Elias Brothers Big Boy, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1962

139 N.L.R.B. 1158 (N.L.R.B. 1962)

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certification of the Board determining the bargaining representa-
tive for the employees performing the above-mentioned work.
LOCAL 991, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
LOCAL 1406, INTERNATIONAL LONGSHOREMEN'S
ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
SOUTH ATLANTIC AND GULF COAST DISTRICT INTERNA-
TIONAL LONGSHOREMEN'S ASSOCIATION, AFL-CIO,
Labor Organization.
Dated---------------- By-------------------------------------
(Representative ) (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, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2,
Texas, Telephone Number, Capital 8-0611, Extension 296, if they
have any question concerning this notice or compliance with its
provisions.
Elias Brothers Big Boy, Inc. and Local Joint Executive Board,
Hotel and Restaurant Employees, Bartenders International
Union, AFL-CIO
Clem, Inc . and Elias Brothers Big Boy, Inc. and James Henry
Rademacher
Elias Brothers Big Boy, Inc. and Patricia Clark . Cases Nos.
7-CA-3480, 7-CA-3473, and 7-CA-3533. November 21. 1962
DECISION AND ORDER
On July 13, 1962, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent Elias had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. The Trial Examiner, however, recommended that
139 NLRB No. 99.
ELIAS BROTHERS BIG BOY, INC. 1159
the complaint be dismissed with respect to Respondent Clem, Inc.'
Thereafter, both the Respondent Elias and the General Counsel filed
exceptions to the Intermediate Report together with supporting briefs 2
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three -member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, the exceptions and
briefs, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner with
the additions and modifications noted below.
THE REMEDY
The General Counsel excepted to the failure of the Trial Examiner
to include the payment of interest in the backpay obligations of Re-
spondent Elias. In accordance with the Board's recent decision in
Isis Plumbing cfi Heating Co., 138 NLRB 716, the remedy section
of the Intermediate Report herein is amended by providing that the
backpay obligations of Respondent Elias shall include the payment of
interest at the rate of 6 percent per annum to be computed in the
manner set forth in the Isis case.'
ORDER
The Board adopts as its order the Recommended Order of the Trial
Examiner with the following modifications :
1. In paragraph 2(b), after the word "backpay," are inserted the
words "with interest."
2. In the notice called "Appendix A," the phrase "together with
interest at the rate of 6 percent" is added to the last sentence of para-
graph 6.
3. Immediately below the signature in the notice, the following sen-
fence is inserted : 4
NoTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of her right to
full reinstatement upon application in accordance with the Selec-
tive Service Act after discharge from the Armed Forces.
1 No exceptions were filed to this recommendation , and we therefore adopt it pro forma.
a The Respondent 's request for oral argument is hereby denied, as the record , Including
the exceptions and briefs , adequately presents the issues and the positions of the parties.
8 Member Rodgers , for the reasons stated in his dissenting opinion in the Isis case,
would not award interest on backpay.
d In the last paragraph of the notice , the address of the Regional Office for the Seventh
Region is amended to read: "500 Book Building, 1249 Washington Boulevard , Telephone
Number, 963-9330 "
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also in the notice, the penultimate paragraph is changed to read
"This notice must remain posted for 60 consecutive days from the date
of posting, ..." instead of stating "60 days from the date hereof."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed on December 4, 1961, by Local Joint Executive Board, Hotel
and Restaurant Employees, Bartenders International Union, AFL-CIO, herein called
the Union, on November 29, 1961, and January 17, 1962, by James Henry Rade-
macher, an individual, and on January 16, 1962, by Patricia Clark, an individual,
the General Counsel of the National Labor Relations Board, by the Regional Di-
rector for the Seventh Region (Detroit, Michigan), issued his amended order con-
solidating cases and his amended consolidated complaint, dated February 14, 1962,
against Elias Brothers Big Boy, Inc., herein sometimes called Respondent Elias
or Elias, and against Clem, Inc. and Elias Brothers Big Boy, Inc, herein sometimes
called Respondent Clem or Clem. With respect to the unfair labor practices,
the complaint alleges, in substance, that: (1) Respondent Elias discharged Ann
Maniscalco on August 3, 1961, and therefore refused to reinstate her because of
her union and concerted activities, (2) named supervisors and agents of Elias en-
gaged in specified acts of interference, restraint, and coercion, (3) on or about
September 7, 1961, certain named employees of Respondent Clem ceased work
concertedly and went out on strike; (4) since on or about September 8, 1961, Clem
refused to reinstate these employees, upon their unconditional application, because
of their concerted and union activities; and (5) by the foregoing conduct Respond-
ents Elias and Clem violated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act, as amended, herein called the Act. In their duly filed answer, Respond-
ents admitted certain facts with respect to their business operations but denied the
commission of any unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin
at Detroit, Michigan, on March 5 to 7, 1962. All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to argue orally, and to file briefs. Respondent Clem's motion to sever
the cases and to dismiss the complaint as to it for want of jurisdiction, upon which
I reserved ruling, is hereby granted in accordance with the findings hereinafter
made. On April 30, 1962, the General Counsel and Respondents filed briefs,
which I have fully considered.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
The Respondents, Elias Brothers Big Boy, Inc., and Clem, Inc., herein called
Elias and Clem, respectively, are Michigan corporations engaged in that State in
the business of selling foodstuffs at retail. Elias operates a number of restaurants.
Clem operates only one restaurant under a franchise agreement with Elias. During
the 12-month period ending December 1960, Elias sold goods at retail valued in
excess of $500,000. During the same period, Elias received goods at its Detroit
restaurants, valued in excess of $193,000, directly from outside the State of Michigan.
During the period from May 25 to November 30, 1961, Clem sold goods at retail
valued at $83,000. During the same period, Clem purchased goods and materials
valued in excess of $500 from Elias which had, in turn, received such merchandise
directly from outside the State of Michigan. During the 12-month period ending
May 30, 1962, Clem was expected to sell goods at retail, valued in excess of
$166,000.
The above facts are admitted by Respondents Elias and Clem. I find, as Re-
spondent Elias further admits, that Elias Brothers Big Boy, Inc., is engaged in
commerce within the meaning of the Act and has satisfied the Board's standards
for the assertion of jurisdiction over it.i
The parties are in dispute as to the Board's jurisdiction over Respondent Clem.
The General Counsel concedes that, if Clem is considered separately, the commerce
data is insufficient to meet the Board's standards for asserting jurisdiction over Clem.
'Elias Brothers Big Boy, Inc., 137 NLEB 1057.
ELIAS BROTHERS BIG BOY, INC. 1161
However, he contends that Elias and Clem constitute a single employer because of
the franchise agreement and the manner in which they operate under it. Respond-
ents contend that Elias and Clem "are not in any sense of the word" a single em-
ployer within the meaning of the Act. The Board has recently decided this identical
issue in favor of Respondents' position in a case involving substantially the same
facts and the identical franchise agreement between Elias and one of its other
franchise owners. Elias Brothers Big Boy, Inc., 137 NLRB 10597. The evidence
in the present record does not warrant a different conclusion. Accordingly, I
find that Elias and Clem do not constitute a single employer within the meaning
of the Act. As the Board's standards for the assertion of jurisdiction over Clem
have not been satisfied, I shall recommend the dismissal of the complaint as to Clem.
II. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that Local Joint Executive Board , Hotel and
Restaurant Employees , Bartenders International Union , AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent Elias
In May and June 1961, the Union initiated an organizational campaign among
the employees of several of the "Elias Bros. Big Boy" restaurants. The Board found
that during this campaign Respondent Elias violated Section 8(a)(1) and (3) of
the Act with respect to its employees at its store No. 1. Elias Brothers Big Boy, Inc.,
137 NLRB 1057. Specifically the Board found that Elias violated Section 8(a)(1)
by maintaining in effect an invalid no-solicitation rule and by the conduct of its
supervisors, including General Manager Gabriel Kassab and Main Office Supervisor
Johnson, in interrogating employees as to their union membership and knowledge,
suggesting and securing a union withdrawal letter from an employee, warning an
employee that the arrival of the Union would cause the Company to shut down,
and demanding that an employee give up her union pamphlet; and violated Section
8(a) (3) by discharging two employees in June 1961, because of their union member-
ship and activities.
The events in the present case involved the employees in Elias' West Grand River
Store, and arose out of this same unionization drive.
A. Interference, restraint , and coercion
1. The facts
During the union campaign, Night Manager Charles (Chuck) Anders spoke to
the employees on his shift many times about the Union. On such occasion he
stated, among other things, that he did not think the Union could do as much for
the employees as the Company, pointing out that the Company had a profit-sharing
plan and suggesting that the employees could investigate the union wages at other
restaurants. Day Manager Bill Miller admitted that about August 1 he called Ann
Maniscalco, one of the waitresses, down to his office in the basement because she
was a new employee, and talked to her alone about the disadvantages of the Union
and about the benefits the Company had to offer, including vacation pay and the
profit-sharing plan. He further admitted telling her that if the Union got in "we
will probably lose the profit-sharing" plan. Maniscalco testified that during that
interview Miller also asked her if she belonged to the Union and how she felt about
the Union, and told her that the Company was good to the employees who were
"loyal" to the Company and that if she was for the Company more suitable work-
ing arrangements might be worked out for her. Miller merely denied asking her
if she was a union member and telling her that if she was against the Union and
in favor of the Company things would be easier for her. In view of Miller's ad-
missions and the testimony of Respondent's own witness, Rita Tomlinson, that Miller
had asked other waitresses if they had signed a union card, I do not credit Miller's
denials and find that he did ask the questions and make the statements attributed
to him by Maniscalco.
During the evening on August 2, 1961, employees Dorothy Nichols and Patricia
(Pat) Clark attended a union meeting held at the home of employee Ann Maniscalco
All three were employed as waitresses in Elias' West Grand River Restaurant. Assist-
ant Manager Gerald Kargol was also present at this meeting. About a month
later, Anders called Dorothy Nichols over to one of the booths in the dining room
area of the restaurant and asked her if she had signed a union card, adding that
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not everyone in the store had signed a card and that he did not think the girls
would sign a card without letting him know first . Nichols replied that she had
signed a union card. Anders then asked if Nichols would be willing to sign a letter,
-withdrawing her card from the Union , if the rest of the girls signed . Nichols
replied that if everyone else did so, she would also sign.
About the same tune Anders and Supervisor Gerald Callis asked Clark what
she thought of the Union and if she had signed a union card. At that time Clark had
not signed a union card and so stated . A few days later Callis again asked her if
she had signed a union card and had attended any union meetings . Clark admitted
that she had attended a union meeting but denied signing a card . After she had
signed a union card , Clark was again interrogated by Callis. When she admitted
having signed a card , Callis stated that he did not believe the Union would benefit
the employees . He also said that they would have a withdrawal letter typed and
have all the girls sign the same letter . Callis then asked if Clark would be willing
to sign such a letter. A few days later, Callis told Clark that it would be better
for the girls to write their own individual letters requesting the withdrawal of their
cards and to sign and send them by registered mail. Clark sat at the counter and,
in Callis' presence, "sketched a letter" requesting the withdrawal of her union card.
-Callis read the letter, stated it was "pretty good," and showed the letter to Manager
Anders.
Later in the week, Anders asked Clark if she had sent in her withdrawal letter.
Clark replied that she had not had time to go to the post office but that her sister
would mail it if she asked her. A few days later Callis asked Clark if her sister
had mailed the letter. She replied in the negative. About that time Callis also asked
Dorothy Nichols, on one occasion when they were in the basement, if any of the
girls had written their union withdrawal letters yet and had sent them in.
The findings in the preceding paragraphs are based on the credited testimony of
Dorothy Nichols and Pat Clark, who, unlike Anders and Callis, testified in a manner
which convinces me that they were candid and truthful witnesses. Anders did not
deny having asked Nichols if she had signed a union card and stating that he did
not think the -girls would sign a card without letting him know first. He did deny
discussing any letters with Nichols, or asking anybody to sign a letter or having
anything to do with any letter of Pat Clark. However, on cross-examination, he
first testified that he was not "certain" or "positive" whether he had talked to Pat
Clark about a letter withdrawing from the Union. After being shown his pretrial
affidavit in which he stated that Pat Clark's letter said, "Please withdraw my mem-
bership because I feel that working conditions are fine with me," he admitted talk-
ing to Pat Clark about a letter withdrawing from the union. Callis' duties required
him to visit the various restaurants owned by Elias. It was his practice to visit the
West Grand River restaurant every day. Callis denied telling Pat Clark that he
wanted all the girls to sign a letter of resignation. He testified as follows: One eve-
ning while he was at the counter talking to Assistant Manager Gerald Kargol, Pat
Clark volunteered that she had signed a union card and asked how she could
resign. He replied that she could write a letter of resignation, and that she would
have to write her own letter. Shortly thereafter, in the same evening, Dorothy
Nichols came over and talked to Callis about a union election. She also asked
how she could get out of the Union and he gave her the same answer he had given
to Pat Clark. Kargol corroborated Callis with respect to his testimony relating to
the conversation with Pat Clark and that Nichols also talked to Callis and asked
about the election. He did not corroborate Callis' testimony that Nichols also asked
how she could get out of the Union. Callis did not deny having asked Pat Clark
on an earlier occasion if she had signed a union card and had attended union meet-
ings. He admitted that a few days after the discussion at the counter, Pat Clark
showed him a union withdrawal letter, and that he stated it looked all right
Nor did he deny Nichols' testimony that on one occasion in the basement he had
asked her if the girls had written their union withdrawal letters yet and sent them
in. Upon consideration of all the foregoing, including the demeanor of the wit-
nesses. and in view of the fact that the conduct attributed to Anders and Callis
is similar to the conduct in which General Manager Kassab and Main Office Super-
visor Johnson engaged, as found by the Board in the prior proceeding. I do not
credit the testimony of Anders and Callis to the extent that it conflicts with that of
Nichols and Clark.
2. Conclusions
Respondent admits that Managers Anders and Miller and Supervisor Callis were
supervisors within the meaning of the Act It is now well settled that the conduct
of Anders, Miller, and Callis in interrogating employees as to their union member-
ship and sympathies, as to whether they had signed union cards and had attended
ELIAS BROTHERS BIG BOY, INC. 1163
union meetings , and as to whether they had mailed in union withdrawal letters, in
the context and under the circumstances disclosed by this record, is coercive and
violative of the Aot.2 Equally violative of the Act is the conduct of Anders and
Calhs in attempting to get the employees to sign union withdrawal letters and to mail
them to the Union.3 Most revealing in these respects is the testimony of Respondent's
own witness, Rita Tomlinson. She testified that Manager Miller had asked her and
the girls with her if they had signed a union card, that they replied in the affirmative,
that she later voluntarily decided to write a letter withdrawing from the Union, and
that she showed the letter to Miller "because he was our manager and I thought he
should know about it."
Also violative of the Act was Miller's conduct (1) in promising employee Mani-
scalco that the Company was good to the employees who were "loyal" to the Com-
pany and that more suitable working conditions might be arranged for her if she
were for the Company instead of for the Union; and (2) in warning her that, if the
Union got in, the employees "will probably lose the profit-sharing" plan. In the
absence of any explanation of how or why the profit-sharing plan might be lost,
the latter statement reasonably carried the threat, which I find, that Respondent
would withdraw the plan in reprisal for the employees' selection of the Union as
their bargaining representative.
I find that, by the foregoing conduct of Managers Anders and Miller and of
Supervisor Callis, Respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act and has
thereby violated Section 8 (a)( I) of the Act.
B. Discrimination with respect to Ann Maniscalco 4
1. Relevant events preceding Maniscalco's discharge
Ann Maniscalco was employed by Elias as a waitress at the West Grand River
restaurant in Detroit from June 28 to August 3, 1962. Union representatives dis-
tributed pamphlets to the employees during the rush hour one day in July. All
the girls except Maniscalco and another employee discarded their pamphlets. That
day, Night Manager Anders was substituting as day manager. Later in the day,
Maniscalco discussed the union pamphlet with Anders in the latter's office. Anders
told her that he did not believe the statements in the pamphlets to be true. Man-
iscalco inquired what the Company had to offer in contrast to what was in the
pamphlet. After Anders explained what the Company had to offer, she replied
that she was not interested in the Union because she intended to return to school
in the fall. However, during the last 3 weeks of her employment she became the
chief protagonist for the Union and took an active part in informing the employees
about the Union and in soliciting them to sign union authorization cards.
About July 22, the last night before Manager Anders' temporary transfer to
another Elias restaurant, Anders talked to Maniscalco about his transfer and stated
he would see her again in a couple of weeks. She replied that she was sorry to
see him go because he had been fair in his treatment of her, that Manager Miller
and Headwaitress Cabender had been "riding" her and picking on her, and that
she did not know if she would be able to last 2 weeks under this kind of treatment
without him being there. She also stated that Anders probably knew by now
that she had been working with the Union.5
2 See, e g, the Board's decision in the recent Elias Brothers Big Boy, Inc., 137 NLRB
1057; N.L.R.B. v. Flemingsburg Manufacturing Co, 300 F. 2d 182 (C A. 6).
3 Elias Brothers Big Boy, Inc., supra.
* Unless otherwise indicated, the factual findings in this section are based on credited
evidence which is either admitted or undenied.
5 Anders testified that Maniscalco also stated that she had been put there by the Union
for the purpose of organizing the store. He further testified that she said she would quit
after 2 weeks Maniscalco denied having made the foregoing statements. Anders ad-
mitted that he did not state in his pretrial affidavit that Maniscalco told him she was
put there by the Union. When asked on cross-examination if it was not true that she
merely told him that she had been working with the Union, he testified she said both and
that she told him that "I guess you know that I am put here and working with the Union
and this is why I was terminated because I was found out " As Maniscalco had not yet
been terminated at the time when this alleged conversation took place, the foregoing
demonstrates the unreliability and confusing nature of Anders' testimony. I have already
found Anders not to be a credible witness in other respects relating to the employees'
union activities. On the other hand , it is also true that Maniscalco was not a credible
-1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously found, about August 1, Manager Miller called Maniscalco into his
office in the basement where he interrogated her with respect to her union mem-
bership and sympathies. Although she had already signed a union card, she re-
plied that she was not a union member but that there were many good things
which the Union could do to help the employees. She then complained about not
having been allowed to get off early on the days that she had desired in order to
attend business school and that 6 days a week involved too many working hours.
Miller told her that perhaps more suitable arrangements could be worked out for
her if she was for the Company. He then discussed the disadvantages of the
Union and the benefits which the Company already gave the employees, such as
vacation pay and a profit-sharing plan. He admittedly warned her that if the
Union got in, "we will probably lose the profit-sharing" plan, a warning which
carried a threat of economic reprisal by the Company if the employees selected
the Union as their bargaining representative, as previously found. Maniscalco
asked what would happen if she was in favor of the Union. Miller replied that
things would be very unpleasant for her, pointing out that the Company was good
to those who were "loyal" to it. Maniscalco stated that she would let Miller know
how she felt about the Union. She also told him that she wanted to reenroll in
business school and work for another 6 to 8 weeks until she acquired sufficient skills
to get a secretarial job.
On the evening of August 2, Maniscalco held a union meeting at her home for the
night-shift employees of the restaurant. Also present at the meeting were Union
Business Agent Soifer and Assistant Day Manager Kargol, an admitted supervisor
within the meaning of the Act. The purpose of the meeting was to inform the
employees about the Union and to solicit their signatures to union authorization
cards. During the meeting, Soifer told Kargol that the restaurant would be union-
ized "in about two or three weeks," and Maniscalco agreed with this prediction.
2. The discharge of Maniscalco
About 6 p.m. the following day, August 3, 2 hours before her regular quitting
time, Maniscalco was called into Manager Miller's office. Miller told her that
he had heard from Anders that she intended to leave in about 2 weeks, and that
she was being discharged because they were bringing back another girl to replace
her in the morning. Maniscalco protested that she was not leaving in 2 weeks,
reminding Miller that she had told him only a few days previously that she in-
tended to reenroll in business school and continue to work until she had finished
school. Miller, however, repeated that he had heard she was leaving in 2 weeks,
and handed her a paycheck for the week she had already worked and for an extra
week in advance. Maniscalco then inquired whether she was being fired because
of the union meeting she held at her home the preceding night. Miller replied
-that he knew nothing about the meeting and that that was not the reason, adding
that he was nevertheless sorry that she was not satisfied with the policies of the
Company. Miller admittedly did not permit Maniscalco to finish her shift and
told her to leave immediately.6
3. Position and contentions of Respondent
Respondent contends that (a) Ann Maniscalco was a union organizer and not a
bona fide employee entitled to the Act's protection, and (b) she voluntarily termi-
nated her services by giving notice that she was quitting in 2 weeks. For reasons
hereinafter set forth, I reject both contentions as being without merit.
a. As to Maniscalco's employee status
Conceding that this was not the reason for her termination because Respondent
was unaware of her alleged status at that time, Respondent contends that Maniscalco
was a paid employee of the Union who was "planted" in Respondent's restaurant
for the specific purpose of organizing the employees, that her alleged employment
witness in certain respects, such as in connection with her prior employment, her attend-
ance at business school, and about being permitted on occasion to check out a few hours
early for the purpose of attending school However, after careful consideration of all
the foregoing, including the demeanor of the witnesses, I am convinced and find that
Maniscalco, and not Anders, testified truthfully with respect to the matters in question.
I therefore do not credit Anders' testimony in these respects.
6The findings in this paragraph are based on a composite of the undenied and mutually
consistent testimony of Maniscalco and Miller.
ELIAS BROTHERS BIG BOY, INC. 1165
with Respondent was a fraud, and that therefore she was not an "employee" pro-
tected by the Act. Respondent's accusations are not supported by the record. Con-
trary to Respondent's statement in its brief, Maniscalco was not employed by the
Union before working for Respondent.? She had met Myra Wolfgang, one of the
officers of the Union, on one occasion before becoming employed by Respondent.
That was the only time she saw her before her discharge. During the last 3 weeks
of her employment she was paid $15 a week by the Union to cover expenses for
telephone calls to employees during her organizing efforts and gasoline used in her
car in driving employees home from work at which time she would talk to them about
the Union. Business Agent Soifer informed her that these expenses had been
approved because she was not earning enough money herself. Within a few days
after her discharge, she became a full-time paid organizer for the Union.
The foregoing facts do not destroy Maniscalco's status as a bona fide employee
of Respondent who was protected by the Act.8 Respondent's contrary contention
is rejected.
b. As to Maniscalco's quitting
Respondent contends that Maniscalco had informed Manager Anders of her
intention to leave in 2 weeks, that Anders relayed this information to Manager
Miller, that Miller thereupon made arrangements to recall a waitress on leave of
absence who desired to return, and that Maniscalco was replaced a week before her
notice was up and was paid for that week. This defense does not bear analysis.
As previously found, about July 22, when Anders, who was the night manager
at the West Grand River restaurant, told Maniscalco that that was his last night
there because he was being transferred for a few weeks to another Elias restaurant
on Woodward Avenue, Maniscalco told Anders, among other things, that she did
not know whether during his absence she would be able to last 2 weeks under the
treatment she was receiving from Manager Miller and Headwaitress Cabender.
Anders testified that upon his transfer to the other restaurant about July 24, or
within a few days thereafter, he telephoned to Miller, informed him of this aspect
of the conversation with Maniscalco, and "discussed the matter of her replacement."
Miller testified on direct examination that a few days after Anders' transfer, Anders
called him and told him that Maniscalco had told Anders before his transfer that
she would be leaving in 2 weeks, that he (Miller) decided that same day to discharge
her, that he then called Personnel Manager Morgan to make arrangements for a
replacement, and that at the same time he talked to General Manager Kassab about
it. Anders further testified that at the Woodward Avenue restaurant he was working
days, as was Miller, that it was therefore during the daytime that he called Miller,
and that Miller was the only one whom he informed about this matter. Miller testi-
fied that it was in the evening that Anders called him about it. On the other hand,
Personnel Manager Morgan testified that it was Anders who notified him that
Maniscalco had given 2 weeks' notice of her intention to leave and that a replacement
would be needed, and that this occurred about a week before her termination. On
cross-examination, Miller testified that his talk with Maniscalco about the Union
in his private office a few days before her discharge occurred after he had already
decided to discharge her and had talked to the personnel manager about a replace-
ment. Yet, he admitted that during that interview he made no mention to her of his
decision to discharge her. When asked why he had not informed Maniscalco of his
decision to discharge her, he testified that "I don't really know." After being pressed
a little further on this matter, he finally hedged his answer and testified that he was not
"sure" and did not remember whether his decision to discharge Maniscalo and his
conversations with Morgan and Kassab occurred before or after his conversation
with her about the Union. It seems most unlikely to me that Miller would have
taken the trouble of calling Maniscalco into his private office about August 1 to
ascertain her views about the Union, discuss the disadvantages of the Union and the
employee benefits already granted by the Company, and promise her more suitable
working arrangements if she were for the Company instead of for the Union, if
in fact he had already decided to discharge her and had made arrangements for
7 Manager Anders testified that a few days after her termination, Maniscalco told him
that she was working with the Union and had been put there to organize the store at
Grand River. Maniscalco denied having made such a statement to Anders or to anyone
else For reasons previously indicated, I do not credit Anders' testimony.
8 See, e.g, the case of Louise McCord who was found by the Board to have been dis-
criminatorily discharged on June 21, 1961, in the prior Elias Brothers case, 137 NLRB
1057 McCord was paid $20 by the Union for the week ending June 3 for working with
Business Agent Soifer in distributing campaign literature at the Respondent's restaurant.
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her replacement. It is even more unlikely that he would have failed to inform
her of his alleged decision in this respect when she told him during this interview,
as previously found, that she intended to reenroll in business school and continue
to work for another 6 to 8 weeks until she had acquired sufficient skill to get a
secretarial job.
Upon consideration of the foregoing and the entire record as a whole, including
the demeanor of Anders, Miller, and Morgan, the sudden and summary manner in
which Maniscalco was terminated, and Miller's observation at the time that he was
sorry she was not satisfied with the policies of the Company, I reject Respondent's
asserted reason for her termination and find that (1) while shortly after being
transferred Anders may have informed Miller about Maniscalco's observation that she
did not know if she would be able to last 2 weeks under the treatment she was
receiving, Miller's decision to discharge her was made sometime after his interview
with her about the Union, and (2) the foregoing remark of hers was seized upon as
a notice to quit to conceal Respondent's true motivation for her discharge.
4. Concluding findings
As previously found, Respondent was opposed to the Union and engaged in unlaw-
ful conduct in an effort to prevent the employees from selecting the Union as their
bargaining representative. Maniscalco played the leading role in attempting to get
the employees to sign union authorization cards. About July 22, the last day before
his transfer Anders was told by her that she had been active on behalf of the Union.
About August 1, Manager Miller privately interrogated Maniscalco about her union
membership and sympathies, promised her more suitable working arrangements if
she was for the Company instead of for the Union, pointed out the employee benefits
already granted by the Company, and warned of the possibility of the Company
withdrawing the profit-sharing plan in reprisal for the employees' selection of the
Union. In response to Maniscalco's query as to what would happen if she was for
the Union, Miller stated that things would be very unpleasant for her, pointing out
that the Company was good to those who were "loyal" to it. Maniscalco promised to
let Miller know how she felt about the Union. The very next night Maniscalco made
known how she felt by holding a union organizational meeting at her home for
Elias' night-shift employees, which was also attended by Miller's assistant, Kargol,
an admitted supervisor within the meaning of the Act. In Kargol's presence,
Maniscalco agreed with Business Agent Soifer's prediction that the unionization efforts
would succeed in about 2 or 3 weeks. The very next day, without any prior notice
or warning, Miller summarily discharged her about 2 hours before the end of her
shift on the asserted ground that he heard from Anders of her intention to leave within
2 weeks, despite her protestations to the contrary. While denying that the union
meeting held the preceding night at her home had anything to do with her discharge,
Miller nevertheless told Maniscalco that he was sorry she was not satisfied with the
policies of the Company.
Upon consideration of all the foregoing and the entire record as a whole, I am
convinced and find that Miller became aware of Maniscalco's leading role in the
Union's organizational efforts, that it was her efforts in this respect which he regarded
as constituting disloyalty to the Company and dissatisfaction with its policies, and
that the decision to discharge her was truly motivated by these discriminatory
factors. By such conduct, Respondent discriminated with respect to the hire
and tenure of employment of Ann Maniscalco, thereby discouraging membership
in the Union, in violation of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Elias set forth in section III, above, occurring in
connection with the operations described in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent Elias has engaged in certain unfair labor prac-
tices, I will recommend that it cease and desist therefrom and from in any other
manner interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.9 I will further recommend that the Re-
See, e.g., Consolidated Industries , Inc , 108 NLRB 60, 61.
ELIAS BROTHERS BIG BOY, INC. 1167
spondent Elias take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent Elias discriminatorily discharged Ann Maniscalco
on August 3, 1961, in violation of Section 8(a) (3) and (1) of the Act, I recommend
that Elias offer her immediate and full reinstatement to her former or substan-
tially equivalent position, without prejudice to her seniority and other rights and
privileges, and make her whole for any loss of earnings she may have suffered
by reason of such discrimination, by payment to her of a sum of money equal to that
which she normally would have earned as wages from the date of her discharge to
the date of said offer of reinstatement, less her net earnings during such period,
such sums to be computed in accordance with the formula established by the
Board in F. W. Woolworth Company, 90 NLRB 289', 291-294.
While, I agree with the position, very ably set forth in the General Counsel's brief,
that the Board has the power to include interest in the backpay computation, I will
not recommend such inclusion. This is a policy matter for determination by the
Board and is now under the Board's consideration in other cases.10 I believe it
would be more appropriate for the Board, rather than its Trial Examiner, to make
an initial policy declaration of this kind.
Having found that the Respondents Elias and Clem do not constitute a single em-
ployer within the meaning of the Act, and that the latter, considered separately, does
not meet the Board's jurisdictional standards for retail establishments, I have made no
findings as to the alleged violations of the Act by that Respondent and will recom-
mend that the complaint be dismissed as to Clem.
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 Elias is engaged in commerce within the meaning of the Act.
2. The Respondents Elias and Clem do not constitute a single employer within
the meaning of the Act and the annual business volume of the latter does not
meet the Board's minimum for the assertion of jurisdiction over retail establishments.
3. Local Joint Executive Board, Hotel and Restaurant Employees, Bartenders Inter-
national Union, AFL-CIO, is a labor organization within the meaning of Section
.2(5) of the Act.
4. By discriminating with respect to the hire and tenure of employment of Ann
Maniscalco, thereby discouraging membership in the above-named labor organization,
the Respondent Elias has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
5. By the foregoing conduct and by the conduct set forth in section III, A, 2, supra,
the Respondent Elias has interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Elias Brothers Big
Boy, Inc, Detroit, Michigan, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on behalf of Local Joint Executive
Board, Hotel and Restaurant Employees, Bartenders International Union, AFL-CIO,
or in any other labor organization, by discriminatorily discharging its employees, or
by discriminating in any other manner in regard to their hire or tenure of employment
or any term or condition of employment.
(b) Interrogating employees concerning their union membership and sentiments,
their attendance at union meetings, their signing of union cards, and whether
they had signed and mailed union withdrawal letters, in a manner constituting inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act.
(c) Attempting to get employees to sign and mail letters withdrawing their cards
or membership from a labor organization.
(d) Promising employees more suitable working conditions or other economic
benefits if they would not favor the above-named or any other labor organization, and
10 Niagara Chemical Division , F M.C Corporation, 137 NLRB 376, footnote 1.
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening withdrawal of the profit-sharing plan or threatening any other economic
reprisals if their employees selected the above-named or any other labor organization
as their bargaining representative.
(e) In any other manner interfering with, restraining, or coercing its employees in
the exercise of their right to self-organization, to join or assist the aforesaid or any
other labor organization, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such rights may be affected by an agreement
requiring membership in a labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(a) Offer to Ann Maniscalco immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings she may have suffered
by reason of the discrimination against her in the manner set forth in the section
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due under the terms of this Order.
(c) Post at all its restaurants in the Detroit, Michigan, area, copies of the attached
notice marked "Appendix A." ii Copies of said notice, to be furnished by the
Regional Director for the Seventh Region, shall, after being duly signed by the
Respondent Elias, be posted by the said Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices are customarily posted. Reasonable steps be taken
by the Respondent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Seventh Region, in writing, within 20
days from the date of this Intermediate Report and Recommended Order, what steps
the Respondent has taken to comply herewith.12
I further recommend that the complaint be dismissed as to Respondent Clem, Inc.
n In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations 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 "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
12 Ithe event that this Recommended Order be 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 A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local
Joint Executive Board, Hotel and Restaurant Employees, Bartenders Interna-
tional Union, AFL-CIO, or in any other labor organization, by discharging or
refusing to reinstate any of our employees because of their union membership
or activities, nor will we discriminate in any other manner in regard to hire or
tenure of employment or any term or condition of employment to discourage
membership in a labor organization.
WE WILL NOT interrogate employees concerning their union membership and
sentiments , their attendance at union meetings , their signing of union cards, and
their signing and mailing of union withdrawal letters, in a manner constituting
interference , restraint , and coercion within the meaning of Section 8 (a)( I) of
the Act.
WE WILL NOT attempt to get employees to sign and mail letters withdrawing
their cards or membership from a labor organization.
LOCAL 542, INT'L UNION OF OPERATING ENGINEERS 1169''
WE WILL NOT .promise employees more suitable working conditions or other
economic benefits if they would not favor a labor organization , and we will not
threaten to withdraw the profit-sharing plan or threaten any other economic
reprisals if the employees select a labor organization as their bargaining repre-
sentative.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to join or assist
Local Joint Executive Board, Hotel and Restaurant Employees, Bartenders In-
ternational Union, AFL-CIO, or any other labor organization , to bargain col-
lectively through representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities , except to the extent
that such rights may be affected by an agreement requiring membership in a
labor organization as a condition of employment , as authorized by Section
8(a)(3) of the Act as modified by the Labor-Management Reporting and Dis
-closure Act of 1959.
WE WILL offer to Ann Maniscalco immediate and full reinstatement to her
former or substantially equivalent position , without prejudice to her seniority
and other rights and privileges, and make her whole for any loss of earnings
she may have suffered as a result of the discrimination against her.
All our employees are free to become , remain, or to refrain from becoming or
remaining members of the above-named or any other labor organization.
ELIAS BROTHERS BIG Boy, INC.,
Employer.
Dated------------------- By-------------------------------------------.
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 233 West
Grand River, Detroit 26 , Michigan, Telephone Number, Woodward 2-3830, if they
have any question concerning this notice or compliance with its provisions.
Local 542, International Union of Operating Engineers, AFL-
CIO and Giles & Ransome, Inc. Case No. 4-CB-804. Novem-
ber 21, 1962
DECISION AND ORDER
On August 22,1962, Trial Examiner Phil Saunders issued his Inter-
mediate Report 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 therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the General Counsel and Respondent
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
139 NLRB No. 89.