Stouffer Restaurant and Inn Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 336 (N.L.R.B. 1974)

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stouffer Restaurant and Inn Corporation and Hotel,
Motel & Restaurant Employees Union, Local 151,
AFL-CIO. Case 10-CA-10281
April 29, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On January 8, 1974, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge except
as modified herein, and to adopt his recommended
Order.
The Administrative Law Judge found that Supervi-
sor Bacon's inquiry of employee Dennard on July 9,
1973, if she knew anything about the Union and
statement to her that "no other Stouffer's but one
had a union" violated Section 8(a)(1) of the Act. We
find merit in Respondent's exception to this finding.
The complaint alleged a number of 8(a)(1) viola-
tions by certain of Respondent's supervisors on
certain dates but made no reference to any conduct
by Bacon on July 9. It was thus specific in alleging
the dates on which a supervisor's conduct was
alleged as violative of the Act and was not couched
in language reasonably susceptible to the interpreta-
tion that any incidents occurring on other dates were
additional violations. Although Respondent was able
to cross-examine the witness testifying about the
incident and able to put on a rebuttal witness, it does
not appear that the issue was fully litigated in these
circumstances. Rather the record indicates that the
evidence relating to the incident was introduced as
background evidence to determine the purpose of a
meeting Bacon later set up between Dennard,
employee Crowley, General Manager Welty, and
Resident Manager Fox at which Welty was alleged to
have unlawfully interrogated Dennard. Hence it was
merely incidental to the issue concerning the alleged
violation by Welty. Furthermore the General Coun-
1 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge . It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
sel neither sought to amend the complaint to allege a
violation based on the incident nor contended the
incident constituted a violation in his brief to the
Administrative Law Judge.
Under these circumstances, we must conclude that
the question of whether Bacon's question and
statement to Dennard violated Section 8(axl) of the
Act was not properly before the Administrative Law
Judge. Accordingly, we shall reverse the Administra-
tive Law Judge's finding that a violation occurred
with respect thereto.
Respondent takes exception to the Administrative
Law Judge's conclusion that General Manager
Welty's July 9 inquiry as to whether employee
Dennard previously belonged to a union and where
she joined it violated Section 8(a)(l) of the Act. We
find merit in this exception and accordingly reverse
this finding by the Administrative Law Judge.
The record reveals that on July 9 Welty and
Resident Manager Fox had a meeting with employ-
ees Dennard and Hornsby. The initial portion of the
meeting consisted of a discussion of operational
problems of the hotel during which the employees
raised complaints about the inadequacy of supplies
(linen, soap, stationery, etc.) and the feeding situa-
tion (quality and variety of food, available eating
areas, etc). Welty promised to look into their
complaints.
At a point in the conversation the topic turned to
unionism and Welty asked Dennard, who had been
wearing a union button and who was prominent in
the Union's organizing efforts, whether she had
previously belonged to a union. When she replied in
the affirmative he asked her "where about" and
Dennard gave the name of the employer for whom
she worked when previously a union member. There
then followed a discussion on the subject of unionism
in general, which the Administrative Law Judge did
not find to involve coercive statement. The Adminis-
trative Law Judge apparently reasoned however that
Welty's initial inquiry constituted coercive interroga-
tion. We do not agree.
The record reveals that both Dennard and Horns-
by made no attempt to conceal their support for the
Union and in fact openly wore union buttons. In this
context we conclude that Welty's question was no
more than an introductory one to the discussion of
unionism in general. We therefore find, contrary to
the Administrative Law Judge, that Welty's question
did not violate Section 8(a)(1) of the Act.2
Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 Member Jenkins would affirm the Administrative Law Judge in finding
both of the violations which are here dismissed . Bacon's interrogation of
Reid was in fact fully litigated, to the extent it is difficult to see what further
(Continued)
210 NLRB No. 49
STOUFFER RESTAURANT & INN CORPORATION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Stouffer Restaurant
and Inn Corporation, Atlanta, Georgia, its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order.
litigation would have been possible. There is thus no denial of due process
to Respondent in finding the violation . The interrogation of Dennard about
her prior union activities and the location of them is not excused by the fact
that Dennard was an open supporter of the Union , nor by the fact that
further discussion of unionism in general occurred
DECISION
SAMUEL M. SINGER, Administrative Law Judge: This
proceeding, with all parties represented, was heard before
me in Atlanta, Georgia, on October 23-25, pursuant to
charges filed July 17 and complaint issued September 17,
1973.1 The issue litigated was whether Respondent,
through certain conduct (including interrogation, surveil-
lance, promises of benefits , and threats of reprisals)
interfered with, restrained, or coerced employees in
violation of Section 8(axl) of the National Labor Rela-
tions Act, as amended.
All parties appeared and were afforded full opportunity
to be heard, examine and cross-examine witnesses, and
introduce evidence . Briefs were received from General
Counsel and Respondent on December 3. Upon the entire
record2 and from my observation of the testimonial
demeanor of the witnesses , I make the following:
FINDINGS AND CONCLUSIONS
I. BUSINESS OF RESPONDENT; THE LABOR
ORGANIZATION INVOLVED
Respondent , an Ohio corporation with office and place
of business in Atlanta, Georgia, is engaged in the business
of lodging and feeding transient guests . During the 9-
month period preceding issuance of the complaint,
Respondent 's gross revenues exceeded $500,000 ; and its
purchases directly from suppliers outside Georgia exceeded
$50,000. I find, as Respondent admits , that at all material
times it has been and is engaged in commerce within the
meaning of the Act.
Hotel, Motel & Restaurant Employees Union, Local 151,
AFL-CIO (Union), is a labor organization within the
meaning of the Act.
1 Unless otherwise noted , all dates refer to 1973.
7 Transcript corrected by my order on notice dated November 30.
s A "banquet houseman" sets up and readies rooms for meetings,
banquets, and other functions.
4 The above findings are based primarily upon the testimony of Bacon,
to the extent credited. Both Bacon and Reid impressed me as witnesses
prone to exaggerate and shape their testimony to advance their interests-
II. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Introduction ; managerial hierarchy
337
Respondent, operating some 13 inns as well as numerous
restaurants around the country, opened its Atlanta facility
(the one here involved) on October 2, 1972. That inn or
hotel has three main departments ; (a) room division-han-
dling housekeeping, laundry, maintenance , and front desk;
(b) food and beverage-handling restaurants and cocktail
lounge ; and (c) accounting . Roy Welty, general manager,
is the "number one" man, and Thomas Fox, resident
manager in charge of the room division , the "number two"
man. Among the other managerial officials involved in this
proceeding are Gene Perkins, room service supervisor;
William Tillery, laundry room supervisor ; and Clifford
Bacon, banquet service assistant.
2. Supervisor Bacon's May 10 conversation with
employee Reid
In April or May 1973, the Union began to organize
Respondent's employees . Among the most active employee
organizers was Lawyer Reid, a banquet houseman working
under Bacon .3 Bacon testified that "[e]verybody knew" of
Reid's union role and that he personally saw Reid passing
out union cards.
On May 10, Reid and Bacon had a general discussion
about Reid's job in the hotel and his role in the Union.
Reid complained that he was hard pressed for money and
needed a better paid job (specifically mentioning the bell
staff), and indicated that he was having second thoughts
about the Union because he was "losing a lot of time"
without being compensated for it." Bacon said that "if they
[the Union] think you are valuable enough to them, I'm
sure they will pay you. What I would do is have a
confrontation with them." Reid then asked "how bad,
Stouffer's wanted the union stopped"-indicating that he
had "quite a bit of influence with the black people." When
Reid asked if Bacon could set up a meeting with General
Manager Welty, Bacon said he would do that so "you [i.e.,
Reid] can tell him in your own words exactly what you
want to do and how you want to do it." Bacon also said
that so far as the bellman position was concerned, he
would be glad to transfer Reid to any department that
would have him, but that Reid would have to discuss the
matter directly with Welty.4
In the course of his conversation with Reid, Bacon asked
him how the Union was coming along, how many cards the
Union had, and "who were some of the people that signed
cards ." When Reid said he "couldn 't tell" him, Bacon
commented, "Well, I understand that." 5
-Bacon that of his Employer and Reid that of the Union by which he was
employed (as paid organizer) at the time of the hearing . I do not credit
Reid's testimony to the effect that Bacon had offered him a bellman
position , his testimony on this point being unconvincing. To begin with,
Bacon, as banquet service assistant , was hardly in a position to make such
offer
S Based on Reid's credited testimony. Although Bacon could not
(Continued)
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. General Manager Welty's June 8 meeting with
Reid
Bacon testified that he reported to General Manager
Welty that Reid "was sort of dissatisfied with the union
and . . . wanted to talk to [Welty]."8 On June 8, Welty
met with Reid and, among other things , discussed Reid's
dire financial situation , his desire to transfer to the bell
staff for which he had sought Bacon's assistance,7 and
Reid's union activities . Welty testified credibly:
Following our general discussion on general topics, I
told Lawyer Reid that Mr. Bacon had told me that
Lawyer had questions in his mind as to his continuing
union activities and Lawyer did admit to this in this
meeting. . . . He wasn't sure whether he had done the
right thing in having a number of employees sign cards.
He told me that he had been successful in getting
employees to sign cards and he could be just as
successful in getting the employees to change their
mind . However, he stated it was a problem to him as to
how he could do this when one time he told the
employees he thought it was a good idea to sign a card
and then for him to go back to them the second time
and tell them, no, it's not a good idea.... And I
related to Lawyer Reid that people can make mistakes.
You can make errors . One of the biggest things a
person can do is to admit to themselves, hey, I made a
mistake and to admit it and not be hesitant to go back
and tell somebody, I made a mistake . This wasn't
something that anyone should be ashamed of. Actually,
it would improve a person's stature in other eyes if a
man is big enough to admit he made a mistake or error
in judgement. He now had a different view or better
view or something that had caused him to change his
mind.... He wasn't sure . He wasn't entirely sure of
this at that time and I gave him some examples of
where people had changed their mind, where they will
think differently about something at different times.
In giving "examples of where people have changed their
mind," Welty cited the case of Larry Moore, at the time an
assistant bell captain and supervisor at Stouffer, who, while
employed at another Atlanta hotel (Marriott Motor), was
active in the Union but then abandoned it. Moore again
became active in the Union when it began to organize
Respondent. Reid testified credibly and without substan-
.remember" mqumng "as to any signature cards that [Reid ] had been
obtaining" and "how many cards had been signed ," he did not explicitly
deny making these inquiries.
6 According to Welty, Bacon said that Reid "had second thoughts"
about his union activity, that Reid "didn't really know what he was going to
get out of it," and that Reid "felt that maybe he had made a mistake and
... wanted to talk to [Welty] about it."T
According to Reid, he would have earned $50 more a week as bellman,
mostly in ups.
8 1 do not credit Reid's further testimony that Welty in the June 8
conversation, like Supervisor Bacon in the prior May 10 conversation
supra, In. 4), also offered Reid a bellman position . In both cases, I rely not
only on the comparative demeanor of the witnesses , but on the inherent
probabilities . That Welty made no such offer is evidenced by Reid's own
testimony that several days after his June 8 conversation with Welty (on
June 13), Reid complained to Bacon that Respondent had hired two new
bellmen without offering the job to him although (in Reid 's words) "I had
already applied" for the position. Reid subsequently also complained to
tial contradiction that Welty asked him if he was "aware
. that Larry Moore was active in . . . union organizing
[at Marriott]"; and whether he knew that Moore "was
demoted from the position which he held there in the hotel
and . . . was also fired from the hotel." When Reid
disclaimed knowledge , Welty "went on to then say that this
is why, I think, that Larry has come here to Stouffer's and
taken his frustrations out on Stouffer 's because of his
past." Welty added that the fact that Moore was married to
a black woman "is a part of his personal frustration." He
then said that these "past frustrations" impelled Moore to
become "so active in the union" at Stouffer; and that "if I
had known this guy before he came to the hotel I never
would have hired him."
Also according to Reid, Welty stated that he could not
understand why another Stouffer employee, Karen Long
(infra, sec. A, 7), had become "so active in the Union" since
he had granted her request to transfer from waitress to
bellhop and felt that she "seemingly got everything she
wanted.""
4. Welty's request that Reid give a statement to
Respondent's attorney
On June 7, the Union filed a petition for an election
among Respondent's employees in an appropriate unit.
While the petition was pending, Respondent sought an
administrative determination that the Union 's showing of
interest was tainted by the prounion activities of Larry
Moore, then a supervisor (assistant bell captain). On July
3, General Manager Welty asked Reid whether he would
be willing "to testify to our lawyer" that Moore had
engaged in union activities . Welty asked whether he
recalled that the Company had posted a notice to the effect
that "any supervisor or any member of management that
engaged in union activities would be subject to dismissal or
firing." When Reid said he "did remember ," Welty said,
"all I want, just tell the attorney what you know about
Larry's activities in the union and we can have him fired."8
The record indicates that Reid did not give the requested
statement.io
5. Interrogation of employees Dennard and
Hornsby by Company Officials Bacon , Welty, and
Fox
a. On July 9, as she was getting off the elevator , Carrie
Welty that he "was supposed to get the nextjob ," but Welty disputed this,
saying that he "wasn't under that impression ." Welty testified that he told
Reid that apart from the fact that Reid "wasn 't there when the openings
became available," Reid would first have had to improve his attendance
and tardiness record before he could even be considered for a bellman
position . Reid admitted that he had been "tardy or late numerous times"
and that management had complained about this.
9 Based on Reid's credited testimony . While Welty admitted asking Reid
for a statement concerning Moore's union activities , he denied telling Reid
that he wanted the statement so that Moore could be fired. According to
Welty, he did not tell Reid why the Company wanted the statement, nor
advised him that he had the right to decline giving one.
10 The Regional Director in the representation proceeding found that the
Union had made an adequate showing of interest without counting the
cards allegedly obtained by Moore and dismissed Respondent's contention
that the petition was "tainted ." The election had not been conducted at the
time of the instant hearing.
STOUFFER RESTAURANT & INN CORPORATION 339
Dennard, a floor supervisor, working under Executive
Housekeeper Baranski,11 stopped Supervisor Bacon on the
floor. Dennard complained that she was "having prob-
lems" with her girls and was not getting the "backing" of
Mrs. Baranski in rectifying her complaints. Bacon suggest-
ed that she talk to General Manager Welty, volunteering to
arrange a meeting with him. When Dennard indicated that
she wanted two other "inspectresses" present, Bacon said
that this was agreeable . During the conversation Bacon
asked Dennard if she knew "anything about the Union,"
adding that "no other Stouffer's but one had a union."
Bacon had previously seen Dennard wear a union
button.12
b. Later on the same day, Dennard and inspectress
Hornsby met with General Manager Welty and Resident
Manager Fox in the ballroom. Welty testified that because
he and Fox "were aware" that the two employees had been
wearing union buttons, they were "somewhat apprehensive
and a little bit nervous as to why they wanted the meeting
[and] what the content of the meeting was going to be." At
the outset of the meeting the two employees mentioned
their problems with the maids on the floor and the failure
of Mrs. Baranski to back them up when the maids got out
of line . They also complained about inadequacy of supplies
(linen , soap, stationery, etc.) and the "feeding situation"
(quality and variety of food, available eating areas, etc.).
Welty "promised" to look into their "complaints." In the
course of the 20- or 30-minute meeting, Welty asked
Dennard whether she had previously belonged to a union.
When she said "yes," Welty asked "where about" and
Dennard named the employer. To Welty's inquiry what the
Union had done for her, Dennard said that it had helped
her get a raise and better job. Welty then said that the
union organizers were from out of town (Chicago, Detroit,
Miami) and that when they call a strike they would not be
around; that they lived in "fine houses" and drove "big
cars" and had "criminal records"; and that the employees'
union dues would be higher than the Union had indicated
they would be. Welty offered to show Dennard and
Hornsby the kind of contract the Union had signed with
another hotel in Atlanta.13
6. Supervisor Tillery's conversations with
employees Crowley and Thomas
Employee Crowley, a houseman , 14 testified that while in
the employees ' elevator on May 25 or 26 Tillery, supervisor
of the laundry department, observed her union button and
asked if she was "going to join that thing." When she
answered, "yes," Tillery asked whether she knew that
General Manager Welty "could fire [her] for that."
Employee Jo Ann Thomas, another houseman, testified
that in mid-June Tillery made a similar remark. Pointing to
the union pin on her uniform, Tillery asked if she was "in
the Union." When she answered she was, Tillery said "it
was best for [her] to get out of the Union before we [were]
all . . . fired."
Tillery denied the conversations attributed to him,
asserting that he did not even know a Jo Ann Thomas. He
acknowledged that he was in daily "contact" with as many
as 300 employees. While first disclaiming any conversa-
tions whatsoever "insofar as union activities" are concerned
-including on such matters as whether employees "could
not join or could join" a union 15-he later admitted calling
at least one meeting of employees in his department to tell
them that "[a]nytime they had a question [he] could
reasonably answer [he] would do so," whether it involved
"Union or anything pertaining to their job." Based on
inherent probabilities, as well as comparative demeanor of
the witnesses,16 I credit the testimony of Crowley and
Thomas rather than that of Tillery.
7. Supervisor Perkins' conversations with employee
Long
a. Karen Long, a bellhop, testified that on May 15
Room Service Manager Perkins asked her if she signed a
card, "who else [she] had signed up," and what she knew
"about a union." Perkins went on to say that "even if the
Union got in . . . [the employees] wouldn't get more
benefits" and that the Company "could fire anybody they
wanted to." 17 Perkins admitted that he had "stopped"
Long to talk to her about the Union but claimed that he
only asked her if she was "familiar with hotel unions in
general." According to Perkins, he had been "suspicious
that maybe [Long] was a Union participant" and,
regarding himself "as a friend," told Long about the
disadvantages as well as benefits of unionization adding
that "I didn't want to see her get into something." Perkins
also testified that Long went into a discussion why
Respondent "needed the union very badly."
I credit the testimony of Long, who impressed me as an
u It was stipulated that a "floor supervisor" (who oversees or checks the
work of the maids , housemen, and inspectors) is a rank-and-file employee.
12 The above findings are based on credited portions of Dennard's and
Bacon's testimony . Bacon admitted that there "was some mention of the
union" in the conversation , but claimed it was raised by Dennard. Although
he could not recall what she said "about the union," he remembered her
saying that she "wanted to hear what Stouffer 's had to say or something,"
adding, "That was the gist of it ." While I credit Dennard as to the substance
of the conversation concerning the Union, I do not credit her testimony that
Bacon instituted it and that she had no "particular reason" for talking to
him on that day. She admitted complaining that her maids were not
following her "routine instructions" and "feeling" that Mrs Baranski
"wasn't backing" her.
13 The findings as to this meeting are based on credited portions of
testimony given by the participants. While Welty and Fox stressed the work
grievances raised by the two employees, the latter (Dennard and Hornsby)
stressed Welty's interrogations about a union. When asked by company
counsel whether "the subject of the Union" was discussed in the meeting,
Welty answered, "Not to my knowledge, no " Fox was more definitive in
responding to a like question on direct examination (he flatly stated that
there was "no discussion at all about the union"). His answer was more
guarded, however, on cross-examination when he replied , "I don't believe
so, no."
14 The duties of a "houseman" include hauling and supplying linen to
rooms and vacuuming floors.
is According to Tillery, he had attempted to adhere to Respondent's
"Do's and Don 'ts" instructions to supervisors
is Tillery gave the impression of studiously striving to avoid testifying
deterimentally to Respondent 's interests
17 The conversation took place in the Perkins home where Long was
briefly renting a room ; she had formerly worked for Respondent in Toledo,
Ohio.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
essentially truthful witness . Perkins appeared hesitant,
experiencing some difficulty in recalling the events.18
b. Long also testified that on May 18, while having
breakfast in the room service area with employee Smith (a
waiter), Perkins called Smith aside and asked him "if we
were talking about the Union" and Smith said "no."
Perkins then called Long aside and asked her the same
question. When Long denied talking union to Smith,
Perkins said that he did not want her "to solicit any of his
room service waiters," and that she "stay out of the room
service area." However, Perkins testified credibly that
Smith was on working tune in his work area listening to the
phone while on duty.19
8. Maitre d' Peters' alleged interrogation of
employee Stevenson
Stevenson testified that Justine Peters, the luncheon
maitre d' in the restaurant where he worked as a waiter,
had talked to him about the Union, but he was indefinite
and vague as to the content, as well as timing and number
of these conversations. Stevenson generally described
Peters' "questions . . . [as] directed toward the Union,
about what was happening, what meetings were taking
place, how I was doing with the Union." When pressed for
details, he stated that she "would ask" whether he was
attending meetings , whether he was being paid for securing
card signatures, and whether he was "allowed to wear a
union button." Unable to identify and separate one
conversation from another, he explained, "I have no
recollection . . . I don't have any idea what she said. I
remember what the conversations might have been about
but what was really said and what was said each time, how
many times, I don't recall."
Apart from my reservations as to Stevenson's reliability
as a witness ,20 I find that the statements he attributed to
Peters, even if credited, are not chargeable to Respondent
18 In an effort to discredit Long's denial that she was a paid employee of
the AFL-CIO, Respondent called as its witness Cathy Crouch, the secretary
at an apartment house (to which Long moved at the end of June), who
allegedly overheard a conversation between Long and her superior at the
apartment house. However, Crouch only testified that she overheard Long
say that she was "affiliated with AFL-CIO .. helping Stouffer's with a
labor problem they had." According to Crouch, she "did not bear [Long]
say she was paid by them."
19 1 do not credit Perkins' testimony that the Union was "not at all"
mentioned. Asked at one point whether he discussed the Union with Long,
he said, "Not to my knowledge, no, I don't recall anything " Asked further
whether he was "suspicious" that Long was talking to Smith about the
Union, Perkins answered, "No, no, I don't think so
20 In addition to Stevenson's vague and imprecise testimony, it is to be
noted that Stevenson was fired for repeated "tardiness"; charges alleging
that the discharge was discnminatorily motivated were dismissed by the
Regional Director.
21 This restaurant, "on top of the hotel" is to be distinguished from the
"Grog Shop" and "Coffee Grove" located on other floors
22 According to Food and Beverage Manager Burkett (Restaurant
Manager Marks' superior), this was routine company policy and if Peters
sent anyone home she did so at the manager's direction.
23 These findings as to Peters' duties and authority are based on the
credited testimony of Food and Beverage Department Manager Burkett
who impressed me as a forthright witness Peters (who left Respondent's
employ in September to return to school) did not testify. Stevenson's
testimony on Peters' functions and authority, like his other testimony, was
vague. While first claiming that Peters "supervised the waiters' activities at
lunch" on cross-examination he admitted that he was not really "familiar
with the duties of a supervisor " He also admitted that the restaurant
since the preponderance of credited evidence does not
support a finding that Peters was a supervisor as claimed
by General Counsel. Peters, a 22-year-old college student,
worked as a hostess until she became the luncheon maitre
d' at the "590 West Restaurant" 21 She worked under the
direction of Jim Marks , the day manager , and on Marks'
day off (or in emergencies when he was unavailable) under
George Burkett, Respondent's food and beverage depart-
ment head, so that Peters was "pretty much" covered at all
times in the restaurant . As maitre d', Peters would take
reservations, seat guests, set up lunch menus, help waiters
with bringing drinks and food to tables, and review menus
with waiters at the "lineup" before the dining room
opened . The restaurant manager, not Peters, assigned the
waiters to their stations and it was he who would send
waiters home who were late for "the lineup." 22 Peters had
no authority to hire, fire, transfer, promote , or discipline
employees 23
I find and conclude that General Counsel has failed to
establish that Peters was a supervisor or agent for whose
action Respondent is accountable . See The Little Rock
Downtowner, Inc., 145 NLRB 1286, 1289-91, enfd. 341
F.2d 1020 (C.A. 8, 1965), and cases therein cited . Even if,
as General Counsel claims, Peters' duties included sending
waiters home when tardy for lineups , this authority was of
a "routine" or "perfunctory" nature not "elevat[ing] a
rank-and-file employee into the supervisory ranks ." United
Resources, Inc. and Country Club of Miami Corporation, 200
NLRB No. 142 (JD)24
B. Conclusions
1. I find that Respondent, through its officials and
supervisors, engaged in interference, restraint, and coer-
cion, in violation of Section 8(a)(l) of the Act, by the
following acts and conduct:
a. General Manager Welty's statement to employee
manager (Marks daytime and Guy nighttime) would direct hun how to
perform and would reprimand him if he did not perform properly. Like
Burkett , Stevenson testified that it "was supposed to be standard
procedure" to send home waiters late for lineup , but claimed that this
"wasn't always carried out." He recalled two instances when Peters sent him
away for tardiness but there is no evidence that Peters did not first consult
the restaurant manager (Marks). Conceding that Marks brought about his
discharge for tardiness (supra, In. 20), Stevenson did not claim that Peters
played any role in the discharge.
24 At the conclusion of General Counsel's case and again after
Respondent adduced testimony, I dismissed the complaint allegation that
Respondent unlawfully threatened reprisals through Parada (Rocquemore)
Taylor, a personnel "supervisor," on the ground that General Counsel had
failed to make a showing that Taylor falls within the statutory definition of
supervisor. I adhere to my ruling. Insofar as appears, Taylor is no more than
a personnel clerk performing routine tasks such as recruiting and
interviewing job applicants and checking their references. Employee
Walker, the alleged target of her threat (she quoted Taylor as saying that she
"didn' t want . . a union" and that Walker "would lose" her job if she
joined one), herself testified that Taylor only gave her the job application
and related forms, "explained some of the things ... about insurance," and
after looking over the completed application referred her to others who
interviewed and hired her. It is clear that Taylor was neither a supervisor
nor an agent in a "strategic position to translate [to employees ] the policies
and desires of management . " The Little Rock Downtowner, Inc., supra
at 1290-91. "I"he fact that she identified her interests with those of
management insofar as the Union was concerned and acted in the interest
of Respondent-but insofar as it appears without Respondent's knowledge
or consent-did not make her an agent of Respondent so as to render
Respondent responsible for her conduct ." (/bid ).
STOUFFER RESTAURANT & INN CORPORATION 341
Reid in his June 8 interview with Reid (supra, sec. A,3) that
he would not have hired Larry Moore if he had known of
Moore's background and activities at his prior place of
employment (Marriott). Although Welty referred to non-
union related incidents in Moore's past, such as his
"personal frustrations " (a biracial marriage and a demo-
tion and discharge) he also stressed Moore's "active" role
in the prior organizational drive at Marriott. There is no
evidence that Moore was a Marriott supervisor at the time
(nor indeed that he was hired as supervisor and worked as
such at the outset of his employment at Respondent); in
any event, Welty based his resentment against Moore on
his union activities generally rather than on his union
activities as supervisor.25
b. Supervisor Bacon's May 10 questioning of Reid
about the Union as to how many cards the Union had, and
which employees had signed them (supra, sec. A,2), without
affording the employee proper safeguards such as freedom
from reprisals if his answers did not satisfy Respondent.
c. Bacon's July 9 inquiry to employee Dennard if she
knew anything about the Union, pointing out that "no
other Stouffer's but one had a union" (supra, sec. A,5,a).
d. General Manager Welty's July 9 inquiry to Dennard
as to whether she previously belonged to a union and
where she had joined one (supra, sec. A,5,b).
e. Supervisor Tillery's questioning of employee Crow-
ley in late May whether she was joining the Union, coupled
with the remark that General Manager Welty "could fire"
her for joining it (supra, sec. A,6).
f. Tillery's similar inquiry of Thomas in mid-June
whether she was "in the Union" and his warning that "it
was best for [her] to get out of the Union before we [were]
all . . . fired" (supra, sec. A,6).
g. Supervisor Perkins' May 15 interrogation of employ-
ee Karen Long as to whether she signed a union card,
"who else [she] had signed up," and what she knew "about
a union" ; and his further statement and warning that
"even if the Union got in ... [the employees] wouldn't get
more benefits" and the Company "could fire anybody they
wanted to" (supra, sec. A,7).26
2. I find that the following allegations in the complaint,
claimed to constitute interference, restraint, and coercion
violative of Section 8(a)(1), are not supported by the
record.
a. The allegation (complaint paragraph 11) that Gener-
al Manager Welty on June 8 "solicited individual employ-
ees to talk against the Union to fellow employees." The
credited evidence shows that Welty and employee Reid on
that date discussed Reid's uncertainty as to whether he
"had done the right thing" in convincing his fellow
employees to sign union cards; and that Welty pointed to
ways and means by which Reid could "save face" with his
fellow employees by leaving the Union-advice given by
Welty in response to the employee's inquiry and privileged
as free speech and legitimate argument.
b. The allegation (paragraph 13) that Supervisor Bacon
on May 10 and Welty on June 8 "promised increased pay
25 The statute does not, of course, protect a supervisor from discharge
because he engages in union activities See Texas Gulf Sulphur Company, 163
NLRB 88, 92-93
26 There is no ment in Respondent's contention (br, p 9) that Perkins'
statements should not be construed as coercive because Perkins , in whose
to its employees if they would talk against the Union." The
credited evidence shows that while Reid 's transfer to the
better paid bell staff position was touched on both times,
no promise or commitment of any kind was made to
Reid-certainly not as an inducement to dissuade fellow
employees from engaging in union activities.
c. The allegation (paragraph 8) that Welty on July 3
"threatened its employees with discharge" if they engaged
in union activities. According to General Counsel's witness
Reid, Welty on July 3 requested him to give a statement to
Respondent's attorney to the effect that Larry Moore
engaged in union activities so that he could have him fired.
Since Moore was at the time in question a supervisor, his
discharge for the stated reason was privileged (supra, fn.
25). There is no claim that Respondent had used undue or
unlawful pressure in soliciting Reid 's statement.
d. The allegation (paragraph 10) that Supervisor
Perkins on May 18 "created the impression of surveil-
lance" of union activities and engaged in other related
illegal acts. The credited evidence (supra, sec. A,7,b)
establishes that Perkins merely asked Karen Long whether
she was talking "union" with another employee (Smith)
while the latter was on worktime and that he further told
her not to solicit employees in his work area, presumably
under like circumstances-a legitimate and reasonable
employer inquiry and direction.
e. The allegation (paragraph 7) that Maitre d' Peters
interrogated employees. As noted (supra, sec. A,8), even
apart from my reservations as to the reliability of the
testimony of Stevenson (the only claimed target) on the
matter in issue, Peters was not a supervisor or agent for
whose coercive conduct Respondent is accountable (see
supra, sec. A,8).
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning
their union sympathies and activities, by threatening them
(directly and imphedly) with reprisals for engaging in such
activities, and by giving employees the impression of
futility of continued union adherence and activity, Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7,
in violation of Section 8(axl) of the Act.
2. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
3. It has not been established that Respondent has
violated Section 8(a)(1) of the Act by the conduct
described in section II,B,2.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend the customary cease
and desist order in cases of this nature, designed to
effectuate the policies of the Act.
home Long resided at the time , was a "friend ." Such statements "from a
friendly source may carry a greater aura of reliability and truthfulness and
may therefore in a sense be doubly effective ." Caster Mold & Machine Co.,
Inc., 148 NLRB 1614, 1621.
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record, and
pursuant to Section 10(c) of the Act, I hereby issue the
following:
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
ORDER 21
Respondent, Stouffer Restaurant and Inn Corporation,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from (a) coercively questioning
employees concerning their union sympathy and activity;
(b) directly or impliedly warning and threatening them
with reprisals for joining a union or engaging in union
activity; (c) coercively giving the impression of futility of
continued employee adherence to and activity on behalf of
their chosen labor organization; and (d) in any other like
or related manner interfering with, restraining, or coercing
employees in the exercise of any of their rights under
Section 7 of the Act.
2. Post in its premises, in Atlanta, Georgia, copies of
the attached notice marked "Appendix." 28 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's
authorized representative, shall be posted by it immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing 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.
3. Notify said Regional Director, in wrting, within 20
days from receipt of this Decision, what steps have been
taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be dismissed
in all other respects.
27 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and recommended order which follow
herein shall, as provided in Sec 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and Order, and
all objections thereto shall be deemed waived for all purposes.
28 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial before an Administrative Law Judge, at which
all sides had the chance to give evidence , it has been
decided that we have violated the National Labor
Relations Act, and we have been ordered to post this
notice.
WE WILL NOT coercively question our employees
concerning their union sympathies or activities.
WE WILL NOT, directly or indirectly, warn our
employees about reprisals (including discharge) for
joining a union or engaging in union activities.
WE WILL NOT coercively give our employees the
impression of futility of joining a union or engaging in
union activity.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce our employees in the exercise
of any of their rights under the Act.
STOUFFER RESTAURANT AND
INN CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Peachtree Building, Room 701 , 730 Peachtree Street, N.E.,
Atlanta, Georgia 30308 , Telephone 404-526-5750.