Cheshire Lodge

National Labor Relations Board - Board Decisions

Oct 20, 1971

193 N.L.R.B. 839 (N.L.R.B. 1971)

CHESHIRE LODGE
Cheshire Inn Motor Hotel , Inc., d/b/a Cheshire Lodge
and J . Michael Haider . Case 14-CA-6070
October 20, 1971
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On July 7, 1971, Trial Examiner John F. Funke
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint herein be dismissed
in its entirety, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General Coun-
sel filed exceptions to the Trial Examiner's Decision
and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this proceeding to a three-
member panel.
The Board 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 Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: Upon a charge and an
amended charge filed January 26, 1971, and March 8, 1971,
respectively, by J. Michael Haider, herein Haider, against
Cheshire Inn Motor Hotel, herein Cheshire, the General
Counsel issued a complaint alleging Cheshire threatened an
employee that employees would have to be discharged
because of complaints made to the St. Louis Local Joint
i Cheshire was a party to a multiemployer bargaining contract with the
Union effective from November 16, 1970, through November 15, 1973
This contract contained a union-security clause and covered all employees
in hotels and motels except for those represented by the Firemen & Oilers
Union Local No. 6 and supervisory employees (G C Exh 2)
2 Prentice testified , however, that he overheard a discussion between
Melvin Brooks, agent for the Union , and Mr. Apted, owner of the
839
Executive Board of the Hotel & Restaurant Employees' and
Bartenders' International Union, AFL-CIO, Miscellaneous
Hotel Employees' Local Union No. 430, herein the Union,
and discharged Haider because of his activities on behalf of
the Union in violation of Section 8(a)(1) and (3) of the Act.
This proceeding, with all parties represented, was heard
before me at St. Louis, Missouri, on May 25, 1971. Briefs,
not requested, were received from the General Counsel and
Respondent on June 28.
Upon my observation of the witnesses while testifying
and upon the entire record in this case, I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF CHESHIRE
Cheshire is a Missouri corporation maintaining its
principal office and place of business at St. Louis, Missouri.
During the period material herein Cheshire rented motel
facilities at 6306 Clayton Road, St. Louis, Missoun, from
which it derived gross annual revenues in excess of
$500,000. During a representative year Cheshire purchased
and caused to be transported to its St. Louis motel goods
and materials valued in excess of $5,000 from places
directly outside the State of Missoun.
Cheshire is engaged in commerce within the meaning of
the Act.
II. LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Haider's Employment, Union Activity, and
Layoff
Haider testified that he was employed by Cheshire as a
bellman from December 1969, to December 16, 1970, when
he was laid off. At the time of his discharge he was the only
bellman working the 7 a.m. to 3 p.m. shift on a 5-day basis.
Shortly after his employment he joined the Union and later,
at a time he suggested as during September, he attended a
union meeting.' At this meeting Haider complained to Mr.
Gibson, described by him as president of the Union, about
the language used by James Prentice, general manager of
the lodge and inn, to the bellmen. No action was taken, so
far as the record shows, on this complaint.2
On December 3, 1970, Haider sent a letter to the Union
voicing his complaints about working conditions at
Cheshire .3 Included with the letter were some 19 memoran-
da issued by Cheshire managers to the bellmen respecting
their duties and the correct performance of them.4 (At
about this time Haider went to the hall and saw Charles
DeBarry, union president, and Melvin Brooks, recording
property, concerning this complaint so it did not pass unnoticed
3 This letter was offered by the General Counsel as Exhibit 4 and
rejected on the ground it was self-serving and not binding on Respondent
This ruling is now reversed and the letter , placed in the rejected exhibit file,
is received only to show the complaints, fully explicated and elucidated,
upon which DeBarry and Brooks took action.
4 G. C Exhs 3-a through 3-s. While the prose does not rival Santyana's
193 NLRB No. 128
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary and business agent of the Union, and discussed
his complaints.) As a result of the letter DeBarry and
Brooks went to the lodge and saw Prentice and Mike
Parker, manager of the lodge. The date of this meeting is
best fixed as either December 7 or 8 by the parties to the
meeting.
After this meeting and on December 16 Haider was told
by Parker that he wanted to see him and about 4 p.m.
Haider went to Parker's office. There Parker gave him back
his $10 cost deposit and told him he would see that he
received his pay raise. Then he was told that the Union had
been there that morning and had complained about the
work the bellmen were doing and since Cheshire would
have to hire someone to do this work Parker told him,
"Well, Mike, I am sorry, as of this moment you are no
longer employed." He was never offered reinstatement.
DeBarry and Brooks5 testified that after they received
Haider's letter they made an appointment to go to the lodge
and went out on a date they best fixed as December 7 or 8
and met with Prentice and Parker. The union representa-
tives informed the managers that they had received
complaints from the bellmen and that bellmen were not
supposed to deliver food or orange juice, do any porter
work, wipe off windshields, make fires, or fetch wood. (This
work was described by DeBarry as dead time-work for
which no tips would be received.) Prentice and Parker
agreed to discontinue these duties but told them this would
mean a reduction in the bellman force. The union agents
agreed to this but stated any bellman laid off would be
entitled to preference in rehiring.6 During the course of
conversation either Prentice or Parker told them they
suspected who had filed the complaint but Haider's name
was not mentioned.
DeBarry testified that about one week after this visit to
the lodge Haider called him to tell him he had been laid off
and when DeBarry asked if he wanted him (DeBarry) to get
his job back he told DeBarry he did not know if he wanted
to go back or not.
The testimony of neither Prentice nor Parker varies
substantially from that of DeBarry and Brooks as to this
meeting, including the nature of the complaint, the
agreement to remedy the situation and the possible layoff
of a bellman.7 As to suspicion of the complainant, Prentice
could not remember any statement to that effect having
been made and Parker testified he had a curiosity as to the
complainant but did not know who it was. On this
particular issue I must credit the testimony of DeBarry and
Brooks since both were positive on this fact. Both gave
every evidence of credibility and neither showed any
hostility toward the management of Cheshire.8 The meeting
in style , they could, for their simplicity and clarity , serve as models for
directives for government agencies See, e .g, Exh 3-f, dated November 18,
1970:
Gentlemen, now that Fall is here and the beautiful leaves are falling
from the trees, it becomes very important that you perform with
diligence a duty which has fallen by the way-side in recent months
You will find , much to your surprice [sic I I'm sure , that you have as
standard equipment in the bellstand , one small broom and one small
dust pan These are to be used to clean the front sidewalk of the
Lodge and IN PARTICULAR, the area underneath the covered walk-
way along the side of the pool must be kept clean . Because of the wind
currents around the building this area accumulates a large amount of
crap and is a real eyesore if it is not kept clean . So-man your brooms
had been an amicable one, and the Union had achieved its
purpose and gave no indication of having any interest to the
outcome of the proceeding. (As stated , Brooks was called
by Respondent.)
As to the discharge interview , Haider's testimony stands
uncontradicted . Respondent offered a meorandum from
Parker to the Haider personnel file, dated December 16,
1970,8 reading:
Mike was laid off at the end of his shift today, for an
indefinite period , due to the schedule changes necessary
in relation to the duties formerly performed by the
bellmen, which according to the union representatives
must now be performed by other categories of
employees.
B. The Selection of Haider for Layoff
Respondent contends that Haider was selected for layoff
when it became necessary to reduce the bellman staff as a
result of its agreement with the Union to restrict their duties
because he was the least desirable, from an employer's
point of view, of its bellmen.
Respecting Haider, Prentice testified:
Q. (Interrupting) Let me ask you again, did you and
Mr. Parker consult, confer and make this sort of a joint
decision as to who would be laid off?
A. Yes, sir, based on personnel records, previous
work records.
Q. Now, what caused you to decide to lay Michael
Haider off?
A. Well, his past work performances, his tardiness,
his personal appearance, his general attitude towards
policies, toward customers, toward fellow employees.
Well, you know, when a room clerk calls me, I work
until 2 or 3 or 4 in the morning and I am home in bed
and the room clerk calls me day after day because she
can't find her bellman. She has a man who needs to
catch a plane and has luggage. I ask, "Where is the
pager?" She says, "It isn't being used, it is sitting in the
bell stand or on the desk in the bell stand." You have
employees come to you and tell you about Mike Haider
blowing up dirty balloons with dirty scenes on them
back in the coffee room; just a vicious rotation of this
type of thing. This is why Mr. Haider was considered
No. I on the layoff.
Q. When was he laid off?
A. On or about the 15th or 16th of December, in
that area.
Q. Now, you mentioned getting reports from
employees at the Lodge about problems involving Mr.
and dustpans and let's keep this area clean in the future
S Brooks was called as a witness by Respondent.
6 Sec . 16, p 33, of the contract provides: "Any employee necessarily
laid off due to slack season, shall be given preference in rehiring "
T On December 15 Parker issued a memorandum to Prentice setting
forth the changes in work assignments necessary to implement the
agreement with the Union (Resp Exh. 4)
b In making this finding I am not discrediting the testimony of Prentice
and Parker. Inevitably there will be discrepancies in testimony based on a
variance in recollection On this issue I believe DeBarry and Brooks had a
clear recollection of what was said.
9 Resp Exh 5
CHESHIRE LODGE
Haider. Did you ever personally observe any miscon-
duct on Mr. Haider's part?
A. Yes, which was already testified to, the fact that
I caught him sleeping in the bell stand. He had a fine
habit of propping the door with a broom end and
making two gauge holes in the door and also springing
the hinges so that door wouldn't close, this was almost a
daily thing with him. We were never able to find him
when we needed him.
Q. Now, the time that he was sleeping, were there
some guests looking for the bellmen?
A. The room clerk needed some bellmen for check-
outs and she rang the buzzer. After no answer, she
peeked over the window there between the switchboard
and the bell stand and here Mike is sacked out, so I
woke him up.
On June 23, 1970, Prentice issued a written reprimand to
Haider (Resp. Exh. 3-d) reading:
Mike, What is it about your attitude and disposition
that causes or forces you to deliberately and consistent-
ly make an attempt in breaking every policy at Cheshire
Lodge and Cheshire Inn. Are you trying to prove
something to yourself or to me or to the other
employees or just what? I really would be interested in
knowing your thoughts on the above.
Now, let me give you a thought of mine. I am tired of
asking you about the fondue, I'm tired of checking with
you on the matches, the ice cubes, the urinals, if the
glasses have been brought down from upstairs and ten
billion other things. I now find out that you are coming
to work consistantly after 7:00 a.m. Now, you have
been around long enough to know that you are
scheduled to be hear at 6:45 not 7:00 and not 7:15. If
you care to continue your employment at Cheshire
Lodge, I would suggest that you pull your head out of
your heiny, start getting along with other employees and
start abiding by the policies set forth by the manage-
ment . This is meant to forewarn you that if things do not
change in the next two weeks on the above mentioned
items, you will be notified of termination.
On July 7 Haider was docked 2 1 /2 hours for his
tardiness (Resp. Exh. 3-b.)
Prentice stated that he never followed up on his
reprimand to Haider of June 23 because he shortly
thereafter entered the hospital for major surgery and did
not return until late August.
Parker testified as to his reasons for selecting Haider:
Q. Tell us what went into making that decision,
how did you decide to lay off Mr. Haider?
A. Well, I don't mean to be unnecessarily brief, but
he was the obvious first choice with his past personnel
record, with the problems we had had with him. I had
considered many, many times before letting Mike go for
various offenses that he had been guilty of and, frankly,
there wasn't a great deal of thought or talking involved.
It was a pretty obvious choice once we decided that we
felt the fairest way to decide on who would be laid off
was on their past work record.
10 Haider testified that he thought the operators were "beeping" him
merely for purposes of aggravation and that he resented this
841
Four other witnesses testified as to Haider's conduct and
appearance on the job.
Mike Coggins, called as a witness by the General
Counsel, testified on cross-examination that he never
worked the same shift as Haider but that he had observed
him leaving work as he (Coggins) was coming to work. His
description of Haider's appearance:
A. One thing I noticed that he used a rusty paper
clip to hold his shirt collar under his tie, his hands
would be smudgy with dirt, which you do get kind of
soiled when you are working and you make frequent
trips to the restroom, and his shoes seemed always to be
dirty and just overall, not very well groomed. His
glasses were, you know, dusty and smeared.
Cheryl Kahdeman, Prentice's secretary, testified that her
office had been at the Lodge, close to the elevators. She
worked from 9 a.m. to 5:30 p.m. During this period she
relieved at the switchboard twice a day and it was then that
she had the opportunity to observe Haider. It was the duty
of the switchboard operator when a bellman was needed
and was not in the lobby to summon one by the "beeper."
A beeper might be described as a diabolical device by
which communication can be established with anyone
having an "incoming" beeper to signal that he is wanted no
matter what function he may be engaged in performing.
Kahdeman testified that she would frequently receive no
response from Haider, an indication that he had his beeper
turned off.'° She also testified that he was not a willing
worker and complained a lot and that she, on at least 10 or
12 occasions, observed him sleeping at the bellstand, a
room where the bellmen stationed themselves when not
otherwise engaged.ii She reported some of these shortcom-
ings to management "out of sheer aggravation."
Kathy Cody, bookkeeper at the Lodge, testified that she
had observed Haider sleeping and reading on the job, that
he wore dirty shirts and his hands were dirty, and that his
shoes were never shined. Haider also broke a Lodge rule
against bellmen standing at the front desk by "practically
laying on the front desk." She also testified that she
reported what she considered as Haider's deficiencies to
Prentice.
Phylis Jones, desk clerk at the Lodge, testified that she
was acquainted with Haider during the entire term of his
employment. Her testimony reads:
Q. Did you form an opinion of him as a bellman
during your duty there at Cheshire?
A. Yes.
Q. Would you tell us what that opinion is and tell us
what it is based on?
A. Well, he was just not suitable for the job. He was
rude to the people when they came in and I could never
find him. He would carry a pager, but he would turn it
off. I would have people up in the room ready to check
out and I couldn't find him. These people who check in
at Cheshire, they are well-to-do people, they demand
service and they are not above chewing the hell out of
you to get it. They would do this to me because I
couldn't find him.
TRIAL EXAMINER: And you were available?
11 Kahdeman admitted that if a bellman were asleep in the bellstand it
would be no great problem to awaken him
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE WITNESS: That is it.
Q. (By Mr. Stephan) Did you ever observe Mr.
Haider in the midst of temper tantrums'
A. Yes, sir.
Q. Would you tell the Trial Examiner how those
things arose?
A. Well, he would usually come in in the morning
and it was more important to him to read the newspaper
than to help the guests with their luggage If I would ask
him to go pick up laundry or do something like this, he
stood in the middle of the lobby and he has thrown
laundry bags and I don't remember everything, but I
just couldn't control him.
TRIAL EXAMINER: This went on for a period of several
months, is that correct?
THE WITNESS: It did.
TRIAL EXAMINER: And it didn 't improve, is that
correct?
THE WITNESS: Right.
Haider testified that he reported to work at 7 (he did not
know at first that he was supposed to report at 6.45), put on
his coat, and reported to the front desk. Between 8 and 9 he
would go to the restaurant, get coffee and doughnuts, and
report to the bell stand. His objection to the beeper was that
he thought the girls used it when he was not around and
working in another area to make him "hop around." He did
admit that in the summer of 1970 (at the time of the
reprimand) he had a hard time with Mr. Prentice and was
prepared to have a talk with him and promise to straighten
out but Prentice had gone to the hospital. He also admitted
reading books and newspapers in the bellstand but stated
he had been given permission by Prentice to study there. He
also admitted that he had been caught napping in the
bellstand and had been "chewed out" by Prentice.
C. Conclusions
This is not the usual case in which an employer
terminates the employment of an employee during an
organizational campaign allegedly for his known or
suspected union leadership. In such cases the Board will
rely on an inference of company knowledge in small plants
such as the lodge involved here and will give little weight to
allegations of the employee's deficiencies where, as here,
they have been tolerated until his union advocacy became
known. Even in such cases evidence of company animus
toward the union, however meagre, is usually required to
support the inference of discrimination.
In this case the layoff was occasioned by the demand,
made at the request ironically enough of Haider, that the
services performed by the bellmen be sharply curtailed and
be shifted to other departments. Inevitably and obviously,
and I do not find any logic in the General Counsel's
argument to the contrary, this would result in a lesser
requirement of man hours in the bellman department and a
greater demand in another department if the Lodge were to
be operated with any pretense of efficiency In such a case it
12 In reviewing this testimony I have considered the fact that Haider 's
sleeping and reading in the bellstand did not seriously interfere with his
availability On the other hand many employers have an understandable
prejudice against sleeping on the job under any circumstances
13 There is nothing in the record to indicate that Haider would not have
would be difficult to say that the reduction in itself was
discriminatory, particularly when the change was made at
the request of the union and the union was advised that it
required a reduction in force and acquiesced in it.
The sole issue is whether Haider was selected because
management suspected him of submitting the complaint.
The only thread of evidence to support such a conclusion is
the testimony, credited by me, of DeBarry and Brooks that
Prentice and Parker told them they thought they knew who
the complainant was. They gave no clue as to the identity of
the suspect nor of their reasons for their suspicion. On this
alone I am asked to conclude that Haider was the suspect
and then to conclude that this was the motivating factor in
his layoff. It is true that expertise, sometimes used as a
substitute for conjecture, can replace evidence in labor law
but I doubt that it can be stretched to make a finding of
discrimination in the instant case . Here, unlike those cases
where an employee engages in union solicitation or other
overt activity which must be known at least to other
employees, Haider's letter was known only to the union
representatives and there is no evidence to show nor any
reason why they should have disclosed it to management of
Cheshire. Indeed the evidence is that in their only meeting
with management to discuss the problem Haider's name
was not mentioned. Haider himself did not testify that he
discussed the letter with any other employee at any time
and, since such testimony would have been welcome to the
General Counsel, it must be assumed he did not. I think the
8(a)(3) allegation must be dismissed on this deficiency of
proof alone.
There is, however, affirmative evidence to support
Cheshire. The testimony of not only Prentice and Hall but
of four other employees indicates that Haider's appearance
and performance left something to be desired and supports
the contention that when a layoff was required Haider was
the most likely candidate.12 Haider himself did not deny all
of the allegations and freely conceded that he was in serious
trouble. It is true that these deficiencies were tolerated over
approximately a year of employment. But again this is not a
case where deficiencies were tolerated until union activity
took place. Here a layoff was forced upon Cheshire by the
Union and the question of selection was the only
problem.13 In view of the testimony concerning Haider's
overall job performance I cannot find that his selection was
discriminatory nor even arbitrary.
The General Counsel argues that evidence of the hiring of
other bellmen after Haider's discharge and without offering
reinstatement to Haider creates an inference of
discrimination.14 But the record of transfers, terminations,
and shift changes among the bellmen is too confused to
support such a finding. Most of the bellmen were students,
as was Haider for a part of the time of his employment, and
were shifted about as their school duties permitted. More
impressive than General Counsel's Exhibit 5, a record of
the hirings and termination from December through
March, is the record of the number of hours worked by
bellmen from October through March. (Resp. Exh. 3.) This
continued in employment had a layoff not been required.
14 There is nothing in the record to show that either Haider or the
Union attempted to secure reemployment for Haider under the preferential
clause of the contract
CHESHIRE LODGE r 843
shows a substantial decline in the hours worked from the 2. Cheshire did not violate Section 8(a)(3).
October period through all periods thereafter.15
Upon the foregoing findings, I make the following: RECOMMENDED ORDER
CONCLUSIONS OF LAW
It is recommended that the complaint be dismissed in its
1. Cheshire did not violate Section 8(a)(1) of the Act. entirety.
15 This record too is not susceptible of determination since the motel holiday variations.
business is of necessity a fluctuating one and subject to seasonal and