El Paso Manor, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1649 (N.L.R.B. 1966)

EL PASO MANOR, INC. 1649
2. The strike which commenced on March 11, 1959, was caused by the afore-
stated unfair labor practices and hence was an unfair labor practice strike. ;
3. Based -on existing controlling Board precedents, Respondent Northern Vir-
ginia Sun, Inc., is not a successor who is liable to remedy the unfair labor prac-
tices of the original Respondents.
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.
RECOMMENDED ORDER
I hereby recommend that the Board:
1. Reaffirm its original finding that the original Respondents violated _Section
8 (a) (3) and (1) of the Act by the termination of the 14 composing room employ-
ees during the period from March 1 to 10, 1959.
2. Reaffirm its original finding that the strike which commenced on March 11,
1959, was an unfair labor practice strike.
3. In the absence of any further modification or reversal of its decision in Symns
Grocery (109 NLRB 346), find that the present owner, Northern Virginia Sun, Inc.,
is not a successor who is liable to remedy the unfair labor practices of the original
Respondents.
4. Modify its previous order against the original Respondents by
(a) deleting the reinstatement and posting provisions,
(b) providing that backpay shall in no case run beyond the date of the sale
to Northern Virginia Sun, Inc., and
(c) providing for a mailing provision to the former employees in lieu of the
posting provision.
[Appendix correcting obvious errors in transcript omitted from publication.]
El Paso Manor, Inc. and Hotel , Motel, Restaurant Employees and
Bartenders Local 628 of the Hotel and Restaurant Employees
and Bartenders International Union , AFL-CIO. - Cases 28-CA-
1218, 1257, and 28-RC-1318. June 27, 1966
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On April 4, 1966, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action. He further found that the Respondent
had not engaged in certain additional unfair labor practices alleged
in the complaint. In addition, the Trial Examiner recommended
that the challenges to eight ballots be overruled and the ballots
counted; he also concluded that the Respondent had engaged in objec-
tionable conduct prior to the election held in Case 28-RC-1318 and
conditionally recommended that the said election be set aside. All
such findings are set forth in the attached Trial Examiner's Decision.
The Respondent filed exceptions to the Trial Examiner's Decision and
a brief in support thereof, and the General Counsel filed cross-
exceptions and a supporting brief.
159 NLRB No. 138.
243-084-67-vol. 159-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
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 briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
The Board adopted the Trial Examiner's Recommended Order
with the following modifications : Add the following as paragraph
2(b) and reletter those subsequent thereto consecutively.
["(b) Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application, in accordance with the Selective Service
Act and the Universal Military Training and Serving Act, as
amended, after discharge from the Armed Forces."]
[The Board ordered the challenges to the ballots of Armando Ortiz,
Santos Morales, Oscar Olivas, Ruben Chavez, Hector Chavez, Tru-
man Word, Flora Luna, and Pedro Herrera be overruled; these bal-
lots be counted; and the Regional Director prepare and serve upon
the parties a revised tally of ballots including therein a count of the
said ballots, and, if appropriate, issue a certification of representative.
[In the event the Petitioner does not win the election, the Board
shall set aside the election conducted on May 6, 1965, in Case 28-RC-
1318.]
[Text of Direction of Second Election omitted from publication.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This consolidated matter was heard before Trial Examiner Martin S. Bennett at
El Paso, Texas, on September 15, 16, 17, and 30 and October 1, 2, and 4, 1965.
The amended complaint in the unfair labor practice case 1 alleges that between
March and May of 1965, Respondent, El Paso Manor, Inc. had engaged in unfair
labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
The representation matter consolidated and heard with the foregoing stems from
a consent election conducted on May 6, 1965, pursuant to a stipulation for certifica-
tion executed April 15, 1965. The unit was in essence companywide with the
customary exclusions and the Union lost 29 to 30. A number of ballots were
challenged both by the Board agent and the petitioning union and there were
objections by both parties to conduct affecting the results of the election, as
reflected in the Regional Director's report and recommendations dated June 18,
1965. On July 7, 1965, the Board directed that a hearing be held on one of
i Issued September 7, 1965 , and based upon charges filed April 8 and August 17, 1965,
by Hotel, Motel , Restaurant Employees and Bartenders, Local 628, of the Hotel and Res-
taurant Employees and Bartenders International Union, AFL-CIO, herein called the Union.
EL PASO MANOR, INC. 1651
Petitioner's objections and on nine challenged ballots and that this be consolidated
with the unfair labor practice case. Briefs have been submitted by all parties.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent , El Paso Manor, Inc., also known as Sheraton El Paso Motor Inn,
is a Texas corporation operating a motel , private club , restaurant , and bar at El
Paso, Texas, where it offers hotel accommodations , food, and drink to the public.
Respondent enjoys annual revenues in excess of $500 ,000 and purchases and
receives products and equipment from points outside the State of Texas valued in
excess of $50,000 per annum. I find that the operations of Respondent affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel, Restaurant Employees and Bartenders Local 628 of the Hotel and
Restaurant Employees and Bartenders International Union , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction; the issues
Organizational activities by the Union among Respondent's previously unorganized
employees, some 90 to 115 in number, commenced in September 1964, were
dropped and then resumed in February 1965 with cards distributed in the latter
month. In the unfair labor practice case, the General Counsel alleges that General
Manager Sam Klink and Maitre d'hotel Hector Chavez, whose supervisory status
is not in dispute, engaged in conduct violative of Section 8(a)(1) of the Act dur-
ing March and April and in the first week of May 1965. The General Counsel
also alleges that Respondent discharged Lorenzo Padilla on April 4, 1965, and
brothers Roberto and Hector Chavez on May 15, 1965, because of their union
activities; the latter is not related to the maitre d'hotel.
As for the representation case, the objections to conduct affecting the election
relate to the same conduct alleged to constitute interference, restraint, and coercion
in the unfair labor practice matter; in the same posture is the case of Padilla whose
ballot was challenged by the Board agent because he did not appear on the eligi-
bility list for the May 6 election.
The other eight challenges include three alleged supervisors, challenged by the
Union, and five persons not appearing on the eligibility list who were challenged
by the Board agent. It is Respondent's contention that these five are either casual
laborers or independent contractors. One of them is the same Hector Chavez, a
busboy, whose discharge is also considered in the unfair labor practice case. I
shall treat initially with the alleged unfair labor practices.
B. Interference, restraint, and coercion
The General Counsel has adduced evidence of conduct attributed to General
Manager Klink and Maitre de Hector Chavez in the period preceding ,the May 6,
1965 election. Turning first to Klink, Waiter Reymundo Chavez testified that, around
mid-March, Klink asked what he thought about the Union. Chavez replied that
the Union would improve working conditions; Klink then stated that he did not
care whether or not the Union "came in," but feared that this might cause a drop
in business because the people of El Paso were not ready to accept "the Union."
He further testified that on this occasion Klink asked if he was "in the Union."
At a meeting of waiters held late in March or early in April, Klink, after stating
that the advent of the Union did not disturb him, expressed concern that its pres-
ence would cause business to drop because "the people" were not ready to accept
it. He added that two local hotels, which he named, had suffered a drop in busi-
ness after union organization. He also said that he had the wage scales of these
two hotels in his possession and that the employees of Respondent would probably
earn less money if unionized because the other scales were beneath those paid by
Respondent.
According to Klink, the first incident took place somewhat later than the time
placed by Chavez. He testified that he told Chavez an election was impending
and that he wanted him to study the situation. Chavez replied that he had always.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been a union member and that he favored the Union . When Chavez insisted that
the Union could generate business for Respondent, Klink admittedly replied that
the two organized hotels in El Paso had not experienced an increase of business
after unionization.
Felipe Cardenas , a cook, testified that early in April, Klink stated that he heard
the Union was organizing and that he did not understand why the employees wanted
a union. Cardenas replied that he did not know why. Klink commented that the
employees might have so reacted because of a requirement that lie detector tests
be taken. Klink went on to ask Cardenas how he personally felt about the Union;
the latter refused to respond.
Some days before the election on May 6, Klink again spoke to Cardenas. Ac-
cording to the latter , Klink first pointed but that he would enjoy a secret ballot in
the election but went on to ask how he felt about the "whole thing"; Cardenas
again declined to respond . I find that this was an inquiry whether Cardenas was
for or against the Union . Klink admitted speaking with Cardenas , stating that the
ballot was secret and telling him to make up his own mind . He denied asking
Cardenas how he felt about the Union and why the men were interested in the
Union.
Jose Ornales, a cook , testified that ' about 2 weeks before the election Klink asked
how he thought the kitchen help would vote ; Ornales replied that he did not know.
Again, approximately 2 weeks before the election , Klink stated to Ornales that
while most of the kitchen help would vote for the Union they did not realize that
he could "reduce people ." Later the same night , Klink stated in the presence of
Reymundo Chavez that he knew Chavez was "all Union" to which Chavez replied
that he had belonged to unions for some time?
Ornales impressively withstood a searching cross-examination and insisted that
Klink had made the statement that he could "reduce people ." Indeed, he then
recalled that on another occasion Klink stated during one of these talks that if the
Union won wages could be decreased . He further testified that Klink said a victory
by the Union could result in a loss of business and a loss of jobs. He also put it
that Klink said that the advent of the Union would require him to pay higher
wages and this could cause him to "reduce people." Klink further stated that if
the Union entered the scene and business was poor he would probably have to
close the restaurant.
Klink admitted that he might have discussed the union organizational campaign
with Ornales, but denied asking him how other employees would vote. He flatly
denied saying that he could fire anyone , reduce the staff, could reduce wages or
might close the motel if the Union won .3
Guillermo Licon , a cook, testified that about one week before the election Klink
asked Licon if he knew whether the kitchen personnel wished to join the Union and
who had distributed union cards ; Licon pleaded ignorance . These apparently were
two incidents on or about the same date. On cross-examination , Licon admitted
that he initiated the first talk , volunteered that he had signed a card and asked
if this meant he would be out of a job; Klink replied that it did not and then went
on to ask, as Licon previously testified , whether the kitchen employees favored the
Union. Still later, he insisted that Klink asked him if he knew who had distributed
the cards.
Klink testified that Licon asked if signing a union card made him a member of
the Union or imperiled his job. Klink replied that he did not know as to the for-
mer and that if Licon did his job properly he had nothing to worry about. He
denied asking Licon whether the kitchen help favored the Union and inquiring as
to the identity of those who had distributed cards.
In essence , Klink basically admitted that all of these conversations had taken
place and that there had been reference to the Union , differing only as to the con-
tent . In appraising these incidents , I was particularly impressed by Reymundo
Chavez, a meticulous, forthright, and intelligent witness and by Ornales, also a
forthright and intelligent witness whose testimony is paralleled by that of the other
2 This resembles a statement above attributed to Klink by Chavez in mid-March It
would seem that the later date is the correct one in view of Klink's absence from the area
at or near the earlier date.
4I note at this point that Respondent urges that the memory of Ornales was hazy and
that he changed his testimony. My reaction to and impression of his testimony was
different for, as the record discloses, the cross-examination served to refresh and stimulate
.his memory. Respondent also contends in its brief that Ornales was a supervisor; there
ds no substantial evidence to support this.
EL PASO MANOR, INC. 1653
witnesses for the General Counsel. While Klink did not impress me as being
strongly antiunion, it is readily apparent that he, admittedly new to the hotel busi-
ness, was suddenly exposed to a novel organizational campaign and, understand-
ably, overreacted to a possible adverse impact on the profit-and-loss statement of an
organization which until recently had been losing money. Indeed, he admitted his
fear that unionization might upset the profit picture.
I have therefore credited the testimony of the witnesses for the General Counsel,
set forth above, where in conflict with that of Klink. Moreover, as found below,
Maitre de Hector Chavez spoke forth in a similar vein to several employees.
Thus, Lorenzo Padilla testified that he distributed a number of union cards to his
fellow workers. Soon thereafter, during February, Chavez told him that he knew
Padilla was "one of the ones for the Union."
About 10 or 15 days before the May 6 election, according to Reymundo Chavez,
Hector Chavez told him that "I did not know that you were in the Union." Rey-
mundo Chavez, who had previously signed a card, replied that he was. Hector
then asked whether Reymundo's two sons, whose discharge is discussed below, were
also in the Union. Reymundo replied that they too had signed union cards. He
further testified that Hector questioned him many times about signing a union card
and particularly so on one occasion about 15 days before the election.
Maitre de Hector Chavez turned out to be a cautious witness, engaged in some
equivocation and then flatly denied ever discussing the Union with anyone. Fur-
thermore, in another context treated below as to whether banquet personim1 were
regular employees rather than casual labor, he had a markedly poor recollection.
In short, I believe and find that he endeavored on the witness stand to avoid impli-
cating his employer and I do not credit his blanket denials .4
In evaluating the foregoing conduct, note is taken that the employees involved, so
far as this record discloses, had not, with one exception, previously been exposed to
organizational activities and to management reaction thereto. There is also evi-
dence that these low-paying jobs were prized by their holders who largely spoke no
English. In this context, conduct of the nature described above would appear to
acquire additional coercive impact.
I find that by questioning employees as to their views concerning the Union,
whether they were in the Union or whether they were for or against the Union;
predicting that unionization would cause business to drop, cause a loss of jobs and
could force the closing of the restaurant; stating that with unionization employees
would earn less money under union scales; 5 questioning employees as to how other
employees would vote, if they favored or would join the Union; stating that despite
a vote of employees for the Union, Respondent could reduce its staff and hours of
work; stating that Respondent knew which employees were favorable to the Union;
and asking who had distributed authorization cards, Respondent has interfered with,
threatened, and coerced its employees in the exercise of the rights guaranteed under
Section 7, thereby engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act. See N.L.R.B. v. The Coachman's Inn, 357 F.2d 134 (C.A. 8).
C. The discharge of Lorenzo Padilla
Lorenzo Padilla, a waiter in Respondent's club,6 was discharged on April 4, 1965,
after approximately 1 year of employment. He became interested in unionization
and, commencing in February 1965, distributed 13 or 14 authorization cards to
other waiters. He testified that on the day of his discharge Hector Chavez told
him that this would be his last day and "it's over this Union." Padilla attempted
to speak and Chavez replied "You know why." As heretofore found, Chavez had
previously told him during February that he knew Padilla was one of those in favor
of the Union.
According to Chavez, he merely told Padilla on the day of his discharge that his
employment was terminated and said nothing further. I note that in one of his
affidavits to the General Counsel, Padilla disposed that he, Padilla, introduced the
topic of the Union at this time; this was stated after Hector told him that the reason
* I do not rely herein on a query attributed to Hector by Jose Ornales as to how he felt
the men would vote in the election.
5 This is not to say that the union scales at the two organized hotels in El Paso were
other than as stated by General Manager Klink. It is to say that Klink tied in the
unionization of Respondent with a resulting cut in wages.
8 An ostensibly private club where liquor may be served by the drink, unlike other public
facilities in the State of Texas where this is forbidden.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for his discharge was "Because you have troubles with people here." In another
affidavit, as well as in his testimony, he claimed that Chavez had introduced the
topic of the Union.
Respondent has come forward with a number of reasons for the discharge of
Padilla. All but one are in essence insubstantial or not substantiated. To this
extent, they do tend to detract from what is Respondent's basic reason, viz, that
Padilla was one of several employees discharged at the same time and that the
reason for his discharge was the padding of tips on checks.
The record well demonstrates that Respondent's club customers frequently wrote
tips on the meal and liquor checks they signed. When they did not do so, they
sometimes left the tips in cash. When they did neither, the waiters had adopted a
practice of adding 15 percent tip to the check after the customers had left the
premises. This led to complaints that the tips had been added by the waiter despite
the fact that a cash tip had been left by the customer. As a result, management
announced that the waiters were not to place the 15 percent tips on the checks
unless expressly authorized to do so by the customer. It is the violation of this pol-
icy which, according to Respondent, led to the discharge of Padilla.
There is evidence that Padilla, as well as others, were offenders in this area.
Auditor Edward Clifton, Jr., testified that there were a number of complaints involv-
ing various waiters but chiefly Padilla. Documentary evidence was introduced con-
cerning instances where customers disputed checks, made out by Padilla, reflecting
an unauthorized 15 percent tip. Most crucial was a communication dated March 5
from a customer in Chicago, and the record demonstrates that he was a good cus-
tomer, expressing resentment that a tip had been placed upon his check despite the
fact that he had left a cash tip. There is also evidence that Respondent refunded
these tips and expressly so in this case. According to Klink, at least three custom-
ers had turned in their membership in Respondent's club because of this practice.
Klink uncontrovertedly testified, and I find, that he returned to El Paso on
March 30 after a short trip. He had previously decided to discharge two other
employees, a busboy and captain and Headwaiter Raul Mendez. The precise rea-
sons for their discharges are not disclosed although Padilla in effect blamed Mendez
for the practice of adding tips attributed to him, Padilla.
What is cogent here, with this background, is the currency of the complaint from
Chicago reflected in a letter dated March 25 and responded to by Respondent on
April 7 with a refund of the tip. In this area, Padilla's testimony was not impres-
sive. While some of this may have been a language problem 7 he gave some par-
ticular testimony. He claimed that he did not know whether a customer left a
cash tip because he would be too busy to ascertain this fact. This hardly comports
with the practices of an experienced waiter and Padilla was that. And although he
originally claimed that management had not endeavored to correct this practice by
waiters of adding an unauthorized 15 percent tip, he ultimately admitted that he
had been instructed not to do so. Indeed, other witnesses established management's
concern in this area with specific warnings to employees to refrain therefrom,
among these was Reymundo Chavez, a previously credited witness for the General
Counsel.
I therefore do not credit the testimony of Padilla as to the statement he attributed
to Hector Chavez at the time of his discharge. In this respect, his contrary affi-
davit has been considered. While I appreciate that the testimony of Hector Chavez
has been elsewhere rejected, even if Padilla were credited the substantial evidence
does not preponderate in favor of the General Counsel. Moreover, it was Klink,
not shown to be cognizant of his union activities, who made the decision to dis-
charge Padilla. I shall therefore recommend that the- case of Padilla be dismissed.8
7 Most of the testimony from employees was taken by means of an interpreter
9 There is evidence, not entirely clear, that a designated waiter would add these tips to
the check at the end of the day, rather than the actual waiter whose name appeared on
the check. The General Counsel argues that another waiter, Arriaga, who last worked
for Respondent on March 2, was responsible for certain of these additions ; and the checks,
or some of them, reflect a different handwriting where the tip is added on. That is,
Padilla was the waiter involved and responsible for the check, but Arriaga allegedly added
the tip. However, Arriaga did not work for Respondent after March 2, over 1 month prior
to Padilla's discharge which significantly followed shortly after receipt of the complaint
from Chicago and he was the waiter designated on the check There is no evidence that
Respondent at the time of the discharge knew that Arriaga had been designated to add the
tips And while the evidence is sketchy in this area, Padilla also implicated Mendez, dis-
charged the same day, in adding these tips to the check
EL PASO MANOR, INC. 1655
D. The discharges of Hector Chavez and Roberto Chavez
Respondent discharged brothers Hector and Roberto Chavez on May 15, 1965.
The General Counsel contends that they were discharged because Respondent was
informed that they had voted for the Union in the May 6 election. Respondent
claims that they were discharged because, they were minors who were forbidden to
handle liquor under Texas law. The brothers were respectively 18 and 16 on the
date of their discharge, their birthdays falling in July and June, respectively.
Roberto Chavez entered the employ of Respondent in September 1964 as a bus-
boy. While originally paid from petty cash, with no deductions, he was placed on
the payroll approximately 1 month later. He then received a semimonthly check
from which deductions were made for income tax and social security. Hector Cha-
vez entered the employ of Respondent in February 1965 as a busboy, working
weekends and attending school during the week. He too was paid from petty cash
but was placed on the payroll on or about April 16, 1965. He was thereafter paid
in the same manner as his brother.
While, on occasion, both brothers were assigned to work in the club, they were
chiefly used in the banquet room. Respondent poses no challenge to their ability.
It does contend that Hector Chavez was an independent contractor, relying on the
fact that he did not work daily and was at first called in to work. But the answer
is that Respondent exercises complete control over the performance of his duties
and establishes his hours and rates of pay. He wore the same uniform as other
employees and had no authority to arrange for a substitute. Moreover, in March,
prior to the time he went on the payroll, the maitre de told him that he would be
working there permanently. The record shows that Hector worked at least 16
hours on March 6, 12 hours on March 27, and 16 hours on March 30. In April he
earned $20 which reflects at least 40 hours of work at 50 cents per hour. Accord-
ing to Hector Chavez, he worked every weekend in April.9 Indeed, the maitre de
admitted that he tried to use the same crew and that he gave Hector every oppor-
tunity to work that he could. According to Hector Chavez, there was no difference
in the hours he worked during his prepayroll period and the period thereafter.
I find, therefore, that although his tenure was brief, the evidence preponderates
in favor of a finding that he was a regular part-time employee of Respondent with a
reasonable expectation of continued employment and an interest, as of the time of
the election, in the companywide unit in which the election was conducted, particu-
larly so in view of the extensive banquet business carried on by Respondent. See
National Hotel Company d/b/a Thomas Jefferson Hotel, 127 NLRB 202; Flor-
sheim Retail Boot Shop, 80 NLRB 1312; Terminal System, Inc., 127 NLRB 979;
Brown Cigar Company, 124 NLRB 1435; Food Fair Stores of Florida, 120 NLRB
1669; Armour and Company, 119 NLRB 122; and Lloyd A. Fry Roofing Company,
121 NLRB 1433.
It is readily apparent that this employee has the same basic working conditions
and the same supervision as other employees whose status is not under challenge
and that he has interests in terms and conditions of employment in common
with the full-time employees. Sears, Roebuck & Company, 112 NLRB 559 and
Haag Drug Company, 146 NLRB 798.10
As noted, 10 or 15 days before the election, the maitre de asked Reymundo Cha-
vez, the father of the boys, about his own union sympathies. He then asked about
the two boys. Reymundo replied that both belonged to the Union and had signed
cards. Immediately after the election, according to Reymundo and I so find, the
maitre de asked him if his two sons had voted. Reymundo replied that they had
and had voted for the Union."
Turning to Respondent's basic contention, there are a number of factors which
demonstrate its lack of substance. It is quite true that Texas law is as claimed by
Respondent and that the matter was brought to the attention of Manager Sam
Klink shortly before the boys were discharged. It is also clear that Respondent
evolved a practice, apparently not frowned upon by the authorities, of permitting
the minors to work where liquor was being served but forbidding them to handle
glasses with liquor.
0 There is some evidence that the pay sometimes reflected less hours than those actually
worked I deem it unnecessary to resolve this.
10 The fact that the customary payroll deductions were not made until April 16 is not
dispositive Eureka Newspapers, Inc., 154 NLRB 1181
"Here as well, the blanket denial by the maitre de that he discussed the Union is not
credited
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indeed , at the very moment that the two Chavez brothers were discharged for
this reason , Respondent had three other minors who worked in either the club or
the banquet room . These were Fernando Burrell; Oscar Olivas also known as
Oscar Olivas Chavez ; and Juan Vasquez . According to the maitre de, he retained
Burrell because the latter's father was an employee; Olivas because he is his,
Chavez', cousin; and' Vasquez because he is a friend of Olivas. Significantly, both
Chavez boys were originally hired as a favor to their father, also an employee.
While Klink testified that he did not learn until July or August that Chavez had
not obeyed his instructions to "get rid of any kids handling liquors or minors han-
dling liquor," no corrective action was taken as to these other three. What is also
significant is that the two Chavez brothers have since contacted the officials of
Respondent for employment , all to no avail . This is so even though there have
been banquets where liquor has not been served and they were told when discharged
that they would be considered eligible for employment of this nature . This also
flies in the face of Respondent 's policy of preferring to work with the same estab-
lished crew. And, while Respondent has pointed to the allegedly casual nature of
the work because the men were not on the payroll , both brothers were on it , unlike
minors Oscar Olivas and Juan Vasquez who were not discharged.
In view of the foregoing considerations , I am convinced that the evidence pre-
ponderates in favor of the General Counsel. With another election likely, after a
close one with objections filed on May 12, their elimination would appear most
advantageous to Respondent. I find, therefore , on the entire record, that by dis-
charging Hector Chavez and Roberto Chavez on May 15, 1965, Respondent has
discriminated with respect to their hire and tenure of employment within the mean-
ing of Section 8 (a) (3) and , derivatively, Section 8 (a) (1) of the Act.
E. The challenged ballots
Nine ballots challenged at the election on May 6 are presented for consideration
herein. The ballots of six banquet and club employees who attempted to vote in
the election were challenged by the Board agent because their names did not appear
on the eligibility list. Their names are Armando Ortiz, Santos Morales, Oscar
Olivas, Ruben Chavez, Hector Chavez, and Lorenzo Padilla.
The last named is the same Lorenzo Padilla whose alleged discriminatory dis-
charge on April 4, 1965, has been treated above and a recommendation made that
his case be dismissed . It is accordingly recommended that the challenge to his
ballot be sustained . Hector Chavez is the same Hector Chavez whose discharge on
May 15, 1965 , has previously been found to be discriminatory and violative of
Section 8 ( a) (3) of the Act. I have also previously found that he had -a substantial
and continuing interest in conditions of employment with Respondent as of the
time of the election . I shall therefore recommend that the challenge to his ballot
be overruled and his ballot counted.
With respect to the others , the Union likewise contends that these were continu-
ing and permanent employees who, as of the time of the election, had and still
have a substantial continuing interest in employment conditions with Respondent.
The latter urges that these were casual employees who, because of lack of common
interest , should not be included in the same bargaining unit with regular employees.
It therefore urges that their ballots not be counted.
I have previously set forth the nature of the employment of Hector Chavez and
have found that he was not a casual employee. The others worked primarily as
waiters under conditions similar to that of Hector Chavez. All have worked for
Respondent for a substantial number of months. The employment of Ortiz dates
back to December 1964 , with a brief period in April 1964 , and that of Ruben
Chavez and Santos Morales to October 1964. All wore uniforms furnished by
Respondent which were identical with those worn by admittedly regular employees.
Actually, an exhibit prepared by Respondent covering the period from January to
mid-April of 1965 is most revealing of the consistent and continuing work of these
employees. And it is undisputed that in the previous months from October through
December 1964, they worked more hours than are reflected in this exhibit.
Thus, Santos Morales worked 4 days in January , I1 in February, 16 in March,
and 2 during the first half of April. Of this total, only 3 days were less than 8
hours and the great majority were substantially longer; for example , all 4 days
worked in the month of January were 16 -hour days.
EL PASO MANOR, INC. 1657
Armando Ortiz worked 5 days in January, 4 in February, 11 in March, and 2
during the first half of April. Only 3 of these were less than 8 hours and the
others ranged from an 8- to 16-hour day.
Ruben Chavez worked 10 days in January, 7 in February, 11 in March, and 3 in
the first half of April; only 4 of these were less than 8 hours. Every day worked
by him in January and February ranged from 8 to 16 hours in length.
Oscar Olivas worked 4 days in January, 5 in February, 7 in March, and 1 during
the first half of April. Only I of these days was less than an 8-hour day.
It is noteworthy that all of these worked more hours in March than did Hector
Chavez, yet the latter was considered a permanent employee from March on by
the maitre de. There is also evidence of the interchange of banquet and club
employees when needed.
In view of the foregoing considerations, I find merit in the position of the peti-
tioning Union. I find that these are regular part-time employees and shall recom-
mend that the challenges to the ballots of Armando Ortiz, Santos Morales, Oscar
Olivas, and Ruben Chavez be overruled and their ballots counted.
Three other ballots remain for disposition herein. The Union challenged the bal-
lots of employees Truman Word, Flora Luna, and Pedro Herrera on the ground
that they were supervisors and not eligible to vote. Respondent contends that they
were neither endowed with nor exercised supervisory status and that their votes
should be counted. The evidence as to these three is not in serious dispute and the
record strongly supports the position of Respondent.
Truman Word, incorrectly called Ward in Case 28-RC-1318, testified that he is
a senior bellman or bellboy. There are two such employees on the day shift and
two on the evening shift with one relief man. Word customarily works the 3 to 11
p.m. shift. He has been in the employ of Respondent since June 1964 and his
tenure is longer than that of the other bellmen. As a result, his salary was increased
to $90 a month as of the first of 1965. This is higher than the salary of the other
bellmen who receive $70 per month.
He has no authority to hire or fire or make recommendations with respect to
same. Although he has been asked to explain, and has explained, the duties of his
position to new hires, this took place after their hire by admitted supervisors. He
appears to have been dubbed with the title of captain by regular guests, but this was
not of Respondent's making. In any event, he has no authority over his coworkers.
In fact, when a guest calls, the bellboy picking up the phone customarily identifies
himself as the bell captain. Word wears the same uniform as the other bellmen and
all are under the 'supervision of the front desk manager; all punch a timecard.
Flora Luna has been in the employ of Respondent for 2 years and is assistant to
the housekeeper who is concededly a supervisor. Eleven maids, all of whom wear
uniforms, are under the supervision of the latter. Luna and the housekeeper do not
wear uniforms, although 1 day a week Luna works as a maid and wears a uniform
on this occasion because of personal preference.
Her basic job is to receive linen and count dirty linen and her time is spent
mostly in the linen room while so engaged. She also checks rooms to see if they
have been cleaned, checks restrooms and, on occasion, cleans windows. When she
checks rooms this is based upon a list furnished her by the housekeeper. Luna was
formerly a maid at $100 per month and, when promoted to her present post some-
time late in 1964, was given an increase to $125 per month.
Luna does not hire or fire and makes no recommendations in this area. She
works the same hours as the housekeeper and is off on Tuesdays; she does substitute
for the housekeeper on Thursday, the latter's day off. If a problem arises on Thurs-
day, she tells the maid to see the housekeeper on the following day. If the matter
is urgent, she telephones the housekeeper; should the latter be unavailable she con-
tacts the assistant manager. Luna makes no decisions with respect to personnel.
On Thursdays, she merely gives the maids a list of the rooms to be cleaned.
The last ballot challenged is that of Pedro Herrera who testified that he entered
the employ of Respondent early in March of 1965 as a waiter in the club. After
the election, he was given certain other duties involving the seating of guests and
bringing liquor from the warehouse to the club. At the time of the election, he
performed the same duties as the other waiters and received the same rate of pay.
His testimony in some respects was less than impressive and was contradicted by
his affidavit as to his wearing a business suit at work rather than the yellow jacket
worn by other waiters, a fact stressed by the Union. In essence, however, he was
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friendly with the maitre de who permitted him to function as a host part of the
time; it was on those occasions that he wore a business suit rather than the yellow
jacket. Nevertheless , he was not endowed with any supervisory authority and theie
is no evidence that he ever exercised any.
In view of the foregoing considerations , I shall recommend that the challenges to
these three ballots be overruled and the ballots counted.
F. Conduct affecting the election
In essence , the conduct alleged to have affected the election is the same conduct
heretofore found to have been violative of Section 8 (a) (1) of the Act. Its timeli-
ness with respect to an election lost by one vote and the various factors heretofore
set forth warrant the conclusion that the election should be set aside and another
held. I so recommend.
I here note that the order of the Board has directed me to treat with both the
challenged ballots and the conduct affecting the election . Both have been
done. No specific order of treatment has been urged to me. However, if the elec-
tion were initially set aside, it would seem to be an exercise in futility to treat first
with the challenged ballots. I therefore construe the meaningful thrust and sense
of the Board 's Order to be that I am to treat initially with the challenged ballots.
Accordingly, I recommend that the challenged and now resolved ballots be counted
or not as the case may be. If the Union then has a majority, a certification should
duly issue . If not, it is recommended that the election be set aside and another
election held because of the conduct affecting the election.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , as set forth in section III, above , occurring in
connection with its operations set forth 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent has discriminated with respect to the hire and
tenure of employment of Hector Chavez and Roberto Chavez . I shall recommend
that Respondent offer them immediate and full reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority or other rights and
privileges . See The Chase National Bank of the City of New York , San Juan,
Puerto Rico Branch, 65 NLRB 827. I shall further recommend that Respondent
make them whole for any loss of pay suffered by reason of its discrimination
against them . Said loss of pay , based upon earnings which each normally would
have earned as wages from the date of discrimination to the date of reinstatement,
shall be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289. See N.L .R.B. v. Seven - Up Bottling
Co., 344 U.S. 344. Interest thereon at the rate of 6 percent per annum shall be
added as provided in Isis Plumbing & Heating Co., 138 NLRB 716.
The unfair labor practices committed by Respondent involve pretextual dis-
charges. The inference is warranted that Respondent maintains an attitude of oppo-
sition to the purposes of the Act with respect to the protection of employee rights in
general . It will accordingly be recommended that Respondent cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
As heretofore indicated , it will be recommended that the challenged ballots be
counted or not as the case may be and that if the Union has a majority it be duly
certified . If not, it will be further recommended that the election be set aside
because of the conduct heretofore noted and another election duly held.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. El Paso Manor , Inc., is an employer within the meaning of Section 2(2) of
the Act.
EL PASO MANOR, INC. 1659
2. Hotel, Motel, Restaurant Employees and Bartenders Local 628 of the Hotel
and Restaurant Employees and Bartenders International Union, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
3. By discriminating with respect to the hire and tenure of employment of Hector
Chavez and Roberto Chavez, thereby discouraging membership in a labor organiza-
tion, Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(3) of the Act.
4. By the foregoing conduct; by questioning employees as to their views concern-
ing the Union, whether they were in the Union or whether they were for or against
the Union; predicting that unionization would cause business to drop, cause a loss
of jobs, and could cause the restaurant to close down; stating that with unionization
employees would earn less money under union scales; questioning employees as to
how other employees would vote, and if they favored or would join the Union;
stating that despite a vote for the Union, Respondent could reduce its staff; stating
that Respondent knew which employees were favorable to the Union; and asking
who had distributed authorization cards, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not otherwise engaged in unfair labor practices.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, it is rec-
ommended that Respondent, El Paso Manor, Inc., El Paso, Texas, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Hotel, Motel, Restaurant Employees and Bar-
tenders Local 628 of the Hotel and Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, or in any other labor organization of its employees, by
discharging employees or by discriminating in any other manner in regard to hire or
tenure of employment, or any term or condition thereof.
(b) Questioning employees as to their views concerning the Union, whether they
were in the Union or whether they were for or against the Union; predicting that
unionization would cause business to drop, cause a loss of jobs and could cause the
restaurant to close down; stating that with unionization employees would earn less
money under union scales; questioning employees how other employees would vote
and asking if they favored or would join the Union; stating that despite a vote for
the Union, Respondent could reduce its staff and hours of work; stating that
Respondent knew which employees were favorable to the Union; and asking who
had distributed union cards, or in any other manner interfering with , restraining, or
coercing employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives 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 or all such activities.
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Offer to Hector Chavez and Roberto Chavez immediate and full reinstate-
ment to their former or substantially equivalent positions without prejudice to their
seniority or other rights and privileges and make them whole for any loss of pay
suffered by reason of the discrimination against them in the manner provided in
the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of pay due under this Recommended Order.
(c) Post at its plant at El Paso, Texas, copies of the attached notice marked
"Appendix." 12 Copies of said notice, to be furnished by the Regional Director for
12 In the event that this Recommended Order is adopted by the Board, the words, "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 28 after being duly signed by Respondent, shall be posted by it immediately
upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con-
spicuous places, including 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.
(d) Notify the Regional Director for Region 28, in writing, within 20 days from
the date of receipt of this Decision, what steps it has taken to comply herewith.13
IT IS FURTHER RECOMMENDED that the challenged ballots in Case 28-RC-1318 be
counted or not counted, as the case may be, consistent with the recommendations
heretofore made. In the event the Union achieves a majority, it is recommended
that it be duly certified. In the event it does not, it is then recommended that the
election be set aside because of conduct by Respondent affecting the results of the
election, as set forth above, and that another election be duly held.
13 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Hotel, Motel, Restaurant Employ-
ees and Bartenders Local Union 628 of the Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, or any other labor organiza-
tion of our employees, by discharging employees or by discriminating in any
manner in regard to hire or tenure of employment, or any term or condition
thereof.
WE WILL offer Hector Chavez and Robert Chavez immediate and full rein-
statement to their former or substantially equivalent positions, without preju-
dice to seniority or other rights and privileges, and WE WILL make them whole
for any loss of pay suffered by reason of our discrimination against them.
WE WILL NOT question employees as to their views concerning unions,
whether they belong to, favor or are opposed to unions; state that unionization
would cause business to drop, result in less jobs and could cause the restaurant
to close; state that with unionization employees would earn less money under
union scales; question employees how other employees will vote in Board elec-
tions and ask if they favor or would join a union; state that despite a vote for
a union, we can reduce our staff; state that we know which employees favor a
union; or ask which employees are distributing union authorization cards.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named or any other labor organiza-
tion, to bargain collectively through representatives 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 or all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
EL PASO MANOR, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify any above-named employees if presently serving in the
Armed Forces of the United States of the right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Room
7011, Seventh Floor, Federal Building and United States Courthouse, 501) Gold
Avenue SW., Albuquerque, New Mexico, Telephone 247-2509.