Burger Boy Food-O-Rama

National Labor Relations Board - Board Decisions

Mar 9, 1965

151 N.L.R.B. 477 (N.L.R.B. 1965)

BURGER BOY FOOD-O-RAMA 477
his normal earnings of a forty hour week. This not to exceed two (2) in any
one year. Any employee excused, before noon, from further jury duty for the
day shall report for work for the remainder of the day.
DEATH IN FAMILY
In the event of death in the immediate family of any employee having sixty
or more days service, the employer agrees to pay a days' pay for each day of
absence up to a maximum of three days, to be counted from the day of death
of the employee's relative. Payments to the employee hereunder will be based
on the days the employee would have worked under his regular schedule during
such period. The immediate family shall be considered to include any of the
following: wife, son, daughter, mother, father, sister, brother.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL, if requested by Local Union 1469, United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO, to do so, sign a written contract incor-
porating the terms of the agreement reached on May 18, 1964, with that Union,
said contract to be retroactive to April 27, 1964, and WE WILL make whole our
employees for any losses suffered by reason of our refusal to execute the con-
tract . If no such request is made, we will, upon request , bargain collectively
with that Union for the unit described herein with respect to rates of pay,
wages, hours of work, and other terms and conditions of employment and, if
an understanding is reached , embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees at our Charlotte , North Caro-
lina, plant , including leadmen , but excluding office clerical employees, sales
employees , professional and technical employees and guards and supervisors
as defined in the Act.
WE WILL NOT, in any like or related manner , interfere with, restrain , or coerce
employees in the exercise of rights guaranteed them in Section 7 of the Act.
HUTTIG SASH AND DOOR COMPANY,
Employer.
Dated-------------- ----- By-------------------------------------------
(Renresentative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 723-2911 , if they have any question concerning this notice or compliance with
its provisions.
B.B.S.A., Inc., d/b/a Burger Boy Food-O -Rama and United Store
Employees Union, Local #347, Retail , Wholesale and Depart-
ment Store Union , AFL-CIO. Case No. 9-CA-3244?. March 9,
1965
DECISION AND ORDER
On December 31, 1964, Trial Examiner Thomas A. Ricci issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
151 NLRB No. 58.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent filed excep-
tions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in this case, includ-
ing the exceptions and brief, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner.'
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order, the Order recommended by the Trial Examiner and orders
that Respondent, B.B.S.A., Inc., d/b/a Burger Boy Food-O-Rama,
its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, with the
following addition :
Add the following as paragraph 2(c), the present paragraphs
2(c), 2(d), and 2(e) being consecutively relettered :
"(c) Notify Stephen Stogden if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces."
i We agree with the Trial Examiner that the Respondent had knowledge of Stogden's
union activity before his discharge. However, in addition to the reasons set forth in
the Trial Examiner ' s Decision , we rely on the testimony of Pullin that before Stogden was
fired Tuggle said that he "already knew that Stogden had started the Union .. .
[and] . . . he was the promoter of the Union at Burger Boy." Pullin on cross-
examination clearly and unequivocally stated that the conversation did not take place
after the discharge . Although Tuggle denied having made such a statement and the
Trial Examiner made no finding in this regard, he has fully credited Pullin in other
respects and has generally disci edited Tuggle's testimony.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner
Thomas A. Ricci on November 5 and 6, 1964, at Charleston, West Virginia, on
,complaint issued by the General Counsel against B.B.S A , Inc., d/b/a Burger Boy
Food-O-Rama, herein called the Respondent or the Company. The issue litigated
was whether the Respondent violated Section 8(a)(1), (3 ), and (5 ) of the Act. A
brief was filed after the close of the hearing by the Respondent.
BURGER BOY FOOD-O-RAMA 479
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
B.B.S.A., Inc., a West Virginia corporation, does business as "Burger Boy Food-O-
Rama," and is engaged in the retail restaurant business at St. Albans, West Virginia.
B.B.P., Inc., is also a corporation doing business as Burger Boy Food-O-Rama, oper-
ating a restaurant business in Parkersburg, West Virginia. B.B.H.E., Inc., B.B.H.C.,
Inc., and B.B.H.W., Inc., are also corporations doing business as "Burger Boy Food-
O-Rama," with restaurant businesses in and about the city of Huntington, West Vir-
ginia. Each of these corporations, plus 13 others in West Virginia and Ohio, and
the Respondent are affiliated businesses with common officers, stock ownership,
directors, and operators, and constitute a single integrated enterprise. The said
directors and officers formulate and administer a common labor relations policy for
all of these corporations, affecting the employees of all. Food and Fixture Co., of
Ohio, and Ohio corporation, does all of the bookkeeping, payrolls, accounting, and
necessary clerical work for all these corporations and controls their overall supervi-
sion. The principal offices and the chief place of business for all the aforesaid cor-
porations are at 619 Harrisburg Pike, Columbus, Ohio. James Mear is general man-
ager in charge of the restaurant operations of all these corporations and his salary
is paid by Food and Fixture Co., of Ohio; Burger Boy Drive-In, Inc., and Ohio cor-
poration, the capital stock of which is owned by Roy Tuggle, furnishes supplies to
the other said corporations; Green Gables, Inc., an Ohio corporation, the capital of
which is owned by Milton Lustnaer, furnishes supplies to the other said corporations.
Roy Tuggle is president and Milton Lustnaer is secretary-treasurer of each of the
aforesaid corporations.
During the past 12 months, a representative period, in the course and conduct of
their business operations, Respondent and the other said corporations sold, at retail,
food and beverages the gross value of which exceeded $500,000. During the same
period the Respondent had a direct inflow of products in interstate commerce valued
in excess of $5,000 which was shipped directly to it in the State of West Virginia
from points outside the State of West Virginia. I find that the Respondent is an
employer as defined in Section 2(2) of the Act, that it is engaged in commerce and
in operations affecting commerce as defined in Section 2(6) and (7) of the Act, and
that it will effectuate the policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Store Employees Union, Local # 347, Retail, Wholesale, and Department
Store Union, AFL-CIO, herein called the Union, is a labor organization as defined
in Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
At this one location (St. Albans, West Virginia) of the many restaurants operated
by this chain, there were employed during June 1964 about 25 employees. In the
latter part of the month, with Stephen Stogden taking the leading and most active
role in solicitation, there developed sentiment among the employees to be repre-
sented in collective bargaining by Local 347, the Union which later filed the charge.
By June 29, approximately 17 employees had signed cards authorizing the Union to
bargain on their behalf, and the following day Jack Brooks, special representative of
the Union, demanded recognition and bargaining rights of the restaurant manager.
The Respondent did not recognize the Union as requested. The next day, July 1,
Stogden was discharged. The complaint alleges that the Respondent's failure to
extend recognition upon request constituted a bad-faith refusal to bargain in viola-
tion of Section 8(a)(5) of the Act. It also alleges that Stogden was dismissed
because of his attempt to bring a union into the store.
In defense the Respondent asserts that Stogden was released for cause unrelated
to any union activities. As to the refusal to bargain, the principal contention of the
Company is that it has not been proved that on the critical date the Union in fact
represented a majority of the employees in an appropriate unit. At the hearing
the company manager, as a witness, also claimed at times that there had never been
a demand for recognition; inconsistently he also admitted that Brooks did clearly
ask for recognition and bargaining.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Appropriate unit
The complaint describes the appropriate unit in this case as "all employees of the
Respondent at its St. Albans" restaurant, excluding office clericals, guards, profes-
sional employees, and supervisors. It further alleges that on June 30 a majority of
such employees had authorized the Union to act as their bargaining agent. In its
answer the Respondent denies that the unit so described is appropriate for bargain-
ing purposes, and disclaims any knowledge of representative strength.
For the purpose of establishing definitely how many and which individual employ-
ees were included in this unit at the time, the General Counsel called upon the
Respondent at the start of the hearing to produce its pertinent employment records.
The Respondent did not do so. All parties then stipulated that "all the employees
employed at the Respondent's restaurant in St. Albans, West Virginia," constitute an
appropriate bargaining unit. They also stipulated, in haec veiba, that "on June 30,
1964, there were twenty-three employees employed by the Respondent at its restau-
rant in St. Albans, West Virginia, give or take one or two."
On the second day of the hearing, the Respondent called to the stand one of the
two assistant managers of the restaurant, Roy Tuggle, and through him attempted
to place into evidence a two-sheet document on which were listed a number of
names with certain dates set next to each. Tuggle said he had never seen these
papers before, and that, judging from some of the names he saw, he believed it was
a list of employees of the restaurant. It was apparent that the two sheets contained
information someone had extracted from the Company's regular office employment
records. On the basis of such testimony by the witness Respondent's counsel offered
these papers as authentic proof of the payroll records for June 30, 1964, the General
Counsel objected on the grounds that it was secondary evidence, and the documents
were rejected. Seemingly reading from these, counsel for the Respondent then
called off 56 names, and asked Tuggle, as to each, whether such person had been
an employee of this restaurant on June 30, the critical date when the demand for
bargaining and the Company's refusal are said to have occurred. Hesitating at
times, Tuggle replied as to 33 that they had been employed, as to 15 that they had
not, and as to 9 that he could not remember.
On the basis of the parties' stipulation I find that all employees of the Respond-
ent's St. Albans restaurant, excluding supervisors as defined in the Act, constitute a
unit appropriate for purposes of collective bargaining within the meaning of Section
9(b) of the Act.
I also find, on the basis of the Respondent's express stipulation with the parties,
that on June 30, 1964, there were 25 rank-and-file employees in such bargaining unit.
The General Counsel having agreed to the fact that the correct number was "23, give
or take one or two," I must proceed on the basis of 25, for the question of majority
does not permit of any approximation or vaguery. Especially must the stipulation
be so read, favorably to the Respondent, because a principal issue is whether the
Union was in fact authorized by a majority of the employees involved. As to the
oral testimony of Assistant Manager Tuggle, haphazardly suggesting that there then
were a total of 33 employees, it is difficult to understand what the Respondent sought
to achieve by his uncertain recollection. No effort was made to retract the factual
stipulation. By the time the General Counsel had concluded his case-in-chief, it
was clear to the Respondent that the Government rested its case upon the interplay
between the 17 authorization cards received in evidence and the stipulation which
placed 25 employees in the bargaining unit as a maximum. Conceivably had the
Respondent, even at that late stage, produced its employment records there might be
reason to consider them as objective and incontrovertible evidence to upset the stipu-
lation. It chose instead to offer the secondary statement of an assistant manager,
which in the circumstances of this case must be deemed of no probative value.
Indeed, the Respondent's failure to produce the employment records necessarily in
its possession warrants an inference that had it done so, the records would have
tended to support the contention of the General Counsel that the cards he did place
in evidence constitute a majority of the employees at work on June 30.1 Signifi-
cantly, Tuggle's recollection of those who had been at work included 16 of the per-
sons who signed authorization cards; he was not asked in respect to the 17th-
Honaker. The stipulation must also be viewed as excluding, from the 25 "employ-
' International Hod Carriers, Building and Common Laborers' Union of America,
Local No. 41 (A. E. Anderson Construction Company), 129 NLRB 1447, enfd. 295 F. 2d
657 (C.A. 7).
BURGER BOY FOOD-O-RAMA 481
ees," Kincaid , manager, and Tuggle and Hash , assistant managers , all three super-
visors. In a proceeding of this type it must be assumed the parties meant to use
words as defined in the statute.
2. Majority status
Stephen Stogden worked at this restaurant several weeks in March or April of
1964, left because of the pressure of his schoolwork, and was rehired by Manager
Kincaid in mid-May. By early June he became the principal agitator in a union
movement. He attempted to enlist the aid of the "Bartenders' Employees Union in
Cincinnati" but failed, and on about June 15 he visited the office of Local 347, when
its agents gave him a number of authorization cards to distribute among the employ-
ees. Between that day and June 29 Stogden spoke to most of the employees, trying
to persuade them to sign, and succeeded in obtaining about 12 or 14 signatures.
Herman Johnson, another employee, helped him and was instrumental in obtaining
a few more. On the evening of June 29, Stogden returned to the Union's office and
delivered 16 authorization cards to Brooks, the special representative; he had pre-
viously left the 17th, his own, with the Union. The next morning Brooks called
Kincaid on the telephone , said he represented a majority of the employees , offered
to permit the manager to examine them personally , and demanded recognition and
bargaining rights.
There were received in evidence 17 authorization cards, all dated June 15 through
June 29, which read as follows:
APPLICATION
UNITED STORE EMPLOYEES UNION
LOCAL NO. 347
P 0 Box 2751 Charleston, W. Va.
The undersigned hereby authorizes this Union to represent my interest in col-
lective bargaining concerning wages, hours, and working conditions.
----------------------- ------------------------
(Employer' s Name ) (Employer ' s Address)
------------------------ ------------------------
(Employee's Phone No) (Employer's Signature)
------------------------ ------------------------
(Employees Street Address)
------------------------ ------------------------
(Date) (City and State)
Eight employees testified directly that they signed the cards as dated. These were:
Edward Fields, Stephen Stogden, William Atkins, S. H. Roberts, Richard Settle,
Joseph Pullin, Carl Cobb, and Jerry Turley. In addition, Stogden testified directly
and unequivocally that employees William Nelson, Donald Honaker, Bill Law,
Michael Baker, and Martin Johnson signed the cards received in evidence in conse-
quence of his solicitation and in his presence.
Stogden also identified the signed authorization cards of Thomas Shivel, Lionel
Runyon, and Stephen Swisher as cards he had personally given these employees in
the course of their discussions about joining the Union, which he had asked them to
sign , and which each had personally returned to him with statements to the effect
that they had decided favorably toward union representation. According to Stogden,
when returning the signed card Shivel said "he wanted a union, he didn't like that
kind of stuff [the employment conditions which Stogden sought to correct by union
representation] and I didn't like it either so he signed it, he wanted a union to repre-
sent him," and that Shivel also told Stogden when returning the card that he had
signed it. When Stogden gave a card to Runyon and tried to persuade him to sign,
this employee was hesitant and took it home to consider the matter. Later he
returned it to Stogden signed, and said "he decided that he wanted to take a chance
on the union." Stogden could not recall exactly whether he had seen Swisher sign
his card, he said it "might" have been signed in his presence. He also testified that
in their discussions about the Union Swisher had said "he wanted a union and he
was one of the boys supporting it along with quite a few others on the night shift."
The foregoing accounts for 16 authorization cards. The 17th is that of employee
Everett Wyles. Stogden testified that Johnson, the second most active union solici-
tor in the store and still an employee at this location at the time of the hearing,
gave him the card with the statement that he had given it to Wyles who had returned
it to Johnson signed. Wyles later became assistant manager at another location of
the Respondent, where he still works. Neither Johnson nor Wyles were called to
testify.
78 3-13 3-G G-v o f 151-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the circumstances of this case, and on the record in its entirety, there is no
merit in the Respondent's argument that in every instance where the employee
involved did not personally appear at the hearing to authenticate his own signature,
his card does not suffice to provide he had authorized the Union to act on his behalf.
Stogden's testimony was candidly given; his recollection of the activities and con-
versations of these and various other employees reflects a coherent and logical story.
Where he recalled seeing an employee sign in his presence he said so, where he did
not, or was in doubt, he did not hesitate to admit the fact. And there is no evidence
impugning Stogden's testimony that the several employees who did not appear in
person at the hearing, told him they had signed when they in fact returned their
cards to him. The delivery of the cards to them in the first place, the return of the
cards by the same employees to Stogden with the appropriate name written in as
a signature, coupled with the expressions of approval of the Union by them at that
time, amply support a finding, which I make, that Nelson, Honacker, Law, Barker,
and Johnson in fact signed the cards received in evidence .2
The Respondent's criticism of this indirect manner by which the General Counsel
proved certain employee signatures loses much persuasion for a further reason. It
was requested by the General Counsel to produce the records of employment, and
I several times made clear that there were pertinent facts that could best be estab-
lished by such records, but the Respondent chose not to produce them for exami-
nation. Undoubtedly the signatures of its employees would appear in its office rec-
ords. With the Respondent willfully withholding the best possible evidence of true
signatures, even the secondary evidence as to the signatures of Wyles and Johnson
becomes acceptable and sufficient in this case. Johnson was an active union propo-
nent at the time; he solicited Wyles who returned a signed card to him, so that it
eventually found its way into Stogden's possession. To cast doubt on the signature
appearing on Johnson's card, the Respondent called an employee to testify that
Johnson's signature is in fact different from the one appearing on the card. From
the Respondent, which has in its possession the primary and unassailable evidence
on these matters, such secondary proof cannot serve to support its assertions. More-
over, as will appear in greater detail below, Union Representative Brooks offered to
show all of the cards to the store manager at the very beginning, but Kincaid refused
to look at them.3
In further attempt to discredit the cards as adequate proof of majority representa-
tive status, the Respondent contends that a number of these employees did not intend
to authorize the Union to bargain for them, and that others were not in fact
employed on June 29 or 30, when the organizational campaign ended and recogni-
tion was demanded. Neither contention is supported by the evidence. The cards,
of course, are clear on their face and authorized the Union to act as bargaining agent
forthwith and without qualification. A number of employee witnesses, pressed in
cross-examination, made clear that the conversations timed with execution of the
cards dealt with quick representation, and nothing more. The most that counsel for
the Respondent succeeded in eliciting along these lines was a single statement from
one employee, Atkins, that a boy who gave him a card "said it would probably be
for the election of the union to vote on it." Against this ambiguous phrase, the
clear language of the authorization card, which Atkins did not say he signed without
reading, must prevail, particularly in the light of the total testimony showing clearly
that the general discussion was about achieving majority strength in the Union
quickly. As to another employee, Cobb, the Respondent produced an affidavit given
to company counsel in October, in which Cobb said that when he signed his card
"it was not my intention to authorize the Union to act as my bargaining agent," that
he only wanted an election, and that on June 30, "the Union did not represent me."
This belated declaration of a long previous state of mind directly at variance with
the clear written statement signed at the time of the events, cannot serve now retro-
actively to belie the unequivocal authorization which Cobb executed on June 27.4
That the employees who signed these cards were actually on the payroll at the
end of June 1964 is amply shown by their testimony or that of others who worked
with them, as well as by the dates appearing on the cards. Moreover, with the
exception of one-Honaker-as to whose employment no direct question was raised,
Tuggle, the assistant manager, recalled they had all been employed at that time.
Roberts, who signed a card dated June 25, vacillated concerning his initial hiring.
Peterson Brothers , Inc, 144 NLRB 679.
See footnote 1
4 Fxntey Park Dairy Co , d/b/a Country Lane Food Store, 142 NLRB 683.
BURGER BOY FOOD-O-RAMA 483
He said he was an employee when he signed and that he "started toward the last of
June." Asked by Respondent 's counsel could it have been as late as July 7, he
replied it could not.
I find that on June 30, 1964 , 17 employees included in the appropriate bargaining
unit had authorized the Union to represent them in collective bargaining . As there
were at that time 25 employees included in the bargaining unit, I also find that on
June 30, 1964, and at all times since , the Union was and has been the exclusive rep-
resentative of all the employees in the aforesaid bargaining unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
3. Demand and refusal
By June 29 Stogden had placed the 17 authorization cards in the hands of Union
Representative Brooks. On the morning of the 30th, Brooks called Manager Kin-
caid and demanded recognition. On the evening of July 1, the next day, Stogden
was discharged and went to the Union to complain. On July 2 Brooks called Kincaid
again, this time to repeat his demand for recognition and to attempt to prevail upon
the manager to reinstate Stogden. There was a third conversation later the same
day, when Kincaid called back and spoke to Spencer, the union secretary-treasurer.
The General Counsel contends that the testimony as to these three talks reveals the
demand for recognition, the refusal by the Respondent, and its illegal motivation, or
bad faith. There is a direct conflict between the stories of Kincaid and those of
Brooks and Spencer.
Brooks said that in the first talk he told Kincaid that the Union represented a
majority of the employees, that he was calling to "ask him for recognition and bar-
gaining rights," that he [Brooks] would "be more than willing to let him check the
applications if he desired," that Kincaid first said "he would be very happy to check
them," but when Brooks offered to bring them down for that purpose, Kincaid said
he was too busy then. Brooks also quoted Kincaid as saying he could not check
the cards that afternoon because he "would have to check with Columbus," but
would call back, and "that the store in St Albans was new; that they intended to
have a union later on, but at the present time they were new and a non-profit organi-
zation, that he just did not believe that they could recognize a union at that time."
Columbus is the Respondent's central office.
Kincaid did not call Brooks as promised, and on the morning of July 2 Brooks
called him instead. He started by asserting that Stogden had been discharged
because of his union activities, and asked Kincaid to reinstate him on pain of unfair
labor practice charges. Again Kincaid said he must "check with Columbus."
Brooks went on to repeat his demand for recognition and bargaining rights, and
the manager again said he must call Columbus, and would call Brooks back. Kin-
caid refused to return Stogden to work and said he was an "undesirable" employee.
About 5 p.m. that same day Kincaid called the union office and reached Spencer
instead of Brooks. Spencer's version of this conversation is that Kincaid said he
would not reinstate the employee because he was "undesirable." Spencer asked
Kincaid whether he would recognize the Union, and Kincaid replied "that we could
picket the place, we could do anything we wanted to do they were not going to have
a union and they would close it down first and he would fire everybody who signed
up for the Union. I told him that this would definitely mean unfair labor practices,
illegal, and he said it didn't make any difference, we could do anything we wanted to
do they would not go along with the Union."
Testifying first on direct examination for the Respondent, Kincaid gave a version
of these three telephone talks which, in its most essential element, is in direct conflict
with his admissions on cross-examination. He started by saying that in his first call
Brooks said only that the boys had been to see him and "want to organize a union,"
and that he rpelied: "I will have to check with Columbus or some other official
because I don't have the say so in this." Kincaid flatly denied that the union agent
said anything about representing a majority, or made any claim for recognition or
bargaining. He did recall, however, that Brooks said he had authorization cards,
offered to show them personally to the manager, but that he refused because he
would have no time that afternoon.
Continuing to the second conversation, Kincaid said the first thing Brooks asked
was why had Kincaid not called back as he had promised, and that he excused
himself on the grounds lie had been too busy to call Columbus. Brooks went on to
ask had Stogden been discharged for union activity and Kincaid denied it Kincaid
went on to relate that although Brooks did not ask him to check on anything, "I
told Mr. Brooks that I would definitely find out something and call him back."
484 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Again Kincaid insisted that Brooks said nothing about representing a majority of
the employees, or request recognition or bargaining privileges.
Kincaid also recalled having telephoned Spencer that same evening, and testified
that all that took place in that conversation was that Spencer asked had he fired
Stogden, that he answered yes, because the man was undesirable and slow, that
Spencer again requested Stogden be reinstated, and that Kincaid refused to do so.
Once again, Kincaid denied that Spencer claimed majority, or demanded recognition
and bargaining.
As to all of these conversations, Kincaid also denied having said, as Brooks and
Spencer testified, that the store was new, that it was nonprofit, that he would not have
a union in the place, that he would close it before dealing with the Union, or dis-
charge employees at all.
After Kincaid had passed on to the subject of Stogden's discharge, the General
Counsel started to cross-examine on why he told Brooks he would check with
Columbus if the fact was, as Kincaid still persisted at that moment, that Brooks
had not asked him to do anything. Kincaid answered: ". . . union coming in and I
wanted to just find out about it." Slowly the truth began to come out of him.
TRIAL EXAMINER: That's right. Well, when you said to Mr. Kincaid [sic]
that you would call Columbus and ask them what you were supposed to do, had
Brooks asked you to do anything?
The WITNESS: No.
TRIAL EXAMINER: Did he explain anything to you as to why he called you9
The WITNESS: No.
TRIAL EXAMINER: He just called and said some of your boys have been up
here to organize the union, is that it?
The WITNESS: Right.
TRIAL EXAMINER: And did he then go on to say anything else as to why he
had called to tell you this?
The WITNESS: He was wondering if I would recognize him and I said, "I
can't do that."
TRIAL EXAMINER: Well, how did he say this?
The WITNESS: "Would you recognize us?" And I said, "No, I don't have the
authority to." You see, I have to check on it, find out something about it.
Despite this direct admission of the Union's demand and of the manager's refusal,
Kincaid later responded as follows to questioning by the Union's representative:
Q. And did you say that you refused to recognize the union, you told Brooks
you couldn't do it?
A. I didn't say I refused.
* * * * *
Q. Did Brooks ask you for recognition for our union in a telephone conver-
sation?
* * * * * * *
A. No, he didn't ask me to recognize him.
Q. He just called you up to tell you that some of the boys wanted a union?
A. That's right.
Kincaid closed his testimony with the following:
Q. [Mr. Spencer.] Will you tell me why you made the phone call and what
you said to me?
Mr. HOLROYD: I object to why he made it. Now he may answer what he
said, but not why he made it.
TRIAL EXAMINER' Overruled. Please make it more concise and on the
objection, why did you call Brooks back, because you called to speak to Brooks
and you got Spencer right?
The WITNESS: Right.
TRIAL EXAMINER: Why did you call him back?
The WITNESS: Because Mr. Brooks-called Mr. Brooks back to let him know
what I found out.
TRIAL EXAMINER' What had you found out?
The WITNESS • Nothing.
TRIAL EXAMINER' Why did you call him, you didn't call him to let him know
what you found out; are you telling us you called him to let him know you had
not found out anything?
The WITNESS: That's right.
BURGER BOY FOOD-O-RAMA 485
I credit the testimony of Brooks and Spencer as against that of Kincaid Apart
from the inherent implausibility, indeed incredibility of some of the things Kincaid
said, his reversal , and then reversal of his own testimony , serve to discredit him
entirely. This was not an incidental or minor aspect of his story; whether or not
there was a demand and refusal went to the heart of the case and of his testimony.
It matters not whether he did or did not "check with higher officials" of the Respond-
ent, as he said he was going to do, although his denial is highly suspect. His
demeanor left much to be desired , and his at times incoherent and illogical story
cannot serve to offset the direct, corroborative, and understandable recollections of
the union agents. Their testimony is also consistent with the other objective facts
appearing in the record.
I find, as Brooks testified , that on June 30, 1964, the Union advised the Respond-
ent that it represented a majority of the employees in the appropriate bargaining
unit and that through its manager the Respondent refused to extend recognition to it.
The reason for this refusal to bargain is convincingly revealed in the credited testi-
mony of both Brooks and Spencer as to what Kincaid said when he refused. When
he refused Brooks' request for bargaining the manager simply said the Company
"did not believe that they could recognize a union at that time." When he refused
the same request voiced by Spencer, Kincaid said for all he cared the Union could
picket the place, do anything it wished, the Respondent was simply "not going to
have a union," and that it would first shut down the operation and discharge every
employee who had signed a union card. With this as the admitted attitude of the
Respondent at the very time of the demand , it follows, as alleged in the complaint,
that the Respondent rejected the basic principle of the statute and was determined to
deny recognition to the Union , despite the mandate of Section 8(a) (5), without
regard to any other consideration . This was an attitude of bad faith, and I find that
by refusing to bargain with the Union as requested , the Respondent violated Section
8(a) (5) of the Act.
B. The discharge of Stephen Stogden
In the evening of July 1, the day after Brooks first called Manager Kincaid to
demand recognition , Stogden went to the restaurant at 8 or 9 o'clock, although he
was off duty . This is a place where young people congregate for hamburgers and
french fries ; the food is sold over the counter and the customers sit at tables to eat.
As Stogden testified : "All of the teenagers made sort of a hangout around St.
Albans, you know, all of your friends are down there so you go down there." At
times employees are sent out to the table areas to clean up, or to mop the floors and
sidewalks if milkshakes or other food is spilled.
When Stogden arrived , Pullin , an employee , was near the tables and the two spoke
briefly. Assistant Manager Tuggle saw them and called Pullin in to his counter
work station . A little while later Turley, another employee, found himself near the
tables and asked Stogden for a cigarette . The two spoke a while and Tuggle, who
was passing by, invited Stogden to the back of the store , and discharged him. There
is no significant disagreement as to what brief conversation there was . Stogden said
Tuggle simply told him "pick up your check tomorrow, we won't need you any
more," and when the employee asked why, he was told "because you wanted to chit-
chat too much ." According to Tuggle he said : "I am going to have to let you go
because I just can't keep this up, bothering the employees when you are working.
Now, it's your day off and you are here bothering them. I just can't put up with it
any longer."
All that Kincaid said when Brooks and Spencer asked why Stogden had been
released was that he was undesirable and slow. At the hearing Tuggle and Kincaid
seemed to merge two reasons-that Stogden "loafed," or was slow, and that he
engaged others in conversation when they should be working . The two managers
also did not seem to agree as witnesses on who had decided the matter . Tuggle gave
a clear impression that he made up his mind on the spot when he saw Stogden talking
to Turley. At one point in his testimony Kincaid said he had influenced the decision.
His lawyer asked him, "Did you have another man trained when you did fire him?"
and he answered, "Yes, I did."
Certain facts that must be deemed pertinent to the question of motivation are
clear on the record. Stogden was fired summarily without advance notice. There
is no contradiction of his flat statement that he had never been warned of discharge,
despite Kincaid's admission that it is his "habit " to give employees prior warning
before he discharges them . Stogden was the most active of the employees in solicit-
ing union signature cards. And the timing of this discharge , coming the very day
after the Union 's claim for recognition , stands stark on the record.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The managers denied any knowledge of union activities before June 30, and par-
ticularly of any activity by Stogden before he was released. And Stogden admitted
that although he spoke to many employees on the premises on many occasions, he
was careful always to hide his doings from management . There is some evidence,
nevertheless, that the Respondent knew of the organizational efforts during June, and
that Tuggle learned of them before releasing Stogden. At one point of his testi-
mony, Hash, the day assistant manager, said he learned "they were trying to start a
union there . . . middle of June, first of June." And Tuggle whose testimony was,
confused, told of Kincaid advising of his telephone conversation with Brooks the
same day it occurred, and that "he was supposed to call him back later" after speak-
ing to Columbus.
In any event, there is revealing testimony in what Kincaid said to Stogden the day
after the dismissal, when the employee returned to the place for his final check.
Tuggle paid him off, and Stogden thought the amount was short. After telling Stogden
that his final check was not in error, Kincaid, according to the employee's testimony,
... told me to come over to the corner, that he wanted to talk to me. Then he
asked me questions about the Union and wanted to know if I knew Mr. Spencer
very well, if I could trust him.
And I said I thought I could and then I told him why I wanted a Union
because of the working conditions and all and then he said, "Well, you know,
when this doesn't go through these boys are going to lose their job and they're
going to hang you to a tree."
I didn't make any comment and then he told me that we could picket the
place or close-No, he said we could picket it or anything we wanted to, that
he would close the shop down before he would let a union go in and he said
they wouldn't allow it.
Kincaid denied having said any of these things to Stogden. In view of the charac-
ter of Kincaid's total testimony in this case, and considering also the demeanor of
the two witnesses at the hearing, I credit Stogden and find that the manager spoke
as set out above.
Against all the foregoing the Respondent asserts as an affirmative defense that
Stogden was released because he was "undesirable," and explained the term in the
sense of his having been too slow and predisposed to excessive talking during work-
ing hours. The record shows again and again that hustling the boys alone, staying
on top of them with constant admonitions to keep moving, and even a certain amount
of yelling (including a cussing habit by Assistant Manager Tuggle) are the order of
the day at this hamburger eatery. An employee witness even said if an employee
does not rush "he usually gets fired." It is equally clear, however, that the continu-
ous pep talks used by the managers to keep things going were applied indiscriminately
to all of the employees. The manager is always saying "hurry up," according to
one employee. Tuggle said he always tells the boys "come on, boys, let's move,"
and added he used to say this "more frequently" to Stogden. While stressing,
through its witnesses, that a basic reason for the discharge was simply that Stogden
was "slow," the assistant manager, who said it was he who made the decision, seemed
to say, instead, that it was quite a different reason. He denied knowing that the
employees were talking about the Union late in June, when he said he noticed more
congregating about and more "chit-chat." He said, "... it's nothing rare to-for
the boys downstairs when they are getting ready to come up on counter, ready to go
to work to talk, see, but it just ... it always seems Steve was in the middle of it, see,
and I think Steve was popular around there .... He always seemed to be leading
them on, if you know what I am trying to say."
However, one incident that occurred the very evening before the discharge, in fact
during the last shift Stogden was permitted to work, suggests very strongly that
Tuggle knew what the subject of so much "chit-chat" was Tuggle said he saw
Stogden in the basement talking to four of the men in a corner, and said to him,
"My daddy said let's not get into something you can't get out of it " At the hearing
he explained this as a friendly warning to employees "slacking up" on work; but to
Stogden at the time, when the employee asked what Tuggle meant by the ambiguous
phrase, he answered cryptically: "You know what I mean." There is a like frailty
in the testimony of Manager Kincaid, who first said he never "reprimanded" the
man, and later, in an attempt to avoid the adverse implication arising from a dis-
charge without advance warning, added that any statement to an employee that he
"should do his job right" ought to be taken as a discharge warning.
Even assuming no sufficient direct evidence of company knowledge about Stog-
den's union activity before his discharge, I find that the managers did know or believe
him to be the ringleader in solicitation of cards. Kincaid's statement to him the
BURGER BOY FOOD-O-RAMA 487
very day after the dismissal, that he would not have a union in the plant, and that
once the union campaign had failed to "go through" the boys would be fired, and
in consequence "hang" Stogden to a tree, permits of no other conclusion. On the
basis of the entire record, and particularly the facts that Stogden was not personally
warned of discharge in advance, that his dismissal followed immediately upon the
demand for recognition, that Kincaid virtually admitted an illegal objective, and that
the Respondent 's basic antiunion policy is strongly shown in the reasons it gave for
refusing to bargain with the Union at all, I conclude that the preponderance of the
substantial evidence as a whole supports the complaint allegation. I find that the
Respondent discharged Stogden on July 1, 1964, because of his union activity and
thereby violated Section 8(a) (1) and (3) of the Act.5
I also find that by Manager Kincaid's statements to Stogden that employees would
lose thir jobs for having joined the Union, and that he would close the restaurant
rather than recognize a union, the Respondent restrained and coerced the employees
in their right to self-organization and thereby violated Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set out in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has committed certain unfair labor practices, I
shall recommend that it be ordered to cease and desist from such conduct and to
take certain affirmative action designed to dissipate the effect thereof. Remedial
action for the illegal discharge of Stogden requires that the Respondent reinstate him
to his former employment and make him whole for any loss of earnings he may
have suffered in consequence of the discrimination. The Respondent having refused
to bargain m good faith with the Union, upon request, it must also be ordered to do
so, and, if an agreement is reached, sign a contract. In view of the nature of the
unfair labor practices committed, the commission of similar and other unfair labor
practices reasonably may be anticipated. I shall therefore recommend that the
Respondent be ordered to cease and desist from in any manner infringing upon
rights guaranteed to its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. All employees employed at the Respondent's St. Albans, West Virginia, restau-
rant, excluding all supervisors as defined in the Act, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
4. United Store Employees Union, Local $347, Retail, Wholesale and Department
Store Union, AFL-CIO, was on June 30, 1964, and at all times since has been the
exclusive representative of all employees in the aforesaid unit for the purposes of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to recognize and bargain with the Union as the representative of
the employees in the aforesaid unit the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (5) of the Act.
6. By discharging Stephen Stogden the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
7. By the foregoing conduct, by threatening to discharge employees because of their
union activities, and by threatening to close the place of business rather than recognize
a union, the Respondent has interfered with, restrained, and coerced employees in
their rights guaranteed in Section 7 of the Act, and thereby has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6 Sometime after the discharge Tuggle is said to have told an employee he knew
Stogden had started the Union. I need not resolve the testimony relating to this In-
cident because it occurred after the discharge, by which time Stogden's union activities
must have become common knowledge I do not credit the testimony of Turley that
after the discharge Tuggle offered him $5 to "whip" Stogden.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the Act, I recommend
that B.B.S.A., Inc., d/b/a Burger Boy Food-O-Rama, St. Albans, West Virginia, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging, laying off, or otherwise discriminating against employees because
of their exercise of the right to self-organization or to join labor organizations.
(b) Refusing to bargain collectively with United Store Employees Union, Local
#347, Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive
representative of all employees in the appropriate unit, with respect to rates of pay,
wages, hours of employment, or other conditions of employment.
(c) Threatening to discharge its employees because of their union activities, or to
close its place of business rather than recognize a union.
(d) In any othei manner interfering with, restraining, or coercing employees in
the exercise of rights to self-organization, to form labor organizations, to join or
assist United Store Employees Union, Local # 347, Retail, Wholesale and Department
Store Union, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection as guaran-
teed in Section 7 of the Act, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon proper request, bargain collectively with United Stores Employees
Union, Local #347, Retail, Wholesale and Department Store Union, AFL-CIO, as
the exclusive representative of all employees in the above appropriate unit, and if
an understanding is reached, embody such understanding in a signed agreement.
(b) Offer to Stephen Stogden immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights
and privileges enjoyed, and make him whole for any loss of pay he may have
suffered by reason of the discrimination against him, with interest at the rate of 6
percent per annum on any sums due.
(c) Preserve and, upon request, make available to the Board or its agent for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all records necessary to analyze the amount
of backpay due under the terms of this Recommended Order.
(d) Post at its restaurant in St. Albans, West Virginia, copies of the attached
notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional
Director for Region 9, shall, after being duly signed by the Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any othei material.
(e) Notify the Regional Director for Region 9, in writing, within 20 days from the
date of this Decision, what steps the Respondent has taken to comply herewith.?
"If this Recommended Order be adopted by the Board , the words "a Decision and
Order" shall be substituted for the words " the Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board 's Order be enforced by a decree of
a United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order."
In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that
WE WILL NOT discourage membership by any of our employees in United
Store Employees Union, Local #347, Retail, Wholesale and Department Store
RIO GRANDE VALLEY GAS COMPANY 489
Union, AFL-CIO, or in any other organization , by discharging , laying off, or in
any other manner discriminating against any employees in regard to their hire
or tenure of employment , or any other term or condition of employment.
WE WILL NOT refuse to bargain collectively with United Store Employees
Union, Local # 347, Retail , Wholesale and Department Store Union , AFL-CIO,
as the exclusive bargaining representative of all employees in the appropriate
bargaining unit described below.
WE WILL offer Stephen Stogden immediate and full reinstatement to his former
or substantially equivalent position , without prejudice to his seniority or other
rights and privileges , and WE WILL make him whole for any loss of pay he may
have suffered as a result of the discrimination against him.
WE WILL , upon proper request , bargain collectively with United Store Employ-
ees Union , Local # 347, Retail , Wholesale and Department Store Union, AFL-
CIO, as the exclusive representative of all employees in the bargaining unit
described below, and if an agreement is reached , sign such an agreement. The
bargaining unit is:
All employees involved at our St . Albans , West Virginia , restaurant,
excluding all supervisors as defined in the Act.
WE WILL NOT threaten our employees with discharge for joining the Union,
or threaten to close the plant in retaliation for union activity , or in any other
manner interfere with, restrain , or coerce our employees in the exercise of their
right to self-organization , to form , join, or assist any labor organization , to bar-
gain collectively through representatives of their own choosing , to engage in
concerted activities for the purpose of collective bargaining , or other mutual aid
or protection , or to refrain from any or all such activities.
All our employees are free to become , or remain , or to refrain from becoming or
remaining , members of any labor organization.
B.B.S.A., INC., d/b/a BURGER Boy FOOD -O-RAMA,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200 , if they have any question concerning this notice or compliance with its
provisions.
Rio Grande Valley Gas Company and Oil , Chemical and Atomic
Workers International Union , AFL-CIO. Case No. 23--CA-
1765. March 9, 1965
DECISION AND ORDER
On December 22, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint, and recommended that these
151 NLRB No. 59.