Gino Morena Enterprises

National Labor Relations Board - Board DecisionsFeb 29, 1988

287 N.L.R.B. 1327 (N.L.R.B. 1988)

GINO MORENA ENTERPRISES 1327 Gino Morena , d/b/a Gino Morena Enterprises and United Food and Commercial Workers Union, Local 204, affiliated with United Food and Commercial Workers International Union, AFL-CIO, CLC. Case 11-CA-11328 29 February 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, BABSON, AND CRACRAFT On 21 November 1984 Administrative Law Judge Lawrence W. Cullen issued the attached de- cision. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an an- swering brief, cross-exceptions , and a supporting brief. The General Counsel filed an answering brief to the Respondent's cross-exceptions. The Board has considered the decision and the record in light of the exceptions' and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 and to adopt the recommended Order as modified.4 I The Respondent has excepted to some of the judge 's credibility find- ings. The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 The judge inadvertently found that Tennant instead of Kee was a su- pervisor and/or managerial employee under the Act. This inadvertence does not affect our decision. 3 The General Counsel excepted to the judge 's failure to find that the Respondent violated Sec . 8(a)(1) and (3) of the Act by discharging and failing to rehire Supervisor Shirley Kee . The General Counsel contends that the judge 's determination that Kee was a supervisor did not resolve whether she was discriminatorily discharged , and that Kee was refused reemployment as a beautician because of her union activities. The Gener- al Counsel relies on the Board ' s holdings in Senftner Volkswagen Corp., 257 NLRB 178, 185 (1981), and B.E. & K Inc., 260 NLRB 574, 581-582 (1982). We find these cases inapposite . In those cases discharged supervi- sors were denied reemployment as employees because they had previous- ly engaged in protected activities as employees , not as supervisors. It is established law that an employer may deny reemployment as a rank-and- file worker to an employee who , during the time when he had superviso- ry status , engaged in prounion activity . Pierce Industries , 129 NLRB 196, 198 (1960). Therefore , the judge correctly found that Kee was not pro- tected by the Act , and assuming arguendo that she was discharged be- cause of her union activities , her discharge was not unlawful . Parker- Robb Chevrolet , 262 NLRB 402 ( 1982), petition for review denied sub nom. Automobile Salemen's Local 1095 v. NLRB, 711 F.2d 383 (D.C. Cir. 1983). In adopting the judge 's finding that the Respondent engaged in unlaw- ful interrogation in violation of Sec. 8(a)(1) of the Act , we do not find that the record supports a finding that employees Virginia McKenzie and Rhea Whittaker were unlawfully interrogated. The Respondent did, how- ever, unlawfully interrogate Sonya Tennant . Regional Manager Jim Sarvis told Tennant, "I hear that you want to join the Union." Then after threatening Tennant with job loss and reduced working hours , Sarvis asked her whether she still wanted to join the Union. 4 We have modified the judge' s recommended Order to include the narrow remedial order language which was inadvertently omitted. Fur- ther, we have modified his posting paragraph to include the language tra- ditionally used by the Board. The judge found, and we agree, that the Re- spondent violated Section 8(a)(1) of the Act by threatening its employees with loss of their jobs. In finding the violation, the judge credited the testi- mony of employee Sonya Tennant concerning comments directed to her and two other employees by the Respondent's regional manager Jim Sarvis. According to Tennant's direct testimony, Sarvis in- dicated in his discussion with the employees that he was going to bring other Morena En- terprise employees in, and that it would do us no good to strike because he would bring these employees in, and not only would we be out of a job, but, that we couldn't be working, but we probably would lose our job as a result of it. On cross-examination, Tennant testified consistent- ly that Sarvis stated: [I]f the union went on strike . . . it wouldn't do us any good because he would bring in other employees, and they would cover for us, and not only would we not have a job, or not have any work, but we probably wouldn't have a job either. In finding a violation in Sarvis' comments, we apply certain of the principles noted in Eagle Com- tronics, 263 NLRB 515 (1982). There, the Board stated that an employer does not violate the Act by informing its employees truthfully that they are subject to permanent replacement in the event of an economic strike.5 But the Board also indicated that if a statement could be "fairly understood as a threat of reprisal against employees or is explicitly coupled with such threats,"6 it was not protected by Section 8(c) of the Act and ran afoul of the Act. The Respondent's statement clearly falls into that latter category. The Respondent told employ- ees that it would be futile to engage in a strike and that they would not only be out of a job but would probably lose their jobs if they struck. This state- ment "may be fairly understood as a threat of re- prisal" as indicated in Eagle Comtronics and is therefore unlawful. The combined references to the futility of striking and the probable loss of employ- ment are not consistent with Laidlaw Corp.,7 which guarantees permanently replaced strikers, who have made unconditional offers to return to work, the right to full reinstatement when positions are 5 Member Johansen , who did not participate in Eagle Comtronics, takes no position on the question whether an employer violates Sec. 8 (a)(1) of the Act through a totally unqualified statement that it can permanently replace economic strikers. 6 263 NLRB at 515-516. 7 171 NLRB 1366 (1968), enfd. 414 F.2d, 99 (7th Cir. 1969), cert. denied 397 U.S. 920 (1969). 287 NLRB No. 145 1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD available and to be placed on a preferential hiring list if positions are not available . Thus, an employ- er's right to permanently replace economic strikers does not render it futile to engage in the protected right to strike . Nor does an employer 's exercise of its right entail an absolute loss of employment for those striking employees who are replaced . In sum, we find the Respondent 's remarks went beyond the permissible boundaries of protected speech and re- strained or coerced employees in the exercise of their rights under the Act.8 Similarly , we find the Respondent's statements about reduction of work hours are not shielded by Section 8(c), but rather violated Section 8(a)(1). According to the credited testimony of employee Tennant , Regional Manager Sarvis told her, "You know in previous shops . . . they voted the Union in . . . and to no avail because they turned around and cut their hours, so that they didn't get to col- lect the benefits ." We do not find this to be a mere truthful representation concerning "cold, hard facts" that a reduction of hours occurred elsewhere after unionization . Regardless of whether the previ- ous reduction was lawfully motivated , Sarvis' con- clusion that the choice of unionization was to no avail coupled with this characterization of the re- duction of hours as "they turned around and cut their hours, so that they didn 't get to collect the benefits" implies that the reduction was in retalia- tion for the selection of the union and would be reasonably construed as a threat that the same kind of action would be taken against current employees should they select the Union. Accordingly, we find that the Respondent's remark is an implied threat of loss of hours in violation of Section 8(a)(1). Finally, we agree with the judge that Sarvis threatened Tennant with retaliation when he told her he would not have "fought so hard" to get her job back if he had known she was going to get in- volved in "Union stuff." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Gino Morena, d/b/a Gino Morena En- terprises , Goldsboro, North Carolina, its officers, agents, successors, and assigns , shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 2 and re- number the subsequent paragraphs. "2. Cease and desist from in any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2. "Post at its facility in Goldsboro, North Caroli- na, to which its employees report copies of the at- tached notice marked "Appendix ."4 Copies of the notice, on forms provided by the Regional Direc- tor for Region 11, after being signed by the Re- spondent 's authorized representative , shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted . Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material." Paris Favors, Jr., Esq., for the General Counsel. Richard L. Nag!, Esq. (Holme, Roberts and Owen), of Colorado Springs, Colorado, for the Respondent. DECISION STATEMENT OF THE CASE LAWRENCE W. CULLEN , Administrative Law Judge. This case was heard before me on August 9 and 10, 1984, in Goldsboro, North Carolina, pursuant to a com- plaint filed by the Regional Director for Region 11 of the National Labor Relations Board (the Board) on July 5, 1984 . The complaint , as amended at the hearing, al- leges violations of Section 8(a)(1) of the National Labor Relations Act (the Act) by the unlawful interrogation of its employees and the issuance of unlawful threats to its employees by Respondent Gino Moreno, d/b/a Gino Morena Enterprises (Respondent) and violations of Sec- tion 8(a)(3) and (1) of the Act by the unlawful discharge of an employee because of her engagement in protected concerted activities . The original charge was filed on May 21, 1984, and amended on June 11, 1984, United Food and Commercial Workers Union, AFL-CIO, CLC (the Union). Respondent , by its answer filed on August 6, 1984, as amended at the hearing , has denied that it has committed any violations of the Act. After due consideration of the evidence presented at the hearing and the briefs' filed by counsel for the Gen- eral Counsel and counsel for the Respondent , I make the following recommended FINDINGS OF FACT AND ANAYLSIS2 1. JURISDICTION The complaint, as amended at the hearing, alleges, the Respondent admits, and I find that Respondent is an indi- I I find that Respondent 's postbrief letter is in the nature of a reply brief and it is rejected. B Member Babson finds it unnecessary in the context here to pass on 2 The following includes a composite of the testimony of the witnesses the distinction drawn by the Board in In. 8 of Eagle Comironics. that is credited to the extent set out except as otherwise stated. GINO MORENA ENTERPRISES 1329 vidual "engaged in the operation of barbershops and beauty shops at military installations in various States, in- cluding the beauty shop at Seymour Johnson Air Force Base in Goldsboro, North Carolina," and that during the past 12 months, a representative period at all times mate- rial, Respondent, in the course and conduct of its busi- ness operations, derived gross revenues in excess of $500,000, and that it purchased, during the period direct- ly and indirectly, goods and materials valued in excess of $50,000 from locations outside the State of North Caroli- na. However, Respondent denies that the goods and ma- terials valued in excess of $50,000 were purchased for use within the State of North Carolina, particularly for its use at the Seymour Johnson base beauty shop, and ac- cordingly contends that it is not an employer within the meaning of Section 2(6) and (7) of the Act and that the General Counsel has thereby failed to prove facts suffi- cient to establish the Board's jurisdiction over it in this case, relying on the Board's recent decision in Fort Hous- ton Beauty Shop, 270 NLRB 1006 (1984) The General Counsel contends that the Board has found jurisdiction over Respondent's operations in a prior case involving its barbershop operation at a Marine Corps recruit depot in San Diego, California, and found that the Respondent, in that case, received business sup- plies valued in excess of $3000 from points located out- side the State of California, thereby satisfying its jurisdic- tional standard for retail enterprises Gino Morena Enter- prises, 181 NLRB 808 fn 1 (1970). The General Counsel further cites an unreported administrative law judge's de- cision issued in 1978 to which no exceptions were filed (JD-237-78), in which Respondent admitted its employer status within the meaning of the Act and further cites the Respondent's execution of a Stipulation for Certification upon Consent Election in Case 11-RC-5211 in which it stipulated to commerce facts that the General Counsel contends were similar to those alleged in the instant complaint. Respondent is a multistate employer that operates its retail business with centralized control from its home office in California It meets the Board's $500,000 juris- dictional standard for retail operations. As the General Counsel contends, the Board has asserted jurisdiction on prior occasions over the Respondent and I take judicial notice thereof. I find the case of Fort Houston, supra, inapposite to the instant case. In the Fort Houston case, the Board declined to exercise jurisdiction over an employer as the record showed the annual gross income of the employer did not meet the Board's $500,000 jurisdictional standards for retail operations In the instant case before me, the $500,000 standard has been met. Rather, I find that the issue raised by Respondent in this case was resolved in the leading case of Carolina Supplies & Cement Co, 122 NLRB 88 (1958), in which the Board stated at 89. . it will assert jurisdiction over all retail enter- prises which fall within is statutory jurisdiction and which do a gross volume of business of at least $500,000 per annum. The Board will apply this standard to the total operations of an enterprise whether it consists of one or more establishments or locations, and whether it operates in one or more States In adopting this standard the Board has departed from its past practice of also utilizing outflow and inflow standards in aid of its jurisdictional determi- nation with respect to retail enterprises. It has done so because experience has shown that under past standards assertion of jurisdiction over retail enter- prises usually depended upon a retail enterprise's volume of inflow. The ascertainment of inflow fig- ures often involves extensive examination of an em- ployer's records in which every purchase must be considered, which is time-consuming both for per- sonnel of the employer involved and the Board. Gross volume of business figures on the other hand are readily obtainable and their production places no hardship upon employers. Accordingly, in the interests of expediting the handling of the increased volume of retail cases which the Board expects will result from the liberalization of its jurisdictional policies, the Board decided to apply only a gross volume of business standard to such enterprises The $500,000 standard chosen by the Board should, in its opinion, reasonably insure that jurisdiction will be asserted over all labor disputes involving retail enterprises which tend to exert a pronounced impact upon commerce Moreover, as the Board has exercised jurisdiction over the Respondent on prior occasions, on the basis of the Respondent's admissions that it was an employer within the meaning of Section 2(6) and (7) of the Act and in the absence of any affirmative evidence supplied by the Re- spondent to the contrary, I find that this matter has been fully litigated and resolved in the prior cases I accordingly find that Respondent is an employer within the meaning of Section 2(6) and (7) of the Act and that the Board has jurisdiction in this case. 11 THE LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act iiI. THE ALLEGED UNFAIR LABOR PRACTICES A Background Respondent supplies barber and beauty services to military bases throughout the United States pursuant to contracts with the United States Army and Air Force Exchange Service (AAFES) In December 1983, Re- spondent was awarded a contract to operate the beauty shop at the Seymour Johnson Air Force Base It had previously been operating the barbershop at the base pursuant to a separate contract The beauty shop had been previously operated by another concessionaire pur- suant to a contract that expired on February 29, 1984 The new contract provided that Respondent was to commence its operations on March 1, 1984, in a separate location on the base In February, Respondent's regional 1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD manager, Jim Sarvis , contacted the four beauticians who had been employed by the prior beauty shop concession- aire and told them they would be offered employment by Respondent . These employees were Shirley Kee, the manager of the shop , Sonya Tennant , Rhea Whittaker, and Virginia McKenzie . On the evening of February 29, 1984, after the close of the final day of the prior con- tract, the employees moved their equipment to a new lo- cation on the base which had been assigned to Respond- ent for its beauty shop . At this time Sarvis , who was in the process of setting up the new beauty shop for the grand opening the next day , told the employees they would be hired, with the exception of Tennant, who had previously been involved in an altercation with another beautician in the parking lot. The AAFES exchange manger, Steven Mitchell , had indicated to Sarvis that Tennant was not acceptable for rehire . According to the testimony of Kee , Whittaker, McKenzie , and Tennant, on the night of February 29, 1984, Kee told Sarvis she did not wish to be the manager of the new shop but wished only to be a beautician and that Sarvis asked her to handle the paperwork until he obtained another man- ager . On February 29, 1984, Sarvis interviewed an appli- cant for the manager's job, Dale Rife, who had contact- ed Sarvis about the job. Rife was not hired at that time. Sarvis denied at the hearing that he was told by Kee that she did not wish to manage the shop but testified that Kee complained on occasion concerning the paperwork and duties of the manager 's job, and that her complaint centered on a desire for an increase in pay . It is undis- puted that the beauticians , including Kee, were paid 50 percent of their individual gross income and that Kee was additionally paid 2 percent of the shop's gross income . Kee testified she was paid this for the additional paperwork assigned to her rather than for managing the shop. Also present the evening of February 29, 1984, to assist in the setup of the new shop , were George James, the manager of the barbershop also operated by Re- spondent at the base , and the AAFES exchange manag- er, Steven Mitchell . Both of these individuals denied having heard Kee tell Sarvis that she did not want to be manager, although James testified that he had heard Kee tell some of the other beauticians that she did not want to be manager on another occasion , but that he did not tell Sarvis of this. Additionally, Sarvis and Mitchell testi- fied that Kee inquired whether the beauticians would each have a separate key for the shop and that Sarvis in- dicated that it was up to her. On the evening of Febru- ary 29, 1984, Sarvis gave Kee a box of Respondent's var- ious accounting forms to record daily and weekly re- ceipts as well as the tally of the beauticians ' hours and earnings and briefly explained how to do them, and told Kee that James would help her if she had any trouble with the forms . According to Kee and the other beauti- cians present, these comments by Sarvis were not specifi- cally directed to Kee. After March 1 , 1984, Kee continued to wear a tag on her uniform that designated her as manager . On one oc- casion , she hired someone to clean the floor . She tallied the timesheets and earnings of the beauticians and turned them over to Barbershop Manager James who called or sent them into the Respondent 's home office in Califor- nia. She corrected overrings of employee McKenzie on the cash register . She purchased supplies as required and used the money from the cash register to pay for them in accordance with the direction and authority given to her by Sarvis . When the other employees made such pur- chases, they generally checked with Kee before doing so. Tennant had been hired by Respondent on March 1, 1984, following a discussion between Kee and the base manager on March 1 where Kee told him that Tennant's customers were asking for her and also explained that Tennant had not been at fault in the altercation about which he was concerned . Additionally , Sarvis testified that there has always been a manager in every shop that he has been in charge of throughout his 7 -year career with the Respondent and within his entire region of re- sponsibility in the Southeast region of the United States. Respondent 's vice president , Rex Morena, also testified that there has always been a manager in each beauty shop throughout the United States where Respondent operates its business on various military bases and that such is a requirement of the contract . This testimony was also supported by Exchange Manager Mitchell who testi- fied that the AAFES required that there be an onsite manager at its beauty shop and that he had been told by Sarvis that Kee was the new manager and that he looked to Kee as the manager. The General Counsel contends that the outside trap- pings of supervisory status and/or managerial status are misleading in this case and that Kee was not actually a supervisor but was an employee coming under the pro- tection of the Act relying on the testimony of Kee and other beauticians that Kee told Sarvis she did not wish to be the manager and that Sarvis indicated they should look to James for answers to problems. James testified he was merely told to help Kee with the paperwork and filing out of forms required by Respondent . James re- ceived no additional pay for the management of the beauty shop . On one occasion Kee refused to sign a va- cation schedule approval form for employee McKenzie and sent her to the barbershop to have James sign it, which he did. In April 1984, the Union commenced an organizational campaign of the beauticians and a petition for election was received by Respondent at its home offices in Cali- fornia . This information was related to Sarvis by Rex Morena . Sarvis visited the shop on April 27, 1984, and talked to Kee informing her of the campaign . She indi- cated that she knew about it and had joined the Union. Sarvis asked Kee to help him in persuading the other employees to defeat the union campaign . Kee told Sarvis that she could do nothing as the other beauticians were grown people and would make up their on minds. Ac- cording to Sarvis, he told Kee she could not join the Union as she was a part of management and she at that time told him for the first time that she did not want to be the manager and had never been the manager. Ac- cording to Kee, Sarvis told her she could keep her job as a beautician if she would help Sarvis to defeat the Union. On April 27, 1984, Sarvis also talked to the other beauticians and told them that the Union was a lot of talk and could not deliver . Sarvis, according to his testi- GINO MORENA ENTERPRISES mony, told them that the Union could not guarantee them benefits, and that a strike would be futile as they could be replaced and cited an instance at another base where beauticians had lost benefits after joining the Union and had been required to pay unon dues. Accord- ing to the testimony of Tennant, McKenzie, and Whitta- ker, Sarvis also told them that the beauticians at another base had had their hours reduced (cut) after the advent of a union. Tennant testified further that Sarvis told her that he would not have forgotten to get her job back if he had known she would get involved with the Union On May 5, 1984, Sarvis again came to the beauty shop and terminated Kee after she refused to continue to serve as manager, having hired Rife as manager. Sarvis refused to permit Kee to remain as a beautician. His purported reasons for doing so are a matter of dispute between the parties but require no resolution by me in view of my analysis and conclusions hereinafter made IV. ANALYSIS A The 8(a)(1) Allegations I credit the testimony of employees Tennant, McKen- zie, and Whittaker concerning the statements made to them by Sarvis on April 27, 1984 I find the interrogation of employees Tennant, McKenzie, and Whittaker by Sarvis as to their reason for wanting to join the Union was inherently coercive, particularly under the circum- stances wherein Sarvis threatened them with loss of their jobs as they could be replaced in the event of a strike, and of loss of work as their hours could be reduced as in the case of the beauticians at the other air base cited by Sarvis and in the case of Tennant wherein Sarvis said he would not have supported her with respect to her job tenure if he had known of her support for the Union. I reject Respondent's argument that the comments of Sarvis were merely his exercise of free speech and not violative of the Act Rather, it is clear that his comments were intended to and had the effect of threatening the employees with adverse consequences (replacement and reduction in hours), and with the futility of joining a union to improve their working conditions. I thus find that Respondent violated Section 8(a)(1) of the Act by the interrogation and issuance of threats to its employees by its admitted agent Sarvis B. The Discharge of Tennant I find that the evidence is manifest that Tennant was a supervisor and/or a managerial employee under the Act and that Respondent's discharge of her did not violate the Act Assuming arguendo that Kee told Sarvis on February 29, 1984, that she did not wish to remain as manager, it is clear that she nonetheless continued to perform as such until her termination on May 5, 1984 She wore a tag designating her as manager, corrected employee errors, totaled receipts of the shop, and made out the employees' earnings reports She was the central person to whom the employees looked for direction. On one oc- casion, she hired an individual to clean the shop floors and signed his application to do so on a regular basis She made purchases as required. She received additional 1331 compensation based on a percentage of the shop's gross income. I credit the testimony of Sarvis, Mitchell, and James that Kee was serving as manager of the beauty shop It is also clear that in her absence the shop would have had no manager I find the evidence presented by the General Counsel to be insufficient to show that James assumed the role of manager of the beauty shop. Rather, I credit the testimony of James that he was merely asked to assist Kee with filling out the new forms required by Respondent as he was familiar with them by virtue of his position as manager of the barbershop I attach no significance to the single incident wherein James signed the vacation request of McKenzie follow- ing the refusal of Kee to do so as this undoubtedly oc- curred after her discussion of April 27, 1984, with Sarvis when she told him she was not the manager of the bar- bershop. Accordingly, I find that Kee was a supervisor within the meaning of Section 2(11) of the Act as she hired an employee, effectively recommended the rehire of another employee, assigned work, responsibly directed and re- viewed the work of the other employees, and used inde- pendent judgment in so doing and was clearly held out to customers and others as the manager of the shop. See Price Chopper, 271 NLRB 323 (1984). Moreover, as a result of her placement as manager of the shop, her implementation of employer policies with respect to the acquisition of supplies and use of Respond- ent's funds to do so at her discretion, the lack of direct supervision of her on the premises, her assumption of re- sponsibility for the operation of the shop, including the tallying of receipts, earnings, and time of other employ- ees, and reporting to the Respondent concerning them, her interest in the operations with respect to her receipt of a percentage of the gross income of the entire shop, I also find that she was a managerial employee. See NLRB v. Yeshiva University, 444 U S. 672 (1980). See also Seven- Up Bottling of Phoenix, 263 NLRB 596 (1982) As I have found that Kee was a supervisor and a man- agerial employee, she was not entitled to the protection of the Act Thus, assuming arguendo that she was dis- charged as a result of her engagement in union activities, the discharge was not unlawful. Beasley v. Food Fair of North Carolina, 416 U.S 653, 654-655 (1974) Nor do I find that the General Counsel has demonstrated that Kee was discharged because of her failure to assist the em- ployer in preventing unionization It is undisputed that Sarvis again asked Kee on May 5, 1984, whether she would remain as manager, and terminated her when she refused to do so. Nor is there any contention that Kee was discharged for protesting against any unfair labor practices committed by Respondent against its employ- ees. See Parker-Robb Chevrolet, 262 NLRB 402 (1982), enfd. sub nom. Automobile Salemen's Local 1095 v. NLRB, 711 F.2d 383 (D C. Cir. 1983). Accordingly, I find that the General Counsel has failed to establish a prima facie case of a violation of the Act by Respondent by its termination of Kee. Assuming arguendo that a prima facie case has been established, I find that it has been rebutted by Respondent by the pre- ponderance of the evidence 1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices of Respondent , as found in section III, above , in connection with Respondent 's oper- ations as found in section I, above, have a close , intimate, and substantial relationship to trade , traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing the flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Gino Morena, d/b/a Gino Morena Enterprises , is an employer within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent did not violate Section 8(a)(3) and (1) of the Act by its discharge of Shirley Kee. 4. Respondent violated Section 8(a)(1) of the Act by the interrogation and threats of its employees. 5. The aforesaid unfair labor practices have a close, in- timate, and substantial effect on the free flow of com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has violated Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and post the appropriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Gino Morena, d/b/a Gino Morena Enterprises, Goldsboro, North Carolina, its officers, agents, successors, and assigns, shall 1. Cease and desist from unlawfully interrogating and threatening its employees concerning their union activi- ties in violation of Section 8(a)(1) of the Act. 2. Sign and post copies of the attached notice marked "Appendix"4 immediately upon receipt in conspicuous places at its facility in Goldsboro, North Carolina, to which its employees report. Reasonable steps shall be 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings , conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules , be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. taken to ensure that said notices are not altered , defaced, or covered by any other material. 3. Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 4. The complaint is dismissed with respect to the alle- gations of a violation of Section 8(a)(3) and (1) of the Act by Respondent 's discharge of Shirley Kee. 4 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form , join , or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT unlawfully interrogate or issue threats to our employees concerning their union activities or support of the Union. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. Our employees have the right to join and support United Food and Commercial Workers Union, Local 204, affiliated with United Food and Commercial Work- ers International Union , AFL-CIO, CLC or to refrain from doing so. GINO MORENA , D/B/A GINO MORENA EN- TERPRISES