Stouffer Management Food Service, Inc.

National Labor Relations Board - Board Decisions

Jan 14, 1977

227 N.L.R.B. 1096 (N.L.R.B. 1977)

1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stouffer Management Food Service, Inc. and Local 25,
Hotel & Restaurant Employees Union, AFL-CIO.
Case 5-CA-7794
January 14, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 28, 1976, Administrative Law Judge
William F. Jacobs issued the attached Decision in
this proceeding. Thereafter, Respondent and Charg-
ing Party filed exceptions and supporting briefs, and
Respondent filed an answering brief to the Charging
Party's exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
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 the Respondent, Stouffer Manage-
ment Food Service, Inc., Washington, D.C., its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
' 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 Adminstrative 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, Inc, 91
NLRB 544 (1950), enfd 188 F .2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
WILLIAM F. JACOBS, Administrative Law Judge: A
hearing was held in this proceeding at Washington, D.C.,
on May 18 and 19, 1976.
On February 19, 1976, Local 25, Hotel & Restaurant
Employees Union, AFL-CIO (herein called the Union),
filed a charge in the instant case alleging that Stouffer
Management Food Service, Inc. (herein called Respon-
dent), violated Section 8(a)(1) and (3) of the Act. On April
5, 1976, complaint issued alleging that Respondent sus-
pended seven employees and later discharged two of the
seven because they engaged in protected concerted activi-
ties in violation of Section 8(a)(1). Respondent, in its
answer, admits the suspensions and discharges but avers
that such were effected for lawful reasons.
Based on the entire record, including my observation of
the witnesses and after giving due consideration to the
briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation having its principal
offices in Cleveland, Ohio,' is engaged in providing food
services for business, industry, and governmental agencies
in various cities of the United States, including the District
of Columbia, where it operated the cafeteria located in the
Department of Labor Building, the only location involved
in these proceedings. During the 12-month period immedi-
ately preceding issuance of the complaint, a representative
period, Respondent received in excess of $500,000 from the
retail sale of food. During the same period, it purchased
and received, in interstate commerce, food and vegetable
produce valued in excess of $50,000 from points outside the
District of Columbia. Respondent admits and I find that
Respondent is an employer within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that the Union is a labor
organization within the meaning of Section 2 (5) of the Act.
II. THE UNFAIR LABOR PRACTICES
During all times material herein, Respondent operated a
cafeteria on the sixth floor of the Department of Labor with
additional facilities located on the fifth floor of the same
building and across the street where the tax court is
situated.2 The individuals in charge of the operation were
Account Manager Alpha Cook and Food Production
Supervisor Joseph Thomas. Both were admitted in the
answer to be agents of Respondent and supervisors as
defined in the Act. Cafeteria hours were from 7:30 a.m.
until 3:30 p.m. The public was served breakfast from 7:30
a.m. until 9:45 a.m. and lunch from 11:30 a.m. until 2 p.m.
in the main cafeteria. The first employees reported for work
at 6:30 a.m., others at 7:30 a.m. Closing time was 3:30 p.m.
A. The Events of January 15, 19763
On the morning of January 15, the employees of
Respondent involved in the instant case reported for work
as usual . They changed into uniform in the locker room
which was adjacent to the rear portion of the kitchen and
i In accordance with Respondent 's answer as amended at the hearing.
2 Respondent is no longer engaged in the operation of these facilities
227 NLRB No. 163
3 Hereafter all dates refer to 1976 unless otherwise indicated
STOUFFER MANAGEMENT FOOD SERVICE 1097
performed their assigned duties until 10:50 a.m. at which
time they were scheduled to take their lunch break. At that
time certain of the employees took their lunch in the
cafeteria and then went to the locker room. Others went
directly to the locker room where they smoked, talked, and
relaxed before they were scheduled to return to their duties
at 11:20 a.m. All seven of the employees who were
eventually suspended were in the locker room at one time
or another during the lunch break on January 15 although
employee Mines was there for dust a brief period. Little or
no testimony was offered by General Counsel during its
case in chief to indicate that there was any conversation
among the employees present concerning their intention to
engage in concerted activity later in the day. Employee
Clifford Green, called by General Counsel in rebuttal,
however, described in detail how the employees, during
their lunch period, met and discussed the fact that their
evaluations were overdue and that they were entitled to
wage increases which were not forthcoming because the
evaluations had not been made. According to Green,
everyone present discussed this matter to some extent and it
was decided by some of them, primarily Joe Wise and
Green, that they should talk with Cook some time later in
the day before going home and ask her once more to take
some time to evaluate their papers and to listen to their
demands. These sympathies, again according to Green,
were also voiced by employees Crosby and Mines. It was
decided further, once again according to Green, that, if
Cook would not listen to reason when they met with her,
the employees would simply tell her that they were going
home. They did not intend to quit or get themselves fired by
Respondent but rather intended the walkout to serve as a
means of forcing management to tell them where they stood
vis-a-vis the hoped-for wage increases.4 Five of those
present agreed with the plan of action as outlined by Green.
Employees Ray and Fuqua, however, refused at the time to
join with the others.
About 11:30 a.m., Cook noticed that none of the
employees were at their stations except Mines who was in
the dish room. As she had frequently done before, she went
to the locker room to alert them that it was time to return to
work. As she approached the door, it was opened by
employee Lloyd Fuqua who was in the process of leaving to
return to work. What occurred immediately thereafter is in
dispute. According to Cook, when she entered the locker
room she saw employees Green and Joe Wise sitting at a
table 6 or 7 feet away. Each had his hand wrapped around
an open beer can. Although she was certain they were, in
fact, beer cans, Cook could not identify either the brand of
beer or the size of the can, but testified that she knew they
were not soda pop cans because the latter are always bright
solid-colored cans. In addition to Joe Wise and Green,
Cook noticed employees John Wise, Ray, Crosby, and
Fuqua in the room. None of the others were holding beer
4 Although I am troubled by the fact that Green's description of the
discussions among the employees during the lunch period is unsupported by
testimony in depth from others present, and one employee, Leroy Ray, stated
that neither the subject of increased wages nor the plan to leave early was
discussed at the meeting , I credit Green because the concerted nature of
subsequent events, descnbed infra, clearly indicates that the activity was
planned, if not during the lunch hour , then at some other point prior to the
meeting with Cook and the subsequent walkout In either case, however, my
cans nor were there any other cans or liquor bottles in sight.
Cook testified that she then entered the locker room and
asked the employees present what they were doing. Joe
Wise replied that they were celebrating Fuqua's birthday .5
She then asked rhetorically why they were drinking and
ordered them back to work. The employees thereupon
dispersed, each returning to his work station except for Joe
Wise who went to the production office to make a phone
call. After the employees exited the locker room, Cook left.
The employees testified somewhat differently about the
circumstances surrounding the lunch break on January 15.
First of all, they testified that no one had been drinking
alcoholic beverages, neither beer nor liquor, but only sodas
from paper cups. They denied the presence in the locker
room that day of any alcoholic beverages, beer cans, or
even soda pop cans which might conceivably be mistaken
for beer cans .6 According to the testimony of the employ-
ees, when Cook entered the locker room Crosby had
already left several minutes before. As she entered she
merely stated that it was time to go back to work, just as she
usually did in the past when the employees overstayed their
lunch hour. She said nothing about drinking. When Cook
ordered the men back to work, they immediately complied
including Joe Wise who testified that he went to the dish
room, not to the production office to make a phone call as
Cook had testified. The one exception was Green who
stayed in the locker room a few minutes longer because he
had gone to lunch late. Cook agreed to his remaining a few
minutes longer according to Green.
Cook's testimony contained certain inconsistencies with
regard to the lunchtime incident. On direct examination she
testified that at 11:35 a.m. on January 15 Joe Wise was
intoxicated. She described him as "glassy-eyed" and
testified that "his eyes were red, he slurred his words, he
was loud and used obscene language." Upon cross-exami-
nation, she denied that she had looked at his eyes and
stated that he was not drunk but was drinking. Cook's
inconsistent testimony clearly indicates an attempt to pad
the evidence so as to make the incident appear more
important than it was considered at the time. I do credit
her, however, with regard to her claim that both Green and
Joe Wise were holding beer cans when she entered the
locker room. Wise's explanation that they were celebrating
Fuqua's birthday supports her testimony, as do the events
that followed. The testimony of the employees that no
drinking was taking place is likewise discredited. When Joe
Wise and Green left the locker room, they left the beer cans
on the table. When Cook left the locker room, she also
permitted the beer cans to remain undisturbed. Cook
neither reprimanded nor disciplined any of the employees
at the time, either for being late returning to their stations
or for drinking on the job.
According to Cook's testimony, when Joe Wise left the
locker room, she followed him to the production office
ultimate decision would be the same whether or not the subsequent walkout
was planned during the 11-11 30 a in lunch break since it is clear that Cook
believed it was and based her reactions on this belief
5 Although Joe Wise denied this remark, I credit Cook on the basis of
company records offered indicating that January 15 is Fuqua's birthday.
Fuqua was not called to testify
6 Employee Ray testified that he noticed some beer cans in the trash but
that they had been in there for some time.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where he made a telephone call. When he hung up the
phone, a conversation ensued w ierein Wise complained to
Cook that the employees needed more help and that he
wanted a raise. Cook accused him of being intoxicated,
advised him to go home, and stated that they could talk
about his complaints when he was sober. Joe Wise refused
to go home and Cook did not press the issue because, as she
testified, she was afraid he might have gotten violent. Nor
did she take any steps to have him removed because, as she
explained, she had to operate the business and, besides, "he
wasn't bothering anyone." After refusing to go home, Joe
Wise went into the dish room while Cook went out into the
service area. Two or three more times Cook caught up with
Joe Wise in the kitchen area and told him to go home, but
he refused. He was wandering in and out of the production
office making phone calls and, although this was against
company policy, Cook did not object because she was
afraid that he might become violent. Cook testified that Joe
Wise was apparently drinking and she could not really
communicate with him. She testified that she was "a little
fearful of pushing him too far." She had been told on
numerous occasions by Joe Wise that he had been in jail
and she had seen him before with his face cut up as though
he had been in a fight. Each time Cook asked Joe Wise to
go home, he failed to respond, as though he did not hear
her. Cook testified that after Joe Wise left the locker room
at 11:35 a.m. he did no work.
Wise testified, contrary to Cook, that, after leaving the
locker room, he did not go to the production office or make
any telephone calls, but rather went straight to the dish
room and went to work. While there, employee Mines
approached him, complained that he was tired and over-
worked, and asked him to talk to Cook on his behalf. About
1:35 p.m., in compliance with Mines' request, Wise went
over to where Cook was separating silverware and told her
that Mines felt that he was overworked and added that the
employees needed more help and should be receiving more
pay. Cook replied only that it was the wrong time to be
discussing such matters , that there was a business to be run.
Wise thereupon returned to work. He denied that Cook at
any time on Janaury 15 asked him to go home.
Employee Crosby testified that he and Mines were
working alone in the dish room during the luncheon period
and were overworked because of the shortage of help. He
noted that Joe Wise came into the dish room from time to
time to help out with the silver but did not remain there.
This testimony supports Cook insofar as she claimed that
Joe Wise was wandering around the kitchen area not
working steadily. Food Supervisor Joseph Thomas also
testified that Joe Wise was wandering around and that he
spoke to him about it on one occasion about noon. I credit
Cook and Thomas with regard to this mater and also credit
Cook insofar as she testified that she told Wise that he
ought to go home, albeit without any degree of insistence.
Meanwhile, employee Clifford Green after leaving the
locker room about 11:45 a.m. reported to the serving line,
and after performing some of his assigned duties returned
to the locker room about 12:30 p.m. Although Green was
supposed to be working at his assigned station, he neverthe-
less remained in the locker room from 12:30 p.m. until
about 1:50 p.m. because, as he testified, "I left the station
because I felt wronged the way Mrs. Cook was treating me
as a person." According to Green, while he was alone in the
locker room Thomas came in . A discussion followed
between Green and Thomas wherein Green criticized the
fact that Thomas and Cook were doing so much work that
other rank-and-file employees should be doing. He request-
ed Thomas to make arrangements for them to see Cook
about this matter but Thomas refused. He therefore
decided to go to Cook's office himself. He then went
through the dish room and advised employees Joe Wise,
Fuqua, Mines, and Crosby who were at their work stations
that he was going to see Cook and the reasons for going
there. Joe Wise and Green went directly to Cook's office.
The other employees followed them there, first Mines and
Crosby, then Fuqua. All were in uniform.
According to Thomas, the events leading up to the
employees' meeting with Cook took place as follows: About
2:30 p.m.7 a telephone call was received for employee Ray.
Thomas asked certain kitchen employees where he was and
was directed to the locker room. Thomas found Ray in the
locker room with five other employees, Joe Wise, Green,
and Mines, who were in street clothes and John Wise and
Crosby, who were in the process of changing into street
clothes. Thomas advised Ray of the phone call and asked
Joe Wise what was going on. Joe Wise replied that he was
leaving, that he felt that he should have more money, and
that he needed more help in the kitchen. Thomas told them
to calm down and they did to some degree. Joe Wise and
Green asked Thomas if they could meet and discuss these
matters with Cook. Thomas agreed to contact Cook and
determine if she would meet with them. He then called
Cook, who gave her approval to a meeting in her office.
Thomas returned to the locker room and informed the
employees that Cook would see them. They told him that
they would be at Cook's office in a few minutes. Thomas
left and went to Cook's office where he joined Cook to
await their arrival.
With regard to these two versions of the events preceding
the meeting, I find it of little significance which is credited
since it hardly matters whether the employees first decided
to walk off the job because of unfavorable working
conditions, and then agreed to meet with Cook before they
actually took action or, on the other hand, decided to walk
off the job only after their meeting with Cook during which
their demands had been rejected. In any event, I credit the
employees to the extent that all testified that none of them
changed into street clothes until after the meeting with
Cook. I reach this conclusion not only because all appeared
candid and truthful when testifying on this matter but
because Thomas testified in error that he saw them
changing into street clothes at 2:30 p.m. by which time the
meeting with Cook, by the weight of the testimony, had
been concluded and because Thomas testified that he had
seen John Wise changing into street clothes, when the
record clearly reflects that John Wise never agreed to
participate in the walkout and in fact finished out the day,
working through until quitting time. Thus, there would
7 Other testimony clearly establishes that the meeting with Cook began
between 1 50 p in and 2 p in and may not have ended until 2 45 p.m
Therefore, the timing attributed to these events by Thomas, I find, is in error
STOUFFER MANAGEMENT FOOD SERVICE 1099
have been no reason for John Wise to change into street
clothes as Thomas testified."
Between 1:50 p.m. and 2 p.m. Joe Wise and Green
arrived at Cook's office. According to their credited
testimony and that of the other employees who participated
in the meeting, they were still in uniform 9 Shortly thereaf-
ter Mines and Crosby arrived, then Fuqua, all in uniform.
Wise and Green did most of the talking. Green began the
discussion by asking about his evaluation which he consid-
ered overdue. Cook replied that he would get his evaluation
but not immediately because such evaluations were given
only during the sixth month marking the anniversary of
hire, and none of the employees' evaluations were yet due
with the exception of Mines' which admittedly was over-
due. Meanwhile, Cook pointed out, she was running a
business which must be carried on, but as soon as she could
get to it, Mines' evaluation would be the first one consid-
ered and the others would follow as their anniversary dates
came up. Green then asked about a wage increase for
himself to $3.25 per hour. Cook replied that it was unlikely
that Green would receive the increase requested. Green also
complained about the restaurant being understaffed. He
mentioned that his fiancee had applied for a job with
Respondent but was not hired, meanwhile he was being
taken from his work station in the kitchen to work in the
dish room. He asserted that these circumstances proved
that the restaurant was understaffed and implied thereby
that he was being overworked. Cook's reply made reference
to a quota, which explanation did not satisfy Green.
Meanwhile Joe Wise was also strongly voicing dissatis-
faction. He asked about Mines' evaluation and was
answered as noted above. He asked Cook how much she
intended to give Mines as an increase and added that Mines
had started working for Respondent at the same time as
Green, and had never received a raise. According to both
Green and Wise, Cook replied that Mines would receive 10
cents, whereupon Wise rejected this as out of the question.
Cook testified that Wise and Green asked for no wage
increases except for themselves. According to Wise and
Green, after discussing Mines' wage situation, Wise asked
Cook for a wage increase for himself but did not request
any particular amount. According to Wise, Cook replied
that he was not going to get any wage increase because he
had come into her office, implying that his mere demand or
the disruption being caused at the moment was a sufficient
reason for denying him any increase. Green supported
Wise's testimony, although he was not certain as to the
specific words used by Cook in getting her point across.
Cook denied making the statement attributed to her, and
also denied being upset by the presence of Wise, Green, and
the other employees in her office. She testified, however,
that both Wise and Green were "hollering and screaming"
during the meeting while Green testified to being rather
8 Respondent's brief theorizes that John Wise changed into street clothes,
then back into uniform I find no logical basis for reaching such a conclusion
9 Consistent with his testimony concerning earlier events, Thomas stated
that four of the five employees were in street clothes during the meeting in
Cook's office.
iO With regard to the physical condition of Joe Wise and Green, I credit
Cook that she was convinced, despite the denials of employees, that Wise
was intoxicated and that Green had been drinking Moreover, Joe Wise's
testimony that he could not recall the presence of Crosby, Mines, Fuqua, or
boisterous himself. Cook conceded that during the meeting
she had raised her voice herself and had told Green and Joe
Wise to "shut up." She accused both Wise and Green of
having been drinking heavily and testified that she felt this
was true because they had been unusually loud, used
profanity, smelled of alcohol, and were glassy eyed. Wise,
according to Cook, did not deny the accusation and Green
admitted to having been drinking, although not much.io
She testified that although she was not angry with Green
and Joe Wise, she had difficulty communicating with them
because "of their condition." I find that the meeting was
marked to a high degree by emotional outbursts on both
sides.
Wise also joined Green in requesting that additional
employees be hired to replace certain employees who had
been fired thus leaving Respondent understaffed. A discus-
sion then ensued during which Cook attempted to convince
those present that all terminated employees had been
replaced. Green and Wise maintained, however, that they
were still understaffed and in support of their claim,
pointed out that Thomas, Cook, and her husband spent a
lot of time doing employees' work which should be done by
rank-and-file employees. Cook replied that it was part of
their duties to be out on the floor making certain that the
work ran smoothly and Thomas who was present during the
entire discussion added that the management personnel
mentioned would not have to be on the floor as frequently
as they were if the employees would report to work on time
every day and do their work.
Although most of the talking was done by Wise and
Green, Cook at one point asked Crosby, who was standing
back by the door, what he thought he should receive as a
wage increase and Crosby replied "More than I am
making." Thomas, who was sitting near the door, declared
that neither Crosby nor Mines was doing his job and
accused them of reporting late. Crosby rejoined angrily that
although he might be reporting late he was also leaving late.
Mines said nothing. Crosby, Mines, and Fuqua left,
dissatisfied with the interview, and went to the locker room
where they changed into street clothes, preparatory to
walking off the job. Wise and Green remained behind
temporarily.
According to Cook and Thomas, just as Crosby, Mines,
and Fuqua were leaving, presumably to return to work, the
building manager and his assistant came in and asked if
Cook would assign someone to clean the walk-in cooler on
the service level. Wise and Green, who had remained
behind briefly, replied that they would clean it before they
left that afternoon. Cook agreed. The building manager
then left and then Green and Wise left, according to Cook
and Thomas, to clean the cooler. All five employees present
during the meeting with Cook denied or failed to recall the
presence of the building manager or the discussion about
Thomas at this meeting convinces me that she might very well have been
correct, at least with regard to the condition of Joe Wise since Crosby and
Thomas both testified that they had participated in the discussion and any
one with his wits about him should have been aware of their presence
Thomas also testified that in his opinion Wise was intoxicated and described
his condition and Green's actions in terms similar to those used by Cook Joe
Wise's frequent absences from his work station and Green's extended stay in
the locker room afforded both opportunity to partake of alcohol during the
hours immediately preceding the interview with Cook
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cleaning the cooler and Green, far from agreeing with
Cook's testimony that he and Wise appeared to be ready to
return to work, testified that he stated at the end of the
interview , "Since we can't get no headway and you can't
listen to reason, I'm going home." With regard to the way
the interview came to an end, I credit Cook and Thomas to
the extent that the building manager did appear and ask for
someone to clean the cooler. I do not, however, credit their
statements that the employees gave them reason to believe
that they were satisfied with management's handling of
their grievances and appeared ready to return to work.
Rather, it appears certain that some of the employees
present were dissatisfied with the general overall rejection
of their complaints by management, and left Cook's office
ill-humored and unwilling to comply with Cook's request
that they return to performing their assigned tasks.
When Crosby, Mines, and Fuqua left Cook's office, they
decided they would go home. They went to the locker room
and changed into street clothes. While there, they were
joined by Green and Wise who also changed into street
clothes, the former voicing his dissatisfaction with the
outcome of their meeting with Cook. He complained about
Cook lying to them and putting them off when he requested
his evaluation. The other four employees agreed with
Green's remarks, all talking at once, each about his own
problems with management. Green attempted to get John
Wise and Ray to join in the walkout, but they refused.
After changing into street clothes, the five employees
went to Thomas' office in order to sign out. All complained
about being unhappy because they were not receiving
enough money. Wise and Green, in particular, continued
their discussion concerning their dissatisfaction with their
employer while in the production office area where they
were signing out, the latter remarking that he was not going
to be subjected to such treatment and was going home.
Employee Weber, who overheard their discussion, de-
scribed them as abusive and complaining and stated that
she could tell by the looks on their faces and by the smell
that they had been drinking. Thomas arrived while Green
and Wise were checking out and they once again asked him
about wage increases and additional help in the kitchen.
Wise requested a 35-cent-per-hour wage increase. Thomas
repeated once again that their evaluations would be done
on their anniversary dates. Wise and Green again voiced
their dissatisfaction with this decision, and stated that they
were leaving. Thomas did not try to discourage their
leaving. They immediately went to the elevator and left.
Shortly thereafter Mines and Crosby left, then Fuqua.
Thomas called Cook and advised her that some of the
employees were in the process of leaving.
After Cook received Thomas' call and found that the
employees had already gone, she and certain other employ-
ees went to the dish room to complete the day's work left
undone by those who had walked out. About 4 p.m. she
went into the men's locker room to clean out the empty
bottles and beer cans which she had seen there at one time
earlier in the day. Once there she found a large number of
liquor bottles and beer cans scattered around. There were
still the two beer cans on the table which Joe Wise and
Green had been holding at 11:35 a.m. that day. In all, she
counted 21 beer cans and 6 half pint liquor bottles. Cook
was surprised at the number of liquor bottles in the locker
room since she had just cleaned it out 2 days before, at
which time, incidentally, she had found a few beer cans
also. After collecting the beer cans and liquor bottles in a
trash bag, she hauled them out through the kitchen where
she was observed by employee Weber.
I conclude from the circumstances described above and,
in particular, from the number of liquor bottles and beer
cans collected from the locker room by Cook,11 as credibly
testified to by her, that not only Green and Joe Wise but
many, if not all, of those employees who walked off the job
on January 15 had been drinking and that it was in an
atmosphere created, in part, by this drinking that the
employees decided, concertedly, to voice their complaints
to management about the working conditions at the
restaurant and to walk off the job when their demands for
more money and more help were rejected.
Meanwhile, on the afternoon of January 15, employee
Ray returned to the cafeteria from the tax court where he
had been working for Respondent earlier that afternoon.
By the time he returned, the five employees who had
walked off the job were already gone. About 2:30 p.m. or
2:40 p.m., while Ray was in the production office, Cook
passed by and commented to Ray that by leaving early the
previous day "he had left them stranded." Ray replied
simply that he had had something to do. Cook said nothing
more. At 3:15 p.m., after working in the dish room for 10 or
15 minutes, Ray went home without advising either
Thomas or Cook of his intention of doing so, thus leaving
those who remained even more understaffed than before.
Ray testified that his usual quitting time was 3:15 p.m. and
that he usually left at that time without first seeking
permission to leave.
B. The Events of January 16
On the morning of January 16, the employees were
prevented from reporting to work by the guard who told
them that they were not permitted upstairs unless escorted.
The first employee to speak to Cook that day was Ray.
Cook told him that he was suspended until Monday
morning at 10 a.m., at which time he was scheduled to meet
with her. When Ray asked her why he was being suspend-
ed, Cook refused to answer him.12 According to Cook, as
the employees reported to work, Joe Wise, Mines, Crosby,
Fuqua, John Wise, and Green, each was told by Cook that
he was suspended and given a specific time to meet with her
on the following Monday. Cook testified that she did not
know on January 16 that she would eventually decide to
terminate Joe Wise and Clifford Green.
According to Green, when Cook spoke to him on the
morning of January 16 and told him that he was being
suspended, she said that it was for walking off the job the
11 i reach this conclusion on the following considerations access to the and 6 half pints of liquor and 21 cans of beer could not have been consumed
locker room was limited almost exclusively to Respondent's employees, no by 2 people in the limited period of time which they spent in the locker room
liquor bottles and no more than 2 beer cans were seen in the locker room as between 11.35 a in and the time they left the premises
late as 1 135 a in , all of the employees who walked off thejob were in the 12 Cook testified that Ray did not ask why he was suspended I credit
locker room at one time or another between 11 35 a in and 2 45 or 3 p in , Ray
STOUFFER MANAGEMENT FOOD SERVICE 1101
day before. Cook gave him an appointment hour of 11:30
a.m., January 19, and stated that she was going to evaluate
the employees to see if she was going to let them return to
work.
C. The Events of January 19
On January 19, Joe Wise, who was scheduled for an
interview at 10 a.m., failed to show up for his appointment.
Similarly, Ray, scheduled for 10:45 a.m. also failed to
appear. At 11:15 a.m. Cook observed Ray in the cafeteria
buying a soda. She asked him if he was ready to have his
interview. Ray replied that, if she did not mind, he "would
rather wait for his brothers." Cook, in turn, stated that she
would only meet with them individually, and Ray then left.
At 12:15 a.m. Cook held the first interview. It was with
Fuqua whom she advised that he was suspended for being
in the locker room, off the floor, on the morning of January
15 following the lunch break, and for walking off the job
that afternoon. She generally reviewed his work record with
him, touching on his absences, times tardy, and other
matters which were admittedly not the basis for the
suspension of any of the employees. She also advised Fuqua
that the Company would not tolerate any more drinking on
the job and testified that, although the suspension of Fuqua
had nothing to do with his drinking, she mentioned it
because he had a past history of drinking on the job. She
then told Fuqua that he was free to return to work, but
Fuqua declined, explaining that he had to leave in order to
tend to personal business.
The second employee interviewed by Cook on January 19
was Leroy Ray. According to Cook, she advised him that
the reasons for this suspension, like those for Fuqua, were
his being in the locker room at 11:35 a.m. on the morning of
January 15 and his walking off the floor on the afternoon of
the same day without telling anyone of his intention of
leaving after Cook had warned him about leaving the
previous day without finishing up his day's work. She also
reviewed Ray's work record with him, though the subjects
of this review were unconnected to his suspension. She
reminded him that he was a team leader and as such should
be more responsible, that he was expected to complete his
duties or wait until he was relieved before leaving for the
day. He was told that if he had previous commitments he
was expected to advise his superiors before leaving so that
his station could be covered. Cook testified that Ray did
not reply to her admonitions. She then told him that he was
free to return to work. Ray went to work but advised Cook
that he could not work past 3:15 p.m. She replied that she
would see to it that his station was covered.
According to Ray, when he met with Cook on January
19, he asked her why he had been suspended on January 16
but she did not give him any reason. He testified, however,
that she said that "the next time he walked off his job like
he did on January 15, at 3:15 p.m. without her approval or
Mr. Thomas' approval, that he would be dismissed." She
also mentioned the fact that he had been in the locker room
at 11:35 a.m. on the morning of January 15. I find that the
versions offered by Cook and Ray as to the content of the
January 19 interview are compatible despite Ray's failure to
realize the connection between the substance of Cook's
remarks and his suspension.
Some time in March, however, an incident occurred
which sheds additional light on the reasons for the
suspension of Ray. According to Ray, and I credit his
version of the incident, he was working at the beverage
station at the cafeteria, by that time operated by G.S.I.
rather than by Stouffer, when Cook came by. Ray struck up
a conversation and asked Cook why he had been suspended
back on January 16. Cook replied that Ray had been a team
leader as of January 15 and that during the lunch break on
that day he was in the locker room when the other
employees made plans to walk out, and that as a team
leader he should have done something to prevent it.
When Cook met with Joe Wise on January 19, she told
him that he was being terminated for drinking on the job.
Wise did not deny that he had been drinking on January 15
nor offer any defense to the accusation. He testified,
however, that he did not do so because he knew on January
19 that all of the employees were going out on strike the
following day and therefore felt his discharge did not
matter one way or the other. Cook characterized Joe Wise
as an excellent worker when not drinking.
When Cook met with Green on January 19, she likewise
told him that he was being terminated for drinking on the
job and that she could no longer tolerate it. Like Joe Wise,
Green did not deny having been drinking on January 15
but merely stated that he was sorry, then left.
When Cook interviewed Crosby and Mines she told them
that they should not have walked off the job on January 15,
but that they were not fired and could return to work. The
implication was that their suspension was based on their
having walked off the job the previous Thursday. During
the interview she generally reviewed the Company's policy
with regard to drinking on the job as well as other policy
matters. As to her offer to permit them to return to work,
Crosby and Mines advised her that they had some personal
matters to take care of and would be back later if possible.
As it turned out, they did not return that day but reported
for work the following day.
When Cook interviewed John Wise she talked about his
being off the floor at 11:35 a.m., January 15. She empha-
sized the importance of his job and told him that he should
not be off the floor for even 5 or 10 minutes. After
reviewing his record generally, she requested that he return
to work. He did so. Although the record does not reveal
that Cook gave John Wise any specific reason for his
suspension, the inference to be drawn from the subject
matter of the interview is that Respondent was claiming to
have suspended him for being off the floor at 11:35 a.m.,
January 15, and for no other reason since the subject of
drinking was not discussed and John Wise did not
participate in the work stoppage of January 15.
D. Respondent's Defenses
1. The Discharge of Joe Wise and Clifford
Green ; Respondent's policies toward drinking; and
employee past practices
Respondent contends that Joe Wise and Clifford Green
were discharged for drinking on the job. In support of its
position , Respondent contends , as documented by the
record , that it maintained rules against reporting for work
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the influence of alcohol and using alcohol on the
premises. These rules were contaired in a written four-page
pamphlet, a copy of which, accoriing to Food Production
Supervisor Thomas, was given to each new employee. A
copy was also posted near the timecard rack with the entry
involving use of alcohol, among other entries, specially
underlined. The rules were first posted in November 1975
and remained on the bulletin board throughout all material
times. Several months before the incident giving rise to the
discharge of Green and Joe Wise, the rules were reviewed
by team leaders with members of their teams, and tears
leaders were instructed to distribute additional copies of the
rules among their team members.
Although employees Crosby and Green denied knowl-
edge of the existence of the pamphlet containing the rules
against use of alcohol and of the meetings during which the
rules were discussed, Ray testified that he had been asked
on one occasion to read the pamphlet and had seen it
posted on the bulletin board. He had also distributed the
pamphlet among the members of his team. I find that the
pamphlet was distributed and its contents sufficiently
publicized to enable the assumption to be made that
Crosby, Green, and other employees including Joe Wise
were aware of company policy with regard to the use of
alcohol in connection with their employment. Moreover,
Green testified that he assumed the existence of such a rule,
though he denied specific knowledge of it.
In October 1975 a company official from the home office
in Cleveland visited Respondent's location at the Depart-
ment of Labor and noticed employees Green and Wise and
several other employees sitting across the street from the
building drinking beer during their lunch hour. He advised
Green that it was company policy that employees should
not leave the premises during lunch hour. Later that
afternoon, the official from Cleveland and Cook together
conducted a meeting during which they informed the
employees that they were not supposed to drink during
working hours and that no more drinking would be
tolerated. Both the Cleveland official and Cook threatened
discharge for the next violation of the rule. This meeting
was a regular team leaders meeting frequently called at
irreg.gar intervals . As such, it had not been called specifi-
cally to deal with drinking as a problem, but the subject was
covered because of the lunchtime incident.
Despite the warnings issued by management in October,
drinking remained a problem at the Respondent's facility
and the problem apparently was not limited to one or two
employees. Employee Weber testified that employees
would dependably return each day after lunch tr their
stations on time if they weren't drinking, but that once a
week Cook had to go to the locker room and order them
back to work. She further testified that she had seen
employees drunk on the job at least once during each week,
usually the same employees-Green, Crosby, Joe Wise, and
maybe Mines. Moreover, she testified that she had seen one
or more employees drunk on thejob during the first 2 weeks
of January, those weeks immediately preceding the termi-
nation of Green and Joe Wise.
Cook testified that Fuqua had a past history of employ-
ment-connected dunking, and progress reports offered as
exhibits by Respondent indicate that Ray and other
employees were warned about drinking in September and
October 1975, although Ray and Crosby both denied
knowledge of employees drinking on the job prior to
January 15.
Concerning Joe Wise's drinking habits, Cook testified
that in September, October, November, and around the
Christmas holidays she had occasion to speak to Joe Wise
about his drinking. The personnel records supplied by
Respondent and which I find to be authentic support her
testimony that Cook, Thomas, or both reprimanded Wise
for drinking on September 25 and December 12, 24, and 30,
1975, and that in connection with these incidents of
drinking he had on one occasion, December 12, 1975, left
work without completing his job. The notation of Decem-
ber 24 indicates that Joe Wise was also reprimanded for not
controlling the drinking of the other men. On December 30,
according to the records, Wise was advised that drinking on
the job again would be reason for dismissal. Cook also
testified that on one or more of these occasions Joe Wise
was not only drinking but, in her judgment, was drunk. Her
testimony concerning whether she saw him actually in
possession of liquor bottles or beer cans was contradictory
and unreliable. According to Cook, each time she spoke to
Joe Wise about his drinking he appeared to be contrite.
Management received indications other than the mere
appearance of certain employees that drinking was taking
place on the premises. Cook, with Joe Wise's help,
periodically cleaned liquor bottles and beer cans out of the
locker room, particularly around the Christmas holidays,
but also as late as January 13, 2 days before the incident
giving rise to the discharge of Joe Wise and Clifford Green.
Wise denied ever seeing employees drinking on company
property or ever seeing beer cans or liquor bottles in the
locker room. I credit Cook in this regard.
According to Cook, on January 6 or 7, following a period
of heavy drinking around the holidays, a team meeting was
conducted by Joe Wise and Cook at Wise's request during
which the topics of drinking, absenteeism, and tardiness
were the subjects of discussion. Almost all of those involved
in the January 15 incident were present during the January
6 or 7 meeting, as well as a number of other employees.
During this meeting , Cook emphatically stated that if any
employees were caught drinking on the job they would be
dismissed without further warning. That statement was
considered by Cook to be the final warning.
Wise denied that any such meeting ever took place.
Crosby supported Cook's testimony but was not certain
that the meeting took place in early January as Cook had
stated. Weber testified that team meetings were frequent
and implied that discussions about cutting down on
drinking were not infrequent. She described one she had
with Joe Wise after the first of the year when she gave him a
pep talk about cutting down on the drinking and getting the
place to run more smoothly. No rank-and-file employees
who allegedly attended the January 6 or 7 meeting were
called by Respondent.
I conclude from the totality of testimony that a meeting
did take place on or about January 6 or 7 during which the
subject of drinking was discussed. I also find that Cook
stated at that meeting that any employee caught dunking
would be discharged. I find, however, that this meeting was
STOUFFER MANAGEMENT FOOD SERVICE 1103
only one of several such meetings during which manage-
ment attempted to convince its employees that drinking on
the job was not going to be tolerated and that its
importance was drastically overstated at the hearing in
order to support Respondent 's alleged reasons for the
discharge of Wise and Green . The meeting appears to be no
more than one more occasion for Wise to promise to reform
and one more attempt by management to get its employees
to refrain from drinking, not the final ultimatum that
Respondent would have us believe.
Cook testified that on January 13, while she and Joe Wise
were cleaning the locker room she found several empty beer
cans . When she asked Wise about it, he replied that he had
made a New Year's resolution that he would not drink
anymore , that he did not intend to drink anymore and that
he would help her discipline anyone who broke the rules.
Cook took no action to determine which of the employees
had been drinking on the job . No investigation was
undertaken and the incident reflecting continued drinking
on the job was apparently forgotten.
Concerning his drinking on the job , Joe Wise testified
that he had never been warned about drinking on company
property, had never seen any company rules on the subject,
or told that such rules existed, and specifically denied that
Cook had ever reprimanded him or discussed drinking with
him on the dates enumerated in her testimony and reflected
in company records. I find Wise 's blanket denial incredible
and credit the testimony of Cook and other witnesses to the
effect that Joe Wise was frequently under the influence of
alcohol while on the job , including the week preceding his
discharge and had been warned about it numerous times.
With regard to Green 's drinking habits, Cook testified
that he was warned on September 25, 1975, about drinking
beer across the street with certain other employees during
their lunch hour . She also testified that he was again warned
about drinking on November 28, 1975 , this time by
Thomas, and that she spoke to him herself regarding the
incident on the following Monday. She told him that she
would not tolerate his drinking and Green replied that he
would not do it again . On December 12, 1975, Green again
appeared to have been drinking and was once again
reprimanded for it.
During the Christmas holidays, according to Cook,
Green was again involved in drinking but nothing was done
about it , and no entries placed on his progress report cards
because many employees were involved in drinking and no
warnings were given out during this period.
On January 5, about 11:40 a.m., Cook noticed Green in
the locker room with a can of beer and a half pint bottle of
vodka both unopened . She took them away from him "for
safekeeping" until he went home and told him , "I thought
you said , you weren't going to do that [drinking ] anymore."
Green promised once again that he would not drink again.
Cook testified that she did not take any action against
Green nor gave him a final warning at this time because
neither the beer can nor the vodka bottle were open and,
thus, it could not be said that he was drinking on the job.
Moreover , Cook stated , Green was a good employee when
not drinking and she wished to salvage him as an employee.
According to Green , he had never brought alcoholic
beverages onto company property but frequently had a
beer across the street during lunch . He denied ever being
warned by Cook about his drinking and testified that the
entries on the progress cards were untrue . Thomas testified
in support of Cook that he had warned both Joe Wise and
Green about their drinking and that drinking generally was
a problem among Respondent's employees.
Where the testimony of Green conflicts with that of Cook
and Thomas I credit the latter and find with regard to the
question of employees ' drinking practices that there was a
serious drinking problem at Respondent 's establishment. I
further find that Joe Wise and Green were among the worst
offenders in this respect , that they frequently were found by
management to be heavily under the influence of alcohol,
particularly after lunch hour , and were reprimanded and
warned about their condition on numerous occasions,
without any action being taken against them for their
indiscretions other than a notation being made on their
progress report cards.
On January 15, at 11:35 a .m., when Cook discovered Joe
Wise and Green in the locker room , each holding a can of
beer, she merely made the rhetorical comment , "What's
going on?" She did not fire them on the spot , discipline
them, or even reprimand them for drinking the beer, but
sent them back to work . I find that this reaction to their
drinking, when viewed against the background history of
drinking at the establishment indicates that Cook was not
really too concerned about their having a beer at lunch,
merely a little annoyed . Certainly , as admitted by Cook, she
had no intention at that time of terminating Joe Wise and
Green for drinking the beer, and I find that their drinking
the beer had no direct connection to management's
decision eventually to terminate them. If Cook had serious-
ly been concerned about her employees drinking on the job,
on this occasion , she not only would have made some
statement of concern to Wise and Green at the time, but
certainly would not have permitted the empty beer cans to
remain on the table in the locker room where other
employees , upon seeing them, would conclude that drink-
ing as a practice was condoned by management . The fact
that Wise and Green had each had a beer during lunch was
significant only in light of subsequent events, discussed
infra.
Moreover , later in the afternoon , during the meeting in
Cook's office, it became evident to Cook that both Wise
and Green had been drinking . She did not terminate either
of them at that point for drinking but rather assigned them
to clean out the walk-in cooler at the close of the meeting.
Obviously, Cook had no intention of terminating Wise and
Green for drinking but, on the contrary, was convinced that
they were capable of performing their duties despite their
having been drinking . Cf. Browning Industries, 213 NLRB
269 (1974).
2. The suspension of the seven employees
Respondent contends that the seven employees named in
the complaint , including the two whose suspensions were
later converted to discharges, were suspended for being late
returning from lunch on January 15 and for walking off the
job later on the afternoon of the same day. But the record is
replete with testimony, including that of Respondent's own
witnesses that the employees frequently were late returning
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from lunch and that on these occasions it was customary
for Cook to go to the locker room to inform those not
already on the floor that it was time for them to return to
work. No one had ever before been discharged, suspended,
or disciplined for this minor breach of the rules anymore
than, as noted above, anyone had received discipline for his
drinking habits. Although Cook advised each of the
suspended employees of her dissatisfaction with their being
at the 11:30 a.m. meeting, and being late returning to work,
I reject Respondent's contention that it was the few minutes
away from their jobs which was the basis for the suspen-
sion . Clearly, if Cook were upset with the employees for
failing to return to their stations at 11:20 a.m., she would
have said more to them than "Let's go," as I find she did. I
find that the employees' being late returning from lunch
was not the reason for the suspension.
Analysis and Conclusion
Having found that the discharges of Green and Joe Wise
were not based on the fact that they had been caught
drinking beer during their lunch hour in the locker room
and also having found that the suspensions were not based
on the other employees' reporting late to their work stations
after lunch, as alleged in part by Respondent, the true
reasons for Respondent's actions must be found elsewhere.
General Counsel alleged in the complaint that the discharg-
es and suspensions were the result of the employees'
requests for wage increases. At the hearing, General
Counsel argued that the walkout of the employees was also
one of the reasons for the discharges and suspensions. In
essence , I find General Counsel's position well supported
by the record with certain modifying conclusions. Thus,
with respect to the suspension of the seven employees, I
find that Cook did not initially intend to take any action
against these employees based on their attendance at the
lunchtime locker room meeting until she later concluded
that the walkout which occurred that afternoon had been
planned during and was the direct result of that meeting. I
find that when the five employees entered her office at 1:50
p.m. on the afternoon of January 15 and demanded certain
changes in their working conditions and subsequently, in
conc,rt, walked off the job following their rejection, Cook
concluded that the 11:30 a.m. meeting of employees which
she had stumbled upon in the locker room was where the
subsequent walkout had been planned. As she remembered,
and testified, all of the seven employees who were eventual-
ly suspended were either in the locker room during the
lunchtime meeting of January 15 or later joined in the
walkout that followed the meeting in her office-ar I this
chain of events, connecting the 11:30 a.m. meeting to the
afternoon walkout through the intervening meeting in her
office during which the demands were made, serves as the
common denominator, the basis for the suspension of all
seven employees. Although neither Leroy Ray 13 nor John
Wise either participated in the meeting during which
13 It may well be that Cook suspected that Ray left his work station as
part of the concerted walkout or in sympathy with the others, but, since I find
that he was suspended at least in part for attending the meeting at which the
walkout was planned, Cook's other reasons are of no import to the decision
rendered herein
11 Inasmuch as I have found this to be the true reason for Ray's
demands were made for changes in working conditions or
joined the other employees in the walkout following their
rejection, Cook knew or suspected that they had participat-
ed in the meeting at which the demands and the walkout
had been planned. It is patently clear then that the seven
employees were suspended for participating in a meeting
which eventually resulted in the work stoppage or for
participating in the work stoppage itself. Cook admitted as
much several months later when she advised Ray that he
had been suspended because he was in the locker room on
the morning of January 15 when the employees made plans
to walk out and had failed to do anything to prevent it.14
So, the reasons for the suspensions are somewhat more
complex than are immediately apparent. Just as the
meeting on the morning of January 15 would not alone
have resulted in the suspension of the seven employees, I
similarly find that the subsequent action of the five
employees in entering Cook's office and demanding wage
increases and other changes in working conditions would
not alone have precipitated the suspensions, for the record
indicates that groups of employees on several previous
occasions had gone into Cook's office and made similar
demands without incurring any discipline. Moreover, when
the meeting in Cook's office was over, Cook appeared to be
perfectly willing to permit the five employees to return to
work without taking any action against them for their
concerted demands for improvements, despite the fact that
at times during the meeting there was some shouting and
apparent loss of temper. Thus, it was the walkout which
immediately followed the meeting in Cook's office which
Respondent admittedly found truly objectionable and
brought about the suspension of those who walked out as
well as those who had participated in the planning of it that
morning. Inasmuch as Joe Wise and Clifford Green were
the two most outspoken employees at the meeting in Cook's
office, and they alone were most persistent in pushing the
demands for themselves and the others, it was apparent to
Cook that they were the individuals who planned the day's
events in the locker room meeting and were the organizers
responsible for inciting the others to walk off the job
following Cook's rejection of their demands. In summary, I
find that the employees who either walked off the job on the
afternoon of January 15 or who were discovered at the
locker room meeting at 11:35 a.m. on that day were
suspended by Cook because they participated or were
suspected of participating in the planning of the concerted
activities which occurred later that day. Similarly, I find
that Joe Wise and Clifford Green were discharged as the
leaders of the concerted activities which occurred on
January 15, including the locker room meeting during
which the later events were planned or at least discussed,
the meeting in Cook's office where the demands were made
and rejected, and finally the eventual walkout which
resulted from Cook's rejection of the employees' demands.
Having concluded that the seven employees were sus-
pended for the reasons noted above, I find that Respondent
suspension , the reason proffered by Respondent; namely, that he left his
station and went home early without first seeking permission, I find to be
pretextual, and unworthy of being credited The question, therefore, of
whether or not Ray was required by company rules to seek permission from
his supervisor before leaving for the day is of little moment
STOUFFER MANAGEMENT FOOD SERVICE 1105
thereby violated Section 8 (a)(1) of the Act . Ronald Moran
Cadillac, 202 NLRB 1017 (1973). Having concluded, also,
that Joe Wise and Clifford Green were terminated because
they were responsible for organizing the concerted activities
of January 15 which resulted in the walkout of that date, I
find their termination to be in violation of Section 8(a)(1) of
the Act. B & P Motor Express Incorporated, 171 NLRB 1289
( 1968), affd . 413 F.2d 1021 (C.A. 7,1969).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III, and
therein found to constitute unfair labor practices in
violation of Section 8(a)(1) of the Act, occurring in
connection with Respondent 's business operations as set
forth above in section I, have a close , intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, it shall be recommended that Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. With
regard to the latter, Respondent, Stouffer Management
Food Service , Inc., its officers , agents, successors, and
assigns, will be required to offer Evans "Joe" Wise and
Clifford Green reinstatement to their former positions or, if
said positions no longer exist, to substantially equivalent
positions without prejudice to their seniority or other rights
and privileges , dismissing, if necessary, anyone who may
have been hired or retained to perform the work which they
had been performing prior to their discharge . Additionally,
Respondent will be required to make Evans "Joe" Wise,
Clifford Green, Herman Mines , Sterling Crosby, Lloyd
Fuqua, Leroy Ray, and Dedrick "John" Wise whole for any
loss of earnings they may have suffered by reason of their
unlawful discharges and/or suspensions with the backpay
to be computed on a quarterly basis, making deductions for
interim earnings , and with interest to be paid at the rate of 6
percent per annum . F. W. Woolworth Company, 90 NLRB
289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
On the basis of the of the foregoing findings of fact and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
15 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 , and recommended Order 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
is In view of the fact that Respondent no longer operates the place of
3. By discharging Evans "Joe" Wise and Clifford Green
and thereafter failing and refusing to reinstate them, and by
suspending Evans "Joe" Wise , Clifford Green, Herman
Mines, Sterling Crosby, Lloyd Fuqua, Leroy Ray, and
Dedrick "John" Wise because they engaged in protected
concerted activity, thereby interfering with , restraining, and
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this case, and pursuant
to Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 15
The Respondent , Stouffer Management Food Service,
Inc., Washington , D.C., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from discharging and/or suspend-
ing any of its employees for engaging in concerted activities
for their mutual aid or protection , or in any other manner
interfering with , restraining, or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Evans "Joe" Wise and Clifford Green immedi-
ate and full reinstatement 16 to their former positions or, if
such positions no longer exist , to substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, and make Evans "Joe" Wise , Clifford
Green, Herman Mines , Sterling Crosby, Lloyd Fuqua,
Leroy Ray, and Dedrick "John" Wise whole for any loss of
pay due to the discrimination against them by awarding
Evans "Joe" Wise and Clifford Green backpay from the
date of their discharges to such time as they receive a valid
offer of reinstatement and awarding Herman Mines,
Sterling Crosby , Evans "Joe" Wise , Clifford Green, Lloyd
Fuqua , Leroy Ray, and Dedrick "John" Wise backpay
covering the period of their suspensions , all computations
of such moneys to be in accord with the Board's decisions
in F. W. Woolworth Company, 90 NLRB 289 ( 1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll records , social security payment records , timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(c) Mail exact copies of the attached notice marked
"Appendix," 17 to the Union, Local 25 , Hotel and Restau-
rant Employees Union, AFL-CIO, to employees Evans
business where the discnimnatees were employed , but remains in business at
other locations, and inasmuch as the record contains little information
concerning Respondent's successor at the location involved herein , imple-
mentation of the reinstatement provisions of this Order , if necessary, may
have to await further proceedings in the compliance stage . Northridge
Knitting Mills, Inc, 225 NLRB 1054 (1976)
17 In the event that this Order is enforced by a Judgment of a United
(Continued)
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Joe" Wise, Clifford Green, Herman Mines , Sterling
Crosby, Lloyd Fuqua, Leroy Ray, and Dedrick "John"
Wise , and to each employee - n its employ at the time it
ceased operations at the Department of Labor cafeteria.
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being duly signed by an
authorized representative of the Company, shall be mailed
immediately after receipt thereof.
(d) Notify the Regional Director for Region 5, in writing;-
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
States Court of Appeals , the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we have violated the National Labor
Relations Act and has ordered us to mail this notice to our
employees.
WE WILL NOT interfere with , restrain, or coerce our
employees by discharging or suspending them for
engaging in protected concerted activities for their
mutual aid and protection.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights guaranteed them by Section 7 of the National
Labor Relations Act, as amended.
WE WILL offer Evans "Joe" Wise and Clifford Green
reinstatement to their former positions or, if those
positions no longer exist , to substantially equivalent
positions , without prejudice to their seniority or other
rights and privileges.
WE WILL make Evans "Joe" Wise, Clifford Green,
Herman Mines , Sterling Crosby, Lloyd Fuqua, Leroy
Ray, and Dedrick "John" Wise whole for any loss of
earnings they may have suffered as a result of our
unlawful action against them.
STOUFFER MANAGEMENT
FOOD SERVICE, INC.