Progressive Cafeterias, Inc.

National Labor Relations Board - Board Decisions

May 21, 1969

176 N.L.R.B. 83 (N.L.R.B. 1969)

PROGRESSIVE CAFETERIAS
Progressive Cafeterias, Inc. and Local No. 21,
United Bakery Workers , affiliated with Retail,
Wholesale and Department Store Union,
AFL-CIO. Case 9-CA-4624
May 21, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On January 8, 1969, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. She
also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended the dismissal of such
allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
'Respondent has requested oral argument. This request is hereby denied
because the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
'Respondent has excepted to some of the Trial Examiners credibility
determinations alleging that the Trial Examiner was biased and prejudiced.
After a careful review of the record, we conclude that the credibility
findings are not contrary to the clear preponderance of all relevant
evidence and we find no basis for disturbing them. Standard Dry Wall
Products Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). Respondent
also accuses the Trial Examiner of having exhibited extreme personal bias
against Respondent in several other ways. Having carefully examined the
record, however, we conclude that these claims are without any real basis
or support. On the contrary, the record shows that the Trial Examiner
displayed fairness to, and patience with, Respondent's Counsel and that
she conducted the hearing in a judicial manner and made a thorough
appraisal of all the facts. We also specifically reject Respondent's
contention in its brief that the Trial Examiner prejudged the credibility of
persons who might have, but did not, appear as witnesses.
83
modified herein, and hereby orders that Respondent,
Progressive Cafeterias, Inc., Charleston, West
Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order, as so modified:
1. Add the following as paragraph 2(b), and
reletter the following paragraphs accordingly:
"(b) Notify the above-named employee if
presently serving in the Armed Forces of the United
States of her right to full reinstatement, upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces."
2. Add the following as the second indented
paragraph of the notice:
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of her right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS , Trial Examiner : This case was tried
before me at Charleston , West Virginia, on June 20 and
21, and August 27 and 28 , 1968, upon a complaint issued
against Respondent , Progressive Cafeterias , Inc., on April
30, 1968 . The complaint was based upon a charge filed on
February 13, 1968 , by Local No. 21, United Bakery
Workers, affiliated with Retail , Wholesale and
Department Store Union , AFL-CIO, herein called the
Union, and alleges that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act (1) by
permitting certain of its employees , between December 1,
1967, and February 2, 1968 , to use its business premises
to plan and solicit revocations of union dues checkoff
authorizations and union representation authorizations
from employees during working time ; (2) by assigning
more arduous working assignments to employees Ursula
Derringer and Gisela Forbes in January 1968 because of
their union sympathies , memberships and activities; and
(3) by the termination of employment of employee
Derringer on or about January 22, 1968, because of her
union sympathies , membership , and activities. Respondent
filed an answer , denying that it had engaged in any of the
unfair labor practices alleged.
All parties participated in the hearing and were
afforded full opportunity to be heard , to examine and
cross-examine witnesses and to introduce relevant
evidence . Toward the end of the second day of the
hearing , under circumstances hereinafter described, and
adjournment was granted to permit the General Counsel
to amend the complaint . The hearing was resumed on
August 27 and concluded on August 28 after Respondent's
counsel and representatives walked out of the hearing, as
described infra, and after the testimony of the General
Counsel 's last witness was completed and the General
Counsel rested his case.'
'A telegraphic request by Respondent for special permission to appeal
176 NLRB No. 9
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequent to the closing of the hearing, Respondent
filed various motions before the Board and/or the Trial
Examiner which have been denied. These motions and the
action of the Board and/or the Trial Examiner thereon
are summarized below.
On October 28, 1968, counsel for the General Counsel
and for Respondent filed briefs which have been carefully
considered. In its brief Respondent had renewed and
expanded upon the motions previously made. For the
reasons hereinafter stated , these motions are again denied.
Upon the entire record in this case and from my
observation of the demeanor of the witnesses as they
testified, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT
The complaint issued on April 30, 1968, alleges, and
Respondent ' s answer admits , that Respondent is an
Illinois corporation engaged in the enterprise of rendering
cafeteria and food services to industrial plants throughout
the United States ; that during the 12-month period
preceding the issuance of the complaint , which is a
representative period , Respondent had a direct inflow, in
interstate commerce , of goods and products valued in
excess of $50,000 , which it purchased and caused to be
shipped directly to its cafeteria operations located in West
Virginia from points outside that State . Respondent's
answer also admits , as alleged in the complaint, that at all
times material herein Respondent is, and has been, an
"employer" as defined in Section 2(2) of the Act, engaged
in "commerce" and in operations "affecting commerce"
as defined in Section 2(6) and (7) of the Act.
On the basis of these admitted facts , I find that
Respondent is an employer within the meaning of Section
2(2) of the Act, that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act, and that it
will effectuate the policies of the Act to assert jurisdiction
herein.
11, THE LABOR ORGANIZATION INVOLVED
The complaint alleges , Respondent's answer admits,
and I find that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
Ill. RESPONDENT'S VARIOUS MOTIONS TO DISMISS
AND/OR TO REOPEN THE HEARING
from a ruling of the Trial Examiner, dated August 27, 1968 , and various
motions and papers (excluding briefs ) filed subsequent to the closing of the
hearing on August 28 have been placed in a folder labeled "Trial
Examiner's Exhibits" and are identified therein as follows : Respondent's
telegraphic request to Board for special permission to appeal , "T.E.3",
Respondent ' s amended request for special permission to appeal, dated
August 30 , 1968, "T.E.4"; telegraphic order of Board , dated September 3,
1968, denying request for special permission to appeal, "T.E.5";
Respondent's motion to reopen record , filed September 6, 1968 , "T.E.6";
letter dated September 9, 1968 , from Chief Trial Examiner to
Respondent 's counsel , "T.E.7"; letter dated September 12, 1968, from
Respondent 's counsel to Chief Trial Examiner , "T.E.8"; telegraphic order
of Trial Examiner , dated October 1, 1968, denying motion to reopen
record , "T.E.9"; Respondent 's second motion to reopen record, dated
October 4, 1968, "T. E.10", Trial Examiner 's order , dated October 7, 1968,
denying Respondent 's second motion to reopen record , "T E. I 1".
A. Respondent's Motion to Dismiss the Complaint
because of the General Counsel's Failure to Name
Union Carbide Corporation as a Party Respondent
Although failing to mention the matter at the
commencement of the hearing when the Trial Examiner
requested counsel to give their views as to the issues
involved in this case, counsel for Respondent, on the
second day of the hearing, and after the General Counsel
and the Union had concluded their direct examination of
the alleged discriminatee, Derringer, moved to dismiss the
complaint on the ground that another party, Union
Carbide Corporation (herein called Carbide) had not been
joined in the complaint as a necessary party. The motion
was made on the basis of testimony indicating that
Respondent operated its cafeteria business upon the
property of Carbide which owned everything on the
premises except the food in the freezer and refrigerator;
that Carbide had hired several summer students to work
in the cafeteria for the summer of 1967;' that article IX,
section 4, of the collective-bargaining agreement between
the Union and Respondent provided that Carbide "shall
have the prerogative . . . to accept or reject any .
employee [of Respondent] for work on [Carbide's]
premises on the basis of security, health, morals, safety or
other reasons as determined by [Carbide]"; and that a
letter dated April 22, 1968, from M. A. Goldman,
Superintendent of Office and Material Services at Carbide
to the Board attorney who was then investigating the
charge against Respondent, states inter alia , that although
Carbide had nothing to do with having Derringer
discharged, it had "no reason to doubt that it was
warranted and would object to her being reemployed."'
Despite the General Counsel's contention that the letter
should not be construed as indicating that Carbide would
object to the reinstatement of Derringer or do anything to
prevent Respondent from complying with a Board order
requiring Respondent to reinstate Derringer should
Respondent be found to have violated the statute, the
Trial Examiner was then of the view that if Derringer's
discharge were found to be discriminatorily motivated,
Carbide should be joined as a party Respondent in order
that an effective reinstatement remedy could be provided.'
The Trial Examiner announced that the hearing was being
adjourned until July 16 to give the General Counsel an
opportunity, if he wished, to bring in Carbide as an
additional party. The Trial Examiner stated: "If the
General Counsel fails by that time to amend the
complaint in order to bring in this additional party, in the
absence of any compelling reasons shown to me in the
meantime why I should not do so, I at this time would be
inclined to grant the Respondent's motion to dismiss."
On July 7, counsel for the General Counsel, Gravitt,
requested a postponement of the hearing to August 20 due
to the fact that he was entering a hospital for immediate
surgery. This postponement was granted without
opposition. A further postponement to August 27 for the
reopened hearing was granted, without opposition, at the
'Summer students are expressly excluded from the bargaining unit under
the collective bargaining contract between the Union and the Respondent,
and they are not involved in any of the alleged unfair labor practices.
'A copy of this letter was in the hands of Respondent ' s counsel, who
called it to the Trial Examiner ' s attention and introduced it in evidence in
connection with his motion to dismiss.
'In his brief, the General Counsel has moved to correct an error in the
transcript of record on page 280 , line 23, by changing "part of
Respondent" to "party Respondent ." This motion, being unopposed and in
accordance with the recollection of the Trial Examiner , is hereby granted.
PROGRESSIVE CAFETERIAS
request of Respondent's counsel.
On August 7, the General Counsel (John R. McGill
acting for and on behalf of Cassius B. Gravitt, counsel for
the General Counsel) moved to amend the complaint (1)
by adding Carbide's name as a "Party in Interest" in the
caption of the complaint; (2) by adding to paragraph 2 of
the complaint the following subparagraph (d):
At all times material herein, there has been in effect a
written agreement between Respondent and Carbide
which agreement provides that employees of
Respondent shall be subject to an investigation and
approval by Carbide and that the said employees shall
also be subject to all rules and regulations which are in
force by Carbide at any time for the purposes of safety,
security and protection.
and also by adding to paragraph 2, a subparagraph (e)
setting forth the provision of the collective-bargaining
agreement between Respondent and the Union
hereinabove referred to.'
The motion to amend was granted by the Trial
Examiner on August 9. Thereafter Carbide on August 16,
acting through its counsel, Jack P. Simpson, filed with the
Board a "Request for Special Permission to Appeal from
Trial Examiner' s Ruling ." The Board, by telegram dated
August 26, denied this request but stated that Carbide
"may renew its position before the Trial Examiner after
resumption of hearing."
At the reopened hearing on August 27, Carbide,
through its attorney, Jack P. Simpson, appeared and
moved to strike that part of the complaint which added
Carbide as a party in interest. He stated that Carbide had
"no interest in these proceedings" and would "abide by
the outcome." He asserted: "We are not in the position of
the Employer nor do we want to be and we have no
objections, if a violation is found on Progressive's part, of
their rehiring the discriminatee." He reiterated this
position several times during the lengthy argument on his
motion to strike. In explanation of a letter written by him
to the Board ' s Regional Director on July 9 in which he
said, inter alia , that if Derringer "violated independent
regulations of Union Carbide of sufficient gravity that
Union Carbide would normally exclude from its premises,
Union Carbide would have to exclude her," Simpson
stated that "violations of [Carbide's] security regulations .
are not grounds for Progressive to take action, it will
be Carbide's actions independently." In response to a
contention by Respondent's counsel, Keiler, that the final
straw in Respondent's decision to discharge Derringer was
her appearance at the plant on January 19 carrying a
large handbag in violation of both Carbide's and
Respondent's rules, Simpson stated that Carbide has no
regulation forbidding the carrying of large handbags and
that Carbide has not charged Derringer with a violation of
any of its rules. Simpson read into the record what he
stated, and the General Counsel stipulated, was from
paragraph 10 of the contract between Respondent and
Carbide, which reads as follows:
.All personnel engaged in the performance of the
Cafeteria service shall be fully trained and highly
proficient at their appointed tasks, and shall be
'In its brief to the Trial Examiner filed on October 28, 1968, Respondent
moves to dismiss the complaint for the further reason that the General
Counsel failed to amend the complaint by July 16, the date originally set
by the Trial Examiner . This motion is denied To have dismissed the
complaint for that reason , under the circumstances outlined above , would,
in the view of the Trial Examiner, have been prejudicial error.
85
obtained and compensated (including all taxes and
contributions measured by wages, salaries and other
remunerations) by Caterer [Progressive] and shall at all
times be under the exclusive and direct control of the
Caterer, except that prior to employment they shall be
subject to an investigation and approval by the
Company [Carbide]. Said employees shall, prior to the
performing of services in the operation of the Cafeteria
and from time to time thereafter as designated by the
Company, submit themselves to a physician designated
by the Company for the purpose of determining their
freedom from disease, the cost of such examination
shall be borne by the Company. Any employee who the
physician conducting such an examination shall
determine not free from disease shall not be employed
by the Caterer in this service. The Caterer and Caterer's
employees shall be subject to all rules and regulations
which are enforced by the Company at any time for the
purposes of safety, security and protection.
Simpson pointed out that under the contract, Carbide
does not, in fact, have the broad right to accept or reject
Respondent's employees described in the Union's contract
with Respondent. Respondent's counsel, while not joining
in the stipulation respecting the authenticity of the quoted
provision of the contract between Carbide and
Respondent, did not then and does not now contend that
Simpson's reading of the contract was inaccurate. In these
circumstances, I accept Simpson's statement regarding
Carbide's contract with Respondent, to which the General
Counsel stipulated, as an accurate recital of the pertinent
contract provision.
After duly considering the arguments of all counsel, the
Trial Examiner granted Carbide's motion to strike its
name from the complaint as a party in interest.
Respondent's counsel conceded that Carbide in fact had
nothing to do with Derringer's discharge. Other than to
argue that despite Carbide's present assurances, it could
change its mind in the future and prevent Respondent
from fully complying with a remedial order, Respondent
has not demonstrated how Respondent could possibly be
prejudiced by the Trial Examiner' s ruling .6 Under the
principles stated by the Supreme Court in Regal Knitwear
Company v. N.L.R.B., 324 U.S. 9, 14, and in accordance
with the provisions of Rule 65 (d) of the Federal Rules of
Civil Procedure, any remedial order issued herein will be
binding on those having knowledge of the order and
identified with Respondent in interest or in privity with
Respondent. The Trial Examiner has directed that a copy
of the Recommended Order be served upon Carbide and,
under the circumstances of this case, Carbide would
appear bound by such order under the above cited
authorities. But, in any event, if Carbide should attempt
to prevent Respondent from complying with the
Recommended Order, the General Counsel is not without
means of then taking action to insure compliance with any
'Although , in my view, the record does not establish that Respondent
and Carbide are joint employers of the employees covered by the unit
certified by the Board as appropriate - as Respondent contended on the
second day of the hearing and thereafter - I would nevertheless be of the
view that Carbide , even if it were a joint employer, is not a necessary party
to this proceeding in which it has been established that only Respondent
took the action which is alleged to be in violation of the statute and
Carbide has expressly stated on the record that it will not oppose
compliance by Respondent with any remedial order . Indeed , even if more
than one person is responsible for wrongful conduct , an action may
properly be maintained against one, some, or all of these engaging in the
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board order against Respondent.'
B. Respondent Walks out of the Hearing After the
Trial Examiner Denies his Motion to Adjourn the
Hearing Pending Attempted Appeal to Board and
Ruling of Board
When the Trial Examiner announced at the hearing
that she was granting Carbide's motion to strike its name
from the complaint as a party in interest, Respondent's
counsel announced that he would request special
permission from the Board to appeal from the Trial
Examiner's ruling and requested an adjournment of the
hearing for this purpose. The Trial Examiner agreed to
adjourn the hearing only from about 3 p.m. on August 27
until 9 a.m. the following morning and for the dual
purpose of providing the parties an opportunity, requested
by them, to discuss a proposed settlement of the case and
to permit Respondent ' s counsel to send to the Board a
telegraphic request for permission to appeal. She made it
clear at that time that if the case was not settled (as it was
not), the hearing would proceed on the following morning.
Counsel for Respondent thereupon stated: "Let me say for
the record now that I will not be here at 9 o'clock
tomorrow morning . If you want to make a summary
judgment from that then you may but I will not be here at
9 o'clock tomorrow morning." Respondent's counsel did,
however, appear at the hearing on the following morning,
presented to the Trial Examiner a copy of his telegraphic
request to the Board and moved that the hearing be
adjourned until the Board should grant or deny his request
for permission to appeal. The Trial Examiner again
denied the motion to adjourn, whereupon Respondent's
counsel walked out of the hearing. The testimony was
then completed, a date was set for the filing of briefs and
the hearing was closed.
C. The Board Denies Respondent's Request for
Special Permission to Appeal from the Trial
Examiner 's Ruling
On September 3, 1968, Respondent filed with the Board
an amended request for Special Permission to Appeal
from a Ruling by the Trial Examiner and Points in
Authority. On the same day the Board, by telegram,
denied Respondent's request for special permission to
appeal and stated that "Respondent may renew its
position in any exceptions filed to the Trial Examiner's
Decision."
D. Respondent's First Motion to Reopen the Record
On September 6, 1968, Respondent filed with the office
of the Trial Examiners a motion to reopen the record (1)
"to adduce essential and previously unavailable evidence
with respect to Board jurisdiction" and (2) to permit
Respondent "to cross-examine alleged discriminatee
wrongful conduct. Restatement of the Law, Torts, Ch. 44, Sec. 882.
Although the Board, in its discretion, may dismiss a complaint against one
of several joint employers where others of those joint employers have
refused to permit reinstatement of a discrimmatorily discharged employee
(Bell Oil and Gas Co, I NLRB 562, 588), no such situation exists here.
'In addition to a court decree enforcing a Board order against
Respondent, which the Trial Examiner believes would be binding upon
Carbide, other alternatives exist, such as an independent unfair labor
practice charge against Carbide based upon its action in preventing
compliance by Respondent or proceedings under Sec. 12 of the Act.
Contrary to Respondent's argument, the limitations proviso to Sec. 10(b)
of the Act could not start running against Carbide until and unless Carbide
takes somelaction which could be considered an unfair labor practice
Ursula Derringer and to adduce testimony in defense of
the charges contained in the complaint." The Trial
Examiner was on vacation at the time this motion was
filed, but after her return she issued an order on October
1, 1968 denying the motion to reopen because, with
respect to item (1), Respondent did not state the
additional evidence which it sought to adduce or describe
it with sufficient particularity to permit the Trial
Examiner to determine whether, if presented, the evidence
would be material or essential, or whether, if credited, it
would require a different result and because, with respect
to item (2), Respondent had been given full opportunity at
the hearing to examine and cross-examine witnesses,
including Ursula Derringer, and to adduce testimony in
defense of the allegations in the complaint and had not
stated good cause for failing to complete any defense it
may have had.
E. Respondent's Second Motion to Reopen the
Record
On October 4, 1968, Respondent filed with the Trial
Examiner a second motion to reopen the record, alleging
as reason therefor that about December 31, 1967, prior to
the occurrence of any of the unfair labor practices alleged,
Respondent was "legally dissolved" and ceased to exist;
and that its business, since about January 1, 1968, has
been operated by The Macke Company of West Virginia.
Respondent further alleged that since Macke was not
joined in the complaint, the complaint should be
d ism issed.
On October 7, 1968, the Trial Examiner issued an order
denying the motion to reopen for the following reasons:
1. Following the issuance on April 30, 1968, of a
complaint against the Respondent, Progressive
Cafeterias, Inc., said Respondent, acting by and
through its present counsel, filed an answer on May 8,
1968, expressly admitting, as alleged in the complaint,
that it "is an Illinois Corporation" and an "employer"
engaged in commerce within the meaning of Section 2,
subsections (2), (6) and (7) of the National Labor
Relations Act.
2. On June 20, 1968, the first day of the hearing in
this case, the same Respondent, which now alleges that
it does not exist, appeared by its present counsel and
participated in the hearing on that and succeeding days,
not once suggesting that it was merely a phantom
without legal existence.
3. Respondent, through its same counsel, explained
in an opening statement at the commencement of the
hearing that Respondent "is solely owned" by Macke
and upon several occasions at the hearing Respondent's
counsel or a witness referred to Macke and Macke's
wholly owned Progressive Cafeterias, Inc.,
interchangeably as one and the same enterprise.
Respondent's counsel, Keiler, in his opening statement
in defense of the unfair labor practice charges against
Respondent, stated "that Macke Company has had no
unfair labor charges issued against it in any of its
corporate enterprises throughout the country; and in
this very case, there was a consent election, ... Macke
didn't try to stall anything - ." Thereafter, when the
witness, Forbes, testified that she was employed by
Macke Company, she explained that she meant
Progressive Cafeterias.[' ]
'The latter finding, which Respondent in its brief to the Trial Examiner
states is inaccurate , is supported by the following testimony of Forbes:
PROGRESSIVE CAFETERIAS 87
4. Gladys S. Hutchinson , called by the General
Counsel under Rule 43 (b) as a managing agent of
Respondent , testified without contradiction that she is
unit manager of Progressive Cafeterias , Inc., at the
location ivolved in this case , that she is responsible for
the operation of that cafeteria , that she has authority to
hire and discharge employees and that she did, in fact,
discharge the employee alleged in the complaint to have
been discriminatorily discharged.[' ]
5. Respondent has not shown why the evidence it
now seeks to adduce was "previously unavailable" as it
alleges and why such evidence could not have been
introduced at the hearing in this case.
6. Respondent ' s motion is apparently based on the
alleged fact that it ceased to exist as a corporate entity
about December 31, 1967; but Respondent ' s admissions
in its pleadings and at the hearing as well as the
testimony adduced show that it continued to exist as an
employer and as a going business enterprise . " It is the
employing industry that is sought to be regulated and
brought within the corrective and remedial provision of
the Act in the interest of industrial peace ." (N.L.R.B.
v. Colten , 105 F.2d 179, 183 (C.A. 6)),• and the
employing industry is not relieved of liability for any
unfair labor practices it may have engaged in merely
because its status as a corporation may have been
dissolved or because it may have changed form
(Southport Petroleum Co. v. N.L.R.B., 315 U .S. 100).
Moreover , should an order issue against Respondent
after a decision on the merits of this case, such order
would be binding on all persons in active concert or
participation with Respondent who received actual
notice of the order (Regal Knitwear Company v.
N.L.R.B., 324 U. S. 9) and the Trial Examiner does not
anticipate that Macke or any other person will seek to
preclude Respondent from complying with a remedial
order should such an order be issued.
Respondent has renewed its motion in its brief to the
Trial Examiner . For the reasons stated above , this motion
is again denied.
F. Respondent's Recital in its Brief of Testimony it
Failed to Adduce at the Hearing
In its brief Respondent summarizes in some detail
testimony pertaining to the merits of the unfair labor
practice charges which , it asserts , its witnesses would give
if now permitted to testify. Respondent states that this
testimony should be received "to rectify the denial of
Respondent's rights to due process." I shall treat this as a
further motion to reopen the record for the purpose of
adducing additional evidence regarding the unfair labor
practices alleged in the complaint . This motion is again
denied for the reasons stated in response to Respondent's
Q. Where are you employed?
A. Macke Company.
Q. What' s the name of it?
TRIAL EXAMINER : Employed by whom?
THE WITNESS : Macke Company , Cafeteria.
TRIAL EXAMINER: Macke Cafeteria?
MR. GRAVIrr: That's Progressive Cafeterias.
Q. (By Mr. Gravitt): Are you employed by them?
A. Yes, sir.
'In addition , it is noted that in an affidavit given by Hutchinson on April
5, 1968 , to a Board agent investigating the charge , she stated ; " I am the
Unit Manager of Unit 53 , Progressive Cafeterias, Inc., located at the
South Charleston Plant of Union Carbide . I have been employed there in
that position since November 15, 1967."
first motion to reopen the record, namely, that
Respondent was given full opportunity at the hearing to
examine and cross-examine witnesses and to adduce
testimony in defense of the allegations in the complaint
and has not stated good cause for failing to complete any
defense it may have had.
IV. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges and the General Counsel
contends that Respondent violated Section 8(a)(1) and (3)
of the Act (1) by assigning more arduous work to Union
Steward Ursula Derringer and her sister, Gisela Forbes, in
January 1968 because of their union membership and
activities; (2) by discriminatorily discharging Derringer on
January 22, 1968; and (3) by permitting certain
employees, during working hours between December 1967
and February 1968, to plan and solicit revocations of
union dues checkoff authorizations and representation
authorizations from the employees. Since all of these
charges are related to the principal issue, whether
Derringer 's discharge was discriminatorily motivated, they
will be considered together below in a recitation of the
evidentiary facts.
A. The Evidentiary Facts
Ursula Derringer, whose alleged discriminatory
discharge is here involved, worked for Respondent from
October 1965 until her discharge on January 22, 1968.
Prior to a representation election on January 22, 1967 and
the Union's certification on February 1, 1967, Derringer
was chairman of the Union' s organizing committee. She
was a union observer at the election and thereafter served
as chairman of the employee bargaining committee during
the contract negotiations . She, along with the other two
employee members of the bargaining committee -
Norma Lemon and Delores Henson - and the Union's
Regional Director, G. A. Hughes, signed a 3 year
collective- bargaining agreement with Respondent on July
31, 1967.
Subsequent to the Union's certification, at a joint
meeting of the Union membership for employees of
Respondent's Bell Unit and its Unit 53 at Union Carbide
Technical Center in South Charleston, where Derringer
worked, Derringer was elected financial secretary of the
Union and shop steward at Unit 53." She was serving in
those capacities at the time of her discharge.
Prior to November 15, 1967, when Gladys Hutchinson
became the new unit manager at the cafeteria, Derringer
had no difficulty in the handling of grievances for
employees. There had been no need to file any written
grievances because, as Derringer testified , management
always found time to sit down and settle problems as they
arose and after an oral discussion.
Hutchinson had worked for The Macke Company
enterprises , of which Respondent was a wholly owned
subsidiary, for about 9 years prior to being assigned to the
Unit 53 cafeteria in South Charleston as its unit manager.
She had 14 employees under her there. It was the largest
cafeteria Respondent had and she regarded her manager's
position there as a promotion. She had authority to hire
"The Union members present at first elected Derringer's sister , Gisela
Forbes, as the shop steward at Unit 53 but when the employees there (who
had been absent from the union meeting) learned of this action, they
caused another meeting to be held and selected Derringer instead of Forbes
as their shop steward.
88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and fire employees and was responsible for the operation
of the cafeteria . Immediately above her in the
management hierarchy was District Manager Funderburk
who had about six other cafeterias in addition to the
South Charleston one under his general supervision.
The relations between Hutchinson and Derringer
apparently began to deteriorate about December 1, 1967.
These relations , culminating in Derringer ' s discharge on
January 22, 1968, can, I believe, best be understood by a
recital , in chronological order where possible, of the
incidents preceding the discharge.
Early in the morning of December 1 , Hutchinson called
a meeting of all her employees at which she explained
what she expected of them and what they could expect of
her. She also explained Respondent ' s policies and rules
and regulations and told them that she "was a stickler for
regulations" and that everyone would be expected to
follow them "to a `T'." She told the employees that there
was too much horseplay going on in the cafeteria and that
she was going to give out some new work schedules. She
invited the employees to come and talk with her about
any problems they had.
A number of the employees did thereafter come to
Hutchinson's office from time to time and talk to her.
One of the first was Union Steward Derringer. According
to Hutchinson, during the afternoon of December 1 and
before Hutchinson had learned that Derringer was the
Union 's steward at the cafeteria , Derringer came to her
office to talk and left Hutchinson with the impression that
Derringer was attempting to take over her job of
operating the cafeteria ." Although Hutchinson testified
that Derringer told her that if she , Hutchinson, would run
the cafeteria the way Derringer wanted it run , the two of
them would get along fine, I am satisfied that Hutchinson
meant only to characterize Derringer ' s advice and not to
indicate that Derringer had used that blunt language. In
her statement given to the Board agent investigating the
charges which had been filed , Hutchinson does not
mention the statement attributed to Derringer in
Hutchinson 's testimony and instead purports to describe
advice given by Derringer against allowing certain people
to run the cafeteria , and statements made by Derringer as
to what was wrong with the operation of the cafeteria and
what should be done about it . According to Hutchinson,
she thanked Derringer and told her that she , Hutchinson,
would be running the cafeteria." Derringer emphatically
denied making any statement of the nature about which
Hutchinson testified. She placed the date of her first
meeting with Hutchinson as on or about December 4 or 5
when Derringer went to Hutchinson 's office to complain
about the slowness of the helper on Derringer ' s meat line.
However well intentioned Derringer ' s statements to
Hutchinson may have been at their first meeting , it seems
clear that Hutchinson considered them as an unwarranted
interference with Hutchinson 's management of the
cafeteria.
On one occasion , about December 4, Hutchinson
watched Derringer from her office window for 10 minutes
as Derringer was drinking a cup of coffee and talking to
employees Forbes and Henson (both union members)
"Hutchinson testified that after November 15 she read the union
contract which she found in her desk and learned what were the duties of a
union steward but she did not state when she learned that Derringer was
the steward.
"Hutchinson's sworn statement, made in the presence of one of
Respondent 's counsel , was received in evidence at the request of the
General Counsel , without objection by Respondent.
while they were making sandwiches. Hutchinson came out
of her office and asked Derringer: "Ursula, can't you find
some work to do?" Derringer then returned to her work
station. As Hutchinson testifed, Respondent has placed a
coffee cart in its cafeteria because it wants its employees
to feel free to have a cup of coffee when they have a few
minutes to spare . There was no set time as to when they
could drink coffee or as to how long they should take.
Hutchinson, however, felt that 10 minutes was an
excessive amount of time for drinking coffee. Both
Derringer and Forbes credibly testified that they observed
employees Hager and Lemon take frequent coffee breaks
and drink coffee in the office with Hutchinson or the
cashier or office girl, Catherine Peck. Forbes testifed that
Hager sometimes stayed in the office as long as 10 or 15
minutes at a time while drinking coffee but that
Hutchinson would give Forbes a "hateful" look if Forbes,
even started to drink a cup of coffee.
On or about December 6, as Hutchinson testified,
Derringer came to the office door and announced to
Hutchinson that she was going to be forced to file a
grievance against Hutchinson for discriminating against
union employees. Derringer did file such a grivance but at
a later date , as shown below.
On or about December 12, Derringer presented to
Hutchinson a written grievance protesting as unjust the
discharge of a union member, Judy Taylor, on December
ll. When receiving the grievance , Hutchinson merely
looked at Derringer and said "Huh." Hutchinson later
returned the grievance to Derringer with an explanation
written thereon as to the reasons for Taylor' s discharge.
On or about December 22, Hutchinson found Derringer
sitting in a corner behind a reserved section of the
cafeteria smoking a cigarette . Hutchinson testified that
posted rules forbid smoking except during the employees'
lunch time but that Hutchinson had never objected to the
employees taking a quick smoke at other times in the rest
room . Hutchinson said nothing to Derringer about
observing her smoking in the cafeteria on December 22.
About January 1, 1968, Hutchinson started keeping
notes on the activities of Derringer and other employees
under her . Derringer also recorded notes from time to
time in a little black book which she kept in the pocket of
her uniform and Hutchinson observed her writing in it
upon one occasion . Derringer recorded , among other
things , the time when employees left their work station
and how long they were gone . It is not clear from the
record whether Derringer told Hutchinson about this
booklet on December 6, the date mentioned in
Hutchinson's affidavit, or at a later date, perhaps about
January 8 when employee Francis Hager reported to
Hutchinson that Derringer had been watching her for an
hour.
Hager , as Hutchinson testified , was a frequent visitor to
Hutchinson's office." In late December or early January,
she came to Hutchinson to inquire about how she should
proceed to draw up a petition for the signature of
employees desiring to withdraw from the Union.
Hutchinson told Hager that she could not discuss the
matter with Hager. Hutchinson observed Hager talking to
other employees out in the cafeteria between December 1,
1967, and February 2, 1968, on numerous occasions
during working time . (She estimated that this occurred
between once and 12 times a day.) But, as Hutchinson
explained, there are no rules and regulations against
employees talking to each other. She testified that she
"Derringer estimated that Hager was in Hutchinson 's office about 10
PROGRESSIVE CAFETERIAS
kept no record of these occasions so long as the talking
did not interfere with the employees' work.
Nevertheless, on January 4, 1968, when Hutchinson
observed Derringer talking to the bus boy while following
him around as he was working in the dining room, she
called Derringer into her office and warned her not to
harass employees and interfere with their duties.
In the early part of January, Hutchinson posted on the
inside door to the toilet a note requesting employees to
bring in smaller handbags or face the embarrassment of
having their bags checked by Hutchinson. On a
Wednesday, January 3, Derringer went to Hutchinson's
office and asked: "Mrs. Hutchinson, would it be all right
with you if I keep on bringing my pocketbook which I
have right now and you checking it every night?"
Hutchinson replied: "No, let's be fair and get a smaller
one and you keep your big one outside if you want to and
bring a smaller one in if you think it's necessary and don't
let's check it every night; but since today's Wednesday,
you have 2 more days left in this week, why don't you buy
one over the weekend and bring one in Monday.""
Derringer did buy a small pocketbook that weekend and
brought it to work on the following Monday.
On or about January 8 employees Hager and Lemon
brought to Hutchinson a letter signed by several
employees, including Hager and Lemon, stating that they
wanted to withdraw from the Union and have their union
dues checkoff discontinued. They asked Hutchinson to
send the letter to Respondent's home office and
Hutchinson did so.16
On January 11, Hutchinson handed out new work
schedules to all the employees as she had stated earlier
that she would do. In making out these new schedules,
Hutchinson testified that she increased the duties of those
employees who she "felt had too much time on their
hands." In her affidavit she stated, "In fact, it seemed
that everyone in the place was doing too much loafing and
that's why I made out the schedules." Among those
employees who had their work loads increased were
Derringer and her sister, Forbes, also a union member.16
At that time one employee, Marion Riffle, was transferred
to another unit of Respondent' s cafeterias and her work
was divided between Forbes and Derringer. Both
Derringer and Forbes complained to Hutchinson that they
could not do all the work on their new schedules. She told
both to try. Later, after both continued to complain to
times a day.
"My finding that the above described conversation with Hutchinson
occurred on January 3 is based upon Derringer's testimony that it occurred
on a Wednesday in early January and prior to the time new work
schedules were handed out. It is established by the record that the new
work schedules were handed out on Thursday , January 11 , and that
Derringer , because of her little boy's illness and hospitalization , was not at
work on the following Monday, January 15 . This finding as to the date is
also consistent with Forbes' testimony that her sister was the first
employee to get a new small pocketbook and that Derringer had explained
to Forbes that she wanted no trouble with Hutchinson about the matter. It
is also consistent with Union Representative Hughes' testimony that
Derringer called him in the first part of January about the handbag
requirement and complained that the union employees were required to
carry smaller purses while the other girls were still carrying their bigger
ones.
"Hutchinson at first testified that on the same morning she saw these
employees give Derringer what Hutchinson assumed to be a copy of the
same document which Hutchinson had received , then later changed her
testimony to say that she had not seen this but that her office girl,
Catherine Peck , had informed Hutchinson that the document had been
given to Derringer during the latter 's "noon hour" and that Peck had been
asked to be a witness to the presentation.
89
Hutchinson and also complained to Funderburk, some
changes were made, relieving them of some but not all of
their increased work loads. Several days after the new
schedules were handed out, Forbes called Hutchinson's
attention to the fact that the other girls had finished their
work by 3 p.m. while she was half killing herself to, finish
by 3:30 p.m., the regular quitting time. Hutchinson
replied, "You can do it.""
On Thursday evening, January 11, when Derringer went
home, she found her little boy very ill. According to her
credited testimony, she immediately informed Hutchinson
by telephone that because of her child's illness she would
be unable to report for work the next day. The following
day her child's condition became worse and he was rushed
to a hospital and was still hospitalized on the following
Monday morning. Derringer stayed with her child
throughout this period and on Monday morning, while at
the hospital, called Hutchinson to report that she was still
unable to come to work on account of her son' s illness.
Hutchinson replied that Derringer should have called a
little sooner so that she could put someone else in
Derringer's working area and asked Derringer to be sure
to call Hutchinson early when she planned to return to
work so that Hutchinson could make appropriate
arrangements with a substitute worker. She thanked
Derringer for calling.'8
Derringer returned to work either on Wednesday,
January 17 (according to Derringer's testimony) or on
January 16 (according to Hutchinson's testimony). I do
not find it necessary to resolve this conflict, for either
witness could have made an honest mistake in her
testimony in this respect and the precise date is not vital
to any issue in this case.
On Thursday, January 18, Derringer presented to
Hutchinson her second written grievance. This grievance
charged Respondent with discriminating against union
members.
On the next morning, Friday, January 19, when
Derringer came to work and started checking the
uniforms in her locker, she discovered a can of salmon
hidden beneath one of the uniforms. She immediately
showed this to her sister, Forbes, and after the two had
consulted together about what they considered an obvious
attempt by someone to frame Derringer, Derringer
reported the matter by telephone to Union Representative
Hughes. Upon his advice, Derringer sought out
Hutchinson and showed her what was under the uniforms
in the locker.19 Derringer refused to touch the can. She
stated that someone was trying to frame her. Forbes
"Derringer testified that union committee member Delores Henson
requested Derringer to speak to Funderburk about her new schedule but no
other evidence regarding Henson 's new schedule was adduced.
"Forbes, after telling Hutchinson that she was going to resign from the
Union , on April 16, 1968, signed a paper which Hager had prepared,
stating that she no longer wished to be represented by the Union or have
her dues deducted from her paycheck. Since then, according to Forbes'
undenied and credited testimony , she has been able to spend more time at
the coffee cart, can wear an ornamental ring which Hutchinson had
previously forbidden her to wear , and has been carrying a bigger
pocketbook . A few weeks before the hearing in this case , she had been
transferred to work as vegetable cook, a better paying job.
"Hutchinson 's testimony , while not constituting a specific denial that
Derringer called about her son 's illness in the evening of January 11,
appears to indicate that Derringer did not call Hutchinson until the
afternoon of Monday , January 15, and that "this was one of the straws
that led up to her discharge ." I am satisfied that Derringer ' s account,
given in convincing detail, reflects substantially what happened.
"In its brief Respondent suggests that Derringer may have staged the
incident . But aside from the inherent unlikelihood of such a scheme,
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
suggested that fingerprints be taken but Hutchinson said
that too many people 's prints could legally be on the can.
There was some discussion about who had keys to
Derringer 's locker. Hutchinson remarked that only she
herself and Derringer had a key to the locker and
Derringer stated that only Hutchinson had the key to the
stockroom where cans of salmon were kept . 30 Derringer
asked Hutchinson , "Mrs. Hutchinson , what do you have
against me or my work? If you have , please tell me; and if
I don 't do my job right , tell me and I will try to do
better ."" Hutchinson replied that she had no complaint
about Derringer ' s work but that she felt that Derringer
was hanging around like a big cat with paws ready to put
on her.
Hutchinson placed the can of salmon in a plastic bag
and took it upstairs . When Derringer asked Hutchinson
what she was going to do about the incident , Hutchinson
replied, "Nothing." She asked Derringer and Forbes to
tell no one about it and to forget it. When Forbes talked
with District Manager Funderburk, who was then in the
cafeteria, about the salmon incident and suggested that
the police be called, he told her to forget it and not
mention it to anyone.22
Hutchinson testified that she had scheduled her first
inspection of the lockers for the day of the salmon can
incident but that no one except herself knew of the
planned inspection until after Derringer showed her the
salmon can and she, Hutchinson , went upstairs and told
District Manager Funderburk, who had come in for
breakfast , about the incident and remarked to him that it
"was strange that this had happened on the day [she] had
the locker inspection scheduled ." Hutchinson postponed
the planned inspection because , as she explained, "The
whole incident just sort of floored me."
According to Hutchinson, she decided on January 19 to
discharge Derringer but, because of Derringer 's length of
service with Respondent , she waited until Monday,
January 22, to talk over her decision with Funderburk
before actually discharging Derringer . Funderburk, after
having breakfast at the cafeteria on Friday, had
apparently left for the day.
I told her that she had been warned on four separate
occasions about harassing employees and interfering
with their work , that she had been warned once by Mrs.
Crowe and Mrs. Hauser [apparently former unit
managers] together . She had been warned once by Mr.
Funderburk and she had been warned on two separate
Hughes ' credible testimony that Derringer was weeping as she told hun
about the matter and Hutchinson 's testimony that Derringer appeared
upset as she told Hutchinson about it , is inconsistent with any such theory.
I have no hesitancy in rejecting this suggestion by Respondent 's counsel.
"The key to the stockroom was kept in Hutchinson 's office but, as she
testified , she permitted all employees to borrow it for the purpose of
getting things out of the stockroom.
"The above quotation is from Derringer 's testimony. Hutchinson
testified that although she could not place the date, Derringer did tell
Hutchinson that if she , Derringer, did anything wrong , that Hutchinson
should tell her and she would correct it and do the best she could.
"The findings regarding the salmon incident are based upon a composite
and, for the most part , undisputed testimony of Hutchinson , Derringer,
Forbes and Hughes . Hutchinson testified that she was not sure whether
this occurred on January 19 or at an earlier date . Although at one point
Derringer 's testimony could be interpreted as placing the incident as
occurring on the morning after her return from her son 's illness , she later
testified positively that it occurred on Friday , the 19th . This would appear
consistent with Hughes' testimony that Derringer called him about the
matter a day or two before her discharge . The finding that Hutchinson
compared Derringer with a big cat is based upon the mutually
corroborative testimony of Derringer and Forbes.
occasions by me. She had disregarded these, and we
were dismissing her.
According to Hutchinson, Derringer said "Thank you"
and walked out after signing a receipt for her wages,
which were paid in cash.23
Derringer gave a different account of the discharge
interview. She testified:
Mrs. Hutchinson opened up and said, "We decided that
you don't see everything our way; we can't see it your
way. You have been warned by Mrs. Crowe, Mrs.
Hauser, Mr. Funderburk and myself not to discuss any
union business on Company time and we will have to
let you go. Here's your money up to today, please, will
you sign.
Derringer thereupon signed a receipt for the money, said
"Thank you, Mrs. Hutchinson" and left.
Union Representative Hughes ' testimony regarding the
reasons assigned by Respondent on January 30, 1968, at a
hearing on the grievance filed because of the discharge is
consistent with Derringer 's version of the reasons assigned
to her. Hughes credibly testified that Funderburk stated at
this meeting that Derringer was discharged "because she
discussed too much union business on Company time." 26
I am convinced that this was also the reasons assigned to
Derringer on January 22 and that the discharge interview
occurred substantially as testified to by her.25
Although Hutchinson testified that she knew Derringer
had been talking about the Union at work, she did not at
the hearing assign this factor as a reason for Derringer's
discharge. She testified that Derringer's recent absence on
the occasion of the illness and hospitalization of her small
son without proper notification to Hutchinson, was one of
the straws in her decision. She did not testify as to what
was the last straw but in her affidavit she stated that the
final straw was Derringer ' s appearance at work on
January 19 carrying her large handbag (about 18 inches
long and about 6 inches high), and Respondent's counsel,
Keiler , in his opening statement at the hearing mentioned
this as "the straw that broke the camel 's back."26 Even
assuming - despite the fact that there is no testimony to
that effect - that Derringer did bring her larger handbag
to work on January 19, I am convinced that such a factor
had nothing to do with Hutchinson's decision to discharge
"Hutchinson ' s testimony regarding this interview is not entirely
consistent with her affidavit given the Board agent on April 5, 1968. In the
affidavit she states that she told Derringer that she had "been warned on
four separate occasions about harassing the other employees and
dirregarding Company rules." (Emphasis supplied.)
"In attacking Hughes ' credibility, Respondent points out that Hughes
first placed the grievance meeting as occurring in February or March but
later placed it as on January 30 after reviewing his appointment book
during a recess ; that he did not testify accurately as to Funderburk's first
name ; that he at first incorrectly identified Hutchinson 's position ; and that
while at first mentioning Lemon as one of the employee representatives
t present at the grievance meeting, he later stated that he did not know for
sure whether she was present . I do not regard any of these matters as
affecting Hughes' credibility on the essential issues . He impressed me as a
sincere and honest man and I credit his version of the reasons assigned by
Funderburk at that meeting for Derringer 's discharge.
"In her affidavit, Hutchinson states that there was no mention of the
Union at the time of Derringer 's discharge . She added , however: "The
Union contract states that union business will not be conducted on
Company time. Girls in the past had complained to me about her talking
union business while on Company time." Hutchinson's characterization of
the union contract provision is not accurate . It merely provides: "All
meetings pertaining to grievances will be held at such time not to interfere
with the orderly and efficient operation of the unit."
"Hutchinson 's only testimony regarding handbags was in response to the
PROGRESSIVE CAFETERIAS
her. There is no evidence that Hutchinson mentioned
Derringer ' s handbag to her on that day, the date of the
salmon can incident , even though Derringer specifically
requested Hutchinson to let her know if she was doing
anything Hutchinson disapproved of. Furthermore, in
neither of Hutchinson 's versions of the discharge interview
with Derringer does she mention the subject of handbags.
It is noted , in addition , that Hutchinson's notice to the
employees requesting that they carry smaller handbags
had apprised them of no consequences for failure to
comply with the requirement other than the possibility
that they might be subjected to the embarrassment of
having their handbags checked . Moreover , as Forbes
credibly testified , a number of the employees were again
carrying large handbags prior to the hearing without
anything being said to them about it.
It is not clear from Hutchinson 's testimony just what
other alleged offenses , if any , Hutchinson meant to assign
as reasons for discharging Derringer , but she apparently
meant to include all those specific complaints about which
she testified and which have been summarized above,
namely : the fact that Derringer on December 4 had taken
10 minutes to drink a cup of coffee; the fact that on
December 22 she smoked a cigarette in an area where
smoking was forbidden (an event apparently not
considered sufficiently serious for Hutchinson to mention
to Derringer at that time ); the fact that Hutchinson once
observed Derringer writing in a little black book during
working time; the fact that on January 8 (the day Hager
and Lemon presented Hutchinson with the union
membership and checkoff authorization withdrawal letter),
Hager complained to Hutchinson that Derringer had been
watching her for an hour; and the fact that on January 4
Hutchinson had observed Derringer away from her work
station talking to the bus boy - an incident causing
Hutchinson to warn Derringer on that date against
harassing employees in general , though there was no
evidence that the bus boy ever complained of being
harassed.
B. Analysis and Conclusions
First , I shall consider the General Counsel 's contention
that Respondent violated the statute by permitting Francis
Hager and other employees , between December 1, 1967,
and February 2, 1968, to plan and solicit union
membership and dues checkoff authorization revocations
from other employees during working time . Although
Hutchinson conceded that she saw Hager talking to other
employees out in the cafeteria during working time on one
to a dozen times a day during this period and that Hager
in late December or early January had come to her for
advice about how to draw up a petition for the signature
of employees wishing to withdraw from the Union, she
denied knowing that Hager or anyone else was soliciting
revocations during working time. Indeed , the record does
not establish that they did this during working time. This
allegation of the complaint must therefore be dismissed.
Next , I turn to the General Counsel 's contention that
Respondent gave more arduous work assignments to
Derringer and Forbes on and after January 11, 1968
because of their union sympathies, memberships and
General Counsel 's question whether she ever told Derringer that her
handbag was too large . Hutchinson replied that she did; that the handbag
was in fact too large - though no regulations specified what would be
considered too large ; and that Hutchinson had asked all employees, not
just Derringer , to bring smaller handbags to work.
91
activities . There is no question but that as a result of the
rescheduling of work assignments on January 11, both
Derringer and Forbes were given additional duties and
had to work harder thereafter to complete their assigned
tasks. Hutchinson acknowledged that she knew prior to
January 1l which of her employees belonged to the Union
and which did not but testified that their union
membership was not a consideration in her decision to
increase the duties of any employee . If, as she stated in
her affidavit , "everyone in the place was doing too much
loafing ," it would seem only fair that all should have had
their duties increased when work was rescheduled and one
of the employees was transferred to another unit.
However , while others were finishing their tasks 30
minutes early, Derringer and Forbes had to work hard
until quitting time . Derringer was even required to work
overtime without extra pay one day when Hutchinson
accused her of using work time while talking to District
Manager Funderburk . A fair appraisal of all the evidence
convinces me and I find that Derringer and Forbes were
assigned more arduous duties on and after January 11
because of their continued allegiance to the Union.
Let us now turn to the General Counsel ' s contention
that Respondent was motivated by unlawful considerations
in discharging Derringer on January 22 . Derringer was an
active and agressive union steward who did not hesitate to
tell Hutchinson about her own as well as other employees'
grievances . She had been able to settle grievances with
Respondent 's previous unit managers after informal
discussions with them but had found it necessary twice to
file formal written grievances with the new unit manager,
Hutchinson . The latter , I am convinced , resented these
actions by Derringer - which were clearly protected
concerted and union activites - and considered them as
an interference with Hutchinson 's operation of the
cafeteria . The spearheading of an antiunion movement by
employees Hager and Lemon at about the time
Hutchinson took over the operation of the cafeteria and
their frequent visits to Hutchinson's office tended to cause
some friction between them and Derringer , but instead of
attempting to reconcile these factions , Hutchinson,
proceeded to help Hager and Lemon discourage continued
support of the Union , first by making work more arduous
and less pleasant for Derringer and her sister , and finally
by discharging Derringer.
Hutchinson conceded that Derringer ' s work was not
unsatisfactory and that she was a good worker so long as
she was kept busy . Due to her little boy 's illness,
Derringer worked only 3 or 4 days between January 11,
when the new heavy work schedule was given her and
January 19 when Hutchinson decided to discharge her,
and there can be no doubt that she was kept busy on
those days . The record as a whole leaves me with no
doubt but that Hutchinson , in making her decision to
discharge Derringer , was motivated by a determination to
rid the cafeteria of its most ardent and aggressive union
member . Derringer on January 18 had filed a written
grievance charging Hutchinson with discrimination against
union members . This , I believe, was the final determining
factor in Hutchinson ' s decision. On January 19, when
Derringer discovered the can of salmon in her locker and
asked Hutchinson to please tell her what she had against
Derringer or her work , Hutchinson had replied that she
had nothing against Derringer ' s work but felt that
Derringer was hanging around her like a big cat ready to
place her paws on Hutchinson . The analogy to a big cat, I
infer , was a reference to Derringer's diligence as a union
steward in protecting herself and other employees against
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what Derringer considered discriminatory treatment of
union members , as evidenced in part by Derringer ' s filing
of the grievance on the preceding day." Moreover, the
shifting positions asserted by Hutchinson as to the reasons
she assigned to Derringer for her discharge, and the
specious nature of some of the reasons asserted by
Hutchinson in her testimony shown supra, make it clear
that these reasons were mere pretexts.
I am convinced and find that Respondent terminated
Derringer 's employment on January 22 because of her
union membership and activities and for the purpose of
discouraging membership in the Union.
CONCLUSIONS OF LAW
1. Ey imposing more arduous working conditions upon
employees Derringer and Forbes because of their
membership in and support of the Union , Respondent has
discriminated in regard to their terms and conditions of
employment , in violation of Section 8(a)(3) and (1) of the
Act.
2. By discharging Ursula Derringer because of her
union membership and activities , Respondent has
discriminated against her to discourage membership in the
Union, in violation of Section 8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. The General Counsel has not established by a
preponderance of the evidence that Respondent violated
the Act by permitting employees during working time to
plan and solicit revocations of union dues checkoff and
union representation authorizations , as alleged in the
complaint.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(aX3) and (1) of the Act, my Recommended Order will
require that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
To remedy the discriminatory discharge of Derringer,
my Recommended Order will require that Respondent
offer her reinstatement to her former or substantially
equivalent position , without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of pay suffered by reason of the discrimination
against her . Such backpay shall be computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, and shall
include interest at the rate of 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in this case , and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended , it is hereby ordered that Respondent,
Progressive Cafeterias , Inc., its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Imposing more arduous working conditions upon
employees because of their membership or activities in
behalf of Local No. 21, United Bakery Workers , affiliated
with Retail , Wholesale and Department Store Union,
AFL-CIO.
(b) Discharging or otherwise discriminating in regard to
the hire or tenure of employment of or any term or
condition of employment of any employee because of his
union membership or activities.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of the rights guaranteed
them under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer to Ursula Derringer reinstatement to her
former or substantially equivalent position , without
prejudice to her seniority or other rights and privileges,
and make her whole in the manner described in the
portion of the Trial Examiner ' s Decision entitled "The
Remedy" for any loss of earnings suffered by reason of
the discrimination against her.
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll and other records necessary or helpful in analyzing
the amount of backpay due under the terms of this Order.
(c) Post at its Unit 53 Cafeteria located at the Union
Carbide Technical Center in South Charleston, West
Virginia , copies of the attached notice marked
"Appendix ." " Copies of such notice , on forms to be
provided by the Regional Director for Region 9, after
being duly signed by an authorized representative of
Respondent , shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places , including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered , defaced or covered by
any other material.
(d) Notify the Regional Director for Region 9, in
writing , within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith."
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges that Respondent violated
the Act by permitting certain employees during working
hours to plan and solicit revocations of union checkoff
authorizations and representation authorizations.
"The General Counsel urged at the hearing, and Union Representative
Hughes asserted at a grievance meeting following Derringer 's discharge,
that Respondent sought on January 19 to frame her and thereby provide
an ostensible excuse for discharging her, by having the can of salmon
placed in her locker that morning , and that this plan was frustrated when
Derringer discovered the can before Hutchinson began her scheduled
inspection of lockers . I do not regard it as necessary, however , to attempt
to allocate responsibility for this obvious attempt to entrap Derringer or to
speculate on Hutchinson 's or Funderburk 's reasons for declining to make
any effort to investigate the matter.
"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 a United States
Court of Appeals , 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 1:0 days from the date of this Order , what steps Respondent
has taken to comply herewith."
PROGRESSIVE CAFETERIAS 93
APPENDIX
NOTICE To ALL EMPLOYEES
We are posting this notice in compliance with the
Recommended Order of a Trial Examiner of the National
Labor Relations Board who , after a hearing in which all
parties had an opportunity to present their evidence, found
that we had violated the law. We hereby notify our
employees that:
WE WILL offer to Ursula Derringer immediate and
full reinstatement to her former or substantially
equivalent position , without prejudice to her seniority or
other rights and privileges previously enjoyed, and give
her whatever backpay she has lost because of her
discharge on January 22, 1968.
WE WILL NOT by rescheduling work assignments or
in any other way impose more arduous working
conditions upon any employees because of their
membership in, sympathy for or activities in behalf of
Local No. 21, United Bakery Workers , affiliated with
Retail , Wholesale and Department Store Union,
AFL-CIO.
WE WILL NOT in any other way interfere with our
employees ' right , guaranteed under the law, to join or
assist the Union , to present grievances , to bargain
through the Union , to act together for their mutual aid
or protection, or to refuse to do any of these things.
Dated By
PROGRESSIVE
CAFETERIAS, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office , Room 2407,
Federal Office Building , 550 Main Street , Cincinnati,
Ohio , Telephone 513-684-3663.