Holiday Inn

National Labor Relations Board - Board Decisions

Jan 17, 1968

169 N.L.R.B. 216 (N.L.R.B. 1968)

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kearney Convention Center , Inc., d/b/a Holiday Inn
and United Steel Workers of America , AFL-CIO.
Case 17-CA-3064
January 17,1968
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On July 17, 1967, Trial Examiner Alvin
Lieberman issued his Decision in the above-entitled
proceeding , finding that the Respondent had en-
gaged in certain unfair labor practices alleged in the
complaint and recommending that it cease and de-
sist therefrom and take certain other affirmative ac-
tion, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint and recommended
dismissal as to them. Thereafter, the Respondent
and the Charging Party filed exceptions to the Trial
Examiner 's Decision with supporting briefs, and
the General Counsel filed cross-exceptions and a
brief in support of cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 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, briefs,
cross-exceptions and brief in support thereof, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner with the following modifications:
While we agree with the Trial Examiner that
Respondent violated Section 8(a)(1) of the Act by
formulating and promulgating a rule prohibiting the
hiring of strikers from the Rockwell Manufacturing
Company, we do not agree with his conclusion that
Respondent refused to rehire Lopez as a result of
this rule in violation of.Section 8(a)(3) of the Act.
The record clearly shows that Lopez was lawfully
laid off for lack of work by the head chef, his father-
in-law, 2 or 3 days before. the illegal rule was
promulgated. The record also shows that no new
chefs were hired during the critical period herein
with the exception of one permanent full-time chef
who was hired on December 1, 1966, to replace
another permanent full-time chef who had resigned.
Lopez had never been employed in that status. As
the record shows that the strike period involved
herein occurred during that period of the year when
Respondent's kitchen operation was at its seasonal
low, and, in the absence of any evidence that
Lopez' application for work' was refused by his
father-in-law because of that rule rather than
because there was no work available at the time, we
do not conclude, under the particular facts of this
case, that the General Counsel has by a preponder-,
ance of the evidence proven that Lopez was
refused rehire because of the policy announced in
the unlawful rule.2 We are further persuaded that
lack of work was the primary motivation, and that
Lopez so understood, by the fact that (1) the rule
was rescinded within 3 weeks with notice to Lopez'
father-in-law, and (2) even if Lopez had not
received notice of the rescission in November, the
rule expired by its own terms when the strike at
Rockwell ended, and yet Lopez, who was ap-
parently unemployed during this entire period, did
not at any time thereafter apply for work not-
withstanding the removal of the limitation. Ac-
cordingly, we shall dismiss the complaint as to this
issue.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Kearney Convention Center, Inc., d/b/a Holiday
Inn, Kearney, Nebraska, its officers, agents, su -
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
"1. Delete in their entirety paragraphs 1(b) and
2(c) and (d) of the Trial Examiner's Recommended
Order and reletter the other paragraphs ac-
cordingly.
"2. Delete the fourth and sixth indented para-
graphs of the Appendix attached to the Trial Ex-
aminer's Decision."
I Although the record is not entirely clear as to whether Lopez actually
applied for work at the time of his Sunday dinner discussion with his
father-in-law, we find it unnecessary to resolve this point at this time. We
note that Lopez ' father-in-law did not appear and testify on this point.
2 Cf. Shawnee Industries , Inc., 140 NLRB 1451, where we found that
the absence of vacancies did not absolve the Employer from violating Sec-
tion 8(h)(3) of the Act where the record clearly showed that the employer
refused to consider certain job applicants because the individuals involved
were known union adherents.
3 In view of our finding that Respondent did not unlawfully refuse to
rehire Lopez, we find it unnecessary to pass on the Trial Examiner's con-
clusion that Lopez was not entitled to backpay beyond the date the strike
ended at the Rockwell Manufacturing Company.
169.NLRB No. 41
HOLIDAY INN 217
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
ALVIN LIEBERMAN, Trial Examiner: This case, with all
parties represented, was tried before me in Kearney,
Nebraska, on March 9, 1967, upon a complaint' of the
General Counsel and respondent's amended answer.2
The issues litigated were whether respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act, as amended (herein called the Act). More particu-
larly the questions for decision are as follows:
1. Did respondent violate Section 8(a)(3) and (1) of the
Act by terminating the employment of Silvester Lopez
and thereafter refusing to reinstate him? Subsidiarily, in
this regard, on what date was Lopez' employment ter-
minated and on what date was he refused reinstatement?
2. Did respondent independently violate Section
8(a)(1) of the Act by adopting a policy of not hiring, and
directing its department heads not to hire, persons who
were on strike against Rockwell Manufacturing Company
(herein called Rockwell)?
Upon the entire record3, upon my observation of the
witnesses and their demeanor while testifying, and upon
careful consideration of the arguments made and the
briefs submitted by the General Counsel and respondent,
I make the following:
FINDINGS OF FACTO
I. RESPONDENT'S BUSINESS
Respondent, a Nebraska corporation, is engaged at
Kearney, Nebraska, in the operation of a motel, known as
the Holiday Inn. During 1966,5 a representative period,
respondent's gross revenues exceeded $500,000, of
which more than 25 percent was received from transient
guests. In addition, respondent annually purchases, and
receives directly, from vendors located outside the State
of Nebraska supplies and materials valued at more than
$5,000. Accordingly, I find that the assertion ofjurisdic-
tion over this matter by the National Labor Relations
Board (herein called the Board) is warranted. Floridan
Hotel of Tampa, Inc., 124 NLRB 261, 264; SpinkArms
Hotel Corporation, etc., 133 NLRB 1694, 1695;
Catalina Island Sightseeing Lines, 124 NLRB 813, 815.
It. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Briefly, this case concerns itself with the termination of
the employment of Silvester Lopez, one of respondent's
I The complaint was issued on a charge filed by United Steel Workers
of America, AFL-CIO (herein called the Union). During the trial the
complaint was amended to set forth respondent 's name as it appears in the
caption The complaint was further amended by substituting the number
"25" for "15" in paragraph II(b)
2 During the trial respondent 's amended answer was amended to admit
paragraph 11(b) of the complaint, as amended , and to include in paragraph
V a denial of paragraph V of the complaint.
3 Issued simultaneously is a separate order correcting the stenographic
transcript of this proceeding in several respects.
cooks; respondent's subsequent refusal to reemploy him;
and the issuance by respondent of a directive to the heads
of its various departments, including its chef, who was its
kitchen supervisor, not to employ persons who were on
strike against Rockwell.6
The General Counsel contends, in support of his com-
plaint, that early in November, respondent, contrary to
Section 8(a)(1) of the Act, decided not to hire Rockwell
strikers; and that respondent's supervisors were informed
of this policy, which also became known to its employees.
The General Counsel further contends that in implemen-
tation of this policy and in violation of Section 8(a)(3)
Lopez was discharged and thereafter refused employ-
ment.
Respondent professes to be without knowledge con-
cerning the circumstances of Lopez' employment or its
termination, which is alleged in the complaint as having
contravened Section 8(a)(3). Admitting that on
November 3, a notice was sent to the heads of all depart-
ments, including its chef, directing them not to hire
Rockwell strikers, respondent denies that this was a pol-
icy or that the notice was discriminatorily motivated.
Rather respondent asserts, on brief, that it had been
dissatisfied with Lopez during a previous period of em-
ployment and that its motive in issuing the notice in
question "was to save the Chef [Lopez' father-in-law]
from embarrassment [in refusing to give a job to Lopez,
who in the meanwhile had become an employee of, and
was on strike against, Rockwell] and to prevent the
return to work of a highly unsatisfactory employee who
unfortunately was a relative of the Chef, a prized depart-
ment head." It is also respondent's contention that Lopez
would not in any event have been reemployed in
November because its economic condition did not war-
rant the hiring of an additional cook.
B. Facts Concerning Respondent 's Alleged Unfair
Labor Practices
1. The nature of respondent's operations
As noted above, respondent operates a motel under the
name of Holiday Inn at Kearney, Nebraska. As an ad-
junct to its motel, respondent, during the time material to
this proceeding, also operated a kitchen and dining room.7
Respondent's chef was in charge of the kitchen and su-
pervised, hired, and discharged all kitchen employees, in-
cluding the cooks.
Respondent's business is seasonal in nature. Its room
occupancy fluctuates from 100 percent during the
summer to about 40 percent in the fall and winter months.
There is, also, a corresponding drop in the business done
in the dining room.
Because of this, Gregg Johnson, respondent's manager,
talked to its department heads, including the chef, a
number of times during September and October about
reducing the number of employees on their respective
4 The motion to dismiss the complaint made by respondent at the close
of the trial is disposed of in accordance with the findings and conclusions
set forth in this Decision.
5 Unless otherwise designated, all dates refer to 1966.
' At all material times the Union was engaged in a strike against
Rockwell's Kearney, Nebraska, plant.
7 On February 15, 1967, respondent leased its kitchen and dining room
to an independent contractor.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
staffs. As a result a substantial reduction in force oc-
curred in September and October. Thus, in the chef's de-
partment the number of cooks dropped from 11 on Au-
gust 15, to 8 on October 30.
"that [he] would not be needed any more, and that [he]
would be laid off because there was not enough work for
all the cooks that were on duty."12 Accordingly, Lopez
left respondent's premises.
2. The termination of Lopez' employment
Silvester Lopez, who the complaint alleges was
discharged on November 3, in violation of Section 8(a)(3)
of the Act, was employed by respondent during two
separate periods . He began working for respondent as a
dishwasher in April 1965, and voluntarily quit early in
October 1966. At the time of his resignation Lopez was
a full-time cook whose tour of duty was from 3 to 11 p.m.
During this period of his employment Lopez did not
conduct himself in a manner calculated to bring him
praise. By his own admission he was tardy in reporting for
work on two mornings , which resulted in the late opening
of respondent's coffeeshop and his transfer to the after-
noon shift; he "frequently dance[d] around [in] the
kitchen";, he did not get along well with the waitresses,
often screaming at them and using "vile and vulgar lan-
guage with them,"8 for which he was cautioned on one oc-
casion by Harold Rieber , respondent 's president.9
Upon leaving respondent 's employ early in October,
Lopez obtained a position with Rockwell. The Union
struck Rockwell 2 weeks later. Lopez supported the
strike, during which he picketed, became a member of the
Union , and attended union meetings.
On October 23, while he was on strike against
Rockwell, Lopez asked respondent's chef, his father-in-
law, for employment for the duration of the strike.'°
Respondent's chef told Lopez that he needed help; that
Lopez should come to work the next day as a full-time
cook on the 3 to 11 p.m. shift; and that he could continue
to work until the Rockwell strike was over. t t
As directed by respondent's chef, Lopez reported for
work on October 24. Johnson, respondent's manager was
not at the motel when Lopez arrived, having left earlier
that day to attend a convention in Memphis, Tennessee.
Lopez continued to work in respondent's kitchen as full-
time cook from October 24 through 30. During the even-
ing of October 30, Johnson returned to respondent's
motel and noted that Lopez was working. Although he
also saw the chef that night, Johnson said nothing to him
about Lopez' presence in the kitchen.
When, or shortly after, Lopez came to work the next
day, October 31, the chef told him, as Lopez testified,
8 In mitigation , Lopez testified that his language improprieties toward
the waitresses were caused by their addressing him in a similar manner.
9 Although denied by Lopez, Rieber testified that at the time in question
he told Lopez that if he continued to use improper language in the kitchen
he would be "fire [d] on the spot."
10 It was stipulated that the Union discontinued its strike against
Rockwell on January 28,1967.
11 These findings are based on testimony given by Lopez. As noted
above, respondent claims to have no knowledge concerning its chef's hir-
ing of Lopez on this occasion.
12 The date of Lopez' layoff is an important factor in determining its
cause, for, as will be seen below, respondent adopted its policy of not hir-
ing Rockwell strikers on November 3, and the General Counsel urges that
Lopez' employment was terminated in pursuance of this policy. As I
noted at the trial, the evidence concerning the date of the termination of
Lopez' employment is "on the vague side." Lopez, himself, was unable to
state with certainty whether his layoff occurred in October, or in "the first
part of November." None of respondent's witnesses were any more
3. Respondent's policy concerning the employment of
Rockwell strikers
As found above the Union struck Rockwell in mid-Oc-
tober. On November 3, while the Rockwell strike was in
progress, respondent's officers, its manager, and its chef
were conferring with respect to a matter which did not
concern Lopez. Toward the end of this meeting Beltzer,
respondent's vice president, inquired of the chef as to
whether Lopez was then in respondent's employ. Upon
being informed that he was not, Beltzer told the chef "we
do not want you to hire him back. As a matter of fact, it is
against the company policy to hire strikers from Rockwell
11
Later that day, Johnson, respondent's manager,
prepared a notice 13 addressed to the heads of all of re-
spondent's departments, including the chef, which stated:
IT IS AGAINST OUR COMPANY POLICY TO HIRE ANY
PERSON ON STRIKE AGAINST ROCKWELL COMPANY.
PLEASE SEE THAT NO EXCEPTIONS ARE MADE.
Johnson hand-carried a copy of this notice to the kitchen
and in the presence of employees working there, but in
the chefs absence, laid it on the chefs desk.
It does not appear that respondent made any attempt at
secrecy with respect to this notice. As Johnson readily
admitted, its contents became "rather knowledgeable
around the Inn," and had "become common knowledge"
among respondent's employees.
Johnson and Beltzer, respectively respondent's
manager and vice president, testified that the sole pur-
pose in issuing the notice was to save the chef from em-
barrassment in having to refuse work to Lopez, his son-in-
law, whom respondent did not want to reemploy not only
because of his many faults, as demonstrated during his
previous employment, but also because business condi-
tions at the time did not warrant the hiring of an additional
cook. Respondent's department heads, as Johnson and
Beltzer acknowledged, were never informed that this was
the purpose of the notice. In view of this and of my
findings appearing - below in connection with the
testimony given by Gilbert Laws, a witness for the
General Counsel, I place no credence on the explanation
offered by Johnson and Beltzer.
definite. Thus, Johnson , respondent 's manager , testified that Lopez
"hadn't been working for several days before" November 3. Rieber,
respondent's president , testified that Johnson told him on October 31,
"that Silvester [Lopez ] was back working." And William Beltzer, respon-
dent's vice president whose operational sphere embraced respondent's
recordkeeping, testified that he "assumed' that Lopez was working on
October 31, and that he was told by the chef on November 3 that "the last
day that [Lopez] worked was the 30th of October." Opposed to this in-
conclusive testimony is a book kept by the chef in which he listed the
names of all cooks working during the period in question. Although not in-
troduced into evidence, it was referred to by Johnson and shows, as John-
son credibly testified, that October 30 was the last day on which Lopez
worked. It is this book , which appears to me to be the most reliable
evidence on the point at issue, which furnishes the basis for my findings
that the last day of Lopez' employment was October 30, and that its ter-
mination occurred on October 31.
13 A copy of this notice was received in evidence as G.C. Exh. 3.
HOLIDAY INN
4. Respondent's refusal to reemploy Lopez, and sub-
sequent events
A day or two following the issuance by respondent of
its notice concerning the hiring of Rockwell strikers,
Lopez again requested employment from respondent's
chef, telling him that if he was not needed at the motel, he
would look for another job.14 In response the chef in-
formed Lopez, as Lopez testified, that "he couldn't [be
used] because [the chef] had his orders that [Lopez]
was not to be employed [at the Holiday Inn] because
[he] was on strike at Rockwell."ls
On November 7, Gilbert Laws,16 a guest at respond-
ent's motel, asked Johnson, respondent' s manager,
whether, as he had been informed, respondent had posted
a notice "on the board to all department heads, do not
hire Rockwell strikers." Johnson, in essence , told Laws
that his information was correct. Upon Laws' expressing
surprise that respondent actually did this, Johnson
responded "that 10 per cent of his business at the Holiday
Inn was Rockwell management."
During this same conversation Laws asked Johnson
whether, as he had also been informed, "an employee in
the kitchen [had been] let go," suggesting in his question
that the employee involved "had been let go because he
was a striker at Rockwell." Johnson did not answer this
question directly. Instead he stated, without at anytime
mentioning the family relationship between Lopez and
the chef,17 that the employee concerned "was a part-time
employee [who] had worked [for respondent] before,
had quit, hired out at Rockwell, [and] when they went
out on strike he came back and worked at Holiday Inn
... [and that ] he was let go because [respondent] felt as
soon as the strike was over he would go back to work for
Rockwell anyway."'s
C. Contentions and Concluding Findings Concerning
Respondent'sAlleged Unfair Labor Practices
The complaint alleges that respondent committed un-
fair labor practices within the meaning of Section 8(a)(1)
of the Act by adopting a policy of refusing to hire
Rockwell strikers and within the meaning of Section
8(a)(3) by discharging and refusing to reinstate Lopez. In
support of the latter allegations of the complaint the
General Counsel argues that both the discharge of, and
the refusal to reinstate, Lopez were in implementation of
respondent's policy with respect to the employment of
Rockwell strikers.
14 The record is as vague with respect to the date of Lopez' second
request for employment as it is with respect to the date on which his previ-
ous employment with respondent was terminated . Lopez testified that the
request was made a "day or two" after his layoff , which, I have found, oc-
curred on October 31 . In view of the answer which he received , however,
it could not have been made then , but must have been made a "day or
two" after November 3, the date on which respondent informed its chef
and other department heads of its "policy" against hiring Rockwell
strikers.
is The chef did not appear as a witness in this proceeding and Lopez
testimony in this regard stands undenied
is Laws is employed as a field representative by United Rubber, Cork,
Linoleum and Plastic Workers of America , AFL-CIO.
19 This finding is based on Laws ' testimony . Johnson testified contrarily
that he "discussed [the family relationship] and told [Laws] it was family
situation." Aside from his demeanor while on the witness stand , which I
have taken into account in making this finding , Laws , despite his position
as an official of a union, has nothing personally to gain or lose by the out-
219
Respondent, as noted, professes to be without
knowledge concerning the commencement of Lopez' em-
ployment on October 24 or its termination on October
31. It asserts, however, that it would not have rehired
Lopez on October 24, regardless of his status as a
Rockwell striker, because he had not been a satisfactory
employee when he had previously worked for respondent
and, irrespective of this, for the further reason that its
business condition at the time did not warrant the em-
ployment of an additional cook. Concerning the notice of
November 3, setting forth a policy of not hiring people on
strike against Rockwell, respondent's position is that it
didn't really have such a policy. Respondent contends, in
this connection, that it was not concerned with hiring
Rockwell strikers, but that it did not want its chef to
reemploy Lopez, his son-in-law, who was known to be a
participant in the strike against Rockwell.19 Accordingly,
respondent's argument continues, the notice was issued
for the sole purpose of providing its chef with a basis, not
embarrassing to him, for not hiring Lopez, whom re-
spondent did not want to employ for reasons uncon-
nected with his participation in the Rockwell strike.
Section 8(a)(1) of the Act is violated by an employer
who engages in conduct which, in the language of the
statute, operates "to interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed in Sec-
tion 7." One of the rights guaranteed to employees is that
of striking. N.L.R.B. v. Erie Resistor Corp., et al., 373
U.S. 221, 233.
Accordingly, by issuing its notice of November 3,
which on its face indicated that respondent had adopted
a policy of not hiring Rockwell strikers, respondent inter-
fered with a right guaranteed to employees by Section 7
of the Act.20 Although I have found that respondent's em-
ployees became aware of the contents of the notice, my
conclusion with respect to the policy which it set forth
would not be different even if it had been kept secret from
them. Wallace Press, Inc., 146 NLRB 1236, 1239.
In reliance on the testimony of Johnson and Beltzer,
respectively respondent's manager and vice president,
respondent vigorously argues that it didn't really adopt a
policy of not hiring Rockwell strikers, but was interested
only in preventing the reemployment of Lopez for
reasons not related to his supporting the Union in its
strike against Rockwell. I have already discredited the
explanation for the policy and notice offered by Johnson
and Beltzer. However, even if it were to be believed, it
would avail respondent nothing, for it is well settled that
the test of interference, restraint, and coercion within the
come of this proceeding Accordingly, I consider Laws , unlike Johnson,
respondent 's manager, to be a disinterested witness whose testimony, for
this reason, outweighs that given on this point by Johnson.
is The findings concerning the conversation between Laws and John-
son are based on Laws' testimony, the correctness of which, except for
the family relationship between the chef and Lopez (see fn. 17), was ad-
mitted by Johnson. Although Johnson further admitted that respondent
"did receive a lot of business from Rockwell," he testified that the 10 per-
cent figure which he mentioned to Laws "was wrong" and "grabbed. .
out of the air." In view of Johnson's admission concerning the substan-
tiality of respondent's business with Rockwell , whether that business was
less than 10 percent , as Johnson implied, is immaterial.
is With respect to this contention respondent 's counsel remarked in his
opening statement that respondent "recognize [d] that the chef was taking
care of [Lopez] to see that his daughter had food on the table "
20 The fact that the target of respondent's policy, as expressed in the
notice, was Rockwell strikers who were not employees of respondent is
immaterial . Phelps Dodge Corp v N.L.R B , 313 U.S. 177,187.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 8(a)(1) of the Act does not turn on
motive. Russell-Newman Mfg. Co., Inc., 153 NLRB
1312 , 1315, reversed on other grounds 370 F.2d 980
(C.A. 5); Exchange Parts Company , 131 NLRB 806,
807, 812 , affd. 375 U.S. 405 . Nor, where a statement or
writing is concerned , does it turn on the truth of the ut-
terance . Lenz Company , 153 NLRB 1399, 1400.
I conclude , therefore , that respondent independently
violated Section 8(a)(1) of the Act by adopting a policy of
not hiring Rockwell strikers and by issuing its notice ex-
pressing that policy.
The final questions for consideration are whether, as al-
leged in the complaint , respondent violated Section
8(a)(3) of the Act by the termination of Lopez ' employ-
ment and by the refusal to reinstate him. Briefly review-
ing the facts respecting this branch of the case, I have
found that in the early part of October after having been
employed by respondent for a substantial period of time
as a cook , during which he displayed many undesirable
characteristics , Lopez quit to take a job with Rockwell.
A short time later the Union instituted a strike against
Rockwell in which Lopez participated. On October 23,
after respondent had instructed its chef and other depart-
ment heads to reduce their staffs because of a seasonal
decline in business , respondent 's chef, Lopez ' father-in-
law, rehired Lopez for the duration of the Rockwell
strike . On October 31, respondent's chef laid Lopez off
for lack of work . On November 3, respondent adopted a
policy of not hiring Rockwell strikers and sent a notice to
that effect to all its department heads . A day or two later,
Lopez sought reinstatement . In response to this request
respondent 's chef told Lopez that he could not be hired as
he had "orders that [Lopez] was not to be employed ...
because [he] was on strike at Rockwell."
The General Counsel argues that both the termination
of Lopez ' tenure as an employee of respondent and
respondent 's refusal to reinstate him were in implementa-
tion of respondent 's policy of not hiring Rockwell strikers
and, therefore , in violation of Section 8(a)(3) of the Act.
The evidence, however , does not support this argument
with respect to Lopez' layoff. First , this occurred, as I
have found , on October 31, 3 days before , respondent
adopted its discriminatory hiring policy with respect to
Rockwell strikers . Second , the reason assigned for the
layoff withstands scrutiny . Cf. N.L.R.B. v. Dant et al.,
etc., 207 F . 2d. 165, 167 (C.A. 9). Respondent was, in
fact , suffering from a slump in business and had in-
structed its department heads , for this reason, to reduce
their staffs . I conclude, therefore, that the General Coun-
sel has not sustained his burden of proving by a prepon-
derance of the evidence that respondent violated Section
8(a)(3) of the Act by terminating Lopez ' employment.
Accordingly , I will recommend that paragraphs IV and
VI of the complaint be dismissed insofar as they relate to
the termination of Lopez ' employment.
A different result , however, is required with respect to
the refusal to reinstate Lopez, which was clearly in imple-
mentation of respondent's policy of not hiring Rockwell
strikers. The evidence leaves no room for doubt as to this.
Unlike the reason given Lopez for his previous layoff,
respondent 's chef plainly and bluntly told Lopez that he
21 Casting doubt upon this contention is the failure on the part of John-
son, respondent's manager , to deny or to reply directly to a suggestion by
Laws, a guest at respondent 's motel , that an employee "had been let go
because he was a striker at Rockwell."
22 Analytically there appears to be no difference insofar as Section
could not return to work for respondent because he was
on strike against Rockwell . Lopez was thus patently de-
nied employment because he supported the Union, by
participating in its strike against Rockwell , an obvious
violation of Section 8(a)(3) of the Act. N.L.R.B. v. Great
Dane Trailers, Inc., 388 U.S. 26.
That respondent , as it argues , may have had other
reasons, nondiscriminatory in nature , for not reemploy-
ing Lopez21 is of no moment . As was stated in this regard
in N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7), the " mere existence of valid grounds
for a discharge is no defense to a charge that the discharge
was unlawful , unless the discharge was predicated solely
on those grounds."22
Accordingly , I conclude that by refusing to reinstate
Lopez following his layoff on October 31 , respondent
committed an unfair labor practice within the meaning of
Section 8 (a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
Respondent's activities 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 of commerce.
V. THE REMEDY
Having found that respondent engaged in the unfair
labor practices set forth above, my Recommended Order
will direct respondent to cease and desist therefrom and
to take such affirmative action as will effectuate the pur-
poses of the Act. In this connection, inasmuch as Lopez'
employment with respondent would have terminated
upon the cessation of the Union's strike against
Rockwell, which, as stipulated by the parties, came to an
end on January 28, 1967, his reinstatement will not be
required. Instead, my Recommended Order will provide
only that Lopez be made whole for any loss of earnings he
may have suffered from the date on which he was refused
employment by respondent until January 28, 1967. Any
backpay found to be due Lopez shall be computed in ac-
cordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, and shall include interest in the
amount and manner provided for in Isis Plumbing &
Heating Co., 138 NLRB 716.
Respondent offered evidence for the purpose of show-
ing that it had rescinded its policy of not hiring Rockwell
strikers and its notice of November 3, setting forth that
policy. However, even if such recission were a fact, as to
which I make no finding, it would not render moot in the
circumstances of this case respondent's conduct in adopt-
ing and issuing its notice concerning the policy, nor would
it obviate the necessity for an appropriate remedial order.
Clark Printing, Inc., 146 NLRB 121, 123.
In view of the nature of the unfair labor practices en-
gaged in by respondent, my Recommended Order will
contain broad cease-and-desist provisions.
8(a)(3) of the Act is concerned between a discharge and a refusal to em-
ploy. The section , itself, speaks in terms of "hire or tenure ," and the
Supreme Court has emphasized that an employer has no greater power to
discriminate in hiring than he has in discharging . Phelps Dodge Corpora-
tion v. N.L.R.B., 313 U.S. 177, 187.
HOLIDAY INN 221
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By adopting a policy of not hiring Rockwell strikers
and by notifying its department heads of such policy
respondent engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. By refusing to employ Silvester Lopez because he
supported the Union by participating in its strike against
Rockwell, thereby discouraging membership in the
Union, respondent has engaged, and is engaging, in unfair
labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent did not engage in unfair labor practices
in the manner set forth in paragraph IV and VI of the
complaint insofar as those paragraphs make reference to
respondent's having violated Section 8(a)(3) of the Act by
terminating Lopez' employment.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue the
following:
Labor Relations Board, within 20 days from receipt of
this Decision, a copy of its notice rescinding its said pol-
icy with proof that a like copy was duly furnished to each
of its department heads.
(c) Make Silvester Lopez whole for any loss of
earnings he may have suffered by reason of the dis-
crimination practiced against him in the manner set forth
in the section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for ex-
amination or copying all payroll records, social security
payment records, timecards, and personnel records
necessary or useful to determine the amount of backpay
due under the terms of this Recommended Order.
(e) Post at its premises copies of the attached notice
marked "Appendix. 1123 Copies of said notice, on forms
provided by the Regional Director for Region 17 of the
National Labor Relations Board, after being signed by an
authorized representative of respondent, shall be posted
by respondent 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 respondent to ensure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps respondent
has taken to comply herewith.24
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges unfair labor prac-
tices not specifically found herein.
RECOMMENDED ORDER
Kearney Convention Center, Inc., d/b/a Holiday Inn,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Adopting or maintaining a policy of refusing to hire
employees who have engaged in, or are engaging in, a
strike against Rockwell Manufacturing Company or any
other employer, or who in any other manner have assisted
or supported, or are assisting or supporting, United Steel
Workers of America, AFL-CIO, or any other labor or-
ganization.
(b) Discouraging membership in United Steel Work-
ers of America, AFL-CIO, or any other labor organiza-
tion by discriminating against employees in regard to hire
or tenure of employment or any term or condition of em-
ployment.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Na-
tional Labor Relations Act, as amended, or to refrain
from any or all such activities.
2. Take the following affirmative action which, it is
found, will effectuate the policies of the National Labor
Relations Act, as amended:
(a) Rescind its policy of refusing to hire employees
who have engaged in the strike against Rockwell Manu-
facturing Company which terminated on January 28,
1967.
(b) Notify each of its department heads, in writing, of
its recission of the aforementioned policy and forward to
the Regional Director for Region 17 of the National
23 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
24 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 Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
After a trial in which both sides had the opportunity to
present their evidence, it has been found that we violated
the law by committing unfair labor practices and we have
been ordered to post this notice and to keep the promises
that we make in this notice.
WE WILL NOT put into effect, keep in force, or fol-
low a policy of not hiring persons who took part in
the strike against Rockwell Manufacturing Com-
pany.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT put into effect , keep in force , or fol-
low a policy of not hiring persons who have struck,
or are on strike against , any company.
WE WILL NOT put into effect , keep in force , or fol-
low a policy of not hiring persons because they sup-
port or help United Steel Workers of America,
AFL-CIO, or any other union , or because they may
have done so in the past.
WE WILL NOT refuse to hire anyone or dis-
criminate against you in any way in order to
discourage membership in, or ' support for , United
Steel Workers of America , AFL-CIO, or any other
union.
WE WILL NOT in any other way interfere with,
restrain , or coerce you in the exercise of any rights
guaranteed to you by the National Labor Relations
Act. In this connection , we will respect your rights
to self-organization , to form , join , or assist any union,
to bargain collectively through any union or
representative of your choice as to wages , hours of
work , or any other term or condition of employment.
You also have the right , which we also will respect,
to refrain from doing so.
WE WILL NOT discriminate against any employees
for engaging in union activity or for joining any
union . Since it has been found that we did so when
we refused to hire Silvester Lopez because he took
part in the strike against Rockwell Manufacturing
Company, WE WILL pay him for any loss he suffered
because we refused to hire him.
WE WILL cancel our policy of not hiring anyone
who took part in the strike against Rockwell Manu-
facturing Company and WE WILL notify our depart-
ment heads of the cancellation of this policy.
Dated By
KEARNEY CONVENTION
CENTER, INC., D/B/A
HOLIDAY INN
(Employer)
(Representative) (Title)
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 provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 E. 12th Street, Kansas City, Missouri
64106, Telephone FR4-5181.