings had with representatives of management are discussed hereinafter, particularly in section III, E, 3, "The question whether Yeager was a supervisor."6 'Rehwinkel acknowledged that he spoke to Hastings of "plans to in effect hound employees out of their employment ," but he also testified that there were "no actual plans," that there was dust the one conversation in which he spoke of "mak[ing] things hard for the [union] leaders," and that the matter did not reach the point of formulating plans Rehwinkel testified also that he "believe[d] possibly Mrs Yeager's name may have been brought up" in the conversation Mills testified that, at times material, he "was in contact with" Hastings "probably every day" and that he spoke with her about the organizational campaign Mills testified further that he did not regard Yeager as the leader of the campaign, but that he had "a feeling," probably gained from management, that Yeager favored the Union, and that Hastings never told him the names of employees who she thought favored it 'There is testimony by Hastings, denied by Mills, that he spoke to her of the closure of a Morrison cafeteria in Little Rock I need not recite the evidence and resolve the credibility issue because no employee overheard 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Josephine Weaver was hired by Rehwinkel on January 12, 1965 She testified that he said to her on that day that "he was having trouble with the union and if anybody said anything to [her] about the union, to come and tell him " The fact is that Rehwinkel read to her a typed statement of nearly I page, letter size, which was read to all employees who were hired after the organizational campaign began The statement's second sentence is that "[y]ou are just beginning as a Morrison employee and it is important for you to get off on the right foot," and there follow references to the Union and to management's opposition to it Weaver's quoted recollection of Rehwinkel's remarks was a. reasonable understanding of the following paragraph from the statement. So let me repeat - We do not want a union in here and we hope that you will never become involved with a union If anyone pushing the union approaches you or tries to get you involved, I would like for you to tell me about it I would like for you to come to me and tell me if anyone tries to get you signed up with the union. That is the only way I can make certain that you have all the facts and completely understand the company's position and its side of the story Another employee, Delores Alford, was hired by Rehwinkel on January 14, 1965 She attributed to Hastings remarks similar to those attributed by Weaver to Rehwinkel. According to Alford, on the day when she was hired, Hastings "asked [Alford] if anybody come up to [Alford] with a union card or a piece of paper for [Alford] to sign, to bring it directly to [Hastings] and show [Hastings] who gave [Alford] the card " On the other hand, when Hastings testified, she was asked by counsel for the Respondents whether she told Alford "that if anybody handed her a union card or spoke to her about the union, to come tell you immediately," and Hastings answered in the negative Hastings was not asked whether she read the prepared statement to Alford or to any other newly hired employee, and it is a reasonable inference from Rehwinkel's testimony ("we read" the prepared statement to new employees) that Rehwtnkel was not the only representative of management at the Dry Dock cafeteria who read it I conclude that Hastings read it to Alford The complaint alleges that Rehwinkel "[c]reated the impression among [the], employees that their union activities were under constant surveillance." Zella Morris, an employee, attended several union meetings According the remarks attributed by Hastings to Mills, nor were the remarks later communicated to an employee On the other hand, I note that the issue was appropriate for resolution in the Little Rock case, and I resolved it in my Supplemental Decision 'The transcript reflects an oral amendment to the complaint by which unfair labor practices are attributed to Hastings The amendment is very limited , however In this connection , there is testimony by Annie Smith, an employee, that Hastings asked her "how [she] felt about the union," to which she replied that she "had heard so much" and "had been pulled from one side to the other " that she "wasn't sure " On the other hand, Hastings, when asked "Now , you did not ever question Ann Smith about the union, did you," answered in the negative Hastings testified further that employees "would come in and talk about" the Union and would ask her opinion, and that upon such occasions she "talked to them how they felt about it " The amendment to the complaint covers only alleged remarks (interrogation and instructions ) by Hastings to Alford during January 1965 It is too limited to embrace Smith's testimony It also is too limited to embrace the testimony of Alford and Smith, about which Hastings was not questioned specifically, that on April 15, 1965, following the election at the Dry Dock cafeteria , Hastings told them that she knew how the employees had voted and named certain ones as having voted for the Union to Morris, the meetings were held at night and on the morning after each meeting Rehwinkel asked her what time she had arrived at home after the meeting ended. She testified further that after the first such question, she anticipated the later ones and made a point of noticing the time of her arrival at her home in order to be able to answer Morris, a baker at the cafeteria, had worked also in Rehwinkel's home. On cross-examination, she testified that Rehwinkel was not unpleasant in asking his questions, that he had "a teasing way about it," and that she "didn't think anything of it at the time " This question and answer followed Q You say you didn't think anything of it at the time You weren't offended or scared or anything like that9 A No, sir, cause I didn't think anything about it, even when we was trying to get the union, I never thought it meant no harm to the company because the whole twenty years, if I might say so, I have put my whole heart and mind in my work and my job. Morris began work in the Morrison chain during November 1942 She worked in Mobile for both Respondents and in Florida for another subsidiary of Morrison Consolidated On March 8, 1965, as described hereinafter, Morrison's constructively discharged her in violation of Section 8(a)(3) and (1). Morris impressed me as a reliable witness and I credit her testimony concerning Rehwinkei's questioning His contradictory testimony, and my reasons for rejecting it, are recited in the footnote " Mills has been identified as the production and procedures supervisor who acted as manager. of the Dry Dock cafeteria for 1 month after Rehwinkel's transfer to another location. Prior to Rehwinkel's departure on February 1, 1965, however, Mills visited that cafeteria upon a number of occasions. An issue is whether Mills talked with several employees individually and made remarks violative of Section 8(a)(1). Morris testified, and I find, that she talked with Mills about three times, that upon the first occasion she was directed by Rehwinkel to see Mills in the executive's dining room, that Mills inquired whether she had attended union meetings, that she answered affirmatively, that, he said that he was surprised at the "older hands," that he asked what the Union could make management do, that she answered that she wanted better conditions because she was being paid only $1 15 hourly after more than 20 years' 'Rehwmkel testified that he never asked Morris what time she arrived at home from a union meeting He testified also that the only employee with whom he spoke about the Union is Helen Brown According to Rehwinkle, Brown would come to him whenever he appeared to be alone and volunteer information concerning "attending meetings, about how she thought some employees felt about the union activities ," but in elaboration of Brown's remarks to him, Rehwinkel testified that she said "that some of the employees were dissatisfied-with this union activity" and that she did not mention any names On the other hand , Hastings testified that four employees , Brown, Estelle Blackmon, Peggy Lassiter, and William Robinson, attended union'meetings and reported to management on "who was active and who wasn ' t " There are two employees named William Robinson and I do not know to which one Hastings referred During December 1964, Brown , Blackmon, Lassiter, and William F Robinson signed union cards which are combination applications for membership and authorizations to bargain William L Robinson, a witness for the Respondent on the subject of Yeager's alleged supervisory status, testified that he signed a union card , but it is not in evidence I credit Hastings' testimony that employees reported to management after union meetings and I discredit Rehwinkel's testimony that Brown did not disclose names in talking with him Moreover, as will appear in the discussion of Yeager's alleged supervisory status, Rehwinkel gave exaggerated and unreliable testimony on that subject MORRISON CAFETERIA COMPANY, INC. employment,. and that he said that he had learned that one reason for the union movement was to have Rehwinkel removed as manager, to which she replied that she did not think so A day or so later, Morris entered a dining room and saw Mills at a table. Mills said that•he was surprised that the "older hands" were "trying to get a union " Morris said that they were trying to better their conditions, and Mills said that she should think about her children, her family and who would pay the rent A few days later, when Mills was alone in the dining room, Morris went to him and said that she had heard that Brown had told him that all employees except Richard Fultz and' Morris were against the Union, that Brown did not know what Morris had "on [her] mind," and Mills acknowledged that Brown had told him so Weaver testified, and I find, that about 2 weeks after she was hired •on January 12, 1965, she had a conversation with Mills in which he said, inter alia,'.that Morrison's "wasn't going union," that the Union "wasn't any good and that they would close the doors before they would go union "10 Alford testified, and I find, that during February Mills said to her, inter alia, that, if the Union should become the employees' representative, they would be required to punch a• timeclock and to pay for their food." Mills also spoke with Alford upon a subsequent occasion, this.time in the presence of Annie Smith and a cook who may have been James Miller Mills spoke against the Union and utilized photographs of individuals on strike elsewhere, saying that a strike by employees of the cafeteria was a possibility in the event of unionization Mills also said that employees would be required to punch a timeclock in the same event.' n Another employee with whom Mills talked in private is Alice Ward who had signed a union card She testified, and I find, that Mills said "that Morrison wasn't going to have no union," and asked whether she was "going to vote for the union," to which' she replied that she did not know She testified further, and I find, that Mills spoke of employees' having to punch a timeclock and of being docked for tardiness " 'Mills denied that he had the conversations with Morris except to testify that Morris accused him of having said that only she and Fultz were "still for the union," to which he responded that he had not said so On cross-examination , Mills testified that "Brown probably told [him] five different things at five different times, " all of which were "[g]eneralities" concerning "our union problems " which had been expressed to Brown by customers of the cafeteria who worked for the Dry Dock company Mills testified also that Brown said nothing to him about whether employees of the cafeteria favored or opposed the Union, that he- had thoughts on the subject based upon discussions , but that he could not "make any specific statement" about the discussions because they had taken place 2 years before he testified As will appear, Mills participated in the constructive discharge of Morris, and his testimony on that subject is not worthy of belief "Mills denied that he made such remark On cross-examination, he was asked whether he spoke to employees individually about the Union He answered affirmatively , and was asked to identify the employees with whom he remembered having talked He answered that he did not believe that he "could mention any particular person" and that he expected that he had talked "to every one of them at one time or another " in discussions which he initiated for the purpose of presenting management 's "views on the union" by use of material which had been provided for that , purpose The record contains copies of much , if not all, of the written material that Mornson's gave to the supervisors I am convinced that many supervisors, in talking with employees, disregarded the guidelines of the material in the belief that their conduct would be approved Indeed, as will appear, some supervisors heard persons high in management baldly threaten employees "The employees were not required to punch timeclocks or to pay for their meals at the cafeteria Mills denied that he made the remarks attributed to him by Alford "Alford and Smith testified concerning the conversation , but only Alford attributed to Mills the remark about punching a timeclock Smith was not 597 Upon one occasion prior to the election, all employees .of the cafeteria were assembled to hear an address by Mills Weaver testified that Mills said that "Morrisons wasn't going union," that the cafeteria was being operated ,on "a thirty day system" and that the cafeteria would be closed "before they would go union " Ward testified that Mills said that the cafeteria was being "run on a thirty day basis" and that it would be closed before "they would have a union."'° Mills' version is as follows This was at the beginning when I first went over there [to the cafeteria] and the purpose in meeting was to inform the employees of the reason for me being there, which was not a common occurrence That I was there to present the company's views on the union That I wanted them at any time to feel free to ask me any questions that were not clear in their mind and mainly I wanted them to continue doing their jobs, dust as they had always done and not to let me interfere with them That is all I said Mills denied that he threatened closure I have expressed my inability, to credit Mills' testimony when it is in conflict with that of witnesses who impressed me as truthful. I credit the testimony of Weaver and Ward, and find accordingly The remaining supervisor at the dry dock cafeteria who interrogated employees about the Union is Waldron, the manager there for a period beginning on March 1, 1965 The testimony presents more difficult problems in credibility partly because Waldron was on the witness stand a very short time (his testimony is included in eight pages of the transcript) in which his principal answers were denials that he had made particular remarks Additionally, unlike Mills and certain other representatives of management, Waldron was not interrogated about other issues in the case so as to afford an opportunity in which his credibility could be better tested ' S Nevertheless, I decide the credibility issues against Morrison's because the witnesses for the General Counsel impressed me as reliable and because the remarks attributed by them to Waldron are consistent with remarks made to employees by other representatives of management. Waldron asked Ward how she intended to vote, saying that "Morrison wasn't going to have any union," that the cafeteria "would close first," and that a wage increase would be granted after the'election The record does not disclose whether Ward- replied It does disclose, however, that wage increases were subsequently asked whether Mills made such remark Miller was not a witness Turning to Mills' version of the conversation, he testified that he used photographs of strikers in talking with small groups of employees when he sought to present management's views, but he denied that he spoke of punching a timeclock "Mills was not asked about his conversation with Ward He denied, however, that he said to any employee that union representation would result in employees' punching a timeclock and being docked On cross-examination , he answered negatively the question whether he ever sought "to find out how an employee felt about the union " "The cross-examination of Ward reflects that she gave an affidavit to the General Counsel The only part of the affidavit which is recited in the record is a port ion relating to Mills' private conversation with Ward That portion does not attribute a threat of closure to Mills, and Ward did not testify that he made such a threat in their private conversation "I have said that Mills' unreliability as a witness is demonstrated, in part, by his testimony concerning the termination of Morris' employment, to be discussed hereinafter Waldron had been manager of the cafeteria for about I week when that termination occurred The testimony of Mills and Morris reflects that,Mills discussed with Waldron a proposal to transfer Morris from one shift to another The record does not reflect that Waldron was otherwise involved in the termination 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD granted On the day of the election, Waldron, told Weaver not to vote for the Union because "if the union wins Morrison will close up first."16 Waldron spoke with Zeolia ,Chestang upon three occasions. About April 1, she was called to Waldron's office where he told her that he had heard that she had done "a mighty bad thing." She asked for an explanation, and he said that he had heard that she had joined the Union She answered, "that's right." Waldron said that the Union was no good, and Chestang replied that her husband belonged to, a labor organization "and it's good." Waldron said that the Union was not, adding that he had changed the minds of employees, that he would like to change her mind, and that if she was "with Mrs Yeager, Mrs Yeager can't give [her] a fob" On the next morning, Waldron went to Chestang's place of work and suggested that Chestang go to Mills and say that she had changed her mind about the Union Chestang refused to go A few days before the election, Waldron called Chestang to his office where he said that he "had already had to let one girl go because she was working for the union, and he didn't want to have to let [Chestang] go too "" Chestang responded that she was employed by Morrison's and that she "wasn't working for the union "1s John W. Hill has been identified as a vice president of the parent corporation and of Morrison Food Service He is in charge of the food service operations performed by the latter corporation, of which the cafeteria at the dry dock is one. During, early 1965 and prior to the election, Hill visited that cafeteria and addressed the employees. A prepared speech is in evidence and the factual issue is whether Hill departed from the text. Before the conflicting evidence is recited, portions of the text will be considered Hill expressed strong opposition to the Union, saying, inter alia, that management would "use every legal means to keep the Union out," that management knew- its rights and "intend[ed] to stand up for those rights," and that management, not the Union, had the employees' "best interests at heart " Much emphasis was placed upon the possibility of a strike and the consequences thereof to employees Hill said Suppose the union won an election here and then the company did not agree to the union's demands and contract proposals - what could the union do about it? There is only one true answer to that question The union would call you out on strike to try to get the things the union organizers promised to get for you Third. and this is the most important thing of all - if you go out on strike you can lose your job forever If the union calls you out on strike over the things it has "The election at the dry dock cafeteria was held on Apnl 15, 1965 Weaver gave the date of the conversation with Waldron 'as April 16, however On cross-examination, she was asked whether she was absolutely certain that the date was the 16th, and she answered affirmatively She was next asked whether there was any question in her mind about the date, and she responded, "No, it (Waldron's remarks] was made that morning before we voted " "Mofris' employment had been terminated She is the only woman whose termination of employment at the Dry Dock cafeteria has been alleged as a violation of Section 8(a)(3) - "Waldron denied that he made the remarks attributed to him by the employees He testified further that his superior, Mills, instructed him not to talk with employees about the Union, and that he followed the instructions On the other hand, there is testimony by Hastings, contradicted by Waldron, that she overheard Waldron talking to employees concerning the Union been promising,. the company is perfectly free, under the law, to hire permanent replacements for you Once this happens, the company = is under no obligation to give you your job back I want to repeat that, because it is so important • If a union calls you out on an ,economic strike, the company is free to hire permanent replacement for you. If you are replaced during a strike - your lob is lost Thousands of union members have lost their jobs this way and the same thing could happen here if the union got in Morrison's ,.Hill, as a witness, volunteered that he did not write the speech A reader who is knowledgeable in labor law will recognize that the author sought to utilize the doctrine of the line of cases beginning with N L R B v Mackay Radio & Telegraph Co , 1304 U.S. 333, 58 S. • Ct. 904 (1938), that employers are free to replace economic strikers, as distinguished, from unfair labor practice strikers, at any, time prior to their unconditional applications for reinstatement." But Hill did not distinguish between the rights of the two types of strikers, nor did he say that management would bargain with the ,Union if it should win the election Indeed, as will be recited, he extemporized by saying that, management would not bargain. Bearing in mind the composition of Hill's audience, all cafeteria workers such as servers, maids, cooks and dishwashers, the implication of Hill's written remarks was that the loss of jobs was the price to be paid by employees who chose to exercise their statutory right to strike Turning to the question whether Hill made remarks in addition to those in the prepared text, he testified, that there were no introductory remarks other than those that appear in the text, that he did not depart from the text in speaking to the employees, that his final remarks were the closing remarks of the text, and that he left the room in which the employees had been assembled immediately upon concluding his remarks He denied that he made any threat that the cafeteria might be closed. On the other hand, several employees and Hastings testified to the contrary The concluding paragraph of the text reads "That is all I have to say now except to remind you, in closing, that this is serious and you should give it careful thought I would hate to see any of you make a mistake you could always regret " Smith testified that when Hill "got through talking, I guess when he got through he looked up at us and he told us that Morrison wasn't going union and if they went union, they were closing down because they weren't going to have anything to do with the union " Hastings testified that Hill "read,his remarks, and then after he had finished reading, he talked " She was asked what Hill had said after he finished reading; and she answered "Well, now, he told the employees that he did not believe a union would be good for Morrison That Morrison was in no position to have a union there, and before they would have a union in they would give the cafeteria up " Morris testified that Hill spoke "about the union trying to get into the cafeteria," saying that "Morrison has never had a union and wasn't about. to have one now because before they would let a union come in there they would close it down." Ward's recollection of "''[E]conomic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements (I) remain employees, (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer- can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons," The Laidlaw Corporation. 171 NURB No 175 " MORRISON CAFETERIA COMPANY, INC. 599 Hill's remarks was that he "[s]aid Morrison wouldn't have no union, they would close." Weaver testified that Hill "read from a paper and then talked afterwards," saying, inter alia , "that they were not going union, that they would close the doors before they would go union "20 I credit the testimony of Hastings and the employees, and I find accordingly I do so for several reasons. First, to credit Hill's denial that' he threatened closure of the cafeteria would necessitate finding that the other individuals named in this paragraph testified falsely or mistakenly ' I am convinced that they did not do so. Second, Hill testified at length that Yeager was a supervisor , His testimony in that respect, recited hereinafter, is not believable and I do not regard him as a reliable witness Third, the text of the address by Hill was used by another representative of management, Holland, in addressing employees at the two public cafeterias in Mobile and he too departed from the text, as described hereinafter. Finally, other representatives of management threatened closure, and Hill's threat was consistent with the Respondents' efforts to prevent unionization The amended complaint contains allegations involving Gibbons, • the president of the parent and subsidiary corporations. One allegation is that he threatened employees at the Dry; Dock cafeteria. That allegation is unfounded and should be dismissed because it involves an instance of mistaken identity. Neither- Gibbons nor Hill had an office in the cafeteria and they were not, well known to the employees. Hastings, assistant manager at the cafeteria during the organizational campaign, testified that she never saw Gibbons there Yeager, who began work at the cafeteria during 1955, testified that she knew of Gibbons, but that she was not sure that she could recognize him. Alford, in testifying concerning Hill's speech, identified the speaker as Gibbons She was a new employee and she testified that she never saw Gibbons or Hill until the day -of the speech According to Alford, "everybody said that's Mr. Gibbons " The record is clear that any employees who told Alford that the speaker was Gibbons were mistaken. Gibbons is the subject of another allegation, i.e , that he threatened employees in communications which were mailed to their homes. The recipients of the communications were the employees of both Respondents at all three of the cafeterias .in Mobile. On February 3, 1965, a letter over Gibbons' signature, on the letterhead of the parent corporation, expressed opposition to the Union and said, inter alia, that unions had tried to organize "Morrison's" but had failed,31 that "[u]nion pressure on this company, could lead to serious trouble," that a strike would hurt both the employees and "the company," and that the "facts about the union" would be brought to the employees' attention On April 2, another letter on the same letterhead had-as its theme. "Unions cause strikes and a strike means loss of pay and loss of work " An attachment to the letter contained a reproduction of a newspaper article concerning a strike at a laundry in another city, and the attachment made the following comments about the article: (1) "Here is the PROOF that employees can lose their jobs in a strike!" (2) "Strikers could not collect unemployment money" (3) "National Labor Relations Board told strikers their jobs were lost! - The company legally replaced them!" and (4) "Union "Yeager also testified about Hill's remarks Her memory was so poor that she could not recall whether the speaker had been Hill or Mills Alford also testified concerning Hill's remarks , but she thought that the speaker had been Gibbons lawyer admits - strikers can not get their jobs back!" On April 12, another letter on Morrison Consolidated's letterhead urged employees to vote against the Union, and contained a facsimile of a ballot marked against the Union with the closing statement , "You can say NO to union strikes , picket lines, loss` of work , dues, fees, and other union trouble by voting NO in the election " Upon undisclosed dates, additional material was brought to the employees ' attention An enclosure within pay envelopes read "What if you did not get this paycheck because of a strike?" Two booklets were circulated among all employees One is entitled "THE TROUBLE CAUSED BY iA UNION STRIKE ANOTHER TRUE STORY," and the other "THE TRUE STORY of a UNION STRIKE CALLED BY - HOTEL AND RESTAURANT WORKERS ,UNION." 2. Events 'at the Highway 90 cafeteria Herbert Davis, a headwaiter and supervisor, was a leading figure in the Union' s organizational efforts at this cafeteria. Timothy Reed was an assistant manager there About January 1, 1965, when Davis was active on behalf of the Union, Reed inquired of Davis whether he had heard about the "union mess" at the Royal Street cafeteria, and, upon receiving an affirmative response, Reed said that employees at both cafeterias had signed cards. Reed asked that, if Davis should learn the identities of any signers, Davis inform him Davis promised to do so. The promise surely was insincere . Davis added that Reed had nothing to worry about at the Highway 90 cafeteria. Because both Davis and Reed were supervisors, the General Counsel does not contend that Reed's remarks violated Section 8(a)(I). The evidence was offered to show Reed's interest in learning the identity of union adherents 22 Holland has been identified as an officer in the parent and subsidiary corporations The two public cafeterias in Mobile are under his supervision During January, Holland initiated two conversations with Davis at the Highway 90 cafeteria. The first one took, place in a room in the cafeteria Holland asked whether Davis had heard of the "union mess" at the Royal Street cafeteria, and Davis replied that he had heard rumors. Holland then said that "we don't want a Union, we are not going to have a Union," and that "the company wouldn't bargain with" a union. Holland said too that cards had been signed by employees at both cafeterias and that, if Davis should learn who had been responsible for cards having been signed at the Highway 90 cafeteria, Davis should let him know. Davis, who was largely responsible himself, promised to do so. Again, the promise surely was insincere The second conversation occurred outside the cafeteria. Holland again said that "we don't want a union, we are not going to have a union," that Davis should be "There is some evidence concerning the absence of union activity at a number of cafeterias in the Morrison chain There is no evidence of any union activity at any cafeteria except the ones in Mobile and the one in Little Rock that was closed "The findings concerning the conversation between Davis and Reed are based upon the former's testimony When Reed testified for the Respondents , he was not asked about the conversation on direct examination On cross, however , he denied that he talked with Davis about the Union Davis impressed me as a reliable witness and , as will appear, I credit his testimony in other instances ' On the other hand, I will have further occasions to discredit Reed Too, the record is clear that the Respondents were interested in learning the identity of union adherents, some of whom were invalidly discharged 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerned about the matter, and that Davis and Cornell Stokes, the head cook at the cafeteria, should "get busy and try to find out who is responsible for all this mess" at the cafeteria These conversations, having been between supervisors outside the presence of employees, do not constitute violations of Section 8(a)(1) They do, however, reflect Holland's position on the union activity and his desire to learn the identity of union leaders." During the Union's campaign at the Highway 90 cafeteria, Holland held several meetings with employees. On or about February 1, he delivered a prepared address upon two occasions to assure that all employees would be listeners. He also held small group meetings at which the employees numbered a,dozen-or less. Finally, on April 15, the day before the election in which those employees voted, Holland delivered another prepared address The prepared addresses are in evidence and the factual issue concerning them is whether Holland departed from the texts. In respect to the small meetings, Holland testified that he read excerpts from a book and the wage rates from two collective labor agreements, and that he said nothing else of consequence other than to identify the book and agreements. The book, entitled ""The Enemy Within," was written by the late Robert F Kennedy and, according to Holland, was based upon the author's experiences 'as counsel for a committee of the United States Senate The agreements covered employees at a local restaurant and a local cafeteria In his initial address, Holland used the same text as that used by Hill during the latter's address to employees at the Dry Dock cafeteria, discussed above Contrary to Holland's testimony that he did not depart from the text, Davis testified credibly, and I find, that Holland said that "the Union is nothing but a bunch of crooks and communist." There was nothing in Holland's written remarks which Davis could have interpreted to that effect, although Holland later spoke to employees of "racketeering in unions" and a memo from management to cafeteria managers concerning "Notes for talks with employees" refers to "racketeering and corruption in" the Union. Davis did not confuse Holland's remarks upon one occasion with his remarks at a later time for the simple reason that Davis, whose employment terminated on or about the day of Holland's initial address, did not attend any later meeting at which Holland spoke. Davis testified further, and I find, that Holland also said, "We don't want a Union and we are not going to have one," which reflects another departure from the written text. Sadie Schultz was another of Holland's listeners. When questions embodying portions of Holland's written text "The findings concerning the conversations are based upon Davis' testimony He quit his employment with Morrison 's on February 1, 1965, a few days after his second conversation with' Holland He had been employed for 23 years, of which he had been a head waiter for approximately 8 years He quit his employment under circumstances that were unpleasant to him, and this fact has been considered in evaluating his credibility He impressed me as a truthful witness On the other hand, Holland's testimony impressed me unfavorably According to Holland, he could recall one conversation with Davis about the Union, an occasion when they were outside the cafeteria and he "explained " to Davis that he "didn't think we needed a union at Morrison 's" because of certain benefits which employees had received and which Holland related to Davis Holland testified further that he did not ask Davis to report on the union activity of employees and that he was not interested in knowing which employees had signed cards or attended union meetings because that "Idlidn't matter to [him] at all " I cannot believe that Holland was not interested in knowing the identity of union adherents The record reflects that the Respondents were much interested in that subject and that they invalidly discharged some union adherents were posed to her, she recalled that he had made a number of remarks which appear in the text In response to one such, question, whether Holland had said, "We hope that we never have any serious union trouble here, but we are not afraid of the union, and if the union wants a fight, we are prepared and will not back away from it," she testified that she recalled Holland's having said so and, she continued, "he also added that they [the Union] would never get in." At another point, Schultz testified that Holland "said Morrison never had a union and that they never would have [one]." Schultz testified further that Holland also said that "if the union got in that we would have different things that [sic] they, had now We wouldn't have a credit union and we probably would have to pay for our food and we wouldn't have a fob " I was favorably impressed by Schultz as a witness and I credit her testimony Another of Holland's listeners was Edward Eaton, the No. 2 waiter and a supervisor, who had been an employee since 1949 Eaton's testimony reflects that Holland did not confine his remarks to the written text According to Eaton, Mr Holland said that Morrisons do not want a union, said Morrison is not going to have a union, he said anyone caught participating in union activities would be discharged from the company. He said you would only be hurting yourself and your family He said, I will repeat what I just `said, in case you don't know what discharge means , it means you have lost your job He also stated that some of us 'going around talking about we would sue the company if we lost our fobs, but they had lawyers and they were going to fight too As a witness, Eaton impressed me as truthful. I credit his testimony and find accordingly Turning to Holland's meetings with small groups of employees, the record discloses that more was said than Holland acknowledged Eaton attended one of those meetings , although he usually was excluded because he was a supervisor Eaton confirmed that Holland read from a book and spoke of hoodlums, but' Eaton testified also, and I find, that Holland said that he could not make "promises now, but . if Morrison wins this election . all of you will get raises " Eaton testified further, and I find, that Stokes, the head cook, spoke against the Union.24 Schultz attended several of the small meetings, at one of which Stokes spoke against the Union, following which Schultz spoke in its behalf. Schultz also confirmed that Holland read from a book, but she testified additionally that Holland "had some of the other people that worked there to read out of the book," and that at one meeting Holland also spoke of an airline strike, that Holland said that "Morrison never had any union and never will have one," and that Holland saidthat the "union wouldn't get in and if they did they probably would have to close the place down and nobody would have a job" I credit Schultz's testimony and find accordingly 25 Turning to Holland's speech to employees at the Highway 90 cafeteria on the day before the election, it was a brief address in which he said, inter aha, that a Committee of the United States Senate had determined "Stokes was not a witness , and thus did not deny that he spoke "As recited, Holland testified that the substance of his remarks at the small meetings was to read excerpts from The Enemy Within and the wage rates recited in the two contracts He denied that he spoke of an airline strike or of a possible closure of the cafeteria I cannot credit Holland's denials I am convinced that Stokes spoke against the Union, that Shultz spoke in its behalf, and that Holland made the remarks attributed to him by Eaton and Schultz His threat of closure was consistent with like threats made by various supervisors, as related elsewhere herein MORRISON CAFETERIA COMPANY, INC. 601 that the Union had "a bad record," that the Union had been involved in unsuccessful strikes, and that all employees should vote against it Additionally, he explained how ballots should be marked. The text was not coercive, and there is no evidence that Holland departed from it James Moore was the manager of the Highway 90 cafeteria. Harold Cruse, a waiter, worked over a period of 16 years for subsidiaries of Morrison Consolidated in 12 cities. Prior to the organizational campaign in Mobile, Cruse was transferred to work in the Highway 90 cafeteria He became a union adherent. He testified, and I find, that Moore spoke to him of his union adherence about January 1965, asking if he was "head of the union," to which he responded in the negative, that Moore said, inter alia, that Moore would "run [him] off" if he were not a good worker and that he would not have a job "if the union [should] come into Morrison." The record in Morrison Cafeterias Consolidated, supra, reflects that the cafeteria in Little Rock, Arkansas, was closed promptly after a sister local of the Union won an election there In the conversation between Moore and Cruse, according to Cruse's credited testimony, Moore also said that "[i]fyouu 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 that during the night of April 15 Moore spoke to him of the election to be held the next day, saying 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 ...." 26 As recited in connection with the meetings of employees that Holland conducted, Schultz spoke in favor of the Union on one occasion. Her hourly rate of pay was 75 cents, and she said at the -meeting that another employee, whom she named, was being paid much more although they were doing the same type of work. Moore attended that meeting and heard Schultz's remarks When the meeting ended, he called Schultz to his office and gave an explanation for the higher pay to the other employee, "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 conversation of 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 and that he said to Cruse that the latter was a good worker, but he acknowledged having spoken to other employees concerning the Union , sometimes initiating the conversations in order to speak against the Union, and he testified too that he "could have" conversed with employees during the night before the election 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, that Cruse was "two-faced," that he accused "Cruse of being disloyal to the company ," and that he 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 He played a role in his employer's campaign against the Union , and the remarks attributed to him by Cruse are consistent with remarks made by management to other employees Moreover, 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 Indeed, Moore's successor as manager of the cafeteria, Ronnie Tatum, who discharged Cruse as described hereinafter, testified for the Respondents that Cruse "was a good waiter" whose fault was "a tendency to lose his temper several times adding that if the Union should not become the employees' representative the rate of pay would be $1 hourly, but. that he would not promise anything in the event of a union victory.27 Upon another occasion, Moore told Schultz that the employees "were supposed to get $1.00 an hour if the union. didn't come in," and that there would be better facilities, but "if the union got in no telling what would happen It would probably close the place up."28 The findings under section III, C, 1, above, concerning Gibbons' letters to employees and other material are equally applicable to employees at the Highway 90 cafeteria. 3. Events at the Royal' Street cafeteria Kenneth Wear was the manager at the Royal Street cafeteria. One of his subordinates was Eddie Tolbert, a union adherent. About February 1, 1965, Wear asked Tolbert "what was going on in the kitchen," and Tolbert replied that he did not know. Wear then said that he had heard that quite a few of the employees had signed union cards, and he asked if Tolbert knew their identities, and again Tolbert answered in the negative. Wear also said that he had heard that "a lot of employees" had attended a union meeting on the preceding night. Subsequently, about 2 weeks before the election, Wear again spoke with Tolbert who was scheduled to be on vacation when the election was conducted. Wear said that Tolbert should be sure to vote, that Wear would speak with "a lot more of the employees," and that he "would get rid" of those who voted for the Union.29 At about the time of Wear's second conversation with Tolbert, the latter conversed with Steve Billingsley, the assistant manager at the cafeteria. Billingsley told Tolbert that a union was not needed and that he would "get rid of all" employees who voted for the Union.30 We have seen that Holland held several meetings of employees at the Highway 90 cafeteria. He did the same "Moore unconvincingly denied that the conversation took place Although he acknowledged having talked to employees about the Union, he professed to having had scant recollection of what was said "This finding is also based upon Schultz's testimony which Moore contradicted There is additional testimony by Schultz concerning conversations which she overheard between Timothy Reed, assistant manager at the Highway 90 cafeteria , and an employee named Smith and another named Hayne or Hayes Reed 's version for the Respondents differs Smith and Hayne or Hayes were not witnesses , and I am not satisfied that I can determine just what was said in their conversations with Reed "The findings are based upon Tolbert's testimony On the other hand, Wear testified that at "one time or another" he probably talked about the Union with all employees of the cafeteria, that "as a rule" he did not initiate the conversations , that he "tried to encourage all" employees, including those who would be on vacation , to vote against the Union, but that he did not interrogate or threaten any employees Wear testified further that he did not recall "in specific[s]" having talked with Tolbert about the Union and that he did, not ask whether Tolbert favored the Union or say that he would "get rid of those who voted for it I do not credit Wear's denials, and I shall have occasion to discredit him elsewhere herein Turning to Wear's conversations with another individual, he talked abbut the Union with Charles Wiggins, the No 2 waiter and a supervisor Wear's remarks to Wiggins did not violate the Act because both were supervisors For that reason and because Wear 's remarks were not on the scale of remarks made to Hastings, supra, I find it unnecessary to detail the conversations between Wear and Wiggins. "The findings are based upon Tolbert's testimony Billingsley contradicted Tolbert and denied that he spoke to any employee about the Union As will appear, I cannot credit Billingsley in connection with Tolbert's discharge, and I discredit him here 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thing at the Royal Street cafeteria An issue is whether Holland made certain threats to employees at the latter cafeteria As recited, the record on remand in' the Little Rock case is a part of the record here by stipulation. The remand was for the purpose of reconsideration of Morrison Cafeterias Consolidated, supra, in the light of N L R B v Darlington Manufacturing Company, et al , 380 U.S 263. On April 19, 1963, Morrison Consolidated and its subsidiary, Morrison Little Rock, closed a cafeteria promptly after a sister local of the Union won a Board-conducted election An issue here is whether Holland referred to the closure in Little Rock when speaking to employees at the Royal Street cafeteria. As we have seen, Holland testified that his remarks at various meetings with employees were confined to reading the texts of two prepared speeches, portions of a book entitled "The Enemy Within," and the wage rates from two collective labor agreements. Eddie Johnson, one of Holland's listeners, 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 is another employee who testified that • Holland referred to the closure in Little Rock. 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 there and that the same thing would happen in Mobile in the event of a union victory. I credit Tolbert's testimony and find accordingly 31 "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 another 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 instant cases The Little Rock 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 Section 8(a)(3), (135 NLRB 1327, enfd 311 F 2d 534) and Morrison Little Rock and its parent, 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 Thus, he testified that during the organizational campaign in Mobile, he did not remember "the Little Rock case " As the citations in this footnote reflect, there had been two unfair labor practice cases involving the Little Rock cafeteria .1 do not believe that Holland told the truth in this instance He had been active in the closure of the Little Rock cafeteria and The findings under section III, C, I, above, concerning Gibbons' letters to employees and other material are equally applicable to employees at the, Royal Street cafeteria 4 Summary of interference, restraint, and coercion In summary, I find that Morrison Food Service violated Section 8(a)(1) by the following conduct (1) Rehwinkel's request of Weaver and Hastings' request of Alford that those employees report to management if anyone spoke . to them concerning the Union; (2) Rehwinkel's repeated inquiries of Morris concerning the hours of her arrival at home after attending union meetings; (3) Mills' inquiries of Morris concerning her attendance at union meetings and his inquiry of Ward whether she intended to vote for the Union; (4) Mills' threat to employees that the Dry Dock cafeteria would be closed in the event of unionization, (5) Mills' threats to employees that, if the Union became their representative, they would be required to punch a timeclock and to pay -for their meals; (6) Waldron's inquiry of Ward concerning how she intended to vote, his threat to her that the cafeteria would be closed, and his promise to her of a wage increase after the election, (7) Waldron's threat of closure in speaking to Weaver, (8) Waldron's threat to discharge Chestang, his statement to her that she had done "a mighty bad thing" in joining the Union, and his suggestion to her that she tell Mills that she had changed her mind, and '(9) Hill's threat of closure to employees when he addressed them as a group. I find further that Morrison Cafeteria violated Section ,8(a)(1) by the following conduct' (1) Holland's threat to employees that management would not have a union, (2) Holland's threats to employees, including threats to close the public cafeterias; (3) Holland's promises of wage increases; (4) Moore's inquiry of Cruse concerning the latter's union ' adherence and his threats to Cruse of closure and job loss; (5) Moore's promise of a wage increase to Schultz and his threat of closure to her, (6) Wear's inquiries of Tolbert concerning union activities, and (7) the threats by Wear and Billingsley to Tolbert to get rid of employees who voted for the Union. I find further that both Respondents violated Section 8(a)(1) by their attempts, including letters to all employees over Gibbons' signature, "to instill in the employees a sense of fear that unionization would bring on strikes . and a loss of jobs," General Automation Manufacturing, Inc, 167 NLRB No. 66. 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 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 we 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 there, 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 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 MORRISON CAFETERIA COMPANY, INC. '603 D. The Terminations of Employment exchange "would , be better for" Morris According to 1. At the Dry Dock cafeteria Zella Morris began work in 'the Morrison chain during 1942 She performed numerous tasks during the course' of her employment and, when that employment was terminated on March 8, 1965; she was a baker Mills told her that she was being transferred to another shift She rejected the transfer, and her employment was terminated. The question is whether Mills used the tactic of a transfer as a means of ending the employment of a known union adherent - Morris was active in behalf of the Union, having signed a card and attended meetings, having spoken favorably of the Union in conversations with employees, and having carried blank cards:to Yeager for use in the latter's efforts to 'organize the employees. Morrison Food Service knew that Morris was a union adherent, as is` reflected in the findings above concerning remarks to her' by Rehwinkel and Mills. As a baker, Morris worked the first shift from 4:30 a.m. -to 2 p m The hours for some employees 'oh the second shift were 11 20 'a.m. to' 8`30 p m -Estelle Blackmon, the head baker, worked the first shift with Morris, on which most of the baking is done" Susena Polk, who began work for Morrison's a few months before Morris' termination, was the baker on the second' shift Mills proposed to transfer Polk to the first shift and Morris to the second one. Hastings, the former assistant manager at the cafeteria who was a witness for the General Counsel, testified that Mills said that he proposed to' transfer Morris to the second shift; knowing that she could not work on it, and that management "could get rid of her that way " Mills denied that he made such remark to Hastings, but the facts surrounding Morris' termination support the conclusion that Hastings told the truth We turn to the basis of Morris' unwillingness to work on the second shift and to management's- knowledge of that unwillingness. About 6 or 7 months 'before Morris' termination, when her 5-year old daughter was being cared for during Morris' working hours by an elderly woman to whose home Morris transported the daughter daily, the woman left her home to walk to a store in the same block. A man who was painting inside the house attacked the daughter 'while the woman was away and the child was,asleep. The attack had a substantial'effect upon Morris, but she had no one else to- take care 6f" her daughter while she worked, and the woman to whose care the daughter was entrusted was not in good -health and was unable to take care of the child at night: On the day after the attack, Rehwinkel noticed that Morris was not her usual self and he asked her what was the 'matter. She told him of the attack She also told Hastings 'Morris rode to 'and/or from work in Blackmon's automobile. Blackmon testified'that Morris "had been off sick for a couple of days" before' Morris' termination, during which time Polk took Morris' place on the first shift, and that "one morning" Blackmon conveyed to "the manager" a-message from Morris that Mdrris'was Linable to return to work Blackmon did• not, identify' "the manager," and, as already noted, Mills, -as acting manager, was succeeded by -Waldron , as manager , about a week before Morris' termination . Blackmon testified further that when she conveyed Morris' message, she was told that it would be necessary' to have someone assist her in baking, and that a short while later someone told her that Polk and Morris would exchange shifts because the Blackmon, she made no,comment On March 8,- when Morris returned to work, Mills told her that she was being transferred to the second shift. Mills' version is that Morris was Blackmon's helper, that Morris worked too slowly for the large amount of baking that was done on the first shift, that Morris also was absent "constantly" because of her health, that Polk was needed on the first shift "in order to get this production out," that Mills discussed the matter with Blackmon and "management," that Blackmon agreed to the transfer,-but that Blackmon would not request it "for fear of breaking up" her friendship with Morris. ' Mills testified further that when he "explained to Zella [Morris] what [he] felt we needed to do," she "just went all to pieces," saying that she "didn't have anybody to take care of her daughter and she couldn't work the night shift"and that Mills "wasn't being fair to her and one thing or another " Mills denied that anyone had told him of the attack upon Morris' daughter and' that Morris -spoke of it to him, and he testified further that he told Morris that he "would give her a week or two weeks to make arrangements to get somebody to take care of her child so that she could move onto the second shift," but that she "walked. off the job that day" and was terminated "after she quit her job " Mills' version does not have the ring of truth. In elaboration of his testimony that Morris worked too slowly for the first shift,' he testified that his "dealings" with the Dry Dock cafeteria began in January 1963, by which time Morris had become Blackmon's helper, and that Morris had been "slow" as long, as he had known her Mills testified at another point , however, that between January 1963 and January 1965, he visited the Dry Dock cafeteria only about- "once every two months," and Morris testified that prior to January 1965 she saw Mills at the cafeteria only "about twice a year." Additionally, Mills' testimony that Blackmon agreed to Morris' transfer is contradicted by Blackmon who testified that she made no comment when she was told of the proposed transfer Morris' testimony, which I credit, differs from that of Mills in important respects Whereas Mills testified that he explained to Morris what he felt was needed, she testified that he did not tell her why, Polk was to work on the first shift and that he "dust said he had to have a night baker" and that he, Waldron and Blackmon `,had talked it over."14 Additionally, Morris , testified that she told Mills of the attack upon her daughter, to which he responded, "-I can't help that, I still got to have a night baker," following which she told him that she had no means of transportation to and from work on the second shift. Morris' testimony that she told Mills of the attack is quite believable. Such an event is not easily forgotten by a parent, and-surely Morris would have told of it in her effort to avoid a transfer-to the second shift Next, there is nothing in Morris' testimony to indicate that Mills told her that she could have a,week or two to obtain someone else to care for her daughter. Morris understood that Mills was insistent upon the transfer and that, because she would not accept it, her employment had come to an end I believe that Mills intended that she-so understand Although she had been an employee since.1942 and had worked for three subsidiary corporations of Morrison "The portion of the transcript that contains Morris' testimony misspells Waldron's name as Walton and Walters Waldron's identity is fixed, however, by Morris' testimony that he is "this other manager, he just had come there " Moreover, as noted, Mills testified that he discussed the proposed transfer of Morris with "management " 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Consolidated, Mills acknowledged- that he did not tell Morris that he would see whether she could be retained in any capacity on the first shift When asked whether he did anything to have her continue on that shift, he answered that he "didn't have an opportunity" because she "quit the day [he] mentioned this [transfer] to her " I conclude that Mills proposed the transfer of Morris to the second shift in the belief that she would quit rather than accept it, that his motive was to •rid Morrison Food Service of a union adherent, and that thereby that Respondent violated Section 8(a)(3) and (1) of the Act Richard Fultz was employed at the -Dry Dock cafeteria. There is no evidence to support the oral amendment to the complaint that he was discharged in violation of the Act. That allegation should be dismissed 2 At the Highway 90 cafeteria Before discussing the individual terminations of employment, certain evidence concerning alleged eavesdropping must be considered. During March 1965, an inventory was taken at the Highway 90 cafeteria An article was discovered in the dressing room used by the waiters and cooks, and the General Counsel contends that it was a device by which management could obtain knowledge of employees' union activities. The dressing room is used by employees as a place in which to change clothes before and after working hours and as a place to rest during break periods During inventories, it is customary to search for silverware, dishes and other articles throughout the cafeteria including the dressing room and to look above and beneath the lockers in that room During the 1965 inventory, an unidentified person or persons took the unusual step of pulling a few lockers from the wall There, behind a locker and attached to the wall at about 4 or 5 feet above the floor, was an article which is sometimes referred to in the transcript as a box and as a device Many employees saw -it and a few attempted unsuccessfully to get to it through the small space that had been created by pulling some of the lockers from the wall Eaton testified that the dimensions of the article were approximately 6" in length by 3" in width and 2" in depth Cruse gave two dimensions as about 4 1/2" by 5 1/2". The front of the article had a circular opening over which a piece of cloth had been placed A wire extended from the article toward the floor, but not directly so, and the destination of the wire could not be determined because enough lockers had not been pulled from the wall The employees who saw the article returned to work Eaton continued with the inventory He returned to the dressing room about 70 minutes later The lockers had been placed back against the wall He pulled several away in order to examine the article, and found that it had been removed The record does not disclose who installed or removed it The above findings are based upon uncontradicted testimony for the General Counsel. The record reflects that the Respondents'- failure to offer any evidence on the subject was deliberate, not an oversight. Descriptively, the article was an enclosed microphone or speaker. If the latter, it was not used as such because of its hidden position and the fact that there is no evidence that it was used to communicate 'to employees. But, functionally, a speaker can be used as a microphone. These facts do not warrant resolution of the issue in favor of the General Counsel, however. An eavesdropping device may have purposes that are not proscribed by the Act. The most that can be said for the General Counsel's position is that, assuming that the device was installed for a purpose not violative of the Act, if one result of its use was listening to employees' comments about union activity, such use may have provided the Respondents with, knowledge of which employees using the dressing room were union adherents But there may be no evidence that employees spoke of the Union while in the dressing room (see the footnote next below), if they had done so, proof to that effect should have been available to the. General Counsel In summary, I conclude that the device does not establish knowledge on the part of the Respondents that any of the dischargees was a union adherent. Moreover, one of the dischargees, Schultz, a woman, did not use the dressing room The discharges - at the Highway. 90 cafeteria will be considered chronologically. Elisha Beckham, Jr., was hired by Morrison's during ,March 1964 and worked as a dishwasher. He signed a -union 'card and attended union meetings The evidence that. Morrison's knew of his interest in the Union is his testimony that Stokes, the head cook, "was head of the kitchen," that Moore had said so, and that Stokes may have known of such interest because Stokes once entered a room where Beckham and three other employees had been discussing the Union and a moment or so after Beckham had said that he favored it. Beckham testified further that he did not make any remark about the Union after Stokes entered the room.35 That discussion took place„so Beckham testified, about 1 1/2 months before he was discharged "around February" or during March. If Beckham was discharged, the month was not February or March Morrison's records show that Beckham worked 4 hours during the week ending January 2, 1965, and that his employment was terminated. According to Beckman, Moore told him that he was not needed any longer. According to Moore, Beckham quit by not coming to work This conflict. need not be resolved because, assuming arguendo that Beckham was discharged, I do not believe that the termination was invalid. About April 19, 1965, Beckham returned to work in the cafeteria He testified that he telephoned Moore "and asked him did he need anybody to work," that Moore told him to come to the cafeteria, that he went to work the "same day," that in his initial employment he had been "just a plain ordinary dishwasher," that he was reemployed as "head dishwasher" with certain responsibilities over other dishwashers, that his new salary was $36 weekly, an increase. of $2, and that he was later put on the training program to become a, cook. Subsequently, Beckham's employment was terminated again, but there is no issue here concerning the second termination I find that the General Counsel has not proved that the first termination was in violation of the Act. Maxine Horn, a man, was in Morrison's employ for a little, over 2 years and was discharged on January 10, 1965 He signed a union card and, as he testified; "asked several waiters about signing" cards He attended union meetings, one or more of which took place before his discharge. The evidence that management knew of his interest in the Union is his testimony that he discussed the Union with Davis, the No. .1 waiter, and Stokes, the head "Beckman testified that the discussion among the four employees took place "upstairs in the main locker, room " This testimony was not given in connection with the eavesdropping device discussed above, and Beckham did not identify the "main locker room" as the dressing room for waiters and cooks There is no allegation that any of the other three participants in the discussion was invalidly discharged MORRISON :CAFETERIA COMPANY, INC. cook Davis was a strong union adherent (see fns. 22 and 23 and accompanying text) and surely he did not report Horn's interest in the Union to his superiors Stokes opposed the Union (see fns 24 and 25 and accompanying text), but there is no evidence that he reported Horn's interest to management., Moreover, the record will not support a finding that Stokes was a supervisor, and counsel for the Respondent asserted that Stokes voted in the election without challenge. Horn was discharged on a Sunday On a preceding Sunday he had spoken rudely to a customer. The record does not fix the date of the incident - involving the customer There is testimony by Davis that'it may have occurred about a month before Horn's discharge, but Davis was not asked the specific question and his testimony on the point is unclear. On the other hand, Horn was asked if the incident occurred "shortly before" his discharge His answer was to tell of the incident without fixing the time. A party of four individuals, upon whom Davis usually waited, came to the cafeteria Horn carried two of the trays to a table. Davis carried the remaining trays According to Horn, one of the customers asked about the other trays, to which Horn responded that he had two trays, that another waiter had the other trays, and that he could carry.only two trays because he had only two hands Davis testified that the "customer was upset" and • that Davis told Horn, that he must "[n]ever talk to a customer like that again " Horn testified that Davis "jacked [him] up about it" and made him apologize to the customer. Moore heard of the incident. Morrison's keeps a supply of self-addressed; postage prepaid cards in its cafeterias for . use by customers in making complaints or , expressing compliments, and Moore testified that he received such a card with a complaint concerning an unidentified waiter. Moore testified further that he asked Davis about the incident, seeking the details and the identity of the waiter Davis' testimony is corroborative that Moore inquired of him and that he told Moore that he had reprimanded Horn There is additional testimony by Moore, contradicted by Davis, that Davis said that Horn should be discharged and that Davis himself made the discharge I credit Davis' denial because I regard him as a much more reliable witness than Moore. I believe that Moore sought to strengthen the basis for discharging Horn by falsely testifying that Davis said that Horn should be discharged. The facts remain, however, that Davis' belief that his disciplinary actions toward Horn at the time of the incident were sufficient was not binding upon Moore and that Moore had a valid basis for discharging Horn Moreover, there is testimony for Morrison's that Horn had conducted himself improperly before the incident, and Horn acknowledged that he had been reprimanded, by Moore for "loud talking in the dining room." For the above reasons, and because the record does not establish that Morrison's knew that Horn was a union adherent. I find that Horn's discharge did not violate the Act. Edward Eaton began work during 1949 as a waiter at the Royal Street cafeteria He worked there until his transfer to the Highway 90 cafeteria in 1962 as the No. 2 waiter, next in line to the No. 1 or head waiter As the No. 2 waiter, Eaton was a supervisor. He did not sign a union card but he attended three union meetings. On February I, 1965, when Davis quit as head waiter (see fn. 23), Eaton became acting head waiter About "1 year earlier, Moore had been transferred to the Highway 90 cafeteria as manager, and during the period of February 1964 to February 1965 he observed Eaton's work as No. 2 605 waiter Moore testified that during that period Eaton demonstrated that he was "a weak, fairly weak No 2" waiter, but that Moore was not "able to tell how weak he was until he" became acting head waiter On April 20, 1965, a few days after the election, Moore suspended or discharged Eaton The latter was reinstated about 2 weeks later as a nonsupervisory waiter, but was soon discharged The second termination, which was during May, is alleged to have violated Section 8(a)(3) Eaton testified, and I find, that on April 20 he was called to Moore's office where Moore told him to turn in his badge, that Joseph Thompson and Warren McHale were being made No. I and No. 2 waiters, respectively, and that Eaton was being terminated, to which . Eaton responded by asking whether he would be permitted to work as a regular waiter According to Eaton's credited testimony, Moore then said that Eaton would cause trouble as a regular waiter, but that Eaton could return in 2 weeks and Moore would "see what" he could do about making Eaton, a regular waiter. Moore's version of this conversation is recited, in the footnote 36 At the end of 2 weeks, Eaton made several attempts to see Moore. After the passage of a few more days, Eaton talked with Moore, asking to be reemployed Eaton testified, and I find, that Moore said that he had "only one thing" against Eaton, that Eaton as acting head waiter "didn't do one thing to help us keep the union out of the company," that Eaton had not done as much as Thompson and another employee, and that Eaton had not helped keep the Union out because Eaton's brother was "tied up in it" The brother worked at the Royal Street cafeteria According to Eaton's credited testimony, he replied that the Union was his business and that Moore could do as Moore wished, following which Moore said that Eaton could return to work 2 days later. Eaton worked as a regular waiter for 2 weeks, at the end of which Moore discharged him During that period, Eaton's name had not been placed on the payroll. Moore's version of the discharge is recited in the footnote.37 I cannot credit Moore's testimony that Eaton, who had worked long and satisfactorily for Morrison's, became unqualified during Moore's tenure as manager of the cafeteria. I find that Eaton was removed from his supervisory job on April 20 because he had not assisted management in combatting the Union and that he was subsequently discharged from his nonsupervisory job for the same reason. This is not a case in which an employer may validly discharge a supervisor for having engaged in union activity, or may "Moore testified that he had had a "considerable amount of trouble" in the operation of the dining room and that he had talked to Eaton a number of times about that operation Moore testified further that on the day in question he told Eaton that he had to make changes because the current arrangement was hurting business ' and that he was thinking of making Thompson and Warren McCarroll the No I and No 2 waiters, respectively (Warren McHale, named by Eaton, and Warren McCarroll, named by Moore, may be the same individual ) According to Moore, he knew that Eaton "had been with the company for quite a while" and he spoke to Eaton of the possibility of making Eaton a regular waiter , saying that Eaton "would probably cause a little turmoil" in that capacity, so Moore laid Eaton off for 2 weeks "to see how the operation would run without him even being in the house, in the cafeteria , at all " "Moore testified that, as he had suspected, after Eaton returned to work as a waiter, Eaton "drag [ged] his feet , so to speak, pull[ed] against the boys that were trying to run the dining room," did not "do as he was told and also caus [ed] confusion among the other waiters " by telling them "not to listen" to the No 1 and No 2 waiters No supervisory or nonsupervisory waiter was called as a witness to testify that Eaton became a disruptive influence upon anyone when working as a waiter 606 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD validly discharge the same ^ individual later after the individual has become a nonsupervisory employee for having engaged in union activity as a supervisor Gibbs Automatic Division, Pierce Industries, Inc , 129 NLRB 196. Instead, our case is one in which a supervisor is terminated because he refrained from engaging in management's antiunion campaign which consisted of numerous unfair labor practices We need not consider whether a supervisor's discharge for such reason violates Section 8(a)(1) as restraint or coercion of employees because Eaton's first discharge is not alleged to have been an unfair labor practice I find that the discharge of an employee for having refrained, as a supervisor, -from engaging in an invalid union campaign is discrimination within the meaning of Section 8(a)(3). This is particularly true' when the campaign is still underway at .the time' of the discharge, as reflected by the Union's objections to the election which were intended to secure another election Sadie Schultz was hired at the Royal Street cafeteria during November 1962. After working there for 2 weeks, she was transferred to the Highway 90 cafeteria where she worked until May 22, 1965. The issue is whether she quit her job without notice or was discharged She attended union meetings and, as recited above in connection-with Holland's remarks to groups of employees, upon one occasion when Holland spoke to employees who worked in, the kitchen, she spoke in favor of the Union. At Moore's direction, she did not attend the last several meetings that Holland held with employees. Prior to the election on April 16, Schultz worked as a baker. On April 21, Moore told her to work at the beverage -stand in the serving line, and she did so until May 22 When she was overworked at the stand because of large numbers of customers, Moore would not let anyone aid her, saying "she's, for the union, let her work by herself."" Schultz testified that on May 22, 1965, after she had cleaned the beverage stand at the end of her day's work, the assistant manager, Reed, came to her and told her that Moore had said "that that was [her] last day of work" and that, if she had any questions, to ask them of Moore. Schultz testified further that Moore was not in the cafeteria and "was supposed to have been out of town " Moore's testimony does not indicate that he was' in the cafeteria on the night of May 22. He testified that at 8 o'clock on the following morning he left the local airport to spend a week in Chicago. Moore denied that he told Reed to discharge Schultz and he testified further that it was his understanding that Schultz "just didn't come back to work" after May 22 Because Moore was not in the cafeteria during the week of May 23, and never discussed the subject with Schultz, his purported understanding that she quit her employment without notice to management is hearsay. Reed testified that Schultz was not discharged, that he did not tell her that Moore had said that May 22 was her last day of work, and that "[s]he just.didn't show up for work." Thus, the question whether Schultz quit her employment without notice or was discharged involves a question of credibility. The evidence concerning her final paycheck, and when and how she received it, is incomplete. She was not asked about the check. A workweek at the cafeteria ends on a Saturday Schultz's "The findings concerning Schultz's work at the beverage stand are based upon her testimony which is contradicted ' by that of Moore and Reed I have found , however, that Moore and Reed were unreliable witnesses Moreover , as recited, 'there is no dispute that supervisory employees at another cafeteria spoke among themselves of "hound[ing] employees out of their employment" as a tactic in combating the Union See fn' 5 and accompanying text normal workweek contained 5 days of 8 hours each. During her final workweek, she worked a total of 32 hours on Sunday, Thursday, Friday and Saturday The record does not disclose the days of the week of May 23 that Schultz would have worked if she had not quit or been discharged Thus, if she quit simply by not reporting to work, the record does not disclose when the Respondent learned of the quit. Nor 'does the record disclose when she received her final paycheck. Reed testified that he did not know whether he paid Schultz on May 22 or later. The paycheck is dated May 22, but that fact does not establish that it was prepared on that day All paychecks for the workweek ending May 22 bear that date, but were -prepared on May 24' in Morrison Consolidated's main office in'Mobile for delivery to the employees on May 25, a regular payday. Schultz cashed her final paycheck at a store which deposited the check in a local bank on May 29. This fact indicates that she received the check on or after May 25, but if she quit her employment without notice and returned to the cafeteria for her, check, surely Reed would have spoken to her about her quitting." He signed her check and, because of Moore's absence during the week of the 23rd, he distributed paychecks to the employees. He testified, however, that he did not know whether Schultz returned to the cafeteria for the check In the recitation of events at the Highway 90 cafeteria, above. I credited Schultz and discredited Moore and Reed I again discredit Moore and Reed. The Respondents' hostility to the Union is clear, as is Schultz's adherence to the Union and the Respondents' knowledge of such adherence I believe that on May 22, Moore'told Reed to tell Schultz that that was her last day, and that Reed told her so I believe that Moore was motivated by Schultz's union adherence. I conclude that the termination of Schultz's employment violated Section 8(a)(3) and (1) Harold Cruse has been described as a waiter who worked over a period of 16 years for subsidiaries of Morrison Consolidated in 12 cities and who became a union adherent while working at the Highway 90 cafeteria. As recited, his union adherence was known to the cafeteria's manager, Moore On September 12, 1965, Moores successor, Ronnie Tatum, who had been working in the cafeteria for about 2 months, discharged Cruse Tatum denied that he knew of Cruse's union adherence According to Tatum, he had observed Cruse and had noted that Cruse "was a good waiter" but possessed "a tendency to lose his temper several times." Tatum testified further that- upon two occasions he sent Cruse to the employees' dressing room "to cool off," following which Tatum told' Cruse that the latter would "have to watch his temper" and "could not lose his temper there in the dining room where the customers could know it." Tatum, however, gave no details concerning any alleged loss of temper by -Cruse in, the dining room. There is testimony for the' Respondents that about September 1 Cruse engaged in a fight with another waiter in the kitchen. Cruse denied that he fought On the other hand; Tatum testified that he was summoned by a waiter to stop a fight between Cruse and another'waiter, that he told Cruse and the other fighting waiter "to break it up," that they, did so, and that somewhat later Tatum called the two men "Moore testified that "[n]ormally" when an employee is discharged, the employee is paid forthwith by a draft,drawn on a petty cash fund , and that exceptions to this practice are rare He testified also that employees who quit receive their final paychecks on the next payday MORRISON CAFETERIA COMPANY, INC. together and told them that fights in the cafeteria would not be tolerated Tatum was not asked, and did not volunteer, the name of Cruse's alleged opponent., He volunteered that he could not recall the name of the waiter who summoned him to the scene of the fight. Reed, the assistant manager, testified that he was attracted by a commotion and that when he reached the scene he saw Tatum standing between Cruse and another waiter who were sweating and looking at each other with clenched fists. Reed testified further that he did not recall the identity of the other waiter. Upon being asked to describe the individual, he answered; "Well, now, there were several fights.". In response to another question, Reed answered that he "would say that [the second waiter] was about the same size of Harold Cruse " The "several fights" mentioned by Reed did not involve Cruse and there is no evidence that the participants in them were disciplined No waiter or other employee who observed the alleged encounter was a witness As recited, Cruse denied that he had engaged in a fight. Another alleged incident upon which Morrison's relies for having discharged Cruse is found in the testimony of Reed and Tatum, concerning alleged rudeness to a customer. According to Reed, during the period after Tatum became the manager and before Cruse's termination, a cashier whom Reed did not identify told him that an unidentified female customer had told the cashier that Cruse had insulted her by rejecting a tip of 10 cents and, throwing the coin back to her Reed testified also that he spoke to Cruse about, the alleged incident, that Cruse denied that it had occurred, that Reed could not investigate the subject because the customer had left the cafeteria, and that Reed said to Cruse "that we don't stand for that type of action with Morrison's and if it ever happened again, [Reed] would have to talk to [Cruse] about it further " Tatum testified that Reed told him that "a lady had given [Cruse] a dime tip one time and- he threw it back on the table at her and the lady told the cashier about it " The cashier to whom the customer allegedly complained was not a witness We turn to events on the day of Cruse's discharge-The recitation includes the Respondents' assertion that Cruse insulted a customer immediately prior-to the discharge Tatum testified that not long after the cafeteria was opened on that day, he was summoned to the lobby of the cafeteria where a woman awaited him. According to Tatum, the woman.said that she was one of a group of about four persons who sought to eat at a particular table when Cruse told the group "to get out of the way," that the table was reserved, that she had noted Cruse's name and badge number attached to his clothing, that she was too upset by the incident to eat, her meal, and that she would wait outside in an automobile while "the other three in the party" ate. Tatum testified further that tables are not reserved in the cafeteria and, that when he completed his conversation with the customer, he went to Cruse and asked about the incident, that Cruse denied that it had occurred, that Tatum said that he i"had just talked to" the customer and asked why she would relate such an incident if it had not happened, to which Cruse answered that "he didn't have any idea." Tatum made no effort to ascertain whether the customer was still in an auto outside, awaiting the others in her group who ate in the cafeteria, so that she could dispute Cruse's denial Instead, so Tatum testified, he reminded Cruse of the alleged recent fight with, another waiter, saying also that "if it is not fighting, it is insulting the customers," so that Tatum was "dust going to have to let [Cruse] go " At that 607 point, according to Tatum, Cruse began to speak of his long tenure in the Morrison chain, but the cafeteria was very busy and Tatum, told'Cruse to return another day because he did not have time to talk further Finally, Tatum testified that he could not identify the customer who had complained, that she had given him her name when they spoke, but that he "did not make a note of it" and could not recall it. Cruse's version of the conversation differs substantially and is more credible. According to Cruse, Tatum spoke 'of having received a letter and telephone call to' the effect that Cruse had been rude to customers, and Cruse denied that he had been rude, following which Tatum sent him home with the understanding that they would talk 2 days later. When they talked again, so Cruse testified, Tatum refused his request that he be permitted to see the letter of complaint about him and to talk with anyone who had complained 10 I cannot credit Tatum's testimony that he had not heard of Cruse's interest in the Union, nor can I credit his testimony and that of Reed that Cruse became an unsatisfactory employee Over a period of 16 y'eafs, Cruse had worked in Morrison cafeterias in 12' cities. He testified without contradiction that he experienced no difficulty in obtaining employment in any of those cafeterias. The Respondents' testimony that he ultimately proved to be unsatisfactory is not believable. Cruse credibly denied that he engaged in a fight 'Assuming arguendo that Cruse and another employee fought, it' was, so Reed testified, only one of "several fights" in which employees participated Insofar as appears, participants other than Cruse wefe not disciplined Cruse denied too that he had been rude to a customer. His version of his conversations with Tatum when the latter accused him of having been rude impressed me as the truthful version. I conclude that Cruse became an unsatisfactory employee by developing an adherence to the Union and that Tatum used the pretext of a complaint by a customer as the means of removing 'a union' adherent Cruse's discharge violated Section 8(a)(3) and (1). 3 At the Royal Street cafeteria Marion Walton began work for Morrison's on March 10, 1950, and worked continuously until ' she was discharged on December 21, 1964 She worked in various capacities and did not receive any complaints about her work. She became active' in the Union,' attended union meetings before and after - her discharge,, held ' two meetings in her home, and successfully solicited-' signatures of employees to union cards Her testimony concerning her discharge is uncontradicted. When she reported to work on December 21, 1964, the assistant manager, Billingsley, gave her a paycheck and said that Morrison's could not "use [her] any more " She asked what had happened, and he answered that he did not know He said also that he had orders to have her paycheck ready upon her arrival to work. She asked, "After fifteen years [of employment]?" He answered, "[J]ust like' that." Billingsley said also that he wanted her "to know that they always make the assistant manager do the dirty work" and that he had "enjoyed working with" her. Several employees sought to speak to' Walton, but Billingsley would not permit it She was never given any reason for her discharge- "The testimony of Tatum and Cruse concerning the details of their final conversation is highly conflicting I do not believe ' that this Decision need be lengthened by a recitation and resolution of the conflicts 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Morrison's offered no evidence concerning Walton's discharge. It contends that the General Counsel did not make a prima facie case that it knew of Walton's union activities The General Counsel sought in several ways to make such a case. Hastings, the assistant manager at the Dry Dock cafeteria, testified credibly that four named employees attended union meetings and came "back and [told] us who was active and who wasn't," but Hastings did not testify that a report had been made concerning Walton A waiter named Henry Spencer attended union meetings and knew that Walton had been present Spencer had been the No I waiter and a supervisor at the Royal Street cafeteria, but he had been retired about 2 years before Walton's discharge, following which he was rehired as a waiter, and I do not believe that his knowledge of Walton's union activities can be imputed to Morrison's Finally, the following persons, among others, attended one or both of the meetings at Walton's home Herbert Davis, who was identified above as the No. 1 waiter at the Dry Dock cafeteria, George Davis, the No l waiter at the Royal Street cafeteria, and Charles Wiggins, the No. 2 waiter at the latter cafeteria. These three individuals were supervisors I have found that Herbert Davis was a strong union adherent and that I cannot find that he identified union adherents to his superiors. The same may be said of Wiggins On the other hand, George Davis rejected a request by Clemmie Bryant that he sign a union card, and I do not believe that George Davis' attendance at a meeting or meetings in Walton's home establishes that he was a union adherent. I conclude that the General Counsel made a prima facie case that management knew of Walton's union activities and, in the absence of evidence to the contrary, that the record establishes that Walton was discharged in violation of Section 8(a)(3) and (I) . Beatrice Moore began work for Morrison's during 1956 and'she worked continuously, without complaints about her work, until she was discharged on December 21, 1964. She and Walton' were discharged on the same day under similar circumstances. When she reported to work, Billingsley had. her final paycheck and told her that "the manager" had said that he could not use her any more Moore had signed a union card, which she had received from Walton, and she had attended one union meeting There is no evidence that any supervisor knew that she had signed the card' or attended the meeting I conclude that the General Counsel did not make a prima facie case that Moore was discharged in violation of the Act. Clemmie ' Bryant was hired by Morrison's during 1942 and.he worked continuously as a waiter until his discharge on December 20, 1964 He took a leading part in the organizational efforts, attended union meetings and solicited numerous employees to sign union cards. He was unsuccessful, however, in asking George Davis, No. 1 waiter and his superior, and James Williams to sign cards The latter is identified in the record as the head chef, but I need not discuss the issue whether Williams is a supervisor because there is no dispute that George Davis had such status. His knowledge of Bryant's adherence to the Union is imputable to Morrison's. On Sunday, December 20, Billingsley said to Bryant that he wanted to talk with Bryant at the end of Bryant's workday. At quitting time, however, Wear, instead of Billingsley, talked with Bryant Wear had been manager of the cafeteria for only a day or so Bryant testified without contradiction, and I find, that Wear said that Bryant had insulted a man and wife, that he asked when he had done so, that Wear replied, "the other day," adding that the man was "coming down to beat [Bryant] up so we are going to have to let" Bryant go "for a while." Bryant testified further, and I find, that Wear refused to disclose the identity of the man who assertedly claimed to have been insulted. Bryant credibly denied that he ever insulted any customer or had been criticized for his work There is no testimony by Wear or Billingsley that Bryant insulted anyone, and Bryant's testimony that he had not done so stands uncontradicted. Wear did not tell Bryant how long the latter, would be suspended Morrison's did not attempt thereafter to contact Bryant nor did Bryant attempt to contact Morrison's I conclude that the General Counsel made a prima facie case and, in the absence of evidence in defense, Bryant's termination violated Section 8(a)(3) and (1) James Sanders, a nephew of Marion Walton, was hired by Morrison's during 1962 He signed a union card and he attended union meetings, one of which was held at his aunt's home. On February 7, 1965, he was discharged by Wear During that month, Morrison's ceased serving breakfasts at the Royal Street cafeteria because that portion of its business had become unprofitable, and a number of employees were laid off Sanders was among them. Wear testified that the layoffs were made on the basis of seniority in the departments within the cafeteria, and this testimony was not rebutted by the General Counsel. In particular, Tolbert, a union adherent whose discharge is discussed below, testified that he succeeded to some of Sanders' duties upon the latter's termination The record does not establish that Sanders' termination violated the Act Eddie Tolbert began work for Morrison's during 1957 as a cook He became a union adherent, and his testimony concerning remarks by representatives of management about the Union has been recited During July 1965, he was laid off for 2 weeks Later he was terminated. Still later, he refused reinstatement. The testimony is highly conflicting We start with a personnel record which reflects that he last worked on Saturday, July 3. He did not work during the-3 days immediately preceding, but the personnel record indicates that Thursdays and Fridays likely were his days off although he sometimes worked six and seven 8-hour days in I week. Tolbert testified that on July 4 he telephoned the cafeteria and told Billingsley that he was ill and unable to work, that on the next morning he felt better and again telephoned Billingsley, asking whether he should report to work According to Tolbert, Billingsley's answer was that he should "take off a couple of weeks." Tolbert testified further that the following day, a Tuesday, was a-payday and that he went to the cafeteria for his check, at which time Billingsley again told him to take "off a couple of weeks " This was the only occasion that Tolbert received a layoff while in Morrison's employ. At the end of the layoff, according to Tolbert, he called Billingsley and was told that his services were no longer needed On the, other hand, Billingsley denied that he had any such conversations with Tolbert. The Respondents' contention is that Wear laid off Tolbert. Wear testified that "shortly before" July 3, Tolbert often "would get in'a daze so to speak" instead of "being real alert" on the job, that Tolbert once had sent as a substitute for himself a waiter who, had- the day off, and that "some finance places" had called to inquire about Tolbert." Wear did not state the nature of the alleged inquiries. On July 3, "Tolbert denied that he traded workdays with a waiter named Jimmy Stevens His explanation was that he worked in the kitchen , not as a waiter MORRISON CAFETERIA COMPANY, INC. 609 according to Wear, when Tolbert reported to work after an unexcused absence and without having "suppl[ied] a substitute," Wear "asked what was the matter," to which Tolbert responded that he was ill and needed to see a physician 12 At that point, so Wear testified, he "asked [Tolbert] to take 2 weeks off to clear his business, seeing the doctor, and do whatever he thought needed doing and then come back " The suspension of 2 weeks was without pay. Wear testified further that after the passage of 16 or 17 days, Tolbert returned to the cafeteria where Wear asked if he had seen a physician, to which Tolbert replied in the negative, but insisted that he needed to see one, and that Tolbert also said that he would not return to work unless he could "have more money," to which Wear replied that his wage would not be increased The personnel record above mentioned contains the following entry "Gave him 2 wks off to get business straight July 4" Wear testified that the entry was made by his "office girl." 11 I credit Tolbert's version 1 have had occasions herein to credit him and to discredit Wear and Billingsley I believe that the truth lies in Tolbert's testimony that his conversations were with Billingsley, largely by telephone, not with Wear at the cafeteria. I believe too that Morrison's did not have any valid reason to suspend Tolbert for 2 weeks. There is no evidence that Tolbert asked for a leave of absence in order to straighten his business affairs, nor is there evidence that Wear spoke to Tolbert of calls from "finances places." Moreover, a suspension without pay was not calculated to assist Tolbert in easing any financial difficulties Tolbert had been told by Billingsley and Wear that Morrison's would rid itself of union adherents, and I conclude that Tolbert's suspension and later termination were portions of Morrison's plans to discharge such adherents and, therefore, violative of Section 8(a)(3) and (1) Tolbert's backpay shall be for a limited period, however He testified that "a month or so" after his termination, Wear sent for him and that he went to the cafeteria where Wear offered to reinstate him, but that Wear refused his request for a higher wage rate, and that he refused reinstatement The date of refusal shall be determined in the compliance stages 4 Summary of the terminations I find that Morrison's invalidly discriminated against the following employees: Bryant, Cruse, Eaton, Morris, Schultz, Tolbert and Walton I find also that the record does not establish that Morrison's invalidly discriminated against the, following employees: Beckham, Fultz, Horn, Moore, and Sanders E. The Issues Concerning a Bargaining Order at the Dry Dock Cafeteria 1. The basis of the General Counsel's request As we have seen, the Union's demand that Morrison's bargain was made in a letter of December 20, 1964, in "As recited, Tolbert testified that his conversations were with Billingsley He denied that he told Billingsley that he needed the services of a physician "The entry makes no reference to Tolbert's having been absent from work because of illness If, as Wear testified , Tolbert was suspended upon reporting for work after an absence , the date could not have been July 4 because Tolbert worked on July 3 If the date of suspension was July 3, Tolbert was not suspended until he completed work that day As I find in crediting Tolbert's version, the date of suspension was July 5 which the appropriate unit was described as employees of the three cafeterias, one operated by ' one of the Respondents and two operated by the other Respondent In the representation case, however, the Regional Director held that the employees of each Respondent constituted a separate appropriate unit Because the Union's demand had not embraced an appropriate unit, the General Counsel did not allege a violation of Section 8(a)(5) at the Dry Dock cafeteria The General Counsel contends, however, that the Union possessed majority status in the unit at that cafeteria and that a bargaining 'order is appropriate because of Morrison's extensive unfair labor practices to destroy such status °° His position is founded in the line of cases that include N L R B v Northwest Engineering Company,' 376 F 2d 770 (C A D C.), cert. denied 389 U S 932, J C Penney Co , Inc v. N L R B, 384 F 2d 479 (C A. 10), and other cases cited in In. 13 of R W Inc , d/b/a K-Mart Foods, 170 NLRB No - 67 2 The procedural matter involving the objections to the election The Union's objections to the election at the Dry Dock cafeteria on April 15, 1965, and to the election at the public cafeterias on the next day are contained in a single document. Counsel for the General Counsel tried the cases in the mistaken belief that the Regional Director, who consolidated the cases and directed a hearing on the Union's objections, had specifically placed in issue the objections to the election of April 15 Thus, before the first witness took the stand, counsel for the General Counsel stated that he sought "in this case a bargaining order at the Alabama Dry Dock location Moreover, the amended complaint alleges that the unit at that cafeteria is appropriate, and the Union's majority status was litigated, as described hereinafter Additionally, counsel for Morrison's stated his understanding that the issue concerning a bargaining order was "one of the principal issues in this case." After the hearing, however, when the General Counsel and the Respondents filed their briefs, the latter brief made the point that the Regional Director had specifically placed in issue only the objections to the election at the public cafeterias.d5 Counsel for the General Counsel reacted by filing with me a motion to reoven the record for the purpose of receiving as an exhibit an "Amendment To Order Directing A Hearing On Objections," dated July 3, 1967. The proposed amendment, signed by the Regional Director, would revise the. first paragraph of the original order directing a hearing on the Union's objections so as to "The record does not disclose why the General Counsel has not requested a bargaining order covering the unit in the two public cafeterias Perhaps the Union did not obtain cards signed by a majority of the employees in that unit , perhaps signed cards were impaired by the prounion activity of Herbert Davis , No I waiter and supervisor at the Highway 90 cafeteria, or Wiggins, No 2 waiter and supervisor at the Royal Street Cafeteria "At page 50 of the transcript , before the first witness was called and as I was reading from the captions of a number of exhibits so that they might be marked for identification, I remarked that Resp Exh 7 is an order directing a hearing on the Union ' s "objections involving both companies [Respondents] " Counsel for the Respondents said, "Quite to the contrary," and I replied that my remarks had been based upon the caption, which named both Respondents Counsel for the Respondents then said, "The body of it indicates very clearly that it is only as to one of them " I did not comprehend the full significance of counsel 's comments, doubtless because I had not become sufficiently familiar with the issues Counsel for the General Counsel said nothing concerning the comments of opposing counsel, and the record does not disclose why 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specifically place-in issue the objections to both elections On July 21, 1967, counsel for,the Respondents filed his opposition to the motion to receive the exhibit These documents and others are marked as exhibits in the footnote '" I grant the General Counsel's motion and receive the exhibits in evidence My reasons follow First, the Union filed detailed objections to,both elections, and incorporated the objections in a single document To deny the General Counsel's motion would be an injustice to the Union, which was not represented at the hearing before me, and insofar as appears, was unaware that its objections to both elections had not specifically been put in issue Second, by Order and Direction of July 15, 1965, in the representation case, the Board directed "that the Regional Director conduct an investigation of the issues raised by the [Union's] objections . " Clearly, it was the Board's intent that action be taken in connection with both elections Third, in accord with the contention of the General Counsel, and contrary to the argument of counsel for the Respondents. I believe that the Regional Director's failure to specifically mention the election of April 15 in his order directing a hearing on the Union' s objections was an inadvertency on his part or on the part of the subordinate who drew the order for -him That order named both Respondents in the - caption as Employer-parties and, as we have seen , counsel for the General Counsel tried the cases on the theory that the objections to both elections were in issue . On the other hand , when the Regional Director issued documents relating to one or the other of the Respondents , but not to both , he named only one in the caption (See the tallies of ballots and certifications of, results of elections .) Fourth, no prejudice will result to the Respondents by my granting the General Counsel' s motion The Union's objections to both elections have been litigated , in large part, as alleged unfair labor practices . The facts upon which the General Counsel requests a bargaining order are all in the record The defense evidence is there too 3 The question whether Yeager was a Supervisor Jeanette Yeager was a leading participant in the Union's activity at the Dry Dock cafeteria and was instrumental in securing employees' signatures to cards At times she was aided by her -husband, an employee of the Dry Dock Company who ate meals in the cafeteria and who was known to Morrison's employees. If Yeager was a supervisor, as the Respondents contend, ' a substantial number of cards cannot be counted and the Union never possessed majority status. Yeager worked for Morrison's from about May 1955 to March 28, 1965. She began as a salad girl, making salads and keeping a sufficient number of salads in the serving line. Subsequently, she operated a cash register at the end of the line, while performing additional tasks when meals were not being served At an uncertain time, perhaps 1961, Yeager assisted the office girl in maintaining "Trial Examiner's Exhibits I through 6 are, respectively, (I) the General Counsel's motion, to which is attached his proposed amendment and an extra copy of the Union's objections to the election. (2) The Respondents' request for time within which to file opposition, dated July 6, 1967, with covering letter attached, (3) a copy' of my letter of July 10 fixing the time within which such opposition could be filed, (4) a copy of a letter of July 12 from counsel for the Respondents to counsel for the General Counsel, (5) a copy of -a letter of July 12 from counsel for the Respondents to the Regional Director, and (6) Respondents' opposition, dated July 18, with covering letter attached records and reports, and when that girl quit her employment , Yeager became the office girl About 1963 Yeager was hospitalized and her place in the office was taken by Jean Young. When Yeager returned to work she requested that she be relieved of her office duties and be permitted to work in the cafeteria proper, including the operation of a cash register , and her request was granted. As the office girl, Yeager was paid $ 1 10 per hour and she continued to receive the same wage until her employment ended Hastings , the former assistant manager at the cafeteria who was a witness for the General Counsel, testified, and I find , that after management "received a letter that supervisors could not vote" in the election , she had a conversation with Mills and Rehwmkel in which the latter said that Yeager would be made a supervisor so that Yeager would become ineligible to vote Hastings testified further that Yeager's duties and hourly wage were not changed .41 Yeager's employment was terminated prior to the election, but she was . still employed when the pre-election hearing in the representation case was held .and when the Regional Director ' s Decision and Direction of Election therein was issued Yeager did not testify at that hearing , nor did any employee Hill was the only witness concerning personnel and jobs at the Dry. Dock cafeteria The Regional Director, relying upon Hill's testimony , found that Yeager supervised 8 employees and made effective ' recommendations in personnel matters. According, he excluded her from the unit. Race, the Union's organizer, appeared for it at the pre-election hearing, and it was there that he learned that Morrison's contended that Yeager was a supervisor At the. next union meeting, Race told Yeager of Hill's testimony, and Race and Yeager discussed her duties 48 On the following morning when Yeager was at work, she said jokingly to Ward, "Alice, you are fired I am a supervisor today " On the same day, Yeager went to the office to see Rehwinkel, the manager She asked Young, the office girl, to make notes concerning her conversation with Rehwinkel Yeager told Rehwinkel that she had been told ,at the union meeting that she was a supervisor, and she asked that he tell her when she had become one Rehwinkel replied that he did not know what she was talking about Yeager also said that she wanted to know why she was not receiving a supervisor's pay, and again Rehwinkel said that he did not know what she was talking about He said too that he would "be glad to find out for [her]," to which she responded, "please do," but it does not appear that Rehwinkel spoke to her of the matter again ,9 He was transferred to other employment a few days after talking with her "Hastings also testified that other employees were mentioned as persons to be made supervisors so that they would be unable to vote Neither Mills nor Rehwinkel specifically contradicted Hasting See fn 5 "Race also told Yeager that she could vote a challenged ballot Later, 10 days before the termination of Yeager's employment, the Regional Director issued his decision Race took no steps in the representation case to have the Regional Director's determination concerning Yeager overturned "The findings are based upon Yeager's credited testimony which Rehwinkel did not deny Young, a witness to the conversation, testified for the Respondents According to Young, she could remember only that Yeager had asked when Yeager had become a supervisor, to which Rehwmkel had responded that he was sorry, that he could not answer the question Young testified further that her memory was not refreshed by her 'handwritten notes concerning the conversation When Young testified, her position was assistant manager of the cafeteria She impressed me as not being a candid witness and as being reluctant to give any testimony that would be unfavorable to the Respondents MORRISON CAFETERIA COMPANY, INC. 611 The principal testimony that Yeager was a supervisor was given by Hill and Rehwinkel Before that testimony is recited, certain observations should be made First, a substantial number of employees testified that Yeager was not a supervisor It is unnecessary to lengthen this decision by a recitation of much of that testimony Second, Yeager was not paid a supervisor's wage She earned $1.10 hourly Knight, a salad girl who also performed additional tasks, was paid $1.13 or $1 15 hourly Helen Brown performed various tasks, including that of a cashier, and was paid $1 25 hourly Morris, a baker, earned $1 15 hourly, Blackmon, the head baker, earned about $1 20 hourly Hastings, the assistant manager, earned $275 monthly. Third, certain comparisons between the public cafeterias and the Dry Dock cafeteria are appropriate At the Royal Street cafeteria, there were 50 to 60 employees At the Highway 90 cafeteria, the number was 40 to 50 Of the total of about 100 employees, at least 30 were waiters (supervised by the No I and No 21 waiters) and about 70 were supervised by the manager and the assistant manager at each of the two cafeterias On the other hand, there were no waiters at the Dry Dock cafeteria and the number of employees varied from about 20 to 30 according to the number of workers employed by the Dry Dock Company It follows that, if Yeager was a supervisor, there were three supervisors at the Dry Dock cafeteria for 20 to 30 employees, whereas at the two public cafeterias there were four supervisors for about 70 employees Yeager and Rehwinkel worked on the first shift from 4 30 a m to about 1 30 p m Hastings worked the second shift, beginning at I I a m , but there were occasions when Rehwinkel told her to report to work earlier Hill, a vice president in Morrison's operations, testified that he did not go to the Dry Dock cafeteria "very often " Although Hill's testimony in the pre-election hearing was the basis of the Regional Director's determination that Yeager was a supervisor, it develoved at the hearing before me that Hill had little firsthand knowledge of Yeager's work The latter worked as a cashier on one of the serving lines during the hours that the cafeteria was oven for breakfasts and lunches When the cafeteria was closed before those meals, she performed other functions According to Hill, Yeager was "a head line girl" who spent 60 to 75 percent of her time in supervising' employees in the serving line and the remainder of her time as a cashier Hill testified further that Yeager was' the supervisor on the downstairs serving level, that Rehwinkel supervised 'upstairs, that Yeager instructed employees in preparing to serve breakfast, that she shifted employees from one work place to another when necessary because an employee did not report to work on a particular day, that Yeager left her place at the cash register when business was slow in order to "move around and see how the food was on the counter," that after breakfast had been served it was Yeager's responsibility to- see that the leftover food was sent to its proper place upstairs and to clean and prepare the cafeteria line for serving lunch. Hill testified additionally that Rehwinkel had to leave the cafeteria at times, e g , to make daily trips to a bank, that Yeager'was in charge of the cafeteria upon such occasions, that upon other occasions when Rehwinkel had to be away for extended periods, Hastings worked the first shift and together with Yeager operated the cafeteria in Rehwinkel's absence, and that Yeager had authority to recommend hires, layoffs and discharges On cross-examination, Hill testified that Yeager supervised about eight employees on three serving lines He then testified that he did not "remember exactly seeing her do any of this [supervision]," that he 'did not go to the cafeteria "very often," that he did not really know how much time Yeager spent in supervising, and that his testimony was based upon information given to him by his subordinates who were Yeager's supervisors Hill was unable to name anyone whom Yeager supervised or recommended for disciplinary action, and he testified that his information that she had recommended such action was based upon remarks to him by his subordinates in fact, according to Hill, Rehwinkel had told Rehwinkel's superiors of such action and they, in turn, had told Hill In summary, Hill's testimony was not based upon his personal observations Moreover, none of the employees on the serving line testified that Yeager was a supervisor We, turn to Rehwinkel's testimony He testified that Yeager was the "head line girl on the first shift," that Assistant Manager Hastings-was the head counter girl on the second shift,'" that Yeager supervised as many as 8 or 10 employees but that the average number was 4 or 5, and that Yeager performed such other tasks as filling salt and pepper shakers, cleaning tables, and sweeping the floor When an employee on the serving line failed to report to work, according to Rehwinkel, a "back-up girl" would be present and Yeager would assign that girl to the place of the absent employee, and that, -when more than one employee was absent, everyone, including Rehwinkel, had "to pitch in together" to assure that the line functioned properly Rehwinkel testified ' further that -upon his absences from the cafeteria before Hastings reported to work, Yeager was in charge of the downstairs portion of the cafeteria, that Yeager recommended that individuals, including her sister, be hired, and that Yeager recommended the discharge of an employee named Betty Smith three times before Rehwinkel discharged Smith On the other hand, Hastings testified that she reported to work early at Rehwinkel's direction upon occasions when he had to leave the cafeteria, and Yeager testified that no one was in charge upon the occasions when Rehwinkel left the cafeteria before Hastings arrived Yeager also testified that she recommended individuals for employment when she noticed that additional employees were needed, and Rehwinkel acknowledged that employees in addition to Yeager recommended that individuals be hired Yeager denied that she recommended Smith's discharge, testifying that she did not know whether Smith had quit or been discharged Finally, Rehwinkel testified that upon several occasions, once at Yeager's request, he announced to employees that Yeager "was in charge" and that they "were directly responsible to" her He testified further that it was his practice, upon hiring an individual to work under Yeager, to introduce the new employee to Yeager and to direct the employee to obey Yeager In elaboration, Rehwinkel named two former employees as having been present at such an announcement by him about 1963 or 1964, and one employee as having been present to hear an announcement after Yeager ceased working in the office The latter employee, Ward, credibly testified that Yeager was not a supervisor and that she had not been told the contrary, as did a number of other employees. Yeager credibly denied that Rehwinkel ever said in her presence that she was a supervisor and that she ever requested him to tell employees that she was one In further elaboration, Rehwinkel: identified Josephine Weaver as a new employee whom he directed to obey '""Head counter girl" may be synonymous with "head line girl " Rehwinkel referred to employees who worked on a serving line as "line girls" and "counter girls " 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yeager Weaver testified, however, that Yeager was not a supervisor and that no one had said the contrary The credible evidence will not support a finding that Yeager was a supervisor She testified, and I find, that she performed numerous tasks, as did other employees, that upon occasion when she needed aid in a particular task, she asked another employee to help her, and that she never told any employee to work at any particular task unless she did so by relaying directions from Rehwinkel or Hastings. Yeager was an experienced employee Her ability was superior to that of various employees as demonstrated by the fact that she operated a cash register and had worked in the office I have no doubt that from time to time Rehwinkel sought to make use of her abilities, but I do not believe that her relations with other employees required any independent judgment In view of the factual recital above, I must conclude that Yeager was not a supervisor `i The remaining issue concerning Yeager's status is whether I am bound by the Regional Director's determination in the representation case that she was a supervisor That determination, as recited, was based upon Hill's testimony The Regional Director and/or the General Counsel were not parties to that case and did not present evidence concerning Yeager Moreover, the Regional Director has, in effect, repudiated his determination The repudiation follows from the fact that the Regional Director, with knowledge of Yeager's union activity, issued the amended complaint alleging, inter alia. that since December 24, 1964, the Union has possessed majority status at the Dry Dock cafeteria As I have said, the Union could not have possessed such status if Yeager, the leading solicitor of signatures to cards, had been a supervisor The Respondents, in contending that I am bound by the Regional Director's determination, point to the Union's failure to request review of that determination by the Board, citing Section 102 67(f) of the Board's Rules and Regulations, Series 8, as amended, which reads The parties may, at any time, waive their right to request review Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or, could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director's action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding The quoted provision is inapplicable Here the Regional Director, who was not a party to the representation case, changed his mind concerning Yeager's status The Board has corrected itself and, a regional director in a case involving supervisory status Burlington Food Store, Inc . and Delaware Food Store, Inc , 172 NLRB No. 73 Surely Section 102 67(f) does not preclude the Regional Director's correcting himself by the method he has chosen here Moreover, that section is not so broad as one may think at first glance McEwen Manufacturing Company and Washington Industries. Inc , 172 NLRB No 99 The Respondents contend that Yeager was a representative of management who improperly, because she was such representative, participated in the organizational movement Yeager's status is disputed, her participation is conceded The dispute is properly one for determination "There is testimony by Young concerning Yeager's status I need not recite it Because of its substance , plus my evaluation of Young's credibility (see fn 49), it has little value on the issue of Yeager's status by a trial examiner Perhaps a hypothetical case will clarify the point If Yeager had engaged in antiunion activity, instead of prounion activity, and if the Regional Director had alleged in the complaint that such activity violated Section 8(a)(1), the Respondents could have asserted that I was not bound by the Regional Director's determination of supervisory status and that they were entitled to have Yeager's status determined by a trial examiner upon a full record made in conformity with the Act and the Administrative Procedure Act, 5 U S C Sees 1001, et seq, Amalgamated Clothing Workers of America, AFL-CIO v N L R B (Sagamore Shirt Company), 365 F.2d 898 (C A D C ), McEwen, supra I see no substantial difference between the hypothetical case and the one which exists here 4 The unit and the Union ' s majority status The amended complaint alleges that the appropriate unit consists of all employees of Morrison Food Service at the Dry Dock cafeteria, exclusive of all other employees,`z professional employees, guards, watchmen, and supervisors as defined in the Act The Respondents' answer denies the allegation , but it appears from the Regional Director' s Decision and Direction of Election that the unit is one advocated by Morrison ' s in the representation case I find that the unit is appropriate The record contains a number of union cards signed by employees in the unit Each card , entitled "Application for Membership ," is a combination application for membership in the Union's parent International and an authorization to the International and Local to bargain collectively on behalf of the signer The heading of the card and the explicit application for membership constitute "one thing an employee would readily understand ," N L R B v S E Nichols Company, 380 F 2d 438, 442 (C A 2), quoted with approval in N L R B v Southland Paint Company inc , 394 F 2d 717 (C.A 5) Most of the cards were identified by their respective signers A few were identified by a handwriting expert A few were identified by other individuals Contrary to the Respondents' contention , authentication of signatures on cards may be by witnesses who saw employees sign N L R B v Merrill, d/b/a Merrill Axle and Wheel Service , 388 F 2d 514 (C A 10). Before we reach the total of the cards as compared with the number of employees in the unit, there are issues concerning whether any cards are not to be counted because of alleged misrepresentations and threat Lee Ernest James testified that he and three other employees (who were not witnesses ) received cards from Yeager and signed them in the cafeteria On cross-examination, in response to leading questions, James testified that Yeager spoke of only one purpose for the cards , i e , to have an election to "get a ' union in " On redirect , when James was asked to recite Yeager's remarks, he did not mention an election Instead, according to James, Yeager "give us the cards so we could get a union in there, that means we get more money over there, and we weren't making. anything " Still on redirect, James testified that he could not recall anything "The term "all other employees" was used by the Regional Director in his Decision and Direction of Election to refer to Young , then the office girl The term is equally applicable to Young's successor, if any, in that capacity The Regional Director, characterizing Young as "office manager," held that she was not a supervisor , but that he could not determine whether she was a confidential employee, and that she would be permitted to vote a challenged ballot Young quit her employment before the election and did not seek to vote MORRISON CAFETERIA COMPANY,- INC.. 613 be tired after ,the union came in " Hall's testimony concerning her impression is weakened by her testimony that later that day Yeager spoke "in the same way" to Ward, but that Hall did not recall what Yeager had said Ward testified that she received a card from Yeager, but she did not testify. that there was any threat In any event, Hall testified further that she nad been an officer in a labor organization, that-she knew that "you cannot tell someone when they sign, a union card that they are going to get fired if they don't sign it," and that she "signed the card because [she] thought the union was a good idea" and because she is "just for unions " Young, who had become assistant manager of the cafeteria, before the hearing, was called as a witness by the Respondents, but she was not asked about the alleged threat on direct examination The subject came up on cross-examination and she testified that she "was under the impression" that if she did not sign the card she would lose her job if the Union "came in," that.the impression had been obtained from Yeager's remark which, "to the best of [her] knowledge," was that "if the union goes in you are out of a job if you do not enter into it " Young testified also that, she and Yeager were friends and "saw one' another socially," that each morning at the truck stop the persons present "were all smiling and laughing and talking," that they could have been,laughing at the time of Yeager's remark, and that she, , Young, might have treated the remark as '.a joking threat " On redirect, Young was asked it the persons present were laughing and joking when the remark was made, and she answered, "As I remember, no, sir," but that they,were laughing "all.the time," although she did not recall any jokes that morning Drinkard, who signed a card at the truck stop, was not a witness, nor were Messrs Hall and Young On the other hand, both Mr and Mrs Yeager denied that she made a threat, but it is unnecessary to evaluate their denials Threats were not a campaign tactic of individuals who solicited signatures to cards, and the testimony of Mrs Hall and Mrs Young is not persuasive that Mrs -Yeager. used such a tactic in a serious manner , Moreover, Mrs Young's conduct does not indicate that she thought that she had been threatened She delivered to Blackmon the card that the latter signed Too, as has been recited, Young is the individual who gave Assistant Manager Hastings the news that the organizational campaign was underway Young told Hastings that she had signed a card and that Yeager was active in the campaign, but Young did not tell Hastings that Yeager had threatened her There were 28 union cards offered in evidence, 25 were received, 3 were rejected as inadequately identified There is a 29th card, the one that William L Robinson testified that he signed. See footnote 8 1 do not count it because it is not in evidence and I do not know the date that Robinson signed Of the 25 cards received, 22 bear various dates during December 1964 and all were stamped in the Regional Office in New Orleans as having been received there on' December 28, a Monday ' -Another, Morris' card, does not bear a stamped date but .she testified that she signed it on or about the date it bears, November 7 The remaining two cards of those received were signed by Delores Alford and Josephine.Weaver who began work for Morrison's during January 1965 Their cards are dated January 27 on the obverse sides with stamped dates of March 29 on the reverse sides, and these employees testified that they signed the cards on or about the former date The Union's demand that the Respondents bargain was made by letter of,December 20, 1964 The demand was rejected by letter of December 28 The record contains an else that Yeager said On recross, however, James answered affirmatively a question whether Yeager had' said that the way to obtain more money would be to.have an election and select the Union I do not credit James' testimony in response to leading questions that Yeager represented the cards as having a single purpose, i e , to obtain an election Yeager testified that she talked to all of the employees about signing cards, but that she did not "know anything about an election',' and did not speak of one to employees The testimony of various employees-is clear that Yeager did not rriention an election to them, and I do not believe that such an event was a part 'of her solicitations Next, Willie Mae Knight, a witness for the General Counsel who signed a card at a union meeting, was asked on cross-examination whether "a union man" had said at the meeting that cards signed by a majority of the employees were needed in order to obtain an election (The Board does not have such a requirement ) 'Knight answered that she did not "remember what he said, sir," because of the passage of time It then develoved that Knight had signed a statement to the effect that at a union meeting during December 1964 someone who characterized himself as a union representative had said that the Union needed a majority of signed cards for an election and that "the election would 'determine whether or not the employees got a union or not " Knight was asked whether the contents of the statement reflected her recollection as a witness, and, she answered A What happened at' the meeting and signing the card I fully understood that I was signing for a union, but as I related the story, told the man [who took the statement] 'my statement was that we had to have a majority for the election, but I- knew that we were signing for a union, not for an election I do not believe that Knight's written statement and her testimony relating to it establish a misrepresentation by a union, representative concerning the purpose of the cards No other employee testified that any representative of the Union, identified or unidentified, said at a union meeting that the purpose of the cards was-to obtain an election Surely, if signatures to cards had been solicited upon the representation that an election was to be held, more witnesses would have given testimony to that effect Moreover, two representatives of the Union were witnesses Knight did not identify either of them as the man who made the remark, nor is there anything in the testimony of either to indicate that one or_the other made it We turn to the evidence concerning an alleged threat by Yeager to induce employees to sign cards The occasion was early one morning during December 1964 when a few employees and their spouses gathered at a truck stop before going to work Present were Yeager and her husband, Young and her husband, Delores Hall and her husband„ and Ozzie Drinkard The women, including Drinkard, were employees. Young and Drinkard, and perhaps Hall, signed union cards upon that occasion. During the presentation of the General Counsel's case, counsel for the Respondents stated that he had evidence of a threat by Yeager upon that occasion and that he expected to offer it He did not do so, however I called Hall as a witness because neither attorney was willing to call her She testified that she received her card from Yeager in the truck stop, that Yeager told her that the card "was for the union" and "explained what the union was," and that, while she could not recall Yeager's words, as Yeager "talked about the card"- Yeager gave her "the impression that if we didn't sign the card, we would 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exhibit naming the employees in the unit during the six workweeks that ended -between December 26, 1964, and January 30, 1965, inclusive The exhibit is incomplete in that Yeager's name is not listed Counting Yeager because she was not a supervisor, the numbers of employees during those workweeks varied from 27 , to 30 By workweeks, the figures are as follows, with card signers identified in footnotes December 26. and January 2, there were 22 signers among 29 employees," January 9, there were 23 signers among 27 employees," January 16, there were 21 signers among 30 employees,55 January 23, there were 20 signers among 28 employees," and January 30, there were 22 signers among 29 employees 11 The record also contains a list of employees, entitled "Eligibility List," which was prepared for use in the election of April 15 It contains 19 names and is incomplete in that Ward's name is not listed Of the 20 individuals, the 13 named in the footnote had signed cards 58 - I find that the Union possessed majority status during the workweek beginning June 20, 1964,- the date of the Union's ,letter requesting recognition and bargaining I find further that the Union has been the exclusive representative of all employees in the appropriate unit at all times material herein 5 Conclusions We have seen the basis of the General Counsel's request that Morrison F'ood' Service be required to bargain with the Union as the representative of employees at the Dry Dock cafeteria We have seen too the extensive unfair labor practices in which both Respondents engaged in the City of Mobile with the object of assuring the `Union's defeat in the elections Additionally, because some invalid discharges occurred after the elections, it is reasonable to conclude that another object was to prevent fair second elections if ones should' be directed I conclude that the result of the election at the Dry Dock cafeteria is a less reliable indication of the employees' desires than their applications for -membership in the -Union "[Al reasonable vindication of the Act and its purposes is best suited by returning these parties [Morrison Food Service and the Union] to the status quo ante and compelling the Company to commence - bargaining," A' L R B- v Northwest Engineering. 376 .F 2d at 773 "Blackmon , Brown , Calhoun,- Carr, L Chestang, Z Chestang, Drinkard , Fultz, Hall, Horton, August Jackson , L James, R James, Willie Knight , Lassiter , Polk, W F Robinson, Smith , Ward, F Williams, Yeager, and Young "Of the individuals named in fn 53, Drinkard did not work for an indefinite period of time because of an on-the-job injury and, following her, recovery , she did not return to work, Carr and Smith were absent during this workweek Morris, a card signer who had been absent during the 2 workweeks next preceding , returned to work The cards of these four employees are properly counted "Carr returned to work , , but Smith was still absent during this workweek Their cards are properly counted , as is that of Morris Hall's card is not counted because she quit Drinkard's card is not counted because I do not know when she recovered from her injury and decided to quit "By this date , Smith had returned to work The number of card signers is decreased by one , however, because R James quit "By this date, Alford and Weaver had begun work "Alford, Blackmon, Brown, L Chestang, Z Chestang, Fultz, Horton, Polk, W F Robinson , Smith , Ward , Weaver , and F Williams IV THE OBJECTIONS TO THE ELECTIONS The Union filed seven objections fo the elections, none of which included any of the invalid discharges.'Upon the basis of my findings that the Respondents violated Section 8(a)(1) prior to the elections, I recommend that the Union's objections be sustained and that the results of the elections be set aside I recommend further that the Regional Director conduct a second election, at a time to be fixed by him, among the employees in the appropriate unit at the two public cafeterias Finally, I recommend, in view of my determination that Morrison Food Service should be required to bargain collectively, that Case l5-RC-3029 be closed insofar as it involves that Respondent - - V THE REMEDY - Having found that the Respondents have engaged in unfair labor practices affecting commerce, I shall recommend that they cease and desist therefrom' and that they take affirmative action to effectuate the policies of the Act Because the Respondents, along with their parent corporation, Morrison Consolidated, constitute a single, integrated business enterprise, it is'appropriate that the Respondents, jointly and severally, be required to remedy the violations of Section 8(a)(3) On the other hand, the requirement that Morrison • Food Service bargain collectively is applicable to that Respondent alone I shall recommend that the Respondents offer Bryant, Cruse, Eaton, Morris, Schultz and Walton immediate and full reinstatement to their former or substantially equivalent positions (Chace National Bank, 65 NLRB 827), without prejudice to their seniority or other rights or privileges, and that the Respondents make whole each of them and Tolbert for any loss of pay he or she may have suffered as a result of the discrimination against him or her, by payment to him or her of a sum of money equal to that which he or she normally would have earned from the date of the discrimination to the date of'a proper offer of reinstatement,59 less his or her net earnings (Croscett Lumber Co . 8 NLRB 440, 497-498) during said period, the payment to be computed on a quarterly basis in the manner established in A L R B v Seven-Up Bottling Co , Inc . 344 U S 344, with interest at 6 percent per annum, N L R B v George E Light Boat Storage. Inc . 373 , F 2d 762,'766 (C A 5) " I shall recommend also that the Respondents 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 amounts of backpay and the rights to reinstatement under the terms of these Recommendations In view, of the nature of the Respondents' unlawful conduct and its underlying purpose and tendency, I' find 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 N L R B v Express Publishing Co , 312 U S "Tolbert ' s backpay shall 'include the period of his suspension as well as that of his termination, but, as recited in the discussion of his termination, his backpay shall be tolled as of the date he declined reinstatement "I have not included the usual provision concerning offers of reinstatement to discrimmatees upon their discharge from the Armed Forces because I think that such provision would be unrealistic in view of the ages and/or sex of the discrimmatees -' MORRISON CAFETERIA COMPANY, INC. 615 426, 437 This is-particularly true because.the discharge of employees for union membership or activity, striking as it does at their means of livelihood, "goes to the very heart of the Act," N L R B v 'Entwistle Manufacturing Co , 120 F 2d 532, 536 (C A- 4) In order, therefore, to make effective the. interdependent guarantees of Section 7, i shall recommend further that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in said section Upon the basis of the above findings of fact and upon the entire record in the cases, I make the following CONCLUSIONS OF LAW I The Union is a labor organization within the meaning of Section 2(5) of the Act 2 All employees-of Morrison Food Service at the Dry Dock cafeteria, exclusive of all other , employees, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the-Act 3 During the workweek beginning December 20, 1964, the Union was, and at all times thereafter has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining 4 By discouraging membership in a labor organization through discrimination in employment, and by interfering with, restraining, and coercing employees in the 'exercise of their rights under the Act, the Respondents have engaged in and are engaging in unfair labor practices affecting commerce. within the meaning of Sections 8(a)(3) and (I) and 2(6) and (7) of the Act 5 The allegations of the amended complaint have not been sustained insofar as they allege that the Respondents (I) invalidly discriminated against Beckham, Fultz, Horn, Moore, and Sanders, and (2) violated Section 8(a)(I) other than as found herein - RECOMMENDED ORDER Upon the entire record in the cases, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby recommend that A The Respondents, Morrison Cafeteria Company, Inc , and Morrison Food Service of Alabama, Inc Mobile, Alabama, their officers, agents, successors, and assigns, shall I Cease and desist from (a) Discouraging membership in Hotel & Restaurant Employees and Bartenders International Union, Local 176, AFL-CIO, or in any other labor organization of their employees, by discharging or suspending any of their employees' because of the latter's union or concerted activities, or in-any other manner discriminating in regard to the employees' hire or tenure of employment or any term or condition of employment (b) Interrogating and threatening employees concerning union activities (c) Promising employees improved wages as a means of discouraging union activities (d) Requesting employees to report to management if any person should speak to them ' about a labor organization (e) Attempting to instill in employees a sense of fear that unionization will bring on strikes and a loss of jobs (f) 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) Offer Clemmie Bryant, Harold Cruse, Edward Eaton, Zella Morris, Sadie Schultz, and Marion Walton immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights or' privileges, and make whole each of them and Eddie Tolbert, in the manner set forth in "The Remedy" section of this Decision (b) Preserve and make available to the Board or its agents all payroll and other records, as set forth in said Remedy section (c) Post in conspicuous places, including all places where notices to employees customarily are posted, at all of the cafeterias operated by them in Mobile, Alabama, copies of the attached notice marked "Appendix A ' 61 Copies of said notice, to be prepared by the Respondents on forms furnished by the Regional Director for Region 15, shall, after being signed by the Respondents' representatives, be posted by them promptly and maintained by them for at least 60 consecutive, days thereafter Reasonable steps shall 'be taken by the Respondents to ensure that said notices are not altered, defaced, or covered by any material (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondents have taken to comply herewith ": B The Respondent, Morrison Food Service of Alabama, Inc , its officers, agents, successors, and assigns, shall take the following additional affirmative action which is necessary to effectuate the policies of the Act I Upon request, bargain collectively with the above-named labor organization as the, exclusive representative of all employees in the aforesaid unit and, if an understanding be reached, embody such understanding in a signed agreement 2 Post in conspicuous places at the cafeteria which it operates in Mobile, Alabama, including all places where notices to its employees customarily are posted, copies of the attached notice marked "Appendix B "63 Copies of said notice, to be prepared by this Respondent on forms furnished by said Regional Director,, shall, after being signed by this Respondent's representative, be posted by it promptly and maintained by it for at least 60 consecutive days thereafter Reasonable steps shall be taken by this Respondent to ensure that said notices are not altered, defaced, or covered by any material 3 Notify said Regional Director'in writing, within 20 days from the receipt of this Decision, what steps this Respondent has taken to comply with provisions B, I and 2, above "In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order of the" shall be substituted for the words "the Recommended Order of a Trial Examiner of the" in the notice In the further event that the Board ' s Order be enforced by a decree of court, the words "a Decree of the United States Court of Appeals Enforcing an Order of the" shall be substituted for the words "a Decision and Order of the " In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " "See fn 61, supra "if this Recommended Order should be adopted by the Board, this provision shall be modified to read " Notify said Regional Director in writing, within 10 days from the date of this Order, what steps this Respondent has taken to comply with provisions B, I and 2 , above' 616 DECISIONS OF NATIONAL L ABOR RELATIONS BOARD IT IS FURTHERED RECOMMENDED that (1) the amended complaint be dismissed to the extent that it alleges unfair labor practices not found herein, and (2) the objections to the elections in Case 15-RC-3029 be sustained, the result, of the elections be set aside, a second election be conducted among employees of Morrison Cafeteria Company, Inc , and the case be closed insofar as It involves Morrison Food Service of Alabama, Inc APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner ' of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, ' we hereby notify our employees that WE WILL NOT discharge , suspend , or otherwise discriminate against any of our employees because they join or engage in activities on behalf of Hotel & Restaurant Employees and Bartenders International Union, Local 176, AFL-CIO, or any other labor organization WE WILL NOT question or threaten employees concerning their union activities WE WILL NOT promise employees improved wages as a means of discouraging union activities WE WILL NOT request employees to report to management if any person should speak to them about the above-named union or any other labor organization WE WILL NOT attempt to instill in employees a sense of fear that unionization will bring on strikes or a loss of fobs WE WILL NOT violate any" of the rights which you have under the National Labor Relations Act to loin a union of your own choice and to engage in union activities, or not to join a union and not to engage in' such activities WE WILL offer Cleimmie Bryant , Harold Cruse, Edward Eaton , Zella Morris , Sadie Schultz, and Marion Walton immediate and full reinstatement to their former,jobs , or equivalent ones, and pay them and Eddie Tolbert backpay to cover the earnings they lost because we discharged them All our employees are free to become or remain member, of Local 176, or any other union, and they also are free to refrain from joining any union Dated By MORRISON CAFETERIA COMPANY, INC AND MORRISON FOOD SERVICE OF ALABAMA, INC (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provision,, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527 T 6391 APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE wn_I, upon request, bargain collectively with Hotel & Restaurant Employees and Bartenders International Union, Local 176, AFL-CIO, as the exclusive representative of all employees in the following bargaining unit, and we will embody in a signed agreement any understanding reached All employees at the Dry Dock 'cafeteria, exclusive of all other employees, professional employees, guards, watchmen, and supervisors as defined in the Act MORRisoN FOOD SERVICE OF ALABAMA, INC (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal. Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone X27-6391