O'Donnell's Sea Grill

National Labor Relations Board - Board Decisions

Mar 30, 1944

55 N.L.R.B. 828 (N.L.R.B. 1944)

In the Matter of T. A. O 'DONNELL, DOING BUSINESS AS O'DONNELL'S
SEA GRILL and UNITED CAFETERIA & RESTAURANT WORKERS LOCAL
471 , UNITED FEDERAL WORKERS OF AMERICA C. I. O.
Case No..5-C-162..Decided March 30, 1944.
DECISION
AND
ORDER
On November 13, 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that he cease and desist therefrom and take certain
affirmative action, as set out in the copy of the Intermediate Report
attached hereto. Thereater, the respondent filed exceptions to the
Intermediate Report and a brief in support of the exceptions. Pur-
suant to notice duly served upon all parties, a hearing for the purpose
of oral argument was held before the Board in Washington, D. C., on
January 27, 1944. The respondent was represented by counsel and
participated in the oral argument. The Union did not appear.
The Board has considered the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, except as hereinafter
modified.
1. The Trial Examiner in his Intermediate Report found that
Alexander was discriminatorily discharged and recommended that the
respondent be directed to reinstate Alexander with back pay. We
concur in the finding that Alexander was discriminatorily discharged.
While we find that Alexander's discharge was an unfair labor practice,
his record of absenteeism combined with his lack of candor on the
witness stand, was such that, upon the entire record, we do not believe
that his reinstatement would effectuate the policies of the Act. We
shall, therefore, not order the respondent to reinstate Alexander or
to pay him back pay.
2. The Trial Examiner recommended that the respondent pay to
Jones and Washington, bus girls, an amount equal to the average tips
55 N. L. R. B., No. 150.
828
O'DONNELL'S SEA GRILL 829
'received by each from waiters in the employ of the respondent, in
addition to the amount they received as compensation from the re-
spondent . There is some evidence here that the respondent expects
his waiters to give bus girls a minimum of 15 cents a day. There was
no showing that such custom was universally followed. Consequently,
what tips Jones and Washington might have received from such
sources would be negligible in the determination of the bus girls'
wages. Accordingly, we shall therefore direct the respondent to pay
to Jones and Washington only the amount of the actual compensation
that the respondent would have paid them but for the discrimination.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c) of
the National Labor Relations Act, the National Labor Relations Board
hereby orders that the respondent, T. A. O'Donnell, doing business as
O'Donnell's Sea Grill, Washington, D. C., and his agents, successors,
and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in United Cafeteria & Restaurant
Workers, Local 471, United Federal Workers of America, C. I. 0.,
or any other labor organization of his employees, by discharging or
refusing to reinstate any of his employees, or in any other manner
discriminating in regard to their hire and tenure of employment, or
any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted activ-
ities for the purposes of collective bargaining, or other mutual aid or
protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Alberta. Elizabeth Waslington immediate and full
reinstatement to her former or substant4ally equivalent position, with-
out prejudice to her seniority and other rights and privileges;
(b) Make whole Alberta Elizabeth Washington and Lizzie Jones
for any loss of pay they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum of
money equal to the amount which each normally would have earned
as wages : (1) in the case of Alberta Elizabeth Washington, from the
date of her discharge to the date the respondent's offer of reinstate-
mnent, less her net earnings during such period, and (2) in the case of
Lizzie Jones, from the date upon which she was discharged to the
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date upon which she was reinstated, less her net earnings during said
period;
(c) Post immediately in conspicuous places throughout his Sea
Grill, 1221 E Street, N. W., Washington, D. C., and maintain for a
period of at least sixty (60) consecutive days from the date of posting,
notices to his employees stating : (1) that the respondent will not
engage in the conduct from which it is ordered that he cease and desist
in paragraphs 1 (a) and (b) of this Order; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a) and (b)
of this Order; and (3) that the respondent's employees are free to
become and remain members of United Cafeteria & Restaurant
Workers, Local 471, United Federal Workers of America, C. I. 0., and
that the respondent will not discriminate against any of his employees
because of membership in or activity on behalf of that organization;
and
(c) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. Robert T. Drake, for the Board.
Messrs. Joseph F. Castiello, Charles D. Ford, and Austin F. Canfield, of Wash-
ington, D. C., for the respondent.
Mrs. Jewell Mazique and Mr. James F. Harris, of Washington, D. C, for the
Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on September 14, 1943, by United Cafteria
& Restaurant Workers, Local 471, United Federal Workers of America, C. I. 0,
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Fifth Region (Baltimore, Maryland)
issued its complaint, dated September 14, 1943, against T. A. O'Donnell, doing
business as O'Donnell's Sea Grill, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices af-
fecting commerce, within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing, were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the respondent personally and by his agents: (1) on or about March 2S,
1943, discharged William Alexander,' and, on or about April 2, 1943, discharged
Alberta Washington 2 and Lizzie Jones because each of said employees joined
and assisted the Union, and thereafter refused to reinstate said William Alex-
ander and Alberta Washington to their former or substantially equivalent posi-
tions; and (2) interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in the Act by: (a) statements and speeches
expressing displeasure to employees concerning their union activities, ( b) urging,
1 Referred to in the record as William Alexander, Jr.
2 Referred to in the record as Alberta Elizabeth Washington
O'DONNELL'S SEA GRILL 831
pei snadmg, and warning employees to refrairr from becoming or remaining
members of the Union, and (c) interrogating and inquiring of employees as to
membership or activities in behalf of the Union. The respondent did not file
an answer.
Pursuant to notice, a hearing was held at Washington, D. C., on September
29 and 30 and October 1, 2, and 4, 10043, before David Karasick, the undersigned
Trial Examiner duly designated by the Chief Trial Examiner. The Board and
the respondent were each represented by counsel and the Union by its represent-
atives; all parties participated in the hearing. Full opportunity to be heard,
to examine and cross-examine witnesses , and to introduce evidence bearing on
the issues was afforded all parties
At the commencement of the hearing, counsel for the respondent moved to
exclude witnesses from the hearing room The motion was granted over ob-
jection by counsel for the Board At the close of the Board's case and again
at the conclusion of the respondent's case, the respondent moved to dismiss (1)
the entire complaint, and (2) the allegations of the complaint that T. A.
O'Donnell personally had committed any of the unfair labor practices chaiged.
The undersigned denied these motions when presented at the conclusion of the
Board's case, and reserved ruling thereon when presented at the close of the
respondent's case The motions are hereby denied At the close of the heating,
motion of counsel for the Board to conform the complaint to the proof, insofar
as formal matters were concerned, was granted without objection. Neither
counsel for the Board nor counsel for the respondent availed themselves of the
opportunity afforded to present oral argument before the undersigned, or to
file briefs.
On October 21, 1943, counsel for the respondent filed with the undersigned
a stipulation to correct certain errors in the transcript of testimony, which
had been entered into between counsel for the Board and the respondent and a
representative of the Union. On November 2, 1943, the undersigned issued an
order directing that the corrections be made pursuant to the foregoing stipulat ion.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF F-tCr
I THE BUSINESS OF THL RESPONDENT
T. A O'Donnell, doing business as O'Donnell's Sea Grill, is a sole proprietor
operating a restaurant, serving and selling food and alcoholic beverages, at
1221 E Street, N W., Washington, District of Columbia, herein called the Sea
Grill.' During the year ending August 31, 1943, the iespondent received at the
Sea Grill in gross receipts more than $100,000, and on the same date had assets
at the Sea Grill having a value in excess of $_225,000 4 As of April 1, 1943, the
iespondent employed a total of 421 persons
11 THE ORGANIZATION IN\OLVLD
United Cafeteria & Restaurant Workers, Local 471, United Federal Workers
of America, affiliated with the Congress of Industrial OI ganizations, is a labor
organization which admits to membership employees of the respondent
3 The respondent operates another restaurant located at 1207 E Street , N W , Washing-
ton, 1) C Only the Sea Grill , at the add, ess above noted , is involved in this proceeding
The above-stated facts . iie based upon a stipulation entered into between counsel for
the Board and for the iespondent
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III THE UNFAIR LABOR PR.ICTICES
A. The discislninatory discharges; interference, restl grit, and coercion
In the latter part of February 1943, the Union instituted a campaign to
organize the employees of the respondent The events out of which the contrq-
versy in this case arose occurred shortly thereafter.'
1 The discharge of William Alexander, Jr.
William Alexander, Jr, began working for the respondent as a waiter on
February 24. 1942 On March 27, 1943, he was given several blank union mem-
bership cards by Jewell \Iazique, an organizer foi the Union At about noon
on the following day, Alexander met employees Beulah Reid, Ora Lurk, and
L;zzie Jones in the club room' of the Sea Grill and gave each of them a union
card which he requested them to sign Alexander thereupon left the loom.
Iinmediately thereafter, while Reid, Lurk, and Jones were signing the cmcls,
James S. O'Donnell, the respondent's purchasing steward,' entered the room.
O'Donnell took Reid's card, which lie thereafter retained, and asked who had
given it to her Reid replied that she had received the ca id from Alexander,
who at that time had just returned to the club room Thereupon, 0 Donnell
informed Alexander that he slid not woik any longci for the respondent, and
told him to punch out his time card s
' Since the record in this case contains numerous instances of conflicts in testimony and
varying voilions of events which would require an undue aniount of time and space to
(10-cuss in detail in each instance, the undersigned has set forth in the text the findings
iwlucli have resulted fioin an analysis of the entire record, and has not attempted in every
ipstance to indicate the existence of contialy evidence which has been considered and re-
jected or regarded as of less pmsuasne force than the evidence upon which such findings
a I e based
'The club room is used as a dining room for laige paities or groups and is also opened
foi seiiice to regular Cuests when the ienmrunina dining looms are filled The employees
hue then meals in the club room (lining the afternoon, if it is not being used to serve
tie patrons of the restauiant
fames S 0 Donnell is the hi other of T A O'Donnell, sole propi ietor of the respondent.
The patties stipulated that James S O Donnell, hereafter reterred to as O'Donnell, is a
supervisory employee As purchasing steward, O'Donnell takes daily inventories of sup-
plies, puichases food and produce, and is in charge of the emplo3ees who work in the
kitchen 'indl basement The respondent attempted to show that O Donnell's supervisory
authority does not extend to dining room personnel The iecoid shows, however, that
O'l)onnell, by reason of his relationship to the owner of the Sea Gill, exercises a greater
degree of supervisory authority than the title of his position alone would indicate Em-
ployees in the dining room work under the general supervision of the head waiter, but
O'Donnell admitted that he had the power to discharge such employees if the head waiter
is not present at the time, although he would normally prefer referring the matter to the
head of the department as a question of policy On at least one occasion, O'Donnell ordered
off the premises employees whom he had found gamblinc, despite the fact that he did not
know whether the particular employees were scheduled to work that day or under whose
supei v ision they woiked He testified that his authority is to be considered in light of the
fact that lie works for his brother and that it extends to all matters which would serve
to I in tiler the best interests of his brother's business The undersigned finds that O'Donnell
m it supervisory employee and that lie has authority to discharge dining room personnel
8 The foregoing findings are based upon the mutually core oborated testimony of Alexan-
der, Reid, and Jones Alexander at times was confused and hesitant and failed to recall
distinctly various incidental details concerning the principal events about winch lie testi-
fied In the main, his testimony was corroborated by the credible testimony of other wit-
nesses The undersigned has considered Alexander's testimony in the light of such other
testimony as well as all other evidence in the record and from his demeanor on the witness
stand It is the opinion of the undersigned that Alexander was a credible witness who
sought to testify truthfully, and that the characteristics noted above were induced by a
fear that lie would be misled which was attributable to his inability to comprehend the
meaning of certain questions and to a feeling of difficulty in expressing himself clearly
O'DONNELL'S SEA GRILL 833
Alexander then went to the men's locker room where he met employees Joseph
Broadus, Jordan Fenwick, and "Doe" Byron. He gave each of these employees
a union membership card which he asked them to sign. O'Donnell thereupon
entered the room, again ordered Alexander to leave the premises, and this time
escorted him to the rear door of the Sea Grill On that occasion, O'Donnell told
Alexander that the A. F. of L had tried to organize the employees of the
respondent sometime before, and that O'Donnell and his brother ° had a hard
time keeping a union out. O'Donnell then went on to say that when Alexander
came to the Sea Grill in the future, he was to stop at the front door and ask
for the person whom lie wished to see 10
Shortly after he had been escorted out of the building by O'Donnell, Alexander
returned and worked for the balance of the day, but he did not again see
O'Donnell A day or two thereafter, when Alexander reported for work,"
Head Waiter Wilson asked him why he was wearing his waiter's uniform and
stated, "We don't want any union here, and you don't work here any more.
You are fired " 12 Alexander has not been reinstated and desires to return to
work for the respondent.
The contentions of the respondent with iespect to the discharge of Alexander
The i espondent contends that Alexander was discharged because of frequent,
prolonged, and unexcused ib.sences from work O'Donnell denied that he had
discharged Alexander His vei sioi of the events which occurred on lliirch 2S
was that, at about noon on that day, he passed the club room where he heard 5
or G girls talking in loud tores,12 that he ordered them to their stations and
locked the club room door. Immediately thereafter, O'Donnell testified, he went
to the third floor where he found four or five employees shooting dice on a rear
1 As previously noted, O'Donnell s brother is the sole pi oprietor of the Sea Grill
The above recital of events is based upon the testimonv of Alexander as coriobointed
h', Iiioadus who testified that lie received a union membeiship card from Alexander, that
O Donnell entered the locker room and took the card, and that O'Donnell then said some-
thin;,, to Alexander which Bioad us did not hear Byron was not called as a witness Fen-
wick denied that Alexander eves gave him a union card, and O'Donnell denied that the
e011"1 inudent had ever ocuured, as noted heiealtei, of that he had made the stn tenients
.itIcibeted to him by Alexander. The undersigned does not credit the denials of Femrick
and O'Donnell and finds that the incident occurred and the statements were made by
O'Donnell in the manner related by Alexander and Itrotdus
n Alexander w as not certain whether he next reported for work on the day following
March 'S co a day or two thereattei 31a_ch 2S, 194 d, tell on a Sunday Alexander's regu-
lar day off was Tuesday He therefore attempted to return to work either on March 29
of March 31 It is not necessary to determine the date upon which Alexander returned
to the Sea Gull, for the iecoid clearly shows and the respondent concedes that the effective
date of Alexander's discharge was March 28. Alexander's time card for the pay period
ending 'March 31, 1916, contains only one notation which shows that he punched in at
12 1:3 p. in March 28. Alexander testified that he punched in his time card on that day
after he had returned to the Sea Grill following his eviction by O'Donnell, and that lie
also punched in at the time lie next reported for work and was prevented from working
by Wilson. The time card shows that Alexander was in error when he testified that lie
punched in on the latter occasion The fact that the time card shows that Alexander
failed to punch out on March 28 is not unusual since his remaining time cards which are
in eN idence disclose that on other occasions he had tailed to punch his card at the end
of the wooing day
12 The undersigned does not credit Wilson's denial that lie made the statements at( ubuteil
to him by Alexander. Wilson's version as to the manner in which Alexander w.is dis-
charged is disccssed hereafter
it At that hour of the dai, according to 0 Donnell, "none of the employees, unless then
aie ooikuig there and cleaning, is supposed to be in there" Reid testified without con-
tradiction that she, Lurk, and Jones were cleaning the club room at the time the mndent
in question occurred, and John Lacey, captain of the second floor, testified that in Much
1943, Jones and Reid were assigned to clean the club room in the morning
578129-44-vol 55-54
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
room, that Alexander was standing in the hallway and attempted to warn the
employees of O'Donnell 's presence , and that O 'Donnell ordered all of the em-
ployees , including Alexander , to leave the building , and "take the rest of the
day off.i " O'Donnell admitted that he ordered Alexander as well as the other
employees to leave the building even though Alexander had not taken part in
the dice game , that he did not know what kind of work was performed by any
of these employees , and, although they were in civilian clothes rather than in
uniform, that he did not know whether or not they had yet punched their time
cards to begin work for the day . Alexander unequivocally denied that he had
been involved in any such incident as that testified to by O'Donnell None of the
other four or five employees alleged to have been involved in this incident was
called by the respondent to testify , nor did the respondent offer any exp'anation
for its failure to do so The undersigned is not convinced by, and does not
credit, O'Donnell 's denials or his version of the events which occurred on
March 28.
Gordon Wilson , head waiter, who was called as a witness by the respondent,
testified that Alexander was employed " as a wa iter at a salary of $35 00 per
month ; that he frequently failed to report for won k, and in August 1942 his
salary was increased to $38 50, in the hope that "he would come to work better
and make better time", that approximately two weeks later , his rate of pay
was again changed to 14 cents per hour 16 "because lie did not make any time
[was frequently absent] after be got a raise "; and that thereafter , Alexander
was regarded as a part-time employee who was scheduled to come to work
every day except Tuesday , his day off, at 5 in the afternoon and work until
he was excused. Wilson further testified that lie frequently spoke to Alexander
about his absences and Alexander always promised to do better the next time,
but that contrary to the respondent 's rules he never notified Wilson on the
frequent occasions when he failed to appear for work; that the respondent's
manager protested to Wilson concerning Alexander 's time card for the peuod
ending January 15, 1943," stating that it was "one of the worst cards he ever
saw" with respect to lack of attendance , and Wilson replied that he would
discharge Alexander as soon as he could replace him; and that when Alexander
appeared for work on March 28 at about 6 . 15 or 6.30 in the evening , after he
had failed to report for almost 2 weeks, Wilson informed him that lie was
discharged.
Conclusions as to the discharge of Alexander
The contentions advanced by the respondent as its reasons for the discharge
of Alexander are not convincing and are therefore not credited by the under-
signed. The respondent contends that Alexander was guilty of "frequent, pro-
longed, unexcused" absences "from the very beginning" of his employment.
Alexander began to work for the respondent on February 24, 1942 The respond-
ent introduced in evidence the time cards of Alexander for the pay period
ending October 31, 1942, to and including the pay period ending March 31, 1943.
A time clock system was first installed by the respondent in October 1942, and
14 This action. if taken by O'Donnell, would contradict his assertion that he had no
supervisory authority with respect to dining room personnel since at least one of the
employees (Alexander) alleged to have been so disciplined was a waiter
rs As noted above, Alexandei began to work fot the respondent on February 24, 1942.
'6 In about August 1942, all waiters paid on an hourly basis, including Alexander, re-
ceived an increase in wages from 14 cents to 20 cents per hour.
'7 The time cards of the respondent are divided into periods ending on the 15th and
the last day of each month.
O'DONNELL'S SEA GRILL 835
'counsel for the respondent stated at the hearing that time records of employees
prior to that time were not available " Although Wilson testified that Alex-
ander was supposed to report for work 6 days a week, the record shows that he
worked with such regularity only once during the entire period of his employ-
ment covered by the time card records i"
It is not reasonable to believe that if Alexander failed "from the very be-
ginning" of his employment to report for work without excuse, the respondent
would have retained him for a period of more than a year 20 Wilson explained
that he did not discharge Alexander before March 28 because he was short of
help. Wilson also testified that he informed the respondent's manager about
.January 15 that he would discharge Alexander as soon as he could replace him.
Wilson further testified that about 25 percent of the approximately 500 persons
employed by the respondent are replaced each month, and that he has hired at
least 300 to 350 persons since April 1943. The undersigned is convinced that
Alexander would have been replaced long before March 28 if the true reason
for his discharge was that advanced by the respondent.
Although Wilson testified that the respondent's manager complained to him
about the time card of Alexander for the pay period ending January 15, 1543,
and stated that it was "one of the worst cards he ever saw," Alexander's time
record for that period differed little from that shown by his preceding time
cards. Wilson's further testimony that he and the respondent's manager ex-
amined the time cards of the employees every pay day is significant in this
connection. Wilson failed to explain why he did not remove Alexander's time
card from the rack after he had told the respondent's manager on or about
January 15 that he was going to discharge Alexander, but instead left his card
in the rack until he actually did discharge him on March 28. The procedure
in this instance was directly contrary to that followed by the respondent in
discharging Lizzie Jones and Alberta Washington, whose time cards were re-
moved from the rack when the decision to dismiss them was made and prior to
the time they were informed that they were discharged, as noted hereafter.
18 Nevertheless, counsel for the respondent did ask Alexander if it was not true that
he had worked only a ceitain number of days during each of several day periods prior to
the time covered by the time cards
'" This was for the two week pay period ending October 31, 1942, when Alexander worked
12 days An analysis of the remaining time cards follows:
Pay peiiod ending, Days worked Pay period ending: Days woi ked
11-15-42----------------------- 8 1-31--43------------------------ 9
11-30-42----------------------- 7 2-15-43------------------------ 3
12-15-42----------------------- 6 2-28-43------------------------ 3
12-31-42----------------------- 10 3-15-43------------------------ 8
1-15-43 ------------------------ 7
Alexander ' s time caid for the pay period ending March 31, 1943 shows that he punched
in at 12: 13 p. in on March 28 No other notation appeals upon the card. Alexander
testified that during part of the peiiod of employment by the respondent he also worked
during the day for the Government; that sometime duiing the month of March 1943, be
took a three weeks' vacation from his goveinnient job and that 8 or 9 days of that time
he also took a vacation from his job at O'Donnells ; and that he notified Wilson of the
fact that he would be away Wilson denied this testimony of Alexander The under-
signed does not credit his denial
20 The record shows that employees at the Sea Grill also work on occasion at O'Donnell's
Restaurant, another establishment maintained by the respondent and located in a building
nearby, and that in either instance they punch in at the Sea Grill. Throughout the hear-
ing, the respondent took the position that any evidence relating to O'Donnell's Restaurant
was immaterial because it is a separate legal entity The record does not show whether
separate time cards are kept for the employees of each of the two establishments However,
the time cards of Alexander which the respondent introduced in evidence relate only to his
employment at the Sea Grill.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Furthermore, the undersigned is not convinced by Wilson's testimony that he
increased Alexander's salary in August 1942 from $35 to $38.50 per mouth, in the
hope that by so doing Alexander would report for work with greater regularity.
Employees are normally disciplined, not rewarded, for failing to properly per-
form their duties Nor did Wilson contend that the increase in salary was
granted because of any expression of dissatisfaction on the part of Alexander
with his wages. Finally, although Wilson testified that he discharged Alexander
when Alexander reported for work at 6:15 or 6 30 on March 28, Alexander's
time card shows that on that date he punched in at 12.13 p in ,, and contains no
other notation Alexander's time cards show that on every Sunday lie worked,'
he reported shortly before or shoitly after the noon hour, with but two ex-
ceptions 22 The time Alexander punched in on March 28, as noted on his time
card, is consistent with his testimony and that of Reid. Jones, and Bi oadus as
to the events which occurred on that day and is inconsistent with that of Wilson.
The undersigned is convinced and finds that the respondent discharged
Alexander for the reason that O'Donnell discovered that Alexander had been
distributing union membership cards to other employees Accordingly, the
undersigned finds that the respondent, on March 28, 1943, discharged William
Alexander because of his union activities, thereby discouraging membership
in the Union and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2 Other inteiference, restraint, and coercion
After Alexander left the club room on March 28, upon being told by O'Donnell
that he was discharged, O'Donnell also left the room. In about 5 or 10 minutes,
O'Donnell returned to the club room together with about 10 bus girls and told
therm that he had caught two or three girls signing a oriel which they had no
business signing. He showed the eniplovees the union membership card which
he had taken from Reid and told them that any employee signing such a card
would be discharged. Later, on the same day, O'Donnell told Reid not to
bother with the union membership cards because it would get her in trouble,
and Reid assured O'Donnell that she would not 23
The undersigned finds that the statements so made by O'Donnell are attribut-
able to the respondent," and that the respondent thereby interfered with,
restrained, and coerced its employees in the exercise of the rights gu:nanteed
in Section 7 of the Act.
3. The discharge of Lizzie Jones
Lizzie Jones began to work for the respondent in April 1942 as a bus girl.
From the time she was first employed until December 1,142, Jones worked for
Captain Mathews 26 who was stationed on the first floor of the Sea Grill.
"As noted above, the peiiod covered by the time cards is from the pay period ending
October 31, 1942 (and beginning on October 15) to the similar period ending March 31,
1943
22 On two Sundays, November 22 and December 6, 1942, Alexander punched in at 3, 51
and 2 . 30, respectively.
23 The foregoing findings are based upon the credible testimony of Reid as corroborated
by Jones with iespect to O'Donnell's statement to the bus gals Jones testified that about
10 or 15 minutes after the incident involving Alexander had occurred, several bus girls
entered the club room and were told b3 O'Donnell not to sign any cards until his brother
spoke to them, and that shortly thereaftei Jones left the club room O'Donnell denied
that any such incident as that related by Reid and Jones occurred The undersigned does
not credit his denial.
24 See footnote 7, supra.
25 "Captains" are supervisory employees who are responsible to the head waiter and are
in direct charge of the dining room personnel
O'DONNELL'S SEA GRILL 837
Sometime during December 1942, Jones failed to report for work one day because
she wanted to see her brother who was going into the Navy and when she re-
turned to work, Mathews told her that she could not work for him any longer
and told her to work on the second floor. Thereafter, Jones worked for Captain
Lacey, who was in charge of the dining room personnel on the second floor.
As noted above, Jones was one of the three employees engaged in signing
union membership cards at the time O'Donnell entered the club room at about
noon on March 23 3°
On April 1, Jones signed another union membership card at the request of
employee Alberta Elizabeth Washnlgton 27 That afternoon, just before she left
work, Gordon Wilson, head waiter, asked Jones for her time card number.
When Jones reported for work the next morning, she found that her time card
was missing. She asked Lacey if he had said anything to Wilson which would
cause Wilson to discharge Jones, and Lacey replied that he had not. Lacey
then asked Jones if she had signed "one of those union cards." Jones said
that she had, and Lacey then replied, "Well, it must have been that." 23 Jones
then went to the office to secure her salary. While there, A. R Bentley, the
respondent's manager asked her why she had been discharged. Jones answered
that she did not know, whereupon Bentley stated that he understood that
Wilson was in need of bus girls.3D
About April 16, employee Ora Lurk informed Jones that O'Donnell, wished to
hear from her.30 On that day or shortly thereafter, Jones spoke to O'Donnell,
who asked her if she had attended any union meetings. Jones replied that
she had not and O'Donnell then advised her not to bother with the Union, and
she stated that she would not.
On May 31, O'Donnell called Jones and asked her to come down to see him.
Jones did so, and O'Donnell informed her that she could return to work on
June 3. O'Donnell also told her that there was going to be a meeting on June 3,
and asked her not to attend. The meeting to which O'Donnell referred was a
conference held in the offices of the Board concerning the charge which had
been filed in this case.31 Jones attended the conference on June 3, and returned
to work on June 10 32 Wilson testified that he had been told by counsel for
the respondent that Jones wag going to return to work and that Wilson should
rehire her.
26 O'Donnell did not, take her card on that occasion . Jones testified, and the undersigned
credits her testimony , that she surreptitiously gave her card to Alexander by handing it
to him behind her back after O'Donnell had entered the room and taken Reid's card from
her The record shows and the undei signed finds that, pi for to the time Jones gave her
card to Alexander it was lying unconcealed on a table in the club room within vision of
O'Donnell, who stood approximately 5 or 6 feet allay, and that her card was seen by
O'Donnell.
zr Jones had signed only her name and address but had not yet filled in the remaining
blanks of the union membership card given to her by Alexander at the time O'Donnell
entered the club room on March 28
28 Lacey denied that he made such a statement. His denial is not credited.
20 The respondent did not call Bentley as a witness , and Jones ' testimony as to Bentley's
statement was not denied
30 Official notice is taken of the fact that the original charge in this proceeding was filed
on April 14, 1943.
31 A prior conference relative to this case had been held in the offices of the Board on
April 21.
12 O'Donnell's denials of the above conversations to which Jones testified are not credited
by the undersigned ; nor is his testimony that he did not learn of the Board conference
scheduled to be held on June 3 until the preceding afternoon. As previously noted, the
undersigned has considered and rejected the contention of the respondent that O'Donnell
lacks authority to hire or discharge dining room personnel
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contentions of the respondent with respect to the discharge of Jones
The respondent contends that Jones was discharged "for unsatisfactory
service, consisting of violations of rules and of frequent and unexcused absences
from her post of duty, despite repeated warnings and notices."
Captain Lacey and Head Waiter Wilson each testified to the effect that Jones
frequently was absent from her post of duty s3 Lacey testified that Jones
was absent from her station on four occasions during the month of March 1943;
that on each occasion she was absent during the busiest time of the day from
12: 30 to 1. 00 in the afternoon ; that Lacey found her on the third floor in the
hall near the bake shop , talking to the baker on each occasion ; that Lacey
warned her to remain at her station ; that finally Lacey reported the matter
to Wilson , who said he would take care of the matter , and the next morning
Jones told Lacey that her time card was not in the rack.
Although Lacey testified that he spoke to Wilson only once about Jones being
absent from her station , Wilson testified that Lacey spoke to him about the
matter "at least" two or three times . Wilson further testified that on more
than one occasion he found Jones loitering on the third floor ; that she remained
away from her post for periods of time varying from 20 minutes to an hour ;
that on April 1, at about 4 o'clock in the afternoon , Jones failed to clean up the
dining room, preparatory to dinner , 3' and that that evening he told Lacey : "Don't
let Lizzie Jones work in the morning I am tired of this foolishness I will
take her card out tonight" Wilson 's testimony concerning the matter in which
Jones was discharged is thus inconsistent with that of Lacey who testified
that he merely reported Jones to Wilson, that Wilson stated he would take
care of the matter, and that Jones ' time card was missing on the following
morning.
While Mathews testified that he found Jones talking to the assistant baker
when she should have been at work , Wilson first identified the person to whom
Jones spoke on such occasions as a baker named White , but later testified
that the baker was Lowrie Lacey identified the baker with whom Jones
talked as Larrie.
Jones admitted that she occasionally left her station when there was no
work for her to do as and engaged in conversations with other employees. She
testified that other employees also did so, and further testified that she would
remain away from her post only about 5 minutes on each occasion. While
she also admitted that Lacey had told her on three occasions not to leave her
sa Captain Mathews testified to the same effect concerning the period prior to the time
Jones began to work for Lacey In substance, his testimony was that he spoke to Jones
several times about being absent from her post after having received complaints from the
waiters for whom she worked ; that she "started getting worse" by coming in late ; and
that finally he sent her to work on the second floor Jones admitted that Mathews spoke to
her several times about coming in a few minutes late, but denied that he had ever spoken
to her about being away from her station Mathews' testimony with respect to derelictions
of duty on the part of Jones was obviously exal,gerated It is not reasonable to believe
that she would have been retained at all at the time she was transferred to work for Lacey
if she had been as negligent in her duties as 'Mathews testified The undersigned credits
Jones' testiinonv concerning the circumstances leading to her transfer from Mathews to
Lacey, as previously noted, and does not accept as credible Mathews' testimony in this
respect.
1' Lacey testified that Lizzie Jones, Sallie Jones, and Ora Lurk were assigned to clean up
the dining room on April 1; that at 4 o'clock only Sallie Jones was at work, and that Ora
Lurk entered the room while lie was there Wilson did not reprimand Lurk for being away
fiom her station, although he did not know wheme she had been or how long she had been
gone.
as The duties of a bus girl are to place bread , water , and butter on the tables assigned to
her when guests are seated , and to clear the tables after they have finished their meals.
O'DONNELL'S SEA GRILL 839
station, she testified that she had been to the rest room, located on the same
floor, on two of these occasions,9i and that she had told Lacey each time where
she had been. Jones denied that she ever left her post for the purpose of
talking to other employees during the rush period, and denied that she had
failed to service the tables to which she was assigned on any of the occasions
when Lacey spoke to her
Conclusions as to the discharge of Jones
The undersigned finds that Jones (lid occasionally leave her station and talk
to other employees, that other employees of the respondent similarly conducted
themselves, and that her absences were neither so frequent nor prolonged as to
constitute a convincing reason for her discharge: 7
The inconsistent and contradictory versions of Lacey and Wilson of the events
which led to the discharge of Jones and' the manner in which it was accom-
plished, when considered in light of the fact that O'Donnell saw the union mem-
bership card of Jones in the club room on March 28 and thus knew of her
union membership and interest and that her dismissal followed shortly there-
after convince the undersigned that Jones was discharged on April 2 because of
her membership in the Union and not for the reasons assigned by the respond-
ent. The respondent's antipathy toward the Union, is shown by O'Donnell's
statements to the bus girls in the club room, and to Alexander at the time he
evicted him from the Sea Grill on March 28 and his statements later on the
same day to Beulah Reid, by his statements to and interrogation of Jones after
she had been discharged with respect to her interest in the Union, by Wilson's
statement to Alexander at the time he refused to permit Alexander to return to
work, by Lacey's statement to Jones on the day she was discharged and by the
discharge of William Alexander, as noted above
The undersigned finds that the respondent by discharging Lizzie Jones on
April 2, 1943, discriminated in regard to her hire and tenure of employment,
thereby discouraging membership in the Union and interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act.se
ae Bus girls work 9 hours per day, with a 45 minute rest period, during which time they
have their lunch
37 The undersigned is not unmindful of the fact that an employer may dischaige an em-
ployee for any reason or no reason at all, so long as he does not do so because of the em-
ployee's union membership or activities The consideration here is whether the season
assigned by the respondent was the motivation for the dischaige of Jones, or was instead
a fiction cieated for the purpose of concealing the real reason which impelled the respondent
to take the action winch it did Jones' admission dui lug the Board conference on June 3
that perhaps she had been laid off for talking to other employees is not in itself proof of the
fact that discrimination was absent in the tei minatnon of her employment, but is to be
considered in the light of all other pertinent facts as shown in the record
sa The fact that Jones was reinstated after the Union had filed its charge with the Board
and after attempts at settlement had been made does not disprove the fact that Jones was
discharced in violation of the Act. In N L R. B v. Vincennes Steel Corporation, 117 F.
(2d) 169 (C C. A. 7). the court. in a similar situation, stated
All of these men were reinstated to then positions within from two or three weeks,
and respondent argues that the rehiring of them, with knowledge of their union affiliation,
is inconsistent with the idea that they were laid off for such reason. At first blush there
appears to be merit in this contention, but it must be remembered that in the meantime,
changes had been tiled with the Board against respondent, and some of the men were not
ienistated until after a conference between the respondent and a representative of the
Board. It is not unreasonable to conclude theiefore, that iespondent, after charges had
been preferred , realized its mistake in laying off the men, and reinstated them for that
reason . . .
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 The discharge of Alberta Elizabeth Washington
Alberta Elizabeth Washington began to work for the respondent on March 17,
1943, as a bus girl. Washington testified that, with the exception of her first
day of employment, she worked for Garlan Tabora, a waiter, and another waiter
identified in the record only as "Earl."" A few days after she began work,
Gordon Wilson, head waiter, asked Washington if she would be interested in
becoming a waitress and told her to take copies of the menu home with her and
study them.90
On March 20, Washington signed a union membership card and secured 21
blank cards from Jewell Mazique, union organizer On April 1, Washington
requested a number of the respondent's employees to join the Union, during her
lunch period and at various times during the day in the rest room, and obtained
the signatures of 19 employees Eight or 10 other employees to whom she spoke,
refused to sign cards.
On the following day, when Washington reported for work, her time card was
missing. She spoke to one of the captains, who told her that he knew nothing
about it, and advised her to see Wilson Washington shortly thereafter met
O'Donnell and asked him if he knew why her card was missing. O'Donnell asked
her if she had signed a union card Washington replied that she had, but not
at that time, whereupon O'Donnell inquired whether she had asked other em-
ployees to sign and when Washington said that she had, O'Donnell answered
that she would have to see Wilson about it.41 Washington later saw Wilson, who
refused to tell her why she had been discharged, but told her that if she needed
a recommendation for a job, he would give it to her.42 Washington has not been
reinstated and desires to return to work for the respondent.42
The contentions of the respondent with respect to the discharge of Washington
The respondent contends that Washington was discharged because of frequent
and unexcused absences from her post of duty and Gordon Wilson, head waiter,
Tracey Mathews, captain, and Emeiy Cammack, waiter, so testified, as witnesses
for the respondent. According to their testimony, Washington worked as a
bus girl for Cammack. As related above, Washington testified that she worked
for Garlan Taborn She denied unequivocally that she had ever worked for
Cammack."
99As noted hereafter, the respondent sought to show that Emeiy Cammack was the
waiter for whom Washington worked
4° Wilson admitted that he had planned to promote Washington to the position of a
waitress.
41 O'Donnell denied this conversation. The undei signed does not credit his denial.
42 Wilson denied that he had refused to tell Washington why she had been discharged and
testified that he told her that it was because her w oik was unsatisfactory. Yet Wilson
admitted that at the same time he offered to give Washington a recommendation for another
job He explained that while he would not give her a recommendation as a bus girl or
waitiess, she might do well somewhere else in some other kind of job, and that he (lid not
want to keep her fioin earning a living. There is no showing in the record that Washington
ever did any other kind of ivoik. The undersigned finds that the explanation offered by
Wilson is not entitled to credit.
42 The foregoing findings are based upon the testimony of Washington, as Corioborated in
part by Tabora and in certain respects, as noted, by admissions on the part of Wilson.
Attempts on the part of the respondent to impeach the credibility of Washington by reason
of alleged misstatements on her employment application and an alleged inaccuracy in her
testimony with respect to the amount she received in tips have been considered by the
undersigned and are regarded as inconclusive.
44 As previously noted , the undersigned granted a motion of the respondent at the com-
mencement of the hearing to exclude all witnesses Cammack was brought into the hearing
room by respondent' s counsel and identified by Washington , who thereupon reiterated her
prior testimony that she had not worked as a bus girl for him.
O'DONNELL'S SEA GRILL .841
Garlan Taborn also testified that Washington worked as a bus girl for him
and did not work for Cammack." Taborn testified that he complained to Wilson
when Washington was first assigned to his station because she was a new girl,
but that she developed into a "very good" bus gill and that thereafter he did not
complain. Taborn also testified without contradiction that on the day Washing-
ton was discharged, Taborn protested to Wilson and asked if he was going to
assign another new girl to Taborn, and that Wilson replied that Taborn would
be better off without Washington
Although Wilson testified that Cammack asked him to replace Washington,
Cammack testified only that he had reported Washington to Mathews and did not
state that he had ever spoken about her to Wilson Moreover, while Wilson testi-
fied that Mathews reported to him concerning Washington on only one occasion,
Mathews testified that he reported her to Wilson: "At least two or three times"
Washington denied that she was told on April 2, by either the captain to
whom she spoke or by Wilson, that her work was not satisfactory.
Conclusions as to the discharge of Washington
Upon the basis of the entire record and particularly in light of the following
facts, the undersigned is convinced that Washington was discharged for a reason
other than that advanced by the respondent. First, her dismissal occurred
immediately following her efforts to organize on behalf of the Union; second,
shortly before she was discharged, Head Waiter Wilson had regarded her as
sufficiently capable to consider promoting her to the position of a waitress; third,
although the ostensible reason for her dismissal, according to the respondent, was
because she had been an unsatisfactory employee and negligent in the performance
of her duties, Wilson voluntarily offered to give her a recommendation; and
fourth, Wilson's statement that Taborn would be "better off" without Washington
when Taborn inquired about her dismissal
The extent of Washington's efforts to induce other employees of the respondent
to join the Union on April 146 supports the inference that the respondent knew
of her union activities'i The respondent's anti-union animus is clearly shown
by the statements of O'Donnell, Wilson, and Lacey and by the discriminatory
discharges of Alexander and Jones, as heretofore related.
The undersigned finds that Albeita Elizabeth Washington worked as a bus girl
for Garlan Taborn, that she was discharged on April 2, 1943 because of her
activities on behalf of the Union, and that the respondent, by thus discharging
Washington, discriminated in regard to her hire and tenure of employment,
thereby discouraging membership in the Union and interfering with, restraining,
and coercing its employees in the exeicise of the rights guaianteed in Section 7
of the Act.
1V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above
"Wilson testified that Taboin had been discharged by the respondent "sometime" in
1llaicli 1943 Taborn testified that lie last worked for the respondent "along about" March
and fuither testified that Washington worked for him until she was discharged Washing-
ton was discharged on April 2, 1943 The undersigned finds that Taborn was discharged
after the respondent had dismissed Washington
9b As noted above, Washington induced 19 employees to sign union membership cards on
that day, and in addition sought to secure the signatures of 8 or 10 other employees
', See Link-Belt Company v. N L. It B, 311 U S. 584; also Matter of Hagerstown Leather
Company and International Fur and Leather Workers Union of United States and Canada,
affiliated with the C 1. 0., 52 N. L. R B., No. 205, and cases therein cited.
842. LECISIONS OF NATIONAL LABOR RELATIONS BOARD
have a close, intimate, and substantial relation to trade, traffic, and commerce
within the District of Columbia, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
It has been found that the respondent discriminatorily dischiuged William
Alexander, Jr, Lizzie Jones, and Alberta Elizabeth Washington. Jones was sub-
sequently reinstated to her position In order to effectuate the policies of the
Act, the undersigned will recommend that the respondent offer immediate rein-
statement to Alexander and Washington to their former or substantially equiva-
lent positions.
The undersigned will further recommend that the respondent make whole
Alexander, Jones, and Washington for any losses of ply they may have suffered
by reason of the respondent's discrimination against them: (1) by payment to
Alexander and to Washington of such sums of money as each normally would
have earned as wages from the date upon which each was discharged on March
28 and April 2, 1943, respectively, to the date of the respondent's offer of rein-
statement to each, less his or her net earnings during such periods ; 48 and (2) by
payment to Jones of a sum of money equal to the amount she would have earned
as wages from April 2, 1943, the date upon which she was discriminatorily dis-
charged, to June 10, 1943, the (late upon which she was reinstated, less her net
earnings during such period 49
The record shows that the waiters employed by the respondent customarily
receive tips which are regarded as part of their salary and that bus girls
receive similar gratuities from the waiters for whom they work. The under-
signed will therefore further recommend that the respondent pay to Alexander
and Jones a sum computed on the basis of the salary actually paid by the
respondent to each of such employees plus an amount equal to the average
tips received by each in the three months prior to the discharge of each. Since
Washington worked for the respondent only for the period from March 17 to
April 2, 1943, the undersigned will recommend that the back pay which she is
to receive shall be computed on the basis of the salary which she was actually
paid plus the average tips received by her during the period of her employment R0
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
48 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
wheie than for the respondent, nhich would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment else«here See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
Ameiica, Lumber and Savmilt Workers Union, Local 2590, 8 N L R B 440. Monies re-
ceived for woik peiforined upon Federal, State, county, municipal, or other work-ielief
pi oiects shall be consrdeied as car pings See Republic Steel Coi poi atiou v N. L R B,
311 U S. 7
49 See footnote 48, supra.
60 See Matter of Club Troika, Inc. and Hotel and Restaurant Employees Alliance, Local
781 et at., 2 N. L It. B 90 ; Matter of Willard, Inc., operatsnq under the name and style of
Wlllaid Hotel and Hotel and Restaurant Employees Alliance, Local 781, et at., 2 N L.
It. B 1094, enf d N L R. B. v. Willard Inc, etc., 98 F. (2d) 244 (C. A. for D. C ).
O'DONNELL'S SEA GRILL
CONCLUSIONS OF LAW
843
1 United Cafeteria & Restaurant Workers, Local 471, United Federal Workers
of America, C. I. O. is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. By discriminating in regard to the hire and tenure of employment of
William Alexander, Jr., Alberta Elizabeth Washington, and Lizzie Jones, thereby
discouraging membership in United Cafeteria & Restaurant Workers, Local 471,
C. I. 0, the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
3 By interfering with, restraining, and coercing his employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4 The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the
undersigned recommends that the respondent, T. A. O'Donnell, doing business
as O'Donnell Sea Grill, and his officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Discouraging, membership in United Cafeteria & Restaurant Workers,
Local 471, United Federal Workers of America, C. I O. or any other labor
organization of its employees by discharging or refusing to reinstate any of his
employees, or by discriminating in any other manner in regard to their hire
and tenure of employment, or any term or condition of employment ;
(b) In any other manner interfering with, restraining, or coercing his em-
ployees in the exercise of the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective,
bargaining or other mutual aid or protection, as guaranteed in Section 7 of the
Act
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Offer to William Alexander, Jr. and to Alberta Elizabeth Washington
immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and privileges ;
(b) Make whole William Alexander, Jr., Alberta Elizabeth Washington, and
Lizzie Jones for any losses of pay they may have suffered by reason of the
respondent's discrimination against them by payment to each of them of a
sum of money equal to the amount which each normally would have earned
as wages: (1) in the cases of William Alexander, Jr. and Alberta Elizabeth
Washington, from the date upon which each was discharged to the date of offer
of reinstatement, less net earnings of each during said periods," and (2) in the
case of Lizzie Jones from the date upon which she was discharged to the date
upon which she was reinstated, less her net earnings during said period,` in-
cluding in all such payments the amount each of said employees normally
would have received as tips, to be computed in the manner set forth above in
the section entitled "The remedy."
1,1 See footnote 48, supra.
52 See footnote 48, supra.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post immediately in conspicuous places throughout the Sea Grill, and
maintain for a period of at least sixty (60) consecutive days from the date of
posting, notices to the employees stating: (1) that the respondent will not
engage in the conduct from which it is recommended that he cease and desist
in paragraph 1 (a) and (b) of these recommendations; (2) that the respond-
ent will take the affirmative action set forth in paragraph 2 (a) and (b) of
these recommendations; and (3) that the respondent's employees are free to
remain or become members of United Cafeteria & Restaurant Workers, Local
471, United Federal Workers of America, C. I. 0, and that the respondent will
not discriminate against any employee because of his membership or activity
in that organization;
(d) File with the Regional Director for the Fifth Region on or before ten (10)
days from the date of the receipt of this Intermediate Report, a report in
writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that he has complied with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 19,
1943-any party or counsel for the Board may within fifteen (15) days from
the date of the entry of the order transferring the case to the Board, pursuant
to Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington, D. C., an original and four copies of a
statement in writing setting forth such exceptions to the Intermediate Report
or to any other part of the record or proceeding (including rulings upon all
motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. Immediately upon the filing of such
statement of exceptions and/or brief, the party or counsel for the Board filing
the same shall serve a copy thereof upon each of the other parties and shall
file a copy with the Regional Director. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing within ten -(10) days from the date of the
order transferring the case to the Board.
DAvrD KABASICK,
Trial Examiner.
November 13, 1943