Fairmont Mayo Hotel

National Labor Relations Board - Board Decisions

Aug 27, 1971

192 N.L.R.B. 1177 (N.L.R.B. 1971)

FAIRMONT MAYO HOTEL 1177
San-Tul Hotel Company and Simon - Zunamon, d/b/a
Fairmont Mayo Hotel and , Hotel & Restaurant
Employees' and Bartenders International' Union,
Local°135, AFL-CIO. Case 16-CA-4034
,August 27, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND KENNEDY
his direct examination of Brown, the General
Counsel placed into evidence an "Employee Miscon-
duct Notice" dated March 10, 1970, which Brown
had received from the Respondent and which
indicated that Brown had committed numerous
violations of company rules , including -frequent
tardiness. On cross-examination, when the Respon-
dent's counsel questioned Brown as to whether she
had been tardy, the Trial Examiner, notwithstanding
that the "Employee Misconduct Notice" had been
placed `in evidence, ruled that the question of
tardiness was irrelevant to any issue in the case andOn February 8, 1971, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices alleged in the complaint and recommend-
ing that it cease and desist therefrom and take
certain, affirmative action, as set forth in the attached
Trial Examiner's Decision.
Thereafter the Respondent filed exceptions to the
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 case to a three-
member,panel.
The Board,.has reviewed the rulings of the Trial
Examiner and finds -merit in the - Respondent's
contention 'that, the Trial Examiner committed
prejudicial error by unduly limiting the Respondent's
right of cross-examination.1
The complaint alleged that the Respondent dis-
charged -Brown because of her union activities "in
violation of -Section 8(a)(3) and (1), and threatened
employees with discharge for supporting the Union
in violation of Section 8(a)(1). In its answer, the
Respondent admitted - the -discharge of Brown but
denied the commission of unfair labor practices. The
Trial Examiner, chiefly on the basis of his crediting
of Brown and discrediting the Respondent's witness-
es, found that the --violations' were committed as
alleged.
At the beginning of the hearing, immediately after
the General Counsel's opening statement, the Trial
Examiner asked the Respondent's counsel to state
the position of the Respondent with respect to the
discharge .of Brown and the Respondent's assigned
reason for her discharge. Counsel declined, stating he
would develop that through his testimony.
The General 'Counsel then put Brown, his only
witness, on the stand and questioned her about the
events leading to her discharge. During the course of
therefore barred.
Moreover, during the course of his examination of
Brown, the General Counsel placed into evidence a
second "Employee Misconduct Notice," received by
Brown May 25, 1970, the day of her discharge.'This
notice also cited numerous rule violations, including
"Employee ... rarely does a full 14room assign=
ment ..... In the course of questioning Brown
about this notice, the General Counsel asked Brown
if she had "ever been reprimanded before for failure
to do a full 14-room assignment," to which Brown
replied she had not. On cross-examination, counsel
asked Brown if she. always completed a 14-room
assignment, and Brown answered "Yes." The Trial
Examiner ' then challenged the, relevance of the
question to any issue-in the case, and counsel replied
that "it goes to the reason for fdischarging." Here
again, without regard' to the scope' of Brown's
testimony during direct examination, the Trial
Examiner ruled the question irrelevant.
In his Decision .the Trial Examiner adhered to
those rulings, relying on Section 102.35(k) of the
Board's-Rules and Regulations, Series, 8,-as amended,
which authorizes Trial Examiners "To request the
parties at any time during the hearing,to state their
respective positions concerning any issue'in the-case,
or theory in support thereof."
We find that the questions" set forth above were
within the scope of the General Counsel's direct
examination of his witness and'were relevant both-to
the credibility of the witness and to' the issues in the
case . The TrialExaminer's restriction of 'the, Respon-
dent's right to cross-examine the witness on' such
relevant matters-within the scope of direct- examina-
tion was clearly improper and prejudicial, -to the
Respondent, and, was not justified- by" `Section
102.35(k) of - the Board 's Rules . We shall therefore
reopen the hearing and remand ` this case for full
cross-examination of Brown and , for such other
evidence as may be properly offered by either party
I Contrary to the Respondent's contention , however, we find that the Respondent in its cross -examination of Brown as to her conversation
Trial, Examiner did not prejudicially restrict the Respondent's right to ask regarding the hiring of retired personnel , or its introduction of evidence
leading questions on cross-examination . Of. Wigmore, Evidence § 773 pertaining to Manager Sherman's alleged lack of union animus.
(Chadbourn Revision, 1970). Nor did the Trial Examiner restrict
192 NLRB No. 173
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as bearing on relevant matters which may be raised
in the course of such cross-examination.
ORDER
It is hereby ordered that the hearing be reopened
for the purpose of taking additional evidence as
specified herein.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 16 for the purpose of arranging such
reopened hearing, and that the Regional Director be,
and he hereby is, authorized to issue notice thereof.
IT, IS FURTHER ORDERED that, upon conclusion of
the hearing, the Trial Examiner shall prepare and
serve upon the parties a Supplemental' Decision
containing findings of -fact, conclusions of -law, and
recommendations to° the Board, and that following
service of such Supplemental Decision upon the
parties, the provisions of Section 102.45' of the
Board's Rules and Regulations, Series 8, as amended,
shall be applicable.
TRIAL EXAMINER'S DECISION'
SIDNEY D. GOLDBERG, Trial Examiner: The decision of
this case turns entirely upon comparative credibility:
according to the testimony of the hotel's officials the
employee, a maid, was discharged solely for incompetence
in the performance of her duties, but the testimony of the
discharged maid would establish that the reason for her
discharge involved her union activities as steward in the
housekeeping department. For the reasons hereinafter set
forth, I accept the account given by the discharged
employee and find that her discharge violated Section
8(a)(3) of the Act.
The complaint herein,' issued pursuant to Section 10(b)
of- the National Labor Relations Act,` as amended (the
Act), alleges that San-Tul Hotel Corporation, doing
business in Tulsa, Oklahoma, as Fairmont Mayo Hotel
(Respondent), through Michael Sherman, its manager, had
threatened employees with discharge if they became or
remained members of,, or gave assistance or support to,
Hotel & Restaurant Employees and Bartenders Interna-
tional Union, Local 135, AFL-CIO (the Union), and that it
discharged and refused to reinstate its employee, Bell Rena
Brown, because of `her membership in and assistance to the
Union.
Respondent answered, admitting certain factual allega-
tions and that it had discharged employee Brown, but
denying ' the -commission of unfair labor practices. The
issues so raised came on for trial before me on October 13,
1970, at Tulsa, Oklahoma; all parties were represented,
afforded an opportunity to adduce evidence, cross-exam-
ine witnesses ,2 and 'argue on the facts and the law. The
1 Issued August 28, 1970, on charges and amended charges filed June
26'add August 11 and 26, 1970.
2 After the close of the trial; Respondent made a motion to reopen the
hearing on grounds that its cross-examination of the discharged employee
had been improperly restricted and its evidence to prove lack of union
General Counsel's motion to amend the, names - of
Respondent to show, them accurately was, not, opposed by
Respondent's counsel. It was, accordingly, granted, and the
caption has been appropriately amended. Briefs submitted
by the General Counsel and by counsel for Respondents
have been carefully considered.
Upon the entire record in this case3 and upon the
demeanor of the witnesses while testifying, I make the
following:
FINDINGS OF FACT
1. The parties
The Respondents admit, and I find, that Fairmont Mayo
Hotel is an employer engaged in commerce and that the
Union is a labor organization.
2. Background
San-Tul Hotel Company and Simon Zunamonm pur-
chased the Mayo Hotel in Tulsa about February 16, 1969.
For the first year of their ownership, it was operated, for
them by Hyatt House, a hotel chain. As of February 16,
1970, its operation was changed to that of Fairmont
Hotels, another chain. When Fairmont took over" the
operation, Michael Sherman, resident manager of the
Fairmont-Roosevelt Hotel in New Orleans, became man-'
ager of the Fairmont Mayo.
Mrs. Bell Rena Brown has been a maid in the Mayo
Hotel since 1942. Sometime in the, early 1050'ashe became
the Union's Steward for the housekeeping department and
continued in that. capacity until-her discharge on May 25,
1970.
At the times involved in this case there was in effect a
collective-bargaining contract between the Union and San-
Tul Hotel, covering, inter"aliay the housekeeping depart-
ment, Land Respondents were, concededly, bound by it. The'
contract term was October 15, 1969, to October 15, 1970,
and it contained a clause requiring- employees to become,',
within' 31 days, after their employment, members of the
Union and to maintain 'their membership in it. The
contract also provides for, voluntary checkoff of union'
dues, initiation fees, and assessments. .
3. Sequence of events
On March 10, 1970,4 Mrs. Florence Perry, the executive
housekeeper of the hotel at that time, directed Mrs. Brown
to accompany her to the 'office of Manager Sherman. In
the office there was-some conversation between Sherman
and Mrs. Brown concerning her conduct both as maid and
as union,steward and Mrs. Brown signed a paper called
"Employee Misconduct Notice." On-a subsequent day, the,
date of which is disputed, Mrs. Brown . was again
summoned to Sherman's office; this time Sherman asked
her whether, in leaving, his office on the '10th, she had
"threatened" Mrs. Perry and she denied having done so.
animus improperly rejected . By order dated November 18, 1970, the motion
was denied.
3 Typographical errors in the transcript of proceedings have been
corrected by order dated December 30, 1970.
4 Au dates herein are 1970.
FAIRMONT MAYO HOTEL 1179
Late in May, the date also being in dispute, Mrs. Brown
was directed to give a special cleaning, known as "VIP
treatment," to Room 1228. She did so and, as she was
leaving that day, reported to Mrs. Patricia Hermann, then
executive housekeeper, that she had done so. Mrs. Brown
reported for work, as usual, on May 25, but when she was
about-to clock out for lunch at about 11:30 a.m., she could
not find her timecard in the rack. She had some difficulty
in finding Mrs. Hermann for an explanation and when she
did find Mrs. - Hermann she was unable to obtain ' an
explanation until late that day- when she was instructed to
go tot he comptroller's office. There she was discharged by
Charles Rosemann, the manager of the rooms division. A
request by the Union that Mrs. Brown be reinstated was
refused.
The General Counsel contends that, at the interview next
following the one on March 10, Sherman threatened to
discharge, Mrs. Brown and the other members of the
Union, and that, on May 25, Respondent discharged Mrs.
Brown to discourage membership in the Union.
Respondent denies that it did, in fact, make the threats
and it contends5 that Mrs. Brown was discharged for
incompetence in the performance of her duties.
5. Discussion and conclusions
a. Preliminary
Respondent filed, with its brief, a motion- to reopen the
hearing to, permit further cross-examination of Mrs. Brown
on "matters surrounding her employment," which, were
claimed to have been excluded during the trial, and to
permit it to introduce, evidence of Respondent's lack of
union . animus, which it also claims was excluded. By'order
dated November 18, 1970, I denied the motion with the
statement that the matters would be considered in reaching
a decision herein. No appeal was taken from that order.
The claimed restrictions on Respondent's cross-examina-
tion of Mrs. Brown arose in the following manner:6
At the commencement of the trial, immediately after the
General Counsel had, completed his opening statement, I
made an effort to clarify the issues by a request that
Respondent's counsel, having admitted by answer that
Mrs. Brown was discharged, state the reason for the
discharge,T, but Respondent's counsel declined to do so.
During the cross-examination of Mrs. Brown, the General
Counsel's only witness, Respondent's counsel questioned
her concerning whether she. had been tardy in reporting for
work, Since Respondent had not assigned tardiness as its
reason for Mrs. Brown's discharge, the question was ruled
irrelevant to any issue in the case and, therefore, barred.
Shortly thereafter, I informed Respondent's counsel,
during argument on the General Counsel's objection to the
question he put to- the witness dealing with complaints
concerning her work, - that, ' in view of his refusal to state
Respondent's reason for the discharge, strict adherence to
the rules of evidence would be enforced. A short time later,
5 Respondent's timing and manner in presenting this contention is
discussed below.
8 The ruling concerning relevance and materiality of Respondent's offer
of proof of Iack of union animus will stand on the record.
T See Title-5, U.S.C. § 556(cX6) and the Board's Rules and Regulations,
while still cross-examining Mrs. Brown, Respondent's
counsel asked her whether she "always" completed her
daily assignment of 14 rooms . When challenged to explain
the relevance of the question to any issue in the case,
counsel said that the question "goes to the reason for
discharging" but, when it was pointed out that he had not
stated the reason for the discharge and that .the question
was not relevant to any issue in the case , he did not then
state the reason for the discharge but passed to another
subject. At the end of the examination of Mrs. Brown and
the end , of the - General Counsel's case, it was again
explained to Respondent's counsel that his refusal to state
the reason for Mrs . Brown's discharge had resulted and
would continue to result in barring questions on matters
which, because of his refusal, could not be determined to
be relevant to issues in the case . Finally, during Respon-
dent's presentation ' of its case, counsel asked Mrs.
Hermann whether she had discussed "j,ob performance"
with Mrs. Brown and, when called upon to show the
relevance of his question, he stated that Respondent had
terminated Mrs. Brown for her "failure to perform
properly on the job." He was not thereafter prevented from
adducing testimony, otherwise competent, which appeared
relevant to that subject.
The Board's Rule 102.35(k), authorizing its Trial Exam-
iners "To request the parties at any time during the hearing
to state their respective positions concerning any issue in
the case or theory in support thereof " is, I am convinced, a
proper and useful tool in "converting a lawsuit from a
game of maneuver and surprise into a rational, orderly
search for truth and right." 8 -
In'this case , the refusal of Respondent 's counsel to state
Respondent's reason for discharging Mrs. Brown made it
impossible to define the issue against which ' its proposed
questions could be measured for relevance. In both
N.LRB. v. Miami Coca-Cola Bottling Company, 360 F.2d
569 (C.A. 5), and N` .LRB. v. Ebner Bros. Packers, 364 F.2d
565 (C.A. 5), the matters upon which the respondents
endeavored to cross-examine were clearly - issues in those
cases : in Miami Coca-Cola, it was interim earnings in a
backpay case and in Ebner it was the very reason assigned
by the company for the employee's discharge. Here the
limitations upon Respondent's cross-examination were
imposed because-the questions put by its counsel dealt with
matters not in- issue in the case' at the time they were asked
and because this lack of an identifiable issue was the direct
result of Respondent's refusal to state Respondent's
assigned reason for the discharge. Accordingly, I adhere to
my rulings that the questions thus barred were not relevant
to any issue that was in the case at the time they were put
to the witness.
b. The incident of March 10
According to Mrs. Brown's undisputed testimony, as she
was at work on March 10, Mrs. Perry presented her with a
printed paper and said, "Mr. Sherman wants you to sign
Sec. 10235(g) and (k).
8 Statement of Mr. Justice Brennan concerning pretrial procedures in
"The Continuing Education of the Judiciary in Improved Procedures,"
Proceedings of the Seminar on Practice and Procedure Under theFederal
Rules of Civil Procedure, Boulder, Colorado, 1060, 28 F.R.D. at 43.
1180 DECISIONS OF,NATIONAL LABOR , RELATIONS BOARD
this paper. Mrs. Brown answered that she had, no time to
be signing papers and asked "Who, is Mr. Sherman?" ,Mrs.
Perry identified, Sherman as the manager of the hotel, and
Mrs. Brown asked her what Sherman knew about her. Mrs.
Perry said that Sherman had given her the paper and-,told
her to have ,Mrs. Brown sign it but Mrs. Brown refused to
do 'so and demanded : to,- be taken to Sherman.
When Mrs.,Perry and Mrs. Brown reached Sherman's
office, only he was present. Bath Sherman and Mrs. Brown
agree that this was their first personal meeting and that
Sherman introduced-himself. The interview `progressed,
according to Mrs. Brown's testimony, as follows: Sherman
began,by,asking her what she did as'shop steward and that
she, answered that ' she gave out application cards, obtained
reports from supervisors and others involved in grievances,
and ` reported to the ^ business agent. Sherman then said,
"Well, you don't tell your supervisor what to do" and she
answered that She did not tell her supervisor what to do.
Mrs. Perry their interjected, "Rena "[Mrs. Brown's' given
name], you know 'about Yvonne" and, to reject the
inte}ru tide by Mrs. Perry, who was; seated behind her,
Mrs. Brown raised her right hand to shoulder height and
shook it. When she' did this, Sherman said,"There you go,
you are insubordinate. I see right now I am going to have
trouble `out of you." Mrs. Brown protested the accusation
and` Sherman said, "You are telling your supervisor to shut
up,''"but Mrs'. Brown insisted that she was simpiy trying to
explain what Mrs. Perry did about a maid named Yvonne
Gambrell,9 and that, if she were not, permitted to make her
explanation, there was no reason for her to remain but she
would have to consult, her business agent and obtain
instructions. At thatSherman said, "Well, this umon is not
going to, run-this,place," and she responded that, she had
"to-do my job." Sherman then accused her of "harassing"
her coworkers by talking to them about the Union and of
running around the, house, and said, that he was "not going
to, ;have it," that, she had, her work to do. Mrs. Brown
insisted that whatever she received "is always brought to
me" at her work station on, the 12th floor and'that she did
not go anywhere to harass anyone. Sherman replied that
the employees "can join the union whenever they want to.
They don't need you."
Discussion then began, Mrs. Brown testified, concerning
the paper Mrs. _ Perry' had asked her to sign and which
Sherman then had on his desk beforehim.10 The form was
checked at the items accusing Mrs. Brown of "frequent
tardiness," "insubordination," and "discourtesy toward
Supervisor or fellow employee," but the-line below the last
item, calling, for the name of the "other- employee", was
blank. It was signed by Mrs. Perry as supervisor and the
9 Mrs. Brown testified that the incident occurred in February; that
Gambrell was a linen room employee whom Mrs. Perry moved to the night
shift to make room for a new employee on the day shift; that Gambrell
complained' to her as union steward; and that she, Mrs. Brown, discussed it
with Mrs. Perry, stating, that the union contract provides for a preferential
choice by, the employee on, thejob and insisting that Mrs. Perry give
Gambrel '-an opportunity to have the assignment she preferred.
10 The paper is a printed form labeled "Employee Misconduct Notice,"
and carries, in small letters, the name "Faumont Hotel, Dallas, Texas."
There' are 22'specificitems of possible misconduct which can be designated
by'checking an adjoining box. Designated spaces are provided for the
signatures ,of the supervisor, the director of personnel, and the employee
routine entries of date , name of employee , position, and
department are obviously , in Mrs. - Perry's . writing.
During the , discussion , Charles Rosemann, director , of
the rooms division, came into the office and-sat down with
Mrs, Perry . He did not ,speak with Mrs. Brown but, across
her, to Sherman, who, said, "There is, no insubordination
here . If there is, I can't find , it, and, as he testified the
crossed - it out. -Sherman then lectured Mrs. Brown
concerning discourtesy , "he eat me up about, that," - she
testified . At the end of the conversation Sherman asked her
to sign the notice, pointin& out the statement on, it that
"The signature below indicates }only that- the information
on this form has been read and explained .:.''.;and, that
she then signed it 11
Sherman's testimony concerning this incident was that,
when Mrs. Perry brought Mrs. Brown to his,.office on
March 40, it was to discuss a warning notice 12,and that, he
did not know that Mrs. Brown was the ,shop steward. He
testified that he went through -the warning notice with Mrs;
Brown and was -trying, at- the same time, to- find out from
Mrs. 'Perry why it was being , given. The accusation; of
tardiness,, he claimed , appeared to, be supported by the
records but he found that Mrs. Perry , and Mrs. Brown.had
different concepts of discourtesy and insubordination so he
crossed out the "insubordination" item. He testified that he
was "almost unable to talk to Mrs . Perry" because Mrs.
Brown talked so persistently and that Mrs. Brown raised
her hand and shook it whenever she wanted to talk.
Sherman also testified that he told Mrs. Brown that he
expected her to be a maid first and a union member
second; that he , would not have her "harassing members";
that there was no need for them to be brought to the,office
to sign a card and no reason to take people off the floor.
Although, even on the ' basis of Mrs. Brown'stestimony,
there appears to be nothing in this incident that 'could'be
held to constitute unlawful interference, restraint,- or
coercion of employees in their union activity , and- none is
alleged in the complaint , resolution ' of the conflicts
between Mrs. Brown's' testimony and Sherman 's testimony
concerning its details is necessary in assessing the' credibili-
ty of the participants and in disclosing Sherman 's attitude
toward the Union.
Sherman insisted that he did not even know, when Mrs.
Brown came - to his office, that she was the union steward
but he conceded that he told her that "she shouldn't be
bringing employees down to the office to get them ', signed
up" and',that he said this to, her because it had been
reported to him that she had done so . These two statements
are incompatible sand, since - there is no evidence that
Sherman learned ' of her position as Funion steward during
the interview; they seriously impair ,Sherman's credibility.
involved.
ii There was some testimony at this meeting concerning tardiness but, in
view of Respondent's refusal to assign this as its reason fordischargpg Mrs
Brown, counsel was not permitted to pursue the `matter in depth.
12 Roseman, who came ' to the Fairmont Mayo ' from the ' Fairmont
Dallas with Sherman, testified , that they brought with -them - all they forms
that had been used there , including the "Employee Misconduct Notice",
and that he explained lhheir'' use , within a week after their arrivàl' to all
department heads, including -Mrs. Perry. Sherman testified that the
department heads were^instructed that if they had "problems they were to
bring the employee toi his office to see if they could "straighten it out."
FAIRMONT MAYO HOTEL 1181
His further statement that although Comptroller Volonino,
to whose office Mrs. Brown brought the employees for
union purposes,13 did not object to her doing so, he,
Sherman, did object, discloses an attitude of intolerance
for the Union's exercise of its contractual rights.
On the basis of the foregoing, I find that the interview of
March 10 is accurately reflected in Mrs. Brown's testimony
rather than that of Sherman.
c. The aftermath of the March 10 incident
The above-described interview in Sherman's office had
its aftermath in a second interview, the precise date of
which is disputed.14
The basis for this second meeting was an exchange
between Mrs. Brown and Mrs. Perry as they left Sherman's
office on March 10. According to Mrs. Brown's testimony,
as they went out, she told Mrs. Perry that "she was letting
herself in for something" and that Mrs. Perry said "I know
it." Mrs. Brown did not explain the meaning of her remark
and Mrs . Perry did not testify.15
It is undisputed that Mrs. Brown and Mrs. Hermann
came to Sherman's office and that Sherman accused Mrs.
Brown of "threatening" Mm. -Perry. In response to this
accusation, Mrs. Brown testified, she denied having
threatened Mrs. Perry and repeated to Sherman what she
had told Mrs. Perry; that she was "letting herself in for
something"; that Mrs. Perry had said "Yes, I know"; and
that that was the entire conversation. Sherman admitted
that Mrs. Brown denied threatening Mrs. Perry but
testified that she said she had told Mrs. Perry of something
"she ought not to have done." 16 Sherman, according to his
testimony, then referred to "a particular problem with a
former housekeeper"-obviously referring to Mrs. Perry
who had already been replaced by Mrs. Hermann-and he
decided not to discharge Mrs. Brown.
The conversation then appears to have shifted to Mrs.
Brown's reaction to a conversation which she overheard
the previous day between Mrs. Perry and Mrs. Hermann
dealing with a policy of hiring "retired" people and the
Union's rule or role with respect to such policy. Mrs.
Brown apparently differed with Mrs. Perry's statement to
13 To execute authorization cards for the checkoff of union dues. The
collective-bargaining contract requires union membership of all employees
in the unit not more than 31 days after employment and provides that the
employer shall notify new employees of the existence of the contract. It also
provides for voluntary checkoff of union dues upon execution of the
required authorization.
14 Although Mrs. Brown insisted that this second meeting with Sherman
was on March 18, Sherman testified that it was March 11 , the day following
the first one . Sherman also testified that he prepared for it by instructing
Comptroller Volonino to prepare a final check for Mrs. Brown , paying her
for her wages to date . Volonino testified that he did so and he submitted
Mrs. Brown's timecard bearing a stampmark "Paid", the date "3/11/70,
and a check number which , he testified, indicated that he prepared a final
check in accordance with Sherman 's instructions. His testimony, thus
supported , is convincing as to date and I find that the correct date of this
second meeting is March 11. Mrs. Brown 's testimony on the point , however,
does not undermine her credibility . Furthermore , although the complaint
fixes the date of this interview as March 17 , in alleging the making of threats
by Sherman , Respondent did not object to the testimony concerning it on
the basis of variance in dates and I find that the variance is not substantial.
15 The record shows that March 10 was Mrs. Perry 's last working day as
executive housekeeper ; that Mrs. Hermann , her successor and also drawn
from the staff of the Fairmont Dallas, had arrived on Sunday evening,
March 8 , and she had , on March 9 , a managerial conversation with Mrs.
Mrs. Hermann and- asked to see Mrs . Hermann to clarify
the union position . Sherman , according to Mrs . Brown,
objected to her telling Mrs. Hermann anything about what
the hotel was required to do and, according to his own
testimony, told Mrs. Brown that he would respect the
union contract and its steward, but that he "would be
damned if [he] was going to be told what to do outside the
jurisdiction of the union." He also testified that he told
Mrs. Brown that she was working, first, for the hotel and,
second, for the union and that, as far as he was concerned,
he should fire her but that, since there was a new
housekeeper, it was up to the housekeeper.
Sherman insisted that the foregoing was his only mention
of the Union but Mrs. Brown testified that he continued by
saying that he "was going to get rid of that union, if he had
to get rid of us one by one." Sherman specifically denied
making the statement and Mrs. Hermann also. testified that
he did not make it.
The resolution of this dispute is almost entirely a matter
of balancing credibilities: Sherman's testimony indicates
that he was angry and that he resented any interference by
the Union, in the person of Mrs. Brown, in his running of
the hotel. He had but recently become its manager and was
admittedly under a strain in his effort to reclaim and
refurbish a badly rundown hotel. The statement attributed
to him by Mrs. Brown was only a slight extension of the
statement he admitted having made concerning the Union
and I accept Mrs. Brown's testimony rather than his
denial.17
Based upon the foregoing, I find that on March 11
Sherman said that he would get rid of the Union if he had
to fire its adherents one by one and that this threat
constitutes interference , restraint, and coercion violative of
Section 8(a)(1) of the Act.
d. The discharge
Mrs. Brown testified that at about 11:30 a.m. on
Monday, May 25, she was about to clock out for lunch but
could not find her timecard in the rack. She searched for
Mrs. Hermann and finally found her after 1 o'clock,
carrying the missing card. After first denying that she had
Perry which was reflected in the interview between Sherman and Mrs.
Brown . It does not appear that Mrs . Perry was still in Respondent 's employ
at the time of the trial and, therefore , no adverse inference is drawn from
her failure to testify, but it leaves Mrs. Brown 's testimony undisputed.
16 Mrs. Brown testified that her conversation with Mrs . Perry occurred
as they left Sherman's office and Sherman , testifying that the report
concerning the "threats" had come to him from Mrs. Perry by telephone,
made no statement inconsistent with Mrs . Brown's account; on the
contrary, the record shows that he accepted it. Mrs. Hermann , however,
testified that Sherman told Mrs. Brown that he "sat and listened to her
threaten Mrs . Perry." This variation by Mrs. Hermann on an important
matter , I find, was an effort on her part to improve on the facts to improve
her employers position and it contributes to my conclusion that she was not
a credible witness.
17 Mrs. Hermann 's corroboration of Sherman's denial is insufficient to
overcome Mrs. Brown's testimony . Mrs. Hermann was a very hesitant and
uncertain witness. For this reason, and for the reasons set forth above in
connection with Mrs. Brown's so-called "threat" to Mrs . Perry, and below
in connection with Mrs. Brown 's discharge, I find that her testimony was
guided by what she believed her supervisors and employer desired rather
than by a careful regard for her recollection of the facts . Accordingly, I do
not regard her as a credible witness and do not credit her testimony on this
point.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the card and then admitting it, Mrs. Hermann nevertheless
refused to talk with her, saying she had no time, that she
was busy. Mrs. Brown managed to find her twice again
that afternoon and each time Mrs. Hermann refused to
talk with her. At 4 p.m., as she was about to leave for the
day, she received a message that Mrs. Hermann was ready
to talk with her. Mrs. Brown found Mrs. Hermann in the
comptroller's office where she also found Comptroller
Volonino and Charles Rosemann, the manager of the
rooms division.
She had barely entered the room when Rosemann said:
Rena, we had a meeting 18 and discussed courtesy and
quality. Since that time you haven't come up with
either one of these.
Rosemann then placed before her an Employee Miscon-
duct Notice form with checkmarks next to eight separate
classifications of misconduct involving discourtesy, insub-
ordination, and inefficiency. It was endorsed with
"specifics" as follows:
Employee repeatedly disregards instructions of and
concerning rules, regulations and assignments-rarely
does a full 14 rm. assgmt.-work unacceptable-when
orally reprimanded is discourteous and insubordinate.
The slip was signed by Mrs. Hermann as supervisor and by
Volonino as director of personnel. As Rosemann placed it
before her he said: "We have decided to let you go," and
asked her to sign it. She refused, saying: "It will do you
more good than it will do me." Volonino thereupon
handed her a paycheck. Rosemann, the only other witness
who testified concerning this exchange, did not contradict
Mrs. Brown's testimony.
Although Respondent attempted to attribute several
inadequacies to Mrs. Brown's performance of her duties,
the record shows that its principal reliance, as the
immediate cause of Mrs. Brown's discharge, is upon a.
specific claim of dereliction of duty with respect to the
treatment of Room 1228 on May 22, 23, or 24.
According to Mrs. Brown's testimony, Room 1228 was
one of the rooms in her regular assignment 19 and she knew
it well. It was a very large room containing two double
beds, and had been formed by consolidating two rooms. It
had not been occupied since about May 10, when a
bowlers' convention ended, but some days thereafter it had
been given a "general," i.e., routine, cleaning by Mrs.
Brown.
There is no dispute that, shortly before she was
discharged, Mrs. Brown was instructed to give Room 1228
the "V.I.P. treatment", that is, to give it a particularly
thorough cleaning for a special guest, and that she did the
work on the same day she received her instructions.
Beyond those bare facts, there are many and serious
differences concerning specifics between the testimony of
rs The meeting was held May 19 and Rosemann addressed the
employees in the housekeeping department, telling them that the manager
was dissatisfied with the cleanliness of the hotel ; that unless their
performance improved, it would not be up to the standards set by the
Fairmont system and they would be dismissed.
10 Mrs . Hermann testified at one point that Room 1228 was not part of
Mrs. Brown 's regular assignment if it was occupied , but at another point she
testified that it was one of Mrs. Brown 's regularly assigned rooms . I accept
Mrs. Brown's testimony on the point.
20 Mrs . Brown testified, on rebuttal and after Mrs. Hermann had
Mrs. Brown and that of Mrs. Hermann, the only witnesses
on those matters.
The dispute begins with the day and date on which the
instructions were given: Mrs. Brown testified that it was on
a Friday, which was May 22, that she received her order to
clean the room for the arrival of the VIP guest that evening
and that, when she came to work on Saturday, the 23rd,
she was astonished to find that the room had not been
used. Mrs. Hermann testified over and over again that she
was certain that it was on a Sunday that she gave Mrs.
Brown the order to VIP clean Room 122820 and it was not
until Mrs. Hermann was shown the May 23 (Saturday)
date on her own memorandum and directed to look at a
calendar that she conceded she might have been mistaken
about the day. Sherman testified that his call from Mrs.
Hermann requesting permission to discharge Mrs. Brown
came on "either Saturday or Sunday, the 23rd or 24th."
Based upon Mrs. Brown's testimony, and the further
discussion below, I find that the instructions to Mrs.
Brown concerning Room 1228 were given on Friday, May
22, and that she did her work in that room on that day.
There appears to be no dispute that, when she was given
her instructions to VIP clean Room 1228, Mrs. Brown was
also handed a slip of paper upon which was written a list of
things that needed to be done. Both Mrs. Brown and Mrs.
Hermann also agree that, late in the afternoon of the same
day, as she was about to leave, Mrs. Brown saw Mrs.
Hermann in the linen room and reported that the
necessary work had been done in Room 1228, saying that
the room was "sitting there like a baby for you to inspect
and I know you will," to which Mrs. Hermann answered
"It is my job, I will"; and that Mrs. Hermann asked for,
and received, the list of required services which had been
given to Mrs. Brown. Although she worked all day
Saturday, Mrs. Brown testified that she heard nothing
concerning Room 1228.
According to Mrs. Hermann's testimony, after Mrs.
Brown reported completing the work, she inspected Room
1228 and found it "in a complete state of filthiness." She
testified that she thereupon prepared a new list of the
discrepancies she then found, gave it to the night maid and
a supervisor to effect the necessary corrections, and that
additional notations were made by them and by her on this
list. The paper is in evidence and considerable reliance is
placed upon it by Respondent. A major difficulty with it,
however, is that the record shows it to be a self-serving
document which adds nothing to Mrs. Hermann's testimo-
ny concerning her inspection of Room 1228 after Mrs.
Brown had completed her work in it, but its creation may
contribute to a determination of Respondent's motive in
recommending Mrs. Brown for discharge.
Mrs. Hermann's testimony regarding the origin of this
list and what it purported to represent when first written
testified, that she rarely worked on Sunday (the two timecards in evidence
show no work on the Sundays within their limits) and that she, did not work
on any Sunday during April or May. While, as stated, this testimony by
Mrs. Brown was given after Mrs. Hermann had testified , this was because,
throughout the General Counsel's case, while Mrs. Brown was testifying,
Respondent repeatedly declined to disclose its assigned reason for Mrs.
Brown's discharge and she was , therefore , unable to testify specifically on
the matter ultimately disclosed as the assigned reason for her discharge.
Mrs. Hermann, however , was not recalled to dispute Mrs. Brown.
FAIRMONT MAYO HOTEL 1 183
contains considerable confusion and some serious internal
contradictions. Although she testified at first that she
prepared the list after Mrs. Brown had given the room the
VIP cleaning , she also testified that it was the same list
which she had given Mrs. Brown at 11:30 a.m. with the
original instruction to VIP clean it.21 Furthermore, Mrs.
Hermann's testimony that she prepared the list of
"discrepancies" from a visual examination of Room 1228
after Mrs. Brown left and that the red underscoring
represents work done by the night maid and her supervisor
to remedy the defects in Mrs. Brown's work, is contradict-
ed by her testimony that the items not underscored were
not redone by them. Acceptance of Mrs. Hermann's
testimony on this point would mean that the items not
underscored were placed on the list by her because they
were not done by Mrs. Brown but that the night maid and
supervisor, who were sent in to remedy the defects, did not
do that work either. This, of course, is incredible, but the
confusion is in Mrs. Hermann's testimony, not in the
probabilities of fact. Moreover, it is important to note,
neither the night maid nor the supervisor, who are said to
have remedied Mrs. Brown's shortcomings , was called as a
witness . Since there is no evidence that they were not still
in Respondent's employ at the time of the trial, their
absence raises an inference that , if they were called, their
testimony would not support that of Mrs. Hermann.
Moreover, Mrs. Hermann was not, in my opinion, a
credible witness, and Mrs. Brown described in detail the
work she did. Accordingly, there is no reliable evidence
that the room actually was in bad condition.
It is difficult to understand how Room 1228 could have
reached the condition of "filthiness" described so vehe-
mently by Mrs. Hermann and so extensively reflected in
the list of discrepancies she prepared, in view of the proof
in the record that all rooms were periodically inspected.22
Against this background of inspection, moreover, it is
particularly difficult to accept Mrs. Hermann's testimony
that, with respect to several of the places listed by her as
improperly cleaned by Mrs. Brown, the buildup of cleanser
debris, soap film, and dirt would have required 6 weeks to
2 months to accumulate.
Mrs. Hermann's condemnation of Mrs. Brown's work
in other respects was both unrestrained and undocument-
ed. According to her testimony, after her inspection of
Room 1228, she inspected four or five other rooms for
which Mrs. Brown was responsible and found them all "in
a very like condition" and she then called Mr. Sherman
and requested permission to discharge Mrs. Brown. In view
of the elaborate system of inspection outlined by Rose-
mann, Mrs. Hermann's testimony concerning the condition
of the other rooms in Mrs. Brown's care is simply not
believable. From the testimony of Sherman, it appears that
the guestrooms in the hotel were in a deplorable condition
of neglect according to Fairmont standards but the
testimony of Mrs. Hermann appears to place almost the
entire blame on Mrs. Brown, whose service extended back
more than 20 years and whose only reprimand grew out of
a most unusual congestion of guests early in May.23
In addition to its expression of dissatisfaction with Mrs.
Brown's work growing out of the Room 1228 incident,
Respondent made several generalized claims of defects in
Mrs. Brown's performance of her duties without adducing
evidence in support of them. Instead of particulars,
Respondent' s witnesses expressed subjective and conclu-
sionary impressions of dissatisfaction. In view of the nature
of these expressions and the serious deficiencies in its proof
of Mrs. Brown's claimed dereliction with respect to Room
1228, I am compelled to the conclusion that Respondent's
real reason for discharging Mrs. Brown was her status as
union steward and that the elaborate but defective list of
Mrs. Brown's shortcomings, both with respect to Room
1228 and otherwise, was simply an elaborate stage play
designed to cloak Respondent's resolve to carry out the
threat, previously made by Sherman, to get rid of the
Union by discharging its members, one by one. Where
union animus has been established, as it has been in this
case , and the reason assigned for an employee's discharge
is shown to be without substance, the inference is
warranted that the real reason for the discharge is to
discourage membership in the Union.24 I draw that
inference in this case and find that Respondent's real
reason for discharging and refusing to reinstate Mrs.
Brown was her membership in the Union and her status as
its steward in the housekeeping department. By this
discharge, Respondent violated Section 8(a)(3) and (1) of
the Act.
6. The effect of the unfair labor practices on
commerce
The activities of Respondent set forth in section 3,
above, occurring in connection with its operations de-
scribed in section 1, above, have a close, intimate, and
substantial relationship 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.
21 From all the testimony , including Mrs. Brown's denial that she had
ever seen this paper , it seems clear that it was a list made up subsequent to
Mrs. Brown's departure that evening . The contradiction in Mrs. Hermann's
testimony, however , contributes to my conclusion that she was not a
credible witness.
22 Charles Rosemann , the manager of the rooms division and Mrs.
Hermann 's immediate superior , testified that he inspected rooms on an
irregular basis, sometimes 30 in a single day ; that he has two assistants who
also are responsible for checking the rooms . He testified that, in addition to
the foregoing, not only does the executive housekeeper make independent
checks but she has on her staff a full-time inspectress whose main duty it is
to inspect the rooms and that the inspectress covers the hotel once or twice a
week . It is worth noting that Rosemann's testimony was very general and,
with respect to Mrs. Brown, unparticularized ; that neither of his assistants
nor Mrs . Hermann's inspectress testified.
23 Rosemann testified that a bowlers' convention from May I to 10
resulted in practically 100 percent occupancy. Mrs. Hermann testified that
the hotel had 15 guest floors, with 37 rooms on each floor (a total of 555
rooms), although Mrs. Brown testified that the number had been reduced,
by consolidation, to 400 rooms. The only testimony concerning the number
of maids is the uncontradicted statement by Mrs. Brown that the staff had
been built back to its original number of 17. The record shows, without
dispute, that the normal assignment to each maid was 14 rooms. Even 400
rooms, if fully occupied, would require , on the basis of this assignment,
more than 28 maids, and 555 rooms would require a staff of 40 maids to
keep up with the work.
24 Shattuck Denn Mining Corporation v. N.L.R.B., 362 F.2d 466 (C.A. 9).
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. The remedy
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take affirmative action, including the
posting of an appropriate notice, designed to effectuate the
purpose of the Act.
Having found that Respondent, by discharging Bell
Rena Brown, committed an unfair labor practice, I shall
recommend that it offer her reinstatement to the position
she held on May 25, 1970, or, if that position no longer
exists, to a position substantially equivalent thereto,
without loss of seniority or other rights and benefits, and
that it make her whole for any loss of compensation she
may have suffered, computed in the manner prescribed in
F. W. Woolworth Company, 90 NLRB 289, and with
interest as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716.
Upon the foregoing findings of fact and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Michael Sherman is a supervisor of Respondent
within the meaning of Section 2(11) of the Act and acted
herein as its agent.
4. By threatening to discharge employees for being
members of the Union, Respondents interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act and thereby committed
unfair labor practices within the meaning of Section 8(a)(l)
thereof.
5. By discharging and refusing to reinstate employee
Bell Rena Brown because she was a member of the Union
and engaged in union activities, Respondents discriminat-
ed against her to discourage her and other employees'
membership in a labor organization and thereby commit-
ted an unfair labor practice within the meaning of Section
8(a)(3) of the Act.
6. By the foregoing unfair labor practice, Respondents
interfered with, restrained, and coerced employees in the
exercise of rights guaranteed in Section 7 of the Act and
thereby committed an unfair labor practice within the
meaning of Section 8(a)(1) of the Act.
7. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:25
25 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 .48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
ORDER
Respondents, San-Tul Hotel Company and Simon
Zunamon, doing business as Fairmont Mayo Hotel, of
Tulsa, Oklahoma, their officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with discharge because of
their membership in or activities on behalf of Hotel &
Restaurant Employees and Bartenders International Un-
ion, Local 135, AFL-CIO, or any other labor organization,
or for exercising their right to engage in concerted action
for mutual aid or protection guaranteed in Section 7 of the
National Labor Relations Act, as amended.
(b) Discharging and refusing to reinstate any employee
to discourage his or her membership in Hotel & Restaurant
Employees and Bartenders International Union, Local 135,
AFL-CIO, or any other labor organization.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form organizations, to join or
assist Hotel & Restaurant Employees and Bartenders
International Union, Local 135, AFL-CIO, or any other
labor organization, to engage in concerted activities for the
purpose of collective bargaining and other mutual aid or
protection, or to refrain from any and all such activities.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Offer to Bell Rena Brown immediate and full
reinstatement to her former position or, if that position no
longer exists, to a position substantially equivalent to that
which she held immediately prior to May 25, 1970, without
prejudice to her seniority or other privileges, and make her
whole for any loss of wages in the manner set forth in the
section of the Decision entitled "The remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of her right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination, and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
'terms of this recommended Order.
(d) Post at its hotel in Tulsa, Oklahoma, copies of the
attached notice marked "Appendix." 26 Copies of said
notice, on forms provided by the Regional Director for
Region 16, after being duly signed by their representative,
shall be posted by them immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by them to insure that said notices are not altered,
defaced, or covered by any other material.
26 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall
be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE
UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD."
FAIRMONT MAYO HOTEL 1185
(e) Notify the Regional Director for Region 16, in
writing, _ within 20 days from the date of the receipt of, this
Decision, ,what steps the Respondents have take to comply
herewith.27
27 In the event that this recommended Order is adopted by the Board
after exceptions have - been filed , this provision shall be modified 'to read:
"Notify the Regional Director for Region 16, in writing, within 20 days
from the date of this Order, what steps the Respondents have taken to
comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency, of, the United- States Government
After a trial on October 13, 1970, at which all parties
participated and had a chance to give evidence, a Decision
has been issued that we violated Section 8(a)(1) and (3) of
the National Labor Relations Act, as. amended, in the
following respects:
1. By threatening to discharge- employees for
membership in Hotel & Restaurant Employees and
Bartenders International Union, Local 135, AFL-CIO,
and for activities` on ' behalf of that union.
By discharging and -refusing to ,reinstate Bell
Rena Brown because of her activities on behalf of
Hotel & Restaurant Employees and -Bartenders Inter-
national Union, Local 135, AFL-CIO, and to discour-
age' her - from remaining a member of that-' labor
-organization-,,
Based upon this Decision, the Board has ordered us
to post this notice to assure our employees that WE
WILL. NOT do ,these things again and,that WE WILL NOT,
in any other, similar, or related manner, interfere with,
restrain, or coerce them. in the exercise of their rights,
under Section 7 of the National Labor Relations Act,
to maintain their membership in Hotel &. Restaurant
Employees and Bartenders International- Union, Local
135, AFL-CIO, and to carry on proper activities in
support of that union.
We therefore promise that:
WE WILL offer Bell Rena Brown immediate and full
reinstatement to- her same position or, if that position
no longer exists, to an equivalent position to that which
she held immediately prior to May 25, 1970, without
loss of seniority or other rights and benefits and WE
WILL pay her the amount of wages she has lost, with
interest on any such loss of pay at the rate of 6 percent.
Dated By
SAN-TUL HOTEL COMPANY
AND SIMON ZUNAMON,
DOING BUSINESS AS
FAIRMoNT MAYO HOTEL
(Employer)
(Representative) ' ' (Title)
We will notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of her right to NO reinstatement , upon application after
discharge from the Armed Forces, in, accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone. - -
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.
Any questions concerning this notice or compliance with
its -provisions may be directed to the Board's Office, Room
8A24,- Federal Office Building; •819 Taylor. Street, Fort
Worth, Texas 76102, Telephone 817-334-2921. -