Jack-in-the-Box

JACK-IN-THE-BOX 109 Foodmaker, Inc., d/b/a Jack-in-the-Box and Terrence Ryan. Case 29-CA-2577 September 18, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 31, 1972, Trial Examiner Phil Saunders issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER ed full opportunity to be heard, to introduce relevant evi- dence, and to present oral argument. Both the Respondent and the General Counsel filed briefs? Upon the record and from my observation of the wit- nesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation , and at all times material hereto has maintained an office and a place of business at 35-41 Junction Boulevard , Astoria, in the Borough of Queens, City and State of New York, herein called the Corona restaurant, and at various other places of business throughout the United States, including California, where it is, and has been at all times material herein , contin- uously engaged in the operation of a chain of restaurants. During its past fiscal year the Respondent derived gross revenues therefrom in excess of $500,000, and during the same period it purchased and caused to be transported and delivered to its various places of business food and other goods and materials valued in excess of $50 ,000, of which goods and materials valued in excess of said amount trans- ported and delivered to its places of business in interstate commerce directly from States of the United States other than the State in which they are located . I, find the Respon- dent is engaged in commerce within the meaning of Section 2(6) and 2(7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Foodmaker, Inc., d/b/a Jack-In-The- Box, Astoria, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. ' The General Counsel has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear pre- ponderance of all the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A 3) We have carefully examined the record and find no basis for reversing his findings TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Trial Examiner: The charge was filed by Terrance Ryan on October 19, 1971,' alleging that Food- maker, Inc., d/b/a Jack-In-The-Box, herein the Respon- dent or Company, violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. The complaint is dated December 30. Pursuant to notice, a hearing was held before me and all parties were represented at the hearing and were afford- 1 All dates are 1971 unless stated otherwise It THE LABOR ORGANIZATION INVOLVED Local 20408, United Warehouse, Industrial and Affil- iated Trades Employees Union, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES Briefly, the complaint alleges that during periods from May through August there were various instances of inter- rogations and threats, and in early July it is alleged the employees were directed to refrain for their organizational efforts during nonworking time. It is further alleged that since June 3 the Respondent instituted stricter rules con- cerning working conditions, that on or about July 14 the Respondent discriminatory demoted Terrance Ryan, that in September the Company enforced its rule regarding late- ness of employees against Ryan but not against other em- ployees, and finally that the Company unlawfully discharged Terrance Ryan. This record shows that organizing activities at the Respondent's Corona restaurant started in late March and that Ryan was the initial contact and indicated his interest and willingness to assist in these organizational efforts. Dur- ing conversations between Ryan and Union Organizer Skelse Brown, it was ascertained the employees felt there was "room for improvement" in their working conditions, and as a result Ryan agreed to take a petition to other 2 Respondent's motion of March 16, 1972, to correct the transcript is hereby granted 199 NLRB No. 19 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the Corona restaurant and try to convince them to sign this petition authorizing the Union as their representative. Employees Ron King and Kenneth Dowling also agreed to help Ryan circulate this petition. Seven em- ployees signed the petition which was then returned to Brown.3 Sometime in May, Skelse Brown instructed Ryan, King, and Dowling to make up a list of grievances or de- mands the employees wanted presented to the Company. The list was compiled, but was inadvertently left at the restaurant and was discovered by Supervisors Lem Poates and Jim Ward, and Poates then asked Ryan "What's this Union stuff all about." Ward testified he had never seen a list of grievances, and never observed Poates questioning Ryan about such a list. Poates said he never interrogated Ryan about this matter. Even accepting Ryan's version of this incident, I am not so sure that an isolated and single inquiry as to "What's this Union stuff all about" should be deemed an unlawful interrogation concerning the origin of the Union's propos- als, and especially so without any additional questions being asked or inquiries made. After Ryan flatly denied knowing anything about the grievances, he immediately left and nothing else was said nor were there any other inquiries. I hereby dismiss this allegation as lacking sufficient proof and specificity. On May 13, 25, and 31, Respondent's District Coor- dinator Dave Zerwas held meetings with employees at the Corona restaurant, and on each occasion delivered prepar- ed speeches.5 The General Counsel contends and alleges that in these speeches the Respondent threatened more ar- duous working conditions and stricter enforcement of work rules because of union activity. However, in my opinion there is nothing in the prepared talks violative of free speech. Zerwas testified that while he may have omitted some words in the prepared speeches, he did not add words and specifically denied any utterances as to stricter work rules if the Union won out. Ryan's testimony is to the effect the employees were told by Zerwas that if the Union did come in there would be stricter enforcement .6 From all the circumstances and testimony pertaining to the incident I believe Zerwas, and accordingly this allegation in the com- plaint is hereby dismissed.' It is alleged that the Respondent directed employees to refrain from organizing on nonworking time and issued reprimands for doing so. This record shows that in the months following the initial organizing period Ryan contin- 3 On April 19, the Union filed a petition for an election, and in May the parties signed a stipulation for a consent election. An election was then held on June 2 which was won by the Union, and soon thereafter the Union was certified as the bargaining representative of the dining room employees work- ing for Respondent at its Corona restaurant. Altogether the Respondent has about 42 restaurants or stores in the greater New York area The record also contains one or two statements to the effect that on this occasion Ryan was questioned about the Union, but, of course, such testimo- ny is purely conclusionary and of no value in this instance. 5 Resp Exhs 33, 34, and 35 6 In this respect the parties stipulated that Zerwas told employees "That if the Union gets in we can follow every rule strictly." 7 The General Counsel also produced testimony through Kenneth Dowl- ing as to what Zerwas told employees on the occasions in question , but the best Dowling could recall was a remark "insinuating" that the Company would go by the rules if the Union got in. ued to participate in activities of the Union by visiting other restaurants of the Respondent during his free time along with Skelse Brown and other organizers. Ryan stated that during the week of June 28 he was not scheduled to work on Thursday, July 1, or on Friday, July 2, but, nevertheless did work on Thursday because the restaurant was short- handed, and that when he left on Thursday the posted schedule for the week was still blank for Thursday and Friday, indicating that he was to have these days off. On Friday, July 2, Ryan went with Brown to the Respondent's restaurant on Astoria Boulevard to apparently help in or- ganizing the employees there, but shortly after his arrival he was notified that Jim Ward (since June 3 the manager of the Corona restaurant where Ryan was employed) wanted to talk to him on the phone. Ward then asked Ryan what he was doing at the Astoria restaurant as he should be working, but Ryan replied that it was his regular day off and refused to work as he had made other plans. Jim Ward testified that Ryan was scheduled to work Monday through Friday and that Ryan had asked to be off on Sunday, July 4. There is also conflicting testimony in this record as to the posted schedule for the week in question. Ryan stated that the schedule as originally posted had been altered so as to show him working on Thursday and Friday. Ward maintained that the schedule showed Ryan working on Friday and this had been written in earlier during the week and Ryan knew this.8 Subsequent to the above, Ryan received a written memo from Supervisor Zerwas reprimanding him for failing to show up for work on July 2. I will credit Ward's testimony that Ryan was scheduled to work on Friday, July 2, and therefore management had every right in attempting to ascertain why he was not at work, and this apparently was as far as Ward went. In accordance with the above, the record is devoid of any reliable testimony in support of the allegation that the Com- pany directed employees to refrain from organizing on non- working time. It is also alleged that, in August, Ward interrogated employees and also threatened reprisals if employees went on strike. In support of this allegation Ryan testified that in August Manager Ward asked him how much the Union was paying him to help organize the Respondent's stores. Ryan replied that if he kept up this kind of "harassment" the employees would strike, and Ward then told him if he really wanted to "harass" he would have Ryan clean the restau- rant "with a tooth brush." Ward also informed Ryan that it would take more than picket signs to stop him and his "boys" from crossing the picket line, and further told Ryan he might have a few of his "boys from Brooklyn work here" and they might not like Ryan because "of the color" of his skm-Ryan is white and Ward is black? It is most apparent to me that on this particular occasion Ward and Ryan were engaged in a somewhat heated and freewheeling discussion of the Union and future possibilities, and admittedly, Ward made several statements in respect thereto, and, therefore, I will credit Ryan's version and in accordance find that 'G. C Exh 5 9 Ward denies he made any threats to Ryan However, he does admit saying that Ryan did not know what harassment was, and that in the Marine Corps he (Ward) had cleaned cracks with a toothbrush, and also telling Ryan he could get a couple of friends to work for him who would cross a picket line. JACK-IN-THE-BOX, Ward did engage in an unlawful interrogation and also made threats of reprisals for engaging in union activities. Terrance Ryan started his employment at the Corona restaurant in February, and after serving 4 or 5 weeks as a "grill man" he was promoted to the job of night mana- ger.10 The main reason for Ryan's discharge was because of his excessive lateness in reporting to work. On the date of the election, June 2, Ryan served as the union observer, and after the election Supervisor Zerwas was notified by Skelse Brown that Ryan would be the shop steward in the Corona restaurant. On June 3, Jim Ward was assigned to be the manager of the Corona restaurant. It appears that prior to the election and before Ward became manager, Ryan got along fairly well, but he admitted that during May he had been caught by Zerwas looking out of the restaurant with binoculars, admitted that Zerwas had seen him with a Playboy magazine on the counter, and also admitted that the former manager of the Corona restaurant insisted he get a haircut. It appears that other demands for short hair were again made at later times. From my observa- tions of Ryan while appearing before me, it is quite noticea- ble that he was not impressed with any requests or instructions to get his hair cut, and by this record it is readily apparent that in the restaurant business long hair does pre- sent additional health problems. On June 3, his first day as manager, Ward issued three written reprimands or discipline slips against Ryan. One for leaving a carport window open, another for taking an unau- thorized break and smoking in the patio area of the restau- rant when there was cleanup work to do, and the third for playing a radio in the restaurant and not having his full uniform on. On June 8, Ward issued a reprimand slip against Ryan for leaving the front door open or unlocked, and on June 10 issued another reprimand slip for being an hour late with no excuses given. On June 19, the Corona restaurant was robbed of $231.21, and Ryan was the night manager at the time. Ad- mittedly, one of his duties was to take care of the cash, but Ryan testified he did not make the cash drop because of the heavy rush of business. Ward said that the drop procedure was explained to all employees operating the cash register but that no cash drops were made on this evening. Manager Ward also explained that as a result of the robbery, he himself assumed Ryan's responsibilities as night manager. On this date Ryan was also given a reprimand slip relating to this incident. On July 2, Ryan was given a reprimand slip for not working on this day when he was scheduled to do so, as aforestated. On July 3, he was given a reprimand slip for not wearing a hat (out of uniform). On July 4 and on August 11, Ryan was reprimanded for being late for work, and August 14, received a reprimand for being 1 hour late for work. On September I 1 and 12, Ryan was again given writ- ten reprimands for being a half hour late, and also on the latter date he was reprimanded for being intoxicated. On September 14, 17, and 18, he received additional reprimands for lateness ranging from 15 to 30 minutes. 10 Ryan had no supervisory powers or functions as night manager, but his duties did include responsibilities to see to it that the restaurant was clean, that the doors and windows were locked, and to make "money drops" in the safe Ryan's scheduled hours were from 5 p.m to I a in 111 Ryan testified that prior to the June election no one had spoken to him about his lateness, that no one "really objected" to employees coming in late, and said that no written slips were used for reprimands until Ward came in. According to Ryan almost all of the employees were late for work "as much and more" than he was, and mentioned employees Dowling, King, and Gordon as being late "quite often." The General Counsel also produced testimony through Skelse Brown to the effect that after the election Ryan told him about the reprimands he was receiving, but Brown testified he did not pay very much attention to the com- plaints on lateness because on the day of the election there were at least two employees who came in late and no "great emphasis" was made over it. Brown admitted that Zerwas had also complained directly to him about Ryan's behavior after the election, but in these respects stated as follows: Well, he told me that Terry was-well, it was al- ways some complaint. He wasn't doing his work right. He had too long hair. He didn't come in on time, but as I said before, I took all of these accusations somewhat casually be- cause I had been involved in the campaigning of organ- izing other stores and had seen many of the employees with long hair and from my association with the em- ployees at the Corona store, the time they came in was quite casual. The fact of this was because these employees were expected to clean up the location, and many times it took until 2, 2:30 in the morning for them to do so when the time for their-them to stop working was 1 o'clock. So, this was a casual thing. The Company never paid them overtime. Therefore, they really never en- forced them to come in early. I Brown further related that after June 2 other employees at the restaurant continued to come in late, but Ryan was the only one complained about. Brown said that when he received these complaints he passed them on to Ryan, but that they both understood it was "harassment" and "retri- bution" for engaging in union activities. However, Brown admitted that he finally gave Ward "a guarantee" that Ryan would not be late to work anymore. Kenneth Dowling produced testimony for the General Counsel to the effect that it was only after the election when management started making complaints about Ryan, and that prior to the election he never heard any complaints about Ryan's appearance, work performance, or lateness. Dowling stated that before the election he (Dowling) "al- ways" came in late, and said that after he was rehired (Dowling was fired on June 1) he continued to come in late quite often, but only received one reprimand slip. Dowling further revealed that 2 or 3 days after Ryan was discharged he had a conversation with Manager Ward and on this occasion Ward asked him "What happened to your white leader. He is not here now, you know. What's wrong, your Union is not strong enough for something like that?" Ward denied ever referring to Ryan as the "white leader." Manager Ward explained that on September 11 he held a meeting at the restaurant and informed all his employees that as of this date he would completely disregard all their previous reprimands or discipline slips, and all of them 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would be "starting fresh" as far as he was concerned, but added that in the future if any employees received as many as three discipline or reprimand slips for lateness they would then be discharged. Ward stated that on the very day he made the above announcement Ryan came in late, and continued this practice to such an extent that within a few days he had picked up five reprimands. He then contacted Zerwas and informed him of the above and also told Zerwas that Skelse Brown had even assured him that Ryan would not be late anymore and if so he would have nothing to do with it. Ward testified that lateness was not his only reason for the termination-he said that several inspectors from the Board of Health had called his attention to the fact that Ryan would not keep his hat on and wore his hair too long. Ward then went on to say that Ryan was not responsible, that he could not rely on him, and that he was often out of uniform. Ward further testified that he could not carry out his policy of September 11 by discharging Ryan after he had accumulated three reprimands because the restaurant had lost "a lot of schools kids" and it took 2 to 3 months to train new help. The Respondent also introduced various exhibits through Manager Ward revealing that he had also repri- manded several other employees for lateness and various other reasons, but Ward said that Ryan was the "worst" in coming in late. Dave Zerwas pinpointed various observations he had made about Ryan back in May and which could lead to his discharge-long hair, a magazine in view of customers, out of uniform, using binoculars, litter on the patio tables, and being late for work, as aforestated. Zerwas went on to state that at the time of the robbery on June 19 management considered terminating Ryan, but then decided against it because no one before had ever been discharged for failure to take proper security precautions. On September 20, Ryan was scheduled to work but either was late or did not report, and as a result Ward contacted Zerwas, who in turn talked to the Respondent's office and counsel in St. Louis. On September 21, Ryan called Ward to ascertain why his name was not on the work schedule. Ward then informed Ryan that he had been termi- nated for excessive lateness and other reasons. 11 In completing the main sequence of events it is also pointed out that after the election the Respondent and the Union held at least three bargaining sessions, and Ryan was one of the four people composing the Union's negotiating team. Ward was a member of the negotiating team for the Respondent. At the first session there were discussions on the employees demand for longer hair, and subsequent ther- eto Ryan was told to get his hair cut. In its brief the General Counsel argues, inter alia, as follows: Ryan admits that he was criticized for having a Play Boy magazine in the store, and for having binocu- 11 Ryan testified that on Wednesday, September 22, he sprained his ankle and called Ward to tell him that he would not be able to work but would be in on the following Monday Ryan stated that it was not until October 18 or 19 when he next contacted Ward to inform him that his leg or ankle was still bothering him According to Ryan, he was then told by Ward of his discharge . Ryan said that this was the first time he had been informed of his termination and that lateness was the reason given. It is difficult for me to understand any reference to dates in October, as Ward duly established that Ryan's last payday was September 20 lars in the store, but not for his performance on the job prior to June 2, 1971. However, following June 2, there are numerous complaints about Ryan's performance. There is a significant shift to more stringent enforce- ment of company rules which coincides with the June 2, 1971, election. Ryan exhibited the same sloppiness in appearance before and after the date, the same defi- ciencies in performance before and after that date and similar lateness record before and after that date. How- ever, prior to June 2, 1971, Ryan's defects were con- doned and the company made no attempt to document a case against him or any other employee. Therefore if Ryan had not changed the rules must have changed and the only significant event which in timing co- incides with this change is the advent of the Union on the scene. In this case, of course, there is no question whatsoever but that the Company had direct knowledge of Ryan's un- ion activities prior to his discharge, and, in fact, his overall participation and activities for the Union were quite exten- sive, as previously detailed herein, but, of course, it is well established that union membership and activities do not insulate an employee from discharge for other reasons. In my opinion the General Counsel's case is much too laden with inferences to satisfy his burden of proving the viola- tions by a preponderance of the evidence, and, in the final analysis, the Respondent has successfully defended its posi- tion that Ryan was discharged for just cause. The events leading to Ryan's eventual discharge actu- ally started before Ward took over as manager of the Cor- ona restaurant, and reliable testimony by Zerwas is illustrative of this fact. However, the General Counsel places great emphasis and bases most of his case on the contention and argument that it was not until after the June election before the complaints on Ryan resulted in any serious consequences, and further maintains that prior to the election Ryan's shortcomings were condoned. It would seem to me that the General Counsel will encounter considerable difficulty in successfully maintain- ing this position due to the fact that Ward became manager of the restaurant here in question on June 3, and whatever rules or policies preceding managers may have enforced or did not enforce have little or no bearing on the issue here. This record makes it clear that Ward had numerous ideas about restaurant procedures and working arrangements which were considerably different from that of the former manager or managers, and while others may have condoned some of Ryan's shortcomings, it is obvious that Ward did not. During the first few weeks in June, Ward had ample grounds for making several reprimands against Ryan, as previously set forth herein.12 On June 19, the restaurant was robbed of considerable money and Ryan admitted he did not follow the cash drop procedures. The daily sales and cash record for this date shows it was no more than an 12 The General Counsel argues that issuance of written reprimands after June 3 constituted stricter rules However, this is not supported by a prepon- derance of the evidence The same basic rules were in existence both before and after June 3, but it was Ward's policy to document his conversations where he had occasion to warn an employee, and he did so on advice of counsel and these same instructions were also passed along to all-the other managers JACK-IN-THE-BOX 113 average evening's business. The volume of business done after Ryan reported for work at 5 p.m. until the robbery was approximately $230, the amount taken in the robbery. As pointed out, other robberies have resulted in losses of only $35, $16, and $12 because the cash drop procedure had been followed. For some time after the robbery Ward himself took over the responsibilities of night manager, and Ryan returned to working on the grill or as cook, but his pay was not reduced and, therefore, he suffered no monetary loss. It would seem to me that Ward was exercising the established prerogatives of management in taking the actions he did, and in accordance with the above there is insufficient evi- dence to support the allegation that Ryan was demoted because of his union activity. He was demoted because he was not doing his job properly, and Ward testified on direct examination that he did consider this incident as "a factor" in deciding to discharge Ryan. This record further discloses that, in July, August, and September, Ryan received addi- tional disciplinary slips including reprimands for being late to work. On September 11, Ward laid down the policy that three reprimands to any employee on tardiness would result in discharge, and questions and discussions followed as to what actions employees should take if they could not be on time. However, on the afternoon of September 11, the same day the above announcement was made and even though Ryan was well aware of this new policy, he, nevertheless, reported late to work and did so again on the very next day and then on three subsequent occasions, as aforestated. On September 14, Ward met with Skelse Brown, and based upon Brown's guarantee that Ryan would not be late again, he did not terminate Ryan on this date-his third repri- mand. Ryan even agrees that at about this time Brown talked to him relative to his lateness.13 As further pointed out, Ward did not terminate Ryan for reporting late on September 17 because, as Ward testified, "Really, I was trying to give him a chance," and again credibly testified that he did not fire Ryan on September 18 because he was short-handed at the Corona restaurant as some of his help was returning to school. As far as I am concerned the testi- mony by Ward is a reasonable explanation revealing adequate reasons for not asserting his new policy on late- ness following Ryan's third reprimand, but when Ryan failed to report on September 20, he was terminated and so notified on the following day. In the final analysis, Ward gave testimony which estab- lished that in the type of enterprise the Company is engaged in-the fast food business-being on time for work is "very critical." He explained that when he took over as manager in early June, most all of the employees were coming in late, said it was just something he "clamped down on," and then emphatically stated that he just would not "tolerate" tardi- ness. From Ward's demeanor, from his sincere bearing while testifying, from his apparent desire to be in full com- mand of his restaurant at all times, and for the other reasons 13 Based on the admitted statement by Brown of his personal guarantee to Ward that Ryan would be on time-an inference can be made that even Brown himself finally recognized that Ryan's continual lateness was a genu- ine problem and a shortcoming the new manager would not condone. given herein, I believe him. There is a specific allegation in the complaint that dur- ing various dates since June 3, and up until September 18, the Respondent instituted stricter rules concerning working conditions for its employees at its Corona restaurant than had existed prior to the election, and did so because of union activities. Ward testified that when he arrived at the Corona restaurant on June 3 there were rules posted and stated that those were the same rules posted in all restau- rants of Respondent. Ward further testified that the format or form of these rules was later changed, but that the actual rules were not changed. Zerwas corroborated Ward's testi- mony by stating that in August he changed the format by consolidating three forms into one, but that there was no substantive change made in the rules. On September 11, as detailed earlier herein, Ward did institute a new policy or rule that three incidents of lateness would lead to discharge, but the implementation of this rule was caused by the con- tinual tardiness of employees, and in the legitimate exercise of his managerial responsibilities Ward was insistent that his employees be on time. There are further allegations to the effect that on Sep- tember 11, 12, 14, 17, and 18 the Respondent enforced its rule concerning lateness of employees against Ryan, but not against the other employees, and, therefore, the Respondent treated Ryan with disparity in comparison with the others. Again, the record here will not support this allegation. Be- tween June 3 and late September, Ward issued approxi- mately 20 written reprimands against employees other than Ryan, and about 9 of the 20 reprimands were because of lateness. The testimony and exhibits in this record also re- veal that Steve Kirschner had considerable difficulties in showing up for work on time, and on July 2 was discharged by Ward because of excessive lateness; Ward then named several other employees he subsequently discharged for var- ious reasons, including being late. Futhermore, there is testi- mony by Ward that Ryan was late more frequently after September 11 than other employees. Gordon Townsend stated that after September 11, he was threatened with dis- charge from the Corona Restaurant for lateness, and Zer- was testified he was personally familiar with cases at Respondent's restaurants where employees were terminated for lateness between June and September. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operation described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, my recommended Order will require Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the policies of the Act. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW Act be dismissed. 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6) and (7) of the Act. 2. The Union named in section II herein is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees as to their union activi- ties, and by threatening employees with certain reprisals because of their union activities, the Respondent has en- gaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this case, and pur- suant to Section 10(c) of the Act, I hereby issue the following recommended:'4 ORDER Respondent, Foodmaker, Inc., d/b/a Jack-In-The- Box, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees to ascertain the amounts of money being paid for engaging in union organizational ac- tivities. (b) Threatening employees with various reprisals if they went on strike or engaged in other protected activity. (c) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union named herein, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its Corona restaurant, Astoria, New York, copies of the attached notice marked "Appendix."15 Copies of said notice, on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consec- utive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith.16 I FURTHER RECOMMEND that the allegation in the com- plaint that Terrance Ryan was discharged in violation of the 14 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 15 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of The National Labor Relations Board " 16 In the event that this recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respon- dent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees to ascertain the amounts of money being paid for engaging in union organizational activities. WE WILL NOT threaten employees with reprisals for engaging in a strike or other protected activity. WE WILL NOT in any other like or related manner interfere with, restrain, or,coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. FOODMAKER, INC, d/b/a JACK- IN-THE- Box (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11241, Telephone 212-596-3535.