Fair Lady, Inc.

FAIR LADY, INC. 189 Fair Lady, Inc. and Service & Hospital Employees, International Union Local 150, AFL-CIO. Case 30-CA-2403 June 7, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On January 31, 1974, Administrative Law Judge John P. Von Rohr issued the attached Decision in this proceeding. Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed exceptions and a supporting brief and a brief in answer to General Counsel's exceptions. 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 briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. 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 as modified below and hereby orders that Respondent, Fair Lady, Inc., its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as herein modified: 1. Insert the following as paragraph 2(a) and reletter the remaining paragraphs accordingly: "(a) Offer Karen Wilson, Vicki Lore, Diane Mahnke, and Dawn Deutsch immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority and other rights and privileges." 2 2. Substitute the following for relettered para- graph 2(d): "(d) Post at its Silver Spring, Southgate, and Mayfair figure salons located in Milwaukee and at its figure salon in Madison, Wisconsin, copies of the attached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by Respon- dent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees 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. Substitute the attached notice for the Adminis- trative Law Judge's notice. 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, 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. 2 There is evidence in the record that Respondent may have offered reinstatement to some or all of the discharged employees . If and when Respondent offered such reinstatement will be determined at the compli- ance stage. 3 In view of the Administrative Law Judge's findings that Respondent discharged employees in violation of Sec. 8(a)(3) of the Act to discourage union activities at all 4 of its locations and that the Charging Party's organizing campaign included all 4 of its locations , we do not adopt his recommendation that Respondent post notices only at the single location where the violations occurred. In agreement with the Administrative Law Judge , Member Kennedy would order Respondent to post the attached notice only at the Silver Spring location where the unfair labor practice occurred . United Mercantile Incorporated, 204 NLRB No. 109. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Service & Hospital Employees International Union Local 150, AFL-CIO, or in any other union, by discharging any employee because of his or her activities on behalf of that union. WE WILL NOT threaten our employees with discharge, or with any other reprisals, for engag- ing in union activity. WE WILL NOT coercively interrogate our em- ployees concerning their union activities, sympa- thies, or membership. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist the above Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other protected concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make whole Karen Wilson, Vicki Lore, Diane Mahnke, and Dawn Deutsch for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL offer Karen Wilson, Vicki Lore, 211 NLRB No. 22 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Diane Mahnke, and Dawn Deutsch immediate and full reinstatement to their former positions or, if those positions no longer exist, to substan- tially equivalent positions, without prejudice to their seniority and other rights and privileges. FAIR LADY, INC. (Employer) concedes, and I find, that it is engaged in commerce within the meaning of Section 2(5) of the Act. II. THE LABOR ORGANIZATION INVOLVED Service & Hospital Employees , International Union Local 150, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. A. The Issues 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 compli- ance with its provisions may be directed to the Board's Office, Commerce Building, Second Floor, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-224-3861. DECISION STATEMENT OF THE CASE JOHN P. voN ROHR, Administrative Law Judge: Upon a charge and an amended charge filed on July 16 and September 28, 1973, respectively, the General Counsel of the National Labor Relations Board, by the Regional Director of the Region 30 (Milwaukee, Wisconsin), issued a complaint on October 9, 1973, against Fair Lady, Inc., herein called the Respondent or the Company, alleging that it had engaged in certain unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. The Respondent subsequently filed an answer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held in Milwaukee, Wisconsin, on November 13, 14, and 15, 1973. Briefs were received from the General Counsel and the Respondent on December 18, 1973, and they have been carefully consid- ered. Upon the entire record in this case, and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is a Wisconsin corporation with its principal office located in Milwaukee, Wisconsin, where it is engaged in the operation of three figure salons located in Milwaukee, Wisconsin, and one located in Madison, Wisconsin. During the year preceding the hearing herein Respondent realized gross revenued in excess of $500,000. During the same period it purchased goods in interstate commerce valued at approximately $20,000 from sources located outside the State of Wisconsin. The Respondent The complaint alleges that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Karen Wilson on July 3, 1973, by discharging Vicki Lore, Diane Mahnke, and Dawn Deutsch on July 9, 1973, and by discharging Katherine Jachowicz on July 11, 1973. Denying that these discharges were prompted by union activity, Respondent asserts that the terminations of the first four named employees were for cause. As to Jachowicz, Respondent defends on the ground that she voluntarily resigned, and further, that she was a supervisor within the meaning of the Act. The complaint additionally alleges that Respondent engaged in certain other conduct independently violative of Section 8(a)(1) of the Act. B. Background; The Organizational Activity Respondent is engaged in the operation of four health and figure salons, the patrons of which are exclusively women. Three of the salons are located in Milwaukee, the fourth in Madison, Wisconsin. At all times material hereto the personnel and operations of the Milwaukee clubs have been under the supervision of Richard J. Zurich, the area director. The alleged discriminatees in this proceeding, excepting Jachowicz whose supervisory status is at issue, were all employed as instructresses at Respondent's Silver Spring location in Milwaukee. The principal duties of the instructresses, of whom there were approximately 10 at this location, were to give exercise and physical fitness classes to the patrons and to instruct them in the use of the various exercise equipment. They were also authorized, if they wished, to sell club memberships on a commission basis. Respondent also employed two masseuses at the Silver Spring location. In latter June 1973, the employees at the Silver Spring club discussed the possibilities of organizing a union. On June 28, Nancy Meyers, the manager of the Silver Spring club, and Katherine Jachowicz, the assistant manager, made various telephone calls to obtain information as to how to proceed. On this date Meyer finally went to the office of a Teamsters local and returned to the club with union authorization cards. She gave them to Jachowicz, however, stating that she had learned that as a supervisor she could not take part in organizational activity. Jachow- icz thereupon signed up a number of the girls who were present. The following day, June 29, Jachowicz distributed cards at the two other Milwaukee locations, namely the Mayfair facility and the Southgate facility. On the same day she also drove to the club at Madison, Wisconsin, where she obtained four or five signatures and left additional cards to be signed. Karen Wilson, Dawn Deutsch, Diane Mahnke, and Vicki Lore, all of whom are FAIR LADY, INC. 191 alleged discriminatees herein, signed cards on either June 28 or 29. Jachowicz returned to the Teamsters office on June 30, a Saturday. At this time she was introduced to a representa- tive of Local 150, Service & Hospital Employees Interna- tional Union, the Charging Party herein, who advised her that this labor organization was in a better position to serve the employees in the particular field in which they were employed. Obtaining new authorization cards from him, she returned to the Silver Spring club where Mahnke, Deutsch, and Lore signed Local 150 cards that same day. Jachowicz testified that on Sunday, June 1, she returned to the Mayfair and Southgate locations and picked up the cards she had left there previously. She did not say whether the new cards were signed at either of these locations. I was puzzled as to the fact of what the people were in discontent about because no one had mentioned anything to me, you know, about discontentment. I asked both Joan and Diane into the office, and I believe I mentioned something like I know that neither one of you were involved in this union thing or one of the spearheads behind this union thing. All I want to know is ... what's the grievances. At that point Joan said they didn't know anything about it at all. Diane Mahnke didn't say a word. [After reading his affidavit and further questioning] I said Nancy Meyers had something to do with starting the union. C. Respondent Learns of the Union Activity: Its Reaction Thereto It is to be noted, preliminarily, that a 2 1/2 year employee of Respondent, Tonya Tondu, replaced one Nancy Meyer as manager of the Silver Spring club on Monday, July 2. Just prior to this Tondu had been manager of Respondent's Southgate club in Milwaukee. Zurich testified that this action was taken because he had received complaints from prospective customers of the Silver Spring club that Meyer had made certain misrepre- sentations to them; also that she permitted smoking in the club, which was against the rule, and further because the premises were not kept clean under her management. In any event, and although it is alleged that Tondu participat- ed in the commission of certain unfair labor practices at issue herein, the General Counsel stated that he did not contend that the transfer of Tondu to the Silver Spring location was designed particularly for the purpose of thwarting the organizational campaign.' Zurich testified that he first learned of the union activity on Friday, June 29, at which time he received a telephone call at his home from Ester Degnar, a masseuse then employed at the Silver Spring facility. Zurich, who works out of his home but visits or calls each of the clubs everyday,2 testified that Degnar at this time informed him that "the girls had a meeting the previous evening about a union" and that "she [Degnar] felt that Nancy Meyer, Nancy Meyer's boyfriend and Kathy Jachowicz seemed to be the people behind it." Tonya Tondu also conceded learning of union activity at the Silver Spring location shortly before she was transferred there as manager. She testified that she received this information when Nancy Meyer telephoned her and "said something about the Union that they were going to get it in or something." After learning of the union activity, Zurich visited the Silver Spring club in the afternoon of Monday, July 2. Upon arrival he summoned instructresses Diane Mahnke and Joan Klappa into one of the front offices. Concerning this incident, Zurich testified as follows: I The record does not disclose what subsequently happened to Meyer. Thus, after stating his reasons for replacing her as manager at Silver Spring, Zurich testified, "We felt it would be something that would be able to be cleaned up if we were to send her to another club." There is no indication whether Meyer was in fact transferred or whether she was terminated. 2 Zurich has his mail sent to the Southgate location, which is the largest Concerning the above conversation, Diane Mahnke testified as follows: ... we sat down and he [Zurich] said Nancy had quit and do you know anything about her starting a union ...and I said that she had nothing to do with starting a union, that a bunch of us girls got together and we signed a bunch of cards. And Joan said she didn't sign a card because her husband didn't want her to sign anything. And then Dick said they tried to start a union in Chicago and they fired all the girls and hired a new crew from Detroit. And then he gave us our checks and we went back to our jobs. Zurich denied telling Mahnke and Klappa that the employees at the Chicago operation were fired, and were replaced by a new crew from Detroit because they tried to start a union. He testified that they could have been present on another occasion when he "might have made a statement at the front desk . . . that in the event there was a strike in Milwaukee, we would obviously have to call in people from Chicago and Detroit to run the clubs." Mahnke impressed me as an honest witness and I credit her entire testimony as quoted above. Moreover, as hereinafter noted, Zurich made a similar statement concerning the discharge of Chicago employees because of their union activities to Katherine Jachowicz.3 D. The Discharge of Karen Wilson Hired on May 22, 1973, Karen (Kim) Wilson was employed as an instructress at the Silver Spring facility until she was discharged on July 3, 1973. She was never criticized or warned in any respect and appears to have regarded as a satisfactory employee until the time of her termination. Wilson signed a union authorization card on June 28. On Sunday, July 1, Wilson asked employee Joan Klappa to sign a union card. Wilson, who at this time had a daytime job with another employer, told Klappa that she believed of Respondent's three facilities in Milwaukee. 3 As was well understood by the employees, Zurich's reference to the Chicago operation was in reference to Respondent's parent organization, the Health and Tennis Corporation of America. This company, which owns a majority of the stock in Respondent Fair Lady, Inc., owns and operates similar clubs in Chicago, Illinois. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in unions and that she held the position of union steward on her daytime job. Significantly, Ester Degnar, the masseuse who admittedly reported union activity to Zurich, was present in the office with Wilson and Klappa while this conversation was taking place, and in fact participated in it. It will be recalled that Tonya Tondu reported to the Silver Spring club for the first time on Monday, July 2, at which time she took over as manager. Wilson, who worked the evening hours from 5 p.m. to 10 p.m., testified that at the end of the evening as she was putting on her coat Tondu called her to the office. She followed Tondu to the office and stood in the doorway as Tondu began to talk. Seated inside the office at this time was Ellen Harder, the assistant manager of the Southgate club who had come over to Silver Spring that evening. Wilson testified that the following thereupon ensued: Tonya asked me what I knew and what my involve- ment in the union was . So I told her I didn't know too much about it. And she asked me what about the cards going around. I told her I hadn't signed one. But I had. And she said, well, Dick [Zurich ] had told her that Kathy, Nancy and I had started it, and that she heard I was a union steward. And I told her, no, it was my other job . . . and she said Dick has instructed her to fire me. So I said, okay. And I didn't say no more because there wasn't anything to say. But I went out to the other room and I took a timecard because I had worked Monday and Tuesday and I was going to fill it out. But I decided what's the difference, and I tore it up and threw it in the waste basket, then left. The explanation given by Respondent witnesses for Wilson's discharge is utterly confusing, is replete with inconsistencies, and came into the record on a disjointed and fragmentary basis. As best I can piece it together, Tondu in general terms related that Wilson "resented" her as a manager and that Wilson's appearance did not render her suitable for the job. As to the latter, Tondu said that Wilson did not keep herself properly groomed and that she had tattoos on her legs. At no time, however, did she ever speak to Wilson about these alleged deficiencies .4 Tondu further testified that on the evening of July 3 a customer complained that Wilson was not helping her, that she was "just standing there." Although Tondu indicated that the customer reported this directly to her, Ellen Harder testified that it was she who received a complaint about Wilson and that about 8 p.m. she reported to Tondu "what the member had mentioned to me about the instructresses on the floor and that she hadn't been measurea in, like, 3 4 At one point, in answer to general questions and without being specific, Tondu testified that she told all of the girls that they would be "better instructresses if they improved their attitude along with their appearance . ." However, not only do I question the reliability of this generalized testimony, but I credit the testimony of Wilson that she had never been spoken to by Tondu concerning any of the above alleged deficiencies. 5 Tondu testified, "I explained to her that Mr Zurich had okayed it" [the discharge ]. 6 Still elsewhere in her testimony, Tondu stated that at this point, "I asked the girls that were standing in the office what was this going on about the Union " months and that the classes weren't like, you know, they used to be." In any event, Tondu testified that evening she called Zurich and told him she had received a complaint from a member, whereupon Zunch told her that she was manager and that she should do whatever she felt was right. She testified that she then told Zurich that she wanted to fire Wilson and that "he said okay." Significant- ly, even Zurich did not corroborate this testimony. To the contrary, Zurich testified that he spoke to Tondu later that evening when he asked for the club breakdown and it was at this time that Tondu advised him "that she had fired Wilson and she mentioned the fact that she either wasn't doing the job or that they had taken off hours and were paid for them." Changing her testimony several times as to who was present when she terminated Wilson, Tondu finally stated that Harder was the only other person there at the time. From the confusing testimony which Tondu gave concern- ing the conversation which then took place, it appears that, according to her version, she simply told Wilson that she was discharging her because Zurich had instructed that she take this action.5 When queried as to the nature of Wilson's response, Tondu testified, "She didn't even stand around to ask, you know, she just walked out." Elsewhere, however, Tondu testified that Wilson asked if she was being discharged, "for the union or something like that," whereupon, she said, she "turned around to, I think, Ellen was sitting there and I said what is this stuff going on about the Union."6 Tondu denied asking Wilson if she had signed a union card or if she was a union steward. Turning to my conclusions, on the basis of the demeanor and forthrightness alone, I would credit the testimony of Wilson over Tondu concerning the discharge conversation. The inconsistencies and confusing testimony of Respon- dent witnesses concerning the circumstances of Wilson's discharge serve but to buttress this conclusion.? Moreover, I think it clear that the statements of Tondu during this conversation, as reflected in Wilson's credited testimony, was tantamount to an admission by her that Wilson was being discharged because of her union activities.8 Thus, other than to tell Wilson that she had been instructed by Zunch to discharge her, Tondu gave Wilson no reason for this abrupt termination but instead proceeded to ask her about her involvement in the union activity. Apart from all the foregoing, I am convinced that the reasons advanced by Respondent at the hearing for taking this precipitant action were afterthoughts and of a pretextual nature. Having worked with Wilson only 1 day prior to discharg- ing her, Tondu hardly could have formed any reasonable opinion as to her qualifications in so short a time. This is particularly true since Wilson theretofore had never been r Harder testified that it was Wilson who brought up the Union by asking if she was being discharged because she was involved in the Union Harder also testified that Tondu did not ask Wilson if she signed a card or if she were a union steward However, Harder, who testified that the conversation was "very short" did not mention anything about Tondu telling Wilson that Zurich had okayed or directed the discharge, as did Tondu. Harder did not impress me as a reliable or trustworthy witness I do not credit her testimony concerning this conversation. 8 Indeed, Wilson's actions immediately following the discharge conver- sation (see the heretofore quoted testimony of Wilson) demonstrate that this also was so understood by Wilson. FAIR LADY, INC. 193 criticized and to all purposes had been regarded as a satisfactory employee. I also regard as highly unreliable the confused and contradictory testimony of Tondu and Harder concerning any customer complaint against Wil- son. Even assuming that a customer did make some complaint, this was not mentioned to Wilson and I am persuaded that any such incident was highly exaggerated and was advanced as a pretext for her termination. In view of all the foregoing, and no less in the light of Respondent's demonstrated hostility against the Union (as related elsewhere herein), I conclude and find that Respondent discharged Karen Wilson in violation of Section 8(a)(3) and (1) of the Act.9 brought in new girls from Detroit. He said that they were going to be charging Nancy with embezzlement ... so I asked him what he meant by that, and he wouldn't go into any details and wouldn't explain. That made me rather angry. He asked if I had signed a union card and I told him I did. He said why didn't you come to me first and I didn''t answer him. Ie asked me if I had anything to say, and I really didn't have anything that I wanted to say. And he said we are going to get to the bottom of this and we have the means to do it .... He asked if I had been at the Mayfair [club] on the Friday before and I said, yes, but that's all I said, I didn't go into any more details. E. The Discharges of Diane Mahnke, Vicki Lore, and Dawn Deutsch 1. Background to the terminations The heavy cleaning work at Respondent's facilities was usually performed by a full-time maid. However, the maid employed at the Silver Spring club quit her job on June 12, 1973, and she had not been replaced by the time Tondu reported as manager on July 2. The record contains ample evidence, as indeed the employees who testified conceded, that due to the absence of a maid, the cleanliness and hygienic conditions of this facility had deteriorated, particularly the shower, whirlpool, steam and sauna rooms. When Tondu arrived, she immediately assigned various cleaning duties to the alleged discriminatees herein, as well as to some other employees. For example, Diane Malinke and Vicki Lore were assigned to scrub the steamroom, which they did on hands and knees for a good part of the day. Again, on July 5, Lore, Deutsch, and another employee were assigned by Tondu to scrub the floor. Although the duties of the instructresses as Silver Spring had previously included the performance of light cleaning work, such as light vacuuming, straightening up, and occasionally wet mopping the spa area, they never before had performed the heavy type cleaning work such as that assigned to them by Tondu during her first week at the club. Also, during this week these employees spent substantially more time in cleaning work than they had in the past. Recalling that Tondu first reported to Silver Spring on Monday, July 2, and that Wilson was terminated on July 3, it is pointed out that the next day, July 4, was a holiday. The evidence reflects that on July 5 Respondent engaged in further conduct with respect to the employees' union activity. Thus, about 7 p.m. on that date Zurich came to the club and called Katherine Jachowicz into one of the front offices. Jachowicz related that the following then ensued: He mentioned they had tried to organize a union in Chicago, and that they had fired all the girls and had 9 1 do not deem it necessary to detail the rather voluminous testimony concerning the matter of tattoos. Suffice it to note that not only did Tondu at one point disavow this as a reason for Wilson's termination, but at the hearing Wilson clearly demonstrated that a tattoo on her leg was not visible while wearing her typical work clothing. Wilson testified that Tondu may have observed the tattoo while present during a meeting at Southgate when she did not wear her work clothing. In addition, Jachowicz testified that during the conversa- tion Zurich stated that "he knew everything about the Union and he knew that Nancy was at the bottom of it." Concerning this conversation, Zurich testified that he spoke to Jachowicz because he wanted to find out what had happened the previous Friday when she visited the Mayfair club.10 He said that upon his inquiry she replied that she had been to see a doctor that day because she had pulled a muscle, but denied having been at the Mayfair club. He testified that he then accused her of being a liar and that he told her "you were at the Mayfair club and it was about this union thing." He said that he then asked her "what grievance do you have about the club and what do you feel is wrong . . . what's this thing about the Union?" He testified that Jachowicz responded that she would rather not talk about it at which point he spoke to her about some financial reports that were missing when Meyer left. Denying that at this time he spoke to her about "the replacement of strikers in Chicago or Milwaukee," Zurich testified "the only other time she could have heard anything like that, where I said people from Chicago or Detroit would replace the people in Milwaukee, if they were on strike, was at the front desk when I made that comment in front of several people." From my observation of the witnesses, I am persuaded that Jachowicz was telling the truth. Bearing in mind the other inconsistencies and contradictions as between Respondent witnesses, and also recalling that Zurich held a conversation of similar content with employees Malinke and Klappa on July 2, I credit the testimony of Jachowicz concerning the July 5 conversa- tion, particularly insofar as it relates to the discussion of the Union.11 Within the first day or two of her arrival at Silver Spring, Tondu called instructress Vicki Lore into the office where, according to Lore, she began by stating that she was going to be the new manager and there would be "a lot of changes." Tondu added, she said, that she knew the "real reason" why the managers had been switched, but did not elaborate further. She also told Lore that she could become a manager if she wished and that there would be much more money involved. Lore testified that Tondu then to It will be recalled that Jachowicz visited the other clubs on that date to solicit union cards. 11 Although I later herein find that Jachowicz was a supervisor within the meaning of the Act, her above credited testimony is relevant and admissable with respect to the element of union animus . By the same token, however, I do not find Zurich's statements to Jachowicz to be violative of Section 8(axl) of the Act. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked her "what all the Union business was about." When she did not respond, Tondu asked if she had signed a card. Lore this time replied in the affirmative. Lore testified that Tondu thereupon told her "to stay away from Kim and Kathy because they were instigators and they were going to be fired." Although Tondu recalled having a conversation with Lore wherein she told Lore that she could make more money, Tondu denied that the Union was brought up during the discussion. Lore impressed me as an intelligent and honest witness. I credit her testimony concerning this conversation. 12 2. The employees are discharged on July 9, 1973 In early afternoon of Monday, July 9, Tondu summoned instructresses Mahnke, Lore, Deutsch, and Ceci McTeague to the lobby area.13 Valerie Nigbor, who came from the Southgate club about the same time as Tondu, was also present. Tondu began by stating that she was manager of the club and that Nigbor would be her assistant. Mahnke testified that Tondu then stated that none of them were cut out to be instructresses and that they had a poor attitude. Mahnke said that she (Mahnke) thereupon stated that it was not the job of instructresses to perform maids duties. She said that Tondu then "told me personally that I had a very poor attitude" and that "since I was such a good friend of Nancy's [Meyer] I might just as well walk right out with her." Mahnke testifed that at this point she told Tondu that she considered herself fired, whereupon Tondu nodded her head. She thereupon departed. Vicki Lore, who in essence corroborated Mahnke up to this point, testified that Tondu next asked Dawn Deutsch what she wanted to do. Deutsch replied that "she would like to stay because she needed the money." Lore testified that when Tondu asked her the same question, she [Lore] replied that she also would like to stay with the club. Lore testified that Tondu thereupon stated, "Well, as far as I am concerned, you can both leave with Diane." Lore said she asked if this meant they were fired and that Tondu stated "yes." Lore testified that when she then asked for a reason, Tondu replied that "she didn't like our attitude and we hadn't done our fob." 14 I am impelled to state that Tondu's testimony concerning the discharge of the three girls on July 9 was just as confused and inconsistent as was her testimony concerning the discharge of Wilson. When first called as an adverse witness by the General Counsel, Tondu testified that about a day or two after reporting to the club as manager she spoke to all the instructresses about the necessity of keeping up their personal appearances as well as keeping up the club. In highly generalized testimony she °1so made critical reference to the "type of attitude" displayed by these employees. Although when later called as a witness by Respondent 12 The date of July 5 was mentioned by the General Counsel during a leading question when he asked Lore about his conversation Since Wilson was discharged on July 3, it is hardly likely that Tondu would tell Lore on July 5 that Wilson would be fired I therefore think it likely that this conversation occurred on either July 2 or earlier on July 3 (Lore worked from 10 a.m to 6 p in on July 3 ) In any event, and whatever the mistake as to this aspect of the testimmy, it was my impression that Lore testified truthfully concerning the substance of this conversation 11 Mahnke was hired on February 21, 1972, Lore on May 24, 1973, and she testified that she also spoke to the girls about these matters individually, and that she tried to get them "motivated," she was unable to relate the specifics of any such conversations. In any event, Tondu testified that on July 9 she called the four girls to the lobby to speak to them because earlier that day she had received a call from Ellen Harder at the Southgate club (who had returned to Southgate at this time) advising her "how the girls were calling there and complaining." 15 She began, she said, by telling them "that there was going to be some changes made, and either they could go with me or they could go with Nancy Meyer." She said she then spoke to them about the likelihood of their making more money if they would put forth greater effort in "getting the club going." She testified that thereupon "I think all three of them told me that they didn't care because as far as making more money, that they were all going back to school." She responded, she said, by saying she would not have hired them if she had known they were all going back to school in a couple of months. Testifying that at this point the girls "gave me the same kind of attitude," she said she thereupon told them, "Well, you can all go home then." Tondu acknowl- edged that by this it was understood that they were thereby being discharged. Tondu asserted that she had not planned the discharges of the three girls in advance, but that her action occurred spontaneously. Thus, when asked if she had decided to discharge them before she called them together in the lobby, Tondu answered, "No, because Dick told me not to fire them, that I should work with them." Elsewhere in her testimony, however, Tondu related still other reasons for the terminations, these allegedly having occurred or having existed prior to February 9. For example, at one point she gave as a reason "the girls didn't do their work. Everytime I walked into the club, they were standing around the back desk in the exercise room talking." At another point she testified that one of the reasons for discharging Mahnke was that Mahnke did not answer the telephone properly. I am persuaded that none of the foregoing varied and inconsistent reasons given by Tondu was the real basis for Respondent's discharge of Mahnke, Lore, and Deutsch. The fact is that until the advent of the union activity there is no evidence whatsoever to indicate that Respondent regarded these employees as anything but satisfactory. Even Tondu, notwithstanding her generalized testimony concerning the alleged deficiencies and poor attitude of these employees, was entirely vague in attempting to recall any specific instances where she talked to these employees about any such alleged deficiencies prior to their being discharged. On the contrary, just a few days before Tondu came to the Silver Spring club, Zurich called Diane Deutsch on May 31, 1973. 14 At one point during the conversation, but prior to the discharges, Ceci McTeague, in accordance with Tondu's instructions, went back to take care of some customers She was not terminated 15 When subsequently called, however, Tondu said she called the girls together at this time because she received a call from Mary Rose Kraft at Southgate who told her that Vicki had called and complained about the cleaning work. FAIR LADY, INC. 195 Mahnke to compliment her on her good work performance and asked her to keep it up; 16 and as to Lore, Tondu conceded that this employee "had the ability." Upon the entire record in the case, including Respon- dent's demonstrated union animus, as well as the failure of its defenses to stand up under scrutiny, I am convinced and find that Respondent terminated Mahnke, Lore, and Deutsch because of their known or suspected union activity 17 and also to discourage union activity among the remaining employees at the Silver Spring and other Milwaukee clubs. I find that by such conduct Respondent violated Section 8(a)(1) and (3) of the Act. F. The Supervisory Status of Katherine Jachowicz and her Termination Jachowicz worked as an instructress and/or assistant manager for the Respondent on three different occasions. The first such occasion was during the first 6 months of 1970 and the second was from February to August 1972. Her third and latest employment began in latter March 1973, at which time she was hired as an. instructress. She was promoted to the position of assistant manager of the Silver Spring club approximately 2 months later and remained in this position until the termination of her employment on or about July 10, 1973. I find merit to Respondent's position that as assistant manager Jachowicz was a supervisor within the meaning of the Act. Jachowicz testified that in about May 1973, Nancy Meyer, then the manager, asked her several times if she would like the job of assistant manager.18 Jachowicz said that she finally told Meyer that she would accept the offer because she "could use the money." Meyer thereupon broached Zurich, whereupon Zurich gave his approval and notified Jachowicz of her promotion. At this time her wages were raised from $2 per hour to a flat salary of $92 per week. Jachowicz testified that whereas she had chosen not to engage in sales of club memberships as an instructress, this became one of her regular duties when she was made assistant manager . She testified also that upon becoming manager she gave fewer classes and spent more time at the front desk. Although it does not appear that Jachowicz was given the express authority to hire or fire,19 it is undisputed that the manager was not present on 2 days of each week, usually Fridays and Saturdays, and that on these days Jachowicz was "in charge" of the club and of the four or five other instructresses who would be present at work. It is 16 The credited testimony of Mahnke and also the testimony of Zurich, who conceded having told Mahnke that she was a good instructress and that she was good at handling people. Moreover , Tondu admitted telling Mahnke that she had the "potential for management material." In addition, I should note that the credible evidence reflects that Mahnke and Lore in fact did not tell Tondu that they planned to return to school. 17 Thus, these employees participated in the union activity on June 28 and signed union cards on June 29. It will be recalled that Zurich conceded having received a call from Ester Degnar on June 29 telling him of the union activity. Tondu also was told of the union activity by Meyer. Furthermore, when questioned by Tondu on July 2 or 3, Lore admitted to Tondu that she had signed a union card. Similarly, on July 2, Mahnke told Zurich that "a bunch of us girls got together and we signed union cards." In addition, Zurich told Jachowicz on July 5 that he "knew everything about the Union." In view of all the foregoing, and although Deutsch did not testify, I am persuaded that the record amply supports the inference that undisputed, as Jachowicz conceded, that she held and exercised the authority to grant time off to the other employees on these occasions. Upon the foregoing, and particularly in view of Jachow- icz being the sole person in charge of the club for 2 days each week, in recognition of which she was given a higher salary and held the title of assistant manager, I conclude and find that at the times material hereto Jachowicz was a supervisor within the meaning of the Act.20 Accordingly, it is recommended that the allegation in the complaint that Respondent discharged her in violation of Section 8(a)(3) of the Act be dismissed. Furthermore, assuming arguendo that Jachowicz was not a supervisor within the meaning of the Act, I still would find the preponderance of the evidence insufficient to establish that she was unlawfully discharged by the Respondent. Without detailing all of this evidence, suffice it to note that Jachowicz did not report to work on Monday, July 9, because of hearsay from other employees over the week that she was being replaced. I would find that Jachowicz did not have the right to rely on this hearsay as a basis for not reporting to work. Furthermore, I would find that in any event she did not take proper steps, insofar as Respondent was concerned, to ascertain the truth of the reports she received which she received from these other employees over the weekend. There is nothing in the record to establish that Respondent, by any manager or supervisor, took any overt step to terminate this employee?' Accordingly, t would find these as additional reasons for dismissing the complaint as to Jachowicz. G. Interference, Restraint, and Coercion The complaint alleges that on and after July 2, 1973, Respondent violated Section 8(a)(1) an the Act by assigning its employees more arduous work tasks because of their union activities. The General Counsel has made it clear that by this he refers to the heretofore discussed heavy type cleaning work which Tondu assigned to the instructresses upon reporting to Silver Spring as manager. I find the evidence insufficient to support this allegation. The fact is, as the employees who testified conceded, that the physical condition of the Silver Spring facility had deteriorated and was badly in need of cleaning. It appears that this was largely due to the resignation of a maid, an event which occurred prior to any union activity. Whatever the side effects, and notwithstanding the participation of Tondu in various of the unfair labor practices found Respondent also was aware that Deutsch was among the prounion adherents. 18 While the testimony is somewhat vague, it appears that a previous assistant manager had left and this position was open at the time. 19 However, the record reflects that the assistant manager of another of Respondent's clubs held and exercised the authority to discharge. 20 It is well settled that an employee need not be invested with each of the supervisory indicia set forth in Section 2(l 1) of the Act. The possession of any one of the authorities specified therein is sufficient to place an employer in the supervisor class. Ohio Power Co. v. N.L.R.B., 176 F.2d 385, 387 (C.A. 6), cert. denied 338 U.S. 899. John H. Scheidel, Inc., 193 NLRB 489. 21 Jachowicz did not return to the Silver Spring club until July 16, at which time she picked up her paycheck and had an ambiguous conversation with Tondu. 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD herein, I am persuaded that Tondu was seriously con- cerned about taking appropriate steps to restore the club to acceptable physical standards. Indeed, the record reflects that during the period when the other employees were assigned to cleaning work, Tondu herself physically participated in these activities. Under the circumstances that existed, I believe she would have followed the same procedure absent any union activity. Accordingly, it is recommended that this allegation be dismissed. On the basis of findings heretofore made concerning various discussions between employees and representatives of management, I find that Respondent violated Section 8(a)(1) of the Act by the following acts and conduct: (1) Tondu's interrogation of Vicki Lore on July 2 or 3 as to whether she signed a card and her statement to Lore at that time that she should not associate with Kim and Kathy (Wilson and Jachowicz) because they were the instigators; (2) Zurich's interrogation of Malinke and Klappa on July 2 concerning union activity; (3) Zurich's statement to Malinke and Klappa on the same date that employees in the Chicago clubs had been fired and replaced by Detroit employees because they tried to start a union. Clearly, the inference here was that the same action would be taken against these employees if they engaged in the same type of activity; and (4) Tondu's interrogation of Wilson concern- ing her union activity and the union activity of other employees at the time of her (Wilson's) discharge on July 2. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged employees Karen Wilson, Dawn Deutsch, Vicki Lore, and Diane Malinke in violation of Section 8(a)(1) and (3) of the Act, it is recommended that Respondent make them whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of a sum of money equal to the amount they normally would have earned from the date of their discriminatory discharges until the date of the offer of reinstatement 22 less net earnings during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289, 22 The record reflects that Respondent has offered full reinstatement to each of the above-named employees without prejudice to their seniority or other rights and privileges . The exact date or dates of these offers are to be determined at the compliance stage of this proceeding. 23 In the event no exceptions are filed as provided by Sec 102.46 of the including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. In view of the serious nature of the unfair labor practices herein found, I shall also recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By unlawfully discharging Karen Wilson on July 3, 1973, and by unlawfully discharging Vicki Lore, Diane Malinke, and Dawn Deutsch on July 9, 1973, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent did not unlawfully terminate Katherine Jachowicz on July 14, 1973, as alleged in the complaint. Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case and pursuant to Section 10(c) of the Act, I hereby make the following: ORDER 23 Respondent Fair Lady, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Service & Hospital Employees, International Union Local 150, AFL-CIO, or in any other labor organization, by unlawfully discharging any of its employees or discriminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment in violation of Section 8(a)(3) of the Act. (b) Unlawfully threatening employees with discharge because of their union activities. (c) Coercively interrogating employees concerning their union activities, sympathies, or membership. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: 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. FAIR LADY, INC. (a) Make whole Karen Wilson, Vicki Lore, Diane Malinke, and Dawn Deutsch for any loss of pay they may have suffered by reason of the discrimination against them, in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personal records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Silver Spring Club in Milwaukee, Wisconsin, copies of the attached notice marked "Appen- dix."24 Copies of said notice, on forms provided by the 24 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant 197 Regional Director for Region 30, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive 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. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order what steps the Respondent has taken to comply herewith. It is further recommended that the complaint be dismissed insofar as it alleges violations of the Act not found herein. to a Judgement of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."