Morrison Cafeterias Consolidated, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 591 (N.L.R.B. 1969)

MORRISON CAFETERIAS CONSOLIDATED, INC.
Morrison Cafeterias Consolidated , Inc. and Morrison
Cafeteria Company of Little Rock, Inc. and
Hote'-Motel , Restaurant Employees Union, Local
No. 200 , Hotel and Restaurant Employees and
Bartenders International Union , AFL-CIO. Case
26-CA- 1520
June 30, 1969
SUPPLEMENTAL DECISION AND
AMENDED ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On August 4, 1964, the National Labor Relations
Board issued its Decision and Order in this
proceeding,' finding in relevant part that the
Respondents constituted a single employer under the
National Labor Relations Act, as amended, and
that the Respondents violated Section 8 (a) (1), (3),
and (5) of the Act by closing their Little Rock,
Arkansas, cafeteria.
Thereafter, while the Respondents' Petition to
Review and Set Aside the Board's Order and the
Board's answer and cross application for
enforcement of its Order were pending before the
United States Court of Appeals for the Eight
Circuit, the Supreme Court rendered its decision in
N.L.R.B. v. Darlington Manufacturing Company,
380 U.S. 263. On June 25, 1965, the Board moved
the Court of Appeals to remand the instant case
and, on July 15, 1965, the court granted the Board's
motion "with leave to make reconsideration of its
holding, in the light of N.L.R.B. v. Darlington
Manufacturing Company, 380 U.S. 263, and with
report of the result of such reconsideration to be
made by it in relation to the pending petition for
review."
On September 16, 1965, the Board issued its
Order affording the parties opportunity to file briefs
with respect to the effect on the issues of this case of
the Supreme Court's decisions in both N.L.R.B. v.
Darlington Manufacturing Company, supra, and
Fibreboard Paper Products Corp. v. N.L.R.B., 379
U.S. 203. Pursuant to the Board's Order, the
Respondents and the General Counsel filed briefs,
and the Charging Party filed a motion to reopen the
record. On February 4, 1966, the Board (Member
Jenkins dissenting) granted the Charging Party's
motion and issued an order reopening the record
and remanding the case for further hearing before
Trial Examiner A. Bruce Hunt. The Board's Order
directed the Trial Examiner to receive additional
evidence bearing on the "purpose" and "effect" of
the closing of the Little Rock, Arkansas, cafeteria,
177 NLRB No. 113
591
more specifically as related to the issue of whether
such closing was motivated at least in part by a
purpose to chill unionism among employees in any
of the other Morrison cafeterias, and whether the
Respondents may reasonably have foreseen that
such closing would be likely to have that effect, and
further ordered that upon conclusion of such hearing
the Trial Examiner should prepare a Supplemental
Decision. On February 17, the Respondents filed a
motion for a court order (No. 17893) restraining the
Board from holding a further hearing. On March 2,
1966, the Court of Appeals for the Eighth Circuit
denied the Respondents' motion. The hearing on the
Board's remand was conducted on August 3 and 4,
1966, and on March 15 and 16, 1967, at Mobile,
Alabama.
On September 25, 1968, Trial Examiner A. Bruce
Hunt issued his Supplemental Decision, attached
hereto, in which he concluded, upon reconsideration
of the Board's original finding herein, that the
Respondents violated Section 8(a)(3) of the Act by
closing the Little Rock cafeteria and terminating the
employees employed there, that, under Darlington,
the 8(a)(3) allegations must be dismissed; and
recommended that the Board reaffirm its 8(a)(1) and
(5) findings, and modify the original remedy as
specified in the Remedy section of his Supplemental
Decision. Thereafter, the Respondents and the
General Counsel filed exceptions to the Trial
Examiner's Supplemental Decision and supporting
briefs.
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 remand hearing and finds
that no prejudicial error was committed. The rulings
are hereby affirmed. The Board' has considered the
Trial Examiner's Supplemental Decision, the
exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
'148 NLRB 139
'Chairman McCulloch and Members Brown and Zagora all agree with
the Trial Examiner's 8(a)(l) findings, conclusions , and order Chairman
McCulloch and Member Brown agree with the Trial Examiner's findings,
conclusions, and order as to Sec 8(a)(5). Chairman McCulloch and
Member Zagoria agree with the Trial Examiner's dismissal of the 8(a)(3)
allegations of the complaint . Member Zagora agrees with Chairman
McCulloch 's separate opinion as to the 8 (aX3) aspects of the case, and
Member Brown agrees with Chairman McCulloch' s separate opinion on
the 8 (aX5) aspects of the case . The partial dissents of Members Brown and
Zagoria and the separate opinion of Chairman McCulloch are set forth
below
'The Respondents except to the Trial Examiner's credibility resolutions
It is the Board ' s established policy, however, not to overrule a Trial
Examiner's resolution as to credibility unless, as is not the case here, the
preponderance of all the relevant evidence convinces us that they are
incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188
F 2d 362 (C.A 3)
i
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Amended Order the
Revised Recommended Order of the Trial Examiner
and hereby orders that the Respondents, Morrison
Cafeterias Consolidated, Inc., and Morrison
Cafeteria Company of Little Rock, Inc., Little
Rock, Arkansas, their officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Revised Recommended Order.
CHAIRMAN MCCULLOCH:
I agree fully with the findings, conclusions, and
recommendations of the Trial Examiner. I do not
agree with Member Brown's recommended finding
that the closing of the Little Rock cafeteria was
violative of Section 8(a)(3) of the Act, or with
Member Zagoria's proposed dismissal of the
refusal-to-bargain allegation of the compliant.
Under Darlington, supra, the closing of one of a
number of plants operated by the same employer is
discriminatory only when the following two elements
are present: (1) a purpose on the part of the
employer to"chill" unionism in any of his remaining
plants; and(2) the employer must reasonably have
foreseen that such closing would likely have that
effect. The Trial Examiner concluded that the
evidence was insufficient to establish a "chill"
unionism motive on the part of Respondents.
Member Brown relies for a contrary finding
principally on a statement made by Everett Mills, a
minor supervisor at Respondents' Mobile cafeteria,
to Bessie Hastings , an assistant manager at the
same cafeteria , during an organizational campaign
at the Mobile cafeteria almost 2 years after the
'closing of the Little Rock cafeteria. According to
the credited testimony, Mills said to Hastings that
Respondents had closed the Little Rock cafeteria
rather than have it as an example for the remaining
cafeterias. However, as found by the Trial
Examiner, there is no evidence that Mills was privy
to the decision to close the Little Rock cafeteria, or
that any management official told him that the
cafeteria was closed in order to have an effect
elsewhere. In fact, at the time of the closing of the
Little Rock cafeteria, there was no organizational
activity elsewhere in Respondents' cafeteria. The
Union did not commence its organizational activities
at the Mobile cafeteria until a year and a half after
the Little Rock closing. Under the circumstances,
the Trial Examiner correctly found, in my opinion,
that Mills' comment to Hastings, and somewhat
similar remarks by other minor supervisors to
employees at the Mobile cafeteria, long after the
Little Rock cafeteria closing, were no more than
attempts to take advantage of the closing to
persuade employees at the Mobile cafeteria to resist
the organizational activities of the Union.
As to Member Zagoria's view that the Supreme
,Court's ruling in Darlington, supra, precludes a
finding of an 8(a)(5) violation in the unilateral
partial closing of a business because employees have
selected a bargaining representative, unless the
Board also finds that the purpose of the closing was
to "chill" unionism elsewhere in violation of Section
8(a)(3), this interpretation of Darlington has
previously been rejected by the Board.'
The Board (Member Jenkins not participating)
said in Ozark Trailers, 161 NLRB at 565:
...that holding [Darlington] cannot be relevant to
the issue before us which involves Respondents'
duty to bargain about the partial closing of their
business.' We perceive nothing in that portion of
the Darlington decision dealing with the
discriminatory partial closing of a business which
suggests the inapplicability of the
collective-bargaining requirement of the Act to
Respondents' decision to close down the Ozark
plant. Indeed, as the Darlington decision affirms
the propriety of the application of Section 8(a)(3)
to a partial closing of a business, it would be
anomalous to find that Section 8(a)(5) is without
governing authority in such situations.'
'Royal Plating and Polishing Co , Inc , 152 NLRB 619, 622.
'Ibid.
MEMBER BROWN, dissenting in part:
I agree with Chairman McCulloch that the
Respondents violated Section 8(a)(5) by failing to
notify the Union of the decision to close the Little
Rock cafeteria and to bargain about that decision
and the effect of the closure upon employees in the
appropriate unit. Contrary to the majority of my
colleagues , however, I would further find that, in
closing that operation, Respondents sought to chill
unionism at its remaining cafeterias and thereby
also violated Section 8 (a)(3) of the Act.
When the Union began its organizing campaign at
the Little Rock cafeteria, Respondents met this
initial union effort with hostility and discriminatory
discharges.' The Union nevertheless won a
Board-conducted representation election, only to
have Respondents shut down the cafeteria the same
day the election results were announced. Mills,
supervisor at one of Respondents' Mobile cafeterias,
later said of this shutdown that "they had the
cafeteria down there [in Little Rock] and rather
than have a union to go in they gave the cafeteria
up. That it would be better to lose it than to have a
union go in and have an example for the rest of the
cafeterias over the nation." Other officials also told
cafeteria employees in Mobile, where a sister local
of the Union was conducting an organizing
campaign , and in Atlanta, where no such activitiy
was taking place, that the Little Rock cafeteria had
been closed because of the Union and if employees
should decide on a union , Respondents would be,
'Ozark Trailers . Incorporated , 161 NLRB 561, 564-565
'Morrison Cafeteria Company of Little Rock, Inc., 135 NLRB 1327,
enfd . 311 F.2d 534 (C A. 8).
iMORRISON CAFETERIAS CONSOLIDATED, INC. 593
forced to take the same action as it did in Little
Rock. These later statements persuasively buttress
Mills' assertion that Respondents desired to set an
example, of the consequences of unionization for,
employees in other locations.
I am convinced that the closing at Little Rock,
the only one of Respondents' 40-50 cafeterias where
employees had selected a union, was part of
Respondents' plan to prevent unionism at all
cafeterias. I consider it significant in this connection
that Little Rock was the site of the Union' s initial
organizational success and, in my view, Respondents
closed down at once lest such success stimulate
future unionization at Respondents other operations.
If the Union were stopped in this manner here, and
thus dramatize for all its employees that
unionization could only be achieved at the cost of
their jobs, Respondents stood a good chance to
forestall organizing attempts elsewhere.' The lesson
was verbalized by Respondents' aforementioned
threat of closure at Atlanta, for example, despite the
absence of organizational activity at that cafeteria.
MEMBER:ZAGORIA, dissenting in part:
I agree with the Trial Examiner's conclusion that
the evidence before us is insufficient to warrant a
finding, under the Supreme Court's decision in
Darlington, supra, that the Respondents were
motivated in closing their Little Rock cafeteria by a
purpose to chill unionism in their remaining
cafeterias, and that, therefore, the 8(a)(3) allegations
must be dismissed.
I disagree, however, with my colleagues' finding
that the Respondents violated Section 8(a)(5) of the
Act by failing to notify the Union of the decision to
close the cafeteria and to bargain about that
decision and its effects on the employees in the
appropriate unit. The Supreme Court's ruling in
Darlington completely foreclosed finding an
unlawful refusal to bargain in the instant case, either
as to the decision to close or as to the effects of that
decison. A finding of an 8(a)(5) violation under
Darlington depends entirely upon a finding of an
8(a)(3) violation. Hence, the partial closing of a
business, like the complete cessation of business,
cannot be found to constitute a violation of Section
8(a)(5) in the absence of motivation aimed at
achieving the prohibited effect, that is, to chill
unionism in other parts of the enterprise. In other
words, as I read the Supreme Court's decision in
Darlington, as long as it is not for the purpose of
chilling unionism among his remaining employees,
an employer may close part of his business "for any
reason he pleases." It is plain that the reason the
Respondents closed this cafeteria was to avoid
bargaining with the cafeteria employees' newly
designated representative. As the Respondents were
lawfully entitled to do this, how can they be
'In Darlington Manufacturing Company v N.L.R.B., 397 F 2d 760, 772
(C.A. 4), cei' t denied 393 U.S. 1023, the court held that contemporaneous
organizational activity at other plants is not a prerequisite to finding a
"chilling" motivation.
required to bargain, when that is the very thing they
could lawfully close down to avoid doing?
As the permanent closing of the Little Rock
cafeteria' stands in the same posture, under
Darlington, as a complete cessation of business, the
Respondents were removed from the coverage of the
Act with respect to their Little Rock operations
when the permanent shutdown was effected. Unlike
a situation where a union is the certified bargaining
representative prior to the decision to close, or
where the parties have an established bargaining
relationship, the Respondents had no obligation to
bargain with the Union prior to the shutdown and,
as the shutdown was lawful under Darlington, they
had no obligation to consult with the Union
concerning the shutdown or to remedy its effects on
the employees involved.' In these circumstances, a
finding of an 8(a)(5) violation or a provision for
remedy because of the partial shutdown in the
instant case would, in my opinion, be inconsistent
with the Supreme Court's ruling in Darlington.
As our earlier findings of 8(a)(1) violations,
committed before the Respondents' decision to close
the cafeteria, are not affected by the conclusions
reached herein, I would approve an order requiring
the Respondents to cease and desist from engaging
in the 8(a)(1) conduct herein found.
'My conclusions herein are based on a finding that the Respondents have
permanently closed their Little Rock operations.
'Cf. A C Rochat Company, 163 NLRB No 49, Ozark Trailers,
incorporated and/or Hutco Equipment Company and/or Mobilefreeze
Company, Inc, 161 NLRB 561
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
A. BRUCE HUNT, Trial Examiner: On April 22, 1964, I
issued my decision in this proceeding, and on August 4,
1964, the Board affirmed. 148 NLRB 139. The
Respondents, Morrison Cafeterias Consolidated, Inc. and
Morrison Cafeteria Company of Little Rock, Inc., sought
review by the Court of Appeals for the Eighth Circuit,
and the Board sought enforcement, No. 17832. While the
matter was pending , the Supreme Court decided N.L.R.B.
v. Darlington Manufacturing Company, 380 U.S. 263,
and that opinion prompted the Board to move the Court
of Appeals to remand the case for reconsideration by the
Board in the light of Darlington. The Respondents
(Petitioners in No. 17832) did not object, and on July 15,
1965, the Court granted the Board's motion. Thereafter,
the Union, Hotel-Motel, Restaurant Employees Union,
Local No. 200, moved the Board to reopen the record for
the purpose of receiving additional evidence. Over the
Respondents' objections, on February 4, 1966, the Board
(Member Jenkins dissenting) granted the Union's motion
and remanded the case to me for a further hearing and a
As originally tried, this was a consolidated proceeding involving two
cases, 26-CA-1514 and 26-CA-1520 . The portion of the complaint which
was based upon the charge in the former case (the suspension of Cololsees
Bowers) was dismissed by me, and no exceptions to that action were filed
by the General Counsel or the Union Thereafter, only 26-CA-1520
remained an active case.
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supplemental decision . On or about February 17, 1966,
the Respondents sought an order in No 17832 restraining
the Board from holding a further hearing, and during the
same month the Board filed its opposition . On March 2,
1966, the court of appeals denied the motion to restrain
the Board . The hearing on remand was conducted by me
on August 3 and 4 , 1966, and March 15 and 16 , 1967, at
Mobile , Alabama. The General Counsel , the Respondents
and the Union were represented . Upon the entire record
and my observation of the witnesses , I make the
following:
SUPPLEMENTAL FINDINGS OF FACT
1. RESTATEMENT OF CERTAIN FINDINGS
Morrison Consolidated , the parent corporation , utilizes
subsidiary corporations through which to operate
cafeterias and restaurants in various Southern and
Southwestern States. Morrison Little Rock , a subsidiary,
operated a cafeteria in Little Rock , Arkansas, which was
closed by the Respondents on April 19, 1963 , promptly
after the Union won a Board-conducted election. At all
times material , the Respondents constituted a
single-integrated enterprise with common officers and
directors who administered a common labor policy.'
In my earlier decision , I found that the Respondents
had committed certain independent violations of Section
8(a)(l). 148 NLRB at 143 - 144. Those findings are not in
issue under the remand . The present issues involve alleged
violations of Section 8(a)(3) and (5) in the Respondents'
closure of the cafeteria in Little Rock and terminating the
employees there without notice to the Union and without
affording the Union an opportunity to bargain. At the
initial hearing , the Respondents contended that they
closed the cafeteria solely for economic reasons, and I
found that the cafeteria had not been a profitable
operation . See, e .g., 148 NLRB at 145 - 146. On the other
hand , the Respondents conceded at that hearing that the
cafeteria would not have been closed on the day of the
election if the Union had lost, and I found that "the
closure was triggered by the Union ' s victory in the
election" and that "[i]f the employees had not selected the
Union to represent them , they would have retained their
jobs for an indeterminable length of time." 148 NLRB at
146. I found also, at page 147, that "[w]hen the
Respondents closed the cafeteria without notice to the
Union concerning that action and without an offer to
bargain about it, and when the Respondents, a few days
later, ignored the Union 's telegram of April 19 and dealt
unilaterally with employees concerning work in other
cafeterias in the chain , the Respondents demonstrated that
their hostility to collective bargaining , exemplified by
violations of Section 8(a)(1) and (3) in 1961 and violations
of Section 8(a)(1) in 1963 before the closure , had not
ceased ." I have no reason now to modify those findings,
and I reaffirm them . On the other hand, I do not fully
reaffirm certain conclusions that I reached . I concluded
first "that the Respondents , by closing the cafeteria in
Little Rock under the circumstances and for the reasons
found , thereby terminating the employees ' employment in
that city , violated Section 8 (a)(3) and ( 1)"; and, secondly,
"that the Respondents , by unilaterally closing the
'My finding at 148 NLRB 140 that Morrison Consolidated' s general
offices were in Tampa, Florida, should be modified. Such offices are now
in Mobile, Alabama
cafeteria and by unilaterally dealing with employees
concerning employment at cafeterias elsewhere , violated
Section 8 (a)(5) and ( 1)." 148 NLRB at 147. These
conclusions must now be reconsidered in the light of
Darlington and the evidence at the reopened hearing.
Before discussing Darlington , it is appropriate to point out
that , with the closing of the cafeteria , Morrison Little
Rock went out of business because it did not operate any
other cafeteria , but Morrison Consolidated , the parent
corporation , remained in business , and, in any event, the
two corporations constitute a single integrated enterprise.
11. THE DOCTRINE OF Darlington
The Supreme Court held that "when an employer
closes his entire business , even if the liquidation is
motivated by vindictiveness toward the union , such action
is not an unfair labor practice " 380 U . S. at 273-274. The
Court held also at pages 274-275 that
The closing of an entire business, even though
discriminatory , ends the employer-employee
relationship ; . . . On the other hand , a discriminatory
partial closing may have repercussions on what remains
of the business , affording employer leverage for
discouraging the free exercise of Sec . 7 rights among
remaining employees of much the same kind as that
found to exist in the " runaway shop" and "temporary
closing" cases.. .. [We] are constrained to hold .. .
that a partial closing is an unfair labor practice under
Sec. 8 (a)(3) if motivated by a purpose to chill unionism
in any of the remaining plants of the single employer
and if the employer may reasonably have foreseen that
such closing would likely have that effect.
In applying the quoted text to the facts found below, it
should be borne in mind that the Supreme Court held too
that"[i]t does not suffice to establish the unfair labor
practice charged here to argue that the . closing
necessarily had an adverse impact upon unionization in
such other plants ," and emphasized that in a case such as
Darlington , unlike some other cases which had been
before the Court, "a showing of motivation which is
aimed at achieving the prohibited effect" is a prerequisite
to a finding that Section 8(a)(3) has been violated. 380
U.S. at 276.
Ill. FACTS AND CONCLUSIONS
In support of their contentions , the General Counsel
and the Union rely upon events, or alleged events, that
occurred upon or near the premises of subsidiaries of
Morrison Consolidated in Atlanta , Georgia , and Mobile,
Alabama . In the latter city , a sister local of the Union in
this case attempted to organize the employees of two
subsidiaries during 1964 and 1965. As a consequence of
events occurring during the organizational campaign,
charges were filed against the subsidiaries , a complaint
was issued, and I heard the cases which are referred to
herein as the "Mobile cases ," 15-CA-2635 and
15-RC-3029. Counsel for the General Counsel moved that
the Mobile cases be consolidated with the instant case for
a hearing , and counsel for the various respondents
opposed . I denied the motion because the law firm which
represents the respondents in the Mobile cases is not the
firm which represents the Respondents in the instant case.
On the other hand, by stipulation in the Mobile cases, the
entire record on remand became a part of the record in
MORRISON CAFETERIAS CONSOLIDATED, INC.
the Mobile cases.' Consequently, most of the findings
below will be treated in my decision in the Mobile cases,
sometimes at greater length than herein. That decision,
TXD-520-68, is issued simultaneously herewith.
The evidence concerning alleged events in Atlanta will
be considered before that relating to alleged events in
Mobile. Harold Cruse worked in various cities as a waiter
for subsidiaries of Morrison Consolidated. One such
subsidiary is Morrison Cafeteria Company of Atlanta,
Georgia, Inc. Cruse testified concerning a conversation
which he had in Atlanta with Charles Vason, a supervisor
and No. 2 waiter there. According to Cruse, during 1963
Vason arrived in Atlanta following the closure of the
cafeteria in Little Rock and said to Cruse that "they
closed it up on account of the union with the election and
. transferred [Vason] to Atlanta." Cruse's testimony is
inaccurate insofar as he testified that Vason was
transferred to Atlanta after the closure. The cafeteria in
Atlanta was opened during March 1963, the month
preceding that in which the cafeteria in Little Rock was
closed, and Vason was transferred from Little Rock so as
to be in Atlanta on the opening day. If Cruse quoted
Vason correctly that the Little Rock cafeteria was closed
"on account of the union" - and Vason was not a
witness to dispute the accuracy of that quotation - the
quotation has no probative value here. Such a remark
reflects a motive in closing, not a motive to chill unionism
in other cafeterias. Moreover, if the latter motive could
somehow be read into Vason's remark, I would not find
that Vason occupied such a status as to bind the
Respondents by the remark. Although a supervisor of
waiters, he earned only 25 cents per hour in wages, and
received the balance of his income in tips. He played no
part in'the closure of the cafeteria in Little Rock.
Cruse also testified that during or about April 1963 he
talked in Atlanta with T. A. Cowart who is a vice
president of Morrison Consolidated and of one or more of
the subsidiaries. According to Cruse, Cowart said to him
that Cowart "hope[d] you all will do a good job and build
up the business and have a good future and don't let
happen here - you old employees - what happened in
Little Rock. Keep things like that out of here." Cruse
testified that he then asked, "What?," to which Cowart
replied, "Keep the union out. Keep it clean and you have
'At the hearing on remand , counsel agreed to enlarge the record herein
by incorporating portions of the record in the Mobile cases . The agreement
covered all testimony concerning alleged threats to close a cafeteria in
Mobile if such alleged threats did not contain a specific reference to the
cafeteria in Little Rock. Following the hearing on remand , counsel for the
General Counsel proposed a written stipulation to counsel for the
Respondents . It was rejected as embracing more testimony than that
covered by the agreement made at the hearing . Counsel for the General
Counsel then moved that I enlarge the record herein in accord with his
proposed stipulation . Counsel for the Respondents filed a memorandum in
opposition . By letter of April 5, 1968, to the attorneys , I requested that
they refer me to the specific portions of the transcript in the Mobile cases
which should be made a part of the record herein pursuant to their
agreement at the hearing . On April 22 and 25, respectively, counsel for the
Respondents and the General Counsel replied . On April 29, counsel for the
Respondents wrote to me again The letters of April 5, 22, 25, and 29,
1968, are hereby received in evidence as Trial Examiner 's Exhibits 2, 3, 4,
and 5 , respectively . The transcript in the instant case is hereby enlarged by
the incorporation of testimony from the Mobile cases as cited in Appendix
A, attached hereto. In view of my findings and conclusions recited
hereinafter, I do not believe that a threat of closure in Mobile, when not
accompanied by a reference to the closure in Little Rock, has any
probative value on the issues on remand . Therefore , I enlarge the record
herein in accord with my understanding of counsel 's agreement at the
hearing , but I make no findings in this case involving the evidence that is
cited in Appendix A, omitted from publication.
595
a good future." Cowart denied that he spoke of the Little
Rock closure to any employee including Cruse, and it
should be noted that there had been no union activity at
the cafeteria in Atlanta. It suffices to find, as I do, that
the remarks attributed by Cruse to Cowart (1) need not be
interpreted as a threat to close the cafeteria in Atlanta if
the employees there should become organized and (2)
cannot be interpreted as attributing to the Respondents'
closure of the cafeteria in Little Rock a motive to chill
unionism elsewhere.
We turn now to events in Mobile during the
organizational campaign conducted at three cafeterias
there by Local 176, a sister local of the Union in the
instant case. Prior to that campaign , Cruse was
transferred from Atlanta to work in one of those
cafeterias. He became a union adherent. The manager at
that cafeteria was James Moore. Cruse testified, and I
find, that Moore spoke to him of his union adherence and
about January 1965 said, inter alia , that "[i]f you 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, and I find, that on April 15,
1965, Moore said to Cruse, 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 . . . "' I regard Moore's
remarks as an effort on his part to make maximum use of
the closure of the cafeteria in Little Rock during April
1963 as a means of frustrating the organizational
campaign in Mobile approximately 2 years later . I see in
the remarks no probative value in establishing that a
motive in closing the cafeteria in Little Rock was to chill
unionism elsewhere.
James E. Holland is identified in my initial decision as
an officer and director of the parent corporation,
Morrison Consolidated, who made several addresses to
employees in Little Rock in an attempt to defeat the
union in the election there. 148 NLRB at 144. He played
a substantial part in the closing of the Little Rock
cafeteria. 148 NLRB at 144-146. Holland is also an
officer in each of the various subsidiary corporations that
operate the numerous cafeterias. During Local 176's
organizational campaign in Mobile, Holland addressed
employees in that city upon several occasions. An issue is
whether he referred to the closure in Little Rock. Holland
testified that he had two written speeches which he
delivered to employees, and that he did not depart from
the texts. Neither speech contains a reference to the
'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
conversations 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 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,
and that Moore 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. Too, the remarks
attributed to him by Cruse are consistent with remarks made by
management to other employees Finally, 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
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closure in Little Rock.' Holland testified also that he held
several meetings with small groups of employees at which
he read from two collective labor agreements negotiated
with other employers by Local 176 and from a book
entitled The Enemy Within by the late Robert F.
Kennedy. According to Holland, he did not mention the
closure in Little Rock during any of the small meetings
On the other hand, there is contrary testimony by two
employees, Eddie Johnson and Eddie Tolbert. Johnson
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
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 and that the same thing would happen in
Mobile in the event of a union victory. I credit Tolbert's
testimony and find accordingly! I conclude, however, that
Holland's remarks do not establish a motive in 1963 to
'Holland 's speeches were received in evidence as Resp . Exhs II and 12,
but 11 is not in the exhibit file It is, however, in the exhibit file in the
record in the Mobile cases as G C. Exh 34
'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 Tolbert's 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 Mobile cases The instant 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 Sec. 8 (aX3), (135 NLRB 1327, enfd 311 F 2d 534)
and Morrison Little Rock and 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 He testified that
during the organizational campaign in Mobile, he did not remember "the
Littic Rock case " As the citations in this footnote reflect, there had been
two unfair labor practice cases involving the Little Rock cafeteria I do not
believe that Holland told the truth in this instance He had been active in
the closure and 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
that 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 [the Respondents ] 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 therein , 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
chill unionism by closing the cafeteria in Little Rock At
most, his remarks concerning the closure reflect an effort
in 1965 to utilize the fact of closure as a means to cause
employees to fear loss of their jobs in Mobile if they
should vote in favor of union representation.
We come to the remaining evidence upon which the
General Counsel and the Union rely. Bessie Hastings, who
was named Bessie Sweeney at times material, held the
position of assistant manager at one of the cafeterias in
Mobile. Everett Mills was the production and procedures
supervisor of the subsidiary corporation which operates
that cafeteria. Hastings testified concerning a conversation
that she had with Mills. According to Hastings, during the
organizational campaign in Mobile, Mills told her that
"[t]hey had the cafeteria down there [in Little Rock] and
rather than have a union to go in they gave the cafeteria
up. That it would be better to lose it than to have a union
go in and have an example for the rest of the cafeterias
over the nation ." On the other hand, Mills denied that he
ever discussed the Little Rock closure with Hastings, but
he testified that he spoke to her concerning "methods to
be used to combat this [union] campaign," telling "her as
part of management things that we were going to do
concerning presenting the company's position." Mills
testified further that his only discussions concerning the
closure in Little Rock were with individuals in the main
office of Morrison Consolidated, the parent corporation.
In deciding this issue of credibility, I have weighed the
fact that Hastings was discharged by the subsidiary
corporation for which she worked and that she
acknowledged having felt very strongly that her discharge
had been unfair.' I believe that Hastings was a credible
witness and I was unfavorably impressed by Mills' denial
that he spoke with her concerning the closure in Little
Rock. Accordingly, I credit her testimony. In respect to
the first portion thereof, i.e., that Mills told her that
"rather than have a union to go in they gave the cafeteria
[in Little Rock] up," I have found that the Respondents
were motivated in closing the cafeteria by a desire to
avoid bargaining with the Union. I see nothing in this
portion of Mills' remarks to Hastings which reflects a
motive to chill unionism in other cafeterias. In respect to
the second portion, i.e., that Mills also said to Hastings
that "it would be better to lose it [the cafeteria in Little
Rock] than to have a union go in and have an example
for the rest of the cafeterias over the nation," I regard
that remark as the strongest bit of evidence in the General
Counsel's and the Union's favor but as too weak to
warrant a finding under Darlington that the Respondents
were motivated in closing the cafeteria by a desire to chill
unionism in the remaining cafeterias. The cafeteria in
Little Rock was located far from any other cafeteria in
the Morrison chain, and there was no organizational
activity in any other cafeteria until Local 176 began its
activity in Mobile about 1 1 /2 years after the closure in
Little Rock. Additionally, there is no evidence that Mills
played any part in that closure or even knew of it until
afterwards, nor is there evidence that anyone in
management spoke to him of the closure as "an example
for the rest of the cafeterias over the nation." Insofar as I
can determine, Mills' comment to Hastings concerning
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.
'The circumstances surrounding Hastings ' discharge are recited in my
decision in the Mobile cases.
MORRISON CAFETERIAS CONSOLIDATED, INC.
.,an example" may have been no more than his own
opinion ; formed nearly 2 years after the closure, of an
advantage to be gained by it.
In summary , I conclude that the allegations that the
Respondents violated Section 8 (a)(3) must be dismissed.
There remain , however, the allegations that Section
8(a)(5) was violated. Although, by the closure, Morrison
Little Rock went out of business entirely, Morrison
Consolidated went out of business only partially, and the
record is clear that the two Respondents constitute a
single , integrated enterprise . Moreover , Holland's
testimony is clear that he regards the entire enterprise
involving the parent and all subsidiary corporations as one
company. Thus, he referred to himself as "[v]ice president
of the whole company." I find that we have here a partial
closing of a business with an object of avoiding collective
bargaining with the employees' representative. I find also
that the Respondents, by failing to notify the Union of the
decision to close the Little Rock cafeteria and to bargain
about that decision and the effect of the closure upon
employees in the appropriate unit , violated Section 8
(a)(5) and (t). McGregor Printing Corporation, 163
NLRB No. 113, and cases cited at footnote 9 therein.
IV. THE REMEDY
I reaffirm the first paragrpah of the remedy in my
decision, 148 NLRB at 148, which relates largely to my
rejection of the General Counsel' s request that the
Respondents be required to "reinstate" the Little Rock
operation . The remainder of the remedy is rewritten as
follows.
Morrison Little Rock, although still retaining its
corporate existence , has not operated a cafeteria for more
than 5 years. There is no evidence that Morrison Little
Rock will open another cafeteria or that Morrison
Consolidated contemplates again engaging in business in
Arkansas. Because, however , the future cannot be foreseen
and one or the other of the Respondents may resume
operations in Little Rock , I shall recommend that the
Board retain jurisdiction herein so that it may consider
the implications of any resumption if such should occur.
A. C. Rochat Company, 163 NLRB No. 49.
The type of bargaining order to be issued in this case
may be found in Transmarine Navigation Corporation,
170 NLRB No. 43, where the Board set forth "a limited
backpay requirement designed both to make whole the
employees for losses suffered as a result of the"
employer 's refusal to bargain and "to re-create in some
practicable manner a situation in which the parties'
bargaining position is not entirely devoid of economic
consequences for the Respondent [s]." Accordingly , I shall
recommend that the Respondents bargain with the Union,
upon request , concerning the effects of the closure of the
cafeteria in Little Rock upon the employees who were in
the appropriate unit at the time of closure , embodying in
a signed agreement any understanding which may be
reached , and that the Respondents pay to such employees
amounts equal to their respective earnings when last in the
Respondents' employ from 5 days after the date of this
Supplemental Decision until the occurrence of the earliest
of the following conditions : ( 1) the date the Respondents
bargain to agreement with the Union on those subjects
pertaining to the effects of the closing upon employees in
the unit; (2) a bona fide impasse in bargaining; (3) the
failure of the Union to request bargaining within 5 days
after it s receipt of this Supplemental Decision, or to
commence negotiations within 5 days of the Respondents'
notice of its desire to bargain with the Union; or (4) the
597
subsequent failure of the Union to bargain in good faith;
but in no event shall the sum to be paid to any of the
employees exceed the amount he or she would have earned
from the date of the closure of the cafeteria, April 19,
1963, to the time when he or she secured equivalent
employment elsewhere; provided, however, • that the sum
shall not be less than an employee would have earned for
a 2-week period when last in the Respondents' employ,
except for any of the approximately half dozen employees
who were transferred to other cafeterias in the Morrison
chain (148 NLRB at 145) who shall receive backpay for
only an appropriate portion of the 2-week period if he or
she began work in another such cafeteria within less than
2 weeks after the closure of the Little Rock cafeteria. In
many instances the sum can be determined by the normal
wage rates paid to employees. In the instances of waiters
and any other employees whose earnings consisted largely
or in part of tips from customers, the wage rates will not
be determinative of the earnings.
I shall recommend further that the Respondents
preserve and make available to the Board or its agents,
upon request, 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 under the
terms of these Recommendations.
In view of the fact that notices to employees cannot
now be posted by the Respondents in the cafeteria in
Little Rock, I shall recommend that the Respondents
send, by first class mail, appropriate notices to all persons
who were in their employ in Little Rock during April
1963, at such persons' last known addresses, and that the
Respondents publicize the notices in one of the principal
daily newspapers in Little Rock.
Because of the nature of the Respondents' invalid
conduct and its underlying purpose and tendency, I
conclude 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. Therefore, in order to
make effective the interdependent guarantees of Section 7
of the Act, I shall recommend further that the
Respondents cease and desist from infringing in any
manner upon the rights guaranteed in said section.
N.L.R.B. v. Express Publishing Company, 312 U.S. 426
(1941); N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532
(C.A. 4, 1941).
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1, 2 and 3. I reaffirm these three Conclusions of Law in
my original decisions (148 NLRB at 150) which relate to
the composition of the appropriate unit and the Union's
status as a labor organization and exclusive representative
of employees in the unit. I modify the remaining
conclusions of law as follows.
4. By interfering with, restraining, and coercing
employees in the exercise of their rights under the Act,
and by refusing to bargain collectively with the Union, the
Respondents have engaged in and are engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) and Section 2(6) and (7).
5. The allegations of the complaint that the
Respondents violated Section 8(a)(3) have not been
sustained.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
REVISED RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend that the Respondents,
Morrison Cafeterias Consolidated, Inc. and Morrison
Cafeteria Company of Little Rock, Inc., their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Hotel-Motel,
Restaurant Employees Union, Local No. 200, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, as the exclusive representative of all
the employees in the appropriate unit.
(b) Interrogating employees concerning union activities,
threatening to terminate business operations if employees
should select a labor organization to represent them, and
soliciting employees to eavesdrop on union activities and
to report to management concerning such activities.
(c) 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) Upon request, bargain collectively with said labor
organization concerning the effects of the closure of the
cafeteria in Little Rock upon the employees who were in
the appropriate unit at the time of closure, as set forth in
"The Remedy" section of this Supplemental Decision.
(b) Pay to such employees amounts equal to their
normal earnings , as set forth in said remedy section.
(c) Preserve and make available to the Board or its
agents all payroll and other records, as set forth in said
remedy section.
(d) Place as advertisements, once a week for 8
consecutive weeks in one of the principal daily newspapers
in Little Rock, exact signed copies of the attached notice
marked "Appendix".'°
(e) Mail to their former employees in Little Rock
signed copies of said notice (to be prepared by the
Respondents on forms furnished by the Regional Director
for Region 26, as provided in said remedy section.
(f) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps each of
the Respondents has taken to comply herewith."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of court, the words "a
Decree of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
In the event that this Recommended Order is 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 each of the
Respondents has taken to comply herewith "
IT IS FURTHER RECD' IMENDED that the Board reserve to
itself the right to reconsider and modify the provisions of
this Revised Recommended Order if made necessary by
circumstances not now apparent.
IT IS FINALLY RECOMMENDED that the complaint be
dismissed insofar as it alleges that the Respondents
violated Section 8(a)(3) of the Act.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended,
We are publicizing this notice in order to notify our
former employees at the cafeteria in Little Rock which we
closed in 1963 that:
WE WILL NOT interrogate employees concerning
union activities , threaten to terminate business
operations if they should select a union to represent
them, or solicit employees to eavesdrop on union
activities and to report to management concerning such
activities.
WE WILL NOT violate any of the rights which our
employees have under the National Labor Relations
Act to join a union and to engage in union activities, or
not to join a union and not to engage in such activities.
WE WILL, upon request by Hotel-Motel, Restaurant
Employees Union, Local No. 200, Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, bargain collectively with that labor
organization concerning the effects of the closure of our
cafeteria in Little Rock upon the employees who were
in the bargaining unit at the time of closure.
WE WILL, in the manner required by the National
Labor Relations Board, give backpay to our former
employees.
Dated By
MORRISON CAFETERIAS
CONSOLIDATED, INC. AND
MORRISON CAFETERIA
COMPANY OF LITTLE
ROCK, INC.
(Employer)
(Representative) (Title)
If the former employees have any questions concerning
this notice or whether the Employer is complying with its
provisions, they may communicate with the Labor Board's
office at 3507 Federal Building , 700 West Capital Avenue,
Little Rock, Arkansas 72201, Telephone 534-3161.