Four Seasons Olympic Hotel

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 227 (N.L.R.B. 1984)

FOUR SEASONS OLYMPIC HOTEL
Four Seasons Hotel d/b/a Four Seasons Olympic
Hotel and Washington Employees in Service
Trades. Case 19-CA-14774
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 18 January 1984 Administrative Law Judge
Richard D. Taplitz issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
l The Charging Party has excepted to some of the judge's credibility
fmdinigr The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge.
This case was tried in Seattle, Washington, on June 14
and 30 and November 8, 1983.1 The charge was filed on
July 6, 1982, by Washington Employees In Service
Trades (the Union). The complaint, which issued on
February 7, 1983, and was amended on June 2, 1983, and
at the trial, alleges that Four Seasons Hotel d/b/a Four
Seasons Olympic Hotels (Respondent or the Hotel) vio-
lated Section 8(aXl) of the National Labor Relations
Act, as amended.
Issue
The sole issue is whether various supervisors of Re-
spondent coercively interrogated applicants for employ-
The trial originally closed on June 30. Thereafter, the unopposed
motion of the General Counsel to reopen the record because of newly
discovered evidence was granted. The trial resumed and closed on No-
vember 8.
' The complaint and other pleadings were amended at the trial to
show the correct name of Respondent.
270 NLRB No. 39
ment about their union sympathies during preemploy-
ment interviews.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, Respondent, and the
Charging Party.3
On the entire record 4 of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a State of Washington partnership with
an office and place of business in Seattle, Washington,
where it is engaged in the business of operating a hotel
known as the Four Seasons Olympic Hotel. During the
year immediately preceding issuance of complaint, Re-
spondent had gross sales of over $500,000 and directly
and indirectly received goods from outside of Washing-
ton valued in excess of $50,000. The complaint alleges,
the answer admits, and I find that Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. Respondent also admits and
I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
For many years the hotel which is now operated by
Respondent was known as the Olympic Hotel. It em-
ployed approximately 700 employees. Sometime before
the incidents involved in this case took place, the Olym-
pic Hotel was closed and all the employees let go. Re-
spondent undertook an extensive renovation project
which resulted in reopening the hotel under Respond-
ent's auspices on May 23, 1982. By that time Respondent
had employed about 400 employees and subsequently the
employee complement rose to 450. A total of some
15,000 applicants sought the available 450 jobs. Of the
700 employees who had formerly worked for the Olym-
pic Hotel, about 300 applied for employment with Re-
spondent. About 60 of those 300 were hired.
In the charge that was filed on July 6, 1982 the Union
alleged that Respondent interrogated employees about
union matters and refused to hire qualified applicants be-
cause they expressed prounion sympathies or were union
members. The Union placed a notice in a local newspa-
per asking rejected applicants to contact the Union if the
I In its brief the Charging Party renewed its motion to admit certain
documents that had been rejected during the course of the trial. That
motion is denied.
I The original exhibit file submitted by the reporter contains many
errors. At my request the parties submitted a stipulation dated December
16, 1983 to supplement that file. The stipulation is received in evidence
and has been marked ALJ Exh. i. It has been placed at the beginning of
the General Counsel's exhibits for November 8, 1983.
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applicant thought he or she was not hired because of
race, sex, union membership, or age.
The complaint was very narrowly drafted. It alleged
that various supervisors violated Section 8(a)(1) of the
Act by unlawfully interrogating employees concerning
union membership or sympathies. Those were the only
issues litigated.
The General Counsel called five witnesses who testi-
fied that they were applicants for employment and that
they had certain conversations with supervisors. The su-
pervisors, who allegedly spoke to those employees, also
testified. There was a sharp conflict in testimony and
much of the case turns on credibility considerations.
Respondent has an established hiring procedure. An
applicant first fills out an application form. He or she
then receives an initial interview from someone in the
personnel department. References are then checked and
there is a second interview by a department head. Suc-
cessful applicants have a third interview by a division
head and a final interview by the general manager or as-
sistant executive.
Debbie Brown has been Respondent's director of per-
sonnel since February 1, 1982. 5 She testified that as the
director of personnel she spoke to other supervisors and
told them how to handle questions concerning the Union
that might come up. She told them that if employees
asked whether it would be a union house, the supervisor
was to reply that the decision was up to the employees.
She also averred that she told them that they could state
facts about the Union, state their personal opinions, dis-
cuss company policy, correct misunderstanding, and
listen to what employees said about the Union but that
they could not discharge, promise, interrogate, threaten,
or spy.
Brown's credibility is at issue because she is one of the
supervisors who allegedly engaged in coercive interroga-
tion of an employee. On the night of June 20, 1982,
Brown prepared an internal company memo. Part of that
document was entitled "Maintaining Non-Union Status"
and stated, "1. Recruitment and selection of non-union
oriented personnel. Thorough reference checks . . . 11.
Hire and identify employees who would actively cam-
paign against the Union . . ." Brown testified in sub-
stance that she had been asked to prepare a "labor
update"; that she approached it as a "brainstorming ses-
sion"; that she wrote down everything she could think of
as part of a "throwing out of ideas"; that she presented
the entire document the following morning to Respond-
ent's labor counsel Arch Stokes; and that Stokes rather
dramatically told her that it was all garbage and to
forget it. Stokes in his testimony corroborated Brown's
version of the incident. He averred that he told her there
was no need to have a strategy to ferret out union and
nonunion people; that the Union should be given free
s The answer admits and I find that Brown as well as Assistant Direc-
tor of Personnel Oretchen Shideler, Dining Room Manager Dominic Al-
varez, and Rooms Division Manager Cathleen Horgan were supervisors
within the meaning of the Act. Director of Catering Richard Wegs-
cheider was hired by Respondent on February 28, 1982, and from that
date on he was a supervisor within the meaning of the Act.
* This document was obtained from Respondent through a subpoena in
a collateral proceeding in another forum.
access to sell the employees on the need for representa-
tion; that the Union had not successfully organized a
major luxury hotel in that area of 10 years; and that his
advice was for the hotel to do nothing except to hire the
best qualified people for the job without worrying about
whether they were for or against the Union. Brown testi-
fied that she thought she threw the memorandum out.
Management Consultant Cary Bonworth averred that he
was the last to leave the room on that day and he saw
some papers on the table, one of which was the memo-
randum. He also averred that he found those papers
much later in the course of some legal preceedings after
his attorney asked him to make a search but that he was
not aware of the contents of the papers until then.
The memorandum certainly shows that Brown was ca-
pable of ideas which if carried out would have been un-
lawful. However, I do not believe that her memorandum
with regard to those ideas seriously affects her credibility
with regard to the specifics of a particular conversation
with an employee. I am satisfied that the memorandum
does not represent company policy and that no inference
is warranted that Brown took action to implement her
"brainstorming" memo. Resolutions with regard to
Brown's credibility must be made by comparing her de-
meanor and the internal logic of her testimony with
those of the opposing witness.
B. The Testimony of Timothy McGraw
Timothy McGraw sought employment with Respond-
ent in February or early March 1982. He testified that
three different supervisors asked him questions about the
Union.
McGraw averred that he first called Debbie Brown
and spoke to her on the phone. He testified that she
asked him whether the Park Hilton Hotel, where he was
then working, was nonunion; that he replied that it was;
that she told him that Respondent was also going to be
nonunion; and that she asked him whether that bothered
him. Brown testified that she had no recollection of any
conversation with McGraw but that she never had such
a conversation with any applicant. She averred that she
never discussed unionization with an applicant and that if
an applicant asked whether Respondent would be union
she always told him that it would be up to the employ-
ees.
McGraw testified that shortly after his conversation
with Brown he was interviewed by the Assistant Direc-
tor of Personnel Gretchen Shideler in the company
office at the hotel. According to McGraw, Shideler said
there was a possibility of a picket line and asked him
whether that would bother him. McGraw averred that
she asked him how he would vote in a union election.
After having his memory jogged by leading questions, he
testified that she mentioned that it would be a nonunion
hotel. Shideler, in her testimony, flatly denied having
such a conversation with McGraw. She specifically
denied asking him whether he would mind crossing a
picket line or asking him how he would vote in a union
election. She averred that she had interviewed hundreds
of applicants and if someone asked if there was a union,
she told him it was up to the employees.
228
FOUR SEASONS OLYMPIC HOTEL
McGraw testified that about 2 weeks after his conver-
sation with Shideler, he was interviewed by Rooms Divi-
sion Manager Cathleen Horgan at the hotel. He averred
that she said that the hotel was going to be nonunion;
she asked him how he felt about working at the Park
Hilton; and that she said in a questioning way that Re-
spondent was going to be a nonunion hotel. Horgan, in
her testimony, denied the substance of McGraw's asser-
tions. She averred that McGraw said that he liked his
job at the Park Hilton because it was nonunion and he
asked her if Respondent was going to be union or non-
union. According to Horgan she replied that it would be
the decision of the employees as to whether or not to
join the Union.
The demeanor of Brown, Shideler, and Horgan as
they testified was such as to give a basis for having con-
fidence in their veracity. That was not true with regard
to McGraw. His assertion that Brown interrogated him
concerning a union matter in an initial telephone conver-
sation is difficult to believe. He was only one of 15,000
applicants, of whom over 4,000 were interviewed, yet he
is the only witness whose testimony implicated Brown in
improper questioning. She was the personnel director
and it is most unlikely that she got into the type of de-
tailed conversation with a random applicant at that stage
of the application. It is even more unlikely that she
would engage in such a conversation with an unknown
person on the telephone. Shideler was also a believable
witness. McGraw's testimony did not fit into any pattern.
No one else testified that a supervisor asked how an em-
ployee would vote at an election. Indeed, Tony Von
Neudegg, who testified on behalf of General Counsel
with regard to a conversation with a different supervisor,
averred that in his interview with Shideler he asked her
if the hotel was going to be union and she replied that it
was up to the employees to make that decision. That is
consistent with what Brown told the supervisors to say
and also with regard to what Shideler testified she did
tell applicants. With regard to Horgan, her testimony
was fully believable.
In sum, I credit Brown, Shideler, and Horgan and I do
not credit McGraw.
C. The Testimony of Tony Von Neudegg
Tony Von Neudegg was employed at the Edgewater
Inn. He applied for a job with Respondent and had two
interviews in March 1982. The first was with Shideler.
Von Neudegg asked Shideler whether the hotel was
going to be union and Shideler replied that it would be
up to the employees to make that decision. Shideler did
not ask him about his union affiliation.
The second interview was with Dominic Alvarez, the
manager of one of Respondent's dining rooms. Von Neu-
degg testified that during the course of the interview Al-
varez asked him whether he was a union member and
whether he would like the hotel to be a union house. Al-
varez, who interviewed about 200 applicants, testified
that he had no independent recollection of an applicant
named Von Neudegg. Alvarez, in his testimony, flatly
denied that he ever asked any applicant whether the ap-
plicant was a union member or whether the applicant
would like the hotel to be a union house. He testified
that a few applicants did raise questions about the Union
and in all such cases, he told them that he did not know
and they should ask those questions to the personnel de-
partment. He denied that he made any comment to appli-
cants about the Union.
The testimonial demeanor of both Von Neudegg and
Alvarez was impressive. However, some of the circum-
stances surrounding the conversation are such as to give
support to Alvarez' version of the conversation. Alvarez
impressed me while he was testifying as a man who is
extremely cautious. He is and was a union member. At
the same time he was a supervisor who took part in the
hiring process. His assertion that he simply ducked ques-
tions about the Union and referred them to the personnel
department was quite believable. Moreover, Alvarez was
a man of considerable experience in the area. His exami-
nation of Von Neudegg's work history on the application
would in all probability have given Alvarez a strong in-
dication of whether Von Neudegg was or was not a
union member. There would have been little need for
Alvarez to ask the question and to expose himself to pos-
sible difficulties. It is also likely that Alvarez used the
same basic pattern in interviewing the 200 applicants he
spoke to. Von Neudegg is the only witness who testified
concerning Alvarez. Though it is of course possible that
Alvarez interrogated all 200 applicants about their union
membership and that none except for Von Neudegg was
available to testify, it is even more possible that there
were no corroborative witnesses because Alvarez was
telling the truth. In sum, I credit Alvarez and I do not
credit Von Neudegg.
D. The Testimony of Barton, Johnson, and Light
1. The individual conversation between Barton and
Wegscheider
Richard Wegscheider is Respondent's director of ca-
tering. He worked in management positions in the Olym-
pic Hotel from 1972 to 1979 when he began working for
the Doubletree Hotel in Seattle. He worked at the Doub-
letree until February 15 or 20, 1982, and began working
for Respondent on February 28, 1982.
In January 1982, Wegscheider called Dolores Barton,
with whom he had formerly worked at the Olympic. He
asked her whether she would be interested in a private
catering job. That job was not connected in any way to
Respondent. At that time Wegscheider was still working
for the Doubletree Hotel. However, he had an applica-
tion for employment pending with Respondent. He was
not offered a job until mid-February.
Barton testified that after speaking about the catering
job, Wegscheider asked whether she had thought about
going back to work for the Olympic. She averred that
she answered by saying that she had not really consid-
ered it and that she was working enough hours where
she was. She also averred that they spoke about whether
or not it was going to be a union house; that he asked
her how she felt about working for a nonunion house;
and that she answered that she really had not thought
about it much. Wegscheider testified that there was no
229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation about the Union when he spoke to Barton
at that time.
Nothing in the demeanor of either Wegscheider or
Barton gave reason to doubt their testimony and there is
little basis for making a determination as to whose
memory was more accurate. They had known each other
for a long time and were on a friendly basis so it is not
improbable that Wegscheider, who was seeking employ-
ment with Respondent, would have spoken of union
problems. On the other hand, Wegscheider had called
about a catering job and the remarks attributed to Wegs-
cheider by Barton concerning the Union bore no relation
to the purpose of the call. In a later conversation, which
is discussed below, there was a conversation concerning
the Union and it may well be that Barton confused re-
marks made in that conversation with the earlier tele-
phone conversation. Though it is not free from doubt, I
believe that Wegscheider's version of the conversation
was more reliable and I therefore credit him. In any
event there is no evidence that at that time Wegscheider
was a supervisor or agent of Respondent. Nor was there
any evidence that Respondent had given Wegscheider
any real or apparent authority to act on its behalf. In
January 1982 Wegscheider was himself merely an appli-
cant for employment with Respondent and he had no
role in the hiring process.
2. Wegscheider's conversation with Barton,
Johnson, and Light
When Wegscheider worked at the Olympic Hotel
before it closed, he had supervised employees Darleen
Johnson, Dolores Barton, and Sada Light. They all got
along well and Wegscheider liked their work.
Wegscheider began working for Respondent on Febru-
ary 28, 1982. Shortly thereafter, while he was at the
hotel, he saw Darleen Johnson filling out an application
for employment. He made an appointment for her to
come and see him on March 24, 1982. At the same time
he asked her to bring Dolores Barton and Sada Light
with her. He told Johnson that he wanted to talk to all
three of them about positions that were open in the ban-
quet department.
On March 24 Wegscheider met with Johnson, Barton,
and Light at the hotel. They discussed the positions that
were available. There was a discussion in which the
Union was mentioned. All four participants to the con-
versation testified.
Johnson averred that she asked whether the hotel
would be union; Wegscheider said that as far as he knew
it would not be union; and he asked her how she felt
about that.
Barton testified that Johnson asked Wegscheider
whether or not it would be a union house; that Wegs-
cheider said that he did not think it would be a union
job; and Wegscheider asked them how they felt about
working for a nonunion hotel.
Light testified that Wegscheider said that he would
like them to come to work at the hotel; that Johnson and
Barton asked him about the Union and he replied by
saying there would be no union there; that Johnson and
Barton looked very unhappy; and that Wegscheider
asked how they felt about that.
Wegscheider, in his testimony, acknowledged that he
was asked whether it would be a union hotel. He
averred that he told them that management would like to
operate without outside interference; that it would prob-
ably open nonunion; and that the decision, as to whether
the hotel remained nonunion, was not up to the hotel.
He acknowledged that he asked them how they felt
about it. He testified that he knew that the women had a
long affiliation with the Union and in effect he was
asking them whether they would work even if the hotel
was not union.
Considering the testimony of all four witnesses, I be-
lieve that Wegscheider's explanation was reasonable. All
four were credible witnesses and the essence of their tes-
timony was very similar. The conversation came about
because Wegscheider was actively trying to recruit them
as employees. The hotel was opening nonunion and he
openly told them that. He knew that they all had a long
affiliation with the Union and he surely knew that some
union activists will not work for a nonunion hotel. He in
effect was trying to encourage them to come to work
even though the hotel was nonunion. In context his ques-
tion "How do you feel about it" was geared to an in-
quiry as to whether they would be willing to work or
not. That did not constitute coercive interrogation con-
cerning their union membership, activity, or sympathy. 7
To violate Section 8(a)(1) of the Act an employer has to
interfere with, restrain, or coerce employees in the exer-
cise of rights guaranteed in Section 7 of the Act. It
would take a very strained interpretation of the conver-
sation in question to find that anything said by Wegs-
cheider constituted a violation of the Act.
As the General Counsel has failed to establish by a
preponderance the credible evidence that Respondent en-
gaged in any of the violations of the Act alleged in the
complaint, I recommend that the complaint be dismissed
in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
7 Cf. Service Master Cleaning Services, 267 NLRB 875 (1983), where the
Board held:
The Board has long recognized that questions involving union
membership and union sympathies in the context of a job interview
are inherently coercive and thus interfere with Section 7 rights.
230
FOUR SEASONS OLYMPIC HOTEL
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
violated the Act as alleged in the complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The complaint is dismissed in its entirety.
I If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
231