Parkway Manor-Village Inn, Inc.

574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Parkway Manor-Village Inn, Inc. and United Food and Commercial Workers Local 1357, AFL- CIO-CLC. Case 4-CA-17496 August 28, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On January 30, 1990, Administrative Law Judge Richard H Beddow Jr issued the attached deci- sion The Respondent filed exceptions and a sup- porting bnef, and the General Counsel filed an an- swenng brief The Charging Party joined in the General Counsel's brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions 1 and briefs and has decided to affirm the judge's rulings, findings, and to conclusions and adopt his recommended Order 2 The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging an employee for her union activities and repn- mandmg another employee because of her union activities We agree The Respondent operates a family restaurant in Allentown, Pennsylvania Since 1987 Robert Stm- ner has been the Respondent's sole owner Robert Stmner's wife, Joyce Stmner, works at the restau- rant as a hostess The Respondent's employees have never been represented by a union On May 8, 1988 3 (Mother's Day), waitress Kath- ryn Spencer, an 8-year employee of the Respond- ent, had worked a long day and told Joyce Stmner that she did not want to take any more tables after 8 p m because she was exhausted and had a head- ache Over Spencer's objections, Joyce Stmner continued to seat customers in Spencer's area Al- though upset and m tears, Spencer served these 'The Respondent has excepted to some of the Judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or 1951) We have carefully examined the record and find no basis for reversing the findings 2 Member Cracraft adopts, for the reasons stated by the judge, the judge's finding that the Respondent, through its attorney, violated Sec 8(aX1) of the Act by interviewing employee Brenda Mankos concerning union activities and matters involving a forthcoming unfair labor practice proceeding without providing her with the necessary affirmative safe- guards As noted in his partial dissent, Member Oviatt also agrees with the 8(a)(1) finding, for the reasons stated by the judge Chairman Ste- phens does not rely on the Judge's analysis invoking Johnnre's Poultry Co, 146 NLRB 770 (1964), enf denied 344 F 2d 617 (8th Cir 1965), but finds that, under all the circumstances, the questioning was coercive 3 All dates are 1988 unless otherwise indicated people and continued working until 10 p m that evening The following day Spencer contacted the Union and arranged to have a union meeting for the Re- spondent's employees Also that day, Spencer sent a letter to Joyce and Bob Stmner complaining about having had to work from 10 30 a m to 10 p m the previous day The letter also said 2 We are not union members—but if we were we would get a break to sit down to eat and to rest No one should be required to work 11 hours straight through without a break and a meal 3, The main dining room last night was where the people should have been seated who came in late Kns and I were there long after the waitresses who came in at 3 30 After so many faces, so many dinners and so many lousy tips, it is pretty difficult to do a nice job of waiting on people that come into the restaurant later in the evening I did feel quite bad for my 8 00 customers who got a tired, irritable, and crying waitress What kind of a way is that to run a restaurant? I used to care about the work I did, and the place that I worked for When I realize now that my employers don't care at all about me—I wonder why do I go the extra yard and care about their restaurant? Over the years, the people who work at the Village Inn have had a drastic change in attitude I understand why A little kind consideration, a few words of thanks—these things would make a great difference Because you, Bob and Joyce, are the ones who own this restaurant, I had to write to tell you how I felt You can't expect people to continue to give blood and give them no care in return Your restaurant will surely fail Robert Stmner reacted angrily to Spencer's letter He told Joyce that he should fire Spencer He testified that he got angry because he did not like having an employee tell him that his restaurant will fail On May 24, the Union had its first meeting with the Respondent's employees A second meeting was held in early June These meetings were held at Spencer's home Spencer began distributing union literature and authorization cards to employ- ees at the restaurant sometime after the May 24 meeting Robert Stmner testified that by mid-June he knew that employees were involved in union ac- tivity and suspected that Kathryn Spencer was one of those involved 299 NLRB No 88 PARKWAY MANOR-VILLAGE INN 575 On July 6, Spencer prepared a takeout order and added a gratuity to the check without first seeking the customer's approval After paying, the custom- er complained to Robert Stmner about having had the gratuity added to the check &inner told Greg- ory Wardenski, the Respondent's manager, about the customer's complaint Stmner directed War- denski to brmg the matter to Spencer's attention, to get the gratuity back from her, and to return it to the customer When Wardenski warned Spencer not to add tips to the checks on takeout orders, Spencer replied that she would no longer do take- out orders Wardenslu made no further comment and walked away On July 16, Joyce Stmner approached Spencer, who was taking a short break, and asked her to prepare a takeout order Spencer refused to do so Joyce Stmner next asked waitress Sally Miller, who was also taking a short break Miller also re- fused the request Stmner asked two other waitress- es, who replied that they were too busy, before she finally found a waitress who agreed to prepare the takeout order Having found someone to prepare the takeout order, Joyce Stmner approached Wardenski and asked what was going on She testified that she thought that Spencer and Miller "had something going between them" and that it "seemed like pick on Joyce night" After speaking with Wardenski, Stmner then went upstairs to her husband's office She was visibly upset and complained to him about Spencer and Miller Seeing that his wife was upset by the matter, Robert Stmner also became upset He went to Wardenski and told him to discharge Spencer, stat- ing that he could not take it anymore, "one inci- dent after another" Stmner also told Wardenslu to give Miller a warning Waitress Kathleen Ambrosmo testified that wait- resses at the Respondent's restaurant were general- ly expected to prepare takeout orders unless they were too busy Other waitresses testified that in the past when they were busy, they had declined re- quests to prepare takeout orders without giving an explanation and were not disciplined That evening, Wardenslu reprimanded Miller and gave Spencer a note to call him at home When Spencer did not call him that evemng, War- denski called her the next morning and told her that she was discharged for refusing to do the take- out order Spencer's discharge occurred 2 days before a third union meeting was to be held at Spencer's home After this third meeting no further union activity occurred Applying the criteria set forth in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 US 989 (1982), approved in NLRB v Transportation Management Corp, 462 U S 393 (1983), the judge found that the Respond- ent's discharge of Spencer and reprimand of Miller violated Section 8(a)(3) and (1) of the Act In its exceptions, the Respondent argues that the judge erred in finding a prima facie case because there is no evidence that the Respondent intended to dis- courage union activity by discharging Spencer and reprimanding Miller Further, the Respondent argues that the judge erred in finding that the Re- spondent failed to show that Spencer would have been discharged and Miller reprimanded absent their union activities We agree with the judge that the General Coun- sel established a prima facie case that Spencer's union activities were a motivating factor in the Re- spondent's decision to discharge her Like the judge, we rely on the fact that Spencer's May 9, 1988 letter to the Respondent was admittedly one of the reasons the Respondent discharged her The message conveyed in Spencer's letter is that working conditions were unacceptable and would be better if the Respondent's employees were rep- resented by a umon We find the conveyance of such a message to be protected union activity .1 Nevertheless, the Respondent's owner, Robert Stm- ner, testified that it was not the union message that angered him, but rather the letter's conclusion that his "restaurant will surely fail" The conclusion is inextricably tied to the protected message in the letter, and thus does not serve as a lawful basis for discharging Spencer Because the letter constitutes protected union activity, and because the letter is admittedly one of the reasons for which Spencer was discharged, we find that a prima facie case has been established 5 Having found a prima facie case, the burden shifts to the Respondent to show that Spencer would have been discharged even absent her union activities 6 We find that the Respondent has not met this burden The Respondent has not shown that it would have discharged Spencer for any non- union-related action absent her references to and participation in union activity 4 Thus, we need not decide whether the sending of the letter constitut- ed concerted activity protected from employer Interference by Sec 8(aX1) of the Act See Carpenters Local 925, 279 NLRB 1051, 1059 fn 40 (1986) Our dissenting colleague finds that there is no pnma facie case be- cause Stmner testified that he was angered by the prediction of the res- taurant's failure Had this prediction been made apart from any message concerning union activity, we would likely reach a similar result The prediction, though, was communicated together with a message about union activity Therefore, it must be considered in conjunction with the other statements that were made 0 Wright Line, supra 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD First, there is nothing in the record to indicate that a refusal to prepare a takeout order is grounds for any discipline at all, let alone discharge In the past, waitresses declined takeout requests without explanation and were not disciplined We acknowl- edge that a refusal by a busy waitress and a refusal by a waitress on break might reasonably be treated differently—and, indeed, one employee testified that waitresses, if not busy, were generally expect- ed to prepare takeout orders The Respondent did not show, however, that all the incidents of past refusals in which no discipline was imposed in- volved only waitresses who were busy at the time of the request Thus, it has not been shown that Spencer and Miller, by refusing Joyce Stmner's takeout request, violated an established work rule in a manner that necessarily led to discipline Second, there is no evidence that Spencer's adding a gratuity to a takeout order is grounds for discharge The Respondent handled this incident by requiring Spencer to return the gratuity Noth- ing more was said about the incident and there is no evidence that any further discipline was con- templated Like the judge, we find the Respondent's failure to conduct an investigation of the takeout refusal incident to be mdicative of the pretextual nature of the reasons given for Spencer's discharge Spencer was an 8-year employee of the Respondent The Respondent's manager testified that she was a very good waitress Even though the takeout incident involved the owner's wife, the mcident was a rela- tively minor one We also note that the disparity in the penalties imposed on Spencer and Miller—dis- charge for Spencer's refusal and a repnmand for Miller's refusal—belies any claim that a refusal to prepare a takeout order necessarily resulted in dis- charge Nor can Spencer's discharge be explained as a penalty imposed after lesser penalties were im- posed for previous misconduct, since the Respond- ent has not shown that it was operating under any progressive system of discipline Under these cir- cumstances, we find that the Respondent's extreme reaction to the takeout incident, including its fail- ure to conduct an investigation, supports a conclu- sion that the Respondent seized on an apparent op- portunity to discharge a known union supporter In light of the above, we find that the Respondent has not rebutted the prima facie case and thus Spen- cer's discharge violated Section 8(a)(3) and (1) of the Act We also agree with the judge that the Respond- ent violated Section 8(a)(3) and (1) of the Act by issuing a warning to employee Sally Miller In sup- port of this finding, we note that Joyce Stmner tes- tified that she thought Spencer and Miller "had something going between them" Having conclud- ed that Spencer was unlawfully discharged, we find that this statement establishes a prima facie case that the Respondent believed Miller to be as- sociated with a known union supporter and that this was the reason for her reprimand Given the fact that waitresses were permitted to decline take- out requests without explanation and that there is no evidence that other waitresses have been disci- plined for refusing a takeout request, we further find that the Respondent has not shown that Miller would have been disciplined absent the Respond- ent's perception that she was associated with Spen- cer's union activities ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Parkway Manor-Village Inn, Inc , Allentown, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order MEMBER OVIATT, dISSCIltMg in part This is a simple, factual case A waitress, Kath- ryn Spencer, upset after a long and trymg day, contacts a union She also writes her employer a letter suggesting at one point that unionized em- ployees would be treated better, bitterly conclud- ing that "your restaurant will surely fail" The first union meeting occurred several weeks later at Spencer's home, and she began distributing cards at work The owner, later, learned of the organizing and concedes he suspected that Spencer was one of those involved Who would not Three months after the original incident, a cus- tomer complained that his waitress had added a tip to the bill for a takeout meal Reprimanded and warned not to do so in the future, Spencer retorts that she will no longer prepare takeout orders A little more than a week later, Spencer refuses the hostess' request to prepare a takeout order, as does the next waitress asked, Sally Miller Two more waitresses also refused The hostess who had been rebuffed was Joyce Stmner, wife of the owner She was not, however, part of management Upset, she complained to her husband Her hus- band, complaining of "one mcident after another," had Spencer discharged Miller was warned As I said this, factually, is a simple case The ma- jority, on these facts, finds a prima facie case that Spencer's discharge and Miller's warning were caused by the employees' interest in a union, as ex- pressed in Spencer's letter That, the majority finds, is established by Owner Stmner's testimony that he was angered by the letter's prediction "your restau- PARKWAY MANOR-VILLAGE INN 577 rant will surely fail" Stinner's anger at this threat to his busmess is equated, by the majority, with animus based on their finding that the threat is linked to the protected message That is the only evidence of animus that the majority musters to support finding a prima fame case Finding the prima facie case unrebutted, and linking Spencer and Miller, the majonty finds both discharge and warning unlawful I see the situation differently There is no evi- dence of preexisting ammus And it takes no unusu- al capacity for empathy to appreciate the fact that a businessman would be angered, as Stmner testi- fied he was, at an employee's statement, "Your res- taurant will surely fail" There is no call to look beyond that to account for Stmner's anger Though, as the majority concludes it in fact was, Stmner's anger could have been linked to protected aspects of the letter, that is not the only, or even more likely, conclusion to be drawn And that is the question Is it more likely than not that an em- ployer—otherwise lacking umon animus—would not be provoked by Spencer's baleful prediction I would have been I think most would be That bemg so, I find no prima facie case The series of events, "one incident after another," readily ex- plains the discharge and warning Because I find that a preponderance of the General Counsel's evi- dence does not support a pnma facie case, I could dismiss those 8(a)(3) allegations For the reasons stated by the judge, I agree with my colleagues that the Respondent, through its at- torney, violated Section 8(a)(1) of the Act by inter- viewing employee Brenda Mankos concerning union activities and matters involving a forthcom- ing unfair labor practice proceeding without pro- viding her with the necessary affirmative safe- guards Susan Stahl, Esq and Barbara C Joseph, Esq , for the General Counsel William H Fitzgerald, Esq and Oldnch Foucek III, Esq , of Allentown, Pennsylvania, for the Respondent DECISION STATEMENT OF THE CASE RICHARD H BEDDOW JR , Administrative Law Judge This matter was heard in Bethlehem„ Pennsylvania, on March 6 and 7, 1989, and briefs' subsequently were filed by both parties Upon motion of the General Counsel the proceeding was reopened and a further hearing was held in Philadelphia, Pennsylvania, on November 7, 1989, to consider allegations in an amendment to the complaint Supplemental briefs were filed The proceeding is based upon a charge filed July 20, 1988, 2 by Umted Food And Commercial Workers Local 1357, AFL-CIO-CLC The Regional Director's complaint dated September 30, al- leges that Respondent Parkway Manor-Village Inn, Inc, of Allentown, Pennsylvania, violated Section 8(a)(1) and (3) of the National Labor Relations Act by discharging one employee and issumg a disciplinary warning to an- other because of their union or other protected concert- ed activities The General Counsel also moved at the start of the initial hearing to amend the complaint to allege that Re- spondent, acting through its attorney, also violated Sec- tion 8(a)(1) of the Act by interviewing an employee without assuring the employee that her participation in the interview was wholly voluntary or that no reprisals would take place as a result of the interview The motion was denied, however, in response to the General Coun- sel's appeal the administrative law judge was directed by the Board to permit the amendment and, accordingly, the amendment was received at the further hearing On review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION Respondent is engaged in the operation of a restaurant in Allentown, Pennsylvania During 1988 it derived gross revenues m excess of $500,000 and it annually pur- chases and receives supplies and materials valued in excess of $50,000 directly from points outside Pennsylva- nia It admits that at all times material is it has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES In 1987 Robert Sumer became Respondent's sole owner Previously, he had operated restaurants for 35 years, including 12 years as a part owner of the Re- spondent The restaurant is a general purpose, "up scale" family style restaurant with approximately 100 to 110 employees Most of the approximately 40 waitresses em- ployed at the restaurant work part-time as does Stinner's wife, Joyce &inner, who works as a hostess (taking names, sometimes seating customers, sometimes busing tables and other miscellaneous duties), on Saturday eve- mngs and some Sundays and holidays Gregory War- denslu has been manager of the dining area 1-1/2 years and supervises all waitresses Otherwise, Joyce Stmner not shown to hold a title or to exercise authority that would indicate that she was a statutory supervisor The Union began an organizing campaign at the Re- spondent's restaurant in response to a call on May 9 from Kathryn Spencer and it scheduled a meeting for May 24, to be held at Spencer's home Spencer worked regularly The General Counsel's motion to correct the transcript dated April 27, 1989, is granted and received into evidence as 0 C Eidi 3 2 All following dates will be in 1988 unless otherwise indicated 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD as a waitress at the restaurant between April 1980 and this time, without incident or pnor chiciplme Employees were told of the planned union meeting by Spencer through telephone calls to their homes or con- versations while at work Approximately 10 employees, mostly waitresses, attended the meeting The union rep- resentatives spoke about unionization and handed out union literature and authorization cards In early June, 2 weeks after the May 24 meeting, a second meeting was held at Spencer's home An employ- ee organizing committee was formed and plans were made to go forward with the organizing campaign The majority of the five employees at the June meeting were kitchen employees who had not been at the first meeting A third meeting scheduled for Spencer's home on July 19 It was attended by different kitchen employees, how- ever, no organizational activities took place but those in attendance discussed Respondent's discharge of Spencer which had occurred 2 days earlier Subsequent to that meeting no further union activity occurred Between the May 24 meeting at Spencer's home and the time of her discharge, Spencer distributed union liter- ature and authorization cards to employees who had not attended the meetings She also engaged in numerous dis- cussions about the Union with employees at the Village Inn Often these discussions took place m one of the booths in the East Wmg of the restaurant where the waitresses would have their meals or sit and talk at the end of their shift Spencer also testified that she had dis- tributed authorization cards in the restaurant's kitchen On May 9, the same day Spencer called the Union, she sent a letter addressed to Joyce and Bob Shinier which described the difficulties endured during her previous day's work (Mother's Day) which extended from 10 30 a m to 10 p m The letter went on to say 2 We are not tuuon members—but if we were we would get a break to sit down to eat and to rest No one should be required to work 11 hours straight through without a break and a meal 3 The main dining room last night was where the people should have been seated who came in late Kris and I were there long after the waitresses who came in at 3 30 After so many faces, so many dinners and so many lousy tips, it is pretty difficult to do a nice job of waiting on people that come into the restaurant later in the evening I did feel quite bad for my 800 customers who got a tired, irritable, and crying waitress What kind of a way is that to run a restau- rant9 I used to care about the work I did, and the place that I worked for When I realize now that my employers don't care at all about me—I wonder why do I go the extra yard and care about their restaurant? Over the years, the people who work at the Village Inn have had a drastic change in atti- tude I understand why A little kind consideration, a few words of thanks—these things would make a great difference Because you, Bob and Joyce, are the ones who own this restaurant, I had to write to tell you how I felt You can't expect people to to continue to give blood and give them no care in return Your restau- rant will surely fail At work that previous day Spencer had had a conflict with Joyce Stmner over Stmner's seating customers in Spencer's station at just before 8 p m when Spencer was exhausted, had a headache after workmg all day, and ex- pected to end her shift and go home Spencer told Stm- ner that she did not want to take anymore tables, howev- er, Stmner seated the customers in Spencer's area and Spencer (and her daughter, also a waitress), served them, even though she was upset and in tears at the time Stmner testified that she knew that Spencer was upset at having to serve the customers late in the evening but said she did not think too much of their discussion, as everyone was "testy" because of the heavy busmess that day Approximately 1 hour later, however she told her husband what had occurred Stmner testified that he also did not find the incident to be a problem, said he placed no significance on the mcident, and did not give Spencer any discipline for her behavior After receiving the letter, Joyce Stmner testified that she read it once and did not think much of it one way or the other but showed it to Robert Stmner when he re- turned home She testified that he reacted with anger and told her he should fire Spencer because they had been in busmess for a long time and they should not have a waitress working for them who would tell them their business would fail He testified that he was upset by Spencer's criticism of the way he ran his business and said he thought her reference to a union was just a term of speech On July 6, a second mcident occurred mvolvmg Spen- cer when she was requested to prepare an order for a takeout customer She prepared the order and, without the customer's approval, added a gratuity to the check The total check was paid by the customer but subse- quently the customer contacted Robert Stmner complain- ing about the fact that the tip was added to the takeout order and was not authorized by the customer Stmner directed Wardensla to bring this matter to Spencer's at- tention, to get the tip back from her, and return it to the customer When Wardenski did so, Spencer said that she would not do takeout orders any more, however, War- denslu made no further comment Sally Miller, a 14-year employee of Respondent, testi- fied that on Saturday evemng, July 16, she was in the kitchen taking a cigarette break when she was ap- proached by Joyce Stmner and asked if she could do a takeout order She answered Stmner with a simple "no" without any explanation as to why, and Stainer said nothing further to her Miller further testified that her answer to Stmner's request was not made rudely, loudly, or emphatically Miller went about her regular work after this encounter, however, at the end of the shift she was reprimanded by Wardensla for declining to do the takeout order Miller also said there were other occa- sions when she had declined to do a takeout order but she had never been disciplined for doing so Joyce Stmner testified that just prior to Miller's refusal she had made the same request of Spencer who an- PARKWAY MANOR-VILLAGE INN 579 swered with a plain "no" that Stmner described as being spoken "not nicely like a verbal slap in the face" Stmner first testified she then asked Miller to take the order and that Miller said, "No, I cannot" Stmner then corrected herself and said I really think it was Kathy Ambrosmo I asked next and she said, "No I am really busy" She next asked a waitress named Greta who re- fused by wavering her order slips at Stmner and saying that she "just got slammed" Finally, another waitress was asked and agreed to do the order Stinner then went to Wardenski and complained that Miller and Spencer "had something going between them," that it seemed like pick on Joyce night, the way she was treated, that some- thing had to be done about take-out, and that Spencer had "really yelled at me" Within 20 minutes of the incident Stmner went upstairs (describing herself as being really upset and Just about in tears), and told her husband that "they are really angry with me for some reason and I do not know why and I am really upset about it" and that Spencer "just said no and she practically spit it at me" Robert Stmner replied that Spencer might be upset about a recent tip complaint from a customer Wardenski testified that Joyce Stmner told him of having a problem getting somebody to get a takeout order, that Spencer had given her a "flat" derual and the other girls had said no, they were busy He then spoke with Spencer and asked her why she did not take the order and told her she was only going to create waves Wardenski said that Spencer replied she would have done it if he had asked, and Wardenski replied "that is even worse" He did not report the conversation to anyone else, however, later that evening Robert Stmner came downstairs and told him to discharge Spencer and give Miller a warning, "because nobody talk to my wife like that" Wardenslu gave Spencer a note to call him at home and when she did not call that evemng he called her the next morning and told her she would not be put on the schedule anymore Spencer said, "Does this mean I'm fired?" and Wardenslu said, "Yes" When Spencer asked why he replied, "For refusing to take the takeout" Joyce Stmner testified that when her husband came home the next evening he told her that Wardenslu had fired Spencer because she had put them through a lot of hassle over the takeout order tip and that "it all was building up" He also said he did not like Spencer's treat- ment of his wife the previous day and said there also was "the letter Wardenslu testified that he had no meetings with Stm- ner to discuss the Union's organizational attempt He also said his general consensus about Spencer's work was that "it was not that bad" and agreed that he probably had told another waitress after Spencer was fired that Spen- cer was a good worker He also said that this waitress had asked him if Spencer was fired because of the Umon and that a number of people were upset over her firing Robert Stumer testified that his wife was "very upset" when she told him about Spencer's refusal to take the takeout order and said that Spencer had Just said no, "not very polite like and very loud and she embarrassed her" He agreed that he became upset and then told Wardenski "that was it I cannot take it anymore One in- cident after another lets get nd of her" He also ad- mitted that the other incidents he referred to included the Mother's Day and tip incidents and Spencer's letter He further testified that he discharged Spencer because she "abused" his wife and he Just did "not need that type of aggravation" Stmner admitted that around mid-June a waitress told him that there was union activity occurring and his affi- davit, confirmed by his reluctant testimony, indicated that he suspected that Kathy Spencer was one of the em- ployees involved in the Union Other witnesses credibly testified that everyone, in- cluding the waitresses and the kitchen employees, was talking about the union campaign or passing out authori- zation cards or union literature at the Respondent's res- taurant in break areas, kitchen areas, and the parking lot and where they could be heard or observed, especially by Manager Wardenski Although Wardenslu said he was "not sure" if Spencer was involved in the Union, he testified that it was true,3 that at the time he fired Spencer he had heard rumors of earlier union activity and information that the Union had met at Spencer's house He also admitted that "sometime in June" he had heard from Joyce Stmner that a few em- ployees were trying to start a Union He mentioned this to Robert Stmner who "Just laughed and shrugged it off" Wardenslu also said it was possible he heard about the meeting at Spencer's house from Joyce Stumer Joyce Stmner testified that "in late spring or early summer I really do not know it may have been three or four weeks after Mother's Day," she became aware that the employees were talking among them- selves about forming a union and asked her husband whether he had heard about it and he said he had but didn't discuss it further At the further heanng it was established that 10 days before the initial hearing around 3 p m on Friday, Feb- ruary 24, Manager Wardenslu called employee Brenda Mankos at her home and asked her how soon she could come into work that day because the lawyer for Stinner was there and he wanted to talk to her Mankos said she could probably be in by around 4 p as depending upon when her husband got home from work that day After Mankos' conversation with Wardenski, she con- tacted Board Attorney Susan Stahl, who had subpoenaed her for the March 6 hearing Mankos said she called the Board attorney because she did not know if it was proper for her to speak with Respondent's counsel be- cause she had been subpoenaed by the National Labor Relations Board Attorney Stahl told Mankos it was her decision as to what she wanted to do and there was nothing wrong with Mankos talking to Respondent and its counsel Stahl also told her, however, that Respond- ent was supposed to tell Mankos that she was there vol- untarily and had to inform her of what they wanted and assure her that she would not lose her job Respondent's attorney, W\dham Fitzgerald, had inter- viewed three other waitresses, including Cindy Brugger, 3 He affirmed statements contained m his affidavit to a Board agent 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD earlier that same day before Mankos was called Brugger was called as a witness by Respondent and testified that prior to the interview he told them they did not have to speak with him, it was voluntary, that nothing they said could be used against them, and that nothing would happen to them It was further established, however, that Brugger joked with Fitzgerald about bemg warned of her "nghts" and that she had initiated the meeting after she had received a subpoena from the Board She testi- fied that she first went to Owner Stmner about the sub- poena and that he said he would take care of setting up a meeting with his lawyer to answer her questions and ex- plain what was going on Two other waitresses who had been subpoenaed came to work at that same time and the three spoke with Fitzgerald and Stmner, first individual- ly and then as a group Brugger volunteered to Respond- ent that she had met with a Board agent and explained what had occurred, including her comment to the agent that she did not know what the agent wanted from her and the agent's response that she felt Brugger was hold- ing back She testified that she was not asked by the agent if she was for or against the Union but admits that she was against the Union She was never called as a witness Fitzgerald testified that after he spoke with the other waitresses, Mankos came to Stmner's office later the same afternoon Stmner remained during the whole period Fitzgerald testified that after introducing himself, he said he thanked her for coming m and I appreciated that she was busy and that she was working later and I appreciated her talung the time to meet with me, advised her that it was not necessary for her to do that and that certainly she did not have to but I ap- preciated the cooperation and I told her that I wanted to talk to her in connection with the hear- ing that was coming up on March 6 in connection with an unfair labor practice charge that had been filed, that the subject was the discharge of Kathryn Spencer, a former employee and that I was—I would be inquiring as to what Ms Mankos knew of that particular incident and the events leading up to it As I was going through that, I indicated to her that it was my understanding that she had been sub- poenaed to appear at the hearing I was going for- ward with my, which is my general discussion with a witness in terms of voluntariness of the statement that they did not have to talk to me but I appreciat- ed them doing so At that point she interrupted and complained that she did not want to be involved She did not know why she was here, that she was upset She was very nervous and agitated, I could see that as I was talking with her She did not want to be here, did not want to be involved, did not like the subpoena I stopped what I was saying to her at that tune and said, I cannot do anything about that Of course, I was trying to calm her down and also to, knowing that I wanted to continue my question- mg later, she was again anxious about having to tes- tify She said that she did not want to be subpoe- naed, did not want to be involved I told her that that was not my doing, that I wanted her to understand that neither Mr Stinner nor myself had subpoenaed her and expected her to appear, that if she had a problem with this, she was that concerned about it, she should talk to the Board Agent It was the Board Agent who had sub- poenaed her not me Q Did she express to you fear about losing her job if she cooperated with you? A Not at that point, no Q Okay, did she at anytime during this inter- view, express that concern to you? A Yes, later on in the discussion after we had gotten back on track, I went through with her ex- actly what I wanted to talk to her about, about events leading up to the discharge of Kathryn Spen- cer and what information that she might have and the fact that no one, she had nothing to fear that Mr Stmner was here and I was there That there would be no reprisals, that I just wanted to get the facts All that I was interested in talking to her about was the issue on the upcoming hearing, that I would not question her about anything having to do with her own Umon activity, Union membership, Union sympathy I indicated to her that I did not want to know about whatever the sympathies were of any of the employees that we were going to talk about Q Okay, then to what topic or subject matter did the interview progress? A The interview then got into an area for some reason, I had been aware that she was alleging that Mr Wardenslu had made a statement to her about Union—the Umon having something to do with Kathryn Spencer's discharge and that was totally— a totally new fact In all of the discussions in the preparation of the case, there was no mention of this fact It was brand new and I asked her about the conversation that she had with Mr Wardenslu or was alleged to have had with him, either the night of or the night following Kathryn Spencer's discharge At that point, she said I do not want to answer that Q Okay, what did you say to her at that time? A I told her that I was anxious to know that in- formation, that it would be helpful, that it had to do with the trial that was coming up and it would be a big help to me and Mr Stmner if we knew what we were facing in terms of what facts were going to come out at the hearing She again indicated that she did not want to do it and I think that I tried for another approach that well, we are just looking in terms of fairness to de- velop facts, that is all that we really want You do not even have to tell me what you said I do not care what you said, just what did Mr Wardenslu say She again said, I do not—I am not going to tell you about it I am not going to tell you about it PARKWAY MANOR-VILLAGE INN 581 I think that it was at that point that she made a comment, that she was afraid of losing her job and Mr Stinner piped up and said, nobody is going to lose their job over this or something to that effect and Brenda seemed to be—to accept that and at that point, I thanked her again for coming in and told her if there were any other questions or facts that we might get back to her but again thanked her for her cooperation and told her not to be nervous and wished her well and that was it Q Just so that we have the record clear, did Ms Mankos continue to refuse to answer questions con- cerning the Wardensla incident even after Mr &In- ner assured her that her job was not in jeopardy? A Yes Mankos testified that Fitzgerald introduced himself as Stmner's lawyer, shook her hand and asked her to sit down, and asked her if she had been subpoenaed for Kathy Spencer's hearing She replied that she had Fitz- gerald then said Mankos was not there because of them, that Respondent had not subpoenaed anyone and they were not putting her through this Later in the interview, Mankos addressed Stmner and told him that she did not have anything against him, that she was afraid for her job, and did not want to lose it Stumer replied that she would not lose her job, that very few people got fired from there Fitzgerald then asked Mankos about an incident on Mother's Day between Shriner and Spencer, and an inci- dent on a Saturday mght when Spencer refused to do a takeout order Mankos answered these questions, but when Fitzgerald then asked her about a conversation she had had with Manager Wardenski the day after Kathy Spencer had been fired, Mankos said she did not want to talk about that conversation Fitzgerald replied that Re- spondent felt they had a right to know what they would be up against, what the other side's case would be Mankos restated that she did not want to talk about the conversation and wanted to wait for the hearing Fitz- gerald then said, "Well, you know what you're [sic] tes- timony is going to be, don't you?" Mankos replied she did, but she wanted to wait for the hearing Fitzgerald then asked her if she had anything else to say and she said no Mankos also testified that at some point during the meeting Fitzgerald also asked her if she had met with the Board agent Even though she had met with the Board agent, Mankos said no because she was afraid Stmner would hold it against her and she was afraid of losing her job She also said the interview lasted 20 minutes and that Wardenslu stopped in for a minute Mankos further testified that at no time did anyone tell her the purpose of Fitzgerald's questionmg or that her participation in the interview was voluntary and that except for Stmner's response to her statement about being afraid for her job, no one specifically assured her that there would be no reprisals or that nothing would happen to her if she did or did not participate in the interview III DISCUSSION The issues in this case arose from events which oc- curred contemporaneously with a union organizational drive at Respondent's restaurant and resulted in the dis- charge of one long-term employee and the disciplinary warning to another In a discharge case of this nature, applicable law re- quires that the General Counsel meet an initial burden of presenting sufficient evidence to support an inference that the employee's union or other protected concerted activity was the motivating factor in the employer's deci- sion to terminate or discipline the employee Here, the record shows that both disciplinary actions were ordered by Owner Robert Stmner It also is clear that Stmner re- ceived a letter from waitress Spencer in which she com- plained about working conditions and specifically re- ferred to union membership, saying We are not union members—but if we were we would get a break to sit down to eat and to rest No one should be required to work 11 hours straight through without a break and a meal It also is clear that Spencer held several union organi- zational meetings at her home that were attended by nu- merous employees, that she engaged in discussion of the Umon with employees and in the distribution of union literature at the Respondent's restaurant, and that other employees were aware of and discussed the union cam- paign at work Although Manager Wardenslu said he was "not sure" Spencer was involved, he admitted he had heard rumors about the Union, including a rumor that a meeting was held at Spencer's house that he said he could have received from the wife of the Respond- ent's owner Owner Stainer and his wife admitted their awareness of union activity and Stmner admitted that he "suspected" Spencer was one of those involved As otherwise indicated above, Joyce Stmner admitted- ly complained that Spencer and Miller "had something going between them" when she described their turn- down of the takeout order and told her husband about the incident Respondent's owner reacted to the latter information by telling his manager to discharge Spencer and to warn Miller because he could not take it anymore, "one inci- dent after another" Stmner admitted that the letter from Spencer was one of the incidents He also reacted imme- diately and to the last so-called incident, without further investigation, an action which otherwise is found herein to infringe upon the employees' Section 7 rights Under these circumstances, I find that the General Counsel has met his initial burden by presenting a prima facie showing, sufficient to show antiunion animus and to support an inference that Spencer's union activities were known to Respondent and were the motivating factor in Respondent's decision to terminate her It also is shown that Miller was suspected of acting in concert with Spen- cer and therefore it also is inferred that the decision to discipline her also was motivated by the same reason Accordingly, the testimony will be discussed and the record evaluated in keeping with the criteria set forth in 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Wright Line, 251 NLRB 1083 (1983), see NLRB v Trans- portation Management Corp, 463 U S 393 (1983), to con- sider Respondent's defense and, in the light thereof, whether the General Counsel has earned his overall burden Respondent's principal defense is based on its conten- tion that the discharge and warning were an appropriate and nondiscriminatory response merited by the employ- ees' actions toward the owner's wife First, it is observed that Joyce Stmner was not a statu- tory supervisor She functioned as an employee and had no special business status because of her relationship to the owner It otherwise is not shown that any employee engaged in any insubordinate conduct towards a supervi- sor Manager Wardenslu's testimony that Spencer said to him that she would have handled the takeout order if he had requested it, must be considered to be an indication that she in fact did not engage in insubordinate conduct When Owner Robert Stmner learned from his wife that employees Spencer and Miller had declined to accept separate requests that they handle a takeout order, he faded to respond in any appropriate businesslike fash- ion, even though the incident clearly was a business rather than a personal matter He made no investigation whatsoever and did not ask the two allegedly hostile waitresses, other employees who may have been present, or his manager for any information whatsoever, instead, he immediately directed the manager to terminate Spen- cer and to warn Miller Most significantly, Stmner admit- ted that the takeout order rejection was considered as a final incident involving Spencer after her involvement in other incidents which included her critical letter that mentioned union membership Here, I credit Miller's testimony that she replied to Joyce Stmner with a plain "no," without further explana- tion, inasmuch that Joyce Stmner's mitial testimony that Miller said "no, I cannot" was qualified by her following comment that "I really think it was Kathy Ambrosmo that I asked next and she said no, I am really busy" I further find that if Robert Stmner or Manager Wardenslu in fact had investigated the incident it would have been disclosed that in addition to Spencer and Miller at least two other waitresses had rejected the takeout order, yet no others were mentioned in Joyce Stmner's complaint I also find that an investigation would have disclosed that Stmner's apparent perception that Spencer had "really yelled at me" was an embellishment of what she later testified to was an answer of plain "no," "spoken not nicely" Here, I find that both Spencer and Miller had actually answered "no," without yelling, in a flat tone that con- veyed reluctance rather than hostility or insubordination and therefore neither Spencer nor Miller could accurate- ly be found to have engaged in the conduct of which they were accused of by Joyce Stmner In summation, I conclude that the allegedly critical complaint against Spencer and Miller boils down to the fact that they "just said no" to a request from another employee (with no supervisory authority), to perform a task m addition to the regular duty they were perform- ing Otherwise, it was not established that waitresses en- gaged in working tables in the dining room were obligat- ed to also do takeout work and it was not shown that a refusal to do a takeout order was a violation of estab- lished work rules Two waitresses rejected the assign- ment with a "no, I can't" or a "no, I'm busy," however, there is no indication of what tone of voice was in- volved The actions of these other employees, who were not disciplmed, were not even considered by manage- ment in its rush to judgment on Spencer and Miller There also is no plausible explanation for the disparate treatment in the discipline that was given to Spencer and Miller However, under the circumstances, especially Robert Sunner's testimony noted above, I infer that it was because of Stmner's perception of Spencer's most prominent association with the Union As otherwise noted, Joyce Stinner expressed her suspicion that Spen- cer and Miller "had something going between them" and I infer that Miller's alleged association with a suspected union advocate was the motivating factor in her selec- tion for a disciplinary warning In conclusion, I find that the person perceived to be the leading advocate for the Union, Spencer, was sum- marily terminated without any investigation of the accu- racy of the complaint against her or evaluation of possi- ble mitigating circumstances or consideration of some lesser degree of pumshment, despite her many years of service as a satisfactory and effective employee Under these circumstances, I conclude that the record support a conclusion that the Respondent seized upon an apparent opportunity to immediately rid itself of the most promi- nent union advocate Its extreme and precipitous retalia- tion for an unmvestigated and minor offence clearly is in- dicative of the pretextual nature of Respondent's defense and I find that it supports a conclusion that Spencer's discharge was motivated by a discriminatory intent based on her union activities I further conclude that Respondent has failed to show that Spencer would have been discharged absent her union activities The General Counsel otherwise has met its overall burden of proof and I find that Respondent's discharge of Spencer is shown to have been in violation of Section 8(a)(1) and (3) of the Act, as alleged It also is clear that Miller's perceived association with Spencer's activities was the controlling factor m her se- lection for discipline and I find that Respondent's warn- ing to Miller is shown to be unjustified and illegally mo- tivated and a violation of Section 8(a)(1) and (3) of the Act, as alleged Turning to the additional issue of Respondent's alleged improper interview of an employee prior to the hearing, I find that the General Counsel has shown the applicabil- ity of the Board's mandate in Johnnie's Poultry Co, 146 NLRB 770 (1964), a decision that qualifies the privilege that an employer has to interrogate employees on mat- ters concerning preparation of a defense for use in an unfair labor practice trial In balancing this employer privilege against the "mherent danger" to employees of coercion, the Board requires that he employer must commumcate to the employee the purpose of the questioning, assure him that no PARKWAY MANOR-VILLAGE INN 583 reprisal will take place, and obtain his participation on a voluntary basis, the questioning must occur in a context free from employer hostility to union or- ganization and must not be itself coercive in nature, and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employ- ee's subjective state of mind, or otherwise interfer- ing with the statutory rights of employees Here, I credit the testimony of witness Mankos as being the most accurate description of what occurred during her interview by the Respondent's attorney I fur- ther find that this testimony shows that she was not af- forded the safeguards required by the Board's mandate 4 When Mankos was asked to come to the workplace to be interviewed she was sufficiently apprehensive about Respondent's request that she first called the Board's at- torney for advice She was advised that Respondent's re- quest was not improper, however, she specifically was told that she had to be informed by the Respondent of her "rights" Accordingly, I find that she was highly likely to recognize and recall the details of the occur- rence, especially those matters pertaining to the expected assurances concerning her "rights" against reprisal, etc Witness Fitzgerald, on the other hand, while admitting to a generalized acquaintanceship with the safeguard re- quirements of Johnme's Poultry, appears to have mini- mized the significance of these provisions His testimony and that of Respondent's witness Brugger show that they joked about these "nghts" when he discussed them in early interviews that same day The fact that he first stated these "rights" to Brugger is not evidence that he fully repeated them in his latter interview of Mankos Moreover, Fitzgerald's own testimony indicates that he merely was quickly summarizing the gist of what he as- sumed he would have said under the circumstances I credit Mankos' testimony that Fitzgerald omitted any reference to assurances against any reprisals and that nothing was said in this regard until Mankos herself interjected that she feared for her job At this point she was told by Stmner, not Fitzgerald, that "she would not lose her job, that very few people got fired from there" It is noted that even this statement offers no assurance against some other form of reprisal Moreover, it is un- likely that Mankos, who was an alert and forthright wit- ness, would have asked about job security if she already had been given assurance against reprisals I also credit Mankos' testimony that Fitzgerald did not tell her the specific purpose of the interview or that it was voluntary and protected against reprisals As noted by the General Counsel, Owner Stmner was present at both Fitzgerald's interview with Mankos and throughout the further hearing, yet was not called as a 'The Respondent cites the decision of U S Court of Appeals for the Sixth Circuit in Dayton Typographic Service v NLRB, 778 F 2d 1188 (6th Or 1985), which, in effect, qualifies the requirements of Johnnie's Poul- try, and substitutes the "coercive" test for evaluating the legality of an alleged 8(a)(1) Interrogation as set forth in Rossmore House, 269 NLRB 1176 (1984) Inasmuch as the involved matter is not within the jurisdic- tion of the Sixth Circuit and Inasmuch as I otherwise conclude that the evidence shows coercive elements in the interview, I find that Respond- ent's argument in this respect is inapplicable witness to corroborate Fitzgerald's testimony even though he had previously testified at the earlier hearing Accordingly, and in response to the General Counsel's request, I find that this warrants the drawing of an ad- verse inference and I therefore conclude that if Stinner had testified further, his testimony would have been con- sistent with that of witness Mankos The record also shows that at one point in the inter- view Fitzgerald persisted in asking Mankos about a con- versation she had with Manager Wardenski, even though she expressed a desire not to talk about it It also appears that Fitzgerald adopted an authoritative posture during the interview which conveyed the coercive impression that his questions and statements were entitled to accept- ance and obedience Whereas Fitzgerald's earlier inter- view with Brugger was essentially that of a friendly wit- ness, who apparently was eager to curry favor with the Respondent, the latter interview with Mankos was sought by the Respondent under conditions where she was requested to hurry to work early and it was decid- edly more hostile in nature Contrary to Respondent's as- sertion that Mankos should be discredited for lying to Fitzgerald during the interview, I find that her denial to Fitzgerald's question which asked if she had met with a Board agent (which she testified was done because she was afraid Stmner would hold it against her and she would lose her job), tends to show the actual coercive effect that the interview was having upon the witness It also appears that the constant attendance of Owner Stm- ner during the interview (conducted in his office) also had an intimidating effect In addition to the question about meeting with a Board agent, Mankos also initially was asked if she had been subpoenaed by the Board (and answered she had) Ques- tions concerning whether employees have given state- ments to the Board or have been interviewed by Board agents have been found to be coercive in nature and out- side the conduct of permissible inquiry by an employer or his agent See Montgomery Ward & Co, 155 NLRB 482, 488 (1965), and Johnnie's Poultry, supra at 775 fn 12 Under these circumstances, I find that the credible evi- dence shows that Respondent's attorney failed to advise employee Mankos of the full safeguards required by the mandate of Johnme's Poultry, that her interview was con- ducted without benefit of these safeguards, and that such interview was coercive in nature and in violation of Sec- tion 8(a)(1) of the Act, as alleged CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 By giving a disciplinary warning to Sally Miller and discharging Kathryn Spencer on July 1, 1988, respective- ly, Respondent engaged in unfair labor practices m viola- tion of Section 8(a)(1) and (3) of the Act 3 By interviewing employee Brenda Mankos concern- ing union activities and matters involving a forthcoming unfair labor practice hearing without providing her with the necessary affirmative safeguards, Respondent thereby interfered with, restrained, and coerced her in the exer- cise of her rights guaranteed in Section 7 of the Act, 584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thus engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act THE REMEDY Having found that Respondent has engaged in unfair labor practices, it is recommended that the Respondent be ordered to cease and desist therefrom and to take the affirmative action described below which is designed to effectuate the policies of the Act With respect to the necessary affirmative action, I rec- ommend that Respondent be ordered to reinstate Kath- ryn Spencer to her former job or a substantially equiva- lent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered be- cause of the discrimination practiced against her by pay- ment to her a sum of money equal to that which she nor- mally would have earned from the date of the discnmi- nation to the date of reinstatement, in accordance with the method set forth in F W Woolworth Go, 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987), 5 and that Re- spondent expunge from its files any reference to Spen- cer's discharge, as well as the unlawful warning to Sally Miller and notify them in writing that this has been done and that evidence of this unlawful discipline will not be used as a basis for future personnel action against them Otherwise, it is not considered to be necessary that a broad order be issued On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed6 ORDER The Respondent, Parkway Manor-Village Inn, Inc , Allentown, Pennsylvania, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Issuing a warning to employees or otherwise dis- criminating against them because of their activities in support of union affiliation for purposes of collective-bar- gaining representation or otherwise engaging in protect- ed concerted activities (b) Discharging any employee for activity protected by Section 7 of the Act (c) Interviewing employees concerning union activities and matters involved in pending unfair labor practice al- legations in a manner which interferes with the nghts guaranteed them in Section 7 of the National Labor Re- lations Act 5 Under New Horizons, Interest is computed at the short-term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp. 231 NLRB 651 (1977) ° If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Kathryn Spencer immediate and full rein- statement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her semonty or any other rights or privileges previously enjoyed and make her whole for the losses she incurred as a result of the discrimination against her in the manner specified in the remedy section of the de- cision (b) Expunge from as files any reference to the warning to Sally Miller and discharge of Kathryn Spencer and notify them in writing that this has been done and that evidence of the unlawful discharge and warning will not be used as a basis for future personnel actions against them (c) Notify Brenda Mankos in writing of its assurance that no repnsals will take place as a result of any matters arising out of her interview by its attorney on February 24, 1989 (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all records, reports, and other documents necessary to ana- lyze the amount of backpay due under the terms of this Order (e) Post at its Allentown, Pennsylvania facility copies of the attached Notice marked "Appendix " 7 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by Respondent's author- ized representative, shall be posted by Respondent imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted Reasonable steps shall be taken by Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 7 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize PARKWAY MANOR-VILLAGE INN 585 To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT issue a warning to employees or other- wise discriminate against them because of their activities m support of union affiliation for purposes of collective- bargaining representation or otherwise engage in protect- ed concerted activities WE WILL NOT discharge any employee for activity protected by Section 7 of the Act WE WILL NOT mterview employees concerning union activities and matters involved in pending unfair labor practice allegations in a manner which interferes with the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Kathryn Spencer immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to her semonty or any other nghts or privileges previously enjoyed and make her whole for the losses she incurred as a result of the discrimination against her in the manner specified in the remedy section of the de- cision WE WILL expunge from our files any reference to the warning to Sally Miller and discharge of Kathryn Spen- cer and notify them m writing that this has been done and that evidence of the unlawful discharge find warning will not be used as a basis for future personnel actions against them WE WILL notify Brenda Mankos that no reprisals will take place as a result of any matters ansmg out of her interview by our attorney on February 24, 1989 PARKWAY MANOR-VILLAGE INN, INC