Morrison Cafeteria Co., Inc.

National Labor Relations Board - Board Decisions

Nov 17, 1969

179 N.L.R.B. 593 (N.L.R.B. 1969)

MORRISON CAFETERIA COMPANY, INC. 593
Morrison Cafeteria Company , Inc. and Morrison
Food Service of Alabama , Inc. and Hotel &
Restaurant Employees and Bartenders
International Union , Local -176, AFL-CIO. Cases
15-CA-2635 and 15-RC-3029
November 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On September 26, 1968, Trial Examiner A Bruce
Hunt issued his Decision in the above-entitled
proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor
practices and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He further found that the Respondents
had not engaged in certain other unfair labor
practices alleged in the amended complaint and
recommended that such allegations be dismissed. He
also recommended that the objections to the
elections in Case 15-RC-3029 be sustained, the
results of the elections be set aside, a second election
be conducted among employees of Morrison
Cafeteria Company, Inc., and that that case be
closed insofar as it involves Morrison Food Service
of Alabama, Inc. Thereafter, the Respondents filed
exceptions to the Trial Examiner's Decision and a
brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings," conclusions, and recommendations of the
Trial Examiner except as modified below
We find, in agreement with the Trial Examiner,
that the Respondents violated Section 8(a)(1) of the
Act by (1) threats that the Respondents would not
have a union and would close the Mobile cafeterias;
(2) requests to employees to report to management
if anyone spoke to them concerning the Union; (3)
The Respondents except to the credibility resolutions made by the Trial
Examiner It is the Board ' s established policy not to overrule a Trial
Examiner 's resolutions as to credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Such a
conclusion is not warranted here Standard Drv Wall Products . Inc . 91
NLRB 544, enfd 188 F 2d 362 (C A 3)
We note that the Trial Examiner ' s Decision , apparently inadvertently,
in one instance referred to the date of the Union ' s letter requesting
recognition and bargaining as June 20 , 1964, rather than December 20,
1964, the correct date
repeated inquiries of employees concerning their
attendance at union meetings; (4) inquiries as to
how employees intended to vote in the-election,(5)
promises of wage increases after the election; (6)
threats- of discharge of employees who joined 'or
voted for the Union, and (7) attempts, including
letters to all employees signed by President Gibbons,
to instill in the employees a sense of fear that
unionization would bring on strikes and a loss of
fobs.' We further find, for the reasons stated by the
Trial Examiner, that the Respondents violated
Section 8(a)(3) and (1) by the discharge of seven
employees for their union activities.
The Trial Examiner found, and we agree, that the
Union represented a majority of the employees in
the appropriate unit at the Dry Dock cafeteria' and
that a bargaining order is appropriate. We find that
the Respondents' extensive violations of Section
8(a)(I) and (3) would reasonably be expected to
have the effect of undermining the,Union's majority,
and that they' destroyed the conditions necessary to
the holding of a free and fair election We conclude
that, in order to protect the statutory rights and
interests of employees and to remedy the violations
of Section 8(a)(I) and (3) committed, it is essential
that the Respondent Morrison Food Service of
Alabama, Inc., be ordered to recognize and bargain
with the Union as the statutory representative of its
employees for the purposes of collective bargaining.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondents, Morrison Cafeteria 'Company, Inc ,
and Morrison Food Service of Alabama, Inc.,
Mobile, Alabama, their officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as herein
The Gibbons letters, particularly when considered in context with
Respondents' other unfair labor practices and communications to
employees, are fairly to be viewed, in the opinion of a majority of the
Panel, not as an honest prediction, but as an implied threat, so intended
and understood, that Respondents would not bargain in good faith with the
Union even if it was selected by the employees, but would instead force the
Union to strike with a consequent loss of jobs and other economic
detriment to employees Member Zagoria would not find the Respondents'
letters violative of the Act See General Automation Manufacturing, inc ,
167 NLRB No 66, fn 7
Over the Respondents' objection, the Trial Examiner permitted the
General Counsel to litigate the employee status of Jeanette Yeager, who
obtained a substantial number of the Union's designation cards Although
Yeager had been found to be a supervisor in the prior representation case
(15-RC-3029), in which the General Counsel was not a party, the Trial
Examiner found, on the evidence presented in this proceeding, and we
agree, that Yeager was not a supervisor We further find that the Trial
Examiner was correct in permitting the status of Yeager to be litigated
before him Clothing Workers v N L R B (Sagamore Shirt Co ). 365
F 2d 898 (C A D C ). Heights Funeral Home, Inc v N L R B, 385 F 2d
879 (C A 5)
'N L R B v Gissel Packing Company, 395 U S 575, George A Angle,
d/b/a Kansas Refined Helium Company, 176 NLRB No 115
179 NLRB No. 97
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
modified. Delete in paragraphs A,2,(c) and B,2 of
the Recommended Order the words, "to be prepared
by this Respondent
IT IS FURTHER ORDERED that the elections held in
Case 15-RC-3029 on April 15 and 16, 1965, be, and
they hereby are, set aside, and that that case be
remanded to the Regional Director for Region 15
for the purpose of conducting a new election among
employees of Morrison Cafeteria Company, Inc., at
such time as he deems the circumstances permit the
free choice of a bargaining representative, and that
that case be closed insofar as it involves Morrison
Food Service of Alabama, Inc.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A BRUCE HUNT, Trial Examiner: These consolidated
cases involve allegations (I) that the Respondents,
Morrison Cafeteria Company, Inc and Morrison Food
Service of Alabama, Inc , violated Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended, 29
U S C Sec. 151, et seq , and (2) objections to two
elections filed by Hotel & Restaurant Employees and
Bartenders International Union, Local 176, AFL-CIO'
On various days during August 1966 and March 1967, 1
conducted a hearing at Mobile, Alabama, at which the
General Counsel and the Respondents were represented A
procedural issue concerning objections to- one of the
elections is discussed hereinafter By stipulation of
counsel, the record in this proceeding includes the record
on remand, made on August 3 and 4, 1966, and March 15
and 16, 1967, in Morrison Cafeterias Consolidated, Inc
and Morrison Cafeteria Company of Little Rock, Inc ,
Case 26-CA-1520, at -which I was the Trial Examiner,
herein sometimes called the Little Rock case The-Board's
decision and my original decision in that case are reported
at 148 NLRB 139 My supplemental decision in that case
is TXD-519-68, issued simultaneously herewith.' Upon the
entire record and my observation of the witnesses, I make
the following
FINDINGS OF FACT
I THE RESPONDENTS AND THEIR PARENT
CORPORATION
Morrison Cafeteria Company, Inc (Morrison Cafeteria
or Morrison's), and Morrison Food Service of Alabama,
Inc (Morrison Food Service or Morrison's), are Alabama
corporations having their principal offices in Mobile,
Alabama. The former operates two cafeterias in Mobile
and the latter operates cafeterias in Alabama for use by
employees of industrial employers, schools, hospitals, and
other installations. Each of the Respondents annually has
a gross revenue exceeding $500,000 and receives- products
valued in excess of $50,000 which are shipped to it-directly
from points outside the State of Alabama I find that the
Respondents are engaged in commerce within the meaning
of the Act.
The complaint alleges, and the Respondents deny, that
the Respondents are wholly owned subsidiaries of
Morrison Cafeterias Consolidated, Inc (Morrison
Consolidated), have common offices, interlocking Boards
of Directors and substantially the same corporate officers,
and constitute a single integrated business enterprise This
allegation is supported by the record' J H Gibbons is
the president of Morrison Consolidated and all of its
subsidiaries, the latter being the corporations which
operate the cafeterias James H. Holland is an officer and
director of the parent corporation and an officer in each
bf the subsidiaries His testimony in the Little Rock case
on remand, which is a part of the record here, is that he
regards the entire enterprise involving the parent and its
subsidiaries as one company Thus, he referred to himself
as "[v]ice president of the whole company." John W. Hill
is a vice president of Morrison Food Service and
Morrison Consolidated He testified for the Respondents
in the instant case that Morrison Consolidated "is the
company itself." Morrison Consolidated is not a
respondent in this proceeding
11. THE UNION
Hotel & Restaurant Employees and Bartenders
International Union, Local 176, AFL-CIO, is a labor
organization which admits to membership employees of
the Respondents.
III. THE UNFAIR LABOR PRACTICES
A The Issues
During September 1964, the Union began an
organizational campaign among employees at the two
public cafeterias operated by Morrison Cafeteria in
Mobile, one located on Royal Street and the other on
Highway 90 During November 1964, the Union began its
activity at a cafeteria operated by Morrison Food Service
in Mobile upon the premises of Alabama Dry Dock and
Shipbuilding Co for employees of the Dry Dock Those
employees are represented by a labor organization, and
one of that organization's members, Milford ("Sonny")
Yeager, took an active part in the organization of
Morrison Food Service's employees in the cafeteria
Yeager's wife, Jeanette, worked for Morrison Food
Service, and she too took an active part in the Union's
organizational efforts at the Dry Dock cafeteria One of
our main issues is whether Jeanette Yeager was a
supervisor within the meaning of the Act If she was,
many of the applications for membership in the Union
which employees of Morrison Food Service signed may
not be counted in determining whether the Union
''Charges were filed in Case 15-CA-2635 on April 16 and May 10, 1965,
and March 28, 1966 A complaint was issued on January 18, 1966, and on
the same day the Regional Director issued ( I) an order directing a hearing
on objections to elections which had been filed by the Union in Case
15-RC-3029 and ( 2) an order consolidating the cases On April 14, 1966,
the Regional Director issued an amended complaint and notice of hearing
As more fully set out in TXD-519-68, counsel for the General Counsel
moved that I consolidate the Little Rock case with the instant cases for
hearing , and I sustained objections to the motion which counsel for the
various respondents filed
'In my original decision in the Little Rock case , I made certain findings
concerning Morrison Consolidated and its relationship to its subsidiary
corporations Eg, 148 NLRB at 140 and 145 Those findings were based
in part upon admissions In my Supplemental Decision in the same case,
issued simultaneously herewith, I made like findings It should be noted
that only the record in that case on remand is a part of the record here It
should be noted additionally that , while all of the record on remand is
relevant here on the issues of credibility , some of the evidence related to
alleged events outside Mobile, Alabama, involving subsidiary corporations
which are not respondents here -
MORRISON CAFETERIA COMPANY, INC.
possessed majority status at the cafeteria Other principal
issues are whether the Respondents inter alia interrogated
and threatened their employees, and promised employees
benefits, as means of undermining the Union, and
invalidly discharged certain employees The remaining
principal issues are whether there is merit in the Union's
objections to elections, whether the objections to the
election at the Dry Dock cafeteria may be considered by
me, and whether, in the light of the facts recited below,
Morrison Food Service -should be required to bargain
collectively with the Union as the representative of
employees at the Dry Dock cafeteria -
B Prefatory Statement
By letter of December 20, 1964, M B Race, a
representative of the Union, wrote to Gibbons, president
of the Respondents and their parent corporation, saying
that the Union represented a majority of the employees of
Morrison Food Service at the Dry Dock and of Morrison
Cafeteria at the two public cafeterias, and requesting
recognition and negotiations On December 28, Gibbons
replied on the stationery of the parent corporation,
declining to meet with Race and saying that the
Respondents doubted the appropriateness'of the unit and
that the Union possessed majority status at any of the
three locations. Also on December 28, Race filed a
petition in Case l5-RC-3029 with the Board's Regional
Office On January 26, 1965, a hearing was held upon the
petition On March 18, 1965, the Regional Director issued
his Decision and Direction of Election in which he found,
inter alia , that the single unit requested by the Union was
inappropriate, and that instead,' as contended by
Morrison's, the employees at the public cafeterias and the
employees at the Dry Dock cafeteria constituted two
separate appropriate units On April 15 and 16,
respectively, elections were held at the Dry Dock cafeteria
and at the public cafeterias The Union lost both elections.
Subsequently, the Union filed its objections, dated April
22, 1965, to alleged conduct by the Respondents affecting
the results of both elections ° We turn now to acts of the
Respondents prior to the elections
C Events and Conclusions
I Events at the Dry Dock cafeteria
This cafeteria was operated by Morrison Food Service
on the premises of the Dry Dock for use by employees of
the latter. The contractual relationship between the two
employers is one whereby Morrison Food Service can
cease its operation of the cafeteria upon 30 days' notice to
the Dry Dock Company At times material before
February 1, 1965, Theodore Rehwinkel was the manager
at the cafeteria He is still in the employ of Morrison
Food Service Between February I and March I, 1965,
Everett Mills, the production and procedures supervisor
for Morrison Food Service, was acting manager at the
cafeteria On March 1, Clifford Waldron became the
manager The assistant manager was Bessie Sweeney
Hastings
Hastings was a witness for the General Counsel, and
certain matters relating to her credibility will be recited
before there is a discussion of her testimony concerning
alleged unfair labor practices and her conversations with
The Respondents have preserved their positions in respect to certain
issues in the representation case
595
other representatives of management Hastings began
work for Morrison Food Service in 1958 or 1959 and
advanced to the position of assistant manager at the Dry
Dock cafeteria She was discharged during the latter part
of 1965 because of an altercation in the cafeteria between
herself and the man named Hastings to whom she was
married at the time of the hearing She testified that she
felt "[a]bsolutely" that Morrison Food Service had been
"quite unjust" in discharging her and that she should have
been transferred "somewhere else" in view of her length
of service and the fact that she had lost four fingers and a
part of the thumb of her right hand while at work While
testifying, the stump of Hastings' hand was enclosed in a
glove except when she removed it momentarily to disclose
the lost portions Her uncontradicted testimony is that she
had been directed by a superior to grind hamburger, that
she had protested even to the point of tears that she did
not know how to use the grinding machine, and that the
result of following her superior's order was the injury to
her hand. Notwithstanding Hastings' strong feelings that
she had been treated unfairly, she did not respond to two
subpoenas and testificandum which were served upon her
by undisclosed means A third subpena was served by a
United States marshal, and she then came to the hearing
Additionally, by her demeanor, she did not impress me as
eager to testify against Morrison Food Service or as being
willing to falsify because of her strong feelings toward that
respondent
During December 1964, shortly after organizational
activity began at the Dry Dock cafeteria, an employee
named Jean Young signed a union card Young told
Hastings that she had done so and that another employee,
Jeanette Yeager, was active in behalf of the Union
Hastings had not known of the organizational movement,
and she told Rehwinkel of it Thereafter, Hastings spoke
with Rehwinkel about the Union upon various occasions,
and at times additional persons in management were
present At the first of such conversations, Mills was
present According to Hastings , whose testimony I credit,
Mills and Rehwinkel "were talking back and forth,"
saying that "[w]e would -decide who was the strongest
member in the union and that we would make it rough on
them to try to get them to quit," and that Rehwinkel said
that "he knew that Yeager was involved in the union
deeply . and that he would find ways and means to try
to get rid of her . "' The quoted remarks among
representatives of management, not having been
communicated to employees, do not constitute violations
of the Act, but the remarks have probative value in
resolving other issues , herein Additional conversations
which Hastings had with representatives of management
are discussed hereinafter, particularly in section III, E, 3,
"The question whether Yeager was a supervisor."6
'Rehwinkel acknowledged that he spoke to Hastings of "plans to in
effect hound employees out of their employment ," but he also testified that
there were "no actual plans ," that there was dust the one conversation in
which he spoke of "mak[ing] things hard for the [ union] leaders ," and that
the matter did not reach the point of formulating plans Rehwinkel
testified also that he "believe[d] possibly Mrs Yeager ' s name may have
been brought up" in the conversation Mills testified that, at times
material, he "was in contact with" Hastings "probably every day" and
that he spoke with her about the organizational campaign Mills testified
further that he did not regard Yeager as the leader of the campaign, but
that he had "a feeling ," probably gained from management, that Yeager
favored the Union, and that Hastings never told him the names of
employees who she thought favored it
'There is testimony by Hastings , denied by Mills, that he spoke to her of
the closure of a Morrison cafeteria in Little Rock I need not recite the
evidence and resolve the credibility issue because no employee overheard
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Josephine Weaver was hired by Rehwinkel on January
12, 1965 She testified that he said to her on that day that
"he was having trouble with the union and if anybody said
anything to [her] about the union, to come and tell him "
The fact is that Rehwinkel read to her a typed statement
of nearly I page, letter size, which was read to all
employees who were hired after the organizational
campaign began The statement's second sentence is that
"[y]ou are just beginning as a Morrison employee and it is
important for you to get off on the right foot," and there
follow references to the Union and to management's
opposition to it Weaver's quoted recollection of
Rehwinkel's remarks was a. reasonable understanding of
the following paragraph from the statement.
So let me repeat - We do not want a union in here
and we hope that you will never become involved with a
union If anyone pushing the union approaches you or
tries to get you involved, I would like for you to tell me
about it I would like for you to come to me and tell
me if anyone tries to get you signed up with the union.
That is the only way I can make certain that you have
all the facts and completely understand the company's
position and its side of the story
Another employee, Delores Alford, was hired by
Rehwinkel on January 14, 1965 She attributed to
Hastings remarks similar to those attributed by Weaver to
Rehwinkel. According to Alford, on the day when she was
hired, Hastings "asked [Alford] if anybody come up to
[Alford] with a union card or a piece of paper for [Alford]
to sign, to bring it directly to [Hastings] and show
[Hastings] who gave [Alford] the card " On the other
hand, when Hastings testified, she was asked by counsel
for the Respondents whether she told Alford "that if
anybody handed her a union card or spoke to her about
the union, to come tell you immediately," and Hastings
answered in the negative Hastings was not asked whether
she read the prepared statement to Alford or to any other
newly hired employee, and it is a reasonable inference
from Rehwinkel's testimony ("we read" the prepared
statement to new employees) that Rehwtnkel was not the
only representative of management at the Dry Dock
cafeteria who read it I conclude that Hastings read it to
Alford
The complaint alleges that Rehwinkel "[c]reated the
impression among [the], employees that their union
activities were under constant surveillance." Zella Morris,
an employee, attended several union meetings According
the remarks attributed by Hastings to Mills, nor were the remarks later
communicated to an employee On the other hand, I note that the issue
was appropriate for resolution in the Little Rock case, and I resolved it in
my Supplemental Decision
'The transcript reflects an oral amendment to the complaint by which
unfair labor practices are attributed to Hastings The amendment is very
limited , however In this connection , there is testimony by Annie Smith, an
employee, that Hastings asked her "how [she] felt about the union," to
which she replied that she "had heard so much" and "had been pulled
from one side to the other " that she "wasn't sure " On the other hand,
Hastings, when asked "Now , you did not ever question Ann Smith about
the union, did you," answered in the negative Hastings testified further
that employees "would come in and talk about " the Union and would ask
her opinion, and that upon such occasions she "talked to them how they
felt about it " The amendment to the complaint covers only alleged
remarks ( interrogation and instructions ) by Hastings to Alford during
January 1965 It is too limited to embrace Smith's testimony It also is too
limited to embrace the testimony of Alford and Smith, about which
Hastings was not questioned specifically, that on April 15, 1965, following
the election at the Dry Dock cafeteria , Hastings told them that she knew
how the employees had voted and named certain ones as having voted for
the Union
to Morris, the meetings were held at night and on the
morning after each meeting Rehwinkel asked her what
time she had arrived at home after the meeting ended. She
testified further that after the first such question, she
anticipated the later ones and made a point of noticing the
time of her arrival at her home in order to be able to
answer Morris, a baker at the cafeteria, had worked also
in Rehwinkel's home. On cross-examination, she testified
that Rehwinkel was not unpleasant in asking his
questions, that he had "a teasing way about it," and that
she "didn't think anything of it at the time " This
question and answer followed
Q You say you didn't think anything of it at the
time You weren't offended or scared or anything like
that9
A No, sir, cause I didn't think anything about it,
even when we was trying to get the union, I never
thought it meant no harm to the company because the
whole twenty years, if I might say so, I have put my
whole heart and mind in my work and my job.
Morris began work in the Morrison chain during
November 1942 She worked in Mobile for both
Respondents and in Florida for another subsidiary of
Morrison Consolidated On March 8, 1965, as described
hereinafter, Morrison's constructively discharged her in
violation of Section 8(a)(3) and (1). Morris impressed me
as a reliable witness and I credit her testimony concerning
Rehwinkei's questioning His contradictory testimony, and
my reasons for rejecting it, are recited in the footnote "
Mills has been identified as the production and
procedures supervisor who acted as manager. of the Dry
Dock cafeteria for 1 month after Rehwinkel's transfer to
another location. Prior to Rehwinkel's departure on
February 1, 1965, however, Mills visited that cafeteria
upon a number of occasions. An issue is whether Mills
talked with several employees individually and made
remarks violative of Section 8(a)(1). Morris testified, and
I find, that she talked with Mills about three times, that
upon the first occasion she was directed by Rehwinkel to
see Mills in the executive's dining room, that Mills
inquired whether she had attended union meetings, that
she answered affirmatively, that, he said that he was
surprised at the "older hands," that he asked what the
Union could make management do, that she answered
that she wanted better conditions because she was being
paid only $1 15 hourly after more than 20 years'
'Rehwmkel testified that he never asked Morris what time she arrived at
home from a union meeting He testified also that the only employee with
whom he spoke about the Union is Helen Brown According to Rehwinkle,
Brown would come to him whenever he appeared to be alone and volunteer
information concerning "attending meetings, about how she thought some
employees felt about the union activities ," but in elaboration of Brown's
remarks to him, Rehwinkel testified that she said "that some of the
employees were dissatisfied-with this union activity" and that she did not
mention any names On the other hand , Hastings testified that four
employees , Brown , Estelle Blackmon, Peggy Lassiter , and William
Robinson , attended union'meetings and reported to management on "who
was active and who wasn ' t " There are two employees named William
Robinson and I do not know to which one Hastings referred During
December 1964, Brown , Blackmon, Lassiter, and William F Robinson
signed union cards which are combination applications for membership and
authorizations to bargain William L Robinson, a witness for the
Respondent on the subject of Yeager's alleged supervisory status, testified
that he signed a union card , but it is not in evidence I credit Hastings'
testimony that employees reported to management after union meetings
and I discredit Rehwinkel 's testimony that Brown did not disclose names
in talking with him Moreover , as will appear in the discussion of Yeager's
alleged supervisory status, Rehwinkel gave exaggerated and unreliable
testimony on that subject
MORRISON CAFETERIA COMPANY, INC.
employment,. and that he said that he had learned that one
reason for the union movement was to have Rehwinkel
removed as manager, to which she replied that she did not
think so A day or so later, Morris entered a dining room
and saw Mills at a table. Mills said that•he was surprised
that the "older hands" were "trying to get a union "
Morris said that they were trying to better their
conditions, and Mills said that she should think about her
children, her family and who would pay the rent A few
days later, when Mills was alone in the dining room,
Morris went to him and said that she had heard that
Brown had told him that all employees except Richard
Fultz and' Morris were against the Union, that Brown did
not know what Morris had "on [her] mind," and Mills
acknowledged that Brown had told him so
Weaver testified, and I find, that about 2 weeks after
she was hired •on January 12, 1965, she had a conversation
with Mills in which he said, inter alia ,'.that Morrison's
"wasn't going union," that the Union "wasn't any good
and that they would close the doors before they would go
union "10 Alford testified, and I find, that during
February Mills said to her, inter alia, that, if the Union
should become the employees' representative, they would
be required to punch a• timeclock and to pay for their
food." Mills also spoke with Alford upon a subsequent
occasion, this.time in the presence of Annie Smith and a
cook who may have been James Miller Mills spoke
against the Union and utilized photographs of individuals
on strike elsewhere, saying that a strike by employees of
the cafeteria was a possibility in the event of unionization
Mills also said that employees would be required to punch
a timeclock in the same event.' n Another employee with
whom Mills talked in private is Alice Ward who had
signed a union card She testified, and I find, that Mills
said "that Morrison wasn't going to have no union," and
asked whether she was "going to vote for the union," to
which' she replied that she did not know She testified
further, and I find, that Mills spoke of employees' having
to punch a timeclock and of being docked for tardiness "
'Mills denied that he had the conversations with Morris except to testify
that Morris accused him of having said that only she and Fultz were "still
for the union ," to which he responded that he had not said so On
cross-examination , Mills testified that "Brown probably told [him] five
different things at five different times, " all of which were "[g]eneralities"
concerning "our union problems " which had been expressed to Brown by
customers of the cafeteria who worked for the Dry Dock company Mills
testified also that Brown said nothing to him about whether employees of
the cafeteria favored or opposed the Union, that he- had thoughts on the
subject based upon discussions , but that he could not "make any specific
statement" about the discussions because they had taken place 2 years
before he testified As will appear , Mills participated in the constructive
discharge of Morris , and his testimony on that subject is not worthy of
belief
"Mills denied that he made such remark On cross-examination, he was
asked whether he spoke to employees individually about the Union He
answered affirmatively , and was asked to identify the employees with
whom he remembered having talked He answered that he did not believe
that he "could mention any particular person" and that he expected that
he had talked "to every one of them at one time or another " in discussions
which he initiated for the purpose of presenting management ' s "views on
the union" by use of material which had been provided for that , purpose
The record contains copies of much , if not all, of the written material that
Mornson 's gave to the supervisors I am convinced that many supervisors,
in talking with employees , disregarded the guidelines of the material in the
belief that their conduct would be approved Indeed, as will appear, some
supervisors heard persons high in management baldly threaten employees
"The employees were not required to punch timeclocks or to pay for
their meals at the cafeteria Mills denied that he made the remarks
attributed to him by Alford
"Alford and Smith testified concerning the conversation , but only Alford
attributed to Mills the remark about punching a timeclock Smith was not
597
Upon one occasion prior to the election, all employees
.of the cafeteria were assembled to hear an address by
Mills Weaver testified that Mills said that "Morrisons
wasn't going union," that the cafeteria was being operated
,on "a thirty day system" and that the cafeteria would be
closed "before they would go union " Ward testified that
Mills said that the cafeteria was being "run on a thirty
day basis" and that it would be closed before "they would
have a union."'° Mills' version is as follows
This was at the beginning when I first went over
there [to the cafeteria] and the purpose in meeting was
to inform the employees of the reason for me being
there, which was not a common occurrence That I was
there to present the company's views on the union That
I wanted them at any time to feel free to ask me any
questions that were not clear in their mind and mainly I
wanted them to continue doing their jobs, dust as they
had always done and not to let me interfere with them
That is all I said
Mills denied that he threatened closure I have expressed
my inability, to credit Mills' testimony when it is in
conflict with that of witnesses who impressed me as
truthful. I credit the testimony of Weaver and Ward, and
find accordingly
The remaining supervisor at the dry dock cafeteria who
interrogated employees about the Union is Waldron, the
manager there for a period beginning on March 1, 1965
The testimony presents more difficult problems in
credibility partly because Waldron was on the witness
stand a very short time (his testimony is included in eight
pages of the transcript) in which his principal answers
were denials that he had made particular remarks
Additionally, unlike Mills and certain other
representatives of management, Waldron was not
interrogated about other issues in the case so as to afford
an opportunity in which his credibility could be better
tested ' S Nevertheless, I decide the credibility issues
against Morrison's because the witnesses for the General
Counsel impressed me as reliable and because the remarks
attributed by them to Waldron are consistent with
remarks made to employees by other representatives of
management. Waldron asked Ward how she intended to
vote, saying that "Morrison wasn't going to have any
union," that the cafeteria "would close first," and that a
wage increase would be granted after the'election The
record does not disclose whether Ward- replied It does
disclose, however, that wage increases were subsequently
asked whether Mills made such remark Miller was not a witness Turning
to Mills ' version of the conversation, he testified that he used photographs
of strikers in talking with small groups of employees when he sought to
present management ' s views , but he denied that he spoke of punching a
timeclock
"Mills was not asked about his conversation with Ward He denied,
however, that he said to any employee that union representation would
result in employees ' punching a timeclock and being docked On
cross-examination , he answered negatively the question whether he ever
sought "to find out how an employee felt about the union "
"The cross-examination of Ward reflects that she gave an affidavit to
the General Counsel The only part of the affidavit which is recited in the
record is a port ion relating to Mills ' private conversation with Ward That
portion does not attribute a threat of closure to Mills, and Ward did not
testify that he made such a threat in their private conversation
"I have said that Mills' unreliability as a witness is demonstrated, in
part, by his testimony concerning the termination of Morris' employment,
to be discussed hereinafter Waldron had been manager of the cafeteria for
about I week when that termination occurred The testimony of Mills and
Morris reflects that,Mills discussed with Waldron a proposal to transfer
Morris from one shift to another The record does not reflect that Waldron
was otherwise involved in the termination
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted On the day of the election, Waldron, told Weaver
not to vote for the Union because "if the union wins
Morrison will close up first."16 Waldron spoke with Zeolia
,Chestang upon three occasions. About April 1, she was
called to Waldron's office where he told her that he had
heard that she had done "a mighty bad thing." She asked
for an explanation, and he said that he had heard that she
had joined the Union She answered, "that's right."
Waldron said that the Union was no good, and Chestang
replied that her husband belonged to, a labor organization
"and it's good." Waldron said that the Union was not,
adding that he had changed the minds of employees, that
he would like to change her mind, and that if she was
"with Mrs Yeager, Mrs Yeager can't give [her] a fob"
On the next morning, Waldron went to Chestang's place
of work and suggested that Chestang go to Mills and say
that she had changed her mind about the Union Chestang
refused to go A few days before the election, Waldron
called Chestang to his office where he said that he "had
already had to let one girl go because she was working for
the union, and he didn't want to have to let [Chestang] go
too "" Chestang responded that she was employed by
Morrison's and that she "wasn't working for the union "1s
John W. Hill has been identified as a vice president of
the parent corporation and of Morrison Food Service He
is in charge of the food service operations performed by
the latter corporation, of which the cafeteria at the dry
dock is one. During, early 1965 and prior to the election,
Hill visited that cafeteria and addressed the employees. A
prepared speech is in evidence and the factual issue is
whether Hill departed from the text. Before the conflicting
evidence is recited, portions of the text will be considered
Hill expressed strong opposition to the Union, saying,
inter alia, that management would "use every legal means
to keep the Union out," that management knew- its rights
and "intend[ed] to stand up for those rights," and that
management, not the Union, had the employees' "best
interests at heart " Much emphasis was placed upon the
possibility of a strike and the consequences thereof to
employees Hill said
Suppose the union won an election here and then the
company did not agree to the union's demands and
contract proposals - what could the union do about it?
There is only one true answer to that question The
union would call you out on strike to try to get the
things the union organizers promised to get for you
Third. and this is the most important thing of all -
if you go out on strike you can lose your job forever If
the union calls you out on strike over the things it has
"The election at the dry dock cafeteria was held on Apnl 15, 1965
Weaver gave the date of the conversation with Waldron 'as April 16,
however On cross-examination, she was asked whether she was absolutely
certain that the date was the 16th, and she answered affirmatively She was
next asked whether there was any question in her mind about the date, and
she responded, "No, it (Waldron's remarks] was made that morning before
we voted "
"Mofris' employment had been terminated She is the only woman
whose termination of employment at the Dry Dock cafeteria has been
alleged as a violation of Section 8(a)(3) -
"Waldron denied that he made the remarks attributed to him by the
employees He testified further that his superior, Mills, instructed him not
to talk with employees about the Union, and that he followed the
instructions On the other hand, there is testimony by Hastings,
contradicted by Waldron, that she overheard Waldron talking to
employees concerning the Union
been promising,. the company is perfectly free, under
the law, to hire permanent replacements for you Once
this happens, the company = is under no obligation to
give you your job back I want to repeat that, because
it is so important • If a union calls you out on an
,economic strike, the company is free to hire permanent
replacement for you. If you are replaced during a strike
- your lob is lost Thousands of union members have
lost their jobs this way and the same thing could
happen here if the union got in Morrison's
,.Hill, as a witness, volunteered that he did not write the
speech A reader who is knowledgeable in labor law will
recognize that the author sought to utilize the doctrine of
the line of cases beginning with N L R B v Mackay
Radio & Telegraph Co , 1304 U.S. 333, 58 S. • Ct. 904
(1938), that employers are free to replace economic
strikers, as distinguished, from unfair labor practice
strikers, at any, time prior to their unconditional
applications for reinstatement." But Hill did not
distinguish between the rights of the two types of strikers,
nor did he say that management would bargain with the
,Union if it should win the election Indeed, as will be
recited, he extemporized by saying that, management
would not bargain. Bearing in mind the composition of
Hill's audience, all cafeteria workers such as servers,
maids, cooks and dishwashers, the implication of Hill's
written remarks was that the loss of jobs was the price to
be paid by employees who chose to exercise their statutory
right to strike
Turning to the question whether Hill made remarks in
addition to those in the prepared text, he testified, that
there were no introductory remarks other than those that
appear in the text, that he did not depart from the text in
speaking to the employees, that his final remarks were the
closing remarks of the text, and that he left the room in
which the employees had been assembled immediately
upon concluding his remarks He denied that he made any
threat that the cafeteria might be closed. On the other
hand, several employees and Hastings testified to the
contrary The concluding paragraph of the text reads
"That is all I have to say now except to remind you, in
closing, that this is serious and you should give it careful
thought I would hate to see any of you make a mistake
you could always regret " Smith testified that when Hill
"got through talking, I guess when he got through he
looked up at us and he told us that Morrison wasn't going
union and if they went union, they were closing down
because they weren't going to have anything to do with
the union " Hastings testified that Hill "read,his remarks,
and then after he had finished reading, he talked " She
was asked what Hill had said after he finished reading;
and she answered "Well, now, he told the employees that
he did not believe a union would be good for Morrison
That Morrison was in no position to have a union there,
and before they would have a union in they would give the
cafeteria up " Morris testified that Hill spoke "about the
union trying to get into the cafeteria," saying that
"Morrison has never had a union and wasn't about. to
have one now because before they would let a union come
in there they would close it down." Ward's recollection of
"''[E]conomic strikers who unconditionally apply for reinstatement at a
time when their positions are filled by permanent replacements (I) remain
employees, (2) are entitled to full reinstatement upon the departure of
replacements unless they have in the meantime acquired regular and
substantially equivalent employment, or the employer- can sustain his
burden of proof that the failure to offer full reinstatement was for
legitimate and substantial business reasons," The Laidlaw Corporation.
171 NURB No 175 "
MORRISON CAFETERIA COMPANY, INC. 599
Hill's remarks was that he "[s]aid Morrison wouldn't have
no union, they would close." Weaver testified that Hill
"read from a paper and then talked afterwards," saying,
inter alia , "that they were not going union, that they
would close the doors before they would go union "20 I
credit the testimony of Hastings and the employees, and I
find accordingly I do so for several reasons. First, to
credit Hill's denial that' he threatened closure of the
cafeteria would necessitate finding that the other
individuals named in this paragraph testified falsely or
mistakenly ' I am convinced that they did not do so.
Second, Hill testified at length that Yeager was a
supervisor , His testimony in that respect, recited
hereinafter, is not believable and I do not regard him as a
reliable witness Third, the text of the address by Hill was
used by another representative of management, Holland,
in addressing employees at the two public cafeterias in
Mobile and he too departed from the text, as described
hereinafter. Finally, other representatives of management
threatened closure, and Hill's threat was consistent with
the Respondents' efforts to prevent unionization
The amended complaint contains allegations involving
Gibbons, • the president of the parent and subsidiary
corporations. One allegation is that he threatened
employees at the Dry; Dock cafeteria. That allegation is
unfounded and should be dismissed because it involves an
instance of mistaken identity. Neither- Gibbons nor Hill
had an office in the cafeteria and they were not, well
known to the employees. Hastings, assistant manager at
the cafeteria during the organizational campaign, testified
that she never saw Gibbons there Yeager, who began
work at the cafeteria during 1955, testified that she knew
of Gibbons, but that she was not sure that she could
recognize him. Alford, in testifying concerning Hill's
speech, identified the speaker as Gibbons She was a new
employee and she testified that she never saw Gibbons or
Hill until the day -of the speech According to Alford,
"everybody said that's Mr. Gibbons " The record is clear
that any employees who told Alford that the speaker was
Gibbons were mistaken.
Gibbons is the subject of another allegation, i.e , that
he threatened employees in communications which were
mailed to their homes. The recipients of the
communications were the employees of both Respondents
at all three of the cafeterias .in Mobile. On February 3,
1965, a letter over Gibbons' signature, on the letterhead of
the parent corporation, expressed opposition to the Union
and said, inter alia, that unions had tried to organize
"Morrison's" but had failed,31 that "[u]nion pressure on
this company, could lead to serious trouble," that a strike
would hurt both the employees and "the company," and
that the "facts about the union" would be brought to the
employees' attention On April 2, another letter on the
same letterhead had-as its theme. "Unions cause strikes
and a strike means loss of pay and loss of work " An
attachment to the letter contained a reproduction of a
newspaper article concerning a strike at a laundry in
another city, and the attachment made the following
comments about the article: (1) "Here is the PROOF that
employees can lose their jobs in a strike !" (2) "Strikers
could not collect unemployment money" (3) "National
Labor Relations Board told strikers their jobs were lost!
- The company legally replaced them!" and (4) "Union
"Yeager also testified about Hill's remarks Her memory was so poor
that she could not recall whether the speaker had been Hill or Mills
Alford also testified concerning Hill's remarks , but she thought that the
speaker had been Gibbons
lawyer admits - strikers can not get their jobs back!" On
April 12, another letter on Morrison Consolidated's
letterhead urged employees to vote against the Union, and
contained a facsimile of a ballot marked against the
Union with the closing statement , "You can say NO to
union strikes , picket lines , loss` of work , dues, fees, and
other union trouble by voting NO in the election " Upon
undisclosed dates, additional material was brought to the
employees ' attention An enclosure within pay envelopes
read "What if you did not get this paycheck because of a
strike?" Two booklets were circulated among all
employees One is entitled "THE TROUBLE CAUSED
BY iA UNION STRIKE ANOTHER TRUE STORY,"
and the other "THE TRUE STORY of a UNION
STRIKE CALLED BY - HOTEL AND
RESTAURANT WORKERS ,UNION."
2. Events 'at the Highway 90 cafeteria
Herbert Davis, a headwaiter and supervisor, was a
leading figure in the Union' s organizational efforts at this
cafeteria. Timothy Reed was an assistant manager there
About January 1, 1965, when Davis was active on behalf
of the Union, Reed inquired of Davis whether he had
heard about the "union mess " at the Royal Street
cafeteria, and, upon receiving an affirmative response,
Reed said that employees at both cafeterias had signed
cards. Reed asked that, if Davis should learn the identities
of any signers, Davis inform him Davis promised to do
so. The promise surely was insincere . Davis added that
Reed had nothing to worry about at the Highway 90
cafeteria. Because both Davis and Reed were supervisors,
the General Counsel does not contend that Reed's
remarks violated Section 8(a)(I). The evidence was offered
to show Reed's interest in learning the identity of union
adherents 22
Holland has been identified as an officer in the parent
and subsidiary corporations The two public cafeterias in
Mobile are under his supervision During January,
Holland initiated two conversations with Davis at the
Highway 90 cafeteria. The first one took, place in a room
in the cafeteria Holland asked whether Davis had heard
of the "union mess" at the Royal Street cafeteria, and
Davis replied that he had heard rumors. Holland then said
that "we don't want a Union, we are not going to have a
Union," and that "the company wouldn't bargain with" a
union. Holland said too that cards had been signed by
employees at both cafeterias and that, if Davis should
learn who had been responsible for cards having been
signed at the Highway 90 cafeteria, Davis should let him
know. Davis, who was largely responsible himself,
promised to do so. Again, the promise surely was
insincere The second conversation occurred outside the
cafeteria. Holland again said that "we don't want a union,
we are not going to have a union," that Davis should be
"There is some evidence concerning the absence of union activity at a
number of cafeterias in the Morrison chain There is no evidence of any
union activity at any cafeteria except the ones in Mobile and the one in
Little Rock that was closed
"The findings concerning the conversation between Davis and Reed are
based upon the former ' s testimony When Reed testified for the
Respondents , he was not asked about the conversation on direct
examination On cross, however , he denied that he talked with Davis about
the Union Davis impressed me as a reliable witness and , as will appear, I
credit his testimony in other instances ' On the other hand, I will have
further occasions to discredit Reed Too, the record is clear that the
Respondents were interested in learning the identity of union adherents,
some of whom were invalidly discharged
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerned about the matter, and that Davis and Cornell
Stokes, the head cook at the cafeteria, should "get busy
and try to find out who is responsible for all this mess" at
the cafeteria These conversations, having been between
supervisors outside the presence of employees, do not
constitute violations of Section 8(a)(1) They do, however,
reflect Holland's position on the union activity and his
desire to learn the identity of union leaders."
During the Union's campaign at the Highway 90
cafeteria, Holland held several meetings with employees.
On or about February 1, he delivered a prepared address
upon two occasions to assure that all employees would be
listeners. He also held small group meetings at which the
employees numbered a,dozen-or less. Finally, on April 15,
the day before the election in which those employees
voted, Holland delivered another prepared address The
prepared addresses are in evidence and the factual issue
concerning them is whether Holland departed from the
texts. In respect to the small meetings, Holland testified
that he read excerpts from a book and the wage rates
from two collective labor agreements, and that he said
nothing else of consequence other than to identify the
book and agreements. The book, entitled ""The Enemy
Within," was written by the late Robert F Kennedy and,
according to Holland, was based upon the author's
experiences 'as counsel for a committee of the United
States Senate The agreements covered employees at a
local restaurant and a local cafeteria In his initial
address, Holland used the same text as that used by Hill
during the latter's address to employees at the Dry Dock
cafeteria, discussed above Contrary to Holland's
testimony that he did not depart from the text, Davis
testified credibly, and I find, that Holland said that "the
Union is nothing but a bunch of crooks and communist."
There was nothing in Holland's written remarks which
Davis could have interpreted to that effect, although
Holland later spoke to employees of "racketeering in
unions" and a memo from management to cafeteria
managers concerning "Notes for talks with employees"
refers to "racketeering and corruption in" the Union.
Davis did not confuse Holland's remarks upon one
occasion with his remarks at a later time for the simple
reason that Davis, whose employment terminated on or
about the day of Holland's initial address, did not attend
any later meeting at which Holland spoke. Davis testified
further, and I find, that Holland also said, "We don't
want a Union and we are not going to have one," which
reflects another departure from the written text. Sadie
Schultz was another of Holland's listeners. When
questions embodying portions of Holland's written text
"The findings concerning the conversations are based upon Davis'
testimony He quit his employment with Morrison 's on February 1, 1965, a
few days after his second conversation with' Holland He had been
employed for 23 years, of which he had been a head waiter for
approximately 8 years He quit his employment under circumstances that
were unpleasant to him, and this fact has been considered in evaluating his
credibility He impressed me as a truthful witness On the other hand,
Holland' s testimony impressed me unfavorably According to Holland, he
could recall one conversation with Davis about the Union, an occasion
when they were outside the cafeteria and he "explained " to Davis that he
"didn't think we needed a union at Morrison 's" because of certain benefits
which employees had received and which Holland related to Davis
Holland testified further that he did not ask Davis to report on the union
activity of employees and that he was not interested in knowing which
employees had signed cards or attended union meetings because that
"Idlidn' t matter to [him] at all " I cannot believe that Holland was not
interested in knowing the identity of union adherents The record reflects
that the Respondents were much interested in that subject and that they
invalidly discharged some union adherents
were posed to her, she recalled that he had made a
number of remarks which appear in the text In response
to one such, question, whether Holland had said, "We
hope that we never have any serious union trouble here,
but we are not afraid of the union, and if the union wants
a fight, we are prepared and will not back away from it,"
she testified that she recalled Holland's having said so
and, she continued, "he also added that they [the Union]
would never get in." At another point, Schultz testified
that Holland "said Morrison never had a union and that
they never would have [one]." Schultz testified further
that Holland also said that "if the union got in that we
would have different things that [sic] they, had now We
wouldn't have a credit union and we probably would have
to pay for our food and we wouldn't have a fob " I was
favorably impressed by Schultz as a witness and I credit
her testimony Another of Holland's listeners was Edward
Eaton, the No. 2 waiter and a supervisor, who had been
an employee since 1949 Eaton's testimony reflects that
Holland did not confine his remarks to the written text
According to Eaton,
Mr Holland said that Morrisons do not want a union,
said Morrison is not going to have a union, he said
anyone caught participating in union activities would be
discharged from the company. He said you would only
be hurting yourself and your family He said, I will
repeat what I just `said, in case you don't know what
discharge means , it means you have lost your job He
also stated that some of us 'going around talking about
we would sue the company if we lost our fobs, but they
had lawyers and they were going to fight too
As a witness, Eaton impressed me as truthful. I credit his
testimony and find accordingly
Turning to Holland's meetings with small groups of
employees, the record discloses that more was said than
Holland acknowledged Eaton attended one of those
meetings , although he usually was excluded because he
was a supervisor Eaton confirmed that Holland read from
a book and spoke of hoodlums, but' Eaton testified also,
and I find, that Holland said that he could not make
"promises now, but . if Morrison wins this election .
all of you will get raises " Eaton testified further, and I
find, that Stokes, the head cook, spoke against the
Union.24 Schultz attended several of the small meetings,
at one of which Stokes spoke against the Union, following
which Schultz spoke in its behalf. Schultz also confirmed
that Holland read from a book, but she testified
additionally that Holland "had some of the other people
that worked there to read out of the book," and that at one
meeting Holland also spoke of an airline strike, that
Holland said that "Morrison never had any union and
never will have one," and that Holland saidthat the
"union wouldn't get in and if they did they probably would
have to close the place down and nobody would have a
job" I credit Schultz's testimony and find accordingly 25
Turning to Holland's speech to employees at the
Highway 90 cafeteria on the day before the election, it
was a brief address in which he said, inter aha, that a
Committee of the United States Senate had determined
"Stokes was not a witness , and thus did not deny that he spoke
"As recited, Holland testified that the substance of his remarks at the
small meetings was to read excerpts from The Enemy Within and the wage
rates recited in the two contracts He denied that he spoke of an airline
strike or of a possible closure of the cafeteria I cannot credit Holland's
denials I am convinced that Stokes spoke against the Union, that Shultz
spoke in its behalf, and that Holland made the remarks attributed to him
by Eaton and Schultz His threat of closure was consistent with like threats
made by various supervisors, as related elsewhere herein
MORRISON CAFETERIA COMPANY, INC. 601
that the Union had "a bad record," that the Union had
been involved in unsuccessful strikes, and that all
employees should vote against it Additionally, he
explained how ballots should be marked. The text was not
coercive, and there is no evidence that Holland departed
from it
James Moore was the manager of the Highway 90
cafeteria. Harold Cruse, a waiter, worked over a period of
16 years for subsidiaries of Morrison Consolidated in 12
cities. Prior to the organizational campaign in Mobile,
Cruse was transferred to work in the Highway 90
cafeteria He became a union adherent. He testified, and I
find, that Moore spoke to him of his union adherence
about January 1965, asking if he was "head of the union,"
to which he responded in the negative, that Moore said,
inter alia , that Moore would "run [him] off" if he were
not a good worker and that he would not have a job "if
the union [should] come into Morrison." The record in
Morrison Cafeterias Consolidated, supra, reflects that the
cafeteria in Little Rock, Arkansas, was closed promptly
after a sister local of the Union won an election there In
the conversation between Moore and Cruse, according to
Cruse's credited testimony, Moore also said that "[i]fyouu
get the union in here we are going to close the doors and
it will be the same as it was in Little Rock. They don't
have no jobs there at Morrison and you won't have them
down here." Cruse testified further that during the night
of April 15 Moore spoke to him of the election to be held
the next day, saying inter alia, "well, you know if the
union wins the election here it will be just like it was in
Little Rock. We will close the doors and you will be out
You will have no job ...." 26
As recited in connection with the meetings of employees
that Holland conducted, Schultz spoke in favor of the
Union on one occasion. Her hourly rate of pay was 75
cents, and she said at the -meeting that another employee,
whom she named, was being paid much more although
they were doing the same type of work. Moore attended
that meeting and heard Schultz's remarks When the
meeting ended, he called Schultz to his office and gave an
explanation for the higher pay to the other employee,
"Cruse's testimony is not entirely in accord with an affidavit which he
gave to the General Counsel prior to testifying The affidavit does not
recite that Moore referred to the closure in Little Rock during the
conversation of about January 1965, but it does recite that Moore made
such reference upon another occasion Turning to Moore's testimony, he
denied that he ever spoke to Cruse about the union activity and that he
said to Cruse that the latter was a good worker, but he acknowledged
having spoken to other employees concerning the Union , sometimes
initiating the conversations in order to speak against the Union, and he
testified too that he "could have" conversed with employees during the
night before the election Moore testified further that he learned before the
union activity began that Cruse would "do his job properly" only when
Cruse knew that Moore was watching , that Cruse was "two-faced," that he
accused "Cruse of being disloyal to the company ," and that he did not
speak to Cruse about the union activity because Cruse "wasn 't loyal to the
company" or to "anyone above him," so much so that Moore concluded
that Cruse "certainly wasn't going to try to help the company in any way"
and "was just a lost cause as far as any help" to the company Moore
impressed me unfavorably He played a role in his employer 's campaign
against the Union , and the remarks attributed to him by Cruse are
consistent with remarks made by management to other employees
Moreover, in contrast to Moore's professed evaluation of Cruse's not
doing "his job properly," the fact is that Cruse worked for the Morrison
chain over a period of 16 years in cafeterias in 12 cities Such a record of
employment attests to Cruse's efficiency as an employee Indeed , Moore's
successor as manager of the cafeteria , Ronnie Tatum, who discharged
Cruse as described hereinafter , testified for the Respondents that Cruse
"was a good waiter" whose fault was "a tendency to lose his temper
several times
adding that if the Union should not become the
employees' representative the rate of pay would be $1
hourly, but. that he would not promise anything in the
event of a union victory.27 Upon another occasion, Moore
told Schultz that the employees "were supposed to get
$1.00 an hour if the union. didn't come in," and that there
would be better facilities, but "if the union got in no
telling what would happen It would probably close the
place up."28
The findings under section III, C, 1, above, concerning
Gibbons' letters to employees and other material are
equally applicable to employees at the Highway 90
cafeteria.
3. Events at the Royal' Street cafeteria
Kenneth Wear was the manager at the Royal Street
cafeteria. One of his subordinates was Eddie Tolbert, a
union adherent. About February 1, 1965, Wear asked
Tolbert "what was going on in the kitchen," and Tolbert
replied that he did not know. Wear then said that he had
heard that quite a few of the employees had signed union
cards, and he asked if Tolbert knew their identities, and
again Tolbert answered in the negative. Wear also said
that he had heard that "a lot of employees" had attended
a union meeting on the preceding night. Subsequently,
about 2 weeks before the election, Wear again spoke with
Tolbert who was scheduled to be on vacation when the
election was conducted. Wear said that Tolbert should be
sure to vote, that Wear would speak with "a lot more of
the employees," and that he "would get rid" of those who
voted for the Union.29 At about the time of Wear's second
conversation with Tolbert, the latter conversed with Steve
Billingsley, the assistant manager at the cafeteria.
Billingsley told Tolbert that a union was not needed and
that he would "get rid of all" employees who voted for
the Union.30
We have seen that Holland held several meetings of
employees at the Highway 90 cafeteria. He did the same
"Moore unconvincingly denied that the conversation took place
Although he acknowledged having talked to employees about the Union,
he professed to having had scant recollection of what was said
"This finding is also based upon Schultz's testimony which Moore
contradicted There is additional testimony by Schultz concerning
conversations which she overheard between Timothy Reed, assistant
manager at the Highway 90 cafeteria , and an employee named Smith and
another named Hayne or Hayes Reed ' s version for the Respondents
differs Smith and Hayne or Hayes were not witnesses , and I am not
satisfied that I can determine just what was said in their conversations with
Reed
"The findings are based upon Tolbert's testimony On the other hand,
Wear testified that at "one time or another" he probably talked about the
Union with all employees of the cafeteria, that "as a rule" he did not
initiate the conversations , that he "tried to encourage all" employees,
including those who would be on vacation , to vote against the Union, but
that he did not interrogate or threaten any employees Wear testified
further that he did not recall "in specific [s]" having talked with Tolbert
about the Union and that he did, not ask whether Tolbert favored the
Union or say that he would "get rid of those who voted for it I do not
credit Wear's denials, and I shall have occasion to discredit him elsewhere
herein Turning to Wear's conversations with another individual , he talked
abbut the Union with Charles Wiggins, the No 2 waiter and a supervisor
Wear' s remarks to Wiggins did not violate the Act because both were
supervisors For that reason and because Wear 's remarks were not on the
scale of remarks made to Hastings, supra, I find it unnecessary to detail
the conversations between Wear and Wiggins.
"The findings are based upon Tolbert' s testimony Billingsley
contradicted Tolbert and denied that he spoke to any employee about the
Union As will appear, I cannot credit Billingsley in connection with
Tolbert's discharge , and I discredit him here
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thing at the Royal Street cafeteria An issue is whether
Holland made certain threats to employees at the latter
cafeteria As recited, the record on remand in' the Little
Rock case is a part of the record here by stipulation. The
remand was for the purpose of reconsideration of
Morrison Cafeterias Consolidated, supra, in the light of
N L R B v Darlington Manufacturing Company, et al ,
380 U.S 263. On April 19, 1963, Morrison Consolidated
and its subsidiary, Morrison Little Rock, closed a
cafeteria promptly after a sister local of the Union won a
Board-conducted election An issue here is whether
Holland referred to the closure in Little Rock when
speaking to employees at the Royal Street cafeteria. As
we have seen, Holland testified that his remarks at various
meetings with employees were confined to reading the
texts of two prepared speeches, portions of a book entitled
"The Enemy Within," and the wage rates from two
collective labor agreements. Eddie Johnson, one of
Holland's listeners, testified that upon one occasion
Holland said, inter alia , "that the same thing that
happened in Little Rock could happen at Morrison's [in
Mobile] and that if the union. did come in that they would
close down and that no one could make them give us our
job back if they closed down .. " An affidavit which
Johnson had given to the General Counsel does not
support the quoted testimony, but this fact does not serve
to impeach Johnson for reasons 'recited in the footnote."
Johnson impressed me as telling the truth and Holland, on
the other hand, did not impress me as having been
truthful when he testified that he did not depart from the
written texts of'-his speeches or make additional remarks
than to read' from the' book and the collective labor
agreements For these reasons, and for the additional
reasons recited in the footnote," I credit Johnson's
testimony and find accordingly. Tolbert is another
employee who testified that • Holland referred to the
closure in Little Rock. Tolbert attended several meetings
at which Holland spoke, and he testified that Holland
mentioned the closure upon more than one- occasion.
According to Tolbert, Holland said that the cafeteria in
Little Rock had been closed because of the union there
and that the same thing would happen in Mobile in the
event of a union victory. I credit Tolbert's testimony and
find accordingly 31
"On July 6, 1965, Johnson gave an affidavit to R E Jackson, an
attorney on the staff of the General Counsel The affidavit attributes
remarks to someone identified as "Mr Harland" who spoke to employees,
and it is apparent from another affidavit , discussed below , that on July 6
Jackson had not learned the correct spelling of Holland's name Johnson's
affidavit does not attribute to the speaker any reference to the cafeteria in
Little Rock, but it recites that the speaker "said lots of things" not set
forth in the affidavit Attorney Jackson, when taking the affidavit, was
investigating the instant cases The Little Rock case had not been
remanded by the Court of Appeals This explains Jackson's failure to
inquire of Johnson whether Holland had spoken to employees in Mobile of
the closure in Little Rock It does not , however, explain Johnson's failure
to volunteer to Jackson that Holland had so spoken , but, as recited, the
affidavit says that "Mr Harland " said "lots of things" not set forth in the
affidavit
"Johnson 's testimony that . Holland spoke of the closure of, the cafeteria
in Little Rock is believable Morrison Little Rock had demonstrated a
willingness to violate Section 8(a)(3), (135 NLRB 1327, enfd 311 F 2d
534) and Morrison Little Rock and its parent, Morrison Consolidated,
were motivated in closing the cafeteria there by the result of the election,
148 NLRB at 146 In certain respects , Holland's testimony Is inconsistent
Thus, he testified that during the organizational campaign in Mobile, he
did not remember "the Little Rock case " As the citations in this footnote
reflect, there had been two unfair labor practice cases involving the Little
Rock cafeteria .1 do not believe that Holland told the truth in this
instance He had been active in the closure of the Little Rock cafeteria and
The findings under section III, C, I, above, concerning
Gibbons' letters to employees and other material are
equally applicable to employees at the, Royal Street
cafeteria
4 Summary of interference, restraint, and coercion
In summary, I find that Morrison Food Service
violated Section 8(a)(1) by the following conduct (1)
Rehwinkel's request of Weaver and Hastings' request of
Alford that those employees report to management if
anyone spoke . to them concerning the Union; (2)
Rehwinkel's repeated inquiries of Morris concerning the
hours of her arrival at home after attending union
meetings; (3) Mills' inquiries of Morris concerning her
attendance at union meetings and his inquiry of Ward
whether she intended to vote for the Union; (4) Mills'
threat to employees that the Dry Dock cafeteria would be
closed in the event of unionization, (5) Mills' threats to
employees that, if the Union became their representative,
they would be required to punch a timeclock and to pay
-for their meals; (6) Waldron's inquiry of Ward concerning
how she intended to vote, his threat to her that the
cafeteria would be closed, and his promise to her of a
wage increase after the election, (7) Waldron's threat of
closure in speaking to Weaver, (8) Waldron's threat to
discharge Chestang, his statement to her that she had
done "a mighty bad thing" in joining the Union, and his
suggestion to her that she tell Mills that she had changed
her mind, and '(9) Hill's threat of closure to employees
when he addressed them as a group.
I find further that Morrison Cafeteria violated Section
,8(a)(1) by the following conduct' (1) Holland's threat to
employees that management would not have a union, (2)
Holland's threats to employees, including threats to close
the public cafeterias; (3) Holland's promises of wage
increases; (4) Moore's inquiry of Cruse concerning the
latter's union ' adherence and his threats to Cruse of
closure and job loss; (5) Moore's promise of a wage
increase to Schultz and his threat of closure to her, (6)
Wear's inquiries of Tolbert concerning union activities,
and (7) the threats by Wear and Billingsley to Tolbert to
get rid of employees who voted for the Union.
I find further that both Respondents violated Section
8(a)(1) by their attempts, including letters to all employees
over Gibbons' signature, "to instill in the employees a
sense of fear that unionization would bring on strikes .
and a loss of jobs," General Automation Manufacturing,
Inc, 167 NLRB No. 66.
surely he recalled it He testified also that he did not speak to employees in
Mobile of the closure in Little Rock because he thought the closure "had
nothing to do with the Mobile operations" and because he knew that to
speak of the closure would have been "against the law, and we didn 't close
the cafeteria in Little Rock due to the union anyway " '
"On July 8, 1965, Tolbert gave an affidavit to Attorney Jackson
Holland ' s name is spelled correctly there, and remarks are attributed to
him at only one of his meetings with employees , the one on the day before
the election The remarks , which contain no reference to the closure of the
Little Rock cafeteria, are not the main subject of the affidavit , and the
document contains no reference to remarks by Holland at other meetings
which Tolbert attended According to Tolbert, when the affidavit was
taken , he did not think of Holland ' s remarks concerning the cafeteria in
Little Rock, and later counsel for the General Counsel raised the subject
when interviewing him
MORRISON CAFETERIA COMPANY, INC. '603
D. The Terminations of Employment exchange "would , be better for" Morris According to
1. At the Dry Dock cafeteria
Zella Morris began work in 'the Morrison chain during
1942 She performed numerous tasks during the course' of
her employment and, when that employment was
terminated on March 8, 1965; she was a baker Mills told
her that she was being transferred to another shift She
rejected the transfer, and her employment was terminated.
The question is whether Mills used the tactic of a transfer
as a means of ending the employment of a known union
adherent -
Morris was active in behalf of the Union, having signed
a card and attended meetings, having spoken favorably of
the Union in conversations with employees, and having
carried blank cards:to Yeager for use in the latter's efforts
to 'organize the employees. Morrison Food Service knew
that Morris was a union adherent, as is` reflected in the
findings above concerning remarks to her' by Rehwinkel
and Mills.
As a baker, Morris worked the first shift from 4:30
a.m. -to 2 p m The hours for some employees 'oh the
second shift were 11 20 'a.m. to' 8`30 p m -Estelle
Blackmon, the head baker, worked the first shift with
Morris, on which most of the baking is done" Susena
Polk, who began work for Morrison's a few months
before Morris' termination, was the baker on the second'
shift Mills proposed to transfer Polk to the first shift and
Morris to the second one. Hastings, the former assistant
manager at the cafeteria who was a witness for the
General Counsel, testified that Mills said that he proposed
to' transfer Morris to the second shift; knowing that she
could not work on it, and that management "could get rid
of her that way " Mills denied that he made such remark
to Hastings, but the facts surrounding Morris' termination
support the conclusion that Hastings told the truth
We turn to the basis of Morris' unwillingness to work
on the second shift and to management's- knowledge of
that unwillingness. About 6 or 7 months 'before Morris'
termination, when her 5-year old daughter was being
cared for during Morris' working hours by an elderly
woman to whose home Morris transported the daughter
daily, the woman left her home to walk to a store in the
same block. A man who was painting inside the house
attacked the daughter 'while the woman was away and the
child was,asleep. The attack had a substantial'effect upon
Morris, but she had no one else to- take care 6f" her
daughter while she worked, and the woman to whose care
the daughter was entrusted was not in good -health and
was unable to take care of the child at night: On the day
after the attack, Rehwinkel noticed that Morris was not
her usual self and he asked her what was the 'matter. She
told him of the attack She also told Hastings
'Morris rode to 'and/or from work in Blackmon's
automobile. Blackmon testified'that Morris "had been off
sick for a couple of days" before' Morris' termination,
during which time Polk took Morris' place on the first
shift, and that "one morning" Blackmon conveyed to "the
manager" a-message from Morris that Mdrris'was Linable
to return to work Blackmon did• not, identify' "the
manager," and, as already noted, Mills, -as acting
manager, was succeeded by -Waldron , as manager , about a
week before Morris' termination . Blackmon testified
further that when she conveyed Morris' message, she was
told that it would be necessary' to have someone assist her
in baking, and that a short while later someone told her
that Polk and Morris would exchange shifts because the
Blackmon, she made no,comment On March 8,- when
Morris returned to work, Mills told her that she was
being transferred to the second shift. Mills' version is that
Morris was Blackmon's helper, that Morris worked too
slowly for the large amount of baking that was done on
the first shift, that Morris also was absent "constantly"
because of her health, that Polk was needed on the first
shift "in order to get this production out," that Mills
discussed the matter with Blackmon and "management,"
that Blackmon agreed to the transfer,-but that Blackmon
would not request it "for fear of breaking up" her
friendship with Morris. ' Mills testified further that when
he "explained to Zella [Morris] what [he] felt we needed
to do," she "just went all to pieces," saying that she
"didn't have anybody to take care of her daughter and she
couldn't work the night shift"and that Mills "wasn't
being fair to her and one thing or another " Mills denied
that anyone had told him of the attack upon Morris'
daughter and' that Morris -spoke of it to him, and he
testified further that he told Morris that he "would give
her a week or two weeks to make arrangements to get
somebody to take care of her child so that she could move
onto the second shift," but that she "walked. off the job
that day" and was terminated "after she quit her job "
Mills' version does not have the ring of truth. In
elaboration of his testimony that Morris worked too
slowly for the first shift,' he testified that his "dealings"
with the Dry Dock cafeteria began in January 1963, by
which time Morris had become Blackmon's helper, and
that Morris had been "slow" as long, as he had known
her Mills testified at another point , however, that between
January 1963 and January 1965, he visited the Dry Dock
cafeteria only about- "once every two months," and
Morris testified that prior to January 1965 she saw Mills
at the cafeteria only "about twice a year." Additionally,
Mills' testimony that Blackmon agreed to Morris' transfer
is contradicted by Blackmon who testified that she made
no comment when she was told of the proposed transfer
Morris' testimony, which I credit, differs from that of
Mills in important respects Whereas Mills testified that
he explained to Morris what he felt was needed, she
testified that he did not tell her why, Polk was to work on
the first shift and that he "dust said he had to have a night
baker" and that he, Waldron and Blackmon `,had talked
it over."14 Additionally, Morris , testified that she told
Mills of the attack upon her daughter, to which he
responded, "-I can't help that, I still got to have a night
baker," following which she told him that she had no
means of transportation to and from work on the second
shift. Morris' testimony that she told Mills of the attack is
quite believable. Such an event is not easily forgotten by a
parent, and-surely Morris would have told of it in her
effort to avoid a transfer-to the second shift Next, there
is nothing in Morris' testimony to indicate that Mills told
her that she could have a,week or two to obtain someone
else to care for her daughter. Morris understood that
Mills was insistent upon the transfer and that, because she
would not accept it, her employment had come to an end
I believe that Mills intended that she-so understand
Although she had been an employee since.1942 and had
worked for three subsidiary corporations of Morrison
"The portion of the transcript that contains Morris ' testimony misspells
Waldron's name as Walton and Walters Waldron's identity is fixed,
however , by Morris ' testimony that he is "this other manager, he just had
come there " Moreover , as noted, Mills testified that he discussed the
proposed transfer of Morris with "management "
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Consolidated, Mills acknowledged- that he did not tell
Morris that he would see whether she could be retained in
any capacity on the first shift When asked whether he did
anything to have her continue on that shift, he answered
that he "didn't have an opportunity" because she "quit
the day [he] mentioned this [transfer] to her " I conclude
that Mills proposed the transfer of Morris to the second
shift in the belief that she would quit rather than accept it,
that his motive was to •rid Morrison Food Service of a
union adherent, and that thereby that Respondent violated
Section 8(a)(3) and (1) of the Act
Richard Fultz was employed at the -Dry Dock cafeteria.
There is no evidence to support the oral amendment to the
complaint that he was discharged in violation of the Act.
That allegation should be dismissed
2 At the Highway 90 cafeteria
Before discussing the individual terminations of
employment, certain evidence concerning alleged
eavesdropping must be considered. During March 1965,
an inventory was taken at the Highway 90 cafeteria An
article was discovered in the dressing room used by the
waiters and cooks, and the General Counsel contends that
it was a device by which management could obtain
knowledge of employees' union activities. The dressing
room is used by employees as a place in which to change
clothes before and after working hours and as a place to
rest during break periods During inventories, it is
customary to search for silverware, dishes and other
articles throughout the cafeteria including the dressing
room and to look above and beneath the lockers in that
room During the 1965 inventory, an unidentified person
or persons took the unusual step of pulling a few lockers
from the wall There, behind a locker and attached to the
wall at about 4 or 5 feet above the floor, was an article
which is sometimes referred to in the transcript as a box
and as a device Many employees saw -it and a few
attempted unsuccessfully to get to it through the small
space that had been created by pulling some of the lockers
from the wall Eaton testified that the dimensions of the
article were approximately 6" in length by 3" in width
and 2" in depth Cruse gave two dimensions as about 4
1/2" by 5 1/2". The front of the article had a circular
opening over which a piece of cloth had been placed A
wire extended from the article toward the floor, but not
directly so, and the destination of the wire could not be
determined because enough lockers had not been pulled
from the wall The employees who saw the article returned
to work Eaton continued with the inventory He returned
to the dressing room about 70 minutes later The lockers
had been placed back against the wall He pulled several
away in order to examine the article, and found that it
had been removed The record does not disclose who
installed or removed it The above findings are based upon
uncontradicted testimony for the General Counsel. The
record reflects that the Respondents'- failure to offer any
evidence on the subject was deliberate, not an oversight.
Descriptively, the article was an enclosed microphone
or speaker. If the latter, it was not used as such because
of its hidden position and the fact that there is no
evidence that it was used to communicate 'to employees.
But, functionally, a speaker can be used as a microphone.
These facts do not warrant resolution of the issue in favor
of the General Counsel, however. An eavesdropping device
may have purposes that are not proscribed by the Act.
The most that can be said for the General Counsel's
position is that, assuming that the device was installed for
a purpose not violative of the Act, if one result of its use
was listening to employees' comments about union
activity, such use may have provided the Respondents
with, knowledge of which employees using the dressing
room were union adherents But there may be no evidence
that employees spoke of the Union while in the dressing
room (see the footnote next below), if they had done so,
proof to that effect should have been available to the.
General Counsel In summary, I conclude that the device
does not establish knowledge on the part of the
Respondents that any of the dischargees was a union
adherent. Moreover, one of the dischargees, Schultz, a
woman, did not use the dressing room
The discharges - at the Highway. 90 cafeteria will be
considered chronologically.
Elisha Beckham, Jr., was hired by Morrison's during
,March 1964 and worked as a dishwasher. He signed a
-union 'card and attended union meetings The evidence
that. Morrison's knew of his interest in the Union is his
testimony that Stokes, the head cook, "was head of the
kitchen," that Moore had said so, and that Stokes may
have known of such interest because Stokes once entered
a room where Beckham and three other employees had
been discussing the Union and a moment or so after
Beckham had said that he favored it. Beckham testified
further that he did not make any remark about the Union
after Stokes entered the room.35 That discussion took
place„so Beckham testified, about 1 1/2 months before he
was discharged "around February" or during March. If
Beckham was discharged, the month was not February or
March Morrison's records show that Beckham worked 4
hours during the week ending January 2, 1965, and that
his employment was terminated. According to Beckman,
Moore told him that he was not needed any longer.
According to Moore, Beckham quit by not coming to
work This conflict. need not be resolved because,
assuming arguendo that Beckham was discharged, I do
not believe that the termination was invalid. About April
19, 1965, Beckham returned to work in the cafeteria He
testified that he telephoned Moore "and asked him did he
need anybody to work," that Moore told him to come to
the cafeteria, that he went to work the "same day," that
in his initial employment he had been "just a plain
ordinary dishwasher," that he was reemployed as "head
dishwasher" with certain responsibilities over other
dishwashers, that his new salary was $36 weekly, an
increase. of $2, and that he was later put on the training
program to become a, cook. Subsequently, Beckham's
employment was terminated again, but there is no issue
here concerning the second termination I find that the
General Counsel has not proved that the first termination
was in violation of the Act.
Maxine Horn, a man, was in Morrison's employ for a
little, over 2 years and was discharged on January 10,
1965 He signed a union card and, as he testified; "asked
several waiters about signing" cards He attended union
meetings, one or more of which took place before his
discharge. The evidence that management knew of his
interest in the Union is his testimony that he discussed the
Union with Davis, the No. .1 waiter, and Stokes, the head
"Beckman testified that the discussion among the four employees took
place "upstairs in the main locker, room " This testimony was not given in
connection with the eavesdropping device discussed above, and Beckham
did not identify the "main locker room" as the dressing room for waiters
and cooks There is no allegation that any of the other three participants in
the discussion was invalidly discharged
MORRISON :CAFETERIA COMPANY, INC.
cook Davis was a strong union adherent (see fns. 22 and
23 and accompanying text) and surely he did not report
Horn's interest in the Union to his superiors Stokes
opposed the Union (see fns 24 and 25 and accompanying
text), but there is no evidence that he reported Horn's
interest to management., Moreover, the record will not
support a finding that Stokes was a supervisor, and
counsel for the Respondent asserted that Stokes voted in
the election without challenge.
Horn was discharged on a Sunday On a preceding
Sunday he had spoken rudely to a customer. The record
does not fix the date of the incident - involving the
customer There is testimony by Davis that'it may have
occurred about a month before Horn's discharge, but
Davis was not asked the specific question and his
testimony on the point is unclear. On the other hand,
Horn was asked if the incident occurred "shortly before"
his discharge His answer was to tell of the incident
without fixing the time. A party of four individuals, upon
whom Davis usually waited, came to the cafeteria Horn
carried two of the trays to a table. Davis carried the
remaining trays According to Horn, one of the customers
asked about the other trays, to which Horn responded
that he had two trays, that another waiter had the other
trays, and that he could carry.only two trays because he
had only two hands Davis testified that the "customer
was upset" and • that Davis told Horn, that he must
"[n]ever talk to a customer like that again " Horn
testified that Davis "jacked [him] up about it" and made
him apologize to the customer. Moore heard of the
incident. Morrison's keeps a supply of self-addressed;
postage prepaid cards in its cafeterias for . use by
customers in making complaints or , expressing
compliments, and Moore testified that he received such a
card with a complaint concerning an unidentified waiter.
Moore testified further that he asked Davis about the
incident, seeking the details and the identity of the waiter
Davis' testimony is corroborative that Moore inquired of
him and that he told Moore that he had reprimanded
Horn There is additional testimony by Moore,
contradicted by Davis, that Davis said that Horn should
be discharged and that Davis himself made the discharge
I credit Davis' denial because I regard him as a much
more reliable witness than Moore. I believe that Moore
sought to strengthen the basis for discharging Horn by
falsely testifying that Davis said that Horn should be
discharged. The facts remain, however, that Davis' belief
that his disciplinary actions toward Horn at the time of
the incident were sufficient was not binding upon Moore
and that Moore had a valid basis for discharging Horn
Moreover, there is testimony for Morrison's that Horn
had conducted himself improperly before the incident, and
Horn acknowledged that he had been reprimanded, by
Moore for "loud talking in the dining room." For the
above reasons, and because the record does not establish
that Morrison's knew that Horn was a union adherent.
I find that Horn's discharge did not violate the Act.
Edward Eaton began work during 1949 as a waiter at
the Royal Street cafeteria He worked there until his
transfer to the Highway 90 cafeteria in 1962 as the No. 2
waiter, next in line to the No. 1 or head waiter As the
No. 2 waiter, Eaton was a supervisor. He did not sign a
union card but he attended three union meetings. On
February I, 1965, when Davis quit as head waiter (see fn.
23), Eaton became acting head waiter About "1 year
earlier , Moore had been transferred to the Highway 90
cafeteria as manager , and during the period of February
1964 to February 1965 he observed Eaton's work as No. 2
605
waiter Moore testified that during that period Eaton
demonstrated that he was "a weak, fairly weak No 2"
waiter, but that Moore was not "able to tell how weak he
was until he" became acting head waiter
On April 20, 1965, a few days after the election, Moore
suspended or discharged Eaton The latter was reinstated
about 2 weeks later as a nonsupervisory waiter, but was
soon discharged The second termination, which was
during May, is alleged to have violated Section 8(a)(3)
Eaton testified, and I find, that on April 20 he was called
to Moore's office where Moore told him to turn in his
badge, that Joseph Thompson and Warren McHale were
being made No. I and No. 2 waiters, respectively, and
that Eaton was being terminated, to which . Eaton
responded by asking whether he would be permitted to
work as a regular waiter According to Eaton's credited
testimony, Moore then said that Eaton would cause
trouble as a regular waiter, but that Eaton could return in
2 weeks and Moore would "see what" he could do about
making Eaton, a regular waiter. Moore's version of this
conversation is recited, in the footnote 36 At the end of 2
weeks, Eaton made several attempts to see Moore. After
the passage of a few more days, Eaton talked with Moore,
asking to be reemployed Eaton testified, and I find, that
Moore said that he had "only one thing" against Eaton,
that Eaton as acting head waiter "didn't do one thing to
help us keep the union out of the company," that Eaton
had not done as much as Thompson and another
employee, and that Eaton had not helped keep the Union
out because Eaton's brother was "tied up in it" The
brother worked at the Royal Street cafeteria According
to Eaton's credited testimony, he replied that the Union
was his business and that Moore could do as Moore
wished, following which Moore said that Eaton could
return to work 2 days later. Eaton worked as a regular
waiter for 2 weeks, at the end of which Moore discharged
him During that period, Eaton's name had not been
placed on the payroll. Moore's version of the discharge is
recited in the footnote.37 I cannot credit Moore's
testimony that Eaton, who had worked long and
satisfactorily for Morrison's, became unqualified during
Moore's tenure as manager of the cafeteria. I find that
Eaton was removed from his supervisory job on April 20
because he had not assisted management in combatting
the Union and that he was subsequently discharged from
his nonsupervisory job for the same reason. This is not a
case in which an employer may validly discharge a
supervisor for having engaged in union activity, or may
"Moore testified that he had had a "considerable amount of trouble" in
the operation of the dining room and that he had talked to Eaton a
number of times about that operation Moore testified further that on the
day in question he told Eaton that he had to make changes because the
current arrangement was hurting business ' and that he was thinking of
making Thompson and Warren McCarroll the No I and No 2 waiters,
respectively (Warren McHale, named by Eaton, and Warren McCarroll,
named by Moore, may be the same individual ) According to Moore, he
knew that Eaton "had been with the company for quite a while" and he
spoke to Eaton of the possibility of making Eaton a regular waiter , saying
that Eaton "would probably cause a little turmoil" in that capacity, so
Moore laid Eaton off for 2 weeks "to see how the operation would run
without him even being in the house, in the cafeteria , at all "
"Moore testified that, as he had suspected, after Eaton returned to work
as a waiter , Eaton "drag [ged] his feet , so to speak, pull[ed] against the
boys that were trying to run the dining room," did not "do as he was told
and also caus [ed] confusion among the other waiters " by telling them "not
to listen" to the No 1 and No 2 waiters No supervisory or
nonsupervisory waiter was called as a witness to testify that Eaton became
a disruptive influence upon anyone when working as a waiter
606 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
validly discharge the same ^ individual later after the
individual has become a nonsupervisory employee for
having engaged in union activity as a supervisor Gibbs
Automatic Division, Pierce Industries, Inc , 129 NLRB
196. Instead, our case is one in which a supervisor is
terminated because he refrained from engaging in
management's antiunion campaign which consisted of
numerous unfair labor practices We need not consider
whether a supervisor's discharge for such reason violates
Section 8(a)(1) as restraint or coercion of employees
because Eaton's first discharge is not alleged to have been
an unfair labor practice I find that the discharge of an
employee for having refrained, as a supervisor, -from
engaging in an invalid union campaign is discrimination
within the meaning of Section 8(a)(3). This is particularly
true' when the campaign is still underway at .the time' of
the discharge, as reflected by the Union's objections to the
election which were intended to secure another election
Sadie Schultz was hired at the Royal Street cafeteria
during November 1962. After working there for 2 weeks,
she was transferred to the Highway 90 cafeteria where she
worked until May 22, 1965. The issue is whether she quit
her job without notice or was discharged She attended
union meetings and, as recited above in connection-with
Holland's remarks to groups of employees, upon one
occasion when Holland spoke to employees who worked
in, the kitchen, she spoke in favor of the Union. At
Moore's direction, she did not attend the last several
meetings that Holland held with employees. Prior to the
election on April 16, Schultz worked as a baker. On April
21, Moore told her to work at the beverage -stand in the
serving line, and she did so until May 22 When she was
overworked at the stand because of large numbers of
customers, Moore would not let anyone aid her, saying
"she's, for the union, let her work by herself.""
Schultz testified that on May 22, 1965, after she had
cleaned the beverage stand at the end of her day's work,
the assistant manager, Reed, came to her and told her
that Moore had said "that that was [her] last day of
work" and that, if she had any questions, to ask them of
Moore. Schultz testified further that Moore was not in the
cafeteria and "was supposed to have been out of town "
Moore's testimony does not indicate that he was' in the
cafeteria on the night of May 22. He testified that at 8
o'clock on the following morning he left the local airport
to spend a week in Chicago. Moore denied that he told
Reed to discharge Schultz and he testified further that it
was his understanding that Schultz "just didn't come back
to work" after May 22 Because Moore was not in the
cafeteria during the week of May 23, and never discussed
the subject with Schultz, his purported understanding that
she quit her employment without notice to management is
hearsay. Reed testified that Schultz was not discharged,
that he did not tell her that Moore had said that May 22
was her last day of work, and that "[s]he just.didn't show
up for work." Thus, the question whether Schultz quit her
employment without notice or was discharged involves a
question of credibility. The evidence concerning her final
paycheck, and when and how she received it, is
incomplete. She was not asked about the check. A
workweek at the cafeteria ends on a Saturday Schultz's
"The findings concerning Schultz's work at the beverage stand are based
upon her testimony which is contradicted ' by that of Moore and Reed I
have found , however, that Moore and Reed were unreliable witnesses
Moreover , as recited , 'there is no dispute that supervisory employees at
another cafeteria spoke among themselves of "hound[ing ] employees out of
their employment " as a tactic in combating the Union See fn' 5 and
accompanying text
normal workweek contained 5 days of 8 hours each.
During her final workweek, she worked a total of 32
hours on Sunday, Thursday, Friday and Saturday The
record does not disclose the days of the week of May 23
that Schultz would have worked if she had not quit or
been discharged Thus, if she quit simply by not reporting
to work, the record does not disclose when the
Respondent learned of the quit. Nor 'does the record
disclose when she received her final paycheck. Reed
testified that he did not know whether he paid Schultz on
May 22 or later. The paycheck is dated May 22, but that
fact does not establish that it was prepared on that day
All paychecks for the workweek ending May 22 bear that
date, but were -prepared on May 24' in Morrison
Consolidated's main office in'Mobile for delivery to the
employees on May 25, a regular payday. Schultz cashed
her final paycheck at a store which deposited the check in
a local bank on May 29. This fact indicates that she
received the check on or after May 25, but if she quit her
employment without notice and returned to the cafeteria
for her, check, surely Reed would have spoken to her
about her quitting." He signed her check and, because of
Moore's absence during the week of the 23rd, he
distributed paychecks to the employees. He testified,
however, that he did not know whether Schultz returned
to the cafeteria for the check
In the recitation of events at the Highway 90 cafeteria,
above. I credited Schultz and discredited Moore and
Reed I again discredit Moore and Reed. The
Respondents' hostility to the Union is clear, as is
Schultz's adherence to the Union and the Respondents'
knowledge of such adherence I believe that on May 22,
Moore'told Reed to tell Schultz that that was her last
day, and that Reed told her so I believe that Moore was
motivated by Schultz's union adherence. I conclude that
the termination of Schultz's employment violated Section
8(a)(3) and (1)
Harold Cruse has been described as a waiter who
worked over a period of 16 years for subsidiaries of
Morrison Consolidated in 12 cities and who became a
union adherent while working at the Highway 90
cafeteria. As recited, his union adherence was known to
the cafeteria's manager, Moore On September 12, 1965,
Moores successor, Ronnie Tatum, who had been working
in the cafeteria for about 2 months, discharged Cruse
Tatum denied that he knew of Cruse's union adherence
According to Tatum, he had observed Cruse and had
noted that Cruse "was a good waiter" but possessed "a
tendency to lose his temper several times." Tatum testified
further that- upon two occasions he sent Cruse to the
employees' dressing room "to cool off," following which
Tatum told' Cruse that the latter would "have to watch his
temper" and "could not lose his temper there in the
dining room where the customers could know it." Tatum,
however, gave no details concerning any alleged loss of
temper by -Cruse in, the dining room. There is testimony
for the' Respondents that about September 1 Cruse
engaged in a fight with another waiter in the kitchen.
Cruse denied that he fought On the other hand; Tatum
testified that he was summoned by a waiter to stop a fight
between Cruse and another'waiter, that he told Cruse and
the other fighting waiter "to break it up," that they, did
so, and that somewhat later Tatum called the two men
"Moore testified that "[n]ormally" when an employee is discharged, the
employee is paid forthwith by a draft,drawn on a petty cash fund , and that
exceptions to this practice are rare He testified also that employees who
quit receive their final paychecks on the next payday
MORRISON CAFETERIA COMPANY, INC.
together and told them that fights in the cafeteria would
not be tolerated Tatum was not asked, and did not
volunteer, the name of Cruse's alleged opponent., He
volunteered that he could not recall the name of the
waiter who summoned him to the scene of the fight. Reed,
the assistant manager, testified that he was attracted by a
commotion and that when he reached the scene he saw
Tatum standing between Cruse and another waiter who
were sweating and looking at each other with clenched
fists. Reed testified further that he did not recall the
identity of the other waiter. Upon being asked to describe
the individual, he answered; "Well, now, there were
several fights.". In response to another question, Reed
answered that he "would say that [the second waiter] was
about the same size of Harold Cruse " The "several
fights" mentioned by Reed did not involve Cruse and
there is no evidence that the participants in them were
disciplined No waiter or other employee who observed
the alleged encounter was a witness As recited, Cruse
denied that he had engaged in a fight.
Another alleged incident upon which Morrison's relies
for having discharged Cruse is found in the testimony of
Reed and Tatum, concerning alleged rudeness to a
customer. According to Reed, during the period after
Tatum became the manager and before Cruse's
termination, a cashier whom Reed did not identify told
him that an unidentified female customer had told the
cashier that Cruse had insulted her by rejecting a tip of 10
cents and, throwing the coin back to her Reed testified
also that he spoke to Cruse about, the alleged incident,
that Cruse denied that it had occurred, that Reed could
not investigate the subject because the customer had left
the cafeteria, and that Reed said to Cruse "that we don't
stand for that type of action with Morrison's and if it ever
happened again, [Reed] would have to talk to [Cruse]
about it further " Tatum testified that Reed told him that
"a lady had given [Cruse] a dime tip one time and- he
threw it back on the table at her and the lady told the
cashier about it " The cashier to whom the customer
allegedly complained was not a witness
We turn to events on the day of Cruse's discharge-The
recitation includes the Respondents' assertion that Cruse
insulted a customer immediately prior-to the discharge
Tatum testified that not long after the cafeteria was
opened on that day, he was summoned to the lobby of the
cafeteria where a woman awaited him. According to
Tatum, the woman.said that she was one of a group of
about four persons who sought to eat at a particular table
when Cruse told the group "to get out of the way," that
the table was reserved, that she had noted Cruse's name
and badge number attached to his clothing, that she was
too upset by the incident to eat, her meal, and that she
would wait outside in an automobile while "the other
three in the party" ate. Tatum testified further that tables
are not reserved in the cafeteria and, that when he
completed his conversation with the customer, he went to
Cruse and asked about the incident, that Cruse denied
that it had occurred, that Tatum said that he i"had just
talked to" the customer and asked why she would relate
such an incident if it had not happened, to which Cruse
answered that "he didn't have any idea." Tatum made no
effort to ascertain whether the customer was still in an
auto outside, awaiting the others in her group who ate in
the cafeteria, so that she could dispute Cruse's denial
Instead, so Tatum testified, he reminded Cruse of the
alleged recent fight with, another waiter, saying also that
"if it is not fighting, it is insulting the customers," so that
Tatum was "dust going to have to let [Cruse] go " At that
607
point, according to Tatum, Cruse began to speak of his
long tenure in the Morrison chain, but the cafeteria was
very busy and Tatum, told'Cruse to return another day
because he did not have time to talk further Finally,
Tatum testified that he could not identify the customer
who had complained, that she had given him her name
when they spoke, but that he "did not make a note of it"
and could not recall it. Cruse's version of the conversation
differs substantially and is more credible. According to
Cruse, Tatum spoke 'of having received a letter and
telephone call to' the effect that Cruse had been rude to
customers, and Cruse denied that he had been rude,
following which Tatum sent him home with the
understanding that they would talk 2 days later. When
they talked again, so Cruse testified, Tatum refused his
request that he be permitted to see the letter of complaint
about him and to talk with anyone who had complained 10
I cannot credit Tatum's testimony that he had not
heard of Cruse's interest in the Union, nor can I credit his
testimony and that of Reed that Cruse became an
unsatisfactory employee Over a period of 16 y'eafs, Cruse
had worked in Morrison cafeterias in 12' cities. He
testified without contradiction that he experienced no
difficulty in obtaining employment in any of those
cafeterias. The Respondents' testimony that he ultimately
proved to be unsatisfactory is not believable. Cruse
credibly denied that he engaged in a fight 'Assuming
arguendo that Cruse and another employee fought, it' was,
so Reed testified, only one of "several fights" in which
employees participated Insofar as appears, participants
other than Cruse wefe not disciplined Cruse denied too
that he had been rude to a customer. His version of his
conversations with Tatum when the latter accused him of
having been rude impressed me as the truthful version. I
conclude that Cruse became an unsatisfactory employee
by developing an adherence to the Union and that Tatum
used the pretext of a complaint by a customer as the
means of removing 'a union' adherent Cruse's discharge
violated Section 8(a)(3) and (1).
3 At the Royal Street cafeteria
Marion Walton began work for Morrison's on March
10, 1950, and worked continuously until ' she was
discharged on December 21, 1964 She worked in various
capacities and did not receive any complaints about her
work. She became active' in the Union,' attended union
meetings before and after - her discharge,, held ' two
meetings in her home, and successfully solicited-' signatures
of employees to union cards Her testimony concerning
her discharge is uncontradicted. When she reported to
work on December 21, 1964, the assistant manager,
Billingsley, gave her a paycheck and said that Morrison's
could not "use [her] any more " She asked what had
happened, and he answered that he did not know He said
also that he had orders to have her paycheck ready upon
her arrival to work. She asked, "After fifteen years [of
employment]?" He answered, "[J]ust like' that."
Billingsley said also that he wanted her "to know that
they always make the assistant manager do the dirty
work" and that he had "enjoyed working with" her.
Several employees sought to speak to' Walton, but
Billingsley would not permit it She was never given any
reason for her discharge-
"The testimony of Tatum and Cruse concerning the details of their final
conversation is highly conflicting I do not believe ' that this Decision need
be lengthened by a recitation and resolution of the conflicts
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrison's offered no evidence concerning Walton's
discharge. It contends that the General Counsel did not
make a prima facie case that it knew of Walton's union
activities The General Counsel sought in several ways to
make such a case. Hastings, the assistant manager at the
Dry Dock cafeteria, testified credibly that four named
employees attended union meetings and came "back and
[told] us who was active and who wasn't," but Hastings
did not testify that a report had been made concerning
Walton A waiter named Henry Spencer attended union
meetings and knew that Walton had been present Spencer
had been the No I waiter and a supervisor at the Royal
Street cafeteria, but he had been retired about 2 years
before Walton's discharge, following which he was rehired
as a waiter, and I do not believe that his knowledge of
Walton's union activities can be imputed to Morrison's
Finally, the following persons, among others, attended one
or both of the meetings at Walton's home Herbert Davis,
who was identified above as the No. 1 waiter at the Dry
Dock cafeteria, George Davis, the No l waiter at the
Royal Street cafeteria, and Charles Wiggins, the No. 2
waiter at the latter cafeteria. These three individuals were
supervisors I have found that Herbert Davis was a strong
union adherent and that I cannot find that he identified
union adherents to his superiors. The same may be said of
Wiggins On the other hand, George Davis rejected a
request by Clemmie Bryant that he sign a union card, and
I do not believe that George Davis' attendance at a
meeting or meetings in Walton's home establishes that he
was a union adherent. I conclude that the General
Counsel made a prima facie case that management knew
of Walton's union activities and, in the absence of
evidence to the contrary, that the record establishes that
Walton was discharged in violation of Section 8(a)(3) and
(I) .
Beatrice Moore began work for Morrison's during 1956
and'she worked continuously, without complaints about
her work, until she was discharged on December 21, 1964.
She and Walton' were discharged on the same day under
similar circumstances. When she reported to work,
Billingsley had. her final paycheck and told her that "the
manager" had said that he could not use her any more
Moore had signed a union card, which she had received
from Walton, and she had attended one union meeting
There is no evidence that any supervisor knew that she
had signed the card' or attended the meeting I conclude
that the General Counsel did not make a prima facie case
that Moore was discharged in violation of the Act.
Clemmie ' Bryant was hired by Morrison's during 1942
and.he worked continuously as a waiter until his discharge
on December 20, 1964 He took a leading part in the
organizational efforts, attended union meetings and
solicited numerous employees to sign union cards. He was
unsuccessful, however, in asking George Davis, No. 1
waiter and his superior, and James Williams to sign cards
The latter is identified in the record as the head chef, but
I need not discuss the issue whether Williams is a
supervisor because there is no dispute that George Davis
had such status. His knowledge of Bryant's adherence to
the Union is imputable to Morrison's. On Sunday,
December 20, Billingsley said to Bryant that he wanted to
talk with Bryant at the end of Bryant's workday. At
quitting time, however, Wear, instead of Billingsley,
talked with Bryant Wear had been manager of the
cafeteria for only a day or so Bryant testified without
contradiction, and I find, that Wear said that Bryant had
insulted a man and wife, that he asked when he had done
so, that Wear replied, "the other day," adding that the
man was "coming down to beat [Bryant] up so we are
going to have to let" Bryant go "for a while." Bryant
testified further, and I find, that Wear refused to disclose
the identity of the man who assertedly claimed to have
been insulted. Bryant credibly denied that he ever insulted
any customer or had been criticized for his work There is
no testimony by Wear or Billingsley that Bryant insulted
anyone, and Bryant's testimony that he had not done so
stands uncontradicted. Wear did not tell Bryant how long
the latter, would be suspended Morrison's did not attempt
thereafter to contact Bryant nor did Bryant attempt to
contact Morrison's I conclude that the General Counsel
made a prima facie case and, in the absence of evidence in
defense, Bryant's termination violated Section 8(a)(3) and
(1)
James Sanders, a nephew of Marion Walton, was hired
by Morrison's during 1962 He signed a union card and he
attended union meetings, one of which was held at his
aunt's home. On February 7, 1965, he was discharged by
Wear During that month, Morrison's ceased serving
breakfasts at the Royal Street cafeteria because that
portion of its business had become unprofitable, and a
number of employees were laid off Sanders was among
them. Wear testified that the layoffs were made on the
basis of seniority in the departments within the cafeteria,
and this testimony was not rebutted by the General
Counsel. In particular, Tolbert, a union adherent whose
discharge is discussed below, testified that he succeeded to
some of Sanders' duties upon the latter's termination The
record does not establish that Sanders' termination
violated the Act
Eddie Tolbert began work for Morrison's during 1957
as a cook He became a union adherent, and his testimony
concerning remarks by representatives of management
about the Union has been recited During July 1965, he
was laid off for 2 weeks Later he was terminated. Still
later, he refused reinstatement. The testimony is highly
conflicting We start with a personnel record which
reflects that he last worked on Saturday, July 3. He did
not work during the-3 days immediately preceding, but the
personnel record indicates that Thursdays and Fridays
likely were his days off although he sometimes worked six
and seven 8-hour days in I week. Tolbert testified that on
July 4 he telephoned the cafeteria and told Billingsley that
he was ill and unable to work, that on the next morning
he felt better and again telephoned Billingsley, asking
whether he should report to work According to Tolbert,
Billingsley's answer was that he should "take off a couple
of weeks." Tolbert testified further that the following day,
a Tuesday, was a-payday and that he went to the cafeteria
for his check, at which time Billingsley again told him to
take "off a couple of weeks " This was the only occasion
that Tolbert received a layoff while in Morrison's employ.
At the end of the layoff, according to Tolbert, he called
Billingsley and was told that his services were no longer
needed On the, other hand, Billingsley denied that he had
any such conversations with Tolbert. The Respondents'
contention is that Wear laid off Tolbert. Wear testified
that "shortly before" July 3, Tolbert often "would get in'a
daze so to speak" instead of "being real alert" on the job,
that Tolbert once had sent as a substitute for himself a
waiter who, had- the day off, and that "some finance
places" had called to inquire about Tolbert." Wear did
not state the nature of the alleged inquiries. On July 3,
"Tolbert denied that he traded workdays with a waiter named Jimmy
Stevens His explanation was that he worked in the kitchen , not as a
waiter
MORRISON CAFETERIA COMPANY, INC. 609
according to Wear, when Tolbert reported to work after
an unexcused absence and without having "suppl[ied] a
substitute," Wear "asked what was the matter," to which
Tolbert responded that he was ill and needed to see a
physician 12 At that point, so Wear testified, he "asked
[Tolbert] to take 2 weeks off to clear his business, seeing
the doctor, and do whatever he thought needed doing and
then come back " The suspension of 2 weeks was without
pay. Wear testified further that after the passage of 16 or
17 days, Tolbert returned to the cafeteria where Wear
asked if he had seen a physician, to which Tolbert replied
in the negative, but insisted that he needed to see one, and
that Tolbert also said that he would not return to work
unless he could "have more money," to which Wear
replied that his wage would not be increased The
personnel record above mentioned contains the following
entry "Gave him 2 wks off to get business straight July
4" Wear testified that the entry was made by his "office
girl." 11
I credit Tolbert's version 1 have had occasions herein
to credit him and to discredit Wear and Billingsley I
believe that the truth lies in Tolbert's testimony that his
conversations were with Billingsley, largely by telephone,
not with Wear at the cafeteria. I believe too that
Morrison's did not have any valid reason to suspend
Tolbert for 2 weeks. There is no evidence that Tolbert
asked for a leave of absence in order to straighten his
business affairs, nor is there evidence that Wear spoke to
Tolbert of calls from "finances places." Moreover, a
suspension without pay was not calculated to assist
Tolbert in easing any financial difficulties Tolbert had
been told by Billingsley and Wear that Morrison's would
rid itself of union adherents, and I conclude that Tolbert's
suspension and later termination were portions of
Morrison's plans to discharge such adherents and,
therefore, violative of Section 8(a)(3) and (1) Tolbert's
backpay shall be for a limited period, however He
testified that "a month or so" after his termination, Wear
sent for him and that he went to the cafeteria where Wear
offered to reinstate him, but that Wear refused his request
for a higher wage rate, and that he refused reinstatement
The date of refusal shall be determined in the compliance
stages
4 Summary of the terminations
I find that Morrison's invalidly discriminated against
the following employees: Bryant, Cruse, Eaton, Morris,
Schultz, Tolbert and Walton I find also that the record
does not establish that Morrison's invalidly discriminated
against the, following employees: Beckham, Fultz, Horn,
Moore, and Sanders
E. The Issues Concerning a Bargaining Order at the
Dry Dock Cafeteria
1. The basis of the General Counsel's request
As we have seen, the Union's demand that Morrison's
bargain was made in a letter of December 20, 1964, in
"As recited, Tolbert testified that his conversations were with Billingsley
He denied that he told Billingsley that he needed the services of a
physician
"The entry makes no reference to Tolbert's having been absent from
work because of illness If, as Wear testified , Tolbert was suspended upon
reporting for work after an absence , the date could not have been July 4
because Tolbert worked on July 3 If the date of suspension was July 3,
Tolbert was not suspended until he completed work that day As I find in
crediting Tolbert' s version , the date of suspension was July 5
which the appropriate unit was described as employees of
the three cafeterias, one operated by ' one of the
Respondents and two operated by the other Respondent
In the representation case, however, the Regional Director
held that the employees of each Respondent constituted a
separate appropriate unit Because the Union's demand
had not embraced an appropriate unit , the General
Counsel did not allege a violation of Section 8(a)(5) at the
Dry Dock cafeteria The General Counsel contends,
however, that the Union possessed majority status in the
unit at that cafeteria and that a bargaining 'order is
appropriate because of Morrison's extensive unfair labor
practices to destroy such status °° His position is founded
in the line of cases that include N L R B v Northwest
Engineering Company,' 376 F 2d 770 (C A D C.), cert.
denied 389 U S 932, J C Penney Co , Inc v. N L R B,
384 F 2d 479 (C A. 10), and other cases cited in In. 13 of
R W Inc , d/b/a K-Mart Foods, 170 NLRB No - 67
2 The procedural matter involving the objections to
the election
The Union's objections to the election at the Dry Dock
cafeteria on April 15, 1965, and to the election at the
public cafeterias on the next day are contained in a single
document. Counsel for the General Counsel tried the cases
in the mistaken belief that the Regional Director, who
consolidated the cases and directed a hearing on the
Union's objections, had specifically placed in issue the
objections to the election of April 15 Thus, before the
first witness took the stand, counsel for the General
Counsel stated that he sought "in this case a bargaining
order at the Alabama Dry Dock location
Moreover, the amended complaint alleges that the unit at
that cafeteria is appropriate, and the Union's majority
status was litigated, as described hereinafter Additionally,
counsel for Morrison's stated his understanding that the
issue concerning a bargaining order was "one of the
principal issues in this case." After the hearing, however,
when the General Counsel and the Respondents filed their
briefs, the latter brief made the point that the Regional
Director had specifically placed in issue only the
objections to the election at the public cafeterias.d5
Counsel for the General Counsel reacted by filing with me
a motion to reoven the record for the purpose of receiving
as an exhibit an "Amendment To Order Directing A
Hearing On Objections," dated July 3, 1967. The
proposed amendment, signed by the Regional Director,
would revise the. first paragraph of the original order
directing a hearing on the Union's objections so as to
"The record does not disclose why the General Counsel has not
requested a bargaining order covering the unit in the two public cafeterias
Perhaps the Union did not obtain cards signed by a majority of the
employees in that unit , perhaps signed cards were impaired by the
prounion activity of Herbert Davis , No I waiter and supervisor at the
Highway 90 cafeteria , or Wiggins, No 2 waiter and supervisor at the
Royal Street Cafeteria
"At page 50 of the transcript , before the first witness was called and as I
was reading from the captions of a number of exhibits so that they might
be marked for identification , I remarked that Resp Exh 7 is an order
directing a hearing on the Union ' s "objections involving both companies
[Respondents ] " Counsel for the Respondents said, "Quite to the
contrary ," and I replied that my remarks had been based upon the caption,
which named both Respondents Counsel for the Respondents then said,
"The body of it indicates very clearly that it is only as to one of them " I
did not comprehend the full significance of counsel 's comments , doubtless
because I had not become sufficiently familiar with the issues Counsel for
the General Counsel said nothing concerning the comments of opposing
counsel, and the record does not disclose why
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifically place-in issue the objections to both elections
On July 21, 1967, counsel for,the Respondents filed his
opposition to the motion to receive the exhibit These
documents and others are marked as exhibits in the
footnote '" I grant the General Counsel's motion and
receive the exhibits in evidence My reasons follow First,
the Union filed detailed objections to,both elections, and
incorporated the objections in a single document To deny
the General Counsel's motion would be an injustice to the
Union, which was not represented at the hearing before
me, and insofar as appears, was unaware that its
objections to both elections had not specifically been put
in issue Second, by Order and Direction of July 15, 1965,
in the representation case, the Board directed "that the
Regional Director conduct an investigation of the issues
raised by the [Union's] objections . " Clearly, it was
the Board's intent that action be taken in connection with
both elections Third, in accord with the contention of the
General Counsel, and contrary to the argument of counsel
for the Respondents. I believe that the Regional Director's
failure to specifically mention the election of April 15 in
his order directing a hearing on the Union' s objections
was an inadvertency on his part or on the part of the
subordinate who drew the order for -him That order
named both Respondents in the - caption as
Employer-parties and, as we have seen , counsel for the
General Counsel tried the cases on the theory that the
objections to both elections were in issue . On the other
hand , when the Regional Director issued documents
relating to one or the other of the Respondents , but not to
both , he named only one in the caption (See the tallies of
ballots and certifications of, results of elections .) Fourth,
no prejudice will result to the Respondents by my granting
the General Counsel' s motion The Union 's objections to
both elections have been litigated , in large part, as alleged
unfair labor practices . The facts upon which the General
Counsel requests a bargaining order are all in the record
The defense evidence is there too
3 The question whether Yeager was a Supervisor
Jeanette Yeager was a leading participant in the
Union's activity at the Dry Dock cafeteria and was
instrumental in securing employees' signatures to cards
At times she was aided by her -husband, an employee of
the Dry Dock Company who ate meals in the cafeteria
and who was known to Morrison's employees. If Yeager
was a supervisor, as the Respondents contend, ' a
substantial number of cards cannot be counted and the
Union never possessed majority status.
Yeager worked for Morrison's from about May 1955 to
March 28, 1965. She began as a salad girl, making salads
and keeping a sufficient number of salads in the serving
line. Subsequently, she operated a cash register at the end
of the line, while performing additional tasks when meals
were not being served At an uncertain time, perhaps
1961, Yeager assisted the office girl in maintaining
"Trial Examiner's Exhibits I through 6 are, respectively, (I) the General
Counsel's motion, to which is attached his proposed amendment and an
extra copy of the Union's objections to the election. (2) The Respondents'
request for time within which to file opposition, dated July 6, 1967, with
covering letter attached, (3) a copy' of my letter of July 10 fixing the time
within which such opposition could be filed, (4) a copy of a letter of July
12 from counsel for the Respondents to counsel for the General Counsel,
(5) a copy of -a letter of July 12 from counsel for the Respondents to the
Regional Director, and (6) Respondents' opposition, dated July 18, with
covering letter attached
records and reports, and when that girl quit her
employment , Yeager became the office girl About 1963
Yeager was hospitalized and her place in the office was
taken by Jean Young. When Yeager returned to work she
requested that she be relieved of her office duties and be
permitted to work in the cafeteria proper, including the
operation of a cash register , and her request was granted.
As the office girl, Yeager was paid $ 1 10 per hour and she
continued to receive the same wage until her employment
ended
Hastings , the former assistant manager at the cafeteria
who was a witness for the General Counsel, testified, and
I find , that after management "received a letter that
supervisors could not vote" in the election , she had a
conversation with Mills and Rehwmkel in which the latter
said that Yeager would be made a supervisor so that
Yeager would become ineligible to vote Hastings testified
further that Yeager' s duties and hourly wage were not
changed .41 Yeager's employment was terminated prior to
the election, but she was . still employed when the
pre-election hearing in the representation case was held
.and when the Regional Director ' s Decision and Direction
of Election therein was issued Yeager did not testify at
that hearing , nor did any employee Hill was the only
witness concerning personnel and jobs at the Dry. Dock
cafeteria The Regional Director, relying upon Hill's
testimony , found that Yeager supervised 8 employees and
made effective ' recommendations in personnel matters.
According, he excluded her from the unit.
Race, the Union's organizer, appeared for it at the
pre-election hearing, and it was there that he learned that
Morrison's contended that Yeager was a supervisor At
the. next union meeting, Race told Yeager of Hill's
testimony, and Race and Yeager discussed her duties 48
On the following morning when Yeager was at work, she
said jokingly to Ward, "Alice, you are fired I am a
supervisor today " On the same day, Yeager went to the
office to see Rehwinkel, the manager She asked Young,
the office girl, to make notes concerning her conversation
with Rehwinkel Yeager told Rehwinkel that she had been
told ,at the union meeting that she was a supervisor, and
she asked that he tell her when she had become one
Rehwinkel replied that he did not know what she was
talking about Yeager also said that she wanted to know
why she was not receiving a supervisor's pay, and again
Rehwinkel said that he did not know what she was talking
about He said too that he would "be glad to find out for
[her]," to which she responded, "please do," but it does
not appear that Rehwinkel spoke to her of the matter
again ,9 He was transferred to other employment a few
days after talking with her
"Hastings also testified that other employees were mentioned as persons
to be made supervisors so that they would be unable to vote Neither Mills
nor Rehwinkel specifically contradicted Hasting See fn 5
"Race also told Yeager that she could vote a challenged ballot Later,
10 days before the termination of Yeager's employment, the Regional
Director issued his decision Race took no steps in the representation case
to have the Regional Director's determination concerning Yeager
overturned
"The findings are based upon Yeager's credited testimony which
Rehwinkel did not deny Young, a witness to the conversation, testified for
the Respondents According to Young, she could remember only that
Yeager had asked when Yeager had become a supervisor, to which
Rehwmkel had responded that he was sorry, that he could not answer the
question Young testified further that her memory was not refreshed by her
'handwritten notes concerning the conversation When Young testified, her
position was assistant manager of the cafeteria She impressed me as not
being a candid witness and as being reluctant to give any testimony that
would be unfavorable to the Respondents
MORRISON CAFETERIA COMPANY, INC. 611
The principal testimony that Yeager was a supervisor
was given by Hill and Rehwinkel Before that testimony is
recited, certain observations should be made First, a
substantial number of employees testified that Yeager was
not a supervisor It is unnecessary to lengthen this
decision by a recitation of much of that testimony
Second, Yeager was not paid a supervisor's wage She
earned $1.10 hourly Knight, a salad girl who also
performed additional tasks, was paid $1.13 or $1 15
hourly Helen Brown performed various tasks, including
that of a cashier, and was paid $1 25 hourly Morris, a
baker, earned $1 15 hourly, Blackmon, the head baker,
earned about $1 20 hourly Hastings, the assistant
manager, earned $275 monthly. Third, certain
comparisons between the public cafeterias and the Dry
Dock cafeteria are appropriate At the Royal Street
cafeteria, there were 50 to 60 employees At the Highway
90 cafeteria, the number was 40 to 50 Of the total of
about 100 employees, at least 30 were waiters (supervised
by the No I and No 21 waiters) and about 70 were
supervised by the manager and the assistant manager at
each of the two cafeterias On the other hand, there were
no waiters at the Dry Dock cafeteria and the number of
employees varied from about 20 to 30 according to the
number of workers employed by the Dry Dock Company
It follows that, if Yeager was a supervisor, there were
three supervisors at the Dry Dock cafeteria for 20 to 30
employees, whereas at the two public cafeterias there were
four supervisors for about 70 employees
Yeager and Rehwinkel worked on the first shift from
4 30 a m to about 1 30 p m Hastings worked the second
shift, beginning at I I a m , but there were occasions when
Rehwinkel told her to report to work earlier Hill, a vice
president in Morrison's operations, testified that he did
not go to the Dry Dock cafeteria "very often " Although
Hill's testimony in the pre-election hearing was the basis
of the Regional Director's determination that Yeager was
a supervisor, it develoved at the hearing before me that
Hill had little firsthand knowledge of Yeager's work The
latter worked as a cashier on one of the serving lines
during the hours that the cafeteria was oven for breakfasts
and lunches When the cafeteria was closed before those
meals, she performed other functions According to Hill,
Yeager was "a head line girl" who spent 60 to 75 percent
of her time in supervising' employees in the serving line
and the remainder of her time as a cashier Hill testified
further that Yeager was' the supervisor on the downstairs
serving level, that Rehwinkel supervised 'upstairs, that
Yeager instructed employees in preparing to serve
breakfast, that she shifted employees from one work place
to another when necessary because an employee did not
report to work on a particular day, that Yeager left her
place at the cash register when business was slow in order
to "move around and see how the food was on the
counter," that after breakfast had been served it was
Yeager's responsibility to- see that the leftover food was
sent to its proper place upstairs and to clean and prepare
the cafeteria line for serving lunch. Hill testified
additionally that Rehwinkel had to leave the cafeteria at
times, e g , to make daily trips to a bank, that Yeager'was
in charge of the cafeteria upon such occasions, that upon
other occasions when Rehwinkel had to be away for
extended periods, Hastings worked the first shift and
together with Yeager operated the cafeteria in
Rehwinkel's absence, and that Yeager had authority to
recommend hires, layoffs and discharges On
cross-examination, Hill testified that Yeager supervised
about eight employees on three serving lines He then
testified that he did not "remember exactly seeing her do
any of this [supervision]," that he 'did not go to the
cafeteria "very often," that he did not really know how
much time Yeager spent in supervising, and that his
testimony was based upon information given to him by his
subordinates who were Yeager's supervisors Hill was
unable to name anyone whom Yeager supervised or
recommended for disciplinary action, and he testified that
his information that she had recommended such action
was based upon remarks to him by his subordinates in
fact, according to Hill, Rehwinkel had told Rehwinkel's
superiors of such action and they, in turn, had told Hill
In summary, Hill's testimony was not based upon his
personal observations Moreover, none of the employees
on the serving line testified that Yeager was a supervisor
We, turn to Rehwinkel's testimony He testified that
Yeager was the "head line girl on the first shift," that
Assistant Manager Hastings-was the head counter girl on
the second shift,'" that Yeager supervised as many as 8 or
10 employees but that the average number was 4 or 5, and
that Yeager performed such other tasks as filling salt and
pepper shakers, cleaning tables, and sweeping the floor
When an employee on the serving line failed to report to
work, according to Rehwinkel, a "back-up girl" would be
present and Yeager would assign that girl to the place of
the absent employee, and that, -when more than one
employee was absent, everyone, including Rehwinkel, had
"to pitch in together" to assure that the line functioned
properly Rehwinkel testified ' further that -upon his
absences from the cafeteria before Hastings reported to
work, Yeager was in charge of the downstairs portion of
the cafeteria, that Yeager recommended that individuals,
including her sister, be hired, and that Yeager
recommended the discharge of an employee named Betty
Smith three times before Rehwinkel discharged Smith On
the other hand, Hastings testified that she reported to
work early at Rehwinkel's direction upon occasions when
he had to leave the cafeteria, and Yeager testified that no
one was in charge upon the occasions when Rehwinkel left
the cafeteria before Hastings arrived Yeager also testified
that she recommended individuals for employment when
she noticed that additional employees were needed, and
Rehwinkel acknowledged that employees in addition to
Yeager recommended that individuals be hired Yeager
denied that she recommended Smith's discharge, testifying
that she did not know whether Smith had quit or been
discharged Finally, Rehwinkel testified that upon several
occasions, once at Yeager's request, he announced to
employees that Yeager "was in charge" and that they
"were directly responsible to" her He testified further
that it was his practice, upon hiring an individual to work
under Yeager, to introduce the new employee to Yeager
and to direct the employee to obey Yeager In
elaboration, Rehwinkel named two former employees as
having been present at such an announcement by him
about 1963 or 1964, and one employee as having been
present to hear an announcement after Yeager ceased
working in the office The latter employee, Ward, credibly
testified that Yeager was not a supervisor and that she
had not been told the contrary, as did a number of other
employees. Yeager credibly denied that Rehwinkel ever
said in her presence that she was a supervisor and that she
ever requested him to tell employees that she was one In
further elaboration, Rehwinkel: identified Josephine
Weaver as a new employee whom he directed to obey
'""Head counter girl" may be synonymous with "head line girl "
Rehwinkel referred to employees who worked on a serving line as "line
girls" and "counter girls "
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yeager Weaver testified, however, that Yeager was not a
supervisor and that no one had said the contrary
The credible evidence will not support a finding that
Yeager was a supervisor She testified, and I find, that she
performed numerous tasks, as did other employees, that
upon occasion when she needed aid in a particular task,
she asked another employee to help her, and that she
never told any employee to work at any particular task
unless she did so by relaying directions from Rehwinkel or
Hastings. Yeager was an experienced employee Her
ability was superior to that of various employees as
demonstrated by the fact that she operated a cash register
and had worked in the office I have no doubt that from
time to time Rehwinkel sought to make use of her
abilities, but I do not believe that her relations with other
employees required any independent judgment In view of
the factual recital above, I must conclude that Yeager was
not a supervisor `i
The remaining issue concerning Yeager's status is
whether I am bound by the Regional Director's
determination in the representation case that she was a
supervisor That determination, as recited, was based upon
Hill's testimony The Regional Director and/or the
General Counsel were not parties to that case and did not
present evidence concerning Yeager Moreover, the
Regional Director has, in effect, repudiated his
determination The repudiation follows from the fact that
the Regional Director, with knowledge of Yeager's union
activity, issued the amended complaint alleging, inter alia.
that since December 24, 1964, the Union has possessed
majority status at the Dry Dock cafeteria As I have said,
the Union could not have possessed such status if Yeager,
the leading solicitor of signatures to cards, had been a
supervisor The Respondents, in contending that I am
bound by the Regional Director's determination, point to
the Union's failure to request review of that determination
by the Board, citing Section 102 67(f) of the Board's
Rules and Regulations, Series 8, as amended, which reads
The parties may, at any time, waive their right to
request review Failure to request review shall preclude
such parties from relitigating, in any related subsequent
unfair labor practice proceeding, any issue which was,
or, could have been, raised in the representation
proceeding. Denial of a request for review shall
constitute an affirmance of the regional director's
action which shall also preclude relitigating any such
issues in any related subsequent unfair labor practice
proceeding
The quoted provision is inapplicable Here the Regional
Director, who was not a party to the representation case,
changed his mind concerning Yeager's status The Board
has corrected itself and, a regional director in a case
involving supervisory status Burlington Food Store, Inc .
and Delaware Food Store, Inc , 172 NLRB No. 73
Surely Section 102 67(f) does not preclude the Regional
Director's correcting himself by the method he has chosen
here Moreover, that section is not so broad as one may
think at first glance McEwen Manufacturing Company
and Washington Industries. Inc , 172 NLRB No 99 The
Respondents contend that Yeager was a representative of
management who improperly, because she was such
representative, participated in the organizational
movement Yeager's status is disputed, her participation is
conceded The dispute is properly one for determination
"There is testimony by Young concerning Yeager's status I need not
recite it Because of its substance , plus my evaluation of Young's
credibility (see fn 49), it has little value on the issue of Yeager ' s status
by a trial examiner Perhaps a hypothetical case will
clarify the point If Yeager had engaged in antiunion
activity, instead of prounion activity, and if the Regional
Director had alleged in the complaint that such activity
violated Section 8(a)(1), the Respondents could have
asserted that I was not bound by the Regional Director's
determination of supervisory status and that they were
entitled to have Yeager's status determined by a trial
examiner upon a full record made in conformity with the
Act and the Administrative Procedure Act, 5 U S C Sees
1001, et seq, Amalgamated Clothing Workers of America,
AFL-CIO v N L R B (Sagamore Shirt Company), 365
F.2d 898 (C A D C ), McEwen, supra I see no substantial
difference between the hypothetical case and the one
which exists here
4 The unit and the Union ' s majority status
The amended complaint alleges that the appropriate
unit consists of all employees of Morrison Food Service at
the Dry Dock cafeteria, exclusive of all other employees,`z
professional employees, guards, watchmen, and
supervisors as defined in the Act The Respondents'
answer denies the allegation , but it appears from the
Regional Director ' s Decision and Direction of Election
that the unit is one advocated by Morrison ' s in the
representation case I find that the unit is appropriate
The record contains a number of union cards signed by
employees in the unit Each card , entitled "Application
for Membership ," is a combination application for
membership in the Union's parent International and an
authorization to the International and Local to bargain
collectively on behalf of the signer The heading of the
card and the explicit application for membership
constitute "one thing an employee would readily
understand ," N L R B v S E Nichols Company, 380
F 2d 438, 442 (C A 2), quoted with approval in N L R B
v Southland Paint Company inc , 394 F 2d 717 (C.A 5)
Most of the cards were identified by their respective
signers A few were identified by a handwriting expert A
few were identified by other individuals Contrary to the
Respondents ' contention , authentication of signatures on
cards may be by witnesses who saw employees sign
N L R B v Merrill , d/b/a Merrill Axle and Wheel
Service , 388 F 2d 514 ( C A 10). Before we reach the total
of the cards as compared with the number of employees in
the unit, there are issues concerning whether any cards are
not to be counted because of alleged misrepresentations
and threat Lee Ernest James testified that he and three
other employees ( who were not witnesses ) received cards
from Yeager and signed them in the cafeteria On
cross-examination, in response to leading questions, James
testified that Yeager spoke of only one purpose for the
cards , i e , to have an election to "get a ' union in " On
redirect , when James was asked to recite Yeager's
remarks, he did not mention an election Instead,
according to James, Yeager "give us the cards so we
could get a union in there, that means we get more money
over there, and we weren't making. anything " Still on
redirect, James testified that he could not recall anything
"The term "all other employees" was used by the Regional Director in
his Decision and Direction of Election to refer to Young , then the office
girl The term is equally applicable to Young's successor, if any, in that
capacity The Regional Director, characterizing Young as "office
manager ," held that she was not a supervisor , but that he could not
determine whether she was a confidential employee, and that she would be
permitted to vote a challenged ballot Young quit her employment before
the election and did not seek to vote
MORRISON CAFETERIA COMPANY,- INC.. 613
be tired after ,the union came in " Hall's testimony
concerning her impression is weakened by her testimony
that later that day Yeager spoke "in the same way" to
Ward, but that Hall did not recall what Yeager had said
Ward testified that she received a card from Yeager, but
she did not testify. that there was any threat In any event,
Hall testified further that she nad been an officer in a
labor organization, that-she knew that "you cannot tell
someone when they sign, a union card that they are going
to get fired if they don't sign it," and that she "signed the
card because [she] thought the union was a good idea"
and because she is "just for unions " Young, who had
become assistant manager of the cafeteria, before the
hearing, was called as a witness by the Respondents, but
she was not asked about the alleged threat on direct
examination The subject came up on cross-examination
and she testified that she "was under the impression" that
if she did not sign the card she would lose her job if the
Union "came in," that.the impression had been obtained
from Yeager's remark which, "to the best of [her]
knowledge," was that "if the union goes in you are out of
a job if you do not enter into it " Young testified also that,
she and Yeager were friends and "saw one' another
socially," that each morning at the truck stop the persons
present "were all smiling and laughing and talking," that
they could have been,laughing at the time of Yeager's
remark, and that she, , Young, might have treated the
remark as '.a joking threat " On redirect, Young was
asked it the persons present were laughing and joking
when the remark was made, and she answered, "As I
remember, no, sir," but that they,were laughing "all.the
time," although she did not recall any jokes that morning
Drinkard, who signed a card at the truck stop, was not a
witness, nor were Messrs Hall and Young On the other
hand, both Mr and Mrs Yeager denied that she made a
threat, but it is unnecessary to evaluate their denials
Threats were not a campaign tactic of individuals who
solicited signatures to cards, and the testimony of Mrs
Hall and Mrs Young is not persuasive that Mrs -Yeager.
used such a tactic in a serious manner , Moreover, Mrs
Young's conduct does not indicate that she thought that
she had been threatened She delivered to Blackmon the
card that the latter signed Too, as has been recited,
Young is the individual who gave Assistant Manager
Hastings the news that the organizational campaign was
underway Young told Hastings that she had signed a card
and that Yeager was active in the campaign, but Young
did not tell Hastings that Yeager had threatened her
There were 28 union cards offered in evidence, 25 were
received, 3 were rejected as inadequately identified There
is a 29th card, the one that William L Robinson testified
that he signed. See footnote 8 1 do not count it because
it is not in evidence and I do not know the date that
Robinson signed Of the 25 cards received, 22 bear
various dates during December 1964 and all were stamped
in the Regional Office in New Orleans as having been
received there on' December 28, a Monday ' -Another,
Morris' card, does not bear a stamped date but .she
testified that she signed it on or about the date it bears,
November 7 The remaining two cards of those received
were signed by Delores Alford and Josephine.Weaver who
began work for Morrison's during January 1965 Their
cards are dated January 27 on the obverse sides with
stamped dates of March 29 on the reverse sides, and these
employees testified that they signed the cards on or about
the former date
The Union's demand that the Respondents bargain was
made by letter of,December 20, 1964 The demand was
rejected by letter of December 28 The record contains an
else that Yeager said On recross, however, James
answered affirmatively a question whether Yeager had'
said that the way to obtain more money would be to.have
an election and select the Union I do not credit James'
testimony in response to leading questions that Yeager
represented the cards as having a single purpose, i e , to
obtain an election Yeager testified that she talked to all
of the employees about signing cards, but that she did not
"know anything about an election',' and did not speak of
one to employees The testimony of various employees-is
clear that Yeager did not rriention an election to them,
and I do not believe that such an event was a part 'of her
solicitations Next, Willie Mae Knight, a witness for the
General Counsel who signed a card at a union meeting,
was asked on cross-examination whether "a union man"
had said at the meeting that cards signed by a majority of
the employees were needed in order to obtain an election
(The Board does not have such a requirement ) 'Knight
answered that she did not "remember what he said, sir,"
because of the passage of time It then develoved that
Knight had signed a statement to the effect that at a
union meeting during December 1964 someone who
characterized himself as a union representative had said
that the Union needed a majority of signed cards for an
election and that "the election would 'determine whether
or not the employees got a union or not " Knight was
asked whether the contents of the statement reflected her
recollection as a witness, and, she answered
A What happened at' the meeting and signing the
card I fully understood that I was signing for a union,
but as I related the story, told the man [who took the
statement] 'my statement was that we had to have a
majority for the election, but I- knew that we were
signing for a union, not for an election
I do not believe that Knight's written statement and her
testimony relating to it establish a misrepresentation by a
union, representative concerning the purpose of the cards
No other employee testified that any representative of the
Union, identified or unidentified, said at a union meeting
that the purpose of the cards was-to obtain an election
Surely, if signatures to cards had been solicited upon the
representation that an election was to be held, more
witnesses would have given testimony to that effect
Moreover, two representatives of the Union were
witnesses Knight did not identify either of them as the
man who made the remark, nor is there anything in the
testimony of either to indicate that one or_the other made
it
We turn to the evidence concerning an alleged threat by
Yeager to induce employees to sign cards The occasion
was early one morning during December 1964 when a few
employees and their spouses gathered at a truck stop
before going to work Present were Yeager and her
husband, Young and her husband, Delores Hall and her
husband„ and Ozzie Drinkard The women, including
Drinkard, were employees. Young and Drinkard, and
perhaps Hall, signed union cards upon that occasion.
During the presentation of the General Counsel's case,
counsel for the Respondents stated that he had evidence of
a threat by Yeager upon that occasion and that he
expected to offer it He did not do so, however I called
Hall as a witness because neither attorney was willing to
call her She testified that she received her card from
Yeager in the truck stop, that Yeager told her that the
card "was for the union" and "explained what the union
was," and that, while she could not recall Yeager's words,
as Yeager "talked about the card"- Yeager gave her "the
impression that if we didn't sign the card, we would
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exhibit naming the employees in the unit during the six
workweeks that ended -between December 26, 1964, and
January 30, 1965, inclusive The exhibit is incomplete in
that Yeager's name is not listed Counting Yeager because
she was not a supervisor, the numbers of employees
during those workweeks varied from 27 , to 30 By
workweeks, the figures are as follows, with card signers
identified in footnotes December 26. and January 2, there
were 22 signers among 29 employees," January 9, there
were 23 signers among 27 employees," January 16, there
were 21 signers among 30 employees,55 January 23, there
were 20 signers among 28 employees," and January 30,
there were 22 signers among 29 employees 11
The record also contains a list of employees, entitled
"Eligibility List," which was prepared for use in the
election of April 15 It contains 19 names and is
incomplete in that Ward's name is not listed Of the 20
individuals, the 13 named in the footnote had signed
cards 58 -
I find that the Union possessed majority status during
the workweek beginning June 20, 1964,- the date of the
Union's ,letter requesting recognition and bargaining I
find further that the Union has been the exclusive
representative of all employees in the appropriate unit at
all times material herein
5 Conclusions
We have seen the basis of the General Counsel's
request that Morrison F'ood' Service be required to bargain
with the Union as the representative of employees at the
Dry Dock cafeteria We have seen too the extensive unfair
labor practices in which both Respondents engaged in the
City of Mobile with the object of assuring the `Union's
defeat in the elections Additionally, because some invalid
discharges occurred after the elections, it is reasonable to
conclude that another object was to prevent fair second
elections if ones should' be directed I conclude that the
result of the election at the Dry Dock cafeteria is a less
reliable indication of the employees' desires than their
applications for -membership in the -Union "[Al
reasonable vindication of the Act and its purposes is best
suited by returning these parties [Morrison Food Service
and the Union] to the status quo ante and compelling the
Company to commence - bargaining," A' L R B- v
Northwest Engineering. 376 .F 2d at 773
"Blackmon , Brown , Calhoun,- Carr, L Chestang, Z Chestang,
Drinkard , Fultz , Hall, Horton , August Jackson , L James, R James,
Willie Knight , Lassiter , Polk, W F Robinson, Smith , Ward, F Williams,
Yeager, and Young
"Of the individuals named in fn 53, Drinkard did not work for an
indefinite period of time because of an on-the-job injury and, following her,
recovery , she did not return to work, Carr and Smith were absent during
this workweek Morris, a card signer who had been absent during the 2
workweeks next preceding , returned to work The cards of these four
employees are properly counted
"Carr returned to work , , but Smith was still absent during this
workweek Their cards are properly counted , as is that of Morris Hall's
card is not counted because she quit Drinkard ' s card is not counted
because I do not know when she recovered from her injury and decided to
quit
"By this date , Smith had returned to work The number of card signers
is decreased by one , however, because R James quit
"By this date, Alford and Weaver had begun work
"Alford, Blackmon, Brown, L Chestang, Z Chestang, Fultz, Horton,
Polk, W F Robinson , Smith , Ward , Weaver , and F Williams
IV THE OBJECTIONS TO THE ELECTIONS
The Union filed seven objections fo the elections, none
of which included any of the invalid discharges.'Upon the
basis of my findings that the Respondents violated Section
8(a)(1) prior to the elections, I recommend that the
Union's objections be sustained and that the results of the
elections be set aside I recommend further that the
Regional Director conduct a second election, at a time to
be fixed by him, among the employees in the appropriate
unit at the two public cafeterias Finally, I recommend, in
view of my determination that Morrison Food Service
should be required to bargain collectively, that Case
l5-RC-3029 be closed insofar as it involves that
Respondent - -
V THE REMEDY -
Having found that the Respondents have engaged in
unfair labor practices affecting commerce, I shall
recommend that they cease and desist therefrom' and that
they take affirmative action to effectuate the policies of
the Act Because the Respondents, along with their parent
corporation, Morrison Consolidated, constitute a single,
integrated business enterprise, it is'appropriate that the
Respondents, jointly and severally, be required to remedy
the violations of Section 8(a)(3) On the other hand, the
requirement that Morrison • Food Service bargain
collectively is applicable to that Respondent alone
I shall recommend that the Respondents offer Bryant,
Cruse, Eaton, Morris, Schultz and Walton immediate and
full reinstatement to their former or substantially
equivalent positions (Chace National Bank, 65 NLRB
827), without prejudice to their seniority or other rights or
privileges, and that the Respondents make whole each of
them and Tolbert for any loss of pay he or she may have
suffered as a result of the discrimination against him or
her, by payment to him or her of a sum of money equal
to that which he or she normally would have earned from
the date of the discrimination to the date of'a proper offer
of reinstatement,59 less his or her net earnings (Croscett
Lumber Co . 8 NLRB 440, 497-498) during said period,
the payment to be computed on a quarterly basis in the
manner established in A L R B v Seven-Up Bottling
Co , Inc . 344 U S 344, with interest at 6 percent per
annum, N L R B v George E Light Boat Storage. Inc .
373 , F 2d 762,'766 (C A 5) " I shall recommend also that
the Respondents preserve and, upon request, make
available to the Board or its agents, for examination and
copying, all payroll, records, social security payment
records, timecards, personnel records 'and` reports, and all
other records necessary to analyze the amounts of
backpay and the rights to reinstatement under the terms
of these Recommendations
In view, of the nature of the Respondents' unlawful
conduct and its underlying purpose and tendency, I' find
that the unfair labor practices found are persuasively
related to the' other unfair labor practices proscribed and
that danger of their commission in the future is to be
anticipated- from the course of the Respondents' conduct
in the past N L R B v Express Publishing Co , 312 U S
"Tolbert ' s backpay shall 'include the period of his suspension as well as
that of his termination, but, as recited in the discussion of his termination,
his backpay shall be tolled as of the date he declined reinstatement
"I have not included the usual provision concerning offers of
reinstatement to discrimmatees upon their discharge from the Armed
Forces because I think that such provision would be unrealistic in view of
the ages and/or sex of the discrimmatees -'
MORRISON CAFETERIA COMPANY, INC. 615
426, 437 This is-particularly true because.the discharge of
employees for union membership or activity, striking as it
does at their means of livelihood, "goes to the very heart
of the Act," N L R B v 'Entwistle Manufacturing Co ,
120 F 2d 532, 536 (C A- 4) In order, therefore, to make
effective the. interdependent guarantees of Section 7, i
shall recommend further that the Respondents cease and
desist from infringing in any manner upon the rights
guaranteed in said section
Upon the basis of the above findings of fact and upon
the entire record in the cases, I make the following
CONCLUSIONS OF LAW
I The Union is a labor organization within the
meaning of Section 2(5) of the Act
2 All employees-of Morrison Food Service at the Dry
Dock cafeteria, exclusive of all other , employees,
professional employees, guards, watchmen, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the-Act
3 During the workweek beginning December 20, 1964,
the Union was, and at all times thereafter has been, the
exclusive representative of all employees in such unit for
the purposes of collective bargaining
4 By discouraging membership in a labor organization
through discrimination in employment, and by interfering
with, restraining, and coercing employees in the 'exercise
of their rights under the Act, the Respondents have
engaged in and are engaging in unfair labor practices
affecting commerce. within the meaning of Sections 8(a)(3)
and (I) and 2(6) and (7) of the Act
5 The allegations of the amended complaint have not
been sustained insofar as they allege that the Respondents
(I) invalidly discriminated against Beckham, Fultz, Horn,
Moore, and Sanders, and (2) violated Section 8(a)(I)
other than as found herein
- RECOMMENDED ORDER
Upon the entire record in the cases, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that
A The Respondents, Morrison Cafeteria Company,
Inc , and Morrison Food Service of Alabama, Inc
Mobile, Alabama, their officers, agents, successors, and
assigns, shall
I Cease and desist from
(a) Discouraging membership in Hotel & Restaurant
Employees and Bartenders International Union, Local
176, AFL-CIO, or in any other labor organization of their
employees, by discharging or suspending any of their
employees' because of the latter's union or concerted
activities, or in-any other manner discriminating in regard
to the employees' hire or tenure of employment or any
term or condition of employment
(b) Interrogating and threatening employees concerning
union activities
(c) Promising employees improved wages as a means of
discouraging union activities
(d) Requesting employees to report to management if
any person should speak to them ' about a labor
organization
(e) Attempting to instill in employees a sense of fear
that unionization will bring on strikes and a loss of jobs
(f) In any other manner, interfering with, restraining or
coercing employees in the exercise of the rights guaranteed
in Section 7 of the Act -
2 Take the following 'affirmative action which is
necessary to effectuate the policies of the Act
(a) Offer Clemmie Bryant, Harold Cruse, Edward
Eaton, Zella Morris, Sadie Schultz, and Marion Walton
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights or' privileges, and make
whole each of them and Eddie Tolbert, in the manner set
forth in "The Remedy" section of this Decision
(b) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in said
Remedy section
(c) Post in conspicuous places, including all places
where notices to employees customarily are posted, at all
of the cafeterias operated by them in Mobile, Alabama,
copies of the attached notice marked "Appendix A ' 61
Copies of said notice, to be prepared by the Respondents
on forms furnished by the Regional Director for Region
15, shall, after being signed by the Respondents'
representatives, be posted by them promptly and
maintained by them for at least 60 consecutive, days
thereafter Reasonable steps shall 'be taken by the
Respondents to ensure that said notices are not altered,
defaced, or covered by any material
(d) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondents have taken to comply herewith ":
B The Respondent, Morrison Food Service of
Alabama, Inc , its officers, agents, successors, and assigns,
shall take the following additional affirmative action
which is necessary to effectuate the policies of the Act
I Upon request, bargain collectively with the
above-named labor organization as the, exclusive
representative of all employees in the aforesaid unit and, if
an understanding be reached, embody such understanding
in a signed agreement
2 Post in conspicuous places at the cafeteria which it
operates in Mobile, Alabama, including all places where
notices to its employees customarily are posted, copies of
the attached notice marked "Appendix B "63 Copies of
said notice, to be prepared by this Respondent on forms
furnished by said Regional Director,, shall, after being
signed by this Respondent's representative, be posted by it
promptly and maintained by it for at least 60 consecutive
days thereafter Reasonable steps shall be taken by this
Respondent to ensure that said notices are not altered,
defaced, or covered by any material
3 Notify said Regional Director'in writing, within 20
days from the receipt of this Decision, what steps this
Respondent has taken to comply with provisions B, I and
2, above
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order of the" shall be substituted for the words
"the Recommended Order of a Trial Examiner of the " in the notice In
the further event that the Board ' s Order be enforced by a decree of court,
the words "a Decree of the United States Court of Appeals Enforcing an
Order of the " shall be substituted for the words "a Decision and Order of
the "
In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondents have taken to comply herewith "
"See fn 61, supra
"if this Recommended Order should be adopted by the Board, this
provision shall be modified to read "Notify said Regional Director in
writing, within 10 days from the date of this Order, what steps this
Respondent has taken to comply with provisions B, I and 2 , above'
616 DECISIONS OF NATIONAL L ABOR RELATIONS BOARD
IT IS FURTHERED RECOMMENDED that (1) the amended
complaint be dismissed to the extent that it alleges unfair
labor practices not found herein, and (2) the objections to
the elections in Case 15-RC-3029 be sustained, the result,
of the elections be set aside, a second election be
conducted among employees of Morrison Cafeteria
Company, Inc , and the case be closed insofar as It
involves Morrison Food Service of Alabama, Inc
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner ' of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, ' we hereby notify our
employees that
WE WILL NOT discharge , suspend , or otherwise
discriminate against any of our employees because they
join or engage in activities on behalf of Hotel &
Restaurant Employees and Bartenders International
Union, Local 176, AFL-CIO, or any other labor
organization
WE WILL NOT question or threaten employees
concerning their union activities
WE WILL NOT promise employees improved wages as
a means of discouraging union activities
WE WILL NOT request employees to report to
management if any person should speak to them about
the above-named union or any other labor organization
WE WILL NOT attempt to instill in employees a sense
of fear that unionization will bring on strikes or a loss
of fobs
WE WILL NOT violate any" of the rights which you
have under the National Labor Relations Act to loin a
union of your own choice and to engage in union
activities, or not to join a union and not to engage in'
such activities
WE WILL offer Cleimmie Bryant , Harold Cruse,
Edward Eaton , Zella Morris , Sadie Schultz, and
Marion Walton immediate and full reinstatement to
their former,jobs , or equivalent ones, and pay them and
Eddie Tolbert backpay to cover the earnings they lost
because we discharged them
All our employees are free to become or remain
member, of Local 176, or any other union, and they also
are free to refrain from joining any union
Dated By
MORRISON CAFETERIA
COMPANY, INC AND
MORRISON FOOD
SERVICE OF ALABAMA,
INC
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provision,, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527 T 6391
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE wn_I, upon request, bargain collectively with
Hotel & Restaurant Employees and Bartenders
International Union, Local 176, AFL-CIO, as the
exclusive representative of all employees in the
following bargaining unit, and we will embody in a
signed agreement any understanding reached
All employees at the Dry Dock 'cafeteria, exclusive of
all other employees, professional employees, guards,
watchmen, and supervisors as defined in the Act
MORRisoN FOOD
SERVICE OF ALABAMA,
INC
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal.
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone X27-6391