Howard Johnson Co.

National Labor Relations Board - Board Decisions

Apr 5, 1974

209 N.L.R.B. 1122 (N.L.R.B. 1974)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howard Johnson Company and Madison Independent
Workers Union . Case 30-CA-2357
April 5, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 23, 1973, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent and General
Counsel filed exceptions and supporting briefs and
Respondent filed an answering brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and has decided to affirm the rulings of the
Administrative Law Judge but to modify his find-
ings, conclusions, and his recommended Order and
notice in the respects hereafter set forth.'
We agree with the Administrative Law Judge's
finding that in violation of Section 8(a)(3) and (1)
Respondent discharged nine union adherents on
May 31 and June 14, 1973, because its selection of
them was to discourage the union activities of its
employees. However, General Counsel has excepted,
inter alia, to the Administrative Law Judge's failure
to further find that the concurrent termination of
four other employees was also unlawful on the
ground that they were selected for separation solely
to make the discharge of the nine union sympathizers
look legitimate. and that, therefore, their termina-
tions were similarly tainted. We find merit in this
exception.
General Counsel argues that the Administrative
Law Judge failed to consider the truth of an
uncontradicted statement,3 made by Supervisor
Porter to employees Gipp and Griffen following the
terminations, to the effect that Area Supervisor
Rapachietta told Porter and Supervisor Green after a
meeting with employees, on May 25, that higher-ups
in the Company, and not he, decided that there were
going to be layoffs, that they would not happen at
one time, that nonunion as well as union adherents
i Respondent 's unopposed motion to correct certain typographical
errors in the Administrative Law Judge's Decision is hereby granted
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to'
overrule an Administrative Law Judge 's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his credibility findings.
i We note that the Administrative Law Judge incorrectly limited this to a
would be included "so it wouldn't look too bad," and
after the union talk had blown over the Company
could get new help. In agreement with the General
Counsel. we find that Porter's statement was an
admission by Respondent-} that terminations were
made to chill the idea of unionism and the Union's
campaign among the employees, and that nonunion
employees, in this case, Fox, Sharp, Kittelson, and
McKenna, were to be included in an effort to
conceal or camouflage Respondent's unlawful moti-
vation. Thus all 13 employees were terminated on
May 31 and June 14 on the basis of union
considerations, whether they were or were not union
adherents, and we so find. Accordingly, we also find
that the terminations of the four nonunion employ-
ees were unlawful. V. E. Anderson Manufacturing
Company, 184 NLRB 459; and All-Tronics, Inc., 175
NLRB 644, 652.
Our dissenting colleague takes serious issue with
our finding that the above-named four nonunion
employees, whom we find herein to have been
unlawfully included with known union sympathizers
in the terminations, could be deemed to have been
selected for discharge for discriminatory reasons
within the meaning of Section 8(a)(3) and (1) of the
Act. He characterizes our position as illogical and
indefensible, primarily because these four employees
had not engaged in any union activity and their
layoffs followed a bona fide business decision based
on economic considerations. We believe he miscon-
ceives the basis for our finding a violation concern-
ing them and the relevant precedent supporting it.
We are not deciding whether the reduction in force
was motivated by business considerations or other-
wise. Under our theory of the violation of the Act as
to these four employees, we can accept the Adminis-
trative Law Judge's finding, although not, in our
opinion, free from doubt, that Respondent had
proved economic justification for some reduction of
its payroll, without in any way nullifying the validity
of our finding of these additional violations and its
underlying premise.
Whatever economic justification for a reduction in
the Respondent's payroll may have been shown, the
credible record facts prove that the terminations of
Fox, Kittelson, Sharp, and McKenna were causally
related to the discrimination practiced against the
nine union adherents and therefore were also
statement "that employees had been terminated because of their union
activities."
4 See Sweater Bee by Banff, Ltd, 197 NLRB 805. The above testimony
which was introduced through employees Gipp and Griffen was admitted
without objection at the hearing, was corroborated, and was uncontradict-
ed Accordingly, we find such testimony to he reliable See Plumbers,
Steamfitters, and Refrigeration Local 469 (Precisionaire, Inc, d/b/a Mechani-
cal Balancing Company), 195 NLRB 700, 702, In. 8, N L R.B v. International
Union of Operating Engineers, Local Union No 12 [Ledford Bros ], 413 F 2d
705 (C A 9. 1969 ), enfg. 165 NLRB 358
209 NLRB No. 173
HOWARD JOHNSON CO.
discriminatory. Goshen Litho, Inc., 196 NLRB 977,
989-992. Thus it follows that their terminations were
prompted by improper, that is, unlawful, considera-
tions, and it is immaterial that economic justification
existed to lay employees off. The issue, therefore, is
not whether a layoff was economically required, but
what motivated the Respondent to select the four
nonunion employees for such layoff. The answer,
strong and clear, and fully supported by the record,
is that they were chosen to conceal the illegal
purpose motivating the discharge of the nine union
adherents and to give color to Respondent' s defense
that those nine were picked solely because of
economic and work-related reasons.
The above conclusions are buttressed by Respon-
dent's failure to meet its burden to rebut General
Counsel's prima facie case , which we find is fully
supported by a preponderance of the evidence. Its
attempt to show that the particular nonunion
employees involved herein would have been termi-
nated for work-related reasons was rejected by the
Administrative Law Judge. He implicitly found, and
we agree , that Respondent's asserted reasons for
selecting these employees for layoff, i.e., Fox because
of her slowness, Sharp because she had family
problems and trouble making change in her job as
cashier , Kittelson because of improper food han-
dling, and McKenna because there was no need for a
night hostess, were pretextual. That being the case,
there is no reason advanced by Respondent to
overcome Porter's admission to employees Gipp and
Griffen that Respondent's reasons for selecting all 13
employees for termination were based on union
considerations, i.e., to get rid of the 9 who advocated
unionization, and to cloak those terminations with an
aura of legitimacy by including nonunion supporters
along with them. On the other hand, there is
evidence, in addition to Porter's admission, that
bolsters the additional 8(a)(3) violations found
herein. Thus. when Rapachietta was questioned on
May 25 as to whether there would be any layoffs, he
responded that none were anticipated. Furthermore,
the fact that 44 employees quit or left employment
during the period of April 28 through the date of the
hearing suggests that the reduction in force might
reasonably have been accomplished through attrition
rather than by terminating any employees, as was
done by the Respondent here. Indeed, the sudden-
ness of these terminations coming so quickly and
unexpectedly after the facility opened and in
proximity in timing to the inception of the Union's
s Why, if our dissenting colleague believes that the bona fides of
Respondent 's economic defense precludes a finding of violation as to the
nonunion employees let go, does he not similarly find that its validity
prevents finding the violations found, in which he loins, to the nine who
supported the Union ? Why, if it is logical to find their selection was
motivated by union activity is it not logical to find that the others were
1123
organizational efforts gives rise to an inference that
reasons other than economic were in part behind the
separations.
In light of the above facts and circumstances, and
in view of Porter's admission that nonunion employ-
ees were laid off "so it wouldn't look so bad" and as
part of a plan to discourage unionization at Respon-
dent's facility, we conclude that Respondent unlaw-
fully terminated employees Fox, Sharp, Kittelson,
and McKenna in violation of Section 8(a)(3) and (1)
of the Act.
THE REMEDY
As we have found that Respondent unlawfully
terminated four employees in addition to those found
by the Administrative Law Judge to have been
unlawfully terminated on May 31 and June 14, 1973,
we shall modify the Administrative Law Judge's
remedy by additionally ordering that Respondent
reinstate Susan Fox, Chester Kittelson, Mary
McKenna, and Rosemary Sharp and make them
whole for any loss of earnings they have suffered in
consequence of their unlawful terminations in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
CONCLUSIONS OF LAW
The Administrative Law Judge's Conclusions of
Law are hereby modified by deleting Conclusion of
Law 4 and substituting the following:
"4. By temporarily suspending Peter Neuwald
and Peggy Thompson for wearing union buttons and
by discriminatorily discharging and refusing to
reinstate Larry Gertzog, Peter Neuwald, Alan Ni-
chols, Patty Sontag, Elena Spielman, Anne Stack-
house, Peggy Thompson, Karen Winer, Helen
Spring, Susan Fox, Chester Kittleson, Mary McKen-
na, and Rosemary Sharp in order to discourage
union activities of its employees, the Respondent has
engaged in unfair labor practices in violation of
Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
hereinafter modified. and hereby orders that Respon-
included to mask their unlawful terminations9 The point is not who could
the Respondent have chosen to lay off once deciding a layoff was
economically necessary, but upon what criterion was their selection made
We have already seen that both logic and the underlying record compel the
conclusion that the criterion used was connected to the aim of defeating the
Union's efforts to organize the employees
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent, Howard Johnson Company, Madison, Wiscon-
sin, its officers , agents , successors , and assigns, shall
take the action set forth in the said recommended
Order, as modified below:
1. Substitute the following paragraph for para-
graph 2(a):
"(a) Offer, if it has not already done so, immediate
and full reinstatement to Larry Gertzog, Peter
Neuwald, Alan Nichols, Patty Sontag, Elena Spiel-
man, Anne Stackhouse, Peggy Thompson, Karen
Winer, Helen Spring, Susan Fox, Chester Kittelson,
Mary McKenna, and Rosemary Sharp to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of earnings they
suffered by reason of the discrimination against
them, and make each of them whole for any loss of
pay or other compensation he or she may have
suffered by reason of the discrimination against
them, including the temporary suspensions of Peter
Neuwald and Peggy Thompson, until the date of
such offer of reinstatements in the manner and the
extent provided in this Decision."
2. Substitute the attached notice for that of the
Administrative Law Judge.
CHAIRMAN MILLER , dissenting in part:
The majority errs, in by view, with respect to the
issue of the allegedly discriminatory terminations.
The Administrative Law Judge below found that
the occurrence of the terminations was caused by
business reasons . He found , however , that the
selection of employees was discriminatory since the
Respondent used the terminations for the purpose of
ridding itself of the union adherents.
My colleagues, although accepting, however reluc-
tantly, the Administrative Law Judge's conclusion
that the reduction in force was caused by bona fide
business reasons , nevertheless find that certain
nonunion employees were discriminatorily selected
for termination . I do not believe that either logic or
law supports that finding.
The only permissible basis for concluding that the
nonunion employees were improperly terminated
would be if _ the record would support a finding that
the reduction in force was not business motivated,
but had been initiated to strike fear into the hearts of
all employees and thus discourage their union
activity.
But, once having found the reduction in force to
have been for bona fide business reasons , the only
basis for finding a violation is to find discriminatory
selection-i.e., that union activity was the true
criteria used as the basis for dismissal . Since that
could not have been the basis for selecting the four
nonunion employees, there is obviously no prima
facie case of discriminatory selection with respect to
them. That is what the Administrative Law Judge
found , and his decision is, in my view, supported by
the evidence and by a reasonable and logical
interpretation of the Law.
Nonunion employees cannot logically be found to
have been discriminatorily selected for termination. If
the Respondent acted lawfully in reducing his force,
then who was discriminatorily retained when these
four nonunion employees were selected for layoff?
The question is as unanswerable as the majority's
reversal of the Administrative Law Judge's conclu-
sions is indefensible.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
discharge , closing the restaurant , or reopening the
restaurant with new employees in order to
discourage union activities.
WE WILL NOT threaten to discharge our
employees for supporting the Union.
WE WILL NOT unlawfully threaten to discharge
our employees for discussing the Union with
other employees.
WE WILL NOT inform our employees that other
employees have been discharged or not recalled
because of the Union.
WE WILL NOT maintain or enforce any policy
prohibiting our restaurant employees from wear-
ing union buttons while at work.
WE WILL NOT suspend, discharge , refuse to
reinstate , or otherwise discriminate against em-
ployees because of their membership in, sympa-
thies for , or activities on behalf of the Madison
Independent Workers Union, or any other labor
organization.
WE WILL offer to Larry Gertzog, Peter Neu-
wald, Alan Nichols, Patty Sontag , Elena Spiel-
man, Anne Stackhouse, Peggy Thompson, Karen
Winer , Helen Spring , Susan Fox , Chester Kittel-
son, Mary McKenna , and Rosemary Sharp, if we
have not already done so , immediate and full
reinstatement to their former jobs or, if those jobs
no longer exist , to substantially equivalent jobs,
and restore them all rights of seniority and other
rights and privileges enjoyed by them and WE
WILL make each of them whole for any loss of
earnings with interest he or she may have suffered
by reason of our discrimination against them,
HOWARD JOHNSON CO. 1125
including the temporary suspensions of Peter
Neuwald and Peggy Thompson.
WE WILL NOT in any manner interfere with,
restrain, or coerce employees in the exercise of
their right to self-organization, to form, join, or
assist any labor organization, to bargain collec-
tively through representatives of their own choos-
ing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all
such activities except to the extent that such rights
may be affected by an agreement requiring
membership in a labor organization as a condi-
tion of employment as authorized in Section
8(a)(3) of the Act as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
HOWARD JOHNSON
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Commerce Building, Second Floor,
744 North Fourth Street, Milwaukee, Wisconsin
53203, Telephone 414-224-3861.
DECISION
STA'l EMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: This
case was heard at Madison, Wisconsin, on September 10.
11, and 12, 19731 pursuant to a second amended charge2
filed on August 7 by the Madison Independent Workers
Union (herein referred to as the Union) and a complaint
issued on August 8.
The complaint, amended at the hearing, alleged that
Howard Johnson Company (herein referred to as the
Respondent), violated Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (herein referred
to as the Act), by threatening to terminate employees and
reopen the restaurant with new employees in order to
discourage union activities; threatened an employee with
termination for discussing the union with other employees;
informed an employee that a recently terminated employee
1 All dates referred to are in 1973 unless otherwise stated.
2 The original charge was filed on June 4.
a Mary McKenna 's name prior to her marriage on August 18 was Mary
Meany.
4 The allegation of the amended complaint alleging unlawful interroga-
would be recalled if the employee ceased engaging in union
activities; informed employees Respondent had discharged
employees because of their union activities; interrogated
an employee concerning the employee's union sentiments
and activities and those of other employees; informed
employees Respondent would terminate all employees who
supported the Union; ordered employees under threat of
suspension to remove their union buttons; discriminatorily
suspended Peter Neuwald and Peggy Thompson for
wearing union buttons; and by discriminatorily discharg-
ing and refusing to reinstate Susan Fox, Chester Kittleson,
Mary McKenna,-3 Peter Neuwald, Rosemary Sharp, Patty
Sonntag, Peggy Thompson, Karen Winer, Larry Gertzog,
Alan Nichols, Elena Spielman, Helen Spring, and Anne
Stackhouse because of their union membership, sympa-
thies, and activities.
Respondent in its answer filed on August 15 and
amended at the hearing denied having violated the Act.
The issues involved are whether Respondent violated
Section 8(a)(1) and (3) of the Act by threatening employees
with discharge, closing the restaurant, and reopening with
new employees because of union activities; informing
employees other employees had been discharged because
of their union activities or that an employee would be
recalled if the employee ceased engaging in union
activities: ordering employees under threat of suspension
to remove their union buttons; discriminatorily suspended
Peter Neuwald and Peggy Thompson for wearing union
buttons; and whether Respondent discriminatorily dis-
charged and refused to reinstate Susan Fox, Chester
Kittleson, Mary McKenna, Peter Neuwald, Rosemary
Sharp, Patty Sonntag, Peggy Thompson, Karen Winer,
Larry Gertzog, Alan Nichols, Elena Spielman, Helen
Spring, and Anne Stackhouse (herein referred to as
discriminatees), because of their union membership,
sympathies, and activities?
The parties at the hearing were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
Upon the entire record in this case and from my
observation of the witnesses, and after due consideration of
the briefs filed by the General Counsel and the Respon-
dent,s I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Maryland corporation, with its principal
office located at Boston, Massachusetts, is engaged in the
retail restaurant business at various locations throughout
the United States and as part of its operations operated a
restaurant located at 525 West Johnson Street, Madison,
Wisconsin, which is the only facility involved in this
proceeding. During 1972, a representative period, Respon-
dent's gross revenues derived from its operations exceeded
Lion of an employee by Respondent's Manager of Restaurant Operations
George Gover for which no evidence was offered was dismissed at the
hearing on Respondent 's motion.
5 The Charging Party did not submit a brief.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$500,000 and it purchased and received in interstate III. THE UNFAIR LABOR PRACTICES
commerce goods valued in excess of $50,000.
Based upon the above facts, which are admitted by
Respondent, I find, contrary to its denial, that the
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION
The amended complaint alleged and Respondent denied
that the Madison Independent Workers Union is a labor
organization within the meaning of Section 2(5) of the
Act.6
The evidence based upon the undisputed testimonies of
two of the Union's officers, Anne Stackhouse, who held the
position of steward and Jackie Young, who held the
position of secretary-treasurer, which I credit, established
the Madison Independent Workers Union, a nonaffiliated
organization formed about 1971 or 1972, is an organization
in which employees are permitted to participate and exists
for the purpose of dealing with employers with respect to
such matters as the wages and working conditions of their
employees. It has an office located in the University of
Wisconsin, YMCA Building at Madison, Wisconsin, and
has approximately 15 dues-paying members. The Union,
which does not have a constitution or bylaws, is governed
by a Stewards Council whose officers are elected by the
members and a secretary-treasurer who is selected by the
Stewards Council. None of these officers receive compen-
sation.
The Union has collective-bargaining agreements with
three employers 7 and in addition represents the employees
of the Wisconsin Student Association Store. The Union
admittedly had not filed any financial reports with the
United States Department of Labor, and there is no
evidence the National Labor Relations Board have ever
certified the Union as the bargaining representative of any
employer's employees.
Inasmuch as the evidence established that the Union is
an organization in which the employees participate and its
purpose is to deal with employers with respect to such
matters as wages and working conditions of their employ-
ees and has collective-bargaining agreements with employ-
ers covering among other matters grievances, wages, rates
of pay, hours of employment, and conditions of work, I
find, contrary to the Respondent's denial, that the Union is
a labor organization within the meaning of Section 2(5) of
the Act.
The fact a union does not have a constitution or bylaws
does not preclude finding it to be a labor organization
within the meaning of the Act. Moore Drop Forging
Company, 168 NLRB 984.
6 Sec 2(5) of the Act defines "labor organization" as "any organization
of any kind, or any agency or employee representation committee or plan,
in which employees participate and which exists for the purpose , in whole or
in part , of dealing with employers concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or conditions of work ",
r The three employers are Jesse Wilson d/b/a Spudnut Restaurant,
Riley's Liquor Store, and Gus Horemis and Gus Paraskevoulakas d/b/a
A. Background
Respondent following a training program conducted
from April 18 to April 24 for its approximately 56
employees opened the restaurant involved here, for
business, on April 24. Its manager was Sam Green and the
assistant manager was Greg Porter. Apart from their
immediate supervision John Rapachietti was the area
manager over 11 restaurants including this restaurant and
his assistant was Service Supervisor Harriet Dietz.8
The discriminatees employed by Respondent and the
positions they held were as follows: Susan Fox-waitress;
Chester Kittleson-cook Mary McKenna-hostess; Peter
Neuwald-waiter; Rosemary Sharp-cashier; Patty Sonn-
tag-cashier and waitress ; Peggy Thompson-waitress;
Karen Winer-waitress; Larry Gertzog-waiter; Alan
Nichols-cook; Elena Spielman-waitress; Helen Spring
-hostess; and Anne Stackhouse-waitress.9
About the latter part of April or early May, the Umon
began an organizing campaign among Respondent's
employees out of which this proceeding evolved.
B. Threats and Other Coercive Statements Made to
Respondent's Employees
On May 8, Manager Green held separate meetings with
Respondent's employees on the morning and afternoon
shifts after the bar manager had brought to his attention
that someone was trying to organize a union.
According to the testimonies of six employees who
attended these meetings Anne Stackhouse, Stewart Gipp,
Peter Neuwald, Helen Spring, Elena Spielman, and Susan
Fox, Manager Green after informing them that one of the
girls there was trying to organize a union told them if it
continued he would fire the whole crew, close the
restaurant down, and reopen with a new crew. Stackhouse,
Spring, and Spielman also testified Green informed them
he would not permit a union at the restaurant. Stackhouse
and Neuwald further testified Green told the employees
that those who wanted to organize a union should walk out
the door and mentioned he had a number of applications
from which he could find replacements.
Manager Green acknowledged telling the employees he
had been informed someone was trying to form a union.
Green testified he told the employees he didn't feel a union
was necessary because the wages and working conditions
were high enough there would not be a need for a union
and if they were having problems it would be best to come
to him and they would hash it out. Green stated at the
second meeting in response to a question by Anne
Stackhouse concerning what would happen if someone was
trying to form a union his reply was the Company opposed
unions and would fight in every legal manner to keep it
out. When Stackhouse inquired what would happen if the
Athen's Restaurant.
9 Respondent in its amended answer admitted that Area Manager
Rapachietti, Service Supervisor Dietz, Manager Green , and Assistant
Manager Porter were supervisors within the meaning of the Act.
9 Fox, McKenna, Neuwald , Sonntag, Thompson, Nichols, Spielman,
and Stackhouse were hired on April 18, Kittleson on May 2, Winer on May
5, and Spring on April 20
HOWARD JOHNSON CO. 1127
Union got in he replied if the Union was in and forced
them to close down that either the Company would go
elsewhere or open with new employees. Green stated he
also informed them if the restaurant was to shut down it
would hurt a lot of people including those who had to
work, college people, and those affected by Federal grants
being cut out.
Stackhouse, Gipp, Neuwald, Spring, Spielman, and Fox,
who corroborated each other's testimonies, all impressed
me as being more credible witnesses than Manager Green,
whom I discredit. Apart from my observation of the
witnesses Green's version appeared an attempt to legiti-
mize those unlawful statements attributed to him by the
witnesses.
Therefore, having credited these witnesses' testimonies, I
find Manager Green threatened to terminate the employ-
ees, close the restaurant, and reopen with new employees in
order to discourage the employees' union activities.
The Union by letter dated May 23, which Manager
Green acknowledged receiving on or about May 24,
notified Respondent that the Union's organizing commit-
tee had been conducting an organizing campaign among
Respondent's employees. Included in the letter were the
names of the Union's organizing committee consisting of
Larry Gertzog, Peter Neuwald, Alan Nichols, Patty
Sonntag, Elena Spielman. Anne Stackhouse. Peggy
Thompson, Brian Todd, and Don Weimer. All of these
individuals named, with the exception of Todd and
Weimer, were discriminatees in this proceeding.
Anne Stackhouse testified that on the morning of May
24 she and Don Wenner passed out union leaflets to
employees in front of the restaurant. Upon giving a leaflet
to Assistant Manager Porter, his response was they had to
be kidding. The leaflet distributed contained complaints
against working conditions; suggested benefits which could
be attained by forming a union; referred to threats by
management to close the restaurant and replace the
employees for trying to form a union; and called for a
meeting to he held on the afternoon of May 26 to discuss
the employees problems among themselves and with
members of other unions. The names of the nine
individuals on the Union's organizing committee, set forth
supra, were included on the leaflet.
Both Elena Spielman and Anne Stackhouse testified that
while they were distributing leaflets that afternoon with
Don Weimer Assistant Manager Porter told them they
were pretty mucn in hot water, stating that when Manager
Green had found out about the union leaflet he had started
tearing down the work schedule which had already been
prepared, removing the names of those employees who
were on the leaflet. Porter also told them after Area
Manager Rapachietti had calmed Manager Green down
the contents of the leaflet were dictated to Braintree 'O
whereupon it was decided to hold a meeting of all the
employees the following day, for which they would be paid
to attend, for the purpose of explaining Respondent's
benefits.
Anne Stackhouse testified that later that evening
Assistant Manager Porter informed her that when Area
Manager Rapachietti had talked to Manager Green he had
told Green to shut up reminding him he had already said
enough on May 8, which the date as discussed supra,
Manager Green had met with the employees. Porter also
told her Rapachietti. in addition to reading the leaflet over
the telephone to Braintree , had also read the letter which
the Union had sent to the Respondent.
Based upon the testimonies of Elena Spielman and Anne
Stackhouse, undenied by Assistant Manager Porter, who
did not testify, I find that by informing them Manager
Green had removed the names of those employees on the
union leaflet from the work schedule Assistant Manager
Porter had threatened them that Respondent was going to
terminate employees who supported the Union.
According to the testimony of Peter Neuwald, on the
morning of May 24 while in the stockroom he observed in
an open drawer of Manager Green's desk a work schedule
made out for the following workweek from which his name
as well as the names of the other employees contained on
the union leaflet had been omitted. However, Neuwald
acknowledged this schedule was never posted and the
previous week's work schedule had remained up.
Manager Green, while acknowledging he was aware
employees had distributed the union leaflet on May 24 and
had found a copy on his desk that morning which he had
given to Area Manager Rapachietti, did not deny the
existence of the work schedule observed by Neuwald,
whose testimony I credit.
On May 25, Respondent held meetings with its employ-
ees at which the Company's benefits as well as the Union
were discussed. Representing Respondent were Area
Manager Rapachietti, Manager Green, Service Supervisor
Dietz. and representatives from Braintree. Peter Neuwald
testified that upon questioning Manager Green at the
meeting about the schedule which he had observed the
previous day both Manager Green and Area Manager
Rapachietti denied having any knowledge of it.
Anne Stackhouse testified that on June 1, upon asking
Assistant Manager Porter whether it would be possible for
Peter Neuwald who had been terminated" to be recalled
to replace Judy Cuff who had quit work that evening,
Porter's response was Neuwald might get his job back if he
didn't "-12 around with all that union stuff." Stackhouse
stated that Evening Assistant Manager Porter also in-
formed her she could not talk about the Union with any of
her fellow employees except before and after work and
during paid breaks.13 When Stackhouse protested that her
First Admendment rights allowed her to speak to other
employees while working as long as it didn't prevent her
from doing her job, Porter replied that wasn't true and that
she could talk about anything but the Union with the
employees and if she continued to do so she would be
terminated.
Based upon Stackhouse's undenied testimony, which I
credit, I find that Assistant Manager Porter had informed
her that a terminated employee would be recalled if he
ceased engaging in union activities and had threatened
10 Uhe Respondent has offices located at Braintree. Massachusetts.
11 Neuwald. as discussed infra, was terminated on May 31
12 The word omitted is a four-letter slang word denoting sexual
intercourse.
13 There is no evidence to establish Respondent had in effect a valid no-
solicitation rule covering its employees
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stackhouse with termination for discussing the Union with
other employees.
Christopher Griffen testified that about the latter part of
June during a conversation between Stewart Gipp, Assist-
ant Manager Porter, and himself about not using busboys
Porter mentioned that certain types of decisions were maa,
by persons higher-up than Manager Green and himself.
When Gipp inquired whether this included the decision in
which the employees had been terminated, discussed infra,
Porter replied the decision was made by those higher up
than Area Manager Rapachietti and Service Supervisor
Dietz. Questioned further, Porter told them the way the
termination had occurred which he knew from numerous
meetings with Rapachietti, Dietz, and Green was that after
Respondent's May 25 meetings with the employees the
personnel director and one of the lawyers took a copy of
the leaflet which the Union had distributed and the work
schedule back to Braintree to work on it. Porter further
stated that later Manager Green and himself were
informed by Area Manager Rapachietti that there were
going to be layoffs and the names of the employees on the
leaflet were going to be terminated but not all at once and
not all union employees but there would be other
employees included so it wouldn't look so bad. Porter
further told them that if they would be patient for about 2
or 3 weeks after the union talk and everything had blown
over they would start getting more help where it wouldn't
be so bad for them.
Stewart Gipp, who placed the conversation as occurring
on June 24, corroborated Griffen's version of the conversa-
tion. Based upon the undenied testimonies of Christopher
Gnffen and Stewart Gipp, which I credit, I find that
Assistant Manager Porter informed them that employees
had been terminated because of their union activities.
C. Ordering Employees to Remove Union Buttons
and Their Suspensions Upon Refusing
The Respondent has a policy 14 prohibiting its employees
who work in the customer areas from wearing jewelry with
the exception of rings, wrist watches, and earrings provided
the earring posts are small and the employees' ears- are
pierced. On their uniforms the employees are only
permitted to wear name tags and service awards. These
service awards based upon the undisputed testimony of
Service Supervisor Dietz are approximately the size of a
dime and also have chains with the top part shaped like
bows.
The employees admittedly were informed of this policy
either during their training period or when hired. During
the Union's organizing campaign some employees began
wearing union buttons on their uniforms. These buttons
are described as round, about an inch in diameter, white in
color, with black wording around the edges "Madison
Independent Workers Union" and with larger letters
"MIWU" in the center, and contained the trademark or
trade name in smaller words enclosed at the bottom.
Patty Sonntag testified that on May 24 Area Manager
Rapachietti requested her to remove the union button
which she was wearing because it did not comply with the
uniform regulations; whereupon she removed it.
Peter Neuwald testified that on May 24 after Area
Manager Rapachietti had asked him if he knew the
Company's policy about wearing jewelry he asked him to
remove the union button he was wearing as being a
violation of that policy. When Neuwald replied he thought
he had a right to wear the union button Rapachietti
disagreed but stated he would check with the lawyers.
According to Neuwald on May 25, Rapachietti in the
presence of Karen Winer and Kathy Esser informed him
he had talked to the lawyers and felt they were right and it
was a violation of company policy to wear union buttons.
When Rapachietti again asked Neuwald to remove his
union button he inquired what would happen if he didn't.
Rapachietti's response was that disciplinary measures
would be taken and when asked to elaborate Rapachietti
said he would be suspended. Upon Winer's inquiring what
Rapachietti meant, his reply was that Neuwald would be
suspended for 3 workdays if he didn't remove the union
button. Neuwald stated he told Rapachietti he would think
about it.
Karen Winer, who corroborated Neuwald's testimony,
testified that both she and Kathy Esser removed the union
buttons they were wearing. Winer further stated Rapa-
chietti told them they had the right to require them to
remove their union buttons because it wasn't part of their
uniforms and would involve customers.
Neuwald stated that when he subsequently informed
Rapachietti he felt he had a right to wear the union button
and would not remove it Rapachietti suspended him for 3
workdays.
Anne Stackhouse testified that on May 25 Assistant
Manager Porter asked her to remove the union button
which she was wearing and to tell Elena Spielman who was
present to remove her union button when they were told to
do so because he could not afford to lose them for 3 days
because they were very valuable employees. Stackhouse
did not remove her union button.
Stackhouse testified that later that day Area Manager
Rapachietti, after informing Elena Spielman and herself
the company policy prohibited the wearing of jewelry or
ornamentation on their uniforms, told them to remove the
union buttons which they were wearing. Stackhouse stated
that when she asked Rapachietti what would happen to her
if she refused Rapachietti replied she would be suspended
for 3 days without pay. Stackhouse and Spielman both
removed their union buttons. Spielman corroborated
Stackhouse's testimony concerning the conversation with
Rapachietti.
Peggy Thompson testified on May 24 Area Manager
Rapachietti informed her the Company did not allow any
jewelry or ornamentation to be worn on her uniform.
Upon replying she didn't have any jewelry but was only
wearing her union button, Rapachietti's response was that
they did not permit employees to wear union buttons.
When Thompson mentioned a case involving the NLRB
and Sheraton employees whereby they had been permitted
14 The policy is contained in Respondent's training manual and and its purpose is to keep neat-appearing, wholesome people before the
according to Service Supervisor Dietz' undisputed testimony has been in public
effect for many years and is applied to other restaurants within the division
HOWARD JOHNSON CO. 1129
to wear union buttons Rapachietti's response was there
was no union there.
Thompson testified that the following day Area Manager
Rapachietti reminded her of their conversation the
previous day about wearing the union button. When
Thompson, who was still wearing her union button, replied
she believed she had the right to wear it, Rapachietti told
her if she didn't take the union button off they would have
to take disciplinary action against her by suspending her
for 3 days. Pursuant to her inquiry, Thompson was
informed at the end of that period if that she returned with
her union button she would be suspended again. Upon
inquiring what was the difference between that and being
fired Rapachietti told her it would just be a continuous
suspension. Thompson then told Rapachietti she was not
going to take the union button off because she thought she
was right, whereupon Rapachietti suspended her for 3
days. While they were looking at the schedule to determine
the date she was to return to work, Thompson testified,
Don Weimer asked Rapachietti if he was aware of the case
involving the Sheraton employees and the NLRB's rulings.
Rapachietti's response was that while he was vaguely
aware of it and didn't know all of the legal technicalities he
was taking his orders from Braintree.
Helen Spring testified that on or about June 7 Assistant
Manager Porter asked her about a union button which she
was wearing on her uniform.15 Upon replying that it had
nothing to do with the restaurant, Porter told her she had
better take it off. When asked why, Porter replied because
they suspended people for 3 days for wearing union
buttons there. Spring's response was it was a free country
and the button had nothing to do with her job. Spring
continued wearing the union button until her termination
on June 14.
There was no evidence employees who worked outside
the customer areas were precluded from wearing union
buttons. Further, Neuwald, under cross-examination,
stated that Area Manager Rapachietti had informed him
that the employees who worked in the kitchen area could
wear union buttons and he had observed them wearing
such buttons without being required to remove them.
Based upon the undisputed testimonies of Patty Sonntag,
Peter Neuwald, Karen Winer, Anne Stackhouse, Elena
Spielman, Peggy Thompson, and Helen Spring, which I
credit, I find Respondent ordered its employees who
worked in customer areas under threat of suspension to
remove their union buttons and suspended both Peter
Neuwald and Peggy Thompson for 3 workdays each for
their refusal to remove their union buttons.
D. The Discriminatees ' Terminations
Respondent on May 31 terminated the employment of
the discnminatees Susan Fox, Chester Kittleson, Mary
McKenna, Peter Neuwald, Rosemary Sharp, Patty Sonn-
tag, Peggy Thompson, and Karen Winer, and on June 14
15 The union button worn by Spring was of the same shape and
approximately the same size as the union buttons wore by the other
employees , was white and gold in color and contained the words and
numerals in black "State County & Municipal Employees AFL-CIO"
around the edges with "Local 171 1973" in the center
16 These were the only employees included in both terminations.
terminated the employment of the remaining discrimina-
tees Larry Gertzog, Alan Nichols, Elena Spielman, Helen
Spring, and Anne Stackhouse.16
These terminations occurred without prior notice to the
discriminatees and were effective immediately.17 Among
this group of 13 discrimunatees, 9 had participated in union
activities of which Respondent had knowledge. Gertzog,
Neuwald, Nichols, Sonntag, Spielman, Stackhouse, and
Thompson were the members of the Union's organizing
committee whose names were contained in the Union's
letter to Respondent and appeared on the union leaflet.
Stackhouse, Spielman, Sonntag, Neuwald, Thompson,
Winer, and Spring had all engaged in wearing union
buttons at work whereupon they had been ordered under
threat of suspension by Respondent's supervisors to
remove them, and both Neuwald and Thompson had been
temporarily suspended for their refusal to remove their
union buttons. Stackhouse, Spielman, Neuwald, and
Nichols were all observed by Respondent's supervisors
distributing union leaflets at the restaurant.
With respect to the remaining discriminatees, Fox,
Kittleson, McKenna, and Sharp, no evidence was offered
to establish, Fox specifically denied, and the General
Counsel did not contend that they had engaged in any
union activities. Further, there was no evidence to indicate
Respondent suspected they had engaged in any such
activities.
Area Manager Rapachietti testified that on May 11 after
the second full week of operation, because the anticipated
sales and profit percentages as reflected by Respondent's
records were below expectations, a decision was made by
him that certain corrective action was necessary. While
Rapachietti claimed the first adjustment made was to
reduce employees' work hours, the record does not
establish to what extent, if any, this occurred.
Rapachietti testified that on May 26, based upon the
results of the payroll and sales figures for the week ending
May 25, he made the decision to terminate employees on
May 31 and subsequently on June 9 made the decision to
terminate the additional employees on June 14.
On the days preceding both terminations, Area Manager
Rapachietti met with Manager Green and Service Supervi-
sor Dietz for the purpose of selecting those employees to be
terminated. According to Rapachietti, who was unable to
recall any specific discussions with respect to the selection
of the employees, the selections were primarily determined
through the joint agreement of Manager Green and Service
Supervisor Dietz, whom he utilized in making the selec-
tions and who were more knowledgeable of the employees.
Manager Green and Service Supervisor Dietz testified
Susan Fox was selected for termination because she was
slow; Peter Neuwald because he was slow and didn't carry
a full work station well; Patty Sonntag because of her
attitude in demanding days off from work; Karen Winer
because of her lack of training ; Larry Gertzog because he
was often late to work; Mary McKenna and Helen Spring
17 Both Area Manager Rapachiettt and Peter Neuwald , under cross-
examination, acknowledged that at the May 25 meeting with the employees
Rapachietti had informed them in response to a question by Anne
Stackhouse that he had not received any instructions from the Company to
cut the payroll
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because they didn't need night hostesses; Rosemary Sharp
because of family problems and trouble as a cashier in
making change; and Peggy Thompson because of both her
work and appearance. Dietz did not participate in the
discussions with respect to Chester Kittleson, who Green
stated was selected because he couldn't handle food well
and was wasteful, or the discussion concerning Alan
Nichols who Green stated was selected because of his lack
of experience. Although Dietz claimed Elena Spielman and
Anne Stackhouse were selected because they had objected
to bussing tables, Green gave as the reasons that they were
not as good as the waiters.
There was no evidence that any of the discriminatees had
ever been warned concerning the reasons for which they
were selected. Moreover Area Manager Rapachietti admit-
ted that each of the discriminatees was considered to be a
satisfactory employee and according to the undenied
testimony of Christopher Griffen, which I credit, following
the discriminatees terminations Area Supervisor Dietz
informed him that she had been satisfied with their work.
Area Manager Rapachietti testified, and Stackhouse,
Sonntag, Neuwald, Spielman, Winer, McKenna, Fox and
Nichols all acknowledged that the reasons given for their
terminations were lack of business or economic. According
to Stackhouse, Sonntag, Neuwald, Winer, and Nichols, as
well as Service Supervisor Dietz, they were also informed
that they had been selected for termination because of
their performance although no specific reasons were given.
Both Rapachietti and Manager Green, as well as Stack-
house, Thompson, Spring, Spielman, and Nichols, testified
that when they asked about being recalled they were
informed they would not be given any preference over
other applicants for employment.
Respondent's records show that after its opening in late
April the restaurant operated at a loss 18 until August when
it first showed a profit. During this period beginning in
May, the first full month of operation, the total payroll was
steadily reduced from $14,059 to $7,682 in August,19 while
net sales vaned but did not substantially increase overall
during this period.20
Apart from Respondent's financial records, three of the
General Counsel's witnesses Christopher Griffen, Patty
Sonntag, and Susan Fox all acknowledged under cross-
examination that prior to the employees being terminated
business was poor and there were not enough customers to
keep the employees busy.
Although, after the last group of employees were
terminated on June 14, a number of employees were
subsequently hired in the same job classifications, with the
exception of hostess, held by the discriminatees, according
to Manager Green's testimony, they were only hired to
replace employees leaving after that date. The stipulated
payroll figures establish that the total number of employees
decreased from 52 employees on June 1 as follows: June
8-39; June 22-37; and June 29-35. These figures which
are consistent with the decreased payroll figures set forth
18 The operating loss in April was $6,743, May $7,730, June $7,624, and
July $372
is The total payroll for June was $12 ,882, and July $7,821.
20 The net sales for May were $22 ,372, June $21,837, July $20,459, and
August $24,047
21 Sec 8(axl) of the Act prohibits an employer from interfering with,
above corroborated Manager Green's testimony that the
employees were hired as replacements.
E. Analysis and Conclusions
The General Counsel contends, while Respondent
denies, that Respondent violated Section 8(a)(1) and (3) of
the Act21 by unlawfully threatening employees with
discharge, closing the restaurant, and reopening with new
employees because of union activities; informing employ-
ees other employees had been discharged because of their
union activities or that an employee would be recalled if
the employee ceased engaging in union activities; ordering
employees under threat of suspension to remove their
union buttons; discriminatorily suspending Peter Neuwald
and Peggy Thompson for wearing union buttons; and
discriminatorily discharging and denying reinstatement to
Susan Fox, Chester Kittleson, Mary McKenna, Peter
Neuwald, Rosemary Sharp, Patty Sonntag, Peggy Thomp-
son, Karen Winer, Larry Gertzog, Alan Nichols, Elena
Spielman, Helen Spring, and Anne Stackhouse because of
their union memberships, sympathies, and activities.
Based upon my findings supra, Respondent's Manager
Green at the May 8 meeting with employees threatened to
terminate the employees, close the restaurant, and reopen
with new employees in order to discourage employees'
union activities; Assistant Manager Porter threatened
Elena Spielman and Anne Stackhouse that Respondent
was going to terminate those employees who supported the
Union; Assistant Manager Porter informed Anne Stack-
house that a terminated employee would be recalled if he
ceased engaging in union activities and threatened Stack-
house with termination for discussing the Union with other
employees; and Assistant Manager Porter informed
Christopher Griffen and Stewart Gipp that employees had
been terminated because of their union activities. I hereby
find such conduct interfered with, restrained, and coerced
Respondent's employees in the exercise of their rights
guaranteed in Section 7 of the Act and thereby violated
Section 8(a)(1) of the Act.
The undisputed evidence established and I have found
that Respondent, through Area Manager Rapachietti and
Assistant Manager Porter, ordered employees who worked
in customer areas under threat of suspension to remove
their union buttons, and Peter Neuwald and Peggy
Thompson were temporarily suspended for 3 days each for
wearing union buttons. Respondent, contrary to the
General Counsel, contends that its uniform policy prohib-
iting employees from wearing union buttons while working
was lawful and therefore the enforcement of such policy
did not violate the Act.
The right of employees to wear union insignia at work is
a protected concerted activity. Republic Aviation Corpora-
tion v. N.LR.B., 324 U.S. 793 (1945). Absent "special
circumstances" necessary to maintain production and
discipline, a rule prohibiting employees from wearing
restraining , or coercing its employees in the exercise of their rights
guaranteed in Sec 7 of the Act Sec. 8(a)(3) of the Act provides in pertinent
part "It shall be an unfair labor practice for an employer . by
discrimination in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any
labor organization 11
HOWARD JOHNSON CO.
union buttons at work violates Section 8(a)(1) of the Act.
Employee contacts with customers had been held not to
constitute such "special circumstances" as to deprive
employees of that right. Floridan Hotel of Tampa, Inc., 137
NLRB 1484, enfd. as modified 318 F.2d 545 (C.A. 5, 1963).
Nor does the fact the rule relates to the wearing of
uniforms and is promulgated prior to the advent of
employees union activities afford a defense. Consolidated
Casinos Corp., 164 NLRB 950.
Applying the applicable law to the facts in this case, the
evidence established the union buttons, which the employ-
ees were prohibited from wearing under Respondent's
policy, were neither conspicuous or contained any provoc-
ative legends. Apart from the asserted purpose, the policy
with respect to wearing the uniform was to keep neat-
appearing, wholesome people before the public. Respon-
dent offered no evidence to establish any "special
circumstances" to justify prohibiting its employees, while
permitting them to wear service pins , from wearing the
union buttons.
Under these circumstances , occurring in context with
Respondent's other unlawful conduct found herein, I find
the maintenance and enforcement of its policy prohibiting
its employees from wearing the above-described union
buttons while at work constituted interference , restraint,
and coercion of its employees in violation of Section
8(a)(1) of the Act, and by temporarily suspending
employees Peter Neuwald and Peggy Thompson because
of such policy Respondent further violated Section 8(a)(3)
and (1) of the Act.
The remaining issue to be decided is whether the 13
discriminatees herein were discriminatorily discharged and
denied reinstatement because of their union activities or, as
Respondent contends , because of an economic reduction
in force.
Direct evidence of discriminatory motivation is not
necessary to support a finding of discrimination and such
intent may he inferred from the record as a whole. Heath
International, Inc., 196 NLRB 318. The fact that layoffs
may be economically justified is no defense if the selection
of those employees laid off was because of their union
activities. N.LR.B. v. Bedford-Nugent Corporation, 379
F.2d 528, 529 (C.A. 7, 1967); N. LKB. v. Deena Products
Co., 195 F.2d 330, 335 (C.A. 7, 1952); cert. denied 344 U.S.
827 (1952).
The evidence based upon the testimony of Area
Manager Rapachietti and Respondent's financial records
support Respondent's position that, although the restau-
rant had only recently opened for business , because of the
operating losses an economic reduction in force was
justified. These records show that after the employees were
terminated the restaurant continued operations with a
reduced employee complement and payroll cost which
subsequently resulted in an operating profit without a
substantial overall increase in net sales. Further evidence
to support the necessity for a reduction in force were the
acknowledgments by several of the General Counsel's own
witnesses that prior to the employees being terminated
business was bad and there were not enough customers to
keep the employees busy.
Based upon such evidence, 1 find the reduction in force
1131
for economic reasons was justified . Having so found there
remains for determination whether the discriminatees were
discriminatorily selected to be included in the reduction
because of their union activities.
The violations of Section 8(a)(1) and (3 ) of the Act
herein found and set forth above established both
Respondent's union animus and threats to discharge those
employees who engaged in union activities . Subsequent to
those initial threats the discriminatees , Gertzog, Neuwald,
Nichols, Sonntag, Spielman , Stackhouse , Thompson, Win-
er, and Spring, all openly engaged in union activities by
distributing union leaflets, wearing union buttons, or
serving on the Union's organizing committee whose
members' names were contained in the union leaflet and in
the Union's letter to the Respondent . Not only did
Respondent have knowledge of their union activities, but
each of them, with the exception of Gertzog , had been
personally threatened by either Area Manager Rapachietti
or Assistant Manager Porter concerning such activities and
Neuwald and Thompson had also been temporarily
suspended for wearing union buttons . Further the names
of Gertzog, Neuwald, Nichols, Sonntag , Spielman, Stack-
house, and Thompson had been excluded from a work
schedule observed by Neuwald in Manager Green's desk
on May 24 which was the same day the Union 's leaflet was
distributed and the Union 's letter to the Respondent was
received, both containing their names . Although the work
schedule was never posted , no explanation was given for its
existence, despite Respondent's evidence that the decision
to terminate employees was first made on May 26 and the
first selections on May 30.
The terminations in both instances occurred abruptly
and without prior notice . While the Respondent acknowl-
edged that the discriminatees were satisfactory employees
and had been trained, they were admittedly given no
preference in being rehired when openings in their job
classifications subsequently became available and Assist-
ant Manager Porter had given as a reason for not recalling
Neuwald his union activities.
Upon considering the record as a whole and for those
reasons discussed , I am persuaded and find that the
Respondent utilized the economic reduction in force as an
opportunity for getting rid of union adherents and its
selections of Gertzog, Neuwald, Nichols, Sonntag, Spiel-
man, Stackhouse , Thompson, Winer, and Spring were
made for that discriminatory purpose and not for the
reasons given by Area Manager Rapachietti, Manager
Green , or Area Supervisor Dietz, which I discredit.
Accordingly I find that the Respondent terminated
Gertzog , Neuwald, Nichols , Sonntag, Spielman, Stack-
house , Thompson , Winer, and Spring because of their
union activities , thereby violating Section 8 (a)(3) and (1) of
the Act.
With respect to the remaining discriminatees, Fox,
Kittleson , McKenna, and Sharp , inasmuch as they did not
engage in any union activities and in view of my finding
that the economic reduction in force was justified, I find
that the General Counsel has failed to prove by a
preponderance of the evidence as is his burden that these
four individuals were discriminatonly discharged in viola-
tion of Section 8(a)(3) and ( 1) of the Act.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate , and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Howard Johnson Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Madison Independent Workers Union is a labor
organization within the meaning of Section 2(5) of the Act.
3. By threatening to terminate employees, close the
restaurant, and reopen with new employees in order to
discourage union activities; threatening to terminate
employees who supported the Union; informing an
employee that a terminated employee would be recalled if
he ceased engaging in union activities; threatening an
employee with termination for discussing the Union with
other employees; informing employees that employees had
been terminated because of their union activities; and
maintaining and enforcing a policy prohibiting its restau-
rant employees from wearing union buttons while at work,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in
Section 7 of the Act, and has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
4. By temporarily suspending Peter Neuwald and
Peggy Thompson for wearing union buttons and by
discriminatorily discharging and refusing to reinstate Larry
Gertzog, Peter Neuwald, Alan Nichols, Patty Sonntag,
Elena Spielman, Anne Stackhouse, Peggy Thompson,
Karen Winer, and Helen Spring because of their union
activities, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act, I shall recommend that it
cease and desist therefrom and to take certain affirmative
action to effectuate the policies of the Act. Accordingly,
the Respondent, if it has not already done so, shall be
ordered to immediately reinstate Larry Gertzog, Peter
Neuwald, Alan Nichols, Patty Sonntag, Elena Spielman,
22 Although the evidence established Larry Gertzog was rehired on July
19 and Alan Nichols on August 17, and that about the latter part of July or
early August jobs offers were made to Elena Spielman , Karen Winer, Patty
Sonntag, Peggy Thompson , and Helen Spring , the evidence does not
establish whether such offers of reinstatement or actual reinstatements were
to the employees ' former jobs or, if those jobs no longer existed, to
substantially equivalent jobs and were without prejudice to the employees'
seniority and other rights and privileges Therefore, the reinstatement order
has been qualified to the extent the Respondent need not offer full and
Anne Stackhouse, Peggy Thompson, Karen Winer, and
Helen Spring to their former jobs, or, if those jobs no
longer exists, then to substantially equivalentjobs without
prejudice to their seniority and other rights and privileges
and to make each of them whole for any loss of earnings
and compensation he or she may have suffered because of
the illegal discrimination against them in their employment
until the date of such offer of reinstatement , including the
periods for which Peter Neuwald and Peggy Thompson
were discriminatorily suspended.22 Backpay shall be
computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289, and payment of 6-percent interest per annum
shall be computed in the manner prescribed by the Board
in Isis Plumbing & Heating Co., 138 NLRB 716.
Further, in view of the nature of the unfair labor
practices herein found, Respondent shall be ordered to
cease and desist from "in any manner" infringing upon the
rights guaranteed to its employees by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 23
Respondent, Howard Johnson Company, Madison,
Wisconsin , its officers, agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Threatening to discharge its employees, close the
restaurant, and reopen with new employees in order to
discourage employees' union activities.
'(b) Threatening to discharge employees for supporting
the Union.
(c) Unlawfully threatening to discharge employees for
discussing the Union with other employees.
(d) Maintaining or enforcing any policy prohibiting its
restaurant employees from wearing union buttons while at
work.
(e) Discouraging membership in the Madison Independ-
ent Workers Union, or any other labor organization, by
suspending, discharging, or refusing to reinstate, or in any
other manner discriminating against, any employee in
regard to hire or tenure of employment or any term or
condition of employment.
(f) In any manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act, except that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized
by Section 8(a)(3) of the Act.
2. Take the following action necessary to effectuate the
policies of the Act:
(a) Offer, if it has not already done so, immediate and
proper reinstatement to those discriminatees if it has already done so. See
Fredeman's Calcasieu Locks Shipyard, Inc, 206 NLRB No 104.
22 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order and all objections thereto shall be
deemed waived for all purposes.
HOWARD JOHNSON CO. 1133
full reinstatement to Larry Gertzog, Peter Neuwald, Alan
Nichols, Patty Sonntag, Elena Spielman, Anne Stackhouse,
Peggy Thompson, Karen Winer, and Helen Spring to their
former jobs or, if those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority and
other rights and privileges, and make each of them whole
for any loss of pay or other compensation he or she may
have suffered by reason of the discrimination against them,
including the temporary suspensions of Peter Neuwald and
Peggy Thompson, until the date of such offer of reinstate-
ment, in the manner set forth in that portion of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Boaid or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due under the terms of this Order.
(c) Post at its restaurant facilities located at 525 West
Johnson Street, Madison, Wisconsin, copies of the atta-
ched notice marked "Appendix." 24 Copies of said notice
on forms furnished by the Regional Director for Region
30, after being duly signed by the Respondent's authorized
representative, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint as amended,
be, and it hereby is, dismissed insofar as it alleged unfair
labor practices not specifically found herein.
24 In the event the Board 's Order is enforced by a judgment of the to a Judgment of the United States Court of Appeals Enforcing an Order of
United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board
Order of the National Labor Relations Board" shall read "Posted Pursuant