Clock Restaurant No. Seventeen

CLOCK RESTAURANT NO. SEVENTEEN 423 Sam and Margaret Foods, Inc., d/b/a Clock Restau- rant No. Seventeen and Local 705, Hotel, Motel and Restaurant Employees Union, AFL-CIO. Cases 7- CA-10641 (1-2) July 15, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS Act.2 At the close of the hearing the General Counsel amended the complaint to allege certain independent viola- tions of Section 8(a)(1) which he maintained had been es- tablished by the evidence. Pursuant to due notice , a hearing on the complaint was held before me in Detroit, Michigan, on January 3, 4, and 10, 1974. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argu- ment and Respondent filed a brief. Upon the entire record , observation of the witnesses and consideration of the brief, I make the following: On March 21, 1974, Administrative Law Judge Jo- sephine H. Klein issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Sam and Margaret Foods, Inc., d/b/a Clock Restaurant No. Seventeen, Detroit, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge- Upon charges filed against Sam and Margaret Foods, Inc., d/b/a Clock Restaurant No. Seventeen (Respondent), by Local 705, Hotel, Motel and Restaurant Employees Union, AFL- CIO (the Union), on October 1 and 3, 1973,1 a complaint was issued on November 15 alleging that on September 27 two employees (Mary Ballew and Judi Pranion) were dis- charged because of their union activities and that on Sep- tember 30 and October 1 Respondent refused to reinstate four employees (Kathy Braun, Joy Brown, Barbara A. Har- dy, and M. Kay Williams) who had engaged in a strike to protest the Ballew and Pranion discharges. This conduct was alleged to have violated Section 8(a)(1) and (3) of the 1 Except where otherwise indicated, all dates herein are in 1973 FINDINGS OF FACT I PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: A. Respondent, a Michigan corporation, is engaged in the retail sale of food and beverages for on-premise con- sumption at three locations in the Detroit metropolitan area . During the fiscal year ending October 31, 1973, Re- spondent derived gross revenues in excess of $500,000 at its three locations. During the same period Respondent pur- chased goods valued at approximately $5,000 from a Michi- gan supplier who received these commodities directly from outside the State of Michigan. Respondent is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 11 THE UNFAIR LABOR PRACTICES A. Background and Chronology Respondent operates three Clock Restaurants, under franchise from Joseph Everson. The only restaurant in- volved in this case is that located in 13240 Gratiot, Detroit, Michigan. The restaurant is open 24 hours a day, 7 days a week, with three 8-hour shifts. On each shift there are approximately eight employees: two cooks, one busboy, one dishwasher, one cashier (and/or one hostess), and three waitresses. In addition, at least during the day shift (8 a.m. to 4 p.m.), there apparently is additional help during the luncheon rush. Peter Monteleone is Respondent's president and appar- ently sole stockholder. He normally spends several hours a day at the Gratiot Street restaurant Although his hours vary, he generally is at the restaurant from around 8 or 9 a.m. until after lunch. Primary responsibility for the day-to- day operation of the restaurant rests on Charles J. Williams, the manager, who spends long hours at the restaurant and, among his many duties, serves as a cook. Around the beginning of 1972 the Union conducted an organizing campaign at the restaurant. It filed a representa- 2 National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C Sec 151. et seq ) 212 NLRB No. 64 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion petition in January 1972. A hearing was held and on April 2, 1972, an election was held pursuant to the Regional Director's decision. The Union lost the election and the results thereof were certified on June 20, 1972 (Case 7- RC-10983). During the 1972 campaign, Pranion was an ardent union supporter and testified at the hearing on be- half of the Union. According to employee testimony in the present hearing, during the 1972 campaign, just before the hearing, manage- ment convened an employee meeting, conducted primarily by Joseph Everson, the restaurant's franchisor, and his son, Thomas. At that time, the employees apparently understood that if they rejected the Union they would receive wage increases and some form of insurance or health benefits Some months later wage increases were provided. Each em- ployee was to receive an increase of 10 cents per hour for each anniversary of his original hire. No insurance or health benefits were granted. Being dissatisfied, some of the employees continued to discuss unionization among themselves but took no direct action, simply "biding their time," until September 1973. So far as the record discloses, Ballew, Pranion, Hardy, and Kay Williams, four of the six subjects of this proceeding, were the only persons employed by Respondent both during the 1972 union campaign and in September 1973. Around September 10 Ballew, with Kathy Braun present, asked Kathy's brother, Michael, a former employee and current frequent patron of Respondent's restaurant, to tele- phone the Union about again trying to organize the employ- ees. Michael telephoned from one of two telephones at the restaurant. Shortly thereafter Kathy, on her own initiative, went to the office and told Manager Charles Williams of Michael's having telephoned the Union at Ballew's request. Kathy's motivation in taking this step was apparently to "protect" her brother from undue influence by Ballew, whom, over Kathy's disapproval, Michael was then "dat- ing." After receiving Kathy's information, Williams had Bal- lew report to the office. When asked who had had Michael call the Union, Ballew disclaimed any knowledge of what Williams was talking about. Ballew left the office and Kathy Braun was called back. Concerning her conversation with Williams, Ballew testified: "He used the tone of voice-he was mad-I want to know who had Michael tell the union. I was scared. I knew right away if I said I did, I would be fired." Kathy Braun testified that Williams told her that Ballew said Braun had asked Michael to call the Union and that Williams said he would "have to do something because they tried this once before and it didn't go through." Williams testified that when Kathy told him about the call to the Union, he paid little attention and told Kathy to give it no further thought. He said, further, that he consid- ered the matter to be of little importance and a "personal" matter between Ballew and Braun. Thus, Williams main- tained, he never passed this information on to Monteleone. For reasons set forth below, I discredit Williams' testimony. No communication from the Union resulted from Michael's telephone call. Accordingly, around September 20, Margaret Kay Williams (hereafter called Kay, as she is generally known), a waitress at the restaurant and Manager Williams' wife, telephoned the Union from the restaurant. When, after the conversation had gone on for some time, the union representative asked for Kay's address so that he could send her material, she turned the telephone over to Judi Pranion, who was with her at the time. Pranion gave the Union her address but not her name. She asked that the union material be sent to the "Occupant" at her address. There was no evidence that either Monteleone or Wil- liams was present when the telephone calls were made to the Union from the restaurant. However, there was credited evidence that on or about September 21 Monteleone asked Pranion her address. Pranion testified that Kathy Braun had reported seeing Monteleone unsuccessfully searching his card file for Ballew's and Pranion's addresses. Montel- eone testified that he had asked Pranion her address to assist him in visualizing another address in relationship to the restaurant. On September 25 Ballew, in the company of Pramon and Braun, again telephoned the Union from a restaurant tele- phone. Arrangements were made for a union meeting at a nearby restaurant at the conclusion of Respondent's first shift the next day. That union meeting was attended by about 10 employees, all of whom signed union authorization cards. Pranion and Braun took additional blank cards and Braun then returned to the restaurant to solicit signatures from employees on the afternoon (4 p.m to midnight) shift. She obtained five cards, while three employees refused to sign.3 The next day, September 27, Monteleone arrived at the restaurant apparently sometime around 9 a.m. Williams, having worked the midnight shift (midnight to 8 a.m.), left apparently around 8:30 a.m., but returned sometime around I I to 11:30 a.m for the luncheon rush period. William E. Bufalino, II, Esquire, Respondent's counsel, came to the restaurant apparently around noontime. Bufalino and Monteleone sat together in the restaurant's lounge. Wil- liams joined them for awhile. According to Monteleone, Williams asked to speak to Monteleone privately, so the two men went off to the office. According to Monteleone, Wil- liams first asked if it was all right for him to discharge Ballew Monteleone's testimony in this connection is dis- cussed in more detail below It is sufficient at this point to note that he testified that he said to Williams: "When she is through work, if you want to fire her go ahead." In Monteleone's words, Williams then asked "if he could carry it a little bit further" and discharge Pranion as well. Again, according to his testimony, Monteleone told Williams to use his own judgment. According to Monteleone, Williams, as manager, had full and final authority to hire and fire as he saw fit. In his testimony, Williams made no reference to his having gone to the office or having discussed the discharges with Monteleone. According to Monteleone, after talking with Williams in the office, he rejoined Bufalino in the lounge. Monteleone testified that Bufalino visited the restaurant on an average of from one to three times a week The employees testified to having seen Bufalino at the restaurant less frequently, placing the visits at from once every 3 months to possibly once a month. According to Monteleone, Bufalino had vis- 3 One employee executed a card but then destroyed it after telephonically consulting his father CLOCK RESTAURANT NO. SEVENTEEN ited the restaurant on September 27 merely to pass time before an appointment he had scheduled elsewhere. About 2 or 2:30 p.m., Bufalino left the restaurant, followed shortly by Monteleone. Monteleone testified that he did not during that visit mention to Bufalino the proposed discharges. Monteleone first testified that he did not tell Bufalmo about them until the next day. However, he later said that he informed Bufalino about them at dinner on Thursday. Monteleone was then asked, on cross-examination, how he could tell Bufalino about the discharges on Thursday eve- ning if, as he had testified, he had not been in communica- tion with Williams after leaving the restaurant. Monteleone replied that Williams had said "he was going to fire them at four o'clock " Williams left the restaurant after the lunch period, arriv- ing home around 2 p.m. As it was her day off, Kay was at home. She testified that around 2:30 or 3 p.m. her husband received a telephone call from Bufalino. Kay could not recall Bufalino's having telephoned her home any time since the 1972 union campaign. Kay testified that her husband said to her: "i saved you again." Also, he said something about "those girls." He did not elaborate on either remark. Williams testified that Bufalino's call came about 5 or 5:30 p.m. Although Bufalmo, representing Respondent at the hearing, did not take the witness stand, his cross-exami- nation of Kay was apparently directed toward supporting Williams' view that the call was made after 5 p.m. Bufalino's attempt, however, was based on a version of the evidence inconsistent with Monteleone's and Williams' testimony. The following is an excerpt from the cross-examination of Kay: Q. (By Mr. Bufalino) I believe you heard testimony that Mr. Williams, your husband, Mr. Monteleone and myself were in a meeting on Thursday afternoon at the restaurant? A. Yes. Q. Okay. Now, there has been some testimony that the meetings lasted until three o'clock or three thirty. Now, let's try to pin point the time when I called. I was in the meeting with your husband at those times. I couldn't have been calling at home and talking to him .. Could it have been after five o'clock? A. No. As noted before, Monteleone testified that both he and Bufalino had left the restaurant around 2 or 2:30. Williams later testified that he had left around 2. Further, Montel- cone and Williams both clearly indicated that there had been no "meeting" or "meetings" of the three men. Williams indicated only that he had drunk a cup of coffee with them. Monteleone did not even mention Williams' having stayed that long. Monteleone testified: "Mr. Williams asked me if he could talk to me. He was going to go home. . . . So I excused myself and I went into the office and talked to Mr. Williams." Monteleone then returned to the lounge where he rejoined Bufalmo. Bufalino left about 10 or 15 minutes later. Williams and Monteleone testified that Bufalino had 425 called in an attempt to reach Monteleone to see whether Mr. and Mrs. Monteleone were going to keep a previously made appointment to dine out with Mr. and Mrs. Bufalino. Bufal- mo requested and Williams provided Monteleone's home telephone number. No explanation was volunteered for Bufalino's doubt so soon after the two men had spent con- siderable time together in allegedly social conversation. Nor does the testimony suggest any reason for Bufalino's having readier access to Williams' home telephone number than to Monteleone's. On all the evidence, I find that Bufalmo tele- phoned Williams at his home between 2:30 and 3 p.m. Williams returned to the restaurant about 3:45 p.m. for the sole purpose of discharging Ballew and Pranion. Stating that it was difficult for him to do so, he told Ballew that he was discharging her for having "defied" him by serving a patron who had been barred from service at the restaurant. William testified that he also told her there were other rea- sons but he did not specify any. Williams then told Pranion that she was being discharged for "too many telephone calls." When Pranion expressed some skepticism as to the real reason for the discharge, Williams insisted that there was no other reason Williams informed the discharged em- ployees that they would not be welcome as patrons in the future because "there was bound to be hard feelings by the other employees." (The evidence concerning the discharges and the reason therefor is discussed in detail below.) Pramon and Ballew informed the Union of their dis- charges and arranged to go to the union hall the next morn- ing. Also, on September 27, after the discharges, some of the other employees talked among themselves of walking out to protest the two discharges. On the morning of Friday, September 28, Ballew and Pranion visited the umon hall and then, accompanied by Business Representative Daniel M. Reedy and Nove Tocco, they went to the Board office to file a charge. The group then went to the restaurant. According to the employees and the union representative, as they entered, Monteleone greeted them by saying something to the effect that he was the person they wanted to see and that he had been expect- ing them. Despite Monteleone's denial, I credit this testimo- ny. The business representatives identified themselves and Monteleone led the group to the lounge. The business representatives accused Monteleone of hav- ing discharged the two employees for union activities and demanded that they be reinstated. Monteleone said that in 1972 he had not fired these employees for their union activi- ties and he similarly had not done so now. He flatly refused to consider reinstating them. When the business representa- tives asked why the girls had been discharged, Monteleone refused to state any reasons, maintaining, in effect, that it was none of the union representatives' business. He did, however, say something to the effect that the two employees were not good for his business. When Monteleone then indicated that it was not he, but Williams, who had dis- charged the employees, the representatives asked to speak to Williams, who was then summoned. Like Monteleone, Williams maintained that he was not required to give any information to the union representatives and refused to state any reasons for the discharges. The group then left the restaurant. Ballew and Pranion had previously told Reedy and Tocco 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that some of the other employees had talked about walking out in protest and wanted to know if the Union would support them Reedy and Tocco said they could not commit the Union but would consult Myra Wolfgang, the Union's chief executive officer. Upon leaving the restaurant, the business representatives attempted, unsuccessfully, to reach Wolfgang by telephone. They thereupon left to go to the union hall. At Just about this time, employees Kay Williams, Barbara Hardy, and Kathy Braun walked out. The girls went to a nearby restaurant and there decided to set up a picket line. After making picket signs, they began picketing Respondent's restaurant about 3:30 p.m. Meanwhile, Reedy and Tocco had spoken to Wolfgang, who authorized the Union to support the strike. The picketing employees were joined by the union representatives and some other employees, including Joy Brown, who worked on the af- ternoon shift, and, around 10 p.m., by three male employees working on the midnight shift. The picketing that began Friday afternoon continued until about 2 or 2:30 a.m. Sat- urday. The three midnight-shift employees, however, left the picket line and returned to work, apparently sometime during that same shift. Picketing was resumed about 8:30 or 9 a.m. Saturday and continued until 6:30 p.m., and then again from 8 a.m. to about 6 p.m. on Sunday. The six employees involved in the present case and the two union representatives were the only persons who picketed virtually all this time. They were joined, apparently for relatively short periods, by another employee or two and a few nonemployees. During all the picketing sessions Monteleone, Bufalino, and Thomas Ever- son were present observing the pickets and, apparently, making sure that they "kept moving." On Saturday night, Bufalino and Wolfgang met to discuss a possible strike settlement. About 6 p.m. on Sunday, Wolf- gang drove up to the restaurant and Bufalino came out and conferred with Wolfgang in her car. Wolfgang presented to Bufalino a letter from the Union reading: The Union and the striking employees hereby offer to end their strike and unconditionally return to work immediately. Bufalino wrote an acknowledgment of receipt on the letter and returned it to Wolfgang. The tentative "settlement" consisted of having the protest strikers return to work and leaving the Ballew and Pranion discharges to adjudication by the Board. Bufalino said that he could not bind his "principals" but could only make recommendations. He said he would talk to them and then communicate with Wolfgang. Wolfgang then called the picketing employees to her car and informed them of the "settlement." She assured them that she would find interim employment for Ballew and Pranion. Although the strikers expressed reluctance to re- turn to work without Ballew and Pranion, they agreed to accept Wolfgang's advice and instructions that they discon- tinue picketing and report to work the next day. About 10 or 10:30 p m. Sunday, Bufalino telephonically advised Wolfgang that he had been unable to persuade his principals to reinstate the strikers. Wolfgang's testimony on cross-examination by Bufalino was, in part: Q. In the conversation that I had with you Sunday evening, approximately ten or ten thirty on the 30th of September, could we go a little further into that conver- sation? Do you recall my suggestion to you that the people do report to work? A. No, I don't recall that at all. As a matter of fact I believe the thrust of your conversation was you were unable to prevail upon Mr. Monteleone and the others there to have these people returned to work. In fact, I recall pointing out to you that none of the girls had been replaced and there was an obligation in my opin- ion under the law for them to be reinstated. I think with a feeling of frustration you said I have been unable to convince my client to buy that. Respondent's workweek begins on Monday, with payday on Wednesday. The employees' work schedules vary from week to week. The usual practice is for Williams each Sun- day to post the schedules for the ensuing week. Although employees apparently ordinarily work the same shift, they cannot know their particular schedules, i.e., their days off, for any week unless they go to or telephone the restaurant, or are called, after the list is prepared on Sunday. Because of the strike in progress, when Williams posted the schedule on Sunday, September 30, he left the day-shift blank. Kathy Braun was regularly employed as a cashier on the day shift but occasionally worked as a waitress, mainly on the midnight shift It appears that for a day or two just before the strike she may have worked as a waitress. Joy Brown was a hostess-cashier on the afternoon shift. About 8:30 a.m. on Monday, October 1, Braun and Brown went to the restaurant. When they entered the kitchen area, they were met by Thomas Everson, who had them wait while he summoned Bufalino. Braun's uncontradicted testimony, which was later substantially corroborated by Brown, was: A. . . . Mr. Bufalino came into 'the kitchen and asked what we wanted. Q. Did either of you girls say anything? A I did. I said we were told to report to work in the morning. Q. Did he answer your question? A. He told us no, that we had quit. Q. Then what happened? A. We said thanks and left. Braun and Brown, accompanied by Reedy, then went to the Board office , where a charge was filed concerning Respondent's failure to reinstate these two employees .4 The other employees rapidly learned what had happened to Through inadvertence of a Board representative, the original charge, covering the Ballew and Pranion discharges, was not properly filed on Fro- day, September 28, when it was prepared Accordingly, on Monday, October 1. the Braun and Brown situation was added and one charge was filed referring to all four employees CLOCK RESTAURANT NO. SEVENTEEN 427 Brown and Braun. That afternoon, Barbara Hardy, a waitress on the day shift, went to the union hall. Reedy instructed her to report back to work. About 10 a.m. on Tuesday, October 2, Hardy, accompanied by Braun and Brown, went to the restaurant. She saw Tom Everson and told him she was there to see if she had a job. Everson shook his head negatively and she left, followed by Braun and Brown. That afternoon, Kay Williams, on the advice and urging of her husband, and Pranion went to the restaurant, accom- panied by Pranion and Hardy. She spoke to Monteleone. As Monteleone described the interview, Kay `just says `I guess this is just a formality and I take it that I am fired' and I says, `no, you quit and you didn't show up for work.' " Kay corroborated this version of the interview, testifying that, in view of what had befallen the others, she did not expect to work when she reported on Tuesday. She was not wearing her waitress' uniform. She also testified that she usually works on Mondays, but had not reported to work on Octo- ber 1. manner, the same as she always had done prior to this; but as far as any action taken against her, no. Kay Williams testified that when she told her husband about two job interviews she had scheduled with unionized restaurants, he said she "would not work in a union house." Kay's testimony continued: He said that if I took a job in a non-union house, how long do you think it would be before they found out I would organize. Pranion testified that on the evening of October 1 she visited the Williams' home. It was at this time that Pranion and Williams persuaded Kay to go through the "formality" of applying for her job back. Pranion testified as follows concerning part of the conversation during this visit: B. The Discharges of Ballew and Pranion 1. Union animus Respondent apparently contends that the record fails to establish any union animus on its part. To negative the existence of animus, Respondent emphasizes the fact that nobody was discharged because of union activities in con- nection with the 1972 campaign. The record, however, does contain evidence indicating strong antiunion feelings on the part of both Monteleone and Williams. At the outset of his direct examination, Monteleone was asked to tell about the Union's organizational drive in 1972. His reply was: Well, they tried to organize the restaurant and there was a lot of chaos. Some of the waitresses refused to wait on customers, harassed customers, just plain har- assment. Williams similarly associated union sympathies or activi- ties with improper employee performance. When asked how he knew that Pranion had been active on behalf of the Union in 1972, Williams replied: Judi came right out and told us she was, and her actions while at work were many times against compa- ny policy. She deliberately abused the situation, and at times wouldn't even wait on customers. I guess in her own mind she just felt that she was protected. Williams was then asked if Pranion had been disciplined at that time and he replied: At the time of the actual-during working hours, yes. She was asked to conduct herself in a business-like [Williams] said to me . . . you know Judi . . . I was going to fire you the last time because of the union and I said what do you mean. . . . He says because I really thought you were, you know, gung ho and I says well I wasn't that-really that bad about it like I was this time and he says well, Pete [Monteleone] talked me out of it. He didn't think you were that involved and I went oh, you know, it shocked me you know, finding some- thing like that out after you were fired. Although Williams testified that during Pranion's visit he read his newspaper and engaged in virtually no conversa- tion with the two women, I credit Pranion's testimony .5 2. Respondent's knowledge At the hearing Monteleone testified that he had no knowledge of any union activities at the restaurant in 1973 until the day after Ballew and Pranion were discharged. In a pretrial affidavit he had said: "I have known that Judi Pranion and Mary Ballew were active supporters of the union since the election of 1972." It is clear that Pranion was a leading union activist during the 1972 campaign. Howev- er, Ballew credibly testified that in the 1972 campaign she had not been active and she had not even signed a union authorization card. Thus Monteleone's professed "knowl- edge" of Ballew's activities must have been derived from subsequent events. As previously set forth, around September 10 Kathy Braun informed Williams that her brother had called the Union at Ballew's instigation. In view of Monteleone's opin- ion (as quoted above) that the earlier campaign had caused the employees to "harass" customers, it is most improbable 5 Pranion agreed that Williams had not been excessively communicative She testified- "[S]o then we tried to get Chuck to tell us a few things but he wouldn't say any more than he had to so finally he said to us, he says one of these days when all of this thing is all over with, he, says, I will take and I will tell you everything" 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that Williams would not have immediately alerted Montel- eone of the incipient resurgence of union activities in Sep- tember 1973. This is particularly true in light of Williams' testimony that his job as manager required that he observe the employees' conduct, including their union activities. Neither Williams nor Monteleone explained why Montel- eone was consulted about these discharges despite Williams' complete authority to hire and fire. In view of Pranion's and Ballew's known union activities, and the previous unsuc- cessful union campaign, it is inconceivable that, having de- cided to consult Monteleone, Williams would fail to mention the current resurgence of organizational activity. One in Williams' position might reasonably fear possible accusations of discrimination if he simultaneously dis- charged the two known ardent union activists. Caution would thus dictate the advisability of consulting Montel- eone even if the discharges were totally nondiscriminatory. The same conditions would probably dictate consulting Bu- falino, who had originally become Respondent's attorney in connection with the 1972 union campaign. Whether by de- sign or, as Respondent maintains, by accident, Bufalino was present when, according to Monteleone, Williams consulted Monteleone "privately." 6 When Pranion and Ballew visited the next morning, Monteleone expressed no surprise that they were accompanied by union representatives. When Williams was called in to join the meeting and was asked why the employees had been discharged, he did not defer to Monteleone but rather refused to reply. Under the cir- cumstances, the similarity of their statements clearly suggest prior consultation between Monteleone and Williams. Ac- cordingly, on all the evidence, I find that on September 27, the day Pranion and Ballew were discharged, Monteleone was aware of union activities among the employees. There is no direct evidence that either Williams or Mon- teleone knew specifically about the Union meeting on Sep- tember 26, at which several union authorization cards were signed. Nor is there any direct evidence that either Williams or Monteleone knew of Kathy Braun's solicitation of addi- tional cards at the restaurant on the evening of September 26. However, arrangements for the Union meeting had been made from a telephone in the restaurant. And Kay Williams credibly testified that her husband claimed to know "every move [the employees] were making." 7 In any event, it is undisputed that Williams knew that Ballew had initiated contact with the Union in September 1973. And it is equally undisputed that Williams was fully aware of Pranion's outspoken sympathy for the Union. Since Respondent maintained at the hearing that Williams, an admitted supervisor, was responsible for the discharges,8 Respondent's knowledge of the Union activities is clear. 6 Note may also be taken of Bufalino's suggestion at the hearing that he had been in "meetings" with Williams and Monteleone on the day in ques- tion. 7-On cross-examination she testified Q You mentioned that Mr Williams seemed to know everything that was going on What did you mean by that' A. Just seemed to know every move we made Well, I mean like casual conversation when we were discussing the union or we would-it always-it would always get back It would somehow get back to him She conceded that she had no "concrete" basis for believing that he had learned of employee conversations during the period before September 27 3. The specific discharges a. Mary Ballew As stated above, Williams told Ballew she was being dis- charged for having served a customer who had been barred from the restaurant. The "barred customer" incident has its amusing aspects. A man known to the employees only as John,9 was a regular patron of the restaurant and habitually ordered "medium" or "soft" boiled eggs. On Tuesday, Sep- tember 25, Pranion placed an order for "medium" boiled eggs. Williams, who was then cooking, asked if the eggs were to be cooked "medium-soft" or "medium-hard." Pranion said she did not know, since the customer, whom Williams identified as John, had simply asked for "medium" boiled eggs. Though apparently somewhat irritated, Williams boiled two eggs and then, as usual, broke them into a bowl. When Pranion delivered the food, John remonstrated be- cause the eggs were hard boiled. Pranion took them back to the kitchen. Obviously peeved, Williams boiled two more eggs and placed them, unbroken, on a plate. John, in turn, was irate at having the eggs served to him in that fashion. He thereupon went to the waitress' area, where he confront- ed Williams. According to Williams, "John came back with his eggs in the dish and said he was going to dump them on my head or something. . and I told the man at that time that he was barred from the restaurant, and we would not serve him again." Williams testified that during his verbal exchange with John, Pranton and Ballew were present, standing between the two men. Pranion, however, testified that when John confronted Williams, Pranton left, returning to the restaurant section, because she "just wanted to stay out of it [and] didn't want to be involved any more." John reemerged from the service area, exchanged some brief words with Pranion, finished drinking his coffee, picked up his check and left without paying. Then Pranion went back into the kitchen, where she asked Williams whether John was barred from further ser- vice. Pranton's testimony continued: "[A]s far as I can re- call, Chuck says I don't know, I don't kilow , just leave me alone." Pranion said that, as she recalls, Kay Williams and Ballew were "around" at the time, but she did not specifical- ly place them in the service area during the exchange be- tween John and Williams. Kay Williams testified that she served John, without inci- dent on Wednesday, September 28. She had .not been in- formed that John had been barred from the restaurant. When she later told her husband about having served John on Wednesday, he said she would not be fired because he, Williams, had not seen her do so. On Thursday John returned and again ordered boiled eggs. This time Ballew was the waitress. When she presented the order in the kitchen, Williams asked if John was the ordering customer. When Ballew answered in the affirma- 8 Although Monteleone testified that Williams decided that the employees be discharged, in pretrial affidavit Monteleone had said that they "were discharged by Chuck Williams on instructions from me" 9 In his pretrial affidavit, Monteleone identified the gentleman as Mr Locricchio, whose first name was unknown to Monteleone In testifying, Monteleone knew the first name but said he did not know the customer's last name CLOCK RESTAURANT NO. SEVENTEEN 429 tive, Williams went out into the restaurant and ordered John to leave. According to Ballew, Williams then informed her that John had been barred from the restaurant, which fact she maintained she had not known before. Williams, on the other hand, testified that he asked her why she had served John, knowing he was persona non grata and she replied that John had not done anything to her. On all the evidence, together with careful observation of the witnesses, I credit Ballew's testimony that when she took John's order she did not know that he had been barred from the restaurant, and she did not learn that fact until Williams told her after he had ordered John to leave. Sometime later that day, John returned to the restaurant and ordered a cup of coffee. Ballew told him that because he had been barred she was not permitted to serve him. John thereupon appar- ently went to the cashier's desk and asked to see Williams. Williams then went to the cashier's desk. John apologized for his past action and the two men shook hands. John thereupon resumed his seat at the counter and Ballew served him. John drank his coffee, paid his check and left.'° Kay Williams testified that on Friday, September 28, "Mr. Monteleone come up and says as of now he is barred ladies, do you hear me, as of now I am barring him." Al- though Monteleone did not use any name, it was under- stood that he was referring to John. Kay's testimony was uncontradicted. Monteleone never offered any explanation for his having "barred" John on Friday, after the reconcilia- tion between Williams and John. It is most significant, how- ever, that at the hearing Monteleone testified that John had "threatened" Williams and in his pretrial affidavit Montel- eone had said that John had "threatened to kill" Williams.' 1 As noted above, Williams testified only that John said only that "he was going to dump [the eggs] on [Williams'] head or something." Respondent maintains that Ballew's serving John after he was barred was simply "the last straw" in a long line of complaints against her. Monteleone testified that he had frequently spoken to Ballew and told her that if she did not "straighten up" she would be fired. He was unable to pro- vide much specific information but placed his most recent complaint about 2 or 3 weeks before the discharge. When asked to repeat the conversation, he said: "Well, it just seemed that Mary would just do as she pleased and she just wouldn't take care of her customers." In his pretrial affida- vit he had said: "Ballew also failed to take proper care of her customers. I wouldn't know the names of the customers. Maybe Williams can give more specific instances." Wil- liams, however, gave no specific instances. As a matter of fact, in testifying Williams made no reference to Ballew's relationship to customers. There was no evidence of any customer complaints. Monteleone testified that a week or two before the dis- charge he had reprimanded Ballew for serving jelly on plates about 6 inches in diameter instead of on smaller, 2 or 3 inch jelly trays. According to Monteleone, he told her that such action was wasteful; she replied that whatever the customers did not use would be returned to the original containers; and Monteleone said, in effect, that her state- ment was unrealistic, since the busboys would simply dis- card the excess jelly left on the plates. So far as appears, that was the end of the jelly matter; no discliphne was threatened or meted out. The evidence did establish that other employees had com- plained about Ballew's failure to do her fair share of the work and they had requested her discharge, most recently about 2 weeks before the discharge. At that time Williams had apparently indicated (though not promised) that Ballew would be discharged at some time in the future when a replacement had been secured. However, there was no claim or evidence that any steps had been taken to secure a replacement by the time of the discharge. b. Judi Pranion Williams gave "excessive telephone calls" as the reason for Pranion's discharge. The evidence establishes that it was a long-standing custom that in order to make or receive a telephone call an employee had to give Williams a package of cigarettes, purchased from the restaurant's vending ma- chine. The testimony, including Williams', was unanimous that he had always been liberal in permitting telephone calls. Monteleone confirmed that no employee had ever previously been discharged for making or receiving calls. The cigarette payments were deemed adequate deterrent to abuse of telephone privileges. Williams testified that on Tuesday, September 25, Pran- ion asked for and received permission to telephone a doctor to make an appointment for one of her children. Williams testified that he then watched her on two trips to the tele- phone, where she made five calls, consuming 20 minutes. He then spoke to her about the matter and she explained that she had to call the doctor and a druggist and had got a busy signal. She so testified at the hearing. Williams testified that he did not believe her explanation because he had seen her actually talking on the phone, which negatived her busy- signal claim. However, Williams also testified that he did not collect his full quota of cigarettes because she told him she had got the busy signal. This indulgence would suggest belief.12 Williams further testified that on Thursday, September 27, he received at least five incoming callsfor Pranion dur- ing the lunch period. He testified: "Calls 'during lunch we do not give them when we are busy. We explain to the person that calls that it is lunchtime, and if they want to leave a message we will take a message." This practice was confirmed by employee testimony. So far as appears, he did not give her any messages on September 27, and did not even tell her that any calls had come in before he summarily 10 The precise timing of these events does not appear . However, in the light of Williams' arrivals and departures, it appears that John's first visit was around noon and the second around 2 p.m. 11 "Ballew was discharged for serving on that day a customer who had earlier threatened to kill Williams and was therefore barred from the restau- rant. Mr. Williams can give all the details on this " 12 JUDGE KLEIN. Then you said you didn't think you had collected the cigarettes on September 25th Why not? THE Wimms Because Judi Pramon denied that she had made the calls. She said it was a busy signal. I don't think we even discussed it I just asked her why she had made all of the calls without permission, and she, said it was a busy signal and she was trying to get the doctor 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discharged her for "excessive telephone calls" around 4 p.m., the end of her shift. He testified that the "excessive calls" included the outgoing calls on September 25 as well as those incoming on the 27th. ' On direct examination Monteleone testified: Q. Concerning Judi Pranion , did Mr . Williams tell you why he wanted to fire her? A. Well, it was just general harassment that she went through all the time . She was giving him this trouble about noise in the place and he wasjust fed up with her I guess. In his pretrial affidavit, Monteleone said: Pranion was discharged because of giving bad ser- vice to customers. I received general complaints about her. I am unable to give any specific examples of this at this time. Williams can give more information with respect to this. However, as previously noted, at the time of the discharge Williams told Pranion that the only reason was her "exces- sive telephone calls." No evidence was ever adduced of customer complaints about Pranton. Pranton had been employed by Respondent since July 1969. She had been discharged twice before, once in 1969 or 1970 for being unable to get along with other employees and once in 1970 or 1971 for falling asleep during her break. She was out for a few months each time and then was rehired when she asked for herjob back. Abour 2-1/2 years ago she was warned of possible discharge for tardiness. And in May or June 1973 she was told to clock out because she had failed to charge a plainclothes policeman for either the milk or the coffee he had with a meal. That discharge, however, was immediately rescinded before it became effec- tive. Respondent adduced evidence that on a Saturday, a few weeks before the discharge, Pranion had come to the restau- rant as a patron with a group of people. As she admitted in testifying, she had been drinking. Her voice was so loud that Williams, who was cooking in the kitchen, sent a waitress to tell Pranion to leave the premises. At that point Pranion went back to the kitchen and apologized, telling Williams that she had not realized she had been making so much noise. She then returned to her table and consumed the food that she had previously ordered. With Williams' knowledge and without any further objection, Pranion remained in the restaurant for about 45 minutes to an hour longer. Williams never spoke to Pranion about that incident again . He testi- fied that Pramon's conduct on the night in question was most unusual for her and not at all representative of her customary demeanor. Despite the multiple complaints against Pranion ad- vanced by Respondent, the evidence establishes that her discharge on September 27 was sudden. Pranion frequently visited the restaurant when she was off duty and assisted in the cooking, on a volunteer basis. She often did soon Thurs- day evenings, after her regular weekly bowling. On the morning of September 27 Williams jokingly referred to the fact that, since it was Thursday, undoubtedly Pranion would show up that night to cook. Although Williams testi- fied that he could not specifically recall that bit of banter, he conceded that it might have occurred. Similarly, al- though Monteleone referred to complaints and criticisms concerning Pranion, about a week or two before the dis- charge he lent her money, as he had on previous occasions, expecting that she would repay it over a period of time.13 C. Failure to Reinstate the Strikers As set forth above, on the evening of Sunday, September 30, Wolfgang delivered to Bufalino an unconditional re- quest for reinstatement of the strikers. Bufalino later in- formed Wolfgang that Respondent would not grant the request. At the hearing, however, Monteleone testified that on Sunday he had decided that "if they was going to go back to work and do their job properly . . . [he] would accept them back." Pressed a bit further, he said he had made a firm decision to reinstate the strikers if they reported to work the next day and then to observe their work. Montel- eone was then shown his pretrial affidavit, in which he had said' On Sunday, September 30, 1973, Myra Wolfgang delivered a letter to my Attorney William Bufalino, II, stating that the employees would return to work imme- diately. If they had returned to work when they were scheduled to return I might have considered taking them back, but not one of them reported on time... . Offered an opportunity to explain the discrepancy between his testimony and the affidavit , Monteleone said : "The way I would like to explain is, I meant I would take them back. I' might almost means that I would." Monteleone maintained, in his affidavit and in his testi- mony, that he considered the strikers as having voluntarily "quit" by failing to report for work at the scheduled time.14 In the first place, it may be observed that, according to undisputed evidence , work schedules varied from week to 13 Monteleone's pretrial affidavit says, "As recently as about two weeks before Pranton was discharged I loaned her $150 00 to get her car fixed. This made a total of $190 00 she owes me We did not make any schedule of payments She borrowed money before and paid it back so I felt sorry for her and expected her to pay it back 14 This position is repeated in Respondent's brief, as follows. As for the four (4) other employees involved in the complaint, this employer considers them as voluntarily quitting These employees walked off their shift during a busy Friday lunch period and left the employer searching for rescue They walked off in sympathy of the discharged employees who gained recognition by taking shelter under the wing of the Charging Party These employees were instructed to return to their regular shift by the union's president The record is clear in showing that the employees never really desired to return nor did they do so They balked at the idea of returning to work and never did actually report. Kathy Braun reported one-half hour late and not even in proper uniform She testified that she had never been late before Joy Brown reported with Ms Braun and she was seven-and-one-half hours early Kay Williams and Barbara Hardy reported some thirty hours late Their action indicated no intention of returning to work CLOCK RESTAURANT NO. SEVENTEEN 431 week and no schedule for the day shift for the ensuing week was prepared or posted on Sunday, September 30. Addi- tionally, each of the four striking employees did visit the restaurant and each was informed that she no longer had a job. Respondent did not even go through the pretense of purporting to "discharge" the employees for reporting to work "late."15 It may also be noted that in connection with Pranion's reemployment after she had been discharged in 1969 and 1970, Williams testified: "We have a record of taking back employees." But the basic fact is that on Sunday the employees' un- conditional offer to return to work was rejected. At least from that point on the burden rested on Respondent to take the initiative to offer reinstatement. D. Discussion and Conclusions The evidence establishes that both Monteleone and Wil- liams associated employees' union activities with "harass- ment" or other unsatisfactory work performance. Respondent's hostility to unionization is further shown by Williams' and Monteleone's refusal to discuss with the union representatives the reasons for Ballew's and Pranion's dismissal. While the Union had not achieved status as the employees' exclusive bargaining representative, it was the chosen representative of the discharged employees. The union representatives could not reasonably be deemed in- terlopers when they accompanied the employees in an at- tempt to discuss the discharges with management. Finally, as part of the entire picture, Respondent's refusal to rein- state the protest strikers reflects a rigid and obviously deep- seated antipathy to concerted activities. Williams' knowledge of Ballew's current union activities and of Pranion's outspoken support of the union was admit- ted. Particularly in, view of Respondent's contention (at least in part of its evidence) that Williams was solely respon- sible for the discharges, it is perhaps unnecessary for the present decision to find knowledge on Monteleone's part. 16 In any event, Monteleone's knowledge of the current union activities has been found above. Discriminatory motivation may, indeed generally must, be inferred from circumstantial evidence, such as the timing of the discharges. N.L.R.B. v. Melrose Processing Co., 351 F.2d 693, 698 (C.A. 8, 1965); N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 233-234 (C.A. 8, 1966). As had been said, "the abruptness, of a discharge and its timing are persuasive as to motivation." N.L.R.B. v. Montgomery Ward &t Co., Inc. 242 F.2d 497, 502 (C.A. 2, 1957), cert. denied 355 U.S. 829 (1957); N.L.R.B. v. Dorn's Transportation Company, Inc., 405 F.2d 706, 713 (C.A. 2, 1969); N. L. R B. v. Elias Bros. Big Boy, Inc., 325 F.2d 360, 366 (C.A. 6, 1963). Here the two leading union activists were summarily discharged the day 15 Or "early," which, according to Respondent's brief, was Joy Brown's apparent dereliction In its brief Respondent also criticizes Kathy Braun for reporting late "and not even in proper uniform." The fact is that Braun's regular job was that of cashier, for which no uniform is required 6 This would also be true even if, as the record indicates, Monteleone played a major role in the discharges See, e.g., Texas Aluminum Co, Inc v NLRB., 435 F.2d 917, 919 (C.A. 5, 1970), N L R.B v Buddy Schoellkopf Products, Inc., 410 F 2d 82,86 (C.A. 5, 1969), Furr's Inc v. N L R B. 381 F 2d 562 (C.A. 10, 1967), cert denied 389 U.S 840 (1967) after a union organizing meeting arranged by them. Such discharges manifestly would be an'effective means for dis- couraging union membership and defeating the incipient organizing campaign. N. L.R.B. v. Edward P. Tepper, d/b/a Shoenberg Farms, 297 F.2d 280, 282-284 (C.A. 10, 1961); N.L.R.B. v. Sitton Tank Company, 467 F.2d 1371, 1372 (C.A. 8, 1972); N. L. R. B. v. Tak Tralc Inc., 293 F.2d 270, 271(C.A. 9, 1961). It is, of course, true that engaging in union activities does not insulate employees from discharge. On the other hand, the existence of grounds for discharge does not in itself negative discriminatory motivation. Justifiable grounds for discharge are frequently seized upon as mere pretexts for discharging employees where the actual moving cause of the discharges is their union activities. Singer Company v. N.L. R.B., 429 F.2d 172, 179 (C.A. 8, 1970); N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 524-525 (C.A. 8, 1956); A.P. Green Fire Brick Company v. N.L.RB., 326 F.2d 910, 916 (C.A. 8, 1964). The present record does contain evidence indicating that Ballew and Pranion may not have been flawless employees, although they were both relatively senior in length of ser- vice. But the record also leaves no doubt that as of the morning of September 27 Respondent did not intend or plan to discharge them. It is possible that Williams was angered by Ballew's serv- ing John after he had been barred. But the discharge actual- ly came after the reconciliation between Williams and John. One cannot help wondering why Williams was less charita- bly forgiving of Ballew. Monteleone's subsequent reimposi- tion of John's banishment can be explained only as a post facto fabrication to vindicate the apparently arbitrary dis- charge. Pranion's situation raises similar doubts. The "excessive" telephone calls she allegedly made on September 25 had apparently been "forgiven," as evidenced by Williams' fore- going his cigarettes. He did not talk to Pranion about, or give her any chance to explain, the alleged five incoming calls on September 27. There is no reason, to believe that Pranion had invited the calls (if any) or could have done anything to prevent them. There is no suggestion that Pran- ion had ever abused the privilege of receiving calls. One might naturally expect Williams to talk to her about it and warn against a recurrence rather than summarily discharge her. Significantly, Monteleone testified that nobody had ever before been fired because of telephone calls. The specific grounds advanced by Williams for the dis- charges in themselves raise considerable doubt as to the true motivation. And this doubt is substantially increased by Respondent's subsequent vacillation and multiplication of explanations. Perhaps most noteworthy is the fact that, ac- cording to Monteleone's testimony, Williams did not even mention the telephone call matter when he consulted Mon- teleone about the discharges on September 27. And a month later, in his pretrial affidavit, Monteleone failed to mention the supposedly excessive telephone calls; he ascribed Pranion's discharge to "bad service to customers" and "gen- eral complaints" that Monteleone had received. Vacillating explanations of the discharges compel the inference, which is here drawn, that Respondent was searching for some plausible explanation for the discharges, which in reality 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were prompted by the employees' union activities. Needless to say, Williams' and Monteleone's denials of discriminato- ry motivation are not conclusive. N.L.R.B. v. Walton Manu- facturing Company R Loganville Pants Co., 369 U.S. 404, 406-407 (1962); Bon Hennings Logging Co v. N. L. R. B, 308 F.2d 548, 554 (C.A. 9, 1962). Respondent's subsequent conduct serves to reinforce the inference that the discharges were discriminatorily motivat- ed Angwell Curtain Company, Inc. v. N L.R B., 192 F.2d 899, 903 (C.A. 7); Joy Silk Mills v. N L.R.B., 185 F.2d 732, 741-742 (C.A.D.C.), cert. denied 341 U.S. 914 (1950); N.L. R.B. v. Nemec Combustion Engineers, 207 F 2d 655, 658 (C.A. 9), cert. denied 347 U.S. 917. The Union had request- ed reinstatement of the strikers, with the propiety of the two discharges being left to orderly adjudication by the Board. If Respondent's sole concern was to rid itself of two unsatis- factory employees, presumably it would have readily acced- ed to the Union's request. Further, had Respondent not been interested primarily in resisting the Union, it would not have refused to discuss the reasons for the discharges with the Union representatives who visited the restaurant with the dischargees. On all the evidence, it is found that Ballew and Pranion were discharged for their union activities, with alleged em- ployment deficiencies merely seized upon as pretexts to cov- er the true motivation There is no question that Respondent refused to reinstate the four protest strikers either in response to the Union's request on their behalf or in response to each striker's indi- vidual inquiry. There is not a scintilla of evidence to support Respondent's contention that any of the strikers quit her job. There remains only the General Counsel's request at the close of the hearing that findings be made as to independent violations of Section 8(a)(1) although the complaint con- tained no such specific allegations. The General Counsel specified three specific incidents involving Williams, one in relation to Kathy Braun and the other two in conversations with his wife, Kay. Neither the charges nor the complaints in the present case alleged independent violations of Section 8(a)(1). The "catch all" language the Board's printed charge form is not sufficient to embrace any and all possible unfair labor prac- tices within the 6 months preceding the filing of the charge. Nor is an allegation of derivative violations of Section 8(a)(1) sufficient to put Respondent on notice that he may be held guilty of independent Section 8(a)(I) violations. The evidence in support of the General Counsel's Section 8(a)(1) contentions was received without objection. Howev- er, it was relevant to and thus admissible in connection with the Section 8(a)(3) allegations of the charges and complaint. Thus, since Respondent was not put on notice that it might also be held for direct violation of Section 8(a)(1), it cannot be said that the matters were fully litigated. Accordingly, although at the hearing I granted the General Counsel's motion that "the pleading be conformed to the proof in three particular fashions," on reconsideration I have con- cluded that no finding of independent Section 8(a)(l) viola- tions may be made. (It may be noted, however, that this present ruling may have little practical effect in view of my recommendation, discussed below, that a broad cease-and- desist order be entered.) CONCLUSIONS OF LAW 1. By discharging Mary Ballew and Judi Pranion on Sep- tember 27, 1973, and failing and refusing to reinstate them thereafter, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 2. By failing and refusing to reinstate Barbara A. Hardy, Margaret Kay Williams, Kathy Braun and Joy Brown to their former positions pursuant to their unconditional re- quest for reinstatement on September 30, 1973, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act 4. The strike commencing on September 28, 1973, was an unfair labor practice strike. THE REMEDY Having found that Ballew and Pranion were discrimina- torily discharged, I shall recommend the customary rein- statement and backpay remedy. Similarly, having found that the strike was an unfair labor practice strike, and that four strikers were wrongfully denied reinstatement upon their unconditional request therefor, I shall recommend an appropriate reinstatement and backpay remedy. Backpay is to be computed in accordance with F. W. Woolworth Com- pany, 90 NLRB 289, and shall carry 6 percent per annum interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. By discharging Ballew and Pranion, the aggressive ring- leaders of the union campaign, Respondent took the most effective means of nipping the campaign in the bud. And then, by refusing to reinstate the employees who exercised their statutory right concertedly to protest their colleagues' maltreatment, Respondent sought to inflict the coup de grace. Although the record indicates that some other em- ployees executed union authorization cards, the six employ- ees here involved appear to constitute the entire complement of committed activists. Thus, by its conduct, Respondent has sought to eliminate completely the threat of unionization. And at least as to the four strikers, Respon- dent has not even offered a colorably valid explanation or excuse. It would be difficult to conceive of any conduct more clearly designed to teach-other employees the tremen- dous cost of exercising their statutory rights. The nature of the violations is such as to call for a broad cease-and-desist order, which I shall recommend. In addition, the customary notice-posting and record- keeping requirements will be included. Upon the basis of the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: CLOCK RESTAURANT NO SEVENTEEN 1 433 ORDER I' Respondent, Sam and Margaret Foods, Inc., d/b/a Clock Restaurant No Seventeen, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 705, Hotel, Motel and Restaurant Employees Union, AFL-CIO, or any other labor organization, by discriminatorily discharging any em- ployee or by discriminating in any other manner in regard to hire and tenure of employment, or any term or condition of employment, (b) Discouraging membership in the above-named Union, or any other labor organization, or interfering with, restraining or coercing employees in the exercise of their rights under Section 7 of the Act, by refusing to reinstate any of its employees or otherwise discriminating in regard to their hire or tenure of employment, or any term or condi- tion of employment; (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Offer Mary Ballew and Judi Pranion immediate and full reinstatement to their former jobs or, if those positions are no longer in existence, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them, in the manner set forth in "The Remedy" section of this Decision; (b) Offer to reinstate Barbara A. Hardy, Margaret Kay Williams, Kathy Braun , and Joy Brown to their former positions or, if such positions are no longer in existence, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if neces- sary, any employees hired after September 30, 1973, for such positions; and make each of said employees whole in the manner prescribed in "The Remedy" section of this Decision for any loss of earnings between October I, 1973, and the date on which each employee is offered reinstate- ment in accordance herewith; (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, as well as all other records neces- sary to analyze and compute the amount of backpay due under the terms of this Order, (d) Post at its restaurant at 13240 Gratiot, Detroit, Michi- gan, copies of the attached notice marked "Appendix." 18 i7 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 18 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, shall be posted by Respondent 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 custom- arily posted Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges violations of the Act not specifically found herein. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence, it has been found that we violated the law and we have been ordered to post this notice about what we are committed to do. We assure our employees that: The National Labor Relations Act gives all employees these rights: To form, join or help unions; To bargain as a group through a representative of their own choosing; To act together for collective bargaining or other mutual aid or protection; To refuse to do any of these things. WE WILL NOT do anything that interferes with these rights. WE WILL immediately offer to reinstate Judi Pranion, Mary Ballew, Barbara A. Hardy, M. Kay Williams, Kathy Braun and Joy Brown to their former jobs, with- out prejudice to their seniority and other privileges; and will pay to them any money lost as a result of their discharge and/or our refusal to reinstate them, with interest at 6 percent per annum. WE WILL NOT discourage membership in Local 705, Hotel, Motel and Restaurant Employees Union, AFL- CIO, or any other union, by discharging or otherwise discriminating against any employees because of their union and/or concerted activities. WE WILL NOT in any other manner interfere with, re- strain or coerce our employees in the exercise of their rights to engage in, or to refrain from engaging in, any or all of the activities specified in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(3) of the Act, as modified by the Labor- This is an official notice and must not be defaced by Management Reporting and Disclosure Act of 1959. anyone. Dated By This notice must remain posted for 60 consecutive days SAM AND MARGARET Fooos, from the date of posting and must not be altered , defaced, INC d/b/a CLOCK RESTAURANT or covered by any other material. Any questions concerning No SEVENTEEN this notice or compliance with its provisions may be direct- (Employer) ed to the Board's Office, 500 Book Building, 1249 Washing- ton Boulevard, Detroit, Michigan 48226, Telephone 313-226-3200. (Representative) (Title)