Stouffer Restaurant and Inn Corp.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stouffer Restaurant and Inn Corporation and Hotel, Motel & Restaurant Employees Union, Local 151, AFL-CIO. Case 10-CA-10281 April 29, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On January 8, 1974, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge except as modified herein, and to adopt his recommended Order. The Administrative Law Judge found that Supervi- sor Bacon's inquiry of employee Dennard on July 9, 1973, if she knew anything about the Union and statement to her that "no other Stouffer's but one had a union" violated Section 8(a)(1) of the Act. We find merit in Respondent's exception to this finding. The complaint alleged a number of 8(a)(1) viola- tions by certain of Respondent's supervisors on certain dates but made no reference to any conduct by Bacon on July 9. It was thus specific in alleging the dates on which a supervisor's conduct was alleged as violative of the Act and was not couched in language reasonably susceptible to the interpreta- tion that any incidents occurring on other dates were additional violations. Although Respondent was able to cross-examine the witness testifying about the incident and able to put on a rebuttal witness, it does not appear that the issue was fully litigated in these circumstances. Rather the record indicates that the evidence relating to the incident was introduced as background evidence to determine the purpose of a meeting Bacon later set up between Dennard, employee Crowley, General Manager Welty, and Resident Manager Fox at which Welty was alleged to have unlawfully interrogated Dennard. Hence it was merely incidental to the issue concerning the alleged violation by Welty. Furthermore the General Coun- 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, sel neither sought to amend the complaint to allege a violation based on the incident nor contended the incident constituted a violation in his brief to the Administrative Law Judge. Under these circumstances, we must conclude that the question of whether Bacon's question and statement to Dennard violated Section 8(axl) of the Act was not properly before the Administrative Law Judge. Accordingly, we shall reverse the Administra- tive Law Judge's finding that a violation occurred with respect thereto. Respondent takes exception to the Administrative Law Judge's conclusion that General Manager Welty's July 9 inquiry as to whether employee Dennard previously belonged to a union and where she joined it violated Section 8(a)(l) of the Act. We find merit in this exception and accordingly reverse this finding by the Administrative Law Judge. The record reveals that on July 9 Welty and Resident Manager Fox had a meeting with employ- ees Dennard and Hornsby. The initial portion of the meeting consisted of a discussion of operational problems of the hotel during which the employees raised complaints about the inadequacy of supplies (linen, soap, stationery, etc.) and the feeding situa- tion (quality and variety of food, available eating areas, etc). Welty promised to look into their complaints. At a point in the conversation the topic turned to unionism and Welty asked Dennard, who had been wearing a union button and who was prominent in the Union's organizing efforts, whether she had previously belonged to a union. When she replied in the affirmative he asked her "where about" and Dennard gave the name of the employer for whom she worked when previously a union member. There then followed a discussion on the subject of unionism in general, which the Administrative Law Judge did not find to involve coercive statement. The Adminis- trative Law Judge apparently reasoned however that Welty's initial inquiry constituted coercive interroga- tion. We do not agree. The record reveals that both Dennard and Horns- by made no attempt to conceal their support for the Union and in fact openly wore union buttons. In this context we conclude that Welty's question was no more than an introductory one to the discussion of unionism in general. We therefore find, contrary to the Administrative Law Judge, that Welty's question did not violate Section 8(a)(1) of the Act.2 Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 Member Jenkins would affirm the Administrative Law Judge in finding both of the violations which are here dismissed. Bacon's interrogation of Reid was in fact fully litigated, to the extent it is difficult to see what further (Continued) 210 NLRB No. 49 STOUFFER RESTAURANT & INN CORPORATION ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Stouffer Restaurant and Inn Corporation, Atlanta, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. litigation would have been possible. There is thus no denial of due process to Respondent in finding the violation . The interrogation of Dennard about her prior union activities and the location of them is not excused by the fact that Dennard was an open supporter of the Union , nor by the fact that further discussion of unionism in general occurred DECISION SAMUEL M. SINGER, Administrative Law Judge: This proceeding, with all parties represented, was heard before me in Atlanta, Georgia, on October 23-25, pursuant to charges filed July 17 and complaint issued September 17, 1973.1 The issue litigated was whether Respondent, through certain conduct (including interrogation, surveil- lance, promises of benefits, and threats of reprisals) interfered with, restrained, or coerced employees in violation of Section 8(axl) of the National Labor Rela- tions Act, as amended. All parties appeared and were afforded full opportunity to be heard, examine and cross-examine witnesses, and introduce evidence. Briefs were received from General Counsel and Respondent on December 3. Upon the entire record2 and from my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED Respondent, an Ohio corporation with office and place of business in Atlanta, Georgia, is engaged in the business of lodging and feeding transient guests . During the 9- month period preceding issuance of the complaint, Respondent's gross revenues exceeded $500,000; and its purchases directly from suppliers outside Georgia exceeded $50,000. I find, as Respondent admits, that at all material times it has been and is engaged in commerce within the meaning of the Act. Hotel, Motel & Restaurant Employees Union, Local 151, AFL-CIO (Union), is a labor organization within the meaning of the Act. 1 Unless otherwise noted, all dates refer to 1973. 7 Transcript corrected by my order on notice dated November 30. s A "banquet houseman" sets up and readies rooms for meetings, banquets, and other functions. 4 The above findings are based primarily upon the testimony of Bacon, to the extent credited. Both Bacon and Reid impressed me as witnesses prone to exaggerate and shape their testimony to advance their interests- II. THE UNFAIR LABOR PRACTICES A. The Facts 1. Introduction ; managerial hierarchy 337 Respondent, operating some 13 inns as well as numerous restaurants around the country, opened its Atlanta facility (the one here involved) on October 2, 1972. That inn or hotel has three main departments; (a) room division-han- dling housekeeping, laundry, maintenance, and front desk; (b) food and beverage-handling restaurants and cocktail lounge; and (c) accounting. Roy Welty, general manager, is the "number one" man, and Thomas Fox, resident manager in charge of the room division, the "number two" man. Among the other managerial officials involved in this proceeding are Gene Perkins, room service supervisor; William Tillery, laundry room supervisor ; and Clifford Bacon, banquet service assistant. 2. Supervisor Bacon's May 10 conversation with employee Reid In April or May 1973, the Union began to organize Respondent's employees. Among the most active employee organizers was Lawyer Reid, a banquet houseman working under Bacon.3 Bacon testified that "[e]verybody knew" of Reid's union role and that he personally saw Reid passing out union cards. On May 10, Reid and Bacon had a general discussion about Reid's job in the hotel and his role in the Union. Reid complained that he was hard pressed for money and needed a better paid job (specifically mentioning the bell staff), and indicated that he was having second thoughts about the Union because he was "losing a lot of time" without being compensated for it." Bacon said that "if they [the Union] think you are valuable enough to them, I'm sure they will pay you. What I would do is have a confrontation with them." Reid then asked "how bad, Stouffer's wanted the union stopped"-indicating that he had "quite a bit of influence with the black people." When Reid asked if Bacon could set up a meeting with General Manager Welty, Bacon said he would do that so "you [i.e., Reid] can tell him in your own words exactly what you want to do and how you want to do it." Bacon also said that so far as the bellman position was concerned, he would be glad to transfer Reid to any department that would have him, but that Reid would have to discuss the matter directly with Welty.4 In the course of his conversation with Reid, Bacon asked him how the Union was coming along, how many cards the Union had, and "who were some of the people that signed cards." When Reid said he "couldn't tell" him, Bacon commented, "Well, I understand that." 5 -Bacon that of his Employer and Reid that of the Union by which he was employed (as paid organizer) at the time of the hearing. I do not credit Reid's testimony to the effect that Bacon had offered him a bellman position, his testimony on this point being unconvincing. To begin with, Bacon, as banquet service assistant, was hardly in a position to make such offer S Based on Reid's credited testimony. Although Bacon could not (Continued) 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. General Manager Welty's June 8 meeting with Reid Bacon testified that he reported to General Manager Welty that Reid "was sort of dissatisfied with the union and . . . wanted to talk to [Welty]."8 On June 8, Welty met with Reid and, among other things, discussed Reid's dire financial situation, his desire to transfer to the bell staff for which he had sought Bacon's assistance,7 and Reid's union activities. Welty testified credibly: Following our general discussion on general topics, I told Lawyer Reid that Mr. Bacon had told me that Lawyer had questions in his mind as to his continuing union activities and Lawyer did admit to this in this meeting. . . . He wasn't sure whether he had done the right thing in having a number of employees sign cards. He told me that he had been successful in getting employees to sign cards and he could be just as successful in getting the employees to change their mind. However, he stated it was a problem to him as to how he could do this when one time he told the employees he thought it was a good idea to sign a card and then for him to go back to them the second time and tell them, no, it's not a good idea.... And I related to Lawyer Reid that people can make mistakes. You can make errors. One of the biggest things a person can do is to admit to themselves, hey, I made a mistake and to admit it and not be hesitant to go back and tell somebody, I made a mistake. This wasn't something that anyone should be ashamed of. Actually, it would improve a person's stature in other eyes if a man is big enough to admit he made a mistake or error in judgement. He now had a different view or better view or something that had caused him to change his mind.... He wasn't sure. He wasn't entirely sure of this at that time and I gave him some examples of where people had changed their mind, where they will think differently about something at different times. In giving "examples of where people have changed their mind," Welty cited the case of Larry Moore, at the time an assistant bell captain and supervisor at Stouffer, who, while employed at another Atlanta hotel (Marriott Motor), was active in the Union but then abandoned it. Moore again became active in the Union when it began to organize Respondent. Reid testified credibly and without substan- .remember" mqumng "as to any signature cards that [Reid ] had been obtaining" and "how many cards had been signed," he did not explicitly deny making these inquiries. 6 According to Welty, Bacon said that Reid "had second thoughts" about his union activity, that Reid "didn't really know what he was going to get out of it," and that Reid "felt that maybe he had made a mistake and ... wanted to talk to [Welty] about it." T According to Reid, he would have earned $50 more a week as bellman, mostly in ups. 8 1 do not credit Reid's further testimony that Welty in the June 8 conversation, like Supervisor Bacon in the prior May 10 conversation supra, In. 4), also offered Reid a bellman position. In both cases, I rely not only on the comparative demeanor of the witnesses , but on the inherent probabilities. That Welty made no such offer is evidenced by Reid's own testimony that several days after his June 8 conversation with Welty (on June 13), Reid complained to Bacon that Respondent had hired two new bellmen without offering the job to him although (in Reid's words) "I had already applied" for the position. Reid subsequently also complained to tial contradiction that Welty asked him if he was "aware . that Larry Moore was active in . . . union organizing [at Marriott]"; and whether he knew that Moore "was demoted from the position which he held there in the hotel and . . . was also fired from the hotel." When Reid disclaimed knowledge, Welty "went on to then say that this is why, I think, that Larry has come here to Stouffer's and taken his frustrations out on Stouffer's because of his past." Welty added that the fact that Moore was married to a black woman "is a part of his personal frustration." He then said that these "past frustrations" impelled Moore to become "so active in the union" at Stouffer; and that "if I had known this guy before he came to the hotel I never would have hired him." Also according to Reid, Welty stated that he could not understand why another Stouffer employee, Karen Long (infra, sec. A, 7), had become "so active in the Union" since he had granted her request to transfer from waitress to bellhop and felt that she "seemingly got everything she wanted."" 4. Welty's request that Reid give a statement to Respondent's attorney On June 7, the Union filed a petition for an election among Respondent's employees in an appropriate unit. While the petition was pending, Respondent sought an administrative determination that the Union 's showing of interest was tainted by the prounion activities of Larry Moore, then a supervisor (assistant bell captain). On July 3, General Manager Welty asked Reid whether he would be willing "to testify to our lawyer" that Moore had engaged in union activities. Welty asked whether he recalled that the Company had posted a notice to the effect that "any supervisor or any member of management that engaged in union activities would be subject to dismissal or firing." When Reid said he "did remember," Welty said, "all I want, just tell the attorney what you know about Larry's activities in the union and we can have him fired."8 The record indicates that Reid did not give the requested statement.io 5. Interrogation of employees Dennard and Hornsby by Company Officials Bacon, Welty, and Fox a. On July 9, as she was getting off the elevator , Carrie Welty that he "was supposed to get the nextjob ," but Welty disputed this, saying that he "wasn't under that impression." Welty testified that he told Reid that apart from the fact that Reid "wasn't there when the openings became available," Reid would first have had to improve his attendance and tardiness record before he could even be considered for a bellman position. Reid admitted that he had been "tardy or late numerous times" and that management had complained about this. 9 Based on Reid's credited testimony. While Welty admitted asking Reid for a statement concerning Moore's union activities, he denied telling Reid that he wanted the statement so that Moore could be fired. According to Welty, he did not tell Reid why the Company wanted the statement, nor advised him that he had the right to decline giving one. 10 The Regional Director in the representation proceeding found that the Union had made an adequate showing of interest without counting the cards allegedly obtained by Moore and dismissed Respondent's contention that the petition was "tainted." The election had not been conducted at the time of the instant hearing. STOUFFER RESTAURANT & INN CORPORATION 339 Dennard, a floor supervisor, working under Executive Housekeeper Baranski,11 stopped Supervisor Bacon on the floor. Dennard complained that she was "having prob- lems" with her girls and was not getting the "backing" of Mrs. Baranski in rectifying her complaints. Bacon suggest- ed that she talk to General Manager Welty, volunteering to arrange a meeting with him. When Dennard indicated that she wanted two other "inspectresses" present, Bacon said that this was agreeable. During the conversation Bacon asked Dennard if she knew "anything about the Union," adding that "no other Stouffer's but one had a union." Bacon had previously seen Dennard wear a union button.12 b. Later on the same day, Dennard and inspectress Hornsby met with General Manager Welty and Resident Manager Fox in the ballroom. Welty testified that because he and Fox "were aware" that the two employees had been wearing union buttons, they were "somewhat apprehensive and a little bit nervous as to why they wanted the meeting [and] what the content of the meeting was going to be." At the outset of the meeting the two employees mentioned their problems with the maids on the floor and the failure of Mrs. Baranski to back them up when the maids got out of line. They also complained about inadequacy of supplies (linen, soap, stationery, etc.) and the "feeding situation" (quality and variety of food, available eating areas, etc.). Welty "promised" to look into their "complaints." In the course of the 20- or 30-minute meeting, Welty asked Dennard whether she had previously belonged to a union. When she said "yes," Welty asked "where about" and Dennard named the employer. To Welty's inquiry what the Union had done for her, Dennard said that it had helped her get a raise and better job. Welty then said that the union organizers were from out of town (Chicago, Detroit, Miami) and that when they call a strike they would not be around; that they lived in "fine houses" and drove "big cars" and had "criminal records"; and that the employees' union dues would be higher than the Union had indicated they would be. Welty offered to show Dennard and Hornsby the kind of contract the Union had signed with another hotel in Atlanta.13 6. Supervisor Tillery's conversations with employees Crowley and Thomas Employee Crowley, a houseman,14 testified that while in the employees' elevator on May 25 or 26 Tillery, supervisor of the laundry department, observed her union button and asked if she was "going to join that thing." When she answered, "yes," Tillery asked whether she knew that General Manager Welty "could fire [her] for that." Employee Jo Ann Thomas, another houseman, testified that in mid-June Tillery made a similar remark. Pointing to the union pin on her uniform, Tillery asked if she was "in the Union." When she answered she was, Tillery said "it was best for [her] to get out of the Union before we [were] all . . . fired." Tillery denied the conversations attributed to him, asserting that he did not even know a Jo Ann Thomas. He acknowledged that he was in daily "contact" with as many as 300 employees. While first disclaiming any conversa- tions whatsoever "insofar as union activities" are concerned -including on such matters as whether employees "could not join or could join" a union 15-he later admitted calling at least one meeting of employees in his department to tell them that "[a]nytime they had a question [he] could reasonably answer [he] would do so," whether it involved "Union or anything pertaining to their job." Based on inherent probabilities, as well as comparative demeanor of the witnesses,16 I credit the testimony of Crowley and Thomas rather than that of Tillery. 7. Supervisor Perkins' conversations with employee Long a. Karen Long, a bellhop, testified that on May 15 Room Service Manager Perkins asked her if she signed a card, "who else [she] had signed up," and what she knew "about a union." Perkins went on to say that "even if the Union got in . . . [the employees] wouldn't get more benefits" and that the Company "could fire anybody they wanted to." 17 Perkins admitted that he had "stopped" Long to talk to her about the Union but claimed that he only asked her if she was "familiar with hotel unions in general." According to Perkins, he had been "suspicious that maybe [Long] was a Union participant" and, regarding himself "as a friend," told Long about the disadvantages as well as benefits of unionization adding that "I didn't want to see her get into something." Perkins also testified that Long went into a discussion why Respondent "needed the union very badly." I credit the testimony of Long, who impressed me as an u It was stipulated that a "floor supervisor" (who oversees or checks the work of the maids, housemen, and inspectors) is a rank-and-file employee. 12 The above findings are based on credited portions of Dennard's and Bacon's testimony. Bacon admitted that there "was some mention of the union" in the conversation , but claimed it was raised by Dennard. Although he could not recall what she said "about the union," he remembered her saying that she "wanted to hear what Stouffer's had to say or something," adding, "That was the gist of it." While I credit Dennard as to the substance of the conversation concerning the Union, I do not credit her testimony that Bacon instituted it and that she had no "particular reason" for talking to him on that day. She admitted complaining that her maids were not following her "routine instructions" and "feeling" that Mrs Baranski "wasn't backing" her. 13 The findings as to this meeting are based on credited portions of testimony given by the participants. While Welty and Fox stressed the work grievances raised by the two employees, the latter (Dennard and Hornsby) stressed Welty's interrogations about a union. When asked by company counsel whether "the subject of the Union" was discussed in the meeting, Welty answered, "Not to my knowledge, no " Fox was more definitive in responding to a like question on direct examination (he flatly stated that there was "no discussion at all about the union"). His answer was more guarded, however, on cross-examination when he replied, "I don't believe so, no." 14 The duties of a "houseman" include hauling and supplying linen to rooms and vacuuming floors. is According to Tillery, he had attempted to adhere to Respondent's "Do's and Don'ts" instructions to supervisors is Tillery gave the impression of studiously striving to avoid testifying deterimentally to Respondent's interests 17 The conversation took place in the Perkins home where Long was briefly renting a room ; she had formerly worked for Respondent in Toledo, Ohio. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essentially truthful witness. Perkins appeared hesitant, experiencing some difficulty in recalling the events.18 b. Long also testified that on May 18, while having breakfast in the room service area with employee Smith (a waiter), Perkins called Smith aside and asked him "if we were talking about the Union" and Smith said "no." Perkins then called Long aside and asked her the same question. When Long denied talking union to Smith, Perkins said that he did not want her "to solicit any of his room service waiters," and that she "stay out of the room service area." However, Perkins testified credibly that Smith was on working tune in his work area listening to the phone while on duty.19 8. Maitre d' Peters' alleged interrogation of employee Stevenson Stevenson testified that Justine Peters, the luncheon maitre d' in the restaurant where he worked as a waiter, had talked to him about the Union, but he was indefinite and vague as to the content, as well as timing and number of these conversations. Stevenson generally described Peters' "questions . . . [as] directed toward the Union, about what was happening, what meetings were taking place, how I was doing with the Union." When pressed for details, he stated that she "would ask" whether he was attending meetings, whether he was being paid for securing card signatures, and whether he was "allowed to wear a union button." Unable to identify and separate one conversation from another, he explained, "I have no recollection . . . I don't have any idea what she said. I remember what the conversations might have been about but what was really said and what was said each time, how many times, I don't recall." Apart from my reservations as to Stevenson's reliability as a witness,20 I find that the statements he attributed to Peters, even if credited, are not chargeable to Respondent 18 In an effort to discredit Long's denial that she was a paid employee of the AFL-CIO, Respondent called as its witness Cathy Crouch, the secretary at an apartment house (to which Long moved at the end of June), who allegedly overheard a conversation between Long and her superior at the apartment house. However, Crouch only testified that she overheard Long say that she was "affiliated with AFL-CIO .. helping Stouffer's with a labor problem they had." According to Crouch, she "did not bear [Long] say she was paid by them." 19 1 do not credit Perkins' testimony that the Union was "not at all" mentioned. Asked at one point whether he discussed the Union with Long, he said, "Not to my knowledge, no, I don't recall anything " Asked further whether he was "suspicious" that Long was talking to Smith about the Union, Perkins answered, "No, no, I don't think so 20 In addition to Stevenson's vague and imprecise testimony, it is to be noted that Stevenson was fired for repeated "tardiness"; charges alleging that the discharge was discnminatorily motivated were dismissed by the Regional Director. 21 This restaurant, "on top of the hotel" is to be distinguished from the "Grog Shop" and "Coffee Grove" located on other floors 22 According to Food and Beverage Manager Burkett (Restaurant Manager Marks' superior), this was routine company policy and if Peters sent anyone home she did so at the manager's direction. 23 These findings as to Peters' duties and authority are based on the credited testimony of Food and Beverage Department Manager Burkett who impressed me as a forthright witness Peters (who left Respondent's employ in September to return to school) did not testify. Stevenson's testimony on Peters' functions and authority, like his other testimony, was vague. While first claiming that Peters "supervised the waiters' activities at lunch" on cross-examination he admitted that he was not really "familiar with the duties of a supervisor " He also admitted that the restaurant since the preponderance of credited evidence does not support a finding that Peters was a supervisor as claimed by General Counsel. Peters, a 22-year-old college student, worked as a hostess until she became the luncheon maitre d' at the "590 West Restaurant"21 She worked under the direction of Jim Marks, the day manager, and on Marks' day off (or in emergencies when he was unavailable) under George Burkett, Respondent's food and beverage depart- ment head, so that Peters was "pretty much" covered at all times in the restaurant. As maitre d', Peters would take reservations, seat guests, set up lunch menus, help waiters with bringing drinks and food to tables, and review menus with waiters at the "lineup" before the dining room opened. The restaurant manager, not Peters, assigned the waiters to their stations and it was he who would send waiters home who were late for "the lineup." 22 Peters had no authority to hire, fire, transfer, promote, or discipline employees 23 I find and conclude that General Counsel has failed to establish that Peters was a supervisor or agent for whose action Respondent is accountable . See The Little Rock Downtowner, Inc., 145 NLRB 1286, 1289-91, enfd. 341 F.2d 1020 (C.A. 8, 1965), and cases therein cited. Even if, as General Counsel claims, Peters' duties included sending waiters home when tardy for lineups, this authority was of a "routine" or "perfunctory" nature not "elevat[ing] a rank-and-file employee into the supervisory ranks ." United Resources, Inc. and Country Club of Miami Corporation, 200 NLRB No. 142 (JD)24 B. Conclusions 1. I find that Respondent, through its officials and supervisors, engaged in interference, restraint, and coer- cion, in violation of Section 8(a)(l) of the Act, by the following acts and conduct: a. General Manager Welty's statement to employee manager (Marks daytime and Guy nighttime) would direct hun how to perform and would reprimand him if he did not perform properly. Like Burkett, Stevenson testified that it "was supposed to be standard procedure" to send home waiters late for lineup , but claimed that this "wasn't always carried out." He recalled two instances when Peters sent him away for tardiness but there is no evidence that Peters did not first consult the restaurant manager (Marks). Conceding that Marks brought about his discharge for tardiness (supra, In. 20), Stevenson did not claim that Peters played any role in the discharge. 24 At the conclusion of General Counsel's case and again after Respondent adduced testimony, I dismissed the complaint allegation that Respondent unlawfully threatened reprisals through Parada (Rocquemore) Taylor, a personnel "supervisor," on the ground that General Counsel had failed to make a showing that Taylor falls within the statutory definition of supervisor. I adhere to my ruling. Insofar as appears, Taylor is no more than a personnel clerk performing routine tasks such as recruiting and interviewing job applicants and checking their references. Employee Walker, the alleged target of her threat (she quoted Taylor as saying that she "didn't want . . a union" and that Walker "would lose" her job if she joined one), herself testified that Taylor only gave her the job application and related forms, "explained some of the things ... about insurance," and after looking over the completed application referred her to others who interviewed and hired her. It is clear that Taylor was neither a supervisor nor an agent in a "strategic position to translate [to employees ] the policies and desires of management . " The Little Rock Downtowner, Inc., supra at 1290-91. "I"he fact that she identified her interests with those of management insofar as the Union was concerned and acted in the interest of Respondent-but insofar as it appears without Respondent's knowledge or consent-did not make her an agent of Respondent so as to render Respondent responsible for her conduct." (/bid ). STOUFFER RESTAURANT & INN CORPORATION 341 Reid in his June 8 interview with Reid (supra, sec. A,3) that he would not have hired Larry Moore if he had known of Moore's background and activities at his prior place of employment (Marriott). Although Welty referred to non- union related incidents in Moore's past, such as his "personal frustrations" (a biracial marriage and a demo- tion and discharge) he also stressed Moore's "active" role in the prior organizational drive at Marriott. There is no evidence that Moore was a Marriott supervisor at the time (nor indeed that he was hired as supervisor and worked as such at the outset of his employment at Respondent); in any event, Welty based his resentment against Moore on his union activities generally rather than on his union activities as supervisor.25 b. Supervisor Bacon's May 10 questioning of Reid about the Union as to how many cards the Union had, and which employees had signed them (supra, sec. A,2), without affording the employee proper safeguards such as freedom from reprisals if his answers did not satisfy Respondent. c. Bacon's July 9 inquiry to employee Dennard if she knew anything about the Union, pointing out that "no other Stouffer's but one had a union" (supra, sec. A,5,a). d. General Manager Welty's July 9 inquiry to Dennard as to whether she previously belonged to a union and where she had joined one (supra, sec. A,5,b). e. Supervisor Tillery's questioning of employee Crow- ley in late May whether she was joining the Union, coupled with the remark that General Manager Welty "could fire" her for joining it (supra, sec. A,6). f. Tillery's similar inquiry of Thomas in mid-June whether she was "in the Union" and his warning that "it was best for [her] to get out of the Union before we [were] all . . . fired" (supra, sec. A,6). g. Supervisor Perkins' May 15 interrogation of employ- ee Karen Long as to whether she signed a union card, "who else [she] had signed up," and what she knew "about a union" ; and his further statement and warning that "even if the Union got in ... [the employees] wouldn't get more benefits" and the Company "could fire anybody they wanted to" (supra, sec. A,7).26 2. I find that the following allegations in the complaint, claimed to constitute interference, restraint, and coercion violative of Section 8(a)(1), are not supported by the record. a. The allegation (complaint paragraph 11) that Gener- al Manager Welty on June 8 "solicited individual employ- ees to talk against the Union to fellow employees." The credited evidence shows that Welty and employee Reid on that date discussed Reid's uncertainty as to whether he "had done the right thing" in convincing his fellow employees to sign union cards; and that Welty pointed to ways and means by which Reid could "save face" with his fellow employees by leaving the Union-advice given by Welty in response to the employee's inquiry and privileged as free speech and legitimate argument. b. The allegation (paragraph 13) that Supervisor Bacon on May 10 and Welty on June 8 "promised increased pay 25 The statute does not, of course, protect a supervisor from discharge because he engages in union activities See Texas Gulf Sulphur Company, 163 NLRB 88, 92-93 26 There is no ment in Respondent's contention (br, p 9) that Perkins' statements should not be construed as coercive because Perkins, in whose to its employees if they would talk against the Union." The credited evidence shows that while Reid 's transfer to the better paid bell staff position was touched on both times, no promise or commitment of any kind was made to Reid-certainly not as an inducement to dissuade fellow employees from engaging in union activities. c. The allegation (paragraph 8) that Welty on July 3 "threatened its employees with discharge" if they engaged in union activities. According to General Counsel's witness Reid, Welty on July 3 requested him to give a statement to Respondent's attorney to the effect that Larry Moore engaged in union activities so that he could have him fired. Since Moore was at the time in question a supervisor, his discharge for the stated reason was privileged (supra, fn. 25). There is no claim that Respondent had used undue or unlawful pressure in soliciting Reid's statement. d. The allegation (paragraph 10) that Supervisor Perkins on May 18 "created the impression of surveil- lance" of union activities and engaged in other related illegal acts. The credited evidence (supra, sec. A,7,b) establishes that Perkins merely asked Karen Long whether she was talking "union" with another employee (Smith) while the latter was on worktime and that he further told her not to solicit employees in his work area, presumably under like circumstances-a legitimate and reasonable employer inquiry and direction. e. The allegation (paragraph 7) that Maitre d' Peters interrogated employees. As noted (supra, sec. A,8), even apart from my reservations as to the reliability of the testimony of Stevenson (the only claimed target) on the matter in issue, Peters was not a supervisor or agent for whose coercive conduct Respondent is accountable (see supra, sec. A,8). CONCLUSIONS OF LAW 1. By coercively questioning employees concerning their union sympathies and activities, by threatening them (directly and imphedly) with reprisals for engaging in such activities, and by giving employees the impression of futility of continued union adherence and activity, Respon- dent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7, in violation of Section 8(axl) of the Act. 2. The aforesaid violations are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 3. It has not been established that Respondent has violated Section 8(a)(1) of the Act by the conduct described in section II,B,2. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend the customary cease and desist order in cases of this nature, designed to effectuate the policies of the Act. home Long resided at the time, was a "friend." Such statements "from a friendly source may carry a greater aura of reliability and truthfulness and may therefore in a sense be doubly effective ." Caster Mold & Machine Co., Inc., 148 NLRB 1614, 1621. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX ORDER 21 Respondent, Stouffer Restaurant and Inn Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from (a) coercively questioning employees concerning their union sympathy and activity; (b) directly or impliedly warning and threatening them with reprisals for joining a union or engaging in union activity; (c) coercively giving the impression of futility of continued employee adherence to and activity on behalf of their chosen labor organization; and (d) in any other like or related manner interfering with, restraining, or coercing employees in the exercise of any of their rights under Section 7 of the Act. 2. Post in its premises, in Atlanta, Georgia, copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized representative, shall be posted by it immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 3. Notify said Regional Director, in wrting, within 20 days from receipt of this Decision, what steps have been taken to comply therewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 27 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, recommendations , and recommended order which follow 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. 28 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 read "Posted Pursuant NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial before an Administrative Law Judge, at which all sides had the chance to give evidence, it has been decided that we have violated the National Labor Relations Act, and we have been ordered to post this notice. WE WILL NOT coercively question our employees concerning their union sympathies or activities. WE WILL NOT, directly or indirectly, warn our employees about reprisals (including discharge) for joining a union or engaging in union activities. WE WILL NOT coercively give our employees the impression of futility of joining a union or engaging in union activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any of their rights under the Act. STOUFFER RESTAURANT AND INN CORPORATION (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, Peachtree Building, Room 701 , 730 Peachtree Street, N.E., Atlanta, Georgia 30308, Telephone 404-526-5750.