Castle Hotel, Ltd.

National Labor Relations Board - Board Decisions

Jan 3, 1961

129 N.L.R.B. 1122 (N.L.R.B. 1961)

1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By interfering , with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Castle Hotel , Ltd., a Partnership and Bartenders, Hotel and
Restaurant Employees, Local No . 264, AFL-CIO
Castle Hotel , Ltd., a Partnership and Bartenders, Hotel and
Restaurant Employees, Local No. 264 , AFL-CIO, Petitioner.
Cases Nos. 17-CA-1567 and 17-RC-2953. January 3, 1961
DECISION, ORDER, AND CERTIFICATION OF RESULTS
OF ELECTION
On July 13, 1960, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above consolidated proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint, and recommended dismissal of such allegations. In
his report, the Trial Examiner also made recommendations as to the
disposition of objections in the representation case . Thereafter, the
Respondent filed exceptions to the Intermediate Report and a brief
in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations,' except as modified herein 2
' Absent exceptions , we adopt, pro forma, the Trial Examiner 's findings that the Re-
spondent did not violate the Act by distributing dollar bills to recipients of union hand-
bills during its organizing campaign and that the Respondent did not make statements
or threats which violated the Act. Also absent exceptions , we adopt , pro forma, the
Trial Examiner ' s finding that the Respondent did not unlawfully interfere with the
election and his recommendation as to the disposition of objections in the representation
case.
2 We agree with the Trial Examiner, and for the reasons given in the Intermediate
Report, that the Respondent discharged employee Selders because of her union activities
129 NLRB No. 131.
CASTLE HOTEL, LTD . 1123
ORDER
Upon the entire record in this proceeding and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Castle
Hotel, Ltd., its officers , agents , successors , and assigns , shall:
1. Cease and desist from :
(a) Discouraging membership in Bartenders, Hotel and Restau-
rant Employees, Local 264, or in any other labor organization, by dis-
charging or refusing to reinstate employees or in any other manner
discriminating against them in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(b) Granting wage increases or vacation benefits to employees for
the purpose of discouraging membership in, or support of, the above-
named labor organization.
(c) In any other manner, interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist the above-named union or
any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
and to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Ethel Selders immediate and full reinstatement to her
former or a substantially equivalent position, without prejudice to
her seniority or other rights and privileges, and make her whole for
any loss or earnings suffered by reason of the discrimination against
her, in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records, and reports
necessary to analyze the amount of backpay due and the right to re-
instatement under the terms of this Order.
(c) Post at its hotel in Omaha, Nebraska, copies of the notice
attached hereto marked "Appendix." 8 Copies of said notice, to be
and not because of any honest belief that she solicited union membership on company
time. Like the Trial Examiner, we find that this discharge was thus violative of Sec-
tion 8 ( a) (3). As it is unnecessary to a determination of this issue , we do not adopt
the Trial Examiner 's further finding that , even assuming that the Respondent had acted
in the honest, though mistaken, belief that Selders, in violation of a company rule, had
solicited on company time, such belief would not be a defense. Nor do we pass upon the
applicability of the Ousano case to such a factual situation.
3 In 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."
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Seventeenth Region, shall,
after being signed by a representative of the Respondent, be posted
by the Respondent immediately upon receipt thereof and be main-
tained by it for a period of 60 consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notice is not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Seventeenth Region, in
writing, within 10 days from the date of this Order, what steps it
has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed, insofar as it alleges that the Respondent violated
Section 8 (a) (1) of the Act by conduct other than that found unlawful
herein.
[The Board certified that a majority of the valid ballots was not
cast for Bartenders, Hotel and Restaurant Employees, Local No. 264,
AFL-CIO, and that this labor organization is not the exclusive repre-
sentative of the employees at the Employer's Omaho, Nebraska, hotel
in the unit found appropriate in Case No. 17-RC-2953.]
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 National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Bartenders Hotel and
Restaurant Employees, Local No. 264, AFL-CIO, or in any other
labor organization, by discharging or refusing to reinstate any of
of our employees, or in any other manner discriminating against
them in regard to heir hire or tenure of employment, or any term
or condition of employment.
WE WILL NOT grant wage increases or vacation benefits to our
employees for the purpose of discouraging membership in, or
support of, the above-named union.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist the above-named
or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted ac-
tivities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such activities.
WE WILL offer Ethel Selders immediate and full reinstatement
to her former or a substantially equivalent position, without prej-
CASTLE HOTEL, LTD. 1125
udice to her seniority or other rights and privileges , and make her
whole for any loss of pay suffered as a result of the discrimination
against her.
All our employees are free to become, remain , or refrain from be-
coming or remaining , members of Bartenders, Hotel and Restaurant
Employees , Local No. 264, AFL-CIO, or any other labor organization.
CASTLE HOTEL, LTD.,
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
These consolidated proceedings , with all the parties represented , were heard before
the duly designated Trial Examiner in Omaha, Nebraska, on March 21 and 22, 1960.
The complaint of the General Counsel alleges that the Respondent violated Section
8(a) (1) of the National Labor Relations Act, as amended , by threatening employees
with reprisals , including loss of employment , if they engaged in union or other
concerted activities ; by promising employees benefits to induce them to refrain from
engaging in union or other concerted activities ; by granting wage increases and
distributing dollar bills to employees to induce them to refrain from such activities;
and by engaging in surveillance of employees or creating the impression that it was
engaging in such surveillance.' The complaint also alleges that the Respondent, in
violation of Section 8(a)(3) and ( 1) of the Act , discriminatorily discharged Ethel
Selders because of her membership in, and activities on behalf of , Bartenders, Hotel
and Restaurant Employees , Local No. 264 , AFL-CIO, herein called the Union. The
Respondent 's answer denies the commission of any unfair labor practices , admits
Selders' discharge , but alleges that it was for cause.
On February 1, 1960 , the Board issued an Order directing hearing in Case No.
17-RC-2953 to resolve the issues raised by the Union 's objection 9 to conduct
affecting the results of the representation election held in that proceeding, and by
the additional evidence uncovered by the Regional Director in his investigation of
the Union 's objections . Pursuant to that Order , the Regional Director consolidated
the hearing in Case No. 17-RC-2953 with the hearing in Case No. 17-CA-1567.
Specifically , the election issues here presented are: (1) Whether the Respondent's
manager, J. G. Papineau , in a preelection speech to employees stated that he would
never sign a contract or deal with the Union if it won the election and that if the
employees went on strike they would be promptly replaced and lose their jobs with
the Respondent ; 2 and (2) whether Elizabeth Wheeler, the head hostess in the
coffee shop , told an employee a day before the election that if the Union got in,
she (Wheeler ) and other employees would lose their jobs .3
'The complaint also alleges that during the period from June 1959 to October 1959,
the Respondent interrogated its employees concerning their union membership and activi-
ties . However, no evidence in support of this allegation was adduced ; nor does the
General Counsel urge in his brief that such a violation he found.
2 This objection further alleges that in his speech the manager also threatened em-
ployees that if the Union won the election , he would post "no tipping" signs in the hotel.
No evidence , however , was adduced at the hearing respecting this alleged threat
3An additional question was raised as a result of the Regional Director 's investigation
whether the Respondent 's manager told an employee a day before the election that he will
know who votes for the Union and who doesn't , thereby creating the impression that the
Respondent was engaging in surveillance. However, no evidence respecting this question
was presented at the hearing.
1126 DECISION S OF NATIONAL LABOR RELATIONS BOARD
At the conclusion of the hearing the parties waived oral argument. Thereafter,
the General Counsel and the Respondent filed briefs which have been carefully
considered.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a limited partnership, operates a hotel in Omaha, Nebraska.
It is affiliated with Boss Hotels Corporation, which is a chain of hotels with its main
office at Des Moines, Iowa. The Respondent annually does a gross volume of
business in excess of $1,000,000. Less than 25 percent of its guests occupy its
rooms a month or more. The Respondent also annually purchases products valued
in excess of $10,000 from sources outside the State of Nebraska.
Accordingly, I find that the Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act
to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted , and I find , that Bartenders , Hotel and Restaurant Employees,
Local No. 264, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES-PREELECTION CONDUCT
A. The union's organizational activities
In January 1959, the Union initiated a drive to organize the employees of the
hotels in Omaha, Nebraska. On January 25,4 it held its first citywide meeting which
employees of the various hotels, including a number of the Respondent's employees,
attended. Similar meetings were held monthly thereafter through June and in
September and October, at which some of the Respondent's employees were also
present. In aid of its campaign, the Union at different times during this period dis-
tributed handbills and other literature among the Respondent's employees outside the
Respondent's hotel and visited their homes.
On March 18, the Union filed a representation petition with the Board (Case No.
17-RC-2953) seeking certification as the bargaining representative of the Respond-
ent's employees. On October 27, an election under Board auspices was held which
the Union lost by a vote of 56 to 50.5 Thereafter, the Union filed objections to
conduct affecting the results of the election and unfair labor practice charges, which
are the subject of the instant proceedings.
B. Findings and conclusions relating to interference, restraint, and coercion-
preelection conduct
Except for one incident, the conduct alleged to be violations of the Act or grounds
for setting aside the election was engaged in by J. G. Papineau, manager and part
owner of the Respondent's hotel. The other incident here in question is an alleged
threat made by Elizabeth Wheeler, the head hostess and concededly a supervisor
in the coffee shop. Only Wheeler's alleged threat and Papineau's October 26 speech
are asserted as grounds for invalidating the election.
1. The wage increase and vacation benefits
In June, during the pendency of the representation proceeding instituted by the
Union, Papineau granted a general increase to all employees, and 2 weeks extra
vacation pay to waitresses and $25 to bellboys in addition to their customary vacation
benefits. The General Counsel contends that the Respondent gave the wage increase
and the additional vacation benefits to discourage its employees from joining or
supporting the Union. The Respondent, on the other hand, argues that the wage
increase 6 was granted in accordance with its established policy and was the result
4 All events herein mentioned occurred in 1959
5 There were also several challenged ballots which the Board found did not affect the
results of the election
6 No specific contention is made with respect to the improved vacation benefits, although
at the hearing Papineau testified that he gave waitresses and bellboys additional vacation
benefits to compensate them for their loss of tips which represented a substantial part of
their earnings.
CASTLE HOTEL , LTD . 1127
of a decision made on February 1 when it granted its maids a wage increase following
their sitdown strike.
Papineau testified , in substance , that on February 1, the Respondent 's maids
successfully staged a sitdown strike for a wage increase ; that in order to avoid a
similar situation by other employees , he then and there decided to review the hotel's
entire wage structure ; that after gathering the necessary wage data , he flew to Des
Moines , Iowa, where he submitted this information to officials of the Boss Hotel
chain, with which the Respondent is affiliated; and that together with Boss officials
he worked out the wage raises he granted the employees in June . Papineau further
testified that this general wage increase was unprecedented and that at least since
he had assumed management of the hotel 6 years ago no other across -the-board
increase had ever been given . In fact , the record shows that , except for the maids'
increase on February 1, 1959, and the general increase in June, the Respondent on
six separate occasions gave wage increases only to small groups of employees?
Papineau admitted at the hearing that he learned of the Union's organizational
campaign early in February and that he was opposed to the Union. He further
testified that on March 4, at the request of John Horton, an employee, he called a
meeting of employees for the purpose of presenting to them a plan for forming an
employees council, which Horton had previously mentioned to him. In view of the
"unionization attempts," 'Papineau testified, he thought that this was "a very appro-
priate time" for such -a meeting . The record shows that at least one function of the
Council was to deal with the Respondent concerning conditions of employment.8
According to Papineau's testimony, he told the employees at that meeting that
"naturally . . . [he] didn't care to have the union in [the hotel] and . . . [he]
thought . . . [the Employees Council] was a very good idea, . . . [and he] saw
no use of them dealing with a third party." Amplifying Papineau's remarks at
this meeting, Helen Kelso, one of the Respondent's waitresses, credibly testified
without contradiction that Papineau also stated that he knew that the employees were
interested in a union; that he was hurt by it because employees could present their
own grievances and it was not necessary to have a union or third party intercede
in their behalf; and that the decision was up to them to make but that he wanted to
give them his side of the story.
At this meeting, Papineau introduced Horton and left the room. It is undisputed
that the meeting then became disorderly because the employees would not permit
Horton to say more than a few words and the meeting broke up. Notwithstanding
that no action was there taken with respect to the formation of the council, council
meetings were thereafter held which representatives from the various departments
in the hotel attended.9 It appears that the first council meeting was held on March
22 and the next one about 3 or 4 weeks later, after which the council disappeared
from the scene. Papineau testified that he was invited to attend the last council
meeting where he was presented, among other things, with a demand for wage
increases.
The question of the lawfulness of granting economic benefits to employees during
a union 's organizational campaign, such as was done here , is basically one of moti-
vation. As the Board has frequently held:
It is fundamental that the Act precludes employers from utilizing their eco-
nomic power in any manner for the purpose of discouraging their employees
from becoming or remaining members of a labor organization, or of inter-
fering with their selection of bargaining representatives. By this we do not
mean that an employer is foreclosed from announcing or granting economic
benefits during a union's organizational campaign or during the pendency of a
Board-ordered election. What is unlawful under the Act is the employer's
granting or announcing such benefits (although previously determined upon
bona fide) for the purpose of causing the employees to accept or reject a repre-
sentative for collective bargaining . [ Emphasis in the original.] 10
7 These increases were given to the following groups of employees : February 16, 1957.
some engineers and laborers ; February 28, 1957, front office employees ; April 30, 1957,
elevator operators ; June 1958, some of the cooks ; November 1, 1958, some grill cooks ;
and December 15, 1958, the remaining grill cooks.
9 There is some testimony that Horton expected the Council ultimately to establish a
credit union This objective was never achieved.
With the possible exception of the selection of the employee representative from the
coffee shop, the record is not clear as to how the other representatives were selected.
10 Hudson Hosiery Company, 72 NLRB 1434, 1436; see also True Temper Corporation,
127 NLRB 839 (Intermediate Report, adopted without comment by the Board).
112S DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying this principle to the facts of the instant case, I find that the Respond-
ent granted the wage increases to employees and the additional vacation benefits to
waitresses and bellboys for the purpose of discouraging membership in, and support
of, the Union. I am persuaded to this conclusion by the timing of these benefits;
the more than 4-month delay in granting these benefits after the Respondent allegedly
had decided to review its wage structure; the Respondent's admitted hostility to the
Union and its efforts to promote the Employees Council to avoid dealing with a
"third party"; 11 the fact that the benefits were granted following the Council's
request for wage increases; and the unprecedented nature of the benefits. The ex-
istence of such unlawful motivation is also confirmed by the Respondent's dis-
criminatory treatment accorded Employee Selders, which is later considered in
this report.
Accordingly, I find that the Respondent, by granting wage increases to employees
and additional vacation benefits to the waitresses and bellboys in June 1959, inter-
fered with, restrained, and coerced employees in violation of Section 8(a) (1) of
the Act.
2. Dollar bills vs. handbills
From the inception of its organizational campaign in January until October, the
Union on about eight separate occasions distributed handbills among the Respondent's
employees outside the Respondent's hotel. The General Counsel alleges that on
one of these occasions on June 12, the Respondent's Manager Papineau engaged in
conduct violative of Section 8 (a) (1) of the Act.
The relevant facts surrounding this incident are substantially not in dispute and are
briefly, as follows: On June 12, between 2:30 and 5 in the afternoon, Leonard
Mundy, the Union's business agent, assisted by Elmer Dowell, a field representative,
and William Schroat undertook near an entrance to the hotel to distribute familiar
union literature among the Respondent's employees as they left work at the close of
their shift. Papineau promptly questioned the Union's right to be there. Upon the
union officials' response that they were on public property and therefore were privi-
leged -to remain there, Papineau went into the hotel and returned with approximately
100 1-dollar bills and stationed himself near the union officials. Then followed the
particular conduct complained of here. Whenever the union officials gave a hand-
bill to an employee,12 Papineau handed the recipient a dollar bill, saying something
to the effect that this "will do you more good than the fine print" on the handbill or
"this doesn't cost a cent." If the employee did not accept the Union's handbill, he
was not given a dollar. According to Mundy, this display of generosity inspired
him several times to remark to the beneficiaries that the Union was "doing you good
already before the Union's even in there."
Papineau testified that he distributed the dollar bills merely to have some fun
and at the same time to ridicule the Union. This technique, to say the least, was
novel and engendered sufficient human interest as to receive television coverage
that evening.
The General Counsel contends that Papineau's conduct constituted interference
with the Union's distribution of organizational material and surveillance of em-
ployees, which Section 8(a)(1) of the Act prohibits. The Respondent, however,
urges that Papineau's conduct was simply permissible horseplay.
I find no merit in General Counsel's position. Although I recognize the power
of the dollar bill to defeat employees' statutory rights-and I have so found above
with respect to the wage increases and vacation benefits-I am not convinced that
such a situation is here presented. The facts and circumstances surrounding the
distribution of dollar bills indicate to me that Papineau's conduct was nothing more
than a dramatic, if not cynical, attempt to belittle the Union's organizational efforts
This, I find is not a form of interference prohibited by the Act. Indeed, rather than
impede the Union's distribution of literature, it appears that Papineau's offer of a
dollar bill only to the recipients of the handbills necessarily invited their acceptance
of the handbills. Moreover, I find, contrary to ,the General Counsel contention that
Papineau's presence in front of his hotel under the circumstances described -above
was not such surveillance as falls within the Act's proscription.13
11 The complaint does not allege that the promotion of the Employees Council violated
the Act. It appears that this conduct occurred outside the 0-month limitation period
provided in Section 10(b) of the Act
12 There is some question, which is not necessary to decide, whether nonemployees were
also given dollar bills
28 The cases relied upon by the General Counsel to support his contention are factually
distinguishable from the instant case.
CASTLE HOTEL, LTD. 1129
Accordingly, I find that Papineau's distribution of dollar bills did not violate
Section 8 (a) (1) of the Act.
3. Papineau's October 26 speech
At 10 o'clock in the morning of October 26, the day before the scheduled election,
Manager Papineau assembled the employees in the hotel and delivered a speech.14
Papineau testified that he confined his remarks to the content of a written speech
which he had fairly well memorized but to which he referred occasionally. During
the course of his speech, Papineau further testified, he read from newspaper clippings
accounts of strikes at plants of several companies. He also specifically denied that
he ever told the employees that if the Union came in he would not negotiate with it.
There is no question that the content of the written speech was privileged. In it,
Papineau alluded to the forthcoming election; expressed his opposition to the Union;
urged employees to vote in the forthcoming election because a failure to cast a ballot
was a vote for the Union; appealed for a "No" vote; and stated that in the event of
"an economic strike," the Respondent had the "legal right to permanently replace"
the strikers.
The General Counsel contends, however, that Papineau departed from his written
speech and threatened, without qualification, immediately to replace any employee
who struck and stated that he would not negotiate with the Union if the employees
selected it as their bargaining representative. In support of this contention, the Gen-
eral Counsel relies on the testimony of Helen Kelso and Iola Shea, two of the
Respondent's waitresses.
Kelso testified that , while speaking to the employees , Papineau referred to his notes
and read from newspaper clippings about certain strikes experienced by other com-
panies. Concerning the content of Papineau's remarks, Kelso's testimony indicates
that, with one exception, his remarks substantially followed his written speech, includ-
ing the statement that in case of an "economic strike" he would permanently replace
the strikers. However, with respect to the threat not to negotiate with the Union,
Kelso testified that Papineau said "somehing to the effect that he did not intend or
wish to negotiate with any third party or any other person but his workers, . . . if
we chose it." In other parts of her testimony, Kelso stated that she could not remem-
ber his exact words but that he said something to the effect that "he did not want to
negotiate with a union . he did not wish to negotiate" with it. On her redirect
examination, she testified that Papineau stated that "he had no intention of negotiat-
ing with the Union because he didn't think we needed a union."
Shea testified that she could not remember whether Papineau read his speech or
spoke without the benefit of a written document. She further testified that Papineau
told the assembled employees that "if the union came in and we went on strike, . . .
we could all be replaced within an hour. That's all . [she] remembered." After
being asked a leading question, Shea further testified that Papineau also stated that
"he would not negotiate with the union if they came in." On cross-examination she
testified that Papineau said that "he didn't want to negotiate with . . . [the Union]
if . . . [it] came in."
A fair appraisal of the evidence leads me to the conclusion that the General Counsel
did not establish by a preponderance of the evidence that Papineau, threatened perma-
nently to replace striking employees, regardless of the nature of the strike, or that he
would unqualifiedly refuse to bargain with the Union if chosen by the employees. I
find that Kelso's testimony, which accords with Papineau's written speech, that Papi-
neau only threatened to replace "economic" strikers permanently is more accurate
than Shea's testimony . Although Shea was endeavoring to present the true facts as
she recalled them, she appeared to have difficulty recollecting.15 The Board has held
that an employer 's statement that economic strikers may be permanently replaced is a
privileged expression of his rights under the Act.16 Accordingly, I find that the
Papineau statement in question did not violate Section 8(a)(1) of the Act or un-
lawfully interfere with the election.
With respect to Papineau 's alleged statement of an intention not to bargain with the
Union if selected by the employees, I find that Kelso's testimony is too equivocal
upon which to base such an affirmative finding.17 Her testimony is not clear whether
14 It is not contended that this conduct violated the 24-hour rule enunciated in Peerlesa
Plywood Company, 107 NLRB 427.
Iw It is noted that in other portions of her testimony Shea testified that the statements
in question were also made at the March 4 employee meeting, discussed above. However,
the record does not support such testimony
'IF W. Woolworth Company, 111 NLRB 766, 768
17 For the reason indicated above, I find Shea 's testimony also unreliable in this respect.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Papineau expressed a determination not to deal with the Union if it became the
employees ' bargaining representative , or whether such expression fell short of a fixed
determination and amounted to nothing more than an expression of a desire or pref-
erence not to deal with the Union, which is permissible . In these circumstances, I
find that the alleged unlawful threat was not established.
4. Wheeler's alleged threat
Also asserted as a violation of Section 8(a)( I) of the Act and a ground for setting
aside the election is an alleged threat of loss of employment made by Elizabeth
Wheeler, concededly a supervisor in the coffee shop, to Ethel Sharp, a grill cook.
Ethel Sharp testified , "as near as . . . [she could ] remember," that in the morn-
ing of the day of the election Wheeler had a conversation with her in the employees'
restroom and told her that she (Wheeler) hoped that everyone would vote, particu-
larly those who were against the Union "because if the Union got in, it would be a
very bad place to work, . . and she [Wheeler] would lose her job and probably
[other employees ] would lose theirs ." Sharp further testified that she made
no reply to that statement. Wheeler, who had been employed at the hotel for 20
years, denied having ever had a conversation with Sharp in the employees' restroom,
where; she testified she never goes, or making the threats attributed to her by Sharp
or otherwise telling employees that their jobs were in jeopardy if the Union succeeded
in organizing the hotel . She, however , testified , that some time before the election,
while sitting around a table in the coffee shop with "a group of girls," she expressed
her dislike for the Union and stated that she hoped that everyone who opposed the
Union would vote and that "if the union . . . [came] in" she would quit. Wheeler
further testified that Sharp might have been present at that conversation and that she
(Wheeler) might have also made similar statements on other occasions.
It appears to me to be highly improbable that Wheeler, who candidly admitted her
dislike for unions and so informed employees , and whose antiunion views coincided
with her employer 's, would state to an employee that reprisals would be visited upon
her if the hotel were organized. Although Sharp impressed me as a person who
would not fabricate testimony, I believe that her recollection was faulty. Whatever
were the circumstances of the Wheeler-Sharp conversation, I find that it is more likely
and consistent with reality that Wheeler stated that she should quit if the hotel became
organized rather than she would be discharged in such event . For this reason, I also
cannot accept as reliable Sharp's testimony that Wheeler similarly warned that em-
ployees risked loss of their jobs if the Union were victorious in its campaign.
Accordingly, I find that the Respondent did not violate Section 8 (a) (1) of the Act
or interfere with the election by reason of Wheeler 's alleged threat of loss of
employment.
C. Findings and conclusions relating to discrimination against Ethel Selders
Ethel Selders worked for the Respondent as a salad girl for 12 to 13 years, with a
1- or 2-year interruption in employment. It is not denied that she was a good
employee who was frequently complimented for her work by Papineau and his
mother, also a part owner of the hotel.
Selders joined the Union early in its organizational campaign and became active in
soliciting members, discussing the Union, and attending several meetings in which
she took a vocal part. Admittedly, her activities in the Union came to the Respond-
ent's attention. Thus, in the morning of March 4, Papineau and his mother spoke
to Selders about her organizing activities on behalf of the Union and specially
invited her to attend the meeting in the afternoon which Papineau called for the
purpose of introducing the plan for an employees council, so that she may hear
their "side of" the story. Selders agreed and attended.
Within the next 2 weeks,18 Papineau summoned Selders from her work station in
the kitchen into an adjoining storeroom. In the presence of the chef, who was her
supervisor, Papineau reprimanded Selders for distributing union cards on company
time. Selders denied the accusation. At this time Papineau warned that he would
discharge anyone who solicited on company time and that he was going to post a
notice to that effect in the hotel. Such a notice was thereafter posted.19 Papineau
"Neither Selders nor Papineau were certain about this or other dates of occurrences.
10 No question is raised regarding the validity of this notice. The record also shows
that the Respondent inserted a no-solicitation and no-distribution of literature notice in
the pay envelopes of employees, which appears not to conform entirely with Board re-
quirements. Walton Manufacturing Company, 126 NLRB 697. However , the complaint
does not allege a violation of the Act in this respect
CASTLE HOTEL , LTD. 1131
admitted, however, that he never saw Selders soliciting on company time, but testified
that he heard that she was doing it.
On August 18, Selders was discharged when she reported for work as usual about
7 o'clock in the morning. Selders testified that Papineau met her at the front
entrance of the hotel and told her that he was going to let her go; that she asked
him for the reason but he simply refused to give one, stating "don't be coy with me";
that while Papineau followed her down the steps to the lockerroom, she again
requested a reason, to which question Papineau only replied that he was "going to
have a lot of explaining to do, but . . . [he did not] care"; that Papineau then told
her not to go upstairs but that she could wait for her pay check; and that, after
waiting a little while, she went home without being paid. Selders further testified
that she returned later in the day, at which time she received her check from
Papineau who, in reply to her repeated request for the reason for dismissal, told
her that she had engaged in "Too much talking to the new help."
Papineau's testimony substantially accords with Selders' testimony concerning the
circumstances of her discharge. However, he testified that he did not give her any
reason, although she requested it, but told her that she knew the reason as well as
he did. He further testified that he refused Selders' request for a written dismissal
notice because it was not his practice to give one to discharged employees.
Concerning the reason for the discharge, Papineau testified that on August 17,
Milan Lockard, who started working for the Respondent that day, complained to
him that Selders had solicited him on the job to join the Union. Papmeau further
testified that he discharged Selders for thus violating the Respondent's rule against
solicitation on company time. However, he admitted that he did not inform Selders
that this was the reason, and that he did not have Lockard confront Selders with his
accusation Lockard, who is no longer in the Respondent's employ,20 was not
produced as a witness at the hearing. Papineau testified that he did not know where
Lockard was but made no effort to locate him.
Selders denied that she ever solicited Lockard to join the Union. She testified, on
the contrary, that the first day of Lockard's employment he approached her three
times, asking her whether it was possible for him to join the Union, and that each
time she admonished him not to discuss the Union on the job or risk discharge.
Selders also denied that she ever solicited union memberships during working hours,
although she testified that she solicited actively on her own time. Her testimony
regarding the Lockard incident and that she confined her union activities to her own
time stands uncontradicted.
Although Selders was uncertain about the dates of various occurrences, she,
nevertheless, impressed me as a credible and reliable witness. Accordingly, I accept
her testimony concerning her conversations with Papineau and Lockard and her
union activities during her own time, which I find is either entirely or substantially
uncontroverted.
The Respondent contends that Papineau had reason to believe that Selders solicited
Lockard to join the Union during company time in disregard of its valid no-
silicitation rule and that therefore the Respondent had the right to discharge Selders
without violating Section 8(a) (3) of the Act. I find no ment in this contention
A careful examination of the record persuades me that the Respondent discharged
Selders because of her union activities and not because of any honest belief that
she solicited union membership on company time. It is clear that, to the Respond-
ent's knowledge, Selders was actively engaged in enlisting members for the Union.
It is also admitted that the Respondent was opposed to the unionization of its
employees. Indeed, to defeat the Union's campaign and thus avoid dealing with a
"third party," the Respondent on March 4 called a meeting of its employees to
promote the formation of an employees council sand specially invited Selders to attend
to see its "side" of the question. Against this background, the Respondent sum-
marily discharged Selders, a concededly satisfactory employee of long standing,
ostensibly on the basis of an accusation of an employee, who had only started
working that day, that she had solicited him during working hours. And this the
Respondent did, not only without apprising Selders that this was the reason for the
discharge, but also without confronting her with her accuser or affording her an
opportunity to answer the charge. Such treatment impresses me that the Respondent
was more interested in finding a pretext for ridding itself of an active union adherent
than in ascertaining the truth of the charge. Moreover, as indicated above, Selders
wasn't even guilty of violating the Respondent's no-solicitation rule. Finally, if
there is any doubt of the Respondent's discriminatory motivation, it is dispelled by
Papineau's very revealing statement to Selders as he followed her to the lockerroom
20 It appears that Lockard only worked about half a month for the Respondent.
1132 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
at the time of the discharge that he anticipated having "a lot of explaining to do,
but . [he did not] care." In sum, I find that Selders' discharge was dictated by
antiunion considerations and not by an honest belief that she violated the Respond-
ent's no-solicitation rule.
In any event, even assuming that the Respondent, in discharging Selders, acted
in the honest, though mistaken, belief that Selders had solicited employee Lockard
to join the Union during working hours, such belief does not relieve the Respondent
of liability for violating the Act. Particularly apropos is the reasoning of the Third
Circuit Court of Appeals in the Cusano case 21 where it rejected a similar contention,
stating:
. It is true that an employer may discharge an employee for a good reason,
a bad reason, or no reason at all [citations]. This rule, however, is necessarily
limited where an employee is engaging in activities protected by the Act. .
To adopt petitioner's view would materially weaken the guarantees of the Act,
for the extent of employees' protected rights would be made to vary with the
state of the employer's mind. We conclude that if the conduct giving rise to
the employer's mistaken belief is itself protected activity, then the employer's
erroneous observations cannot justify the discharge.
In the present case, Selders was exercising her statutory right to solicit member-
ship for the Union on her own time. As the Respondent, by hypothesis, discharged
her under the mistaken belief that she had forfeited her statutory protection by
soliciting an employee on company time, she was nonetheless penalized for engaging
in a protected activity. This, under settled law, constituted discrimination which
discouraged membership in a labor organization within the meaning of Section
8(a)(3) of the Act and interference, restraint, and coercion within the meaning of
Section 8 (a) (1) of the Act.22
Accordingly, I find that the Respondent discriminatorily discharged Selders be-
cause of her union activities and thereby violated Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent 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 has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent discriminatorily discharged Ethel Selders because
of her union activities. I shall therefore recommend that the Respondent offer her
immediate and full reinstatement to her former or a substantially equivalent position
without prejudice to her seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of the Respondent's dis-
crimination against her, by payment to her of a sum of money equal to that which she
normally would have earned from the date of her discharge to the date of the Re-
spondent's offer of reinstatement, less her net earnings during said period. Backpay
shall be computed on a quarterly basis in the manner prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294.
In view of the nature of the unfair labor practices herein found, including dis-
crimination which, as the Fourth Circuit Court of Appeals observed, "goes to the
very heart of the Act," 23 there exists the danger of the commission of other unfair
labor practices proscribed by the Act. I shall accordingly recommend that the Re-
spondent be directed to cease and desist from in any other manner infringing upon
rights guaranteed employees by Section 7 of the Act 24
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
21 Cassano d/b/a American Shuffleboard Co v N L R B, 190 F. 2d 898, 902-903 (C A 3).
22 Cassano d/b/a American Shy feboard Co v N L R B, supra; Hill it Hill Truck Line,
Inc , 120 NLRB 101, 102, and cases there cited , cf strike misconduct cases, as for ex-
ample, Lock Joint Tube Company, 127 NLRB 1146
x+ N.L R B v. Entwistle Mfg Co , 120 F. 2d 532, 536 (CA 4)
u N L.R.B. v. Express Publishing Company. 312 U S. 426, 433.
TRAVELERS HOTEL, INC. AND HAROLD L. FROMKIN 1133
CONCLUSIONS OF LAW
1. Castle Hotel, Ltd., is an employer within the meaning of Section 2(2) of the Act.
2. Bartenders, Hotel and Restaurant Employees, Local No. 264, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act
3. By discriminating in regard to the hire and tenure of employment of Ethel
Selders as to discourage membership iin the above-named Union, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct and by granting employees wage increases and vacation
benefits to discourage membership in, or support of, the above-named Union, the
Respondent has interfered with , restrained , and coerced employees in the exercise
of their statutory rights within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
6. The Respondent did not violate Section 8(a)(1) of the Act by reason of the
other conduct alleged in the complaint.
Case No. 17-RC-2953
I have found above no merit in the Union's objection to conduct aff ecting the re-
sults of the election or other basis for setting aside the election. Accordingly, I shall
recommend to the Board that it overrule the Union's objection and certify that no
collective bargaining representative has been selected by the Respondent 's employees
in the Board-conducted election.
[Recommendations omitted from publication.]
Travelers Hotel , Inc. and Harold L. Fromkin and Hotel and
Club Employees Union , Local 6, Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO. Case
No. 2-CA-7034. January 4, 1961
DECISION AND ORDER
On August 5, 1960, Trial Examiner Arthur Leff issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondents i filed
exceptions to the Intermediate Report and a brief in support thereof.
The Board 2 has reviewed the ruling 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-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
i Respondents' request for oral aigument Is hereby denied as the record, exceptions, and
brief, In our opinion, adequately present the issues and positions of the parties
2Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
[Chairman Leedom and Members Rodgers and Jenkins].
129 NLRB No. 139.