Atlanta Biltmore Hotel Corp.

National Labor Relations Board - Board Decisions

Jul 29, 1960

128 N.L.R.B. 364 (N.L.R.B. 1960)

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Alicia Bonano June Shanks Deanna Sexton
Peggy Snyder Rose Reinwald Elsie Merker
Harold Collette Ruth Riley Andrew Witkowski
Catherine Demarco Jeniva E. Conklin George R. Mallinson
Marie Roosa Jeniva I. Conklin Carol Baisley
Gladys Roeder Beverly Horton Douglas Martin
Walter Acton Myrtle Laubi#cher Rusgell D. Corwin
Helen O'Fee Wilda Valentine Dorothy Merker
Philip Gould Lee Biccum William Dicks
Kenneth Mallinson
APPENDIX C
Lena Kent George Schembry Harold Chichester
Maude Rooney Anna Arbutowich Helen Oliver
John Pedlock
APPENDIX D
Elva Porter Iveta Kelly Idella Hornbeck
George Denes Martha Kent Helen De Groat
Ursula Kraft Helene Uhlig Maude C. Higby
Atlanta Biltmore Hotel Corporation and Hotel & Restaurant
Employees and Bartenders International Union , AFL-CIO.
Case No. 10-CA-4222. July 29, 1960
DECISION AND ORDER
On April 1, 1960, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that the Respondent cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate Report and a supporting
brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
1 Pursuant to the provisions of section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
128 NLRB No. 50.
ATLANTA BILTMORE HOTEL CORPORATION 365
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Atlanta Biltmore
Hotel Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in
or activities on behalf of Hotel & Restaurant Employees and Bar-
tenders International Union, AFL-CIO, or any other labor organi-
zation, in a manner constituting interference, restraint, or coercion in
violation of Section 8(a) (1) of the Act.
(b) Threatening its employees with discharge if they participate
in, join, or assist the said Union, or any other labor organization.
(c) Promising monetary rewards for information on the said
Union's activities or the activities of any other labor organization.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the aforesaid Union, or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its hotel in Atlanta, Georgia, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof and maintained by
it for a period of 60 days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
366 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of Hotel & Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, or any
other labor organization, in any manner constituting interference,
restraint, or coercion in violation of Section S (a) (1).
WE WILL NOT threaten our employees with discharge for partici-
pating in union activities, or assisting or joining the said Union,
or any other labor organization.
AVE WILL NOT promise monetary rewards for information on the
said Union's activities, or the activities of any other labor
organizations.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
the above-named, or any other labor organizations, to bargain
collectively through representatives of their own choosing, and to
engage in union or in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
ATLANTA BILTMORE HOTEL CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly desig-
nated Trial Examiner , in Atlanta, Georgia , on December 15-17, 1959 , on complaint
of the General Counsel , as amended , and answer of Atlanta Biltmore Hotel Corpo-
ration , herein called the Respondent or the Hotel. The issues litigated were
whether or not the Respondent violated Section 8(a)(1) of the Act. All parties
were afforded full opportunity to be heard, to examine and cross -examine witnesses,
and to introduce evidence pertinent to the issues . Prior to the hearing in this
proceeding the Respondent filed a motion for a more definite statement, and a
motion to dismiss for lack of jurisdiction . Both motions were then denied. At the
time of hearing the Respondent renewed its motion to dismiss which was denied by
the Trial Examiner for the reasons hereinafter stated . The General Counsel at
the hearing moved to amend the complaint by deleting the allegation with reference
to Resident Manager Boyle , which motion was granted, and General Counsel also
moved to amend paragraph numbered 7 of the complaint by adding a sub-paragraph,
with the allegation that the Respondent 's general manager, Beusse, promised em-
ATLANTA BILTMORE HOTEL CORPORATION 367
ployees monetary benefits for abandoning union activities . This motion to amend
the complaint was also granted , but it is stated in the brief of the General Counsel
that he does not press this allegation as to Beusse , and no findings herein have
been made on the same. Both parties have filed helpful briefs which have been
duly considered herein
Upon the entire record , and from my observations of the witnesses , I hereby
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a Georgia corporation maintaining its principal office and
place of business at Atlanta, Georgia, where it is engaged in operating a hotel.
Respondent 's gross revenues during the past 12 months , which period is representa-
tive of all times material herein , were in excess of $500,000, and during the 12-
month period less than 75 percent of the Respondent 's guests remained at the
hotel for 1 month or more.'
It is the contention of the Respondent that jurisdiction is lacking for reason that
the local intrastate operation of a hotel , such as Respondent 's, does not affect inter-
state commerce within the meaning of the Act , and that while the Respondent has
more than $500,000 annual business volume it is transacted locally, and that the
gross volume does not in 'any way reflect impact upon interstate commerce , so that
the application of jurisdictional standard based on gross volume is arbitrary and
capricious . The Respondent also contends that the Board's rules as to jurisdiction
in the hotel field are arbitrary and discriminatory in that they impose a different and
more stringent standard upon hotels than upon other employers in other fields. I
find no merit in these contentions.
It is now well settled that in making the provisions of the Act applicable to
labor disputes which affect commerce , or tend to affect commerce, Congress under-
took to regulate all conduct having such consequence as might constitutionally be
regulated under the commerce clause . Amalgamated Association of Street, Elec-
Iric Railway & Motor Coach Employees of America v. Wisconsin Employment
Relations Board , 340 U.S. 383 . Whether the Board has jurisdiction is not to be
determined by confining judgment to the quantitative effect of the activities imme-
diately before me in this case. The hotel business is a $2 ,400,000,000 industry. Its
primary function is to furnish lodging, food , beverages , and other services to
members of the traveling public. In the case of a particular hotel, such activities
and purchases may or may not directly involve interstate commerce , but in the
aggregate such purchases and activities of the industry clearly have a substantial
impact on the operations of the various supplying industries , and involve substantial
shipments of goods and materials in interstate commerce. Hotel Employees Local
No. 255 et al . v. Boyd S. Leedom et al., 358 U.S . 99. Floridan Hotel of Tampa,
Inc., 124 NLRB 261, and also see cases cited therein . In Office Employees Interna-
tional Union v. N.L.R.B., 353 U.S. 313, 318 , 320, the Supreme Court held that the
Board's refusal to assert jurisdiction over labor unions as at class, when acting as
employers, was beyond the Board 's power. The Court pointed out that the Board
sometimes properly declines to assert jurisdiction in a particular case, but the
Court held that the exercise of discretion in such instances did not give the Board the
power to remove unions as employers from the coverage of the Act , nor "to decline
jurisdiction over all employers in other fields ." These are the principles which the
Court held to govern the Board 's jurisdictional determinations with respect to the
hotel industry , and it follows that, as the operations of the industry affect commerce
within the meaning of Section 2(6) and ( 7) of the Act , the Board cannot exempt
that industry from the provisions of the Act by declining to assert jurisdiction over
all hotel employees as a class. In this proceeding , in addition to the $500,000
annual business volume, the Respondent admits annual food purchases from outside
the State of Georgia in excess of $10,000, and also the annual purchase of spirituous
liquors from outside the State of Georgia in excess of at least $200,000 , with only
'It was stipulated that the Respondent is engaged in the business of renting rooms;
that Respondent purchases most of its food and other supplies from distributors within
the State of Georgia ; that Respondent 's average annual purchases of food from producers
outside the State of Georgia are valued in excess of $10 ,000, that Respondent purchases
spirituous liquors in an annual amount of at least $200,000 from distributors located
within the State of Georgia ( these liquors are produced outside the State of Georgia and
are sent through a State-owned warehouse where local distributors obtain the mer-
chandise ) ; and that the number of retail customers served by the liquor distributors
patronized by the Biltmore Liquor Store would range between 200 and 2,000
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intermediate stops in State-owned warehouses. The above not only shows the
application of Board standards in terms of gross volume of business, but such
outside purchases is an independent showing that Respondent's operations "affect
commerce" and that therefore statutory jurisdiction exists. Southwest Hotels, Inc.
(Grady Manning Hotel), 126 NLRB 1151.
I find that the Respondent is engaged in commerce within the meaning of the
Act, 'and that the Board has jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO,
herein called the Union , is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues and events
The main issue to be resolved is whether or not certain of the Respondent's
supervisory force engaged in specific conduct constituting interference, restraint, and
coercion of its employees. The amended complaint alleges, and the answer denies,
that the Respondent interrogated its employees concerning their union membership,
threatened to discharge employees if they joined or engaged in union activities,
promised employees monetary rewards for information concerning the Union, and
that the Respondent kept under surveillance union meetings and activities of its
employees.
The record established that in March 1959,2 Union Representative Race contacted
employees of the Respondent and solicited their help in an effort to organize the
hotel. Beginning on May 25, union meetings were held every Monday night at the
union hall, 95 Merritts Avenue, Atlanta, Georgia, and various employees of the
Respondent attended these union meetings. Union Representative Race credibly
testified that approximately two such meetings were held during the month of June.
The Respondent contends that in the spring of 1959, representatives of the Atlanta
Police Department contacted Respondent's building superintendent, Mount, and
informed him of suspected gambling activities with lottery tickets among the em-
ployees of the Respondent, and further contends that after receiving this informa-
tion the Hotel began making inquiries regarding the possibility of lottery tickets
and issued warnings to employees who were suspected of participating. The record
reveals that Superintendent Mount had been designated as a security officer for
the Hotel and had been deputized in that capacity by the police department, and
also that the Respondent reserved the right in their employment contracts to search
the lockers of their employees which were provided for them by the Hotel.
B. Interference , restraint, and coercion
1. Interrogations and threats
Savannah Benton, of the housekeeping department, testified that Union Repre-
sentative Race contacted her and left union authorization cards for the signatures
of employees, and that later she passed the cards out but did not actually sign up
any of the employees. Savannah Benton testified that during the middle of May
Respondent's assistant sales manager, Snyder, inquired about union "tickets," wanted
"to see it and see how it looked," and asked if an employee by the name of Howard
Dillard had given her one, and that Snyder then told Savannah, "Well, if I see him
with one I am gonna fire him." Savannah testified that about 2 weeks later, Snyder
and Respondent's building superintendent, Mount, then inquired of her if she "was
the head of it," and also told Savannah, "Well, I'm gonna just tell you, the union
ain't no damn good." Snyder testified that he went with Building Superintendent
Mount on one occasion when Mount questioned housekeeping maids about whether
or not they provided Howard Dillard with lottery tickets, but denied hearing any
statements attributed to Mount in regard to inquiries about union activities. Super-
intendent Mount testified that he had talked to Savannah and asked that she contact
Howard Dillard and "see if she couldn't get him to quit fooling with those
things. " Mount testified that he had seen Savannah Benton and Dillard passing
money, and also that at the times in question here he was not aware of any union
activity.
Rufus Taylor testified that during the later part of May Superintendent Mount
and Howard Dillard had a discussion in the locker room of the hotel, and that
2 A11 dates are 1959 unless specified otherwise
ATLANTA BILTMORE HOTEL CORPORATION 369
Mount asked Howard Dillard for "that card," and then told Dillard that Sales
Manager Snyder had seen the card in his possession . Taylor stated that shortly
thereafter Mount told him, "Rufus dey's going to fire Howard," and that Mount
then requested Taylor to have a talk with Dillard and to get the card back from him.
According to Taylor's testimony, Howard Dillard denied having any card and
Taylor then reported this information back to Superintendent Mount. Taylor testi-
fied that prior to 1954 he had been convicted on lottery charges, and on June 19
had again been convicted on lottery charges and is now awaiting judicial determina-
tion on the same. Mount testified that in addition ,to being building superintendent
he was also acting as security officer for the Hotel, and had been informed by the
Atlanta Police Department to stop the gambling activities of the Respondent's
employees. Mount testified that Sales Manager Snyder had told him that Howard
Dillard had a ticket, and that he then went to the locker room and inquired of
Dillard if he was "still fooling with the lottery." Mount stated that Dillard denied
any gambling activity, but refused to show him whatever it was he had in his hand,
and that Dillard then, "said something about a school or a church raffle. .
Mount testified that he did contact Taylor on the same day and requested that he
talk to Dillard, and had stated to Taylor, "If that is not lottery, he has got nothing
to worry about. Sales Manager Snyder testified that he also assisted in
security details of the hotel,and that their suspicion centered around the housekeep-
ing department. As to the locker room incident, Snyder stated that he had observed
Dillard holding something in his hand and was whispering to another employee when
he walked in on them, and then put whatever it was in his pocket and looked "like
he was trying to hide something." Snyder testified that he then called Superintendent
Mount, and Dillard then denied any possession of a lottery ticket, but refused to
show them whatever it was after being asked to do so. Snyder also testified that
at the time of this incident, in the middle or the third week in May, he was unaware
of any union activity.
Elsie Middlebrooks testified that on May 11 or 12 she had talked with employee
Savannah Benton and had indicated to her that she was interested in the Union, and
that she later signed up several of the other employees. Elsie testified that on
June 12 Sales Manager Snyder asked her if she knew anything about a card, and
that he then showed her a blank card .3 Snyder could not recall Elsie Middlebrooks,
but testified that by this time union cards "flooded" the hotel, and that they had
been passed out on the street and several employees had given cards to him.
Laura Martin testified that in May or June, Assistant Housekeeper Carrine Keheley
had asked her about union cards and had then told her, "Y'all know . . . all y'all
that was here before know how it was ithe other time if y'all lose you jobs
you can't get it back." Laura stated that Keheley had told her that the employees
had tried before to get a union, but that she had not been an employee at that time.
Keheley testified that she had never discussed union or union cards with the maids
at the hotel nor did she recall any conversation with employees about prior union
efforts to organize ,the Respondent although she did remember the previous attempt
some 10 or 12 years ago.
In addition to the above, the General Counsel also produced testimony relative
to discussions with employees by the Respondent's vice president and general mana-
ger, Beusse, on or about June 4 or 5. Savannah Benton testified that she was called
into the manager's office during her working hours and was asked by Beusse about
the Union, and that Manager Beusse on this occasion told her, "All them that didn't
join the union would be paid the same price that they paid the union." Savannah
testified on cross-examination that Beusse also told her that some day the Union
might get established but that the Hotel would treat the employees just as well
without a union , and that he could not fire anyone for attending union meetings and
that employees were free to attend such meetings. Annette Roberts testified that
in June the houskeeping department of about 35 employees were called into a meet-
ing and at which time Manager Beusse told the group that they had found some
of the employees joining a union , that the Union would not help, and that if the
employees had any questions or information they were to come to him about it.
Rufus Taylor testified that on June 4 he was called into the manager's office, and
that Manager Beusse then told him that he did not want to know anything about
the Union because "it is no good," and that they would be out on strikes and "When
dey has them strikes, we will hire other peoples and when it is over with you will
be out of a job. We won't give your job back." Taylor also stated that Manager
Beusse asked him to talk with other younger employees about the matter. Manager
8
A postal card issued by the Union ascertaining whether or not the employee desired a
secret Government election, and would designate the Union as the bargaining representative.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beusse testified as to these incidents , and stated that he called Savannah Benton into
his office on June 5 and told her that she had a right to join the Union and to attend
meetings; that he did not think the Union was necessary; that employees would have
to pay dues; that if they were called out on strike it would disrupt the entire hotel
operations; that no one would lose their jobs; that nonunion employees would draw
the same pay as union members; that he asked Savannah to talk to her friends; and
that he hoped their decision would be not to vote to join the Union. Beusse testified
that he talked to the housekeeping department employees around the latter part of
May or the first of June. Beusse stated that the primary purpose of his meeting
with the housekeeping department employees was that he had heard hotels were
being organized in Atlanta and that some of his employees were showing consider-
able interest. As to his discussion with Rufus Taylor, Manager Beusse testified that
it was very similar to his conversation with Savannah Benton as aforestated, and
Beusse also stated that there was some mention of Taylor contacting younger
employees.
2. Surveillance
General Counsel's witnesses, Rufus Taylor, Edna Roberts, Ethel Smith, and
Laura Martin, each testified that they had attended union meetings and had observed
Superintendent Mount in close proximity to the union hall. Taylor testified that on
June 8 he left the union meeting and started across the street when Mount drove
by, and that he had to step back to avoid being hit Edna Roberts testified that on
June 15 she left the union meeting and was standing with other employees at the
nearest car stop, 2 blocks from the union hall, when Mount stopped his car beside
them and then inquired, "Where have y'all been." Ethel Smith testified that on
June 15 she also left the union meeting, and at the car stop she and other employees
observed Mount in his car, and in the conversation that followed one of the em-
ployees offered Mount a union card. Laura Martin testified she observed Mount
on two different nights. On the first occasion, Mount and another person, referred
to as Robert Bennett, drove slowly by and then turned around and came back as
she was going to the union meeting, and, according to her testimony, she and Helen
Robinson then noticed Mount in the adjoining parking lot while in attendance at
the meeting in the union hall. Laura Martin also testified that on a Monday night
in June, prior to the above incident, she was coming from a union meeting and
that on this occasion she also observed Mount driving slowly by.
Superintendent Mount testified that the duties assigned to him at the hotel required
his constant attention, that he has no certain hours, and that he drives between the
hotel and his home many times frequently using Merritts Avenue in the locality of
the union hall. Mount denied that he was ever in the parking lot as so attributed
to him by Laura Martin, but stated that he did remember seeing several employees
at a car stop on his way home from the hotel one evening and slowed down as he
"thought maybe it was an accident or something " Mount testified that a few brief
remarks about union cards were then exchanged, in a light-hearted vein, between
him and the group.
Robert Bennett, who was identified by Laura Martin as being with Mount at the
parking lot adjoining the union hall, testified that he had never been with Mount
near the parking lot on any occasion, but stated that he himself had been in the
locality once with his date and several other friends, and that they had then been
invited to attend the union meeting.
3. Promising of monetary benefits
Annette Roberts testified that she signed a union card about May 1, and that about
3 weeks after she had attended the first union meeting, Sales Manager Snyder asked
her for a union card and inquired as to when the next meeting would be. Annette
also testified that Snyder then told her he would give $10 for information as to the
next meeting and a showing of her union card.
Sales Manager Snyder testified that he never had any union discussion with
Annette Roberts and had never promised any $10 for union information Snyder
further stated that it was unnecessary to offer any money to find out what union
cards looked like because employees had given him cards and they were found lying
on the floor. As to union meetings Snyder testified that management was "perfectly
aware" of them, that it was common knowledge they were held on Monday evenings,
and that employees were free to attend.
4. Analysis and conclusions
In determining whether an employer's conduct amounts to interference, restraint,
or coercion within the meaning of Section 8(a)(1), the test is not the employer's
ATLANTA BILTMORE HOTEL CORPORATION 371
intent or motive, but whether the conduct is reasonably calculated or tends to inter-
fere with the free exercise of the rights guaranteed by the Act. N.L.R.B. v. Illinois
Tool Works, 153 F. 2d 811, 814 (C.A. 7). Then, too, on the issue of whether the
Respondent violated Section 8(a)(1) of the Act, it is not required that each item
of the Respondent Company's conduct be considered separately and apart from all
others, but consideration must be given to all such conduct as a whole. N.L.R.B. v.
Fopeil Bros., Inc., 216 F. 2d 66, 68 (C.A. 7). If the setting, the conditions, the
methods, the incidents, the purpose, or other probative context of the particular
situation can be appraised, in reasonable probability, as having the effect of restrain-
ing or coercing the employees in the exercise of such rights, such activity on the part
of the employer is violative of this section of the Act. N.L.R.B. v. Protein Blenders,
Inc., 215 F. 2d 749, 450 (C A. 8).
In applying these principles to the evidence in this case, I find that Respondent's
course of conduct violated Section 8(a)(1) of the Act, in the instances and for the
reasons hereinafter indicated.
This record establishes that the Union started its organizational campaign in the
spring of 1959, and in doing so solicited the support of the Respondent's employees.
In addition, the testimony for the Respondent indicates, and it is their contention,
that the hotel was also having some difficulty with illegal lottery tickets attributed to
certain of its employees. The Company then admits inquiries among its employees,
but contends that its only purpose was to ascertain information as to lottery tickets
upon notice from the police. It is noted, however, that the Respondent could not
specify any exact date on which it received warnings from the police department.
Superintendent Mount and Sales Manager Snyder further contend that at the time
of the interrogations in question here, they had no knowledge of union activities
among the employees. I find that these contentions are without merit and are
rejected.
Savannah Benton credibly testified that initial inquiries made of her by Mount and
Snyder in May, referred specifically to union "tickets." It was also established
that prior to these inquiries Savannah had been given 24 union cards and that she had
distributed them among several of the other employees Rufus Taylor credibly testi-
fied as to the locker room incident involving the questioning of Howard Dillard by
Mount and Snyder, and placed the date thereof sometime between May 23 and 30.
Relative thereto it should be noted that union meetings were then held starting on
the evening of May 25, and Snyder testified that management knew of the meetings
and that "it was common knowledge." In regards to the statements of Taylor, the
Respondent contends that he made no references in his testimony to union cards in
relating the inquiries made of him by Mount and Snyder, and that the interrogations
of Taylor, therefore, only involved information as to lottery tickets. Taylor's own
testimony referred to inquiries about "cards," but it appears highly unlikely to me
that the questioning of Taylor as to the activities of Howard Dillard involved any
genuine or authentic ascertainment about lottery tickets considering the sequence of
events here, and the complete lack of any specific mentioning, understanding, or
references to lottery tickets as must be deduced from Taylor's testimony. I find
that at the time of these inquiries the Respondent had knowledge of union activities.
In addition to the above, the Respondent urges that I discredit the testimony of
Savannah Benton on the grounds that she merely recalled the term "Union" in re-
lating her testimony about the inquiries, and that I discredit Rufus Taylor on the
basis that he had prior conviction on a lottery charge. While this previous conviction
of Taylor must go the Respondent's defense and not to the discrediting of the
witness, as the status of a crimen falsi crime is lacking, yet, even accepting, arguendo,
the Respondent's counsel's contention as to these witnesses, it is rejected for the
reasons heretofore stated, and also on the basis of the testimony given by the Re-
spondent's own witnesses. General Manager Beusse testified that Savannah Benton
was "an old faithful employee," and in explanation as to why he discussed union
matters in is office with Savannah Benton and Rufus Taylor, Manager Beusse stated,
"they were old trusted employees." It appears to me that Beusse's long-time
employer-employee relationship with these two witnesses over a span of many years,
duly establishes his categorical characterization that these witnesses were trust-
worthy, and for reasons readily apparent, his statements in this respect far outweigh
the arguments by the Respondent's own counsel to the contrary. Superintendent
Mount also testified that he talked with Savannah Benton and requested that she
contact Howard Dillard, and "see if she couldn't get him to quit fooling with those
things," and that he contacted Rufus Taylor for the same purpose and with like-
instructions. In these overtures to 'Savannah and Taylor, irrespective of the real
purposes, the Respondent again displayed their full trust and confidence in them, but
now contend that the same employees as witnesses completely lack the veracity,so
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
generously bestowed upon them on previous occasions. Had the Respondent, at the
time in question here, instituted a genuine investigation as to possession of lottery
tickets, it appears most unusual to me that they would have adoped these methods
and vague procedures when Superintendent Mount had been deputized by the police
department as the hotel security officer, and the management had also reserved the
right, in their individual employment contracts, to search the lockers of their em-
ployees. It is also noted that Manager Beusse did not directly corroborate the testi-
mony of Mount and Snyder as to investigations concerning lottery tickets, but on the
contrary freely admitted his concern, conversations, and talks, relative to union
ettorts and activities, with his employees.
Since the Respondent bases its interrogations on suspected gambling operations,
there is considerable additional evidence in the record on this phase of the case.
Mount testified that the Respondent had a Sears and Roebuck show at the hotel,
that in this connection a loss of clothing had occurred, and that some several weeks
after the locker room incident involving Howard Dillard, as aforestated, the Atlanta
Police Department searched the employees' lockers at the hotel for the lost clothes,
and that in so doing discovered lottery tickets. Mount testified that the police then
delivered the gambling containers and articles to his office and that he and Snyder
discussed the matter with Manager Beusse. As previously stated in this report,
Mount and Synder were totally unable to recall any date whatsoever on which they
had been initially informed by the police of suspected gambling operations among
the employees, but the contention is that it was prior to the union inquiries as set
forth in the complaint. However, there is no substantiated or corroborated evi-
dence by the Respondent which shows any gambling warnings or intervention from
the police until clothing was lost at the Sears, Roebuck show, and which admittedly
occurred some several weeks after the locker room incident involving Howard
Dillard and the other initial interrogations. Snyder testified that he was told by
Mount that the lottery situation had to be corrected or there would be embarrass-
ment for the hotel, and rafter testifying as to the police search for lost clothing Snyder
also stated that "they didn't want to cause any embarrassment." Superintendent
Mount further testified that in the 3 years of his working at the hotel, the lottery
matter had only once been brought to his attention, and stated "it was only one time
that they came to me." It becomes readily apparent to me, during the period
involved herein, that the Respondent had only one contact with the police relative
to lottery tickets, that the warnings "to clean up" were made on the discovery of
gambling articles while searching for the lost clothes, which occurred subsequent
to the interrogations in litigation herein; and that substantiated evidence is totally
lacking in support of the Respondent's contention that there had been a police notice
on any prior occasion material hereto. It accordingly follows that the interroga-
tions and statements credibly attributed to the Respondent involved union cards
and activities and had no relation with suspected lottery tickets.
In addition hereto I also credit the testimony of Elsie Middlebrooks as to an
inquiry by Snyder about union cards, as it was not directly denied other than
testimony by Snyder that he could not recall who the witness was, and that by
June 12 union cards "flooded" the Hotel. The contention by the Respondent that
there was no necessity for such an inquiry since union cards were then openly
noticeable to all, is hereby rejected.
Annette Roberts testified that Snyder offered her $10 for union information, as
-aforestated, and I credit her testimony as to this incident. Snyder denied any dis-
cussion as to this matter , and again stating that since union cards and meetings
were now known to all there would be no reasons to seek such information. While
accepting Snyder 's testimony , to the effect that management was then well aware
of union efforts, I am convinced by the pattern of events and testimony in this
record that the Respondent instigated further inquiries in its attempt to ascertain
individual identity of those most active in support of the union , and by so doing
to detail their otherwise general knowledge of union efforts and to discover the
extent of specific employee participation therein.
The surrounding circumstances and pattern of events in this case , which, under
the conditions , implications made , and methods used, are singly and in combination
unfair labor practices , and upon which it is found Respondent violated Section
8(a)(1), for the reasons herein stated , are: (1 ) Snyder 's and Mount 's interrogation
of Savannah Benton as to union membership and inquiring if she "was the head
of it"; ( 2) Snyder's threat to Savannah Benton that if he saw employee Dillard with
a union card he would fire him; (3 ) Mount's interrogation of Rufus Taylor as to his
possession of a (union ) card ; ( 4) Mount's threat to Rufus Taylor that they were
going to fire Dillard for his union activity; (5) Snyder's interrogation of Elsie Middle-
brooks as to union cards; and (6) Snyder 's promise of monetary reward to Annette
Roberts in exchange for union information.
ATLANTA BILTMORE HOTEL CORPORATION 373
It is found, therefore, that the conduct described above has had the effect of inter-
fering with the rights guaranteed to employees by Section 7, and constituted inter-
ference, restraint, and coercion in violation of Section 8(a)(1) of the Act.
The complaint in this case also alleged, as aforestated, that the Respondent kept
under surveillance union meetings and activities of its employees. The testimony
for the General Counsel in this respect, was largely based on statements that Superin-
tendent Mount had been seen in his car on a public street in the vicinity of the
union hall after a union meeting, and that brief remarks pertaining to union cards
were then exchanged between Mount and the employees. Only one witness testified
that Mount was noticed in the parking lot during a union meeting, and this testimony
was credibly refuted by Robert Bennett, who was attributed to have been with Mount
on this occasion. While I have some reservations and hesitation in accepting all
of the Respondent's testimony in explanation of Mount's presence at the time in
question here, I do not believe, however, that the General Counsel has sustained
this allegation of the complaint by a preponderance of substantial evidence, other
than mere suspicion, speculation, and surmise, and accordingly that portion of the
complaint is hereby dismissed.
I also find upon a review of the record as a whole that the preponderance of
substantial evidence is insufficient to sustain the General Counsel's allegation that
Assistant Housekeeper Keheley threatened to discharge employees for their union
activities. Accordingly, this portion of the complaint is hereby also dismissed.
Additional and other 8(a)(1) statements attributed to Manager Beusse were
also litigated although not alleged as such in the complaint. I find such statements
under the particular conditions and circumstances as aforestated, not sufficiently
coupled with threats or promises to constitute other than predictions or prophecies,
and as such are protected by Section 8(c) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring in
connection with its operations described in section I, above, have 'a close, intimate,
and substantial relation 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 the Respondent engaged in certain unfair labor practices, it
shall be recommended that the Respondent cease and desist therefrom and take
certain affirmative action which it is found necessary to effectuate the policies of the
Act.
Inasmuch as Respondent 's antiunion activities are not so extensive in manner and
scope, and are not of such an aggravated character as to indicate an attitude of
general opposition to employees ' rights, it will be recommended that Respondent
only be required to cease and desist from in any like manner interfering with, re-
straining , or coercing its employees in the exercise of the rights guaranteed them
in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By interrogating employees as to their union membership and activities,
threatening employees with discharge, and promising monetary reward for dis-
closure of union activities, thereby interfering with, restraining, and coercing them
in the exercise of their 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) oftheAct.
4. The activities set forth in paragraph numbered 3, above, are unfair labor
practices affecting commerce within the meaning of Section 2(6) and (7) of the Act
5. The Respondent has not violated Section 8(a)(1) in the alleged surveillance
by Mount, nor has there been a violation in the alleged threat of discharge by
Keheley.
[Recommendations omitted from publication.]
577084-61-vol 128 25