Tuscola Truckers' Home, Inc.

TUSCOLA TRUCKERS' HOME Tuscola Truckers' Home, Inc. and Laborers' Interna- tional Union of North America, Local 573. Cases 38-CA-2958, 38-CA-2998, 38-RC-2016, and 38 RM-138 November 21, 1977 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On August 11, 1977, Administrative Law Judge Marion C. Ladwig issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs and General Counsel filed a brief in support of that Decision. 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, find- ings,' and conclusions of the Administrative Law Judge, and to adopt his recommended Order,2 except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Tuscola Truck- ers' Home, Inc., Tuscola, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice shall be substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election held in Cases 38-RC-2016 and 38-RM-138 be set aside and a new election be conducted pursuant to the direction of election set forth below. [Direction of Second Election and Excelsior foot- note omitted from publication.] I 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 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 233 NLRB No. 97 2 The General Counsel excepted to inadvertent omissions in the Administrative Law Judge's notice. We find merit in this exception. The notice has been modified accordingly. :' See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962): since Julie Jaco and Mitchell Duszynski applied for, and were denied. reinstatement on October 30, 1976. we find that backpay for these employees should be computed from that date. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer the following employees full and unconditional reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and WE WILL make them whole for any earnings lost as a result of our unlawful conduct against them, plus interest. Allen Bryant Clara Clark Harriet Clark Ronald Copher Mitchell Duszynski Ann Foreman Julie Jaco Michael Stout Raynie Stout Dorothy Stuck Bobbie Warner Shirley Warner Ruby Wood WE WILL NOT discharge any of you for supporting Laborers' International Union of North America, Local 573, or any other union. WE WILL NOT threaten to discharge any of you for striking, picketing, or supporting a union. WE WILL NOT promise or give you extra benefits for not striking. WE WILL NOT coercively question you about union activity or support. WE WILL NOT require strikers to apologize, or hold a vote on who may return to work. WE WILL NOT threaten to blacklist strikers, or warn that we will not let a union in. WE WILL NOT threaten to discharge any of you if you do not sign a statement against a union. WE WILL NOT threaten any of you for wearing union buttons. WE WILL NOT have a union representative wrongfully arrested in your presence for leading a lawful strike. WE WILL NOT warn you that we will close the restaurant and make a bowling alley out of it before rehiring strikers. WE WILL NOT inform you that there are 1001 ways to fire employees who wear union buttons. 679 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT inform you that employees wearing union buttons would cause all of the employees to lose their jobs. WE WILL NOT inform you that one of the owners would not have anything to do with strikers in a place where he had his money. The National Labor Relations Act gives you, as an employee, these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of your own choosing To act together with other employees to bargain collectively or for other mutual aid or protection If you wish, not to do any of these things. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the Act. TUSCOLA TRUCKERS' HOME, INC. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: These consolidated cases were heard in Tuscola and Champaign, Illinois, on February 22-23, 28, and March 1-6, 1977.1 The charges were filed by the Union on November 3 and 29 (amended January 3), and the complaints were issued on December 3 and January 7 (amended on February 2 and at the hearing). The petitions in the representation cases were filed on November 3 and 5, and an election (directed by the Regional Director) was conducted on November 19. Excluding 61 challenged ballots (insufficient in number to affect the results of the election), the vote was 5 for and 75 against union representation. The complaint cases were consolidated on January 10, and further consolidated with the representation cases in orders issued on January 20, referring the representation cases to the Board. The complaints allege that the Company's management and owners committed numerous violations of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, causing and prolonging an unfair labor practice strike and refusing to reinstate the strikers. The Union's timely objections in the representation cases include some of the alleged violations in the complaint cases. The Company denies any violations of the Act and any grounds for setting aside the election. Upon the record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent Company, a Delaware corporation, is engaged in the operation of a full-service truckstop in Tuscola, Illinois, where it has an annual projected gross revenue in excess of $500,000 and purchases in excess of $5,000 directly from outside the State. The Company admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Introduction According to the General Counsel's evidence, the Company engaged in the following conduct: General Manager James Bailey summarily discharged waitress Dorothy Stuck when she told him that her union represen- tatives were in the restaurant and would like to talk to him. He told her, "I'm busy little girl. I'm in conference, would you please leave my building, you are fired" (Emphasis supplied.) Faced with this discharge and Bailey's refusal to talk with the waiting union representatives, other wait- resses, busboys, and kitchen employees sat down and later left the restaurant and began picketing. The Company responded by having Union Representative Ramon Wier- man arrested on the picket line for disorderly conduct "in that he entered Truckers home and began a Union Movement so as to disrupt the employees of Tuscola Truckers Home." The Company discharged some of the strikers, and told others they could return to work only if they apologized and if the nonstrikers voted their approval. It had policemen conduct a nonstriker vote to determine which strikers would be permitted to return to work. It threatened employees with discharge for striking or participation in the Union, and threatened to blacklist strikers. It stated that it would definitely not let a union in. It threatened nonstriking employees with discharge unless they signed antiunion statements. It promised and gave free meals to employees for not striking, and promised them a bonus. After a third deadline for returning to work, the Company stated that the strikers were already fired the day they walked out, that it would close the restaurant and make a bowling alley out of it before rehiring the strikers, and that Coowner Frank Wilhelm would not have anything to do with a striker in a place where he had his money. It told two employees that their wearing union buttons would cause all of the employees to lose their jobs, said there were a thousand and one ways to fire them, and later discriminatorily discharged them. Dr. William Podes- ta, the other coowner, told picketing employees that they had been fired and could not have their jobs back. The Company refused the Union's unconditional offer for the strikers to return to work, claiming that they "have been replaced by new employees." The General Counsel also presented evidence in support of a number of other alleged 1 All dates are from September 1976 through March 1977. 680 TUSCOLA TRUCKERS' HOME violations of the Act. The Union presented evidence that 2 days before the election, Service Manager Joe Davis stated that Coowner Wilhelm left a note stating that if the Union won, "it [would] be closed down at midnight." The Union also presented evidence in support of a number of other objections to the election. In the Company's defense, General Manager Bailey and four other supervisors gave much contrary evidence and extensive denials. The Company asserts the "unfounded and unreliable nature of all charges" against it, contends that the General Counsel's case "rests entirely upon only the most nonprobative types of self-serving, discredited and, in many instances, biased testimony," and argues that "the credible evidence shows that no unfair labor practices have been committed by Respondent at any time" and that there is a "complete lack of merit" in all of the Union's objections to the election. (Emphasis supplied.) The Company did not call a single nonstriking employee or any of the returning strikers to corroborate the supervisors' testimony, and the General Counsel now strongly chal- lenges the credibility of the supervisors. B. Initial Discharge and Strike I. The discharge On October 24, the Union began an organizing cam- paign at the truckstop, which had opened for business on September 1. About 4:30 p.m. on Friday, October 29, Union Representatives Ramon Wierman and Robert Wood went to the truckstop and presented to Service Manager Joe Davis in the restaurant a written request for recognition. As credibly testified by Wood (who impressed me as an honest witness), Davis commented, "Whenever the owners see this, the top of this place is going to come off." (Davis denied that he recalled whether or not he made such a statement.) Wood asked for a meeting on Monday, and Davis gave a favorable response. After leaving the union representatives' booth, Davis sat at a booth with Restaurant Manager Jerry Lawrence, next to where off- duty waitresses Dorothy Stuck and Julie Jaco were sitting. (Stuck and Jaco worked on the 10 p.m.-6 a.m. night waitress shift. They had gone to the restaurant that afternoon to be present when the Union requested recognition.) As Stuck credibly testified, she overheard Davis tell Lawrence, "It's the waitresses who did it, boy I feel for them, they are going to go through hell." (Jaco recalled that Davis said "it was the waitresses that did it, I feel for them, they're gonna go through hell." I discredit the denials given by Davis and Lawrence. From their demea- nor on the stand, Davis appeared less than candid, and Lawrence impressed me as being a most untrustworthy witness.) Stuck and Jaco demonstrated their union support that afternoon by going over and sitting with the union representatives for several minutes-within the view of Davis (who admitted in his pretrial affidavit observing Stuck and one or two others sit down with them). General Manager James Bailey arrived at the restaurant that evening and met in the VIP (banquet) Room for about 2 hours with Service Manager Davis and Senior Assistant Manager Robert Shinnick, discussing the Union's request for recognition and a meeting. That evening, waitresses Stuck and Jaco were leaving the restaurant to report to the union representatives a rumor that Dr. William Podesta (a 50-percent owner of the company stock) had threatened to discharge any employee found giving a customer a greasy check, and to tell them that the waitresses were afraid of losing their jobs. General Manager Bailey stopped Stuck and Jaco at the door and, as Stuck credibly testified, "asked us if we were organizing the place and we said no and then he asked us what we knew about the union and we said that we didn't know too much, just what we had heard from the other employees and then he said that if we had any problems to come to him, that he didn't want to lose us because we were good waitresses." (Jaco recalled that Bailey "asked us if we were organizers of the union and he said that we were good waitresses and he'd hate to lose us and if we ever had any problems to come to him." I discredit Bailey's denials that he left the VIP Room and engaged in this conversation, and find that this interrogation was coercive and violated Section 8(a)(1) of the Act. Bailey's credibility is discussed later.) Sometime around 8 or 9 p.m., Union Representatives Wierman and Wood returned to the restaurant to discuss the purported change in working rules with General Manager Bailey. (Previously, no waitress had been dis- charged for giving out greasy checks.) When Bailey failed to come out and meet with them, waitress Stuck went to the VIP Room and, according to her testimony, told Bailey that her union representatives were outside and would like to talk to him. Bailey responded, "I'm busy little girl. I'm in conference, would you please leave my building, you are fired." (Bailey, who gave much conflicting testimony and who impressed me most unfavorably as a witness, denied that he discharged her. He claimed that she came "barging in the door like she was half crazy ... she busted open the door and she was very rude and it seemed like she just screamed at me," saying something like, "Mr. Bailey . . . my union people want to talk to you right now" or "My two union people are out here and they want to see you," to which he claimed he responded in a "very calm" voice, "Young lady, I'm in a conference. Please leave." Service Manager Davis claimed that Stuck yelled, "We would like for you to come out here and meet our union representa- tives to sit down and talk to them and discuss this now," or something to the effect, "Mr. Bailey, you have to come out and meet our union representatives now," to which Bailey responded, "Young lady, we're having a conference right now. Would you please leave the room" or "the building." Senior Assistant Manager Shinnick testified that Stuck opened the door, stepped in, and told Bailey, "My union representative wants to talk to you now," to which Bailey responded, "Young lady, please leave," and said nothing else. Shinnick, like Davis, impressed me as being less than candid. In contrast, Stuck appeared to be an honest, forthright witness.) I credit Stuck's account of what was said, and discredit the denials that Bailey discharged her. 2. The walkout Waitress Stuck immediately returned to the booth where Union Representatives Wierman and Wood were sitting with waitress Jaco, and reported that she had "just been fired." As credibly testified by Wood, Stuck "informed us 681 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that she was told to get out of the building, that she had been fired." Jaco recalled that Stuck said "Jim Bailey had fired her." The four of them "discussed the fact that Dorothy [Stuck] had been fired," and several of the other waitresses "came up and wanted to know what we were going to do about the new work rule" (the purported threat of discharge for giving out greasy checks). It was decided that if all the waitresses sat down, Mr. Bailey would talk. Thereupon, as Stuck credibly testified, "I went around and told all the waitresses that we were going to have a sit- down strike," to see if Bailey would talk to their union representatives. The word spread that Stuck had been discharged. As elicited by the company counsel on cross- examination, cashier Ann Foreman (who impressed me favorably as a forthright witness) credibly testified that the sit-down strike was a "spur of the moment thing" as "a result of Dorothy being fired." As credibly testified by Union Representative Wierman (also on cross-examina- tion), he heard one or two of the waitresses ask, "Now, they've fired Dorothy, what are we going to do," and that "most of it was just kind of ... general discussion, like . . .what we are going to do; they had fired Dorothy, and they won't talk to our union representative." Two of the kitchen employees (Mitchell Duszynski and Allen Bryant) joined the waitresses and busboys in the sit-down strike, as did most of the waitresses on the upcoming 10 p.m. night shift. (The night kitchen shift then worked from 11 p.m. to 7 a.m.) Waitress Bobbie Warner recalled that when Stuck and Jaco met her at the door about 9:45 p.m. and told her they were on a sit-down strike, Stuck explained that Bailey had "told her to leave or be thrown out" when "she had went to Mr. Bailey to see if they would talk to the union representatives." Waitress Harriet Clark erroneously re- called that when she and her daughter came to work about 9:40 p.m., Jaco and Stuck said that both of them had been fired for union activities. However, she appeared to be giving her best recollection when so testifying, and when further testifying on cross-examination, "Truthfully, I left because of the girls being fired unfairly." Getting no response from management, Union Repre- sentative Wood approached General Manager Bailey at the cash register and asked if Bailey was going to talk to him. Bailey did not turn around or answer. About 15 or 20 of the employees walked out and went with the union representatives to the union hall, where picket signs were made. Peaceful picketing began about 11:30 p.m. that Friday night, October 29. (I note that waitress Raynie Stout, who was not present at the truckstop at the time of the strike, credibly testified on cross-examination that she joined the picketing after waitress Stuck told her "That she had gone to Mr. Bailey and asked him if he would talk to the union officials and that he had fired her.") Initially, "Does Not Recognize" picket signs were used. Four days later on November 2, upon advice of a higher union official, the Union began also using "Unfair Labor Practices Strike" picket signs, as discussed later. 3. Unfair labor practice strike The General Counsel contends that the strike which began on October 29 was an unfair labor practice strike, precipitated by General Manager Bailey's unlawful dis- charge of waitress Stuck that evening for requesting management to speak with her union representatives. The Company denies (contrary to the above findings) that Stuck was discharged, and contends that it was solely a recognition strike, previously planned by the union representatives. (I note that elsewhere in its brief, the Company contends that "a primary reason for instigating the sit-down strike and walk-out was the alleged promulga- tion" of a "new" greasy ticket rule, which the Company claims was already in effect.) After weighing all the evidence and considering all the contentions and circumstances, I find that waitress Stuck's discharge on October 29 and the refusal to reinstate her since then, violated Section 8(a)(3) and (1) of the Act, and that the discharge was at least a "contributing cause" of the strike. Larand Leisurelies Inc. v. N.LR.B., 523 F.2d 814, 820 (C.A. 6, 1975); San Antonio Machine & Supply Corporation v. N.LR.B., 363 F.2d 633, 641 (C.A. 5, 1966). The union representatives had requested recognition earlier in the day, and were expecting to meet with the Company the following Monday. It was not until the waitresses became fearful of discharge under a purportedly new greasy check rule that the union representatives returned to the truckstop to ask for an immediate meeting. Stuck's request for the meeting resulted in her summary discharge, which was reported to the waiting union representatives and to the restaurant employees. Her unlawful discharge gave urgency to the Union's request for recognition, as a means of protecting the employees from further discharges. It was under these circumstances that the sit-down strike was called and, after the union representatives and employees discussed what to do about Stuck's discharge and the Company's refusal to talk, the employees walked out and began picketing. I thus find that Stuck's discharge precipitated the strike, as contended by the General Counsel, and that the employees went on strike not only for union recognition (as the initial picket signs were worded), but also to protest Stuck's discharge, an unfair labor practice. The strike was therefore an unfair labor practice strike from its inception. C. Discriminatory Discharge of Strikers I. Julie Jaco After the picketing began about 11:30 p.m. on Friday night, General Manager Bailey and Senior Assistant Manager Shinnick went out to the picket line repeatedly to talk to employees about returning to work. About 11:45 p.m., waitress Julie Jaco asked Shinnick "if I could come back to work" and Shinnick said "Yes" she could. (Although Jaco gave her age as 17 instead of 16 on her application, she appeared to be attempting to testify truthfully under oath.) A few minutes later, about mid- night, waitress Dorothy Stuck (as she credibly testified) "asked Mr. Bailey if I could return to work and he said 'No' . . . and Julie asked him if she could go back and he said, 'No.' " Then, as Jaco credibly testified, she asked Bailey "why did Rob [Shinnick] say I could," whereas Bailey was saying she could not, and Bailey "just said that I couldn't come back." (I note that in this same conversa- tion, Stuck asked Bailey "the exact reason I was fired and 682 TUSCOLA TRUCKERS' HOME he told me because I was a bad waitress"--despite his earlier statement to her and Jaco, before the walkout, that "he didn't want to lose us because we were good waitresses." I discredit Bailey's denials.) About a half hour or an hour later, Shinnick returned to the picket line and, as Stuck credibly testified, "I asked Mr. Shinnick exactly why we were being fired and he said, 'Well, you know why you are being fired, it is because'- and then he paused and . . .said, 'No, I won't say that.' " Somewhat earlier, a little after midnight (apparently after learning from Bailey that Jaco was also discharged), Shinnick went to the picket line and talked to waitress Harriet Clark about returning to work (as discussed later). Clark (as she credibly testified) "asked him, what about Dorothy and Julie and he said that they were fired and I asked him why, because they're two of your best waitresses and he said you know why and I said why, because of their union activity and he said yes." (I discredit Shinnick's denials.) General Manager Bailey had interrogated both Jaco and Stuck that previous evening about whether they were engaging in organizing the place. Both of them, while off duty, had gone to the restaurant that afternoon and evening and had sat and talked with the union representa- tives. It is clear that Bailey at least suspected that Jaco was one of the union organizers. After weighing all the evidence, I find that during the early morning of October 30, General Manager Bailey discriminatorily discharged Jaco because of her known or suspected union activity, and since then has refused to reinstate her in violation of Section 8(aX3) and (1) of the Act. 2. Mitchell Duszynski and Allen Bryant Grill cooks Duszynski and Bryant were the only two kitchen employees who went on strike Friday night, October 29. (They were scheduled to work until I 11 p.m., but punched out about 9:32 p.m.) The next day, about II a.m., Duszynski attempted to return to work. He first talked to Restaurant Assistant Manager Steve McMahan, who referred him to Shift Kitchen Manager Lee Sheff who, after checking with somebody, took Duszynski to Restaurant Manager Law- rence's office and talked to him against the Union. Sheff then left to telephone Lawrence, and Duszynski waited in Lawrence's office for almost an hour. While waiting, as Duszynski credibly testified, he noticed on the office door a kitchen employee schedule which had his and Bryant's names crossed off, and the notation, "Fired, walked off job," by both of their names. (Lawrence, who impressed me as a most unreliable witness, testified that he had marked off their names, but denied writing anything else on the schedule except the names of part-time dishwasher Randy Barbee and busboy Joe Wood. I discredit the denial.) When Lawrence arrived, with McMahan and Sheff, "Mr. Lawrence asked me what I wanted, and I told him that I would like to have my job back, and he said, no, I walked off the job. I might as well just go back in the rain where I came from." (Sheff did not testify. McMahan and Lawrence admitted that Lawrence told Duszynski that he had walked out, or off the job, and that he could go back outside or back on the picket line, but claimed that Lawrence also said that Duszynski had been replaced. Duszynski appeared to be an honest witness, with a good recollection of what happened, and I credit his version.) Restaurant Manager Lawrence admitted that Duszynski was a "very good cook," able to handle the job on a busy Friday or Saturday night, and that he was "really impressed" with him and had talked to him about going with Lawrence when the corporation expanded to other locations. In contrast, the two "replacements," busboy Wood and dishwasher Barbee, had no experience as a cook, and had not yet worked on the job (being assigned to change jobs on the 3-11 p.m. shift later that day). Nevertheless, Lawrence refused to rehire Duszynski that Saturday noon, October 30, although the Company was offering to reinstate strikers even if replaced (as discussed later). Moreover, Lawrence revealed to the night kitchen crew his determination not to rehire Duszynski or Bryant. As credibly testified by kitchen employee Ronald Copher (who was not certain about the date), Lawrence told some of the kitchen employees about 11:30 Friday or Saturday night "that he had been in a meeting with management to hire the waitresses and two boys in the kitchen [Duszynski and Bryant] back, and said that he'd quit his job first and wanted to know if we'd back him up. We [told] him yes, that we would. And then he said, if anybody participate in the union, [they] would be fired." Upon cross-examination Lawrence was asked, "So that when Mr. Bailey testified yesterday that the employees could come back off the [picket] line, up to November 1, that didn't include Mr. Duszynski, did it?", Lawrence answered, "I don't know if he had another location that he could use him [at] or not"-further indicating that the two striking kitchen employees were discharged as written on the schedule. After weighing all the evidence, I find that Restaurant Manager Lawrence discriminatorily discharged cooks Duszynski and Bryant on Friday night, October 29 for engaging in the strike, and thereafter has refused to reinstate them, thereby violating Section 8(aX3) and (1) of the Act. I also find that Lawrence's threat to fire any other kitchen employee who participated in the Union (when stating that he would quit himself before rehiring Duszyn- ski and Bryant) was coercive and violated Section 8(aXI) of the Act. 3. Ann Foreman Cashier Olive Ann Foreman (a union observer at the election) first contacted the Union, and joined with waitress Vicky Morris in setting up the initial union meeting on October 24. Thereafter, she and Morris distributed union authorization cards, collected them, and turned them in to the Union. Both she and Morris joined the strike, but Morris returned to work early Saturday morning, October 30. Although the evidence does not reveal how General Manager Bailey learned about Fore- man's leading role in the organizational drive (whether from Morris after she returned to work, or otherwise), Bailey indicated having such knowledge when talking to Foreman on the picket line on Saturday evening, October 30, mentioning the "baloney" Foreman "had fed these girls." 683 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In this Saturday evening conversation, or in another conversation on Sunday evening, October 31, Bailey told Foreman (as she credibly testified) that "the cash register is short, and I'm holding you responsible." Then he started to leave. She grasped his arm, or sleeve, to turn him around and, while holding his sleeve and shaking her finger in his face, she vigorously protested. She said that she could not be held responsible for any shortage, that the drawer had not been checked in or out, that she had run a cash register for years and had never been so accused before, etc. He did not respond, except to call her a "communist" (which he claimed was merely a curse word), and left. Grill Cook Bryant, who was standing nearby, recalled that "it looked to me like she grasped him by his sleeve, and she was shaking her finger and yelling . . . something to the effect that 'I didn't steal any of your money,' and she released him and he went back" inside. General Manager Bailey gave conflicting testimony about the incident. He repeatedly claimed on direct examination that "she swung at me": e.g., testifying "she grabbed me on the arm and spun me around and took a swing at me and I just ducked out of the way and when she started this I just put my hands in my pockets . . . when she swung at me I ducked back and I just walked away from her again . .. .she swung [demonstrating] and held on to me and . .. like a school teacher . . . shaking her finger, you know, and giving me my rights [for] a couple of minutes," or about 2 or 3 minutes. (Emphasis supplied.) However, he dropped the claim on cross-examination, testifying that "she came and grabbed me and spun me around and held on to me and shook her finger at me and shouted at me.... That's what happened." Also, after initially testifying that he told Foreman the cash register was short, and "Well, it was," before starting to walk away, he later claimed, "it was short fifty dollars . . . and like I told her I wasn't accusing her of the register coming up [short] . . . I told her I wasn't accusing her because there was more than one person operating the register." (He appeared willing to testify whatever might sound plausible to defend the Company's cause, rather than attempting to recount accurately what actually happened. I discredit, as fabrications, his claims that Foreman swung at him and that he told her he was not accusing her of the shortage.) On Monday evening, November 1, as Foreman credibly testified, General Foreman Bailey went to the picket line with Senior Assistant Manager Shinnick and Restaurant Manager Lawrence, and gave Foreman a letter. It was signed by Bailey and read, "You are hereby discharged as an employee of Tuscola Truckers Home, Inc. for picket line misconduct. Please get off our premises." Foreman asked, "For picket line misconduct, what does that mean?" Bailey said, "It's for picket line misconduct." She again asked what that meant and he said, "I'm not supposed to say, just that, for picket line misconduct. . . Oh, by the way . . . Get off the premises." She protested that she never was on their premises when picketing, and they left. (Bailey testified, "I have no idea," when asked if she was on company premises at the time.) When asked on direct examination why he discharged Foreman, Bailey answered, "For picket line misconduct." When asked what she did, he answered, "She swung at me and grabbed me. . . She grabbed me and swung at me." In its brief, the Company contends that she was discharged because she "assaulted and attacked" Bailey when he "attempted to ask her about a $50 shortage." Early in the hearing, when called as an adverse witness, Bailey testified that the November I discharge "wasn't through me ... I signed it, yes, but ... it wasn't through my authorization to do this." When Bailey was asked whose authorization it was, Company Attorney Gerald Tockman objected and stated, "I instructed that it be done." When again asked, Bailey answered, "the major stockholder who is Dr. Podesta." Later as a defense witness on direct examination, Bailey testified that on the day after the incident, "I got together with Dr. Podesta and Mr. [Frank] Wilhelmn" (the other 50-percent owner of the company stock), discussed this "episode with Ann Fore- man, striking at me [emphasis supplied] and causing this picket line misconduct" for about a half hour, and the "three of us" made the decision to discharge her. On cross- examination, he testified (without objection), "I brought it up ... and our [local] attorney mentioned that he thought that a violent person like that should be discharged from the picket line, and we discussed it and no one had any objection so it was up to me to go ahead and ... type it up and ... sign the letter and give it to her .... I [emphasis supplied] made the decision. . . everyone said, 'Go ahead and have her discharged because of this violence,' and I agreed and I signed the paper." After weighing all the evidence and considering the conflicting testimony given by General Manager Bailey and his union animus, I find that he discharged cashier Foreman because of her leading role in the organizational drive, and therefore "the reason given for the discharge was not the real motivating reason but was advanced only as a pretext to conceal the employer's unlawful motivation." See Acrylic Optics Corporation, 222 NLRB 1105, 1106 (1976), a case cited by the Company. Accordingly, I find that the Company discriminatorily discharged Ann Foreman on November 1, and thereafter has refused to reinstate her, in violation of Section 8(a)(3) and (1) of the Act. (The alleged discriminatory discharge of kitchen employees Shirley Warner and Ronald Copher is discussed later.) D. Other Prepetition Violations 1. Arrest of union representative Shortly after the picketing began, General Manager Bailey met with Owners Podesta and Wilhelm at the truckstop and decided to have Union Representative Wierman arrested for leading the strike and disrupting the business. As an adverse witness at the beginning of the hearing, Bailey testified, "I never did once look at the man [Wierman] until when he left and then I just caught a glimpse of him, that's the first time I seen him." However, Bailey believed that Wierman was responsible for taking employees off their jobs, on the busy Friday night, causing "absolute chaos." He testified that "if I had to draw an opinion . . . it was Ramon Wierman that did it. that was sitting back there and had them all together. That would be my opinion." (Emphasis supplied.) He went to the police 684 TUSCOLA TRUCKERS' HOME department and signed a complaint, which he admitted reading before signing, alleging that Wierman did know- ingly conduct himself in such an unreasonable manner as to "alarm and disturb" Bailey and "provoke a breach of the peace, in that he entered Truckers Home and began a Union Movement so as to disrupt the employees." (Empha- sis supplied.) Bailey also admitted at the beginning of the hearing that Wierman was arrested on the picket line, in the presence of "Other people who had walked out, yes." When later called as a defense witness, General Manager Bailey was prepared to give a different story. Contrary to his earlier testimony that he had "just caught a glimpse" of Wierman as Wierman was leaving the truckstop that Friday night, Bailey claimed that he saw Wierman "jumping and causing a commotion . . . upsetting my customers and just upsetting everybody . . . jumping up and screaming and making a scene . . . yelling things at waitresses" and, on cross-examination, "jumping around acting like a maniac and causing a disturbance with the other customers who was trying to eat," as "I had observed . . . when I was back behind the coffee machine." (I find this testimony to be fabricated, as an afterthought.) Also, in an apparent effort to disavow the wording of his complaint (which he earlier testified that he read before signing, alleging that Wierman "entered" the truck shop and "began a Union Movement"), Bailey gave testimony (which I discredit) that he signed the complaint form in blank, and that the form was left there at the police department. To the contrary, as Wierman credibly testi- fied, Wierman was handed the complaint at the picket line at the time of his arrest, when he had to post a $25 bond, in the presence of picketing strikers. Waitress Jaco also credibly testified that she saw the officer hand a paper to Wierman. (I note that the complaint was not notarized and filed in court until the next Monday.) Ignoring the contradictions in General Manager Bailey's testimony, and Bailey's admissions when called as an adverse witness, the Company contends in its brief that it "caused the arrest of Wierman for his raucous and illicit disturbance of the peace" before the walkout, and that the "arrest was not in the presence of picketing employees." I disagree and I find that near midnight, October 29, at the picket line in the presence of picketing strikers, the Company caused the arrest of Union Representative Wierman for leading the lawful strike, thereby coercing the employees in the exercise of their right to engage in protected concerted activity by demonstrating the length to which the Company would go to break the strike, in violation of Section 8(a)( I) of the Act. 2. Required apology and nonstriker approval By early Saturday morning, October 30, the Company had decided to require strikers both to apologize to nonstrikers for the walkout and to have the approval of the nonstrikers before getting full reinstatement. A little after midnight, as waitress Harriet Clark credibly testified, Senior Assistant Manager Shinnick came out to the picket line and said he wanted to talk to her. "He said that if we wanted to go back to work, we had to apologize to the girls" and that "the girls had to vote whether or not we would be able to go back to work." (I discredit Shinnick's denials.) About I I o'clock that Saturday morning, when Cook Duszynski attempted to return to work, he first talked to Restaurant Assistant Manager McMahan. As Duszynski credibly testified, McMahan "said that they were hiring back quite a few people, but only on a temporary basis until the people that stayed could have their own little election and see whether they want those people to stay or not." (McMahan testified that he told Duszynski "I'd like to have him back in there because I thought he was a good cook," but did not acknowledge telling him anything about a nonstriker vote.) About 10:30 p.m. that Saturday, October 30, after the nonstriker vote had been taken earlier that evening, General Manager Bailey and Senior Assistant Manager Shinnick went to the picket line and spoke to waitresses Bobbie Warner and Mary Perrine (who did not testify). As Warner credibly testified, "Mr. Bailey asked us if we wanted our jobs back and he said something about they had an election to determine whether they wanted us to come back or not." (Bailey then gave them "till midnight to change our minds about going back to work," as discussed later.) About 11:30 p.m., Shinnick returned to the picket line and mentioned to Warner "that the police conducted a vote inside with the employees to determine whether any of us would be taken back into work or not." Later, around midnight, Warner quit the picket line and talked to Bailey, Shinnick, and McMahan in the VIP Room about returning to work. Bailey "told me that if I went back to work, that I would have to sign some kind of a card saying that I would have no part of a Union" (as discussed below), "and that I would have to apologize to the rest of the employees and tell them that I would be with them one hundred percent." Similarly, cashier Foreman credibly testified that Shinnick came to the picket line and said that "they had had a vote, and [waitress] Mary Jane Prather and I had been given a vote of confidence by the girls inside, and we could come back to work, forget everything that had happened. At this time I asked him if [waitresses] Dorothy [Stuck] and Julie [Jacol and if(cooks] Mitch [Duszynski I] and Allen [Bryant] had been given the same opportunity to come back to work, and he said, no, that they would not be rehired." (I discredit the denials. As previously discussed, it was Restaurant Manager Lawrence who was refusing to rehire Duszynski and Bryant, whom he had discharged for striking.) The nonstriker meeting was held about 7 o'clock that Saturday evening, October 30. Although General Manager Bailey claimed that some of the waitresses requested the meeting "to express their desires or wishes" concerning strikers coming back to work, he admitted setting the time for the meeting and instructing four supervisors to attend with him. He testified that he met with about 25 or 30 waitresses and busboys in the VIP Room for about 5 or 10 minutes, and told them "whatever their wishes were I would be more than happy" to comply. He testified that when asked about inviting all the strikers to return, he responded, "Well, how does everybody else feel about it . . . You've been doing all the work and everything, now what are your feelings?" As employees began mentioning different strikers, two city policemen entered the room, looking for Service Manager Joe Davis. One of the 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD policemen, Roy Bonner, was employed by the Company as a security guard. Bailey excused himself and the other supervisors, and turned the meeting over to the policemen. He testified that he told Bonner, "Roy, I don't want to be involved in this. . . they are talking about wanting to take a vote ... on who can come back, that they want to work with and I don't want to be any part of it .... Would you let them go ahead and raise their hands to whatever they want to do .... " After the meeting, Bailey and the other supervisors returned to the room. As admitted by Bailey, policeman Bonner reported that the nonstrikers voted for the return of all strikers "except Dorothy Stuck and Julie Jaco," and Bailey promised, "If that is what they want, that's what I will do." However, after the meeting broke up, Bailey claimed he told his supervisors "to extend the invitation to everybody" to return, including Stuck and Jaco. (He appeared less than candid when testifying how the meeting was arranged, and I specifically discredit his claim that he instructed his supervisors to invite back Stuck and Jaco, both of whom he had already discharged. I also find it clear that in conducting the vote, the policemen were acting on the Company's behalf, as its agents.) The Company contends in its brief that its "repeated offers to reinstate all strikers following the walk-outs were unconditional and in no way related to any 'condition.' " To the contrary, the Company did not offer to reinstate discharged employees Stuck, Jaco, Duszynski, and Bryant, and conditioned reinstating other strikers upon their apologizing to the nonstrikers and getting a favorable vote from the nonstrikers. Placing such conditions upon the reinstatement of strikers clearly discriminated against them in the terms and conditions of their present employment, and tended to coerce both the striking and nonstriking employees in the exercise of the right to engage in any future strike or other protected concerted activity. Further- more, the Company's holding of the nonstriker vote, and its informing the strikers that such a vote was held, similarly constituted restraints on the right to strike. I therefore find that the conditioning of striker reinstate- ments upon such apologies and favorable vote of nonstrik- ers, the conducting of the nonstriker vote, and the notification to the strikers of the vote, restrained employees in the exercise of their Section 7 rights, in violation of Section 8(a)(l) of the Act. 3. Threats of discharge and blacklist Waitress Raynie "Polly" Stout was not on duty at the time of the walkout. About 11:30 that Friday night, Senior Assistant Manager Shinnick telephoned her at home, told her about the walkout, and inquired if she would be reporting to work the next day. She said she would not cross the picket line. As she credibly testified, Shinnick responded that "if I didn't come back to work that next day that I was fired, that I wouldn't have a job." Nevertheless, she joined the picketing. (She impressed me favorably as a witness, and I discredit Shinnick's denial of the threat to fire her.) A little after midnight, when Shinnick went out to the picket line and talked to waitress Harriet Clark about going back to work (telling her about the required apology and nonstriker vote, as discussed above), he "said that we had until 6:00 in the morning" to "make up our minds as to whether or not we were going back ... without the union . .. that the management would definitely not let a union in and if we didn't let him know what we decided by 6:00, that we would be put on a blacklist." (From her demeanor on the stand, she appeared to be an earnest witness, giving her best recollection. I discredit the denials.) Later that Saturday morning, the deadline for strikers returning to work-despite any replacements-was extend- ed until Saturday midnight; thereafter the deadline was extended until Monday morning, November 1, thereby treating replacements until then as temporary. (General Manager Bailey testified that he was sure that before this November I deadline, he had already hired about 9 replacements, and possibly as many as 13.) About the time of the Saturday midnight deadline, waitress Bobbie Warner quit the picket line and talked to Bailey, Shinnick, and Restaurant Assistant Manager McMahan in the VIP Room, as previously discussed. After Bailey talked against the Union and said that if Warner went back she would have to sign a nonunion card and apologize, he said (as Warner credibly testified) "that if we stayed out on the picket line, that the ones that was out there, their names would be put on a blacklist and if they went to get another job, they would have a hard time doing it." Warner said she would return to work, but later changed her mind, remained on strike, and was a union observer. (She impressed me as an honest witness, and I discredit the Company's denials.) I find that Shinnick's threat to Raynie Stout that she would be fired if she did not come back to work, his threat to Harriet Clark that strikers would be put on a blacklist, as well as his statement to her that management would definitely not let a union in, and Bailey's threat to Bobbie Warner that the names of those staying on the picket line would be put on a blacklist and that they would have a hard time finding another job were clearly coercive and violated Section 8(a)(1) of the Act. 4. Coerced antiunion statements In the October 30 Saturday midnight conference with waitress Bobbie Warner (shortly after the nonstriker vote, and in the presence of Senior Assistant Manager Shinnick and Restaurant Assistant Manager McMahan), General Manager Bailey told Warner that "if I went back to work . . I would have to sign some kind of a card saying that I would have no part of a Union." (As recalled in her pretrial affidavit, "Bailey said that if [I] came back I'd have to sign a card saying that I would not have any part of the Union.") The evidence indicates that by this time, the Company had already arranged for Shift Kitchen Manager David Cazzell to have the antiunion cards signed at least by the kitchen employees. Around midnight, as kitchen employee Ronald Copher credibly testified, blank cards were on Restaurant Manager Lawrence's office desk. Cazzell told Copher, together with kitchen employees Shirley Warner and Dorothy Coslet (now Badginer), to sign the little cards "saying that we didn't want the union, and if we didn't we wouldn't have a job." Cazzell instructed them to underline 686 TUSCOLA TRUCKERS' HOME the word "didn't" on the cards, and to leave them on the office desk where he would pick them up. Similarly, as credibly testified by Shirley Warner, Cazzell "said we had to sign a statement saying 'I don't want the Union,' and leave it in Jerry Lawrence's office or that we wouldn't have a job." (The 3-by-5 cards, signed by Copher, Shirley Warner, and Coslet and dated October 31, read respective- ly: "I don't won't a union," "I don't want a Union!" and "I do not want a union. ") Cazzell, the night-shift kitchen manager, did not confine his union-denouncing campaign to the night shift. Kitchen employee Donna Conner, who works days under Day Shift Kitchen Manager Lee Sheff, credibly testified that about I 11 o'clock on Monday morning, November 1, Cazzell told her-in the presence of employees Eileen Dukeman, Linda Conner, and Barb Lewis in the food preparation area-to write down, "I do not want a union," and to underline "Do not." She "told him that I would like to think about it, and I wanted to call my boyfriend and ask him about it. And he said, no, I had to sign it before noon." (The 3-by-5 cards, signed by Donna Conner, Eileen Dukeman, and Barb Lewis and dated November 1, read: "I don't want a union But! That's All," "I do not want to join a union," and "I do not want to go union.") After signing the card and giving it to Cazzell, Donna Conner complained to Senior Assistant Manager Shinnick in the VIP Room that "1 didn't think it was fair that I had to sign before noon." Shinnick responded by talking against the Union, stating "they'd take out . . . union dues, and . . . order us around, like . . .in a camp or something," but telling her that it was up to her if she wanted a union. However, he did not retrieve her card. Thus Shinnick (who was present when General Manager Bailey told waitress Bobbie Warner that she would have to sign an antiunion card) was at least aware that Cazzell was present on the day shift, requiring the signing of antiunion cards, and was at least acquiescing in Cazzell's placing a Monday noon deadline on signing the cards in the kitchen. (Cazzell did not testify. Donna Conner appeared to be giving her best recollection of what happened; I credit her account, and discredit Shinnick's denials.) Although Restaurant Manager Lawrence claimed that he was working in the kitchen 18 or 20 hours a day, "every hour that I could stay on my feet," and although the blank 3-by-5 cards were stacked on his desk and Shift Kitchen Manager Cazzell was telling employees to put the signed cards back on Lawrence's desk, Lawrence claimed that he never saw one of the antiunion cards until shortly before the hearing, and had no knowledge of any of them being left in his office. (I discredit his denials.) General Manager Bailey denied any knowledge of Cazzell's activity in getting the antiunion cards signed, and gave a clearly fabricated account of how he first learned about the writing of the 64 antiunion statements (43 on 3- by-5 cards and 21 on slips or sheets of paper) in evidence (31 dated October 31, 24 dated November 1, 4 dated November 2, and 5 undated). He testified that on Sunday evening, October 31, busboy Larry Dehart came to the control center where Bailey was working and said, "I signed the card with the Union . . . I didn't know what I was signing at the time ... I want to write something that will cancel out that." According to Bailey, he responded, "Well, Larry, I really don't know what you want to write, or anything, I guess you can do whatever you want." Dehart said, "Well, I would like to write out a statement . . I want to write out one because I know when I write one out, [employee] Tim Seip is going to come in here and he is going to try to outdo me." Bailey said, "Why on earth do you want to write out a statement?", and Dehart answered, "Well, I signed a statement with the Union and I don't want any part of it." (Emphasis supplied.) Bailey said, "I can't tell you what to do," and granted Dehart's request that he leave the statement with Bailey. Not only is such a conversation implausible, but Dehart's statement says nothing about canceling a union card and is clearly dated November 2, which was on Tuesday, 2 days after the date on Seip's October 31 card. (When so testifying, Bailey appeared to be less than truthful.) In turn, Senior Assistant Manager Shinnick testified, "Many times they would hand them to me but I said I am not dealing with them ... they can do whatever they want with them . . . We're not saving them . . . distribute them among yourselves or do whatever you want to." (Again he appeared less than candid.) In its brief, the Company contends that all the antiunion statements "were products of the voluntary and uncoerced desires of employees." To the contrary, I find that the statements were written and signed after at least some of the nonstriking employees were threatened with discharge unless they did. The Company also contends in its brief that it "could not be charged with responsibility for either [Cazzell's] words or deeds." I disagree. Cazzell is one of the several assistant managers who, in the kitchen, were also referred to as "shift kitchen manager." (The company brief states that there is "no such job classification" as "shift kitchen manager" at the facility, but at the time of the hearing, a large I I-by-13 sign--referring to Cazzell and Lee Sheff- was found prominently posted in the kitchen, reading "CHECK WITH SHIFT KITCHEN MANAGER BEFORE TAKING BREAKS," and General Manager Bailey admitted that Cazzell's duties and responsibilities remained unchanged from the time of the walkout until the hearing.) Bailey claimed that Cazzell and Sheff had no title, and he and Restaurant Manager Lawrence referred to them as "shift leader"-despite their posted title of "shift kitchen manag- er." (In an apparent effort to belittle the status of Cazzell and Sheff, Bailey claimed that even Robert Shinnick was merely a "trainee," with "no authority other than just to do the job, ask questions and learn," so that when promoted, "he can direct other people"; and "I would say December I" was when he was promoted to assistant manager. Also in its brief, the Company asserts that Shinnick was "then employed in the capacity of management trainee." Yet elsewhere Bailey testified that Shinnick was part of management even before the opening of the truckstop; the Company's answer admits that Shinnick was a Section 2(11) supervisor; and at the time of the strike, Shinnick's title was "Senior Asst. Mgr.," as shown on his official business cards which were handed to nonstriking employ- ees as free meal tickets.) The credited testimony of the employee witnesses makes clear that the employees 687 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considered, in Lawrence's absence, Cazzell to be in charge of the night kitchen shift and Sheff in charge of the day kitchen shift. Furthermore, I note that Restaurant Assis- tant Manager McMahan referred striker Duszynski to Sheff when Duszynski attempted to get his job back; Sheff was present in the office with Lawrence and McMahan when Lawrence refused to rehire Duszynski; and employee Donna Conner credibly testified that Sheff handed her and cook Linda Conner the Shinnick business cards as meal tickets. Concerning the actual authority possessed by Cazzell and Sheff, neither of them testified, and I consider Bailey's and Lawrence's denials too untrustworthy to be relied upon. However, I find it unnecessary to make a specific finding on Cazzell's actual supervisory authority. As in N.L.R.B. v. Pacific Southwest Airlines, 550 F.2d 1148, 1150 (1977), the Company "did act through" Cazzell "for the purpose of undermining the Union," and Cazzell's "actions are fully attributable to it." Furthermore, "the record establishes that the Respondent placed him in a position where employees . . . could reasonably believe that he spoke on behalf of management and, therefore, I find that his acts are imputable to it." Broyhill Company, 210 NLRB 288, 294 (1974). I therefore find, as alleged in the complaint, that the Company threatened employees with discharge if they did not sign antiunion statements in violation of Section 8(a)(1) of the Act. 5. Other alleged interference About 11:30 Friday night, October 29, when Senior Assistant Manager Shinnick telephoned waitress Raynie Stout about whether she would report to work as scheduled on Saturday, he told her (as she credibly testified) "those that were working there would be given free meals and a bonus" (before warning her that she would be fired if she did not come in). Similarly between 11 and 11:30 p.m. in the kitchen, as nonstriker Shirley Warner credibly testified, Restaurant Manager Lawrence told Warner, in the pres- ence of kitchen employees Ronald Copher, Dorothy Coslet, Linda Turner, and Jimmy Goodman, that "anyone that stuck the night out would be rewarded." As recalled by Copher, Lawrence said that "if we stayed at work that night we'd be rewarded." About an hour or so later, in the presence of employee Katy Dewey, Warner asked Law- rence if he had found out what the reward would be. Lawrence said "that Dr. Podesta said that we would have a bonus on our next paycheck." (Shinnick denied the promise of extra benefits. Lawrence admitted telling Warner and Copher there was going to be some sort of reward, but claimed that this was a reward "for extra effort and hard work and taking up the slack of the people that had walked out"-even though none of the night kitchen crew walked out and Lawrence admitted that he was not shorthanded in the kitchen, that "everyone was there." I discredit Shinnick's denial, and discredit Lawrence's purported explanation, for "extra effort and hard work," as an afterthought given in an effort to justify the subsequent granting of extra benefits to nonstrikers.) I find that the Company made the promises to reward nonstrikers with extra benefits if they remained at work, thereby interfering with the exercise of employee Section 7 rights in violation of Section 8(a)(I) of the Act. As previously indicated, Monday morning, November 1, was the Company's last deadline for strikers to return, even though replaced. Shortly before noon that day, nonstriker Donna Conner had a discussion with Shinnick in the VIP Room, as previously discussed. Contrary to Shinnick's denials, Conner credibly testified that "close to the closing of our conversation he said . . . that the people that were on the line picketing was already fired . . . The day they walked out." I find that this statement tended to coerce employees in the exercise of their right to engage in a strike, in violation of Section 8(a)(1), and also revealed the attitude of management toward those strikers who had refused to return to work by the Monday morning deadline. I find it unnecessary to rule on various other alleged violations of Section 8(a)(1) before the filing of the election petitions. E. Strike Prolonged On Tuesday, November 2, the Union began picketing with "Unfair Labor Practices Strike" picket signs, and sent General Manager Bailey a mailgram, advising him "that your employees are on strike because of numerous unfair labor practices committed by you and your representatives of the Company," and stating that he and his legal advisors "are well aware unfair labor practice strikes are entitled to additional protection under the National Labor Relations Act." Company Attorney Gerald Tockman sent a reply telegram on November 3, stating "The most recent misrepresentation by you and Local 573 was received today. In this latest piece of irresponsible publication, you say you are advising that our 'employees are striking.' Our employees are not on strike .... You, your union and your accomplices will be held responsible for any and all injuries." As found, a contributing cause of the October 29 strike was the illegal discharge of waitress Dorothy Stuck. Since the strike began, the Company had engaged in a number of illegal actions to undermine the Union and break the strike. It unlawfully discharged strikers Julie Jaco, Mitchell Duszynski, Allen Bryant, and Ann Foreman. It had one of the union representatives wrongfully arrested in front of picketing strikers. It held a nonstriker vote on which strikers would be permitted to return, and required strikers to apologize to nonstrikers in order to be reinstated. It threatened to discharge any other kitchen employee who participated in the Union; threatened to discharge an off- duty waitress if she did not come to work (before she joined the strike and picketed); and threatened to blacklist strikers. It told a striker that management would definitely not let a union in. Instead of meeting with the Union on Monday, November 1, as requested, it began on Saturday night coercing employees to sign antiunion statements. It promised to give nonstrikers extra benefits for not striking. And finally, about Monday noon, following the last deadline for strikers returning to work even though replaced, the Company stated that the strikers were fired on the day they walked out. 688 TUSCOLA TRUCKERS' HOME I find that even if it were assumed that the October 29 strike "initially involved no unfair labor practice," the unfair labor practices committed in the first 3 days after the walkout "prolonged" and "aggravated" the strike and converted it into an unfair labor practice strike. General Drivers Local 662, Teamsters [Rice Lake Creamery Co.] v. N. LR.B., 302 F.2d 908, 911 (C.A.D.C., 1962), cert. denied 371 U.S. 827. F. Postpetition Violations 1. Threats and discharge of union supporters By the time the election petitions were filed on Novem- ber 3 and 5, a total of 64 nonstriking (and returning) employees had signed antiunion statements, and various arrangements had been made to replace the strikers. However, on November 5, two nonstriking kitchen em- ployees displayed open support of the striking Union. Shirley Warner (who "helped with the baking, on the grill, prep cook, dishwasher") and Ronald Copher (dishwasher and food prep) began wearing local union "steward" buttons to work and began picketing during some of their off-duty hours. Restaurant Manager Lawrence had several discussions with Warner and Copher about wearing the union buttons. Lawrence asked or suggested that they remove the buttons, but they continued wearing them. (Lawrence denied asking them to remove the buttons. However, as credibly testified by kitchen employee Dorothy Coslet, Lawrence told her that Friday night, November 5, "that he had asked them to remove the buttons"; she later heard Warner and Copher explain to Lawrence why they should keep them on; and in another conversation, Lawrence told Warner and Copher that he still "thought they should take them off and go ahead and do their job.") Finally, on Sunday night, November 7, General Manag- er Bailey had a long conversation with Warner and Copher in Lawrence's office. As Warner (who appeared to be a most sincere witness) credibly testified, "Mr. Bailey said that he was disappointed that we had the Union buttons on and us two with the Union buttons on was going to cause a 170 employees to lose their jobs . . . that he would close the restaurant and make a bowling alley out of it before he would hire anyone back that had anything to do with the Union or the strike. And he also made a comment that [Coowner] Wilhelm wouldn't have anything to do with anyone that had anything to do with a strike in a place that he had money in." (Copher recalled that Bailey said that if the Union got in, they would close the place down and make it into a bowling alley; said that Warner and he were "causing 170 people to lose their jobs" because of their wearing the union badges; and made a comment about Wilhelm and where he had his money.) Bailey also said that if Warner and Copher took off their badges, "we would still have a job." (Warner could not recall how the subject of religion was raised, but Copher recalled that Bailey said he was a Catholic and he swore before God "that you wouldn't lose your jobs whether you went union or not.") Warner said no, she and Copher would not (still have ajob if they took off their badges) and stated that the badges. "were protecting our jobs." Bailey responded (as Warner credibly testified) that "he could find a thousand and one ways to fire us." (As recalled by Copher, Bailey added that "he could find a thousand and one reasons to fire us.") Still Warner and Copher refused to take off the local union "steward" buttons. (Bailey talked privately with kitchen employee Coslet that night about Warner and Copher wearing union buttons, and told her that that "wouldn't have anything to do with whether or not we were fired"-without adding the comment about finding 1,001 ways to fire them.) I discredit the denials, and find that Bailey unlawfully threatened Warner and Copher by telling them that their wearing the union buttons would cause 170 employees to lose their jobs, that the restaurant would be closed and made into a bowling alley before the Company would rehire the strikers, that Coowner Wilhelm would not have anything to do with a striker in a place where he had his money, and that there were a 1,001 ways to fire Warner and Copher (if they continued to wear union buttons), thereby violating Section 8(aX I) of the Act. Between November 5 (when Warner and Copher began wearing union buttons to work) and November 11, they were not working full time. They were given permission to go home early or were told that they were not needed on several occasions, and on Wednesday night, November 10, Warner was not permitted to work because she had taken off Monday and Tuesday as previously scheduled, not knowing that her schedule had been changed. Warner and Copher complained to the Union that "they just wasn't sure ... whether they had a full-time job out there" (since they began wearing the union buttons and picketing), and on Thursday afternoon, November 11, the Union included both of their names in a telegram to the Company, stating that the named employees "are willing to terminate the unfair labor practice strike against your company" and "are unconditionally available to return to work immedi- ately at their regular hours and job classifications." The Company received the telegram on Friday, November 12, and immediately sent a reply telegram, stating that "the following named people," including Warner and Copher, have been replaced by new employees. (It is undisputed that even though the reply telegram was sent during the day on Friday, Copher was scheduled to work that Friday night, and did work part of the night.) On Saturday morning, after seeing the Company's reply telegram at the union hall, Warner and Copher went to the truckstop and talked to Restaurant Manager Lawrence. As Warner credibly testified, "I asked Jerry why we had been replaced," and Lawrence said "as far as he was concerned, that we still had our jobs, but that we'd have to be nice and talk to Mr. Bailey and he would have the last say so on it." Lawrence then referred to Warner and Copher as union agents and "wanted to know how we could cross our own picket line." (Copher recalled that Lawrence said that he did not know why they were replaced, that "If we was nice to Mr. Bailey we might be able to get our jobs back," and that "we was some kind of agents and [he] could [not] understand how we could cross our own picket line." I discredit Lawrence's denials.) Warner and Copher did not contact Bailey at the time because he was out of town. Shortly after the November 19 election, they asked Bailey if they could have their jobs back. He said they would have 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to fill out a new application and be interviewed again, and he set up an appointment for them to see Lawrence. However, Lawrence failed to appear for the appointment. On December 9, the Company placed ads in both Tuscola newspapers for various classifications including "Dish- washer," and "Prep Cook." At the hearing, the Company shifted positions and contended that Shirley Warner and Ronald Copher had not been replaced by new employees (as stated in the November 12 telegram), but that their jobs had been eliminated. Restaurant Manager Lawrence claimed that two other food prep and dishwashers were doing their own work plus the work of Warner and Copher, but conceded at one point that they were "super busy" in the kitchen at times. When questioned on cross-examination about the newspaper advertising for help, he denied that he was aware of it, denied that anybody consulted him about it (although he was in full charge of the kitchen), and claimed that "They possibly could have been taking applications, but I wouldn't have needed any help." (From his demeanor on the stand, he appeared to be fabricating his answers.) The General Counsel contends that the Company in fact discharged Warner and Copher, whereby it "successfully eliminated the last bastion of open support for the Union at the truck stop, clearly demonstrating to its employees that any support for the Union would not and will not be tolerated." The Company contends that Warner and Copher "stopped coming to work," that they "were repeatedly assured by Managers Lawrence and Bailey that * . . wearing of union buttons would have absolutely no effect upon their positions," that they were not threatened, and that their jobs were "eliminated." After considering all the evidence and circumstances, including the Company's union animus, its determination to defeat the Union's strike and organizational effort, and its shifting positions, I find that when it sent the Union the November 12 telegram, falsely stating that Warner and Copher were "replaced by new employees," it discrimina- torily discharged them because of their open support of the Union on the job. Accordingly, I find that their discharge, and the refusal since then to reinstate them, violated Section 8(a)(3) and (I) of the Act. 2. Other threats and interference On November 3 or 4, as nonstriker Donna Conner credibly testified contrary to the denials, Restaurant Manager Lawrence approached her while she was washing dishes and "asked me if I was planning on walking out on . . . the picket line." She said no, and "he said . . . that we'd be fired if we went on the picket line." (This occurred several days after Lawrence wrote, "Fired, walked off job" by the crossed-off names of cooks Duszynski and Bryant on the kitchen employee schedule, and told other kitchen employees that "if anybody participate in the union, [they] would be fired," and a day or two before kitchen employees Warner and Copher began picketing and wearing union buttons.) I find that this threat was coercive and violated Section 8(a)(l) of the Act. Before midnight on October 29, as found above, Lawrence told kitchen employees that "anyone that stuck the night out would be rewarded," and Senior Assistant Manager Shinnick told waitress Stout that "those that were working there would be given free meals and a bonus." On the next Friday afternoon, November 5 (before Warner and Copher went to work that night wearing union buttons), General Manager Bailey met in his office with Lawrence, Warner, Copher, Coslet, and "a guy from the Control Center." Bailey "said that he had found out that the reward wouldn't be very much," between $100 -and $200 divided among the employees, and that he would hand it to the employees in cash, a dollar or 2 each, but he was afraid to do it then because of the Union. The next morning, Shinnick posted a notice, reading "A small bonus will be given to those employees who worked through last Friday nite-You will later be notified." Meanwhile, Shinnick (assisted by Shift Kitchen Manager Sheff) distributed to all kitchen and dining room employees a meal ticket (written on Shinnick's business cards) for the "best meal" in the house. The Company contends that the meals were given "as compensation for working added hours and performing additional duties following the walkout"; however, they were given to all nonstrikers, including those on the night kitchen shift who performed their regular work, without any additional hours or duties. The Company also contends in its brief that the only "bonus" or "reward" given to employees was "completely unrelated" to any union activity. To the contrary, I find that the promise of the cash bonus, the posting of the bonus sign, and the distribution of free meal tickets to nonstriking employees constituted rewards for not joining the strike. I therefore find that they tended to interfere with the right of employees to exercise their Section 7 rights, in violation of Section 8(a)( 1) of the Act. About the second week of the strike, Coowner Podesta drove to the picket line and had a long conversation with several of the striking employees. It is undenied, as cook Duszynski credibly testified, that when the subject of their jobs came up, Dr. Podesta "told us that we had been fired and that we couldn't have our jobs back." I find that this statement was clearly coercive and violated Section 8(a)(1) of the Act. Because of the large number of serious violations already found, I find it unnecessary to rule on the remaining alleged Section 8(a)(I) violations. 3. Reinstatement refused On November 11, the Union sent the above-mentioned telegram (received by the Company on November 12), making an unconditional offer to return to work on behalf of the "unfair labor practice strikers," including five strikers found to have been discriminatorily discharged (Dorothy Stuck, Julie Jaco, Mitchell Duszynski, Allen Bryant, and Ann Foreman) and six other alleged discrimi- natees (Clara Clark, Harriet Clark, Michael Stout, Raynie Stout, Bobbie Warner, and Ruby Wood). The Company immediately responded, stating in a November 12 telegram that the named people "have been replaced by new employees" following their "unauthorized" walkout. (Em- phasis supplied.) Since November 12, it is undisputed that the Company has not made any offer through the Union, nor directly to any of the 11 above-named strikers, for reinstatement. 690 TUSCOLA TRUCKERS' HOME The Company conceded at the hearing that the strikers had not all been replaced by new employees-most of them being replaced by the reassignment of employees already working at the truckstop. However, the Company's defense is that the walkout was an "economic" or "recognition" (not an "unfair labor practice") strike, and that all II of the strikers "have been permanently replaced prior to November 12." The Company contends that inasmuch as they are therefore permanently replaced economic strikers, it "is not legally obliged to reinstate" any of them "at this time." (In this connection, I note that seven of the strikers-Clara Clark, Harriet Clark, Jaco, Raynie Stout, Stuck, Bobbie Warner, and Wood-were waitresses, and that the Company advertised for waitresses on December 9, 16, 21, 23, and 24. 1 also note, concerning General Manager Bailey's credibility, that he gave false testimony about the replacement of waitress Harriet Clark. He testified on direct examination that Clark was replaced, "from the first part of November through the time of the [Company's November 12] telegram," by Roxann Smith. On cross-examination, he revealed that before giving this testimony, he "researched" the matter and "looked through the pay records" to decide who replaced whom "and this is what I gave to Mr. Tockman when he asked me on the witness stand." However, Smith's timecards show that she did not work from the first part of November through November 12, as Bailey testified, but from October 14 through 20-over a week before the strike. I discredit Bailey's claim on redirect examination that he was under the "impression" that Smith worked the first part of November. I further note that in its brief, the Company relies on Bailey's false testimony in contending that Clark was one of the strikers "permanently replaced prior to November 12," despite the fact that Bailey's testimony is belied by Smith's timecards and also the fact that Bailey's testimony is clear that Smith was hired only temporarily, before the strike.) The General Counsel contends that "The facts clearly indicate that these employees were unfair labor practice strikers entitled to immediate reinstatement after the Union made on their behalf an unconditional offer to return to work on November Ii." Having found that waitress Stuck's discriminatory discharge was at least a contributing cause of the strike, I find that the strikers were unfair labor practice strikers whom the Company was obligated to reinstate even if permanently replaced. Moreover, even assuming that the strike was an economic one at its inception, the replace- ments were temporary until the November I deadline for strikers to return; and by that time, the Company's many serious unfair labor practices in the first days of the strike would have converted it into an unfair labor practice strike, entitling the strikers to reinstatement although permanent- ly replaced thereafter. I therefore find that by refusing on November 12 the strikers' unconditional offer to return to work, the Company unlawfully discriminated against them in violation of Section 8(a)(3) and (1) of the Act. 111. REPRESENTATION PROCEEDING The election was held on November 19 in a unit of all full-time and regular part-time employees, excluding professional employees, guards, and supervisors. The vote was 5 for and 75 against union representation, with 61 challenged ballots. The Company contends in its brief that the "vast majority" of the Union's objections "were the subject matter of General Counsel's various unfair labor practice allegations," and argues that no unfair labor practices were committed and that these and other union objections to the election are completely without merit. Having found that the Company's conduct cited above in "Post-Petition Violations" (occurring between the filing of the first petition on November 3 and the holding of the election) violated Section 8(aXl) and (3) of the Act, I sustain the Union's objections based on this conduct (including the discriminatory discharge of employees Warner and Copher for wearing union buttons and openly supporting the Union). I also sustain the Union's objection to a threat that the owners were going to close the truckstop if the Union won the election. Employee Donna Conner credibly testified that on November 17, she overheard Service Manager Joe Davis tell Shift Kitchen Manager Lee Sheff, in the presence of employee Mary Davis, that Coowner Wilhelm "left a note saying that [if] the union won that it [would] be closed down at midnight." (I discredit Davis' denial.) Accordingly, I find that during the critical period between the filing of the petition and the holding of the election, the Company engaged in serious misconduct which interfered with the employees' exercise of a free and untrammeled choice of representation, and that the election must be set aside and a new election held. (I find it unnecessary to rule on the Union's other objections.) CONCLUSIONS OF LAW I. By discriminatorily discharging and thereafter refus- ing to reinstate employees Dorothy Stuck on October 29 and Ronald Copher and Shirley Warner on November 12, and by discriminatorily discharging unfair labor practice strikers Mitchell Duszynski and Allen Bryant on October 29, Julie Jaco on October 30, and Ann Foreman on November 1, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(aX3) and (1) and Section 2(6) and (7) of the Act. 2. By threatening to discharge employees for striking, picketing, or participating in a union; by promising employees a bonus and promising and giving them free meals for not striking; by coercively interrogating employ- ees; by requiring strikers to apologize to nonstrikers for striking, and to get a favorable vote of nonstrikers in order to be reinstated; by conducting a nonstriker vote on which strikers are to be permitted to return to work, and notifying strikers of the vote; by threatening to blacklist strikers and stating it would definitely not let a union in; by threatening nonstrikers with discharge unless they signed antiunion statements; by telling unfair labor practice strikers that they had been discharged and could not have their jobs back; by telling nonstrikers that it would close the restaurant and make a bowling alley out of it before rehiring strikers; by telling nonstrikers that one of the owners would not have anything to do with a striker in a place where he had his money; by telling employees that 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their wearing union buttons would cause all of the employees to lose their jobs, and that there were 1,001 ways to fire them; and by causing the wrongful arrest of a union representative, in the presence of picketing strikers, for leading a lawful strike, the Company violated Section 8(a)(1) of the Act. 3. By refusing on November 12 and thereafter to reinstate unfair labor practice strikers Clara Clark, Harriet Clark, Michael Stout, Raynie Stout, Bobbie Warner, and Ruby Wood, as well as the illegally discharged strikers Jaco, Duszynski, Bryant, and Foreman, upon their uncon- ditional offer to return to work, the Company violated Section 8(a)(3) and (1) of the Act. REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find it necessary to order Respondent to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent having refused on and since November 12, 1976, to reinstate upon their unconditional offer to return to work, the four discriminatorily discharged unfair labor practice strikers (Bryant, Duszynski, Foreman, and Jaco) and six other unfair labor practice strikers (Clara and Harriet Clark, Michael and Raynie Stout, Bobbie Warner, and Wood), I find it necessary to order it to offer them full reinstatement, with backpay computed on a quarterly basis plus interest at 6 percent per annum in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from November 12, 1976, to the date of proper offer of reinstatement. The Company also having on October 29, before the strike, discriminatorily discharged and thereafter refused to reinstate one employee (Stuck) and, on Novem- ber 12, discriminatorily discharged and thereafter refused to reinstate two nonstriking employees (Copher and Shirley Warner), I find it necessary to order it to offer them full reinstatement, with backpay computed in the above-de- scribed manner from the date of discharge to date of proper offer of reinstatement. Concerning the prestrike discharge, it is "well settled that employees who are discriminatorily discharged prior to a strike are entitled to backpay for the entire duration of the strike," Polynesian Cultural Center, Inc., 222 NLRB 1192, 1194, fn. 12 (1976), "because the employer's own discrimination against the claimant makes it impossible to ascertain whether such claimant would have gone out on strike in the absence of the discrimination [or in the present cases, whether there would have even been a strike] and the resulting uncertain- ty must be resolved against the employer." Winn Dixie Stores Inc., 206 NLRB 777 (1973), enfd. 502 F.2d 1151 (C.A. 4, 1974). Inasmuch as Respondent's unlawful conduct goes to the very heart of the Act, I find it necessary to issue a broad order, requiring Respondent to cease and desist from infringing upon employee rights in any other manner. 2 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. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 2 The Respondent, Tuscola Truckers' Home, Inc., Tusco- la, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against any employee for supporting Laborers' International Union of North America, Local 573, or any other union. (b) Threatening to discharge employees for striking, picketing, or participating in a union. (c) Promising or giving extra benefits to employees for not striking. (d) Coercively interrogating any employee about union support or union activity. (e) Requiring strikers to apologize to nonstrikers for striking, and to get a favorable vote of nonstrikers, in order to be reinstated. (f) Conducting a nonstriker vote on which strikers are to be permitted to return to work, or notifying strikers of such a vote. (g) Threatening to blacklist strikers. (h) Warning that it definitely would not let a union in. (i) Threatening nonstriking employees with discharge unless they sign antiunion statements. (j) Informing unfair labor practice strikers that they have been discharged and could not have their jobs back. (k) Warning nonstriking employees that it would close the restaurant and make a bowling alley out of it before rehiring strikers. (1) Informing nonstriking employees that one of the owners would not have anything to do with a striker in a place where he had his money. (m) Informing employees that their wearing union buttons would cause all of the employees to lose their jobs. (n) Informing employees wearing union buttons that there were 1,001 ways to fire them. (o) Causing the wrongful arrest of a union representative, in the presence of picketing strikers, for leading a lawful strike. (p) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer discharged employees Ronald Copher, Dorothy Stuck, and Shirley Warner; discharged unfair labor practice strikers Allen Bryant, Mitchell Duszynski, Ann Foreman, and Julie Jaco; and unfair labor practice strikers Clara Clark, Harriet Clark, Michael Stout, Raynie Stout, Bobbie Warner, and Ruby Wood, immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, dismissing, if necessary, any replacements, and make them 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. 692 TUSCOLA TRUCKERS' HOME whole for any loss of pay or other benefits in the manner set forth in the "Remedy" section of this Decision. (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, personnel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its truckstop in Tuscola, Illinois, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. 3 In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Officer-in-Charge, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the election held in Cases 38-RC-2016 and 38-RM-138 on November 19, 1976, be set aside, that the case be remanded to the Officer-in- Charge, and that a new election shall be conducted when the Officer-in-Charge deems the circumstances permit a free choice by the employees. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 693