Flite Chief, Inc.

National Labor Relations Board - Board Decisions

May 24, 1977

229 N.L.R.B. 968 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Flite Chief, Inc.; Richard Miller and Karen Miller; M
& M Truckadero Coffee Shop, Inc.; James Miller
and Paul A. Minder and Culinary Workers,
Bartenders & Hotel Employees, Local 535. Cases
3 1-CA-5709 and 31-CA-5805
May 24, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 3, 1976, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondents filed
exceptions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt her recommended Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dents, Flite Chief, Inc.; Richard Miller and Karen
Miller; M & M Truckadero Coffee Shop, Inc.; James
Miller and Paul A. Minder, Fontana, California,
their officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
Insert the following as paragraph 2(e):
"(e) Notify the Regional Director for Region 31, in
writing, within 20 days from the date of this Order,
what steps Respondents have taken to comply
herewith."
I Respondents have excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
EARLDEAN V. S. ROBBINS, Administrative Law Judge:
This matter was heard before me in San Bernardino,
California, on March 15 and 16, 1975. The original charge
in Case 31-CA-5709 was filed by Culinary Workers,
Bartenders & Hotel Employees, Local 535, herein called
the Union, and served on Respondents on November 7,
1975; and the first amended charge in that matter was filed
by the Union and served on Respondents on December 23,
1975. The charge in Case 31-CA-5805 was filed by the
Union on December 23, 1975, and served on Respondents
on December 24, 1975. The consolidated complaint, which
issued on January 16, 1976, alleges that Respondents
violated Section 8(a)(1) and (3) of the National Labor
Relations Act.
The basic issues herein are:
1. Whether the relationship between Respondents is
such as to render them jointly and severally liable for any
unfair labor practices found within;
2. Whether employees Hilda Bitonti, Diane Petrus, and
Violet Strain were discharged in violation of Section 8(a)(1)
and (3) of the Act; and
3. Whether certain conduct alleged herein is violative
of Section 8(a)(1) of the Act.
Upon the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the posttrial briefs filed by the General Counsel and
Respondents,' I make the following:
FINDINGS OF FACT
I. JURISDICTION
At all times material herein the Respondent, Flite Chief,
Inc., herein called Flite Chief, a California corporation,
Richard Miller, and Karen Miller have been engaged in the
operation of a business complex at Fontana, California,
known as Truck Town. The land upon which Truck Town
is located is owned by Richard and Karen Miller who are
also the principal corporate officers and stockholders of
Flite Chief. The instant matter involves the Truckadero
Coffee Shop, herein called the Coffee Shop, located in
Truck Town which is leased to James Miller and Paul A.
Minder. The Coffee Shop is operated, at least in part, by M
& M Truckadero Coffee Shop, Inc., herein called M & M,
of which James Miller is president and sole stockholder.
Flite Chief, Richard Miller, and Karen Miller annually
receive gross revenue in excess of $500,000, and annually
purchase and receive goods valued in excess of $5,000
directly from suppliers located outside the State of
California.
Since I have found below that for purposes of this case M
& M is the alter ego of Flite Chief, I find that Respondents
are, and at all times material herein have been, employers
engaged in commerce and in operations affecting com-
Although counsel made a joint appearance at the hearing for
Respondents M & M, James Miller, and Paul A. Minder. no answer nor
posttrial brief was filed on behalf of Minder.
229 NLRB No. 146
968
FLITE CHIEF, INC.
merce within the meaning of Section 2(6) and (7) of the
Act.
11. LABOR ORGANIZATION
The complaint alleges, Respondents admit, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. BACKGROUND AND THE PRIOR RELATIONSHIP
AMONG RESPONDENTS 2
The Coffee Shop was involved in a prior matter heard on
April 15 and 16, 1975. The Coffee Shop is located in a
complex, called Truck Town, owned by Karen and
Richard Miller which includes a truck terminal and a
motel. Prior to July 19743 all of these facilities, including
the Coffee Shop, were leased to Flite Chief. Flite Chief
operated the Coffee Shop with Richard Miller controlling
its labor relations and other operational policies.
In July, in some manner not fully explained in the prior
proceeding, Paul A. Minder and James Miller, the 18-year-
old son of Karen and Richard Miller, acquired a lease to
the Coffee Shop and on July 22, 1974, James Miller, as
president of M & M 4 signed a promissory note payable to
Flite Chief allegedly in payment for the inventory of the
Coffee Shop.
Around July 10, 1974, the Union began organizing the
Coffee Shop employees. By July 12, the Union had been
authorized as the collective-bargaining representative of a
majority of these employees. By letter dated July 17, the
Union demanded recognition and bargaining. On July 18
Richard Miller asked James Templeton, a cook at the
Coffee Shop, if he was in favor of the Union. When
Templeton replied affirmatively, Miller replied "then get
your damn stuff and get out of here, you are through."
About the same time, Miller asked employee Deborah
Ranck if she had signed a union card. Ranck said yes and
Miller replied that she might as well go home, that she
didn't have a job because she had signed a union card.
Miller further said that anyone who wanted the Union was
through.
Later, on the afternoon of July 18, Union Representative
Tom Jones visited the Coffee Shop and requested bargain-
ing both in general and specifically as to the discharged
employees. Richard Miller refused to bargain and told
Jones that the discharged employees could return to work
but when the food was gone they would be gone also, since
he was going to close the business. Miller further told Jones
that he had not discharged the employees, that they had
just walked out. He also said it was a free country and he
could discharge anyone he wished.
On July 22, all unit employees were discharged by James
Miller and Karen Miller informed Jones, by hand-deliv-
ered letter, that Richard Miller "has been forced to dispose
of his interest in Truckadero Cafe." She further advised
him that all employees had been discharged. On July 22, M
& M allegedly was organized by James Miller and Minder
2 The information contained in this section is from a prior proceeding.
Flre Chief, Inc., et al.. 220 NLRB 1112 (1975).
3 All dates in sec. Ill herein are in 1974 unless otherwise indicated.
4 M & M was allegedly organized on July 22 hy James Miller and
Minder.
and James Miller signed the promissory note referred to
above.
On July 22, Jones sent a telegram to the management of
the Coffee Shop requesting a negotiation meeting but
received no response.
Subsequently a complaint issued in Cases 31-CA-4593
and 31-CA-5176 alleging, inter alia, that the above
conduct was violative of Section 8(a)(1), (3), and (5) of the
Act. In an effort to settle the matter, certain employees,
including Violet Strain and Hilda Bitonti, were reinstated
in October 1974 and the hearing which opened on October
29, 1974, was not concluded as the parties entered into an
informal settlement agreement in which Respondents
agreed, inter alia, to recognize and bargain with the Union.
This agreement was later set aside.5
On November 8, Jones sent a letter to James Miller,
herein also referred to as James and Jim Miller, requesting
negotiations. A few days later, a negotiation session was
held which lasted about an hour. Jones gave James Miller a
copy of a standard collective-bargaining agreement and
James requested time to review the contract prior to further
negotiations. By letter dated November 27, Jones requested
resumption of negotiations and that Miller furnish the
Union certain information. A second negotiation session
was held on December 10. Miller did not furnish the
previously requested information and Jones renewed the
request.
A third meeting was held around December 20. Again
Miller did not furnish the requested information. A fourth
meeting was scheduled for January 2, 1975.6 On the
morning of January 2, Miller telephoned Jones and said he
was cancelling the scheduled negotiation session and that
he would not meet again until the question of back wages
for the discharged employees had been settled. He again
refused to furnish the requested information. In the latter
part of February, Miller restated his intent not to negotiate
further. By mailgram dated February 14, Jones requested
another negotiation session. In the latter part of March,
Jones sent another letter to the Coffee Shop but delivery
was refused.
After the settlement agreement was set aside, the matter
was heard on April 15 and 16. On June 16, the Administra-
tive Law Judge issued his Decision finding that the alleged
sale of the Coffee Shop was a sham transaction, that M &
M is a family organization, and that the alleged sale was for
the sole reason of avoiding unionization of the Coffee
Shop. The Administrative Law Judge further found that (1)
the mass discharge of July 22 and certain individual
discharges were violative of Section 8(a)(X) and (3) of the
Act; and (2) Respondents violated Section 8(a)(1) of the
Act by the granting of wage increases, the interrogation of
employees by Richard Miller and James Miller; threats to
discharge employees made by Richard Miller and James
Miller; conditioning the granting of higher wages upon
abandonment of union activity; engaging in surveillance of
employees' union activities and soliciting employees to
observe and report on the union activities of other
5 220NLRB 1112. 1122(1975).
H All dates hereinafter will be 1975 unless otherwise indicated.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees; (3) this conduct was of such a serious and
pervasive nature as to warrant a bargaining order; and (4)
Respondents refused to bargain collectively with the Union
in violation of Section 8(a)(1) and (5) of the Act by refusing
to furnish the Union certain requested information, and by
withdrawing recognition from the Union. On October 6,
the Board affirmed the findings and conclusions of the
Administrative Law Judge and adopted his recommended
Order. Thereafter Respondents refused to comply with the
Board Order. The instant matter arises out of certain
conduct which occurred within the month following the
issuance of the Board's Decision and Order,
IV. THE CURRENT RELATIONSHIP AMONG
RESPONDENTS
Respondents contend that Flite Chief and Richard and
Karen Miller have not been involved in the operation of
the Coffee Shop and have no liability for any unfair labor
practices committed by M & M and James Miller.7 M & M
and James Miller contend that no unfair labor practices
have been committed, but in any event M & M does not
meet the Board's jurisdictional standard.
General Counsel argues that it was established in the
prior proceedings that as of April 16, Respondents, Flite
Chief and M & M, were alter egos and jointly liable for
unfair labor practices committed by either and contends
that the evidence supports a finding that Respondents have
not altered this business relationship.
James Miller and Karen Miller admit that there has been
no change or modification of the relationship between Flite
Chief, Inc., and M & M since April 16. James admits that
there has been no change in the overall operation of the
Coffee Shop since that date. Peterson, the Coffee Shop
manager as of April 16, continued as manager until
October 2 when he was replaced by James Miller's sister
Joan Miller, a 16-year-old high school student without
prior managerial experience8 who lived with her parents,
7 Respondents' answer to the consolidated complaint herein affirmative-
ly alleges the bona fide sale of the Coffee Shop in July 1975. In a prehearing
order, counsel for General Counsel's motion to strike this affirmative
defense was granted. Respondents raise this question again in their joint
brief; however, nothing is raised which would seem to warrant a
reconsideration of this ruling.
I James Miller was on vacation from July 10 to September I. From
September I to mid-October he was ill. Peterson was on vacation the entire
month of September. Joan replaced James when he was on vacation, but
had started assisting him around July 1. Her primary responsibility was to
prepare the daily sheet, do the bookwork incident to banking, go to the
bank, make change, write checks, and do the billing. Peterson's primary
responsibility. according to James, was personnel. When Peterson was on
vacation Joan allegedly did both Peterson's and James' work. She contends
that she received advice and assistance from James, but none from her
parents.
9 Joan describes herself as day manager; however, according to the
undenied testimony of Respondents' witness, waitress Delena Loftin, she
usually arrives at the Coffee Shop around lunchtime and remains until 2 or 3
p.m.: sometimes she stays longer. Jim Miller testified that she is paid $600 a
month. Joan testified that she usually gets to the Coffee Shop around 12:30.
10 Several employee witnesses testified that they have seen Richard
Miller unlock and go into the Coffee Shop office. James Miller attempts to
explain this by his testimony that as landlord Richard Miller has a master
key and that maintenance tools and acids bor the drain are kept in the office.
However. I credit Peterson's testimony that these supplies are kept
elsewhere. The lease was not produced so there is no documentation as to
Richard and Karen Miller, and spent only a few hours a
day at the Coffee Shop.9
Peterson was hired by Richard Miller at a salary set by
Richard Miller and was discharged by Richard Miller.
Richard Miller has a key to, and uses, the office in the
Coffee Shop.10 Diane Petrus testified without contradiction
that she usually worked the graveyard shift from 10 p.m.
until 6 a.m. According to her, Richard Miller was in the
Coffee Shop almost everyday that she worked. Sometimes
he would be drinking coffee, other times he would be in the
office or the kitchen, and sometimes he made change at the
cash register or replenished the change. He was regularly in
the Coffee Shop from shortly after 10 p.m. to shortly before
2 a.m. Other witnesses also testified that he was often in the
Coffee Shop. Although meals are served in the Coffee Shop
strictly on a cash basis, t Richard Miller signs for his
meals.12 He also performs repair chores at the Coffee
Shop 13 and from time to time makes purchases of produce
for the Coffee Shop.14
James Miller testified that he has made regular lease
payments since April 16, 1975, and although the balance of
the promissory note to Flite Chief was due 6 months after
purchase,' 5 he admitted that $12,000 remained unpaid.' 6
Louise Knobb, Richard Miller's sister and bookkeeper and
office supervisor for Flite Chief, works in the Coffee Shop
as cashier during the lunch hours on weekdays and for 4
nights a week as supervisor of the graveyard shift. At the
time of the conduct involved herein, M & M was still using
the guest checks with the name Truck Town which were
used prior to July 22, 1974.17
I find that the unexplained failure to completely pay off
the promissory note, Richard Miller's regular presence in
the Coffee Shop, his intrusion into the affairs of the Coffee
Shop by the use of the office, the purchase of produce and
execution of various errands and particularly the control
evidenced by his hiring and firing of Peterson tend to
support a finding that M & M and Flite Chief continue as
alter egos.'S I further find, for reason set forth more fully
below, that the discharges herein were designed to rid the
the lessor's responsibility for repairs and no explanation of Richard Miller's
use of his master key under the circumstances herein. Richard Miller did not
testify. His doctor testified that Miller suffers from borderline hypertension
which is presently controlled through medication and that it is his medical
opinion that testifying or being intimately connected with a lawsuit would
be detrimental to Miller, that even talking to him regarding "this aspect of
his business" causes his blood pressure to rise. The doctor also testified that
he had advised Miller to divest himself, to the extent possible, of his business
holdings; however, it is apparent from Karen Miller's testimony that he
continues to manage his businesses.
" 220NLRBat 1115.
12 James Miller explains that the meals were in exchange for M & M's
use of Flite Chief's storage facilities to store supplies.
13 There is no dispute that from time to time Richard Miller assisted in
the repair of the drains at the Coffee Shop.
14 James Miller testified that Richard Miller helps Joan and the Coffee
Shop out by getting produce and running errands for her in areas in which
he has business.
i5 220 NLRB at 1114.
16 The note was allegedly for between $35,000 and $36,000, 220 NLRB at
1113.
17 James Miller testified that at the time of the hearing M & M was using
different guest checks.
18 I do not credit James Miller's testimony that Richard Miller merely
suggested that Peterson be hired, and was merely a conduit for discharging
him. I have noted Violet Strain's testimony that Richard Miller asked her if
she would be interested in insurance. However, since she indicated lack of
970
FLITE CHIEF, INC.
Coffee Shop of the discriminatees' reinstated incident to
the prior proceeding and that the conduct involved herein
is a continuation of the plan devised in July 1974 to avoid
unionization of the Coffee Shop. In these circumstances;
and since Flite Chief, Richard and Karen Miller set this
plan into motion; Bitonti and Strain were originally
discharged in implementation of said plan and their
current discharges arise out of continuing attempts to avoid
bargaining with the Union; and Flite Chief, Richard and
Karen Miller have done nothing to purge themselves of
their involvement in the genesis of the conduct involved
herein; and in view of Richard Miller's continued involve-
ment in the affairs of the Coffee Shop; I find that
Respondents, Flite Chief, Richard Miller, Karen Miller, M
& M, James Miller and Paul Minder19 are jointly and
severally liable for any unfair labor practices found herein.
Rushton & Mercier Woodworking Co., Inc., and Rand & Co.,
Inc., 203 NLRB 123 (1973); Garwin Corporation, et al., 153
NLRB 664 (1965); International Offset Corp., 210 NLRB
854 (1974).
V. THE UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Conduct and the Discharge
of Bitonti and Petrus
Hilda Bitonti has worked at the Truckadero Coffee Shop
as a waitress during various periods since 1971. She was
discharged in the July 22 mass discharge found violative of
the Act in 220 NLRB 1112. She testified on behalf of
General Counsel in that proceeding. Her union authoriza-
tion card was introduced into evidence and the Adminis-
trative Law Judge found that in October 1974 Jim Miller
told an employee that he would do anything to get union
supporters discharged, that he did not want Bitonti
reemployed, and that "for sure he was going to keep her
out."
In October 1974 Bitonti was rehired and was discharged
on October 31, 1974. In what was apparently an attempt to
settle Cases 31-CA4593 and 31-CA-5176, she was
reemployed on December 30, 1974.
Waitress Sherry Alexander testified that in December
1974, about a week before Bitonti returned to work, Jo
Slover told her not to get friendly with Bitonti, that thanks
to her, the Union had made attempts to get into M & M.
Alexander also testified that when she was hired in
November 1974, Jim Miller asked her what her ideas were
on the Union and she replied she could care less either
way.
Diana Petrus was hired by M & M as a cashier on
September 16, 1975. Shortly thereafter she was reassigned
to a waitress position. Petrus testified that during the first
week of her employment, she had a conversation with head
waitress Jo Slover 20 during which Bitonti was mentioned.
Petrus asked who Bitonti was. Slover replied that Bitonti
was a troublemaker that worked there. Petrus asked what
interest, the conversation did not continue and there is no evidence
establishing that he was referring to insurance coverage as an employee of
the Coffee Shop. I also note that of James Miller, that he is in the process of
opening two other restaurants, the physical facilities of which are leased
from Karen and Richard Miller.
19 At the time of the hearing in the prior proceeding, it appeared that
Minder no longer had any interest in M & M. and James Miller testified in
did that mean and Slover said Bitonti caused problems.
Slover denies this conversation.
Petrus also testified that about the first week in October,
when she was on duty on the graveyard shift, someone
mentioned Bitonti. Jim Miller said, "Don't tell me about
Hilda, she gave me an ulcer." Sometime thereafter,
according to Petrus, after she began working a 4-hour shift
as cashier on weekends, she mentioned to Jim Miller that
she thought Bitonti was a "real hotshot waitress." Miller
said "anybody that wants to keep their job better stay away
from Hilda." Miller denies these conversations.
Cheryl Harding, hired by M & M as a waitress July 31,
1975, testified that about a week or two after her
employment began she told Slover that Bitonti had been in
and left an off-work order. Slover asked if Bitonti had said
anything else. Harding said no, Bitonti was not there very
long. Slover said, she didn't say anything about the Union
and all the hassle we had with it. Harding said no.
Whereupon Slover said, "O.K., well don't become too
friendly with Hilda because she's known for causing
trouble."
Peterson was on vacation for the entire month of
October 1975, during which time Joan Miller was acting
manager. During his absence she discharged many of the
employees admittedly because they resented and resisted
taking orders from her. He returned on October 1 and was
discharged by Richard Miller the next day, October 2.
Thereafter, Bitonti's work schedule was progressively cut
until, by the latter part of October, she was scheduled to
work Saturdays and Sundays only.
On Sunday, October 26, Bitonti and 17-year-old Kim
Stayton were the waitresses on the 6 a.m.-to-2 p.m. shift.
Petrus worked as cashier that day from 10 a.m. to 2 p.m.
Bitonti testified that Stayton came in late at about 8:15
a.m., said she had just left her seventeenth birthday party
given by Jim Miller and was not feeling very well. Bitonti
asked which of the four stations Stayton wanted. Stayton
said, "I can't handle anything. I told Jim I couldn't handle
it so just give me a little bit of work. So Stayton took the
counter21 and the horseshoe, three or four booths by the
window. Bitonti served the rest of the booths, approximate-
ly 20. Stayton began crying and said she couldn't handle it.
Bitonti asked if she could help. Stayton said she could take
one of the tables in the horseshoe which Bitonti did. Bitonti
noticed that Stayton's orders were accumulating at the
service window and asked Stayton if she could serve some
of the orders for her. Stayton said no. Bitonti persisted but
Stayton could not remember where the orders went. So
Bitonti asked the customers what they had ordered.
By the time Petrus arrived at or around 10 a.m. the
Coffee Shop was crowded and things were rather hectic.
the instant proceeding that he is the sole stockholder in M & M. However.
there is no evidence that Minder does not continue as a co-lessee of the
Coffee Shop physical facilities.
20 It was stipulated that Slover is a supervisor within the meaning of the
Act.
21 There were seven stools at the counter.
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petrus asked Bitonti if she could help. Bitonti told her to
help Stayton. So Petrus took the counter. 22 By that time,
Stayton was sobbing heavily and several customers had
walked out. Petrus testified in essential corroboration of
Bitonti. She further testified that Stayton kept saying, "I
told Jim I didn't want the shift, I couldn't handle it." Also
Stayton had placed eight or nine tickets in her pocket
rather than on the cook's wheel. Finally, she placed them
on the wheel, but by that time some of her customers had
walked out.
At the end of the shift, Petrus left the walkout tickets23
with a note to Joan Miller stating that when she arrived at
10 a.m., it was very busy and Stayton was either sick or
upset and was unable to handle her share and there had
been walkouts. Joan Miller testified that when she arrived
at the Coffee Shop that evening, she found the note from
Petrus. She asked Cathy Sheely what had happened. Sheely
said that Stayton was still there sitting in a booth. Joan
went over to Stayton. According to Joan, she cannot recall
everything that she and Stayton said but she does recall
that she asked Stayton how her day went. She does not
recall anything that Stayton said other than that she had a
lot of walkouts.
Later in the evening, according to Joan Miller, she
telephoned James and told him that there had been
walkouts in the amount of $40, which she could not
understand because she had scheduled two extra persons 24
for the shift and the money flow was not an enormous
amount. Petrus worked several days during the next week
including Saturday, November I. Bitonti was next sched-
uled to work on November I and 2 and did work those
days. Neither Joan Miller nor Jim Miller nor any other
supervisor mentioned the October incident to Petrus or
Bitonti until November 2 when they were discharged. Jim
Miller had a conversation with Petrus on November I
when she was working an extended shift because her relief
had not arrived. Miller thanked her and said he could
always count on her. He never mentioned the October 26
incident.
The Board decision in 220 NLRB 1112 (1975), issued on
October 6, ordered Respondent, inter alia, to recognize
and, upon request, bargain with the Union. By letter dated
October 20, the Union requested bargaining. On October
25, Respondent notified the Board that it would not
comply with the Board's order. By mailgram, dated
October 28, the Union repeated its request for bargaining.
On October 29 and 30, by separate letters, Respondents
refused to bargain with the Union. On November 1, the
second of two newspaper articles concerning the Board's
decision and Respondents' refusal to comply therewith
appeared on the front page of the local newspaper. Jim
Miller was observed reading this article by Petrus at 4 or 5
22 Cashiers at the Coffee Shop regularly relieve waitresses for their break
and at other times assist them to the extent their cashier duties permit.
23 These are the guest checks containing the orders ofcustomers who left
prior to being served.
24 The two extra persons according to Joan were a cashier and a busboy.
She further states that normally the dishwasher buses the dishes on Sunday.
However, Petrus testified that she had worked as cashier for the 3 or 4
Sundays immediately preceding October 26 and that October 26 was busier
than those previous Sundays. She also testified that on the Sundays she
worked, there was always a busboy who began work at 10 a.m.
25 Pamela Petrus testified that the newsstand was in the back of the
p.m. On November 2, Jim Miller demolished the Hearld-
News stand in front of the Coffee Shop.25
On the afternoon of November 2, while Bitonti was at
Petrus' home, Petrus received a telephone call from Jim
Miller. According to Petrus, he told her he was terminating
the entire October 26 day shift. Bitonti testified that Petrus
reported this conversation to her. When Bitonti returned
home later that afternoon, her daughter told her that Jim
Miller telephoned and said Bitonti should not return to
work and he wanted to see her Monday morning at 10 a.m.
On Monday morning, November 3, Bitonti and Petrus
reported to the Coffee Shop. Neither Joan nor Jim Miller
were there. They waited until Joan Miller arrived at about
1:30 p.m. Joan handed each of them a check and said, here
is your final check. Bitonti asked "what for." Joan said
there was no reason why $47 worth of food should have
been lost 26 with two good waitresses on duty. Petrus said
she was scheduled as cashier. Bitonti said she would not
accept that reason because she had no walkouts and she
was going to find out just why she was discharged. Joan
said she knew nothing about it, if Bitonti had any questions
she should ask Jim Miller.
Jim Miller testified in essential agreement with Petrus as
to his telephone notification to Petrus that the shift was
terminated. However, he further testified that about 5
minutes later Petrus telephoned him and said he and Joan
were just trying to get rid of her for any reason. He
explained why she was terminated. Petrus said that was a
bunch of shit and proceeded to scream various comments
for about 5 minutes. According to him, he held the phone
away from his ear and did not listen to these comments.
Finally he said "here it is and . . . that's how it will be."
Petrus said she wanted her check. Miller said it would be
there in 24 hours. Petrus said she had to have it
immediately. Miller said you'd better check on that. Petrus
threatened to call the police. Miller said she couldn't call
the police, that it was a civil matter. Joan Miller testified
that she was present when Jim Miller had a telephone
conversation with Petrus, that she did not hear what Petrus
said but she could hear that Petrus was yelling. All that she
recalls is that Jim told Petrus she could get her check.
Joan Miller testified when Bitonti inquired why they
were discharged, she said it was a normal Sunday with a
normal customer count and cash flow, two extra people on
the shift and yet they had a number of walkouts. Joan
further said she did not think the walkouts could have
occurred if there had been teamwork. Bitonti replied that
she had done her best and they would be hearing from her.
Petrus was not recalled as a rebuttal witness so she does
not specifically deny this conversation. However, her
version of the events following Miller's telephone call to
her is different. Petrus testified that after they concluded
restaurant, completely demolished. James Miller testified that he had
requested the Herald-News and some other newspapers to remove their
stands and when they did not, the stands were uprooted.
26 The customers left after cooking of their orders had commenced but
before they were served. In one instance Petrus intercepted a party in the
process of leaving, reseated them and took their order. They waited about 20
minutes and left without being served. Three of the walkouts were Petrus'.
six were Stayton's and none were Bitonti's. From the near consecutive
numbering of Stayton's walkout tickets, it appears likely that these were the
ones referred to above that she initially placed in her pocket rather than on
the cooks' wheel.
972
FLITE CHIEF, INC.
the conversation during which she was terminated she
immediately called the Coffee Shop and told the waitress
who answered the phone that she would be down to get her
check. She went to the Coffee Shop but none of the
supervisors were there. She told a dishwasher named
Chuck that he should contact someone immediately
because she wanted her check. Chuck telephoned Richard
Miller. About 15 minutes later Richard Miller came in.
Petrus asked for her check. Miller told her to return the
next day and her check would be there.
James Miller first testified that the decision to discharge
the entire shift was made by him 4 or 5 days after the
October 26 incident. According to him, the delay in
making the decision was because they wanted to find out
exactly what happened. When it was pointed out to him
that he had the walkout checks, he testified that they
needed time to replace the shift. He then testified "That
Sunday when I did go in there later that afternoon, I told
Joan to replace them."2 7 Still later, he testified that he did
not recall when he told Joan to replace the shift but that it
was not the date that he first learned of the incident and
that he is "pretty sure" that he told her to find out what
happened. Yet both Joan and Jim Miller admit that they
did not question Petrus and Bitonti regarding the incident.
Equally inexplicable is the statement made by Jim Miller in
a letter to the Board's Regional Office during the
prehearing investigation of this matter regarding the
walkout tickets, that "in speaking to Mrs. Bitonti regarding
this, her attitude was that she had taken care of her
customers and that that was all that was necessary." Miller
testified that he did not recall the reason he made that
statement but that he did believe it was true.
According to James Miller, 2 or 3 days after the incident
he did talk to Stayton. 28 At first, he merely testified that he
told her she was going to be discharged because of the
incident. Later, on cross-examination, he testified that
when he spoke to Stayton, he does not recall what she said
about the incident other than that it was chaos and she
could not handle the section. According to him, she did not
tell him it was busy. He asked her what happened, why all
the walkouts and Stayton replied that she was flustered and
could not handle the business. Still later, he testified that
Stayton told him the food was sitting in the window and
she could not get it served.
James Miller admits that Joan did not tell him she had
spoken to the involved employees, that she said she had
found all the information but did not specifically say that
she had talked to them. As to the investigation he made to
determine responsibility for the incident, Jim Miller
testified that he talked to Rudy, the cook in charge. When
asked what information Rudy gave him, Miller said "I
don't recall exactly. I know I was talking to him and he was
complaining about Hilda Bitonti. He could not get along
with Hilda and I guess he got in a fight and she was yelling
27 As set forth above, Joan said she learned of the incident that evening
and did not report it to James until later in the evening.
2: Miller testified that he spoke to Stayton and not to the others because
Stayton was often there on the graveyard shift when he was there, that this
was the only time he saw any employees. He does not explain why he did
not discuss the matter with Petrus when he was working with her.
29 Miller testified that Bitonti was the most experienced and Petrus next.
O0 The records of the customer count were not produced.
at him at one time and I don't even recall if this was the
same day that this walkout occurred." Miller was then
asked what Rudy told him which he could, or did, use in
making the decision to discharge the shift. Miller answered,
"I don't recall."
Jim Miller further testified that Joan told him "exactly
what went on to the best information she could gather and
I made the decision that whoever was on that shift
waitressing was at fault. When asked the basis of this
decision, he testified, "There was no fault to be pointed at
anyone." In response to a leading question from M & M's
counsel, he testified that he felt it was the responsibility of
the most experienced waitress29 to make sure things ran
smoothly. Immediately thereafter he was asked the reason
for discharging the entire shift. He answered "There was
nobody to really point the finger at. No one was wholly to
blame .... [ ]t wasn't just one individual involved." He
also admitted that there were tickets from Petrus and that
this was some indication that she was being cooperative.
On cross-examination Jim Miller admitted that Stayton
told him she could not handle the shift and that the
problems that occurred were probably Stayton's fault. Yet,
he contends that he could not determine how to fix the
blame. When asked if he inquired as to the proportion of
the Coffee Shop covered by Mrs. Bitonti, he replied "No
sir, I looked at the daily receipts." After further question-
ing, he testified that the only way he could determine the
proportion of the work handled by Bitonti was her
customer count which he recalled as being 160 or 163 for
Mrs. Bitonti and 97 for Stayton.3 0 Bitonti testified that her
customer count was 175 or 180, Petrus' was 30 or 40, and
that Stayton told her that her count was about 70 including
the walkouts.
Respondents' witness Delena Loftin testified that the
average customer count on her shift (weekdays) was 150 to
165 and that the highest count she has ever heard of at the
Coffee Shop was 220. Peterson testified that a customer
count of 175 on Sunday day shift would have really kept a
waitress busy because of the traffic flow on Sundays.
Generally on Sundays there was almost no business until
10 a.m. which is why the extra person was scheduled to
come in at 10 a.m. Then business was heavy until I p.m. or
1:30 p.m. when it would taper off. Thus most of the
customer count would normally be in a 3-hour period.
During weekdays there were distinctly separate breakfast
and lunch rushes whereas on Sunday the rush for late
breakfast and lunch came during the same time period.
Peterson further testified that to do almost $500 in business
on Sunday day shift would really keep the shift "hop-
ping." 31
Respondents called several witnesses in an apparent
effort to establish that Bitonti's attitude was undesirable
and that this was part of the reason that she was
discharged. Delena Loftin testified "Hilda works for
31 James testified that the day shift income that day was $435. There was
also $43 in walkout tickets. James testified that in his opinion $435 is not a
busy shift, that $500 to $550 would be a busy shift, and that a $900 total
would be a busy Sunday. Again no records were produced except the daily
sheet showing a total income for October 26 of S810. Contrary to Miller.
Peterson testified that on a scale of poor, fair, and good. $400 income on a
Sunday dayshift would be fair and S450 would be good.
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hilda," Slover testified "Hilda takes care of her own," and
Gonzalez testified that Bitonti's attitude was "very bad."
These were clearly intended as negative comments. They
all referred to having to work as a team. Yet when pressed
for specifics Loftin's only explanation was "If her [Biton-
ti's] customers need cups and yours need cups, first come
first serve: and if she can get them, that's considered
dividing." Slover explained that Bitonti preferred just
waiting on her own customers. Gonzalez explained "bad
attitude" as not enjoying one's work, comments made by
Bitonti such as asking a waitress who licked butter from
her finger, "did you pay for that?" Everyone concedes that
Bitonti was an excellent waitress and admits that there
were no rules delineating the extent of cooperation
expected between waitresses and that Bitonti was never
warned regarding lack of cooperation. 3 2 Nor was there any
testimony that Bitonti had failed to cooperate in emergen-
cy-type situations; in fact, the only situation of such nature
mentioned was the October 26 incident where the evidence
shows that Bitonti was cooperative.
Joan Miller testified that she observed Bitonti smoking at
the waitresses' table several times when she was not
clocked out. Thereafter, in October probably, Joan called a
meeting of employees and instructed them, inter alia, that
they could smoke only before and after work and when
they were clocked out on breaks.3 3 Thereafter on October
19 Joan observed Bitonti smoking when she was not
clocked out.34 Also, once she scheduled some waitress,
whose name she does not recall, to work with Bitonti and
the waitress said she preferred not to work with Bitonti,
Joan cannot recall if any reason was given.
Jim Miller testified that once he saw Bitonti standing
next to the milk machine. He asked her what she was
doing. She said "Do you want to see what I'm doing. Go
look at the tickets."
Respondent also argues an additional reason for dis-
charging Petrus - ticket errors. James Miller testified that
about a month before her discharge Petrus was working on
the graveyard shift when, in a spot check, he discovered
about 17 tickets with errors in pricing made by Petrus.
Later that evening when he was cooking, she gave him a
ticket that was incorrect. He asked her to correct it. She
asked what was wrong with it. Miller told her to check the
menu, that her prices were incorrect. Petrus said she was a
good waitress. Miller replied that there were 17 other
tickets in the office that indicated she was not doing a
perfect job and asked her to take more time to do her
tickets. According to him, she did not say another word to
him that night.
Miller further testified, on direct examination, that errors
in pricing are not common except with a new waitress and
that he had no problem with any other waitress at that time
of the dimension of Petrus' errors. He admits that he does
:12 Bitonti testified that cooperation was considered desirable but that it is
a general rule among waitresses that you do not intrude into the service to
another waitress' customer unless that waitress request you to do so.
3:1 The waitress' table is a booth in the rear where waitresses do their
tickets and take their breaks. James and Joan Miller also use that table.
Peterson testified that when he was manager the waitresses were free to
smoke at this table whenever their work permitted it.
:14 When asked if she would have discharged Bitonti then if she could
have, Joan replied "yes." When asked if she gave Bitonti a warning then.
not know over what period of time those mistakes occurred
and that he had not intended mentioning them to Petrus
because he thought they were honest mistakes. He also
testified that Joan found several errors on Petrus' tickets
for the period between October 26 and her discharge, that
he did not find out about these latter errors until after
Petrus' discharge but that Joan discovered them the week
the discharge was pending.
However, Joan testified that she and James talked about
the errors of that final week prior to the discharge, that
James said he had tried to correct her and that she could
not take constructive criticism. She also testified that she
told Petrus, at the time of her discharge, that she was
making too many ticket errors.
B. The Discharge of Violet Strain
Violet Strain was first hired at the Truckadero Coffee
Shop on October 13, 1973, as a dishwasher. She was
terminated in the July 1974 mass discharge found to be
violative of the Act in 220 NLRB 1112 and testified on
behalf of General Counsel in the matter. She was rehired in
October 1974 and worked continuously until November 3,
1975, when she was again discharged. For several months
prior to this latter discharge she worked the morning shift,
6 a.m. to 2 p.m.
According to Strain, she first learned of her discharge on
November 2 when her son told her that her name did not
appear on the new schedule. On Monday, November 3,
Strain went to the Coffee Shop around 5:45 a.m. and spoke
to the Chef, Dick Olea.3 5 Olea said he did not know why
her name did not appear on the schedule and suggested
that she return later and speak to Joan Miller.
Around 1:45 p.m. Strain returned and inquired of Joan
Miller as to her status, Joan said she knew nothing about it
and suggested that Strain return that evening and speak to
James Miller.
That evening Strain returned and talked to James Miller.
According to Strain, she inquired why she was not on the
schedule. Miller said the job was too heavy for Strain and
that he needed a man to do the job.
On November 6, according to Strain, she went to James
Miller and asked for a statement so that she could "get
back on [her] husband's disability." 3 6 Miller agreed and
told Strain the statement would be available the next day.
James Miller testified that Strain told him she needed a
statement to show she had not been discharged in order to
qualify under her husband's disability coverage. He also
admitted that he had made statements that Strain quit. In
explanation he testified that after he wrote the statement,
he felt that she had quit voluntarily. I do not credit this
testimony by Miller. It is inconsistent with the statement he
wrote for Strain which clearly states that she was dis-
charged. Thus, the statement given Strain when she
Joan replied "No, I did not; because how did I know she might walk off,
and then, there I was stuck."
a5 According to James and Joan Miller, Olea assisted Joan in managing
the Coffee Shop.
16 Strain admits that this statement was not necessary for disability
coverage. She testified that after her discharge she had heard that the Millers
were saying she was stealing them blind and she wanted to see if he would
state that as a reason for her discharge.
974
FLITE CHIEF, INC.
returned the next day was signed by James Miller and
reads:
Violet Strain was terminated 10/31/5 from my employ-
ment due to that the job of lifting trash cans and doing
a man's job was too much for her.
According to Strain she took the statement from Joan and
said now she could go home, get on her husband's
disability, and lie around and get fat. Joan Miller replied
"good."
Joan Miller did not testify as to this conversation.
James Miller denies that Strain was discharged because
of her union activities and sympathies. He testified that he
made the decision to discharge Strain and that his decision
was based on her physical inability to dump the trash and
the problem M & M had been experiencing with silverware
and dishes being dumped in the drain and in the trash can.
Strain and Peterson credibly testified that the trash can
was emptied once a day at the end of the day shift and that,
at the time of her hire, it was Strain's job to empty the trash
can. At that time garbage was emptied into a garbage
disposal and only trash was placed in the trash can. It is
undisputed that for approximately the last 6 months that
Strain worked, the garbage disposal was out of order and
garbage was emptied into the trash can resulting in a
considerable increase in the weight of the can. According
to Peterson and Strain, during this period the can was too
heavy for any one person to lift. Peterson specifically
instructed Strain to discontinue emptying the can and
thereafter two busboys emptied the can. This chore
required no more than a few minutes at the change of
shifts. Peterson credibly testified there were employees
there from two shifts, the need for the two busboys to
empty the can created no problem at all, and the busboys
made no complaint as to this additional duty.
James Miller testified that prior to Strain's discharge, M
& M was paying an average of $500 monthly for
replenishing the inventory of dishes and silverware and
that since her termination the cost of replenishing these
supplies dropped to around $150 monthly, and both he and
Joan testified that there has not been the same problem
with stoppage of the drains as there was during her
employ. 37 He further testified that it was his habit to throw
a pan in the garbage can after each shift as a means of
separating the garbage and trash disposal of each shift, and
periodically, around midnight, he would rummage through
the trash to check for the presence of tableware and food.
On one occasion he split open the plastic garbage can liner
and found 3 or 4 dozen pieces of silverware, 7 to 10 plates,
and some saucers in the bottom of the trash can. Because
of the placement of these items in the can, it appeared that
it was done during the 6 a.m.-to-2 p.m. shift when placing
trash and garbage in the can would have been Strain's
responsibility.
I do not credit this testimony. Miller admits he never
mentioned his discovery to Strain. He testified that the can
was emptied at 10 p.m. If this were true, it would not have
17 No specific evidence was adduced as to exactly when the drains were
clogged and James Miller admits that he never talked to Strain about the
drains or what causes the clogging nor does he give this as a reason for her
discharge.
been Strain's responsibility to empty the can. Furthermore,
Peterson and Strain credibly testified that the trash was
emptied at 2 p.m. Also, even assuming, arguendo, that
Miller was right as to when the can was emptied, anything
in the can at midnight obviously would have been placed
there during the 10 p.m.-to-6 a.m. shift. As to the cost of
replenishing the tableware inventory, on cross-examina-
tion, Miller admitted that he knew of only I month, August
1975, when the cost of these purchases was $500. He
further testified that a dozen forks cost approximately
$2.10, a case of 24 plates cost approximately $14 or $15 and
cups cost perhaps $12 a dozen. He further admits that to
incur a replenishing bill of $500, one would have to lose
several hundred dishes and many dozen pieces of silver-
ware.
Joan Miller later testified that she was sure the $500 bill
was for a 2-month period. According to her, she told Jim
Miller the bill was running too high, that she had talked to
the chef and asked him to cut his orders, that she intended
making the employees aware that she was keeping count of
the inventory and that she would shop around for better
prices. She admits that there are wide variations in the loss
of dishes and silverware but claims that after Strain's
termination the bills did decrease. She further concedes
that the control measures she initiated at that time
contributed to the reduction in the amount of the monthly
bill and that she could not positively attribute any
shortages to Strain. Joan Miller also testified that since
Strain's termination, she had had no problem at all with the
drains.
Strain denied that she placed in the drains items such as
plastic sugar containers which would cause cloggage. She
also testified that she clearly separated garbage from plates
and that plates and silverware from her shift did not go into
the trash can.
I do not credit the Miller's testimony as to M & M's bill
for replenishing dishes and silverware. Their testimony is
contradictory. The amount of the bill could have easily
been proven by introducing the bill into evidence. Yet
Respondents made no effort to do so. Furthermore,
Peterson credibly testified that he ordered the supplies for
August 1975, that he never ordered in excess of $200 in
supplies in any I month and that many months he ordered
less than $200 in supplies and some months he ordered
none. He also testified that when supplies were ordered
from Murray's, cooking utensils would be on the same bill
and that because Murray's prices were high, at some point
he began to order dishes and silverware almost exclusively
from A. M. Lewis and the monthly orders from A. M.
Lewis averaged less than $200 and that he never ordered
$250 in dishes and silverware during any I month.
It is apparent from the above that the alleged reasons for
discharging Strain are pretextual. Furthermore, according
to Peterson, whom I credit, Strain was the best dishwasher
employed at the Coffee Shop38 and further was a very
dependable employee. He also testified that it is normal for
silverware to inadvertently get into the trash on occasion
as Peterson testified that a lot of young school kids would work in the
evenings and that often when Strain reported to work in the morning things
would be in bad shape.
975
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but that there was never any particular problem with Strain
in this regard.
C. Conclusions
I found both James Miller and Joan Miller to be
unreliable witnesses. As set forth above, their testimony
was inconsistent. They contradicted themselves and each
other. Accordingly, I do not credit either of them where
credibility is at issue herein. Peterson, Bitonti, and Petrus
impressed me as forthright, honest witnesses whom I credit.
I find that, as alleged in the complaint, Respondents
violated Section 8(a)(l) of the Act by James Miller telling
Petrus "anybody that wants to keep their job better stay
away from Hilda."
The complaint also alleges that Jo Slover told employees
on or about August 1 and September 16 not to associate
with a union adherent. No evidence was adduced as to
such a statement around September 16. However, employ-
ee Cheryl Harding testified that in August Slover told her
not to become too friendly with Hilda because she's known
for causing trouble. This statement was made immediately
after Slover asked Harding if Bitonti had said anything
about the Union and its hassle with Respondent. In this
context, I find that Slover intended to, and did, convey that
Harding should not associate with Bitonti because she was
a union adherent. I do not credit Slover's denial that she
made such a statement. Harding impressed me as an
honest witness and the testimony of Petrus and employee
Sherry Alexander as to conversations they had with Slover
tend to corroborate Harding.
Thus, Alexander credibly testified that in December
1974, about a week before Bitonti's reemployment began,
Slover told her not to get friendly with Bitonti that thanks
to her, the Union had made attempts to get into the Coffee
Shop. Also Diana Petrus testified that during the week of
September 16, Slover told her that Bitonti was a trouble-
maker who caused problems.3 9 I also note that Slover's
statement to Harding is similar to that made by Miller to
Petrus. In the circumstances, I find that Respondents
violated Section 8(a)(1) of the Act by Slover telling
Harding not to associate with Bitonti.
As to the discharges, the statements of Miller and Slover
set forth above, and the statement considered in the prior
proceeding made by James Miller that he would do
anything to get union supporters discharged and that he
did not want Bitonti reemployed and he was going to keep
her out, all show strong animus toward union supporters in
general and Bitonti in particular. Petrus was warned that
anyone associating with Bitonti would be discharged.
Nevertheless, Petrus began associating with Bitonti40 and
thus made herselfjust as suspect and vulnerable as Bitonti.
This all indicates that Respondents were just as adamantly
opposed to dealing with the Union as it was in 1974.
The timing of the discharges lend further credence to this
conclusion. On October 6, the Board affirmed the Admin-
istrative Law Judge's findings and conclusions and adopt-
ed his recommended Order requiring Respondents to
bargain with the Union, and to reinstate with backpay
39 Slover denies both of these statements also.
"I, Slover had seen Bitonti and Petrus lunching together during off-work
hours.
those employees discharged in order to avoid unionization
of the Coffee Shop. On October 20, the Union requested
bargaining. On October 25, Respondents notified the
Board that it would not comply with the Board's Order. By
mailgram dated October 28, the Union repeated its request
for bargaining. On October 29 and 30, by separate letters,
Respondents refused to bargain with the Union. On
November 1, the second of two newspaper articles
concerning the Board's decision and Respondents' refusal
to comply therewith appeared on the front page of the local
newspaper and was read by James Miller. The article
stated that the Union estimated backpay due to be about
$46,000. That same day, James Miller demolished the
newsstands in front of the Coffee Shop. On November 2,
Respondents discharged two of the three employees left
who had been there at the time of the union organizational
campaign and the mass discharge of the entire unit.4 1
As set forth above, the reasons cited for Strain's
discharge are pretextual. Just as clearly pretextual are the
reasons given for the discharge of Bitonti and Petrus. The
only reasons given to Bitonti and Petrus for their
discharges were the walkouts of October 26. Respondents
did not investigate what happened. If they had, they would
have discovered that the walkouts and the entire chaotic
situation was caused by Kim Stayton and that Bitonti and
Petrus had conducted themselves commendably.
However, in spite of the failure to investigate, Respon-
dents did have certain information which clearly indicated
that the fault was Stayton's. Thus, Stayton, a high school
student, reported to work directly from a birthday party
given her by James Miller. She claimed she had told Miller
she could not handle the shift. Six of the nine walkout
tickets were Stayton's and were nearly consecutive. The
customer count on a Sunday shift, when almost all business
is compressed into 3 hours, showed about 175 for Bitonti,
70 for Stayton, and 30 or 40 for Petrus who also had to
serve as cashier for all these customers. Petrus had left a
note with the walkout tickets stating essentially that it was
a busy day and Stayton was unable to handle her share.
Both Joan and James Miller admit that Stayton also told
them that she had been unable to handle her work that
day.
The evidence shows that Bitonti and Petrus received
disparate treatment. Thus, employee Pamela Petrus 4 2
credibly testified that she worked on the swing shift with
Kim Stayton on four or five occasions in the 2 weeks
following November 2, and that Stayton worked a full
shift, wore a uniform, and conducted herself like an
employee. After this 2-week period, Stayton left Respon-
dents' employ. I do not credit the denials of Joan and
James Miller that Stayton worked after November 2. James
first testified that Stayton was discharged at the same time
as Bitonti and Petrus, but that she helped him out I night
later without pay. Joan Miller testified that Stayton did not
work after November 1. Then after Pamela Petrus testified,
James testified that he discharged Stayton between Octo-
ber 26 and October 31, but that he was in a bind on the
swing shift on November 2 and asked Stayton to cover the
41 The three employees were Strain, Bitonti, and Delena Loftin.
42 The daughter of Diane Petrus.
976
FLITE CHIEF, INC.
shift. Still later he testified that Stayton helped him out on
numerous occasions on the graveyard shift.
In crediting Pamela Petrus, I have considered the fact
that Respondents' payroll records, maintained by an
independent accounting firm, show no entries for Stayton
after the payroll period November 15 and that she worked
only 8 hours during this period; and that the timecard
produced by Respondents as her final card has only one
entry, November 2. However, I note that Bitonti and
Petrus received final checks dated November 3; whereas
Petrus received regular payroll checks on November 5 and
November 20. I further note that Respondents' accountant
does the payroll only from information submitted by
Respondents, the final checks are drawn only when the
accounting firm is notified by Respondents of a discharge
and that Respondents did not notify the firm of Stayton's
discharge. It is my opinion that in the circumstances and
for the purpose involved herein, these records are no more
reliable than Miller's testimony, for they are based solely
on the word of Miller transmitted to the accountant after
the alleged discrimination, and the sham sale found in the
prior proceeding has revealed that Respondents are
prepared to manipulate documentary evidence to avoid
unionization. 43
In all of the circumstances, including lack of prior
warning or complaint as to dissatisfaction with work
performance; citing at the hearing reasons for discharge
not given to the dischargees; the timing; the fact that Strain
had not handled trash cans for 6 months and that this
caused no operational difficulty; the animus toward union
adherents in general and Bitonti in particular; the threat to
discharge anyone associating with Bitonti; the obvious
pretextual nature of the reasons given for the discharge; the
delay in discharging Bitonti and Petrus; 44 the plan to avoid
unionization through, inter alia, ridding itself of union
adherents and the determination to continue in this course
of conduct as found in the prior proceeding; I find that the
discharges herein were designed to rid the Coffee Shop of
the discriminatees reinstated incident to the prior proceed-
ing and that the conduct involved herein is a continuation
of the plan devised in July 1974 to avoid unionization of
the Coffee Shop.
It is immaterial that Loftin was not also discharged, for it
is well settled that an employer need not discharge every
union adherent in order to make his point. Great Atlantic &
Pacific Tea Company, Inc., The Birmingham Division, 210
NLRB 593 (1974). It is also immaterial that Petrus was not
an employee during the Union's organizational campaign.
James Miller threatened to discharge anyone associated
with Bitonti. Petrus did associate with Bitonti and she was
discharged. Furthermore, it was necessary to discharge
Petrus to give Bitonti's discharge validity.
Accordingly, I find that Hilda Bitonti, Diane Petrus, and
Violet Strain were discharged in violation of Section 8(a)(1)
and (3) of the Act.
': The record reveals no attempt by Respondent to secure Stayton's
testimony. The General Counsel did and some slight delay was occasioned
in the closing of the hearing herein waiting for her to appear. However. she
did not appear.
CONCLUSIONS OF LAW
I. Flite Chief, Inc., Richard Miller, and Karen Miller;
M & M Truckadero Coffee Shop, Inc.; James Miller and
Paul A. Minder are employers engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Culinary workers, Bartenders & Hotel Employees,
Local 535 is a labor organization within the meaning of
Section 2(5) of the Act.
3. By telling an employee not to associate with a union
adherent and by threatening to discharge employees who
associate with a union adherent, Respondents have
interfered with, restrained, and coerced employees in
violation of Section 8(aX l) of the Act.
4. By discharging Hilda Bitonti, Diane Petrus, and
Violet Strain, Respondents have engaged in unfair labor
practices within the meaning of Section 8(a)(l) and (3) of
the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that Respondents Flite Chief, Inc., and M
& M Truckadero Coffee Shop, Inc., are alter egos and that
Respondents are jointly and severally liable for the unfair
labor practices found herein; and having found that
Respondents discharged Hilda Bitonti and Violet Strain in
violation of Section 8(a)(1) and (3) of the Act, it is
recommended that Respondents offer Bitonti, Petrus, and
Strain immediate and full reinstatement to their former
jobs, or, if such jobs no longer exists, to substantially
equivalent positions, without prejudice to their seniority
and other rights and privileges, and make them whole for
any loss of earnings they may have suffered by reason of
such discrimination by payment to each of them of a sum
of money equal to that which she normally would have
earned as wages from the date of discharge to the date of
said offer of reinstatement, less her net earnings during
such period, with backpay computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289 (1950), and with interest thereon
as prescribed by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716 (1962).
As the unfair labor practices committed by Respondents
are of a character striking at the very heart of the Act, I
shall recommend that Respondents be ordered to cease
and desist from infringing in any other manner upon the
rights guaranteed in Section 7 of the Act.
44 Under the circumstances. I am unimpressed by the contention that the
delay was occasioned by the need to investigate the incident and to secure
replacements.
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings of fact, conclusions of law,
and the entire record, 45 and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER 46
Respondents Flite Chief, Inc.; Richard Miller and Karen
Miller; M & M Truckadero Coffee Shop, Inc.; James
Miller and Paul A. Minder, their officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees because they engage in union or other protected
activity or because Respondents believe they engage in
such activity or because they associate with union adher-
ents.
(b) Telling employees not to associate with a union
adherent and threatening to discharge employees who
associate with a union adherent.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Hilda Bitonti, Diane Petrus, and Violet Strain
immediate and full reinstatement to their former jobs, or, if
such positions no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges.
(b) Make Hilda Bitonti, Diane Petrus, and Violet Strain
whole for any loss of earnings suffered by reason of the
discrimination against them in the manner set forth in the
section herein entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports and all other records
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(d) Post at their place of business at Fontana, California,
copies of the attached notice marked "Appendix." 4 7
Copies of said notice, on forms provided by the Regional
Director for Region 31, after being duly signed by
Respondents' representative, shall be posted by Respon-
dents immediately upon receipt thereof, and be maintained
by them for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
45 General Counsel's motion to withdraw the original of G.C. Exh. 8 and
substitute a true and correct copy is hereby granted.
"6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
47 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend to
carry out the order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain as a group through a representative
of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any and all of these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces you with respect to these rights.
WE WILL NOT discharge or otherwise discriminate
against you because you engage in union or other
protected concerted activities or because we believe
you engage in such activity.
WE WILL NOT tell you not to associate with
employees who support the Union.
WE WILL NOT threaten to discharge you if you
associate with employees who support the Union.
WE WILL NOT in any other way punish you for
exercising the rights guaranteed you by Section 7 of the
National Labor Relations Act.
WE WILL offer Hilda Bitonti, Diane Petrus, and
Violet Strain their jobs back and WE WILL reimburse
them for any loss of pay they may have suffered
because we discharged them together with interest.
FLITE CHIEF, INC.;
RICHARD MILLER AND
KAREN MILLER; M & M
TRUCKADERO COFFEE SHOP,
INC.; JAMES MILLER AND
PAUL A. MINDER
978