Briarwood Hilton

National Labor Relations Board - Board Decisions

Feb 20, 1976

222 N.L.R.B. 986 (N.L.R.B. 1976)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McMullen Corporation , d/b/a Briarwood Hilton and
Hotel, Motel, Restaurant Employees , Cooks & Bar-
tenders Union, Local 24, AFL-CIO. Case
7-CA-12019
February 20, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On December 5, 1975, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the Re-
spondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent McMullen Corporation,
d/b/a Briarwood Hilton, Ann Arbor, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Administrative Law
Judge's recommended Order.
pany, has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(1) and (3) of the
Act. In substance, the complaint alleges that on May 13,
1975, Respondent discharged its employee Marvel Turner
(Mayotte) because of her activities on behalf of and adher-
ence to the Union, and, by.reason thereof and by other
conduct set forth in the complaint, Respondent also has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
Respondent's answer to the complaint denies that it has
engaged in the alleged unfair labor practices. A hearing in
this proceeding was held in Detroit, Michigan, on Septem-
ber 11, 16, and 17, 1975. Posthearing briefs were filed with
the Administrative Law Judge by General Counsel and Re-
spondent.
Upon the entire record in the case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a Michigan corporation, operates a hotel
and restaurant in the city of Ann Arbor, Michigan. During
the calendar year 1974, which period is representative of
the Company's operations, Respondent derived gross reve-
nues in excess of $500,000 and purchased and caused to be
shipped to its Ann Arbor premises from points outside the
State of Michigan foods, beverages, cleaning materials, and
other goods valued in excess of $5,000. Respondent admits,
and I find, that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing those findings.
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon a
charge and an amended charge respectively filed on May
14 and May 23, 1975, by Hotel, Motel, Restaurant Em-
ployees, Cooks & Bartenders Union, Local 24, AFL-CIO,
herein called the Union, a complaint, dated June 30, 1975,
was issued alleging that McMullen Corporation, d/b/a
Briarwood Hilton, herein called Respondent or the Com-
A. Background
Prior to 1975, the Company recognized the Union as the
representative of its restaurant employees and since then
has been party to collective-bargaining agreements with
that organization. The current agreement expires in Janu-
ary 1977. At least as early as December 1974 the
Company's unrepresented employees began discussing the
Union among themselves and also, from time to time, with
the Union's representative. Such activity has been open
and continuous and has been known to company manage-
ment. Thus, General Manager Hans Franke testified that
in February 1975 he learned that the Union was engaged in
an organizational drive, that its business representative,
Dennis Tap, had held meetings in the hotel with the em
ployees, and that Marvel Turner, a maid employed in the
housekeeping department, favored the Union.'
i All dates refer to 1975 unless otherwise indicated.
222 NLRB No. 158
BRIARWOOD HILTON 987
In April, the Union intensified its organizing efforts.
Marvel Turner obtained authorization cards from Mary
Mueller, a kitchen employee and the union stewardess.
Turner testified that she spoke -to approximately 18 em-
ployees about the Union and obtained signed authoriza-
tion cards from 12 employees which she transmitted to the
Union.2 On May 2, the Union filed with the Board=in Case
7-RC-13004 a petition requesting certification as represen-
tative of "all employees of the Employer [the Company]
including maids, housemen, maintenance employees, front
desk clerks, auditors, telephone operators, porters, bell per-
sons and laundry employees, but excluding supervisory,
confidential employees,- managers and guards as defined in
the National Labor Relations Act." On the same day the
Union directed a letter, to the Company advising that it
represented a majority of the employees in an appropriate
unit, offering to demonstrate its majority status, and re-
questing a meeting for the purpose of negotiating a collec-
tive-bargaining agreement. The- Company received copies
of the- -representation petition and the Union's letter on
May 63
The complaint alleges that Marvel Turner was dis-
charged on May 13 because of her activities on behalf of
the Union and that the Company further violated Section
8(a)(1),of the Act by:
(a) On or about April 28 and May 5, 6, and 16, 1975,
coercively interrogating employees as to their union activi-
ties, sympathies, and desires.
(b) On or about April 28 and May 5 and 6, 1975, threat-
ening employees with adverse changes in employment con-
ditions for engaging in union activities or for supporting
the Charging Party.
(c) On or about April 28 and May 5 and 6, 1975, solicit-
ing grievances from its employees and making the implied
promise that it would adjust the grievances in order to dis-
courage support for, the Charging Party.
, General Counsel's only, witnesses, other than the brief
testimony by Union Business Representative Dennis Tap,
were three employees, Marvel Turner, Craig Golab, and
Raman Mullick. Mullick's and Golab's testimony was lim-
ited to, conversations and meetings with Company General
Manager Hans Franke and the larger part of Turner's testi-
mony also concerned conversations with Franke. Franke
denied having engaged in most of the unlawful conduct
described by these witnesses, either by denying that the
events occurred or by giving different versions of the
events than described in the testimony of General
Counsel's witnesses. Thus, a significant issue in this case is
Franke's truthfulness and reliability as a witness at the
hearing. Franke is a soft-spoken individual. His testimony
was given deliberately and,thoughtfully. He answered all
2 There is no evidence that the Company knew that Turner had been
soliciting union authorization cards.
3 Union Business Representative Dennis Tap testified that on May 5, in a
conversation with Company General Manager Hans Franke, the latter ac-
knowledged receipt of the Union's May 2 letter and informed Tap that the
Company would not voluntarily recognize the Union and that the question
of representation should be decided at an election . Franke, whom I credit,
testified that he met with Tap on May 6, not May 5, but that on the night of
May 5 he heard from employee Judy McCulley that the Union had intensi-
fied its organizational effort.
questions put to him directly and forthrightly. He showed
an understandable uncertainty as to the precise dates on
which some events occurred, but rather than detract from
the reliability of his testimony it reflects that his testimony
was based upon his recollection of the events and not upon
notes or other material that may have been prepared be-
fore the trial. I am of the opinion that Hans Franke was a
truthful and reliable witness. I generally credit his testimo-
ny. The testimony given by Turner Golab, and Mullick to
a greater or lesser extent was self-contradictory. Also, there
are significant disparities in the testimony of Golab and
Mullick about a meeting they both attended. Further, each
of the three has a bias against the Company. Mullick is no
longer employed by the. Company and has filed a civil ac-
tion against the Company; Golab testified that his resigna-
tion is "under negotiation"; and Turner claims to have
been unlawfully discharged by the Company. I am of the
opinion that Turner, Golab, and Mullick were less reliable
witnesses than Franke.
B. Interference, Restraint, and Coercion °
1. Craig Golab
Craig Golab, who has been employed by the hotel for 5
years and at the time of the hearing was the night auditor,
testified that one evening in April he had a brief conversa-
tion with Franke in which Franke asked what Golab
"thought of the employees' interest in the union and did
[Golab] think there was a morale problem." Golab replied
that he did not believe there was much of a morale prob-
lem in the hotel and that the union interest was centered in
the housekeeping department. Franke denied having had
such conversation with Golab. Franke testified that from
time to time he had conversations with Golab, as well as
with other employees, in which he asked were they happy
on the job, how things were going, and similar questions, in
order to obtain information as to what was happening in
the hotel and as to the attitude and morale of the employ-
ees. I credit Franke's denial of Golab's testimony and find
no violation of the Act proved by Golab's testimony con-
cerning an all-ged conversation with Franke in April-1975.
2. Marvel Turner
Turner testified that towards the end of April 1975
Franke had a conversation with her in his office. Accord-
ing to Turner, after some small talk between the two about
Turner's daughter who was a babysitter for Franke's fam-
ily, Franke suggested that she had the respect of the other
women and that they paid attention to Turner's opinions.
° At the hearing a motion by General Counsel to amend the complaint by
adding an allegation that in January 1975 General Manager Hans Franke
advised employees at a meeting that another employee had been terminated
because of his union activities was denied and testimony adduced tending to
support such allegation was stricken. On October 2, 1975, an order was
issued asking the parties to show cause why the Administrative Law Judge
should not reverse his ruling denying said motion. and why the record
should not be reopened to permit the parties to adduce evidence with. re-
spect to matters within the scope of the proposed amendment to the com-
plaint In response to the order to show cause , General Counsel withdrew
his motion to amend the complaint '
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Turner denied that she had such standing among the em-
ployees. Franke then said that he knew there was some
tension in the housekeeping department and wanted to
know what was disturbing the women. Franke asked Turn-
er if she knew who Mary Mueller was. (Mary Mueller was
the union stewardess.) He stated to Turner that Mueller
"worked in the kitchen and that the kitchen hated him and
there was a lot of tension there." Franke denied having had
such conversation with Turner. I do not credit Turner with
respect to the alleged conversation and find that her testi-
mony in regard thereto does not establish any violation of
the Act.5
Turner had a meeting with-Franke on the evening of
May 5.6 According to Turner, Franke began the conversa-
tion by saying there had been quite a bit of talk "about
union." She asked him if he was trying to use her to betray
the girls. He then asked Turner why the employees wanted
to see a union man and whether the girls in the housekeep-
ing department were for or against the Union. Turner did
not answer his questions . Franke then described what he
had done for the employees, such as providing them with
good insurance , with new uniforms, and with free meals.
He asked what more could a union offer the employees. He
said that a union would only hurt the employees by taking
away the free meals and the maids would have more rooms
to do and they would have to pay money to the Union
which would be wasted. Turner testified that much more
was said but she "just didn't answer to anything." Then,
according to Turner, "I told him that I would not say any-
thing if I was for or against the union, because I thought it
wouldjeopardize my job.... I said `are you asking me to
represent the group and bring back what they feel?"'
Franke replied, "I want you to talk to the girls and then tell
me what [are] their gripes and ... what's going on." Turn-
er asked for permission to meet with the employees for a
half hour.? Arrangements were made for her to meet with
the other employees in the housekeeping department be-
tween 4 and 4:30 the next day. Franke's version of the
conversation is that Turner complained to him that the
maintenance man (Executive Housekeeper Nita Swick's
husband) was interfering with the direction of the activities
5 Turner's recollection of the conversation she allegedly had with Franke
in April by her own admission was limited. While a faulty memory is not to
be equated with untruthfulness , it tends to impair the reliability of the testi-
mony given by such witness The manner in which Marvel Turner testified
and her selective recollection of events suggest that her answers , particularly
on her direct examination , were to some degree rehearsed responses to an-
ticipated questions rather than recitals from memory . Also, various incon-
sistencies between her direct examination and her cross-examination reflect
an uncertain memory of what transpired. I am of the opinion that Turner
was an unreliable witness.
6 On her direct examination, Turner testified that she met Franke in the
hallway and he asked her to come to his office . On her cross-examination,
Turner testified that when she reported for work on May 5 Nita Swick told
her that Franke wanted to speak with her and she went to his office. Ac-
cording to Franke, in late April Turner asked to see him but he did not then
have the time . On a second occasion , he again was unable to meet with her
when she asked to see him . Finally, she approached him on May 5 and he
invited her to his office.
7 On cross-examination Turner testified that in the same conversation she
complained to Franke that the maintenance man (who is Nita Swick's hus-
band) was interfering with the privacy of the women in the housekeeping
department and that although she was speaking for herself she had heard
similar complaints from others.
in the housekeeping department and that he was interfer-
ing with the opportunity of the employees in the depart-
ment to consult with the executive housekeeper privately.
Franke asked Turner whether she was voicing a personal
complaint or whether the entire crew had the same com-
plaint. Turner said she did not know about the attitude of
the other women but could find out. She asked for permis-
sion to speak with the women in a room of the hotel. Ar-
rangements were made for such meeting to be held the next
day and Franke also arranged for Coca-Cola and coffee to
be given the employees .8 Although I believe that Franke's
version of his May 5 conversation with Turner is somewhat
more accurate than Turner's, nevertheless, I find that
Turner understood, and undoubtedly Franke intended that
she would understand, that Franke wished to learn from
her what were,the complaints of the employees.
Turner reported the results of her meeting with the
housekeeping department employees to Franke about 8
p.m. on May 6. Turner testified that she told him that the
girls were disturbed by the attitude of Jackie Brandes, the
assistant housekeeper. Subsequently, Brandes was trans-
ferred to an office position .9 Turner also testified that the
employees wanted to know more about the insurance pro-
gram.10 She also told him that the employees were upset
because Jackie Brandes and Nita Swick's husband were
always in the housekeeping office, and that the employees
wished to hear a debate between Franke and the union
representative. According to Turner, Franke indicated that
he would not engage in such debate. Franke' s version of
the meeting is not substantially different from Turner's.
According to Franke, Turner reported that the housekeep-
ing employees were concerned by what they felt was an
invasion of their privacy by Nita Swick's husband. She also
said that the employees wished a more comprehensive ex-
planation of their benefits under the insurance program
which had been adopted on April 27, and that the employ-
ees wanted Union Representative Dennis Tap and Franke
to debate the issues before them. According to Franke, he
responded that he was not then prepared to say anything
about the problem involving Mrs. Swick and her husband.
He told Turner that he would arrange for a representative
of the insurance company to explain the benefits program
to the employees and he avoided giving a response to the
request for a debate.
I find that Franke obtained the assistance of Marvel
Turner to ascertain what the gripes or complaints of the
housekeeping employees were. The fact that he permitted
the meeting to be held on company time, that he arranged
for the employees to have a private room in which to meet,
and that he provided them with refreshments suggested to
the employees that his sponsorship of the gripe session was
not to be without purpose and that they could anticipate
that he would attend to their complaints. To some extent
such anticipation was quickly realized. In response to the
8 Franke testified that the subject of the Union did not arise during his
May 5 conversation with Turner.
9 Franke confirmed that Jackie Brandes at the time of the hearing was
working as a payroll clerk
10 According to Franke, he arranged for a representative of the insurance
company to meet with employees on Friday, May 9, and to explain the
benefits to which they were entitled under the plan that had been instituted
in April.
BRIARWOOD HILTON 989
complaint that the employees did not-know the extent of
their benefits under the Company's newly inaugurated in-
surance program, Franke promptly arranged for an insur-
ance representative to, meet with the employees and to ex-
plain the benefits to them.1'
The solicitation of employee grievances during an orga-
nizational campaign accompanied by a promise, express or
implied, that the grievances will be remedied is a violation
of the Act. Such conduct constitutes an unlawful restraint
upon and interference with employees' self-organizational
rights guaranteed-under the Act because implicit therein is
the promise that benefits will be awarded to them by their
employer so long as they are not represented by a labor
organization and because it tends to frustrate the employ-
ees' organizational efforts by showing them that union rep-
resentation is unnecessary.'? Accordingly, I find that by
reason of Franke's conduct, described above, in soliciting
employees' gripes or complaints, Respondent has violated
Section 8(a)(l).
3. Meeting of front desk employees
At 2 p.m. on May 6, Franke held a meeting with the
approximately eight front desk employees. Such meetings
with the staff are held on a regular basis. Following a dis-
cussion of various operating problems, Franke began to
talk about the Union. Craig Golab and Raman Mullick
testified for General Counsel as to what was said. Franke
was the only witness who testified for Respondent with
respect to the meeting. The most significant discrepancy
among the three versions concerns the testimony of Golab
that Franke said, "[I]f the union came in that we would
lose our benefits, including uniforms, meals and current
level of wage." Mullick did not testify that any such state-
ment was made and Franke denied having made such
threat. I do not credit Golab in this respect. It is my opin-
ion that the most accurate description of what was said at
the meeting was given by Franke. Accordingly, the sum-
mary set forth below is based upon the testimony of Hans
Franke whom I credit in respect thereto.
Franke began the discussion about the Union by inform-
ing the group that the ,night before a front desk employee
had informed him that the Union had successfully orga-
nized the hotel's employees, and that he (Franke) had re-
ceived a representation petition from the National Labor
Relations Board. He stated that such activity had occurred
in the past and would continue in the future. Franke told
the employees that the Union could not give them job se-
curity. He pointed out that union representation had not
insured the jobs of the restaurant employees. As examples
he cited two instances where restaurant employees had
been discharged and the Union did not take their cases to
arbitration. Franke expressed his disappointment at the
fact that despite his open door policy under which employ-
ees could freely speak' to him about their problems they
ii Franke dented that the subject of Jackie Brandes arose during his May
6 discussion with Turner.
12 House of Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB
No 123 (1974), N.L.R B. v Tom Wood Pontiac, Inc, 447 F.2d 383, 384-385
(C.A. 7, 1971).
nevertheless were seeking the intervention of a union. He
pointed out that in the past he had been able to solve the
employees' problems and had been able to respond to their
problems not with words alone but by acceding- to the em-
ployees' requests. As illustrations he pointed out that the
Company was now giving the employees uniforms, free
meals, and an insurance program, and had given them an
increase in pay. He repeated that with his open door policy
he believed that they would be able to solve their problems
in the future as they had done in the past. Franke pointed
out to the employees that they were enjoying higher wages
and more benefits than the employees at the only union-
ized hotel in Ann Arbor. In that connection, he indicated
that the Union could make promises to'the employees but
could not guarantee them anything because all benefits
were subject to negotiation. In his closing remarks, Franke
stated that he would do anything in his power to keep the
Union from coming in. According to Franke, "I told them
that as long as I had the idea that the majority of the
employees were not in favor of the union, that I would
speak out. . . . I would do everything in my power to take
care of the employees that did not want to have the union
in the hotel ...."
Although Franke in his talk to the front desk employees
indicated with no uncertainty that he intended to vigor-
ously oppose the Union's organizational effort, he did not
say anything that is statutorily offensive.
4. Raman Mullick
Hans Franke testified that on May 7 Union Business
Representative Dennis Tap'made an offer to him that if he
would recognize the Union-as the representative of the ho-
tel employees the Union would enter into a contract for I
year which would involve no change in conditions of em-
ployment. Later the same day, Franke informed Raman
Mullick about the substance of his talk with Tap. This inci-
dent is not alleged in the complaint as a violation of the
Act and I find that nothing improper occurred by reason of
the described conversation between Franke and Mullick.
Mullick testified that on May 16 he spoke with Franke
about his job and Franke said, " [H]e could not do any-
thing for me, especially after I had contacted the union and
told them that he was threatening to lay me off." Franke"
denied having made such remark. I credit Franke and find
no violation of the Act by reason of the May 16 conversa-
tion between Mullick and Franke.
C. The Discharge of Marvel Turner
Marvel Turner was employed as a maid by the Company
from September 10, 1974, until May 13, 1975. Her duties
involved cleaning guestrooms and public rooms and doing
laundry. Turner was active on behalf of the Union. Franke
testified that he knew of her union adherence as early as
February and Nita Swick, who was appointed executive
housekeeper towards the middle of April , testified that she
became aware of Turner's union interest after she was
hired by the Company in December 1974.
From the date of her hire until sometime in January or
February 1975, Turner worked as a full-time day shift
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
housekeeping employee. Thereafter, she continued in the
same. job but as a part-time employee. Her work schedule
was 25 hours per week, 5 hours on each weekday af-
ternoon. Beginning the week of April 27, her schedule was
changed to 25 hours distributed over 4 days of the week,
Monday through Thursday, inclusive. She was supposed to
work 6 hours on 3 days and 7 hours on the 4th day. This
change in Turner's work schedule developed after a deci-
sion had been reached to discontinue part-time employ-
ment for regular employees. When the decision was made,
there were two part-time. employees, Joyce Gordon and
Marvel Turner. Gordon thereafter began working 40 hours
per week. However, when Turner was informed that the
Company wanted her to work 40 hours per week, she com-
plained that she was unable to do so because if she worked
more than 25 hours per week she would lose benefits she
was receiving under a welfare program . The Company was
willing to accommodate Turner and she was, permitted to
continue as a part-time employee. Both Swick and Turner
testified that under the new schedule initially Turner was
supposed to work from 4 to, I I p.m. on Mondays. Turner
testified that the 7-hour day was changed from Monday to
another day, but Swick testified that it was never changed.
However, Turner did not work 7 hours on any of the three
Mondays between the inauguration of the new schedule
and her discharge on May 13. Swick did not testify that she
reprimanded Turner for not working 7 hours on either of
the first two Mondays of the new schedule.
Nita Swick, the executive housekeeper, testified that she
had been dissatisfied with Turner's work performance, was
of the opinion that a full-time employee was required in the
place of Turner, and had been planning to dismiss Turner.
However, according to Respondent, certain events that oc-
curred on May 12 were responsible for the decision to dis-
charge Turner the next day.
Turner had been absent from work on Wednesday and
Thursday, May 7 and 8. When Turner next reported for
work on Monday, May 12, Swick asked for her doctor's
excuse , but Turner did not have one with her.13 That night
Franke observed Turner eating in the coffee shop. This
violated an explicit employee rule even though at the time
the coffee shop was closed to the public. Later the same
evening, at about 10 p.m., as Turner was leaving the prem-
ises she met Franke , who also was leaving the hotel. He
asked her why she was leaving and she replied that it was
10 o'clock and time to go. Also, Franke observed that she
was parked in the area immediately in front of the hotel.
According to Swick, the women who work at night are
supposed to park at the side of the hotel, while employees
who work during the day are required to park their cars in
back of the hotel.
The next morning, May 13, Swick telephoned Turner
and advised Turner that she was discharged.14 Swick testi-
fied that she told Turner that the reasons for the termina-
13 Turner testified that when Swick asked for her doctor's excuse she
inquired if she could go home to get it, but Swick said that it was unneces-
sariy and that she could bring it the next day
4 To the extent that it is inconsistent with the testimony of Franke and
Swick, I do not credit Turner's testimony regarding the events on May 12
and 13.
tion were that Turner had been in the coffee shop without
authorization, had parked in front of the hotel, had not
been doing the laundry, `and was not even working her
scheduled-25 hours per week, although the hotel needed
someone to work 40 hours. Turner telephoned Franke and
informed ,him that, she had been discharged and com-
plained that it was not fair. Franke told her that there was
nothing he could do for her. Also, Franke told her not to
come to the hotel for her paycheck and that it would be
sent to her.
According to the testimony, of Franke and Swick, about-
8:30 a.m. on -May 13 when Franke came to the hotel he
asked Swick if she had given Turner permission to eat in
the coffee shop while on duty, to park her car in front of
the hotel, and to leave work early. Swick responded that
she had not given Turner such permission. Then, according
to Swick, she complained to Franke that Turner had.not
been doing the laundry which meant that the-maids who-
came to work in the morning were delayed in cleaning the
rooms, and that Turner "just seemed to go and come as she
pleased. She just didn't seem to want to follow any orders."
Swick also complained that the hotel needed someone to
work 40 hours because too many complaints were being
received about the restaurant bathrooms not being clean.
Swiclc then stated that, Turner should be discharged and
someone should be found who would follow orders and
who would work 40 hours per week. Franke replied that
Swick was boss and it was her decision whether to dis-
charge Turner.15 Both Franke and Swick testified that it
was Swick who made the decision to discharge Turner.
That same morning Swick prepared a separation notice
which listed as the reasons for Turner's discharge: "Did
not do all her duties, sat in coffee shop, up-at front desk
too much. Would not work 40 hr. week. Said he could only
work 25 hr. week. Needed her 40 hr. a week & she did not
stay her full 25 hr. a week."
The issue is not whether Turner was a satisfactory or
unsatisfactory employee or whether, as Swick testified, she
would have been discharged within 2 or 3 weeks had she
not been discharged on May 13, but whether Turner was
precipitately discharged on May 13 because of her union
activities. Respondent's explanation for Turner's sudden
dismissal on May 13 is not persuasive . It is Respondent's
claim that one problem with Turner was that she refused to
work more than 25 hours per week which meant that the
laundry wasn't done on time and that certain public rooms
were not adequately cleaned. If that were the case , no rea-
son is given why Turner was discharged before the end of
a workweek and before any replacement was hired. Her
alleged derelictions on the night before her discharge were
not so serious as to have required her immediate termina-
tion.
The weakness of Respondent's explanation for Turner's
15 Franke's version of his conversation with Swick did not differ materi-
ally from Swick's version . According to Franke, Swick complained that she
was unable to work with Turner , that Turner contradicted her orders to
other maids , that Turner refused to work more than 25 hours , that the hotel
needed someone to work longer hours, that Swick discovered that Turner
was not even putting in the 25 hours she was supposed to, that Turner didn't
do the laundry , and that Swick could not depend upon Turner . Franke
advised Swick that she was the boss and it was up to her to decide what to
do about Turner.
BRIARWOOD HILTON 991
discharge, weighed together with the facts that Turner was
known to Respondent as an active union adherent and that
Respondent was vigorously opposed to the organization of
its hotel employees, raises a suspicion that-Turner's union
activities may have been a factor which impelled the deci-
sion to dismiss her on May 13. However, a violation of
Section 8(a)(3) cannot be based upon suspicion alone.
General Counsel argues that "[t]he timing of discharge sup-
ports a violation. The discharge occurred within eight days
of filing of the petition in Case 7-RC-13004." This argu-
ment would appear to be inconsistent with - General
Counsel's overall theory of the case. According to General
Counsel, as early as February Franke knew about Turner's
union interest. When Franke suspected that the organiza-
tional campaign was gaining momentum, he sought out
Turner, who he may have believed was a leader among the
women or with whom he may have had better rapport than
with other employees,16 to find out and to report to him
what the employees' grievances were. This Turner did.
Why then, after Turner had been completely cooperative,
did Franke discharge her? It is illogical for Franke to seek
and to obtain Turner's cooperation in his effort to combat
the Union and then to discharge her. General Counsel at-
tempts to meet this dilemma by arguing, "The conclusion
becomes inescapable that Turner who had been reluctant
to betray fellow employee confidences and thus an unwill-
mg participant became expendable once she had served
Respondent's purpose . . . ." This argument is not sup-
ported by the evidence. Contrary to General Counsel, the
evidence, including Turner's testimony, shows that she had
no reluctance to conduct the May 6 meeting with the
housekeeping employees and to report the results to
Franke. Thus she was a willing not "an unwilling partici-
pant." Also, there is no credited evidence that Franke
sought to have Turner "betray fellow employee confi-
dences." 17
The employer's explanation for a discharge is a factor
which is weighed in determining whether the action was
unlawful. However, a feeble reason for the termination,
alone, or together with evidence that the employer knew of
the dischargee's union sympathies and was opposed to an
ongoing organizational campaign, does not spell out an un-
lawful discharge. To find a violation of Section 8(a)(3) the
evidence must permit a positive finding (which may be
based on circumstantial evidence) that union activity was a
contributing factor in the decision to discharge the employ-
16 Turner's daughter was the babysitter for Franke's family and Franke
had extended to Turner special consideration by permitting her to work part
time when other regular employees were required to work full 40-hour
weeks.
17 Even Turner did not testify that Franke asked her to "betray fellow
employee confidences." According to Turner, on May 5 when she met with
Franke, "he said there had been quite a bit of talk about union and I guess
I must have showed a nervous reaction and he told me not to be embar-
rassed about it and I replied I wasn't embarrassed And I asked him if
he was trying to use me ... to betray the girls and what they were saying to
me . in confidence ." Turner did not testify that Franke answered this
question . Turner further testified that Franke "asked why the girls wanted
to have a union come in. And I refused to answer any questions about the
girls or what they were saying." However, the next day Turner held a
"gripe" session with the housekeeping department employees and reported
their grievances to Franke. Thus, to this extent, Turner did communicate
the employees' attitudes to Franke.
ee. Suspicion that such was the case is not enough. While in
this case the issue is not free from doubt, I find that Gener-
al Counsel has failed to prove by a preponderance of the
evidence that Turner was- unlawfully discharged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with and restraining employees in the
exercise of their rights guaranteed in 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.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER18
Respondent, McMullen Corporation, d/b/a Briarwood
Hilton, Ann Arbor, Michigan, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with or restraining employees in the exer-
cise of their rights guaranteed in Section 7 of the Act by
soliciting employees to voice their grievances while leading
them to believe that their grievances will be remedied in
order to discourage support of Hotel, Motel, Restaurant
Employees, Cooks & Bartenders Union, Local 24, AFL-
CIO, or any other labor organization.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
18 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.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Ann Arbor, Michigan,
copies of the attached notice marked "Appendix." 19 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 7, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
19 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
IT IS FURTHER ORDERED that the allegations in the com-
plaint of violations of Section 8(a)(1) and (3) be dismissed
except insofar as a specific finding of violation of Section
8(a)(1) has been made above.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT solicit employees to voice their griev-
ances and lead them to believe that their grievances
will be remedied in order to discourage support of Ho-
tel, Motel, Restaurant Employees, Cooks & Barten-
ders Union, Local 24, AFL-CIO, or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them in Section 7 of the Na-
tional Labor Relations Act.
Judgment of the United States Court of Appeals Enforcing an Order of the MCMULLEN CORPORATION, d/b/a BRIARWOOD
National Labor Relations Board" HILTON