Franke's, Inc.

National Labor Relations Board - Board Decisions

May 13, 1963

142 N.L.R.B. 551 (N.L.R.B. 1963)

FRANKE'S, INC. 551
of New York purchases of cars and trucks valued at upwards of
$2,000,000 and of parts valued in excess of $120,000.
3. The Board's current standard for asserting jurisdiction over
retail enterprises within its statutory jurisdiction is a gross volume
of business of at least $500,000 per annum. Carolina Supplies and
Cement Co., 122 NLRB 88. The Employer's out-of-State purchases,
constituting direct inflow under the Board's decision in Siemons
Mailing Service, 122 NLRB 81, 85 bring its operations within the
Board's statutory jurisdiction;' while its gross volume of business
meets the dollar-volume test of the Board's standard for asserting
jurisdiction over retail enterprises.'
Accordingly, the parties are advised under Section 102.103 of the
Board's Rules and Regulations, Series 8, as amended, that, on the
allegations here present, the Board would assert jurisdiction over
the Employer's operations with respect to labor disputes cognizable
under Sections 8, 9, and 10 of the Act.
1 N L R.B. v. Reliance Fuel Oil Corp ., 371 U.S. 224
2 McCarthy Enterpi tses t/a Community Motors, 128 NLRB 60.
Franke 's, Inc. and Hotel -Motel , Restaurant Employees Union
Local No. 200 , Hotel and Restaurant Employees and Bar-
tenders International Union, AFL -CIO. Cases No. 26-CA-
1212, 26-CA-1230, and 26-CA-12,118. May 13, 1963
DECISION AND ORDER
On October 1, 1962, Trial Examiner James F. Foley issued his
Intermediate 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 Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that these allegations be dismissed. There-
after, the General Counsel filed exceptions to the Intermediate Report
together with a supporting brief, and the Respondent filed a reply
brief.
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 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
142 NLRB No. 67.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner,' as amplified herein.
The Trial Examiner found that the evidence did not disclose that
the Union represented a majority of the employees employed in the
appropriate unit at Town and Country Cafeteria on December 2, 1961,
when the Union made its initial demand for recognition and collective
bargaining, or on January 20, 1962, when the Union renewed its
demand.' Accordingly, the Trial Examiner recommended dismissal
of the complaint insofar as it alleged that the Respondent's refusal
to recognize and bargain with the Union in the above-described unit
was violative of Section 8 (a) (1) and (5) of the Act. We agree with
the Trial Examiner's findings and conclusions in this regard.
In its exceptions, the General Counsel would now have the Board
find that the Union represented a majority of Town and Country
Cafeteria employees at the time the Union made its bargaining de-
mands solely on the basis of Respondent's admission in its answer
to the complaint that a majority of these employees engaged in the
strike called by the Union on December 2, 1961.' While it is true that
the Respondent failed to deny formally the above-described allegation,
it is clear that the Respondent orally denied this allegation during the
course of the hearing, and indeed introduced evidence to show that a
majority of the employees at the Town and County Cafeteria did not
join the strike. Moreover, it further appears that the General Coun-
sel, during the course of the hearing, did not rely on Respondent's
answer as establishing the Union's majority status. Instead, the Gen-
eral Counsel sought to establish the Union's majority by first offering
certain signed union authorization cards, and by thereafter presenting
testimony as to the number of Town and Country Cafeteria employees
on strike on December 2, 1961, and thereafter.
In view of the foregoing, to now accept Respondent's failure for-
mally to deny the allegation of the complaint as adequate grounds for
finding that the Union represented a majority of the Town and Coun-
try Cafeteria employees either on December 2, 1961, or on January 20,
1962, would be exalting formalism and placing undue reliance on a
technicality .4 Accordingly, we reject the General Counsel's contention
in this respect.
' The Trial Examiner found that the Respondent did not violate Section 8(a) (1) and (5)
of the Act when Respondent unilaterally changed its procedure for granting leaves of
absence on September 11, 1961, but that it thus violated the Act by its unilateral change-
of-leave policy on September 14, 1961 . No exceptions were filed to these findings of the
Trial Examiner and they are hereby adopted
2 The General Counsel alleges an 8(a) (5) violation on, and after January 20, 1962, but
relies upon the Union 's status on December 2, as demonstrated by the number of em-
ployees who went on strike, to establish its alleged majority status as of January 20.
8 Section 102 20 of the Board 's Rules and Regulations, Series 8, as amended , provides
in relevant part: ". . . any allegation in the complaint not specifically denied or explained
in an answer filed . . . shall be deemed to be admitted to be true and shall be so found
by the Board, unless good cause to the contrary is shown "
* See William Kahr and Leon Mohill, d/b/a Hamilton News Co ., 129 NLRB 770.
FRANKE'S, INC. 553
Nor is there any other basis for finding that the Union enjoyed
majority status on January 20, 1962, the critical date herein. The
authorization cards offered by the General Counsel were not authen-
ticated and, therefore, were rejected by the Trial Examiner and cannot
be considered evidence of union designations. As for the testimony
pertaining to the number of employees who went on strike on Decem-
ber 2, the credited testimony shows 28 employees in the appropriate
unit during the payroll week which included December 2 and, even
considering Vice President Franke's testimony on cross-examination,
only 15 employees did not work on December 2, 2 of whom were on
scheduled leave at the time, namely, Sitzler and Henson.' So far as
the record shows, Henson was never heard from thereafter. When
the strike ended on March 10, only 13 employees applied for reinstate-
ment. It is asserted by the Union that two strikers left the area during
the strike. But these individuals are not identified nor is the date
of their departure given in the record. Even assuming that two
strikers left the area as claimed, it cannot be inferred from this record
that they did not leave until after January 20.
On the basis of the foregoing, and the entire record, we find that
the General Counsel has not established that the Union represented a
majority of the employees in the appropriate unit at Town and Country
Cafeteria on January 20, 1962, and we must therefore conclude that
Respondent did not unlawfully refuse to bargain with the Union for
those employees.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
50n direct examination, Franke testified that 12 employees worked , and 4 were on
scheduled leave, on December 2.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The three cases which make up this proceeding , Cases Nos. 26-CA-1212, 26-CA-
1230 , and 26-CA-1248, were brought under Section 10 (b) of the National Labor
Relations Act, as amended ( 61 Stat. 136, 73 Stat . 519), herein called the Act, on
unfair labor practice charges filed by Hotel -Motel , Restaurant Employees Union
Local No . 200, Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO, herein called the Union , against Respondent Franke's, Inc., herein called
Respondent . The charge in Case No . 26-CA- 1212 was filed on January 22 and
amended on April 6 , 1962 . The charge in Case No. 26-CA-1230 was filed on Feb-
ruary 23 and amended on February 28, 1962 . The charge in Case No. 26-CA-1248
was filed on March 28 and amended on April 24, 1962 . A complaint premised on
the original charge filed in Case No. 26-CA-1212 was issued by the General Counsel
on March 8, 1962 . An amended and consolidated complaint premised on the
original charge in Case No. 26-CA-1212 and its amendment of April 6, 1962, and
the charge in 26-CA-1230 and its amendment of February 28, 1962, was issued
on April 11, 1962 . An amendment to the amended and consolidated complaint
premised on the charge in Case No. 26-CA-1248 was issued on April 24, 1962.
Respondent answered the original complaint on March 13, the amended and con-
solidated complaint on April 20, and the amendment to the amended and consolidated
complaint on April 27, 1962.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The amended and consolidated complaint of April 11, as amended on April 27,
1962, contains the issues before Trial Examiner James F. Foley in this proceeding.
It alleges that Respondent refused to bargain with the Union in violation of Section
8(a)(5) of the Act, interrogated and threatened employees in violation of Section
8(a) (1) of the Act, discriminatorily discharged employee Cololsees Bowers for
union and other concerted activity in violation of Section 8(a)(1) and (3) of the
Act, and discriminatorily refused to reinstate striking employees in violation of
Section 8(a)(1) and (3) of the Act. Respondent denies the alleged illegal conduct.
On May 1, 2 and 3, 1962, at Little Rock, Arkansas, a hearing was held on the
amended and consolidated complaint, its amendment, and the answers of Respondent.
Respondent, General Counsel, and Charging Party were represented at the hearing,
and were afforded an opportunity to be heard, make oral argument, and file briefs.
A brief was filed by Respondent after the close of the hearing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Arkansas corporation, has a principal office and place of business
at 511 Louisiana Avenue, Little Rock, Arkansas, where it is engaged in the business
of operating cafeterias in Little Rock and Hot Springs, Arkansas. During the 12
months prior to April 11, 1962, Respondent had a gross volume of business in excess
of $500,000 from the sales of merchandise During the same period, Respondent
purchased and received goods with a value in excess of $30,000 directly from
suppliers located outside the State of Arkansas. Respondent is engaged in commerce
or in an industry affecting commerce within the meaning of Section 2(6) and (7)
of the Act, and assertion of jurisdiction will effectuate the purposes of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Issues
The issues are whether Respondent: (1) refused to bargain in violation of Section
8(a)(5) of the Act on September 11, 1961, and January 20, 1962, and thereafter;
(2) intimidated and threatened employees in November and December 1961 in
violation of Section 8(a)(1) of the Act, and discriminatorily discharged employee
Cololsees Bowers on January 14, 1962, in violation of Section 8(a) (3) and (1) of
the Act; and (3) discriminatorily refused to reinstate strikers, in violation of Section
8(a) (1) and (3) of the Act, at its Louisiana Avenue Cafeteria, Little Rock, Arkansas,
on and after January 19, 1962, when they made an unconditional offer to return to
work, and at its Town and County Cafeteria, Little Rock, Arkansas, on and after
March 10, 1962, when the strikers made an unconditional offer to return to work.
In paragraphs Nos. 17 and 18 of the amended and consolidated complaint General
Counsel alleges that Respondent discharged on November 8, 1961, and failed and re-
fused to reemploy, employee Clora Sadler until on or about January 19, 1962, because
she joined or assisted the Union or engaged in union or concerted activity. At the
hearing, Respondent's counsel moved that paragraphs Nos. 17 and 18 be stricken as
this conduct was the subject of unfair labor practice charges, Cases Nos. 26-CA-1186
and 26-CA-1187, which have no connection with this proceeding, and that the
case before the Board involving this conduct was disposed of by informal settle-
ment executed January 12, 1962, by the parties, and approved by the Regional
Director on January 16, 1962. However, General Counsel in paragraphs Nos. 17,
18, and 25 of the amended and consolidated complaint alleges only the discharge of
Sadler to be part of the conduct leading to an unfair labor practice strike beginning
on December 2, 1961, and from which Respondent's employees made an uncon-
ditional offer to return on January 19, 1962. General Counsel does not ask that
the discharge and refusal to reinstate be remedied by this proceeding, as a remedy
for such conduct has been provided by the informal settlement. The Trial Examiner
is of the opinion, and finds, that the Respondent's conduct regarding Sadler is mate-
rial to a determination whether striking employees were discriminatorily denied
reinstatement, and for that reason is properly alleged in paragraphs Nos. 17, 18. and
25 of the amended and consolidated complaint. Therefore, the motion to strike is
denied.
Counsel for General Counsel at the hearing moved that General Counsel be
permitted to amend paragraph No. 27 of the amended and consolidated complaint
FRANKE'S, INC. 555
which provides that Respondent discriminatorily refuses and has refused to reinstate
the 14 employees listed in the prior paragraph No. 26 to provide that it has so
refused to reinstate 5 of these employees (Beatrice Hill, Charlene Thomas, Lillie
Carpenter, Dorothy Martin, and Linda Loftus), and refuses and has refused to
place the remaining 9 employees 1 on a preferential hiring list. Prior to offering this
amendment , counsel for General Counsel conceded that the evidence showed that
there were 5 and not 14 jobs to be filled at Respondent's downtown cafeteria. The
motion is granted and paragraph No. 26 of the amended and consolidated complaint
issued April 11, 1962, is so amended.
General Counsel at the hearing also moved that paragraph No. 30 of the amended
and consolidated complaint which was added by the amendments dated April 24,
1962, be amended insofar as it refers to Alton Cryer, to provide only that Respond-
ent refused to place him on a preferential hiring list from the time he made an
unconditional offer to return to work on March 10 until about April 24, 1962.
Prior to moving to amend, counsel for General Counsel conceded that the evidence
showed that a job has not been available for Cryer due to economic changes made
by Respondent in its Town and Country Cafeteria operation during the period of
the strike at that cafeteria. Paragraph No. 30 of the amended complaint is so
amended.
B. Background
Respondent has four cafeterias in Little Rock and one in Hot Springs, Arkansas.
The Hot Springs cafeteria is not involved in this proceeding. Two of the cafeterias
are located in downtown Little Rock, one at 511 Louisiana Avenue, and the other
on Capitol Avenue. They are separated by a few buildings. Louisiana and Capitol
Avenues are at right angles to each other. The two cafeteria buildings are joined
in the rear, and the second floor of the Capitol Avenue building houses storerooms,
dressing rooms, an employee dining room, and a kitchen which extends to part
of the second floor of the Louisiana Avenue building. These second floor facilities
serve both cafeterias. The cafeteria on Louisiana Avenue, modernly equipped and
laid out, has been the main operation , and includes a coffeeshop and dishwashing de-
partment as well as the cafeteria, and has been the seat of the main offices of the
Respondent. The third cafeteria is located at the corner of Asher and South Univer-
sity Avenues, and the fourth cafeteria is located at 5701 Kavanaugh Street.
The cafeterias on Louisiana and Capitol Avenues, downtown in Little Rock, were
one operation until the strike of December 2, 1961, by the Union.2 Approximately
137 persons exclusive of a stock clerk, office clerical employees, guards, and super-
visors were employed at the 2 cafeterias. The 137 included cooks, counter personnel,
busboys and busgirls, dishwashers, waitresses, cashiers, bakery salesclerks, main-
tenance men, and a truckdriver. When the strike began on December 2, 1961, 98
of the 137 went on strike. The remaining 39 and replacements were assigned to
the cafeteria on Louisiana Avenue, hereinafter called the Louisiana Avenue Cafe-
teria, and the cafeteria on Capitol Avenue, hereinafter called the Capitol Avenue
Cafeteria, with its serving counters, dining room, and separate dishwashing depart-
ment , was closed. Respondent did not reopen the Capitol Avenue Cafeteria when
the strike ended on January 19, 1962, at these two cafeterias .3 It was still closed
when the hearing began on May 1, 1962. The Louisiana Avenue Cafeteria con-
tinued to do business during the strike and thereafter.
The strike continued at the cafeteria at Asher and South University Avenues,
hereinafter called the Town and Country Cafeteria, until March 10, 1962. On
December 2, 1961, there were 28 employees at Town and Country with the same
inclusions and exclusions that the downtown cafeterias had. About half of the
employees went on strike on December 2 and continued striking until March 10,
1962. This cafeteria continued to operate during the strike and was in operation
at the time of the hearing. The cafeteria at 5701 Kavanaugh, hereinafter called
the Heights Cafeteria, had 19 to 21 employees. As stated above, the Union also
struck this cafeteria on December 2, 1961. Respondent closed it on December 8,
1961, and had not reopened it when the hearing began on May 1, 1962.
In January or February 1961, the Union began organizational activity at the four
cafeterias of Respondent in Little Rock, Arkansas. It filed a petition on February 21,
1961, for certification as bargaining representative for one appropriate unit to
1 The name Elouise Wade in paragraph No. 26 was amended at the hearing to read
Evelyn Wade.
2 This strike is discussed in section III, E , 1, infra . It was conducted with picketing at
each of the four cafeterias in Little Rock
3 These two cafeterias are referred to jointly as the downtown cafeterias
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
include employees at the downtown cafeterias, the Board issued a Decision and
Direction of Election in this unit on July 20, 1961 (not published in NLRB volumes),
an election was held on August 4, 1961, in which a majority of employees voted to
have the Union act as their bargaining representative, and the Board certified the
Union as the bargaining representative of employees in the downtown cafeterias unit
on August 14, 1961. The Union requested Respondent to bargain for this unit on
August 20, 1961, bargaining negotiations began on August 21 and 25 and Sep-
tember 6, 1961,4 continued during September, October, November, December, 1961
and January, 1962, until an agreement was reached on January 17 and a contract was
signed on January 19, 1962. The strike which began on December 2, 1961, did not
cause any interruption in bargaining, but may well have accelerated it as it led to
an offer of assistance by Arkansas Commissioner of Labor Thornbrough, and his
presence as mediator at several of the bargaining sessions on December 2 and there-
after. They were held in his office
C. The refusal to bargain
The refusal to bargain with which Respondent is charged consists of two
allegations The first is that on September 11, 1961, Respondent changed its leave-
of-absence policy without notice to the Union prior to making the change effective
to afford the Union an opportunity to discuss it with Respondent. The second
allegation is that Respondent refused to bargain with the Union on January 20, 1962,
and thereafter, for a collective-bargaining contract for employees at Respondent's
Town and Country Cafeteria, although the Union represented a majority of em-
ployees in an appropriate unit at this cafeteria, and requested or demanded that
Respondent recognize it as collective-bargaining representative for this group of
employees, and negotiate with it for a collective-bargaining contract.
1 The alleged unilateral change in policy on September 11, 1961
On or about September 1, 1961 Clora Sadler, employed by Respondent in
the kitchen for the two downtown cafeterias since August 1958, requested maternity
leave from Irma Lipton, the kitchen manager. She handed Lipton a written applica-
tion for leave from the date of September 4 to December 4, 1961. This application
was dated August 26, 1961, and was prepared for employee Sadler by Earl Yeargan,
the Union's secretary and business agent. Lipton told Sadler that the leave would
be arranged. Sadler had discussed the leave earlier with Lipton and the latter told
her it would be all right to take it 5
Clora Sadler left work on or about September 12. Lipton sent her written appli-
cation for leave to the personnel office about September 1 when she received it.
Frank R. Lewis, a vice president of Respondent, was in charge of personnel as well
as operations at the time. On or about September 9 or 10, 1961, W. J. Franke,
also a vice president, changed positions with Vice President Lewis. By this change,
Franke assumed charge of personnel and operations, and Lewis took over purchasing
and maintenance. Lewis gave Franke a number of papers that were on his desk
for attention. Included was Sadler's written application for leave.
No testimony was offered by the General Counsel or the Charging Party to explain
Sadler's written request for leave prepared by Yeargan. The policy at the time
was that a request for leave of absence could be made orally to the employee's
supervisor, or an official of Respondent, and that she, or he, as the case was, could
approve it for a period not to exceed 3 months. The 3 months could be extended
in unusual circumstances. Lipton testified that she had always brought requests for
such leave to the attention of the personnel office for consideration of the official
in charge of personnel even though such action was not required. Both Lewis and
Franke testified that they knew of no explanation for Sadler's written request.
It is undisputed that prior to the September 6 1961, negotiations for a collective-
bargaining contract for the two downtown cafeterias, the Union had submitted a
contract proposal to Respondent containing a provision that an employee would
4 The unit considered appropriate by the Board consisted of all employees in the two
downtown cafeterias with its one kitchen including cooks, counter personnel , bus people,
dishwashers , waitresses , cashiers , bakery sales clerks, maintenance men, and a truck-
driver, excluding a stock clerk, office clerical employees , guards , and supervisors as defined
in the Act.
5 Clora Sadler had requested the same leave of Lipton in September 1959; it was
granted, and she had returned to work in November 1959 , shortly after she asked that she
be permitted to return to work. At that time, the request was oral only and Lipton gave
her oral approval.
FRANKE'S, INC. 557
be considered on leave of absence without pay upon the written authorization of
his or her department head. Respondent advanced as a counterproposal a pro-
vision that an employee could be granted a leave of absence without pay upon written
permission of an officer of the corporation. This counterproposal was brought to
the attention of union representatives at the bargaining session on September 6,
it was offered as a counterproposal on October 31, and adopted during the bargaining
session of November 15, 1961.
On or about September 11, 1961, Respondent's supervisors at the Louisiana and
Capitol Avenues cafeterias were notified in a staff meeting that thereafter requests
for leaves of absence would have to be approved by either Vice President Franke or
Vice President Lewis. The supervisors at the other cafeterias had notice of the
change from a copy of the minutes of the meeting which was sent to each of the
cafeterias. On or about September 14, 1961, Vice President Franke sent to em-
ployee Sadler a letter dated September 14, 1961, in which he referred to her request
for a 90-day leave of absence from September 4 to December 4, 1961. He then
stated that, "We regret to advise you that we cannot grant you this request," and
continued, "We will consider hiring you in the future providing we have an opening
available at that time." 6 Two other employees who requested leaves of absence at
or about the same time were also informed that they would not have the status of
employees during their leaves of absence and would be considered for reemployment
upon application when an opening was available
Vice Presidents Lewis and Franke readily admitted that Respondent's prior leave
policy was that leaves of absence could be given by managers and supervisors for a
maximum of 3 months. The 3 months could be increased in unusual cases and it
was also readily admitted that employees on leave continued to be employees during
the leave. They further admitted that the requirement that leaves of absence be
approved by either of them and that an employee lost his or her status as an
employee while on a leave of absence were new policies, and that the Union had not
been notified prior to the policies being placed in effect, to give the Union an op-
portunity to discuss them with Respondent. Any notice the Union received was notice
of a change in policy already in effect.
2. The alleged refusal to bargain for the Town and Country Cafeteria employees
It has been found, supra, the Union had been engaged in organizational activity
at the Town and Country Cafeteria since January or February 1961, and it has been
found, supra, that the Union engaged in a strike with picketing at this cafeteria from
December 2, 1961, until March 10, 1962.
The General Counsel contends that on January 20, 1962, and thereafter Respondent
refused to bargain when the Union requested Respondent to recognize it as collective-
bargaining representative and bargain collectively for a unit of employees at Town
and Country Cafeteria including the same classifications of employees as the unit at
the Louisiana and Capitol Avenues cafeterias. General Counsel also contends that
majority representation by the Union was shown by the number of employees on
strike on December 2, 1961, and that this evidence of majority representation was
brought to the attention of Respondent by the Union on December 2, 1961, and
continuously thereafter including January 20, 1962. Respondent claims it has
refused to recognize and bargain because the Union did not represent a majority
of employees in an appropriate unit, and because the Union on January 22, 1962,
abandoned its demands for recognition and bargaining.
a. The appropriate unit
The Union, Respondent, and General Counsel agree, and I so find, that an ap-
propriate unit at the Town and Country Cafeteria for purposes of bargaining is a
unit consisting of cooks, counter personnel, bus people, dishwashers, waitresses,
cashiers, maintenance men, and a truckdriver, excluding a stock clerk, office clerical
employees, guards, and supervisors as defined in the Act.
b. Evidence of majority representation
As evidence of the Union's majority representation, General Counsel relies on
Business Agent Yeargan's testimony of the number of Town and Country Cafeteria
employees that went on strike on December 2, 1961. On direct examination, Yeargan
testified that 17 Town and Country Cafeteria employees went on strike on December 2,
9 Clora Sadler testified she did not receive a letter from Respondent I credit Franke's
testimony that the letter was sent to her.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961, in connection with the Union's general strike beginning on that date at all
of Respondent's cafeterias in Little Rock, Arkansas. He also testified on direct that
there were 24 to 26 employees in the appropriate unit. On cross-examination, he
testified that there were 16 of these employees on strike. According to him, 15
actually appeared on the picket line at Town and Country on December 2, 1961.
He stated that the 16th employee, Mildred Bennett, did not appear on the picket line
but remained at the Union's labor temple.?
The record does not disclose the basis for Yeargan's conclusional testimony as
to the number on strike or the number in the unit. There is no testimony that he
checked the pickets to determine if they were all Town and Country Cafeteria
employees, or took their names and checked them against the Town and Country
list of employees. Nor does his testimony disclose whether at the time of the hear-
ing he had a list of the names of the employees on the picket line on December 2,
1961. If he had, General Counsel failed to offer it so it could be checked against the
employment records of Respondent for December 2, 1961.
In rebuttal, Respondent's Vice Presidents Lewis and Franke testified that there were
28 employees in addition to 3 supervisors at Town and Country the payroll week in-
cluding December 2, 1961. The supervisors were Harding, Tomlin and Boland.
So by their testimony there were 28 employees in the appropriate unit. Then Vice
President Franke testified that 12 employees worked on Saturday, December 2, 1961,
but 4 employees were on scheduled leave, 2 of them returning to work on Decem-
ber 3, 1961, and "two never came back during the duration of the strike." This
testimony, unrebutted and standing alone, shows that only 14 of a unit of 28 were on
strike on December 2.
On cross-examination, Vice President Franke testified that the four employees on
leave on December 2 were Wilma Turney, Otis Henson, Ella Harris, and Gertrude
Sitzler, and that the two who did not return on December 3 were Henson and
Sitzler. He also gave on cross-examination the names of 15 employees who did not
work on December 2. This listing included the names of Henson and Sitzler, but
not Turney and Harris who returned to work on December 3. This testimony ap-
pears to corroborate Yeargan's testimony that 15 were on strike. However, while the
record shows that Sitzler made an unconditional offer to return to work on March 10,
1962, when the strike ended at Town and Country, it does not show that such an offer
was made by Henson. Nor does it show what became of him. This evidence throws
doubt on the contention that Henson was a striker on December 2. Thirteen em
ployees only made application for reinstatement on March 10, 1962. Union Busi-
ness Agent Yeargan testified that two strikers had left the area, but gave no testimony
as to when they left, whether prior to or after January 20. If the strike was an
economic strike and not due to unfair labor practices that dissipated or prevented
a majority representation, this evidence leaves a doubt whether a showing of a
majority on December 2, 1961, would be proof of a majority on January 20, 1962,
when Respondent is alleged to have refused to bargain.
General Counsel's initial effort to prove the Union's majority was to offer through
Yeargan 20 signed cards. Each of the cards was a combination of an application
for membership in the Union and an authorization to the Union to represent the em-
ployee for collective bargaining. Three of the cards were duplicates, leaving 17
Yeargan did not know whether the cards were signed by the persons whose signatures
were purportedly on them. He testified that the cards were handed to him by group
leaders in the organizational effort. Counsel for General Counsel offered no evidence
at the time to show that the purported signatures were genuine or those of employees.8
Moreover, five of the cards were signed in early February 1961, about 10 months
prior to December 2, 1961. Respondent counsel's objection to their being received
in evidence was sustained, but counsel for General Counsel was afforded an op-
portunity to authenticate the signatures on the cards by calling as witnesses the
'General Counsel did not establish that Mildred Bennett was an employee on Decem-
ber 2, 1961 The Charging Party introduced the informal settlement agreement disposing
of the charges that Respondent had discriminatorily refused to reinstate her and Clora
Sadler prior to December 2, 1961. However, unlike in the case of Sadler, General Counsel
and Charging Party failed to offer any proof that Bennett was discriminatorily treated by
Respondent In this context, I do not consider the informal settlement agreement stand-
ing alone as evidence of discriminatory treatment or evidence that Mildred Bennett was
an employee on December 2, 1961.
s The list of names of employees absent from work on December 2, 1961, subsequently
furnished by Vice President Franke in his testimony, discloses that all except Cunningham
were employees on December 2
FRANKE'S, INC. 559
employees who purportedly signed them , or otherwise , and reoffer them, but did not
do so.9
c. The demand for recognition and bargaining
The testimony of General Counsel's witnesses, Business Agent Yeargan and Inter-
national Representative Kensinger, is that the Union demanded recognition and bar-
gaining on December 2, 4, and 7, 1961, but on December 7 offered to lay aside
these demands until the primary problem was met, namely a collective-bargaining
contract for the downtown cafeterias. The testimony of Respondent's witness, Vice
President Lewis, is that on December 2 and 4 the Union claimed it had a majority
representation at the Town and Country Cafeteria, and for this unit of employees
asked for negotiations of a contract, a consent Board election, and execution of the
contract after a Board certification, and that on December 5 the Union offered to set
aside the demand for recognition and bargaining for the Town and Country Cafeteria
until an appropriate time.
The affidavit of Vice President Lewis, offered by counsel for General Counsel for
purpose of impeachment, states that on December 4, 1961, the Union demanded
recognition without referring to an election. It also states that the Union offered
to lay aside its demands for the Town and Country Cafeteria on December 5 until
an appropriate time. I find that on December 2 or 4, 1961, the Union demanded
recognition and bargaining for the unit of employees at Town and Country Cafeteria
based on a showing of majority representation by the number of employees in that
unit who were on strike on December 2, 1961, and I find that the Union by Business
Agent Yeargan offered on December 5, 1961, to lay aside the demands for the Town
and Country Cafeteria employees until a collective-bargaining contract was ne-
gotiated and signed for the unit of employees in the downtown cafeterias. It is
undisputed that no reference was made to demands for Town and Country em-
ployees during the bargaining sessions on December 7 through January 19, 1962,
when the contract for the downtown cafeterias was signed, except on December 7,
1961, as part of a summing up of all demands by the Union for the benefit of the
Union's Attorney Youngdahl who had entered the negotiations on behalf of the
Union for the first time on that date.'°
When the contract for the downtown cafeterias was signed on January 19, 1962,
the strike at those cafeterias with the accompanying picketing ceased. However,
the strike and the picketing at Town and Country continued. Respondent's Attorney
Burrow had conversations with Business Agent Yeargan and Union Attorney Young-
dahl on January 20, 1962, as to the purpose or object of the picketing. According
to Yeargan and Youngdahl, Burrow was told that the picketing was because of unfair
labor practices which included the refusal to bargain. According to Burrow, he was
told by Yeargan, and by Youngdahl in the first conversation he had with him, that
the picketing was for recognition and in the second conversation they had, Young-
dahl said the pickets would be removed if Respondent would return the Town and
Country strikers to their jobs, find places for some former Heights Cafeteria em-
ployees, and consent to an election. Youngdahl denied that he said what Burrow
testified he said. Both Burrow and Youngdahl testified that Youngdahl said to
Burrow he would incorporate the reasons for the strike in a letter to him. Burrow
agreed at the hearing that a demand for recognition was made by Youngdahl on
January 20, 1962.
On January 22, 1962, Youngdahl sent a letter to Burrow. In substance Young-
dahl wrote that the picketing was neither recognitional nor organizational, but in
protest of the unfair labor practices of the discriminatory discharge and refusal to
reinstate Mildred Bennett, a Town and Country Cafeteria employee, and Clora
Sadler, a downtown cafeteria employee, and in further protest of additional unfair
labor practices stated in charges filed with the Board that day. The unfair labor
practice cases involving Bennett and Sadler were disposed of in an informal settle-
ment agreement executed January 12, 1962. The additional practices to which
Youngdahl was referring are those alleged in the original charge in Case No.
26-CA-1212 filed on January 22, 1962. The Union alleged in this charge that
O Counsel for the Charging Party reoffered them without additional evidence, when
General Counsel rested, for the purpose of showing the period of the organizational activity
I sustained Respondent counsel's objection to their being received in evidence, but granted
the motion of Charging Party's counsel asking that they be placed in the file of rejected
exhibits.
10 As previously stated, supra, the meetings beginning with the one on December 2, 1961,
through January 19, 1962, were held in Labor Commissioner Thornbrough's office with
him acting as mediator. He was concerned with the settlement of the issues that closed
, down Respondent's large downtown operation.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent refused to bargain for the Town and Country Cafeteria , employees on
December 1, 1961, and discriminatorily discharged Cololsees Bowers, a Town and
Country employee, on January 14, 1962.
The letter also states that on December 1, 1961, a majority of employees at Town
and Country Cafeteria had demonstrated clearly they wished representation by the
Union, and that in spite of the demonstration, Respondent has refused to honor the
Union's demands to recognize it and bargain with it, and that this violation of the
law had never been remedied. It is readily admitted in the letter that the demands
were not pressed during negotiations for a contract for the downtown cafeterias. The
letter closes with a paragraph that the Union eagerly awaited information on a pro-
cedure calling back the employees at the downtown cafeterias who participated in
the strike. The union representatives met and otherwise communicated with Re-
spondent's representatives between January 20 and February 6, 8, and 9, 1962, with
respect to the reinstatement of employees at the Louisiana Avenue Cafeteria.
On March 10, 1962, the Union terminated the strike and picketing at Town and
Country Cafeteria. This was a unilateral action by the Union. The Board's original
complaint in Case No. 26-CA-1212, premised on the January 22, 1962, charge,
was issued on March 8, 1962, and the Union received its copy on March 9 or 10,
1962. The General Counsel and the Union, as Charging Party, contend that this
evidence shows a continuing refusal by Respondent to bargain from December 2,
1961, to January 20, 1962, and thereafter, and a willingness by the Union not to
strike or take other action in reprisal against the refusal during the negotiations for
the downtown cafeterias' contract, or to press for negotiations for a contract for
the Town and Country Cafeteria during that time. As stated above, Respondent
conceded that a demand for bargaining had been made by the Union on January 20,
1962. The question remains whether it was abandoned by the letter of January 22,
1962. It is undisputed that Respondent .has not engaged in any bargaining with the
Union with respect to Town and Country Cafeteria employees.
D. The alleged intimidation and threats of discharge and discriminatory discharge
of Cololsees Bowers
General Counsel offered testimony of alleged intimidation and threats by Re-
spondent to employees because of their union or concerted activity.
1. The intimidation and threats
Rufus Whitmore testified he worked at Town and Country Cafeteria in July,
August, and part of September, 1961. Before the strike, Harding asked him how
the employees in the dining room felt about the Union, and he replied he thought
that they were all pretty much for it, especially the employees at the downtown
cafeterias. Whitmore did not go on strike but kept working. This testimony was
unrebutted.
Verlon Williams testified that he was picketing with others at Town and Country
on the morning of December 2, 1961, about 6:45 a.m., and Harding approached the
picket line and said to him he looked perfectly silly with the picket sign on. He
also testified that she came back later that morning and said that she had called a
lawyer, and would give them just a few minutes to leave the premises. According
to him, he and the other pickets were picketing in the alley at the rear of the cafeteria,
which was a public right-of-way. Harding recalled talking to Williams, and be-
ginning by addressing him by his first name "Verlon," but could not recall what she
said to him. Verlon was reinstated after applying for reinstatement following the
strike.
Benjamin Williams, the brother of Verlon Williams, testified that Harding ap-
proached the picket line on December 2, 1961, and, after asking him if he was
Benjamin Williams-to which he said yes-and asking him if he was going to
work-to which he said no-said to him, "You know you are out of a job." Harding
denied she talked to him. Williams was reinstated after he applied for reinstatement
following the strike.
Employee William Carl Sumler testified he was on the picket line on December 2,
1961, at Town and Country Cafeteria, and Harding asked him if he was going "to
come in," and he replied "No," and Harding then said that he would be sorry.
Harding denied talking to him on December 2. Sumler applied for reinstatement
following the strike but was not reinstated. Vice President Lewis and Harding
claimed that there were less dishwasher jobs available than before the strike, and
that a job was not available for him. Harding testified she had a choice between
him and Benjamin Williams, another striker, and selected the latter because in her
opinion he was the better worker.
FRANKE'S, INC. 561
Employee Queen Mixon testified that on December 2, 1961 , she was sitting in her
car in the alley back of the cafeteria when it was being picketed , and Harding came
out and told her to come in to work , and that if she did not, she would be out of a
job. Employee Mixon applied for reinstatement after the strike , but when called
she could not work because she did not have her health card. Harding told her to
come back the following Monday with it, but she decided to keep the job where she
was working at the time.
Marcus L. Sutton, Jr., testified that in the middle of November 1961 he was
employed at the Heights Cafeteria, and at that time Gavin, whom he identified as
manager of the Heights Cafeteria, said to him, "If you don't stop fooling around with
this union mess you will come out like Clora Sadler and the girl out at Town and
Country." Respondent neither cross-examined Sutton nor offered rebuttal testimony.
2. The alleged discharge of Cololsees Bowers
Cololsees Bowers testified he was first employed by Manager Harding, Town
and Country Cafeteria, on January 6, 1962, and worked without a break for 3
days ending January 8. He was scheduled to work as a dishwasher but was put
to work as a busboy on January 6 and on Sunday, January 7. Harding complimented
him on his work and appeaiance. On Sunday, January 7, according to him, Minnie
Smith, in Harding's presence, asked him if he thought she should pay for turnip
greens that Harding said she spoiled and should pay for. He told her he would
think about it. When Harding stepped out of the room, Minnie Smith asked him
to walk out with her. Bowers stated that she said that to him because he would
talk to the employees telling them how wrong they were in holding the strikers'
jobs He testified he took the job during the strike because he needed the money,
and felt that was the reason the others were working. He testified that Harding
said to him on Sunday morning she heard he had been talking about the strikers,
that she did not want anything like that, to ignore them the next time they talked
to him, that the Company had not signed a contract with the Union, and was not
going to sign a contract . Bowers also testified regarding his Sunday employment that
Harding again complimented him about his work, and told him his busboy uniform
would be ready Monday at 10 a.m.
With respect to his Monday , January 8 , employment , Bowers testified that in the
morning he went to Harding and told her he had been talking to Business Agent
Yeargan , and felt that the employees should not be working under the conditions
existing at Town and Country. He stated he also made known to her how impor-
tant the Union was, and her reply was to go to work and not try to influence the
other employees. It was only 30 minutes later, according to Bowers, that he was
assigned to the diswashing machine, and he washed dishes "all evening." Bowers
said Harding told him to call in Tuesday, January 9, for work, that he called in
and talked to Tomlin as Harding was off. Mrs. Tomlin told him to call Wednesday
about noon.
Bowers testified he called in Wednesday at noon and was told by Harding that
he was not needed, but to come in Thursday, January 11. He worked all day Thurs-
day as a dishwasher. Harding told him his day off was Friday, but to call Saturday.
He called Saturday about noon. She said to wait to see how business was, and when he
called back she said he was not needed but to call Sunday. He called Sunday,
January 14, about noon . Harding told him to come out and work He arrived about
12.30. She told him to wait, and 2 or 3 minutes later she came back with Vice
President Lewis to the place where he was standing. Lewis asked if he was the
boy, and Harding said yes, and Lewis said to him that he heard he would not work.
that he should have been to work on Friday and Saturday and was not at work, and
as far as he was concerned he was through. Bowers testified he then said to Harding
that she had told him to be off Friday, that she hung her head and did not say any-
thing. He then walked away. Harding, said Bowers, then filled out a separation
form, stating therein he did not work Friday and Saturday and asked him to sign it.
but he refused. Bowers also testified that Harding told him he did not come to work
on time, and did not work on Friday and Saturday, and would not work, that he had
changed a lot. She also said he had misplaced two or three uniforms. He denied
they were misplaced.
Harding testified that Bowers was scheduled to report for work each day at 10 a.m.,
and was to be on hand each day unless he was telephoned and told not come in. She
testified that he did not report for work on Tuesday, January 9, probably on
account of a heavy snowfall that day, and did not work on Wednesday but called
in late in the day, and talked to Tomlin. He came to work on Thursday,+January 11,
at 12:30 p.m. although instructed to be at work by 10 am. Harding asked him
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if he did not know when he was to report for work , and he said he had car trouble,
and was just late . Friday was Bowers' day off. He did not apear for work at 10 a.m.
on Saturday , but called in at 12 : 30 or 1 o'clock . Harding asked him if he knew he
was to be at work at 10 a.m. He said he knew, and was trying to get there. She
told him to come to work. He never showed up or called . Although scheduled to
work on Sunday, January, 14, at 10 a.m., he called Harding between 12 and 1
o'clock. He said he would be there in a few minutes. He arrived shortly thereafter.
Mrs. Harding sent him home. She said to him that she could not depend on him.
She denied she discussed Bowers with Vice President Lewis. She said she did discuss
him with Vice President Franke. She asked Bowers to sign his separation form at
the place which was a receipt for the return of his health card , but the health card
could not be found , as he had never handed one in . According to Harding, there
was then no reason for his signing the separation form.
On cross-examination , Harding denied Bowers ever talked to her about how he felt
on crossing a picket line or about his feelings about the Union . She denied she
ever heard that Bowers talked to other employees . She testified that one morning
Tomlin told her the pickets were trying to stop Bowers from coming in . She sent
for him , and asked him if the pickets were trying to stop him from coming in, and
he told her that they told him it was wrong for him to come in and work. She
asked him if they threatened him and said for him to pass right by them and ignore
them, that they would not hurt him. According to Harding , Prentice Withers was
present, and she talked to him as well as Bowers . She testified that she made up
her mind to let him go on the spur of the moment because he did not come to
work. Harding also testified that Bowers worked part of the time washing dishes,
and helped with the dishwashing on Thursday . Respondent offered in evidence its
records to corroborate Harding's testimony that in a period of 7 working days,
Bowers worked January 6, 7, and 8 and part time on January 11, a total of 31/2
days, and reported for work late on January 11 and January 14, and did not work
on January 9, 10, and 13.
Vice President Lewis testified that he was in the office at the Town and Country
Cafeteria on January 14, 1962, about noon , when Harding was talking to a boy em-
ployee in the office. He overheard something about a health card. He had no
discussion with Harding about Bowers, and did not instruct her to fire him. Vice
President Franke testified that he discussed Bowers with Harding on Saturday,
January 13, when he was at the Town and Country Cafeteria about 11:30 a.m
Bowers had just called to say he would be a few minutes late. Harding said he was
scheduled to start work at 10 a.m. He denied he instructed Harding to discharge
Bowers.
Prentice Withers, who worked at the Town and Country Cafeteria from Decem-
ber 20, 1961 , until February 1, 1962, testified that he made known to Bowers
the job opening at Town and Country , that on Sunday, January 7, 1962, Bowers
stopped to talk to the pickets on the way to work , and later Harding asked him to
tell Bowers to see her, and when Bowers did so , he heard Harding speak to him about
his picket line conversation . He testified that she said she did not want him fooling
around the pickets , that they did not mean any good , and were a bad influence. He
also stated that when he started his employment, Harding said to him not to believe
anything the pickets said , that he had a job there as long as he wanted to work.
Withers testified that Bowers told him how badly he felt about working at Town and
Country Cafeteria with the pickets outside, and that Minnie Smith at the time of
the gritty turnip green incident told Bowers she was ready to walk out whenever
he said the word. Counsel for General Counsel did not disclose by testimony
whether Withers overheard Minnie talking to Bowers or whether she or Bowers
told him what she said. Withers also testified that when he and Bowers were leaving
on Monday evening Harding told him to call in about working Tuesday.
E. The alleged discriminatory refusal to reinstate
General Counsel contends that Respondent has refused to reinstate strikers Beatrice
Hill, Charlene Thomas, Lillie Carpenter , Dorothy Martin, and Linda Loftus, to the
same or substantially equivalent jobs at the Louisiana Avenue Cafeteria , and strikers
William Sumler and Gertrude Sitzler to the same or substantially equivalent jobs at
the Town and Country Cafeteria. General Counsel also contends that Respondent
has refused to place on a preferential hiring list for employment at the Louisiana
Avenue Cafeteria , strikers Bessie Williams, John Keirie , Annie Moore, Elton Virdon.
Dorothy Moore, Evelyn Wade, Mary Lois Cartwright , Curtis Lee Bryant and Francis
Henson , and from March 10, 1962, to about March 29, 1962 , refused to reinstate to
the same or substantially equivalent jobs at the Town and Country Cafeteria em-
FRANKE'S, INC. 563
ployees Mildred Bennett, Mattie Christopher, Willie May Henry, Theodore Jones,
Lucille Sherlee, Shedrick Thompson, Benjamin Williams, and Verlon Williams."
General Counsel finally contends that Alton Cryer should be placed on a preferential
hiring list for employment at the Town and Country Cafeteria.
The theory behind General Counsel's contentions is that the strikes were un-
fair labor practice strikes, and, therefore, Respondent is prevented from permanently
replacing them. Respondent, on the other hand, contends that the strikes were
economic strikes in support of bargaining demands for the downtown cafeterias, that
the employees not reinstated were permanently replaced, but in any event, opera-
tions were changed at the downtown cafe cafeterias and Town and Country Cafeteria
to the extent that the jobs of the strikers not reinstated were abolished. It also
answers that the strikers whom General Counsel contends were not reinstated have
been placed on call or on a preferential hiring list, that Elton Virdon was reinstated
about 2 weeks before the hearing, and that the reasons for not reinstating the eight
employees at Town and Country until March 29, 1962, following application for rein-
statement on March 10, was that the interval was necessary to terminate replace-
ments, select the strikers to be offered reinstatement, assign lockers, obtain and clean
uniforms, see that the returning employees had health cards, and perform other
necessary details.
1. The nature of the strike
General Counsel contends that the strike starting early in the morning of
December 2, 1961, at the four cafeterias of Respondent in Little Rock was an unfair
labor practice strike in protest of the unfair labor practices of Respondent's refusal
to bargain by unilaterally changing the procedure for granting leaves of absence and
by its discriminatory discharge of employee Clora Sadler on or about November 8,
1961 and discriminatory refusal to reinstate her on the same date, because of her un-
ion membership and activity. The alleged refusal to bargain is discussed supra, in
connection with the independent unfair labor practice charge of a refusal to bargain.
The alleged discriminatory discharge of and refusal to reinstate Clora Sadler is
discussed in the following paragraphs.
a. Clora Sadler
As previously found, supra, Clora Sadler went on leave on September 12, 1961, for
90 days' maternity leave to expire on December 4, 1961. The 90 days dated from
September 4, the date stated in her letter of August 26 to Vice President Lewis re-
questing the leave.
As previously found, supra, Respondent, the Union as Charging Party, and Gen-
eral Counsel entered into an informal settlement agreement disposing of separate
charges, not involved in this proceeding, alleging a discriminatory refusal to put
back to work Clora Sadler and Mildred Bennett. Bennett was employed at the
Town and Country Cafeteria. The charges were filed by the Union on December 1,
1961, and Respondent on December 2 offered to reinstate both Sadler and Bennett.
The Respondent, Charging Party, and a Board field examiner signed the agreement
on January 12, 1962, and the Regional Director approved it on January 16, 1962.
There were no findings of fact included in the settlement. Respondent contends that
it neither engaged in any illegal conduct with respect to either Sadler or Bennett, nor
made any admission it did so by entering into the settlement. Although General
Counsel alleged, and offered evidence in support of, misconduct against Sadler, it
neither alleged nor offered evidence of any illegal conduct against Bennett.
On or about November 1, 1961, Clora Sadler notified Lipton, the kitchen manager
at the downtown location, that she was ready to return to work. She had been on
maternity leave.12 Mrs. Lipton told her she did not have an opening for her but
would call her when she had one. Lipton testified that a replacement had been hired
for Sadler, and that the replacement was scheduled to leave in December 1961.
Sadler had applied for maternity leave until December 4, 1961.13
Clora Sadler went to the Louisiana Avenue Cafeteria on November 8, 1961, and
saw Lipton. According to Sadler, Lipton told her that she had intended to call her
back to work when one of the employees was burned, but Vice President Lewis told
11 They were reinstated on March 29, 1962.
12 See supra for prior events dealing with Sadler's leave.
13 Vice President Lewis testified that the policy was to put the employee back on the
payroll when an opening was available. The time between the request and being placed
on the payroll could be a day or longer depending on the opening up of a job the employee
could fill.
712-545-64-vol. 142-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her not to do so.14 During her visit to the cafeteria on November 8, Clora Sadler also
talked to Vice President Franke. He asked her how the baby was, and said he under-
stood she was ready to return to work, but that he did not have an opening. He fur-
ther said he would take her application to Lipton, and when she had an opening she
would probably call her.
Lipton testified that she considered hiring Clora Sadler for around Thanksgiving,
and went to Vice President Franke and asked him if she could hire her for that time
as then they were always "hard pressed," and he replied he could not hire any help
if he could get along without them. Isahna Wright was the only employee hired.
She was a part-time pot washer. She was called in "slightly prior to Thanksgiving"
and "worked three days." In Lipton's opinion, Clora Sadler was not in a condition
to wash pots, since she had shortly before given birth to a baby.
Clora Sadler engaged in the union activity that led to the Board election and the
Board certification on August 14, 1961. She was an observer for the Union at the
Board election on August 4, 1961. Vice President Franke testified that Respondent
had knowledge she was engaged in the organizational effort because of her presence at
the election as a union observer.
Robbie Harris, who worked as dumbwaiter operator, as did Clora Sadler before her
leave of absence starting September 12, 1961, testified that about 3 p.m. on Novem-
ber 9, 1961, the day following Clora's visit to the downtown cafeteria to see about
returning to work, she asked Tedford, whom she identified as a kitchen supervisor,15
why Isalina Wright had been hired, and Clora had not been hired back. According to
Robbie Harris, Tedford replied, "Because Mr. Lewis was probably mad because of
the union activities." She also testified that Velma Baker and Maudie Spears over-
heard this conversation.
Velma Baker, who worked at the downtown cafeteria as a dumbwaiter operator in
November 1961, testified that on November 9, 1961, in the afternoon she overheard a
conversation between Tedford and Robbie Harris in which the latter asked Tedford
"Why hasn't Clora come back to work and she said Mr. Lewis was mad at Clora
about these union activities and that is why she hasn't come back yet." Baker
testified she started work at 12 noon and left at 8 p.m
Maudie Spears, who was employed at the downtown cafeteria in November 1961,
testified that on a day in that month "about the time Clora was supposed to come
back" she overheard a conversation between Robbie Harris and Tedford. Spears
testified: "I thought they was making their plans for the evening. I do know Mrs.
Tedford said to one of the others, they said, well, Clora will be here to do something,
I didn't know what and Mrs Tedford made the remark that Clora would not be
back with the Company, that she had messed around with the Union until the
Company wasn't going to take her back, or something right in that order, and as
far as the time of day, I do not know that either. It was sometime between the
hours of noon and 1:30." She also testified that she was a baker in the cake de-
partment, and that the conversation took place close to her work station.
Mary Lucille Charles, who was employed in November at the downtown cafeteria,
testified that on the Wednesday before Thanksgiving, (November 29), Lipton,
kitchen manager, told her that they were calling Clora Sadler back to help her on
Friday (November 30), and when Clora failed to appear on Friday, she asked
Tedford where she was, and she said that Clora would not be in "because she was
messed up in something else." Inez Morrill Cates, who was employed at the
downtown cafeteria in November 1961, testified that on the Wednesday before
Thanksgiving she heard Lipton and Tedford tell Charles that they were going to
call on Clora Sadler to help her over the holidays. She also testified that when she
came to work on Friday at 12:45 p.m. she asked where Clora was and Tedford
said "They called her and she couldn't come in and then she called and wanted to
come in, and they wasn't going to let her because she was mixed up in something
else."
In rebuttal of the testimony of Robbie Harris and Velma Baker that about 3 p.m.
on November 9, Tedford said Clora Sadler would not be coming back because she
had displeased Vice President Lewis by engaging in union activities, Respondent
placed in evidence the timecards of Harris and Baker. The card of Velma Baker
is Vice President Franke and not Lewis had been in charge of personnel since Septem-
ber 10, 1961
15 There is no evidence as to whether Tedford was a supervisor within the meaning of
Section 2(11) of the Act, or was a speaking agent of Respondent. See N.L.R.B v. New
England Tank Car Industries, Inc., 302 F. 2d 273, 275 (C.A. 1). The evidence of record
shows that only Lipton, the kitchen manager, engaged in the conduct that is the Indicia of
a supervisor within the meaning of the Act.
FRANKE'S, INC. 565
shows that she worked on November 9 from 6:20 a.m. to shortly after 10:30 a.m.,
from 11 a.m. to shortly after 1:30 p.m., when she left for the day. The card of
Robbie Harris shows that she worked on November 9 from 12 o'clock noon until
2:30 p.m. from 3:30 p.m. until 7 p.m., and from 7:20 p.m. until shortly after 8:20
p in. Vice President Lewis testified that he did not say anything to indicate he was
displeased with Sadler. Vice President Franke testified that the two women who
went on leaves of absence about the time Clora Sadler did were treated exactly the
same way she was.16
b. General Counsel's other evidence of an unfair labor practice strike
General Counsel also offered testimony through Yeargan and Joseph Taylor,
a member of the Union, as to what Yeargan said to the union members on the evening
of December 1, 1961, at a union meeting in the Union's labor temple. Yeargan
testified he told the assembled union members that Respondent had consistently
committed unfair labor practices. It had refused to take Clora Sadler and Mildred
Bennett back to work; refused, after he made repeated requests, "not to let certain
people come to the bargaining table"; and that it appeared to him that the only
protection the employees had was to strike. A strike vote was immediately taken
and the members unanimously voted to strike. Taylor testified that Yeargan said
Respondent "had refused to take Mildred Bennett back and Clora Sadler back, and
said we would put it to a vote whether or not the union would go out on strike, so
he did, and we all voted to go out." As found supra, General Counsel offered
evidence regarding Sadler, none regarding Bennett, and offered evidence only with
respect to one other alleged unfair labor practice, namely, a refusal to bargain by
unilaterally changing its procedure for granting leaves of absence, supra.
General Counsel contends that the unfair labor practice strike continued at the
Town and Country Cafeteria after January 19, 1962, when the collective-bargaining
contract was executed for the downtown cafeterias and the pickets were removed
from the Louisiana Avenue Cafeteria, the one downtown cafeteria operating, in
protest against the unfair labor practices of Respondent's refusal to bargain for
employees of the Town and Country Cafeteria, of acts of intimidation, threats, and
coercion, and the discriminatory discharge of Cololsees Bowers on January 14, 1962.
The Union charged Respondent with these unfair labor practices in a charge filed
January 22, 1962.
The discharge of Cololsees Bowers is discussed supra. Specific acts of intimida-
tion and threats which were disclosed for the first time in the amended and consoli-
dated complaint dated April 11, 1962, are discussed, supra. Also discussed supra,
is the alleged refusal to bargain by Respondent for the employees of the Town and
Country Cafeteria.
c. Respondent's defense to the claim of an unfair labor practice strike
As seen supra, Respondent joins issue with General Counsel on his conten-
tions of discriminatory discharge and refusal to reinstate Clora Sadler and Colol-
sees Bowers, of refusing to bargain by unilaterally changing procedure for granting
leaves of absence, by refusing to recognize and bargain with Respondent as bargain-
ing agent for its employees at the Town and Country Cafeteria, and of intimidating
and threatening employees with respect to their union or other concerted activity.
In further rebuttal of General Counsel's case, Respondent also offered evidence
of what transpired in the last bargaining conference before the strike, which was
on November 29, 1961, in bargaining conferences following the beginning of the
strike, and in communications between Union and Respondent after the strike was
ended on January 19, 1962, at the downtown cafeterias, but was continued at the
Town and Country Cafeteria. The evidence of the communications between the
parties after January 19 1962, is set out supra.
In the cross-examination by Respondent of Harold L. Kensinger, International
representative of the International union, with which the Union is affiliated, and
who bargained for the Union, Respondent obtained the admission that the "gist"
of Kensinger's final remarks at the bargaining session on November 29, 1961, were:
... there is no use negotiating further on this contract if there is no check-off
acceptable to the company ... the International feels it is essential to sanction
a strike on the check-off. We can wrap this contract up fast if we can agree
on the check-off . . . the discharge provisions and the arbitration must also be
19 In disposing of this credibility issue, infra, section III, F, 4, the absence from Respond-
ent's conduct relating to the downtown cafeterias of any indication of union animus is
considered.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settled. The union and the International insist on arbitration machinery in the
agreement or we will have a strike.'
Vice President Lewis testified for Respondent that at the bargaining session on
November 29, the matters discussed were the Union's economic demands of checkoff
of union dues and arbitration of all discharges. He also testified that no mention
was made of Clora Sadler or Mildred Bennett at the bargaining session on Novem-
ber 29 or prior bargaining sessions . This testimony is corroborated by that of Vice
President Franke. Kensinger's testimony is devoid of any indication that any ref-
erence was made to Sadler or Bennett on November 29. Business Representative
Yeargan claimed that a reference was made to Sadler and Bennett at one or two
sessions prior to the strike. The testimony was a mere conclusionary statement.
Yeargan gave no testimony as to the reference made, when said or in what circum-
stances or context it was made.
d. Other evidence dealing with the alleged unfair labor practice strike
As found supra, when the Union struck Respondent's four Little Rock cafeterias
on December 2, 1961, the bargaining session that afternoon was held in the office
of Arkansas' Labor Commissioner Thornbrough who acted as mediator. Kensinger,
the Union's bargaining representative, in addition to the economic demands for the
downtown cafeterias, and the demand for recognition and bargainig for Town and
Country Cafeteria, employees charged Respondent with refusing to put Sadler and
Bennett to work because of their union activity. It is undisputed that in the same
bargaining conference Respondent immediately offered to put Sadler and Bennett
back to work.
2. The reinstatement
a. At Louisiana Avenue Cafeteria
As stated supra, 98 employees at the downtown cafeterias went on strike on
December 2, 1961. When the strike at these cafeterias ended on January 19, 1962,
91 strikers asked for reinstatement. On January 23, 1962, Respondent furnished the
Union with a list of 43 strikers it would take back. The Louisiana Avenue Cafeteria
was the only downtown cafeteria being operated. Respondent had decided not to
reopen the Capitol Avenue Cafeteria. It had been closed on December 2 when the
strike began. The reduced operation did not require the same number of employees
as were required prior to the strike. The Union agreed that only 43 jobs were avail-
able. These 43 jobs were filled by replacements during the strike. The replace-
ments and the employees who stayed on and did not strike ran the Louisiana Avenue
Cafeteria. Approximately 39 stayed on the job. After the strike ended downtown,
the 43 replacements were let go, and the jobs they held were given to the strikers.
General Counsel contends that two pot washers, Beatrice Hill and Charlene Thomas,
and baker's helper Lillie Carpenter, salad girl Dorothy Martin, and waitress Linda
Loftus have been discriminatorily denied reinstatement. As previously stated, Re-
spondent contends that they were economic strikers and were permanently replaced,
or in any event that their jobs were no longer available due to a reduced operation
and improvement in operation efficiency. Respondent argues that the evidence
that R. E. Eubanks, former union steward, and Joseph Taylor, present union steward,
were in the first group of reinstated employees, shows the absence of discriminatory
motive or object in not reinstating the pot washers as well as the other three em-
ployees that General Counsel alleges were illegally denied reinstatement.
Prior to the strike, Respondent employed three regular pot washers and one relief
pot washer in the kitchen for the downtown cafeterias. They were women. The
four jobholders went on strike on December 2. Respondent replaced them with
other women, and after the strike with three male strikers, and then with the present
two male dishwashers and a relief female dishwasher. Vice President Lewis and
Lipton, kitchen manager of the Louisiana Avenue Cafeteria, both testified that the
work was heavy work requiring the lifting of 20-gallon pots and large roasting pans
and that such lifting could be done better by men. They also testified that the dish-
washers helped with other heavy kitchen work such as emptying garbage containers,
and lifting containers heavy with contents of food products and other materials.
Lipton also testified that the change from female to male dishwashers had been con-
templated as far back as 2 years before the strike. According to Lewis, the women
pot washers, Hill, Moore, Thomas and Cartwright, are on a preferential hiring list.
14 It has been found supra that Respondent and the Union began bargaining on August 21,
1961, for the unit of employees at the downtown cafeterias, pursuant to the Union's re-
quest of August 20, 1961.
FRANKE'S, INC. 567
General Counsel argued that since the mechanical equipment remained the same the
women dishwashers should have been returned to their jobs. He also contends that
the part-time female pot washer shows that female pot washers can do the work.
General Counsel contends that Lillie Carpenter, who made pastries and cobblers
and did odd jobs such as vegetable preparation, should have been reinstated because
of her seniority. Vice President Lewis testified that before the strike there were nine
employees in her department, and during the strike the nine jobs were reduced to
five jobs by the introduction of more efficient methods. He testified that one method
was to hire a professional male piebaker by the name of Brazzel who could and did
the work of three female pastry cooks. His testimony was that Carpenter had less
seniority than the strikers taken back with the exception of Howard. Howard was
reinstated to do cake baking. Lillie Carpenter had no cake baking experience. Lip-
ton, kitchen manager of the downtown cafeterias, testified that sometime before the
strike Carpenter had been transferred from making pastries and cobblers to preparing
vegetables and working on the elevator because she was slow in baking work.
General Counsel contends that Dorothy Martin should have been reinstated as a
waitress in the coffeeshop. She had been employed in the kitchen as a saladmaker
and had had no experience as a waitress . The number of jobs were reduced in her
department and she had less seniority than the strikers taken back for this work.
Respondent also offered evidence showing that she had an arm that was permanently
stiff at the elbow joint . This condition has limited her use of the arm and the manner
in which she can hold it . Respondent contends that this alone makes her incapable
of handling trays and otherwise serving the public as a waitress.
Then there is General Counsel's contention that Linda Loftus should have been
rehired on February 6, 7, or 8, 1962, as a full-time waitress. She was first employed
as a coffeeshop waitress or counter girl, but left September 30, 1961 , and was rehired
on December 6, 1961, as a replacement. During the period from September 30 to
December 6 she was on part-time call and was not needed during that period. From
December 6 to December 26, 1961, when she joined the strikers, she was classified
as a coffeeshop counter girl. At the end of the strike, she had insufficient
seniority to entitle her to reinstatement as a full -time counter girl. As a result, she
has been placed on a "part-time waitress on call" classification consistent with her
classification before the strike. This status was given her upon agreement with
Business Representative Yeargan.
The evidence also shows that before the strike Elton Virdon was a pot washer and
irregularly worked on the dumbwaiter and as a busboy. He applied for reinstatement
on January 20, 1962. He was reemployed about the middle of April 1962, to go on
duty May 2, 1962, as a dishwasher. Two employees, Odell Harris and Jackie
Williams, nonstriking employees, complained to Lewis during the strike that Virden
threatened them with bodily harm. On this complaint, Lewis did not reinstate him
in January 1962. He was reinstated by agreement with Business Representative
Yeargan, and on his representation or that of an associate that Virdon was under
bad influence during the strike. Respondent's testimony is that those not hired
are on a preferential hiring list.
b. Reinstatement at Town and Country Cafeteria
When the strike ended at Town and Country on March 10, 1962, 13
employees applied for reinstatement . On March 22, 1962, Respondent by telegram
offered to rehire 9 of the 13 who applied. Respondent reinstated Frank Burch
on March 19. By March 29, 1962, Respondent reinstated the nine named in the
telegrams with the exception of Queen Mixon. General Counsel does not contend
she has been discriminatorily refused" reinstatement.ls He does contend that Re-
spondent has discriminatorily refused to reinstate William Sumler and Gertrude
Sitzler, and refused to place Alton Cryer on a preferential hiring list. Respondent
has placed them (Sumler, Sitzler, and Cryer) on a preferential hiring list.
The Union agreed with Respondent at the time of the March 22 offer to reinstate
that only 10 jobs were available for the 13 applicants for reinstatement In regard
to the testimony that Respondent discriminatorily refused to reinstate William Sumler,
the evidence shows that after the strike there were two dishwashing jobs. Sam Baker
had held one of them from on or about the beginning of February 1962. He was
originally an employee of the Heights Cafeteria, and then worked at the Louisiana
Avenue Cafeteria as a replacement from the time the Heights was closed until the
strikers were reinstated at Louisiana. He was then hired as a replacement at Town
and Country. The strike continued there until March 10, 1962. Harding selected
19 As stated supra, she decided she did not want reinstatement
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benjamin Williams, a striker, in preference to Sumler, also a striker, for the other
dishwashing job. She testified that at the time she selected Williams she had the
opinion he would make the better worker although there was not much choice between
them.
Prior to the strike, Gertrude Sitzler was a salad girl in the kitchen at Town and
Country. She would take considerable time off "because of illness in her family,
children, or because of her church activities, because she wanted to be home with
the family." Respondent had a Mrs. Cunningham who worked part time and she
filled in for Sitzler. Then another salad girl went on social security and now works
only part time. Cunningham works the time that this salad girl does not work since
she went on social security. As a result, Respondent needed a salad girl who could
be expected to work full time in the job Gertrude Sitzler held.
Alton Cryer was a busboy working part time prior to the strike. He worked from
4 p.m. until closing each day which is 8:30 to 9 p.m. in the winter and 7:30 p.m.
the rest of the year. He wished to work only that time. During the strike, Respond-
ent had a busboy who had begun work at 8 a.m. to begin at 10 a in. and stay longer
in the evening. With this additional help, a busboy for part-time work in the
evening was no longer required . Cryer is on a preferential hiring list Benjamin
Williams is the only part-time employee working since the strike. He was on full
time prior to the strike. There are no replacements hired during the strike that are
working in the bus department.
F. Analyses and concluding findings
Premised on the above evidentiary findings, I make the following findings and
conclusions:
1. Refusal to bargain
Respondent did not refuse to bargain' when it unilaterally changed its procedure
for granting leaves of absence . The employees had an interest in the leave but
not the procedure for granting it. Whether its agents or representatives at the
executive level or at a lower supervisory level granted or denied it, it was the
Respondent acting. When an employee was denied the leave contrary to Respond-
ent's leave policy the employee was equally aggrieved regardless at what level it
was denied. And when the employee was granted the leave, the favorable action
as far as the employee was concerned was the same whether it was granted by an
executive or a lower echelon supervisor. The right to decide the procedure for
granting leaves of absence is a management prerogative, absent making it a voluntary
subject of bargaming.19
Respondent did not refuse to bargain with the Union on January 20, 1962, for a
unit of employees at Town and Country Cafeteria, in violation of Section 8(a) (5)
of the Act. The Union demanded recognition and collective bargaining on Decem-
ber 2, 1961, but laid aside its demands on December 5, 1961, and then renewed
its demands on January 20, 1962. The Respondent refused to recognize or bargain
with the Union. The evidencedisclosed that its refusal was premised on the position
that the Union did not represent a majority of employees in the unit The Respond-
ent "made no effort to learn the facts [as to the Union's majority status] and took
the chance of what they might be." 20 The Union stands or falls on the position
that it demonstrated a majority representation by, the number of employees on strike
on December 2, 1961, at the Town and Country Cafeteria. I conclude and find that
the evidence does not disclose that the Union represented a majority of employees
in the appropriate unit at Town and Country Cafeteria on December 2, 1961, or on
January 20, 1962, when the demand for recognition and bargaining was reactivated
upon the signing of a contract for the downtown cafeterias. I recognize that a
majority may be demonstrated by the number of employees on strike. In the cases
cited by General Counsel to support this position, it was clear from the evidence
that a majority of employees were on strike. Such is not the case here. The doubt
as to a majority is greater in connection with the date of January 20, as the evidence
shows that two striking employees permanently left the area, and could have left
before that date.
Respondent refused to bargain when on September 14, 1961, it unilaterally changed
its policy with respect to the status a worker had as an employee when on maternity
leave or other leave of absence. Employee status during a leave of absence was an
19 N L R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S 342, 348-349
20 N.L.R B. v. Remington Rand, Inc, 94 F. 2d 862, 869 (C A. 2), cert denied 304 U S.
576 and 304 U.S 585.
FRANKE'S, INC. 569
interest which the employees had., The Union was the certified collective-bargaining
representative, and had a right to notice of the proposed change and an opportunity
to discuss it with Respondent before it was placed in effect 21 This unilateral action
is not alleged as a violation of Section 8(a) (5) in the amended and consolidated com-
plaint, but it has been sufficiently litigated to warrant a recommendation that it be
enjoined.22
2. Discriminatory discharge of Bowers
Employee Cololsees Bowers was not discriminatorily discharged in violation of Sec-
tion 8(a) (3) and (1) of the Act, but was discharged for failing to report for work and
for reporting late for work. The issue is one of credibility, and I find from evaluation
of the testimony of Bowers and Manager Harding of the Town and Country Cafeteria,
and the demeanor of each of them on the witness stand, that Harding was the more
credible witness.
3. Interference with, restraint, and coercion of employees
Manager Harding, in violation of Section 8(a) (1) of the Act, intimidated and
coerced employee Verlon Williams and other employees of Town and Country
Cafeteria on December 2, 1961, when they were on the picket line. The testimony of
Williams as to Harding's conduct was left unrebutted by Respondent's witnesses.
Harding testified she could not recall what she said. Manager Harding violated
Section 8(a) (1) of the Act on December 2, 1961, by telling employee William Sumler
that he would be sorry when he elected not to return to work, and telling employee
Benjamin Williams and employee Queen Mixon that they were out of a job when they
elected not to return to work. It could be argued that she was merely asking them to
return to work because they were needed, and would have to replace them if they did
not do so. She had a right to permanently replace them as the strike was economic
as I find. However, in view of her other conduct at the picket line, her statements
could be reasonably calculated to mean that if they did not cease their union activity
they would be discharged. In an 8(a) (1) violation, motive is immaterial. To be free
of coercive conduct, Harding could have stated. to the employees that she needed
them and would have to permanently replace them if they did not return to work.
I find that Gavin, the manager of the Heights Cafeteria, in violation of Section
8(a) (1) of the Act, threatened employee Sutton about the middle of November 1961
with discharge if he engaged in union activity. She said that he would receive the
same treatment that Clora Sadler and Mildred Bennett received. While I do not
consider this statement by Gavin as evidence of discriminatory treatment of Sadler and
Bennett, it is apparent from the statement that she was threatening Sutton with
discharge if he engaged in union activity. Apparently, it was known that Clora
Sadler had asked to be returned to her job in the first part of November and had not
been taken back. There is no evidence of record which would warrant charging
Respondent with discriminatory conduct on Gavin's statement. It could have been
based on sheer hearsay or rumor. As the manager of the Heights Cafeteria, she
cannot be considered as being per se in the position of knowing what action Respond-
ent had taken with respect to employees of the downtown cafeterias and the Town
and Country Cafeteria
4. Discriminatory refusal to reinstate strikers
The strike called by Respondent on December 2, 1961, at all of Respondent's
cafeterias in Little Rock, Arkansas, was an economic strike and not an unfair labor
practice strike. The evidence offered by General Counsel does not support the un-
fair labor practice strike allegation. It does not disclose a constructive discharge of
Clora Sadler on November 8, 1961, or a discriminatory refusal to reinstate her on
that date. Between August 26 and September 1, 1961, Sadler had made a written
request for a leave of absence to be effective from September 4 to December 4,
1961. It was granted orally by Lipton, the kitchen manager. Vice President Franke
informed her by letter dated September 14 that her leave of absence was denied
insofar as she retained status as an employee during the leave. A substitute was
hired to take her place until the early part of December. She asked to be put back to
work November 1 and 8, 1961, and was told on each of those dates she would be
put to work as soon as there was an opening. This was consistent with Respondent's
policy. She was offered a job on December 2, 1961.
21 N L R B. v. Benne Katz, etc. d/b/a Williamsburg Steel Products Co , 369 U S 736
22 It is clear from the record, however, that this conduct did not influence the Union to
strike on December 2, 1961
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not credit General Counsel's witnesses with respect to their testimony that
Tedford , a kitchen supervisor , told employees that Clora Sadler had displeased Vice
President Lewis because of her union activity and she was not going to be rehired.
Robbie Harris, the employee to whom Tedford allegedly spoke , and testified the
conversation took place , was not working at 3 p .m. when she testified the conversa-
tion took place. Velma Baker who corroborated Harris' testimony was likewise not
working at 3 p.m. Maudie Spears, the other corroborator , testified that she overheard
the conversation between the noon hours of 12 and 1 : 30, and not when it allegedly
took place . Harris, Baker, and Spears testified that it took place on November 9
and two others testified it took place the day after Thanksgiving . If it occurred the
day after Thanksgiving , as the second group testified , it could not have occurred on
November 9, when Harris , to whom Tedford allegedly spoke , testified it took place.
Vice President Lewis denied he said anything to Lipton or Tedford about being dis-
pleased by Sadler 's union activity . Lipton and Vice President Franke both testified
that Franke told Lipton before Thanksgiving that no one was to be hired for the
Thanksgiving period unless it was necessary to do so . One person , Isalina Wright,
was hired as a pot washer for a few days. Sadler could not have done this work,
having just had a baby . The work required the lifting and washing of 20 -gallon pots.
The evidence also shows that two other female employees went on leaves of absence
the same time as Sadler and were accorded the same treatment that Sadler received.
The willingness of Respondent to bargain with the Union and the good faith
negotiations it held with it contradict the evidence of discriminatory action against
Sadler by Respondent . The Union had won the election , was certified by the Board,
and Respondent had bargained with it since August 21. Any reprisals against Sadler
in November for being a union observer at the election in August could not hurt the
Union , but, on the other hand , could only serve to bring sanctions under the Act
against Respondent , and weaken its position at the bargaining table. - Respondent's
representatives do not appear to be so foolhardy as to have engaged in an effort so
obviously harmful to Respondent.
In any event , the record is silent as to evidence that Tedford , a kitchen super-
visor, whose statements allegedly disclose a hostile animus by Respondent toward
Sadler, was at the time a supervisor within the meaning of the Act, or had any other
indicia of authority , confidence , or responsibility that made her a speaking agent
of Respondent whose conduct charged Respondent with liability under the Act.
As stated supra, the evidence disclosed Lipton , the kitchen manager, to be the only
one in the kitchen who qualified as a supervisor within the meaning of the Act at
the time of the conduct " in issue . The kitchen manager and Vice President Franke
exercised supervisory control over the kitchen employees, such as hiring and firing,
that Section 2 (11) of the Act contemplates.23
Neither is the charge of an unfair labor strike starting on December 2, 1961, sup-
ported by other evidence on which General Counsel relies , namely, the evidence of
Respondent's unilateral change on September 11, 1961 , of its procedure for granting
leaves of absence . I have found the changing of this procedure to be a management
prerogative and not something that the Union has a right to participate in, absent
Respondent voluntarily making it a bargainable subject . Moreover , the evidence
of the bargaining on November 29, 1961 , especially the warnings of a strike given
by the Union's bargaining representative , if Respondent did not concede to its de-
mands for a checkoff and arbitration show the strike was economic . November 29
was the last bargaining date before the strike . In addition , the first time the union
representatives referred to discriminatory treatment of Sadler was at the bargaining
session in the afternoon of December 2, hours after the strike was started, and 3
weeks after the alleged discriminatory treatment occurred.
The continuation of the strike at the Town and Country Cafeteria from January 20
to March 10 , 1962 , was not an unfair labor practice strike. General Counsel claims
that the Union continued the strike because of the discriminatory discharge of
Clora Sadler , and because of the discriminatory discharge of Cololsees Bowers on
January 14, 1962, and threats and other coercive acts which I have found violated
Section 8 (a)(1) of the Act . There is no evidence to support the allegation of a
discriminatory discharge of Clora Sadler , and I have so found . In any event, on
January 12, 1962, Respondent voluntarily entered into an informal settlement with
the General Counsel of the charge that it discriminated against Sadler. So this
matter was moot 8 days prior to January 20 1962. Nor is there any evidence to
support a discriminatory discharge of Cololsees Bowers, and I have so found The
record will not support a finding that the Union continued the strike after January 20,
1962 , for the minor misconduct I have found violated Section 8 ( a)(1), since it
28See Northern Virginia Steel Corporation, 132 NLRB 714 , 715, enfd 300 F 2d 168
(C.A. 4)
FRANKE'S, INC. 571
shows that the public interest in Little Rock, Arkansas, as evidenced by the par-
ticipation of the Arkansas State Labor Commissioner in the bargaining sessions after
December 2, 1961, sought to bring to an end Respondent's strike action. Moreover,
the evidence of the Union's letter of January 22, 1962, and the statements of Union
Representatives Yeargan and Youngdahl disclose that the strike was pressure on
Respondent to reinstate all the strikers and not continue replacements in its employ
at the strikers' expense.
Although the strike was economic and not an unfair labor practice strike, Respond-
ent terminated the replacements at the Louisiana Avenue Cafeteria, the only down-
town cafeteria in operation, when the strike ended there, and reinstated strikers in
their jobs. Only 43 jobs were available to 91 strikers because of the closing down
of the Capitol Avenue Cafeteria. The evidence does not show that it was for dis-
criminatory reasons that Respondent failed to reinstate strikers Beatrice Hill and
Charlene Thomas in the pot washing department, Lillie Carpenter as a pastry cook,
Dorothy Martin as a salad girl, and Linda Loftus as a counter girl. As stated, all
replacements were terminated and strikers placed in their jobs. The union steward
for the unit at the time of reinstatement and the former union steward were among
the strikers taken back. Respondent's history of bargaining with the Union from
the time of the certification until a contract was executed and during the prior
period of organizational activity is clear of any conduct illegal within the meaning
of the Act. The evidence shows that Respondent did not reinstate the five strikers
named above because the jobs were no longer available as a result of the reduced
operation and an improvement in working efficiency. The evidence also shows
that these five employees were placed on a preferential hiring list. In addition, the
other nine employees allegedly denied places on a preferential hiring list were
placed on such a list.
Respondent did not discriminatorily deny William Sumler and Gertrude Sitzler
reinstatement and discriminatorily refuse to place Alton Cryer on a preferential
hiring list with respect to employment at the Town and Country Cafeteria. Jobs
were not available for Sitzler, Sumler and Cryer, because one permanent replace-
ment had been hired, and there were two less jobs because of improvement in
working efficiency. All three were placed on a preferential hiring list. I finally
conclude and find.that Respondent did not commit any violation of the Act in not
reinstating the eight economic strikers, Bennett, Christopher, Henry, Jones, Sherlee,
Thompson, Verlon Williams, and Benjamin Williams, between the time they applied
for reinstatement on or about March 10 to 29, 1962. I credit Respondent's defense
that this delay was caused by the necessity of terminating replacements, selecting
strikers to be offered reinstatement, assign lockers, obtain and clean uniforms, and
see that the returning employees had health cards, and perform other details. The
strike was for economic reasons and not because of unfair labor practices.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent coerced and threatened employees with respect
to their union activities and other concerted activity in violation of Section 8 (a) (1)
of the Act, and refused to bargain in violation of Section 8(a)(5) of the Act by
failing to give notice to the Union and to negotiate with it before placing in effect
a change in policy dealing with the status a worker had as an employee when on
leave of absence, I shall recommend that Respondent cease and desist from engaging
in such conduct and take certain affirmative action designed to effectuate the policies
of the Act. I shall also recommend that the allegations of the amended and con-
solidated complaint charging Respondent with other violations of the Act be
dismissed.
Upon the foregoing findings of fact, and upon the entire record, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By coercing and threatening employees with respect to their union or other
concerted activity, the Respondent violated Section 8(a)(1) of the Act.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By refusing to give notice to the Union and negotiating with it before placing
in effect a change in policy dealing with the status a worker had as an employee while
on a leave of absence, Respondent violated Section 8 (a)(5) of the Act.
5. Respondent did not violate the Aut by other conduct alleged as illegal in the
amended and consolidated complaint.
6. The foregoing 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 foregoing findings of fact and conclusions of law, I recommend that the
Respondent, Franke's, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercing and threatening employees in connection with union or other con-
certed activity in violation of Section 8(a) (1) of the Act.
(b) Refusing to bargain with the Union as the collective-bargaining representative
of an appropriate unit of employees at its Louisiana Avenue, Little Rock, Arkansas,
cafeteria, by failing to give notice to the Union and negotiating with it, before plac-
ing in effect a change in policy dealing with the status a worker has as an employee
when on a leave of absence.
(c) Engaging in like or related conduct.
2. Take the following affirmative action which I find will effectuate the purposes of
the Act:
(a) Bargain collectively with the Hotel-Motel, Restaurant Employees Union Local
No 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-
CIO, as the certified exclusive representative of Respondent's employees in the ap-
propriate unit at its cafeteria on Louisiana Avenue, Little Rock, Arkansas, by giving
notice to the Union of a change in policy dealing with the status a worker has as an
employee while on leave of absence and offer to negotiate regarding it, before placing
it in effect.
(b) Post at the cafeterias Respondent operates at Louisiana Avenue, and at the
intersection of Asher and South University Avenues, Little Rock, Arkansas, copies of
the attached notice marked "Appendix." Copies of said notice, to be furnished by the
Regional Director of the Twenty-sixth Region of the National Labor Relations Board,
shall, after being signed by a duly authorized representative of the Respondent, be
posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous place, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered by any other material 24
(c) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps the Respondent has
taken to comply therewith 25
It is further recommended that unless on or before 20 days from the date of the
receipt of this Intermediate Report and Recommended Order, the Respondent notify
the said Regional Director, in writing, that it will comply with the foregoing Recom-
mended Order, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
And it is further recommended that the Board dismiss the allegations of- the amended
and consolidated complaint insofar as they refer to conduct other than the conduct
found to be violations of the Act.
24 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is 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."
2G In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read* "Notify the Regional Director for the Twenty-sixth Region, in
writing, within 10 days from the date of this Order, what steps the Respondent has taken
to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
REALIST, INC. 573
WE WILL NOT refuse to bargain with the Hotel -Motel , Restaurant Employees
Union Local No. 200, Hotel and Restaurant Employees and Bartenders Inter-
national Union , AFL-CIO, the certified collective-bargaining representative
of our employees at our cafeteria on Louisiana Avenue, Little Rock, Arkansas,
by failing to give it notice of a change in policy dealing with the status a worker
has as an employee when on a leave of absence, or by failing to offer to negotiate
with this Union regarding it, before placing it in effect.
WE WILL NOT intimidate employees or threaten them with discharge when
they are engaged in union or other concerted activity or because of such activity.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights to engage in union or other concerted activities for
the purpose of collective bargaining or other mutual aid or protection.
All our employees are free to become , remain , or refrain from becoming or remain-
ing members of the Hotel -Motel , Restaurant Employees Union Local No. 200, Hotel
an I Restaurant Employees and Bartenders International Union, AFL-CIO.
FRANRE'S, INC.,
Employer.
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, Seventh
Floor Falls Building, 22 North Front Street, Memphis, . Tennessee, 38103, Telephone
No. Jackson 7-5451, if they have any question concerning this notice or compliance
with its provisions.
Realist, Inc. and International Union , Allied Industrial Work-
ers of America, AFL-CIO . Case No. 18-CA-1546. May 13, 1963
DECISION AND ORDER
On March 26, 1963, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding , finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Intermediate Report. Thereafter,
the Respondent filed exceptions to the Intermediate Report and a
supporting brief.
Pursuant to the,provjsions 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 of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the Respondent's exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
142 NLRB No. 66.