Indianapolis Motor Speedway Motel

National Labor Relations Board - Board Decisions

Nov 10, 1964

149 N.L.R.B. 619 (N.L.R.B. 1964)

INDIANAPOLIS MOTOR SPEEDWAY MOTEL 619
Indianapolis Motor Speedway Corporation d/b/a Indianapolis
Motor Speedway Motel and Hotel , Motel , Cafeteria and Res-
taurant Employees and Bartenders Union , Local No. 58, affili-
ated with Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO. Case No. 25-CA-1894. No-
vember 10, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Stanley L. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
'Thereafter, the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
The Respondent filed a brief in -support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board dismissed the complaint.]
1 The Trial Examiner ' s finding that the Respondent did not violate Section 8(a) (1) and
(3) of the Act was based in large measure on the credited testimony of the Respondent's
witnesses , which differed in several material respects from that of the General Counsel's
witnesses . The General Counsel and the Charging Party except vigorously to the Trial
Examiner 's credibility findings, contending that the testimony of the Respondent's wit-
nesses, particularly that of Food and Beverage Manager Goodman, is contrary to the
"logic of events" and is "internally, substantially and materially self-contradictory." We
have examined the record carefully and, although the matter is not free from doubt, we
are not convinced that under the applicable standards the Trial Examiner' s resolutions of
the difficult issues of credibility in this proceeding are clearly erroneous See Standard
Dry Wall Products, 91 NLRB 544, enfd . 188 F. 2d 362 (C A. 3). We shall therefore
adopt the Trial Examiner's credibility resolutions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
Stanley N. Ohlbaum in Indianapolis , Indiana, on April 27, 1964,1 on a complaint
I Unless otherwise specified , all dates refer to 1964.
149 NLRB No. 63.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dated March 13 of General Counsel of the National Labor Relations Board,
issued through the Regional Director for Region 25, based upon a charge
filed February 5 by Hotel , Motel, Cafeteria and Restaurant Employees and Bartenders
Union , Local No. 58, affiliated with Hotel & Restaurant Employees and Bartenders
International Union , AFL-CIO (herein called the Union ), and the answer of
Indianapolis Motor Speedway Corporation , doing business as Indianapolis Motor
Speedway Motel ( herein called the Respondent ). The issues litigated were wheth-
er Respondent violated Section 8(a)(3) and ( 1) of the National Labor Relations
Act as amended (herein called the Act) by: ( 1) discriminatorily discharging,
and failing and refusing to reinstate , its employees William Pierce and Shirley
Vaughn for union membership and activity , (2) interrogating its employees
concerning their union membership , activities , and desires , and (3 ) threatening
its employees with decrease in pay for union membership , activities , or sup-
port . The entire record and also briefs received from counsel subsequent to
the hearing have been carefully considered.
Upon the entire record and my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has been and is an Indiana corporation
with its principal office and place of business in Speedway,2 Indiana, engaged
continuously in operating a motel which, during the representative year imme-
diately preceding issuance of the complaint, received gross revenues exceeding
$500,000 from rental of rooms and sale of food and beverages. During the
same period, more than 25 percent of Respondent's guests were transients resident
at its motel for less than 30 consecutive days; and, also during the same period,
Respondent received goods valued at over $50,000 from other enterprises, shipped
to the latter directly in interstate commerce from outside Indiana.
I find that at all material times Respondent has been and is an employer
engaged in commerce within the meaning of Section 2(6) and (7) of the
Act, and that assertion of jurisdiction in this case is proper.
II. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been and is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged discriminatory discharge of Pierce and Vaughn
The complaint alleges and the answer denies that on or about February 5
Respondent discriminatorily discharged, and has since failed and refused to rein-
state its employees Pierce and Vaughn, in violation of Section 8(a)(3) and (1),
for union membership or for union or organizational activity. The answer asserts
that the employees were discharged for nondiscriminatory cause and therefore
not entitled to reinstatement.
Since March Respondent has operated a restaurant and motel at its Indianapolis
Speedway, where annually on May 30 is run an international automobile race.
William Allen Pierce and Shirley Elaine Vaughn were hired as restaurant dish-
washers in or around April. Since they worked more or less as a team until
they were discharged on February 5, 1964, for the same reason, it is appropriate
to consider their cases together.
Respondent's dishwashing operations were organized in two shifts, a day shift
from 8 a.m. to 4 p m. and a night shift from 3 to 11 p.m., each having
three dishwashers. The day shift dishwashers were Vaughn, Pierce, and Keller
(the last-named since around Labor Day of 1963). Although each of these
on occasion assisted elsewhere, apparently Keller did so with greater regularity
or frequency than Vaughn and Pierce, leaving the latter in effect to operate
as the day dishwashing team. It is established by the testimony of the dishwashers
themselves that although repair and maintenance service to the dishwashing
equipment was regularly furnished from outside sources, it was part of the dish-
2 By stipulation the complaint was amended at the bearing so as to refer to Respondent's
location as Speedway instead of Indianapolis.
INDIANAPOLIS MOTOR SPEEDWAY MOTEL 621
washers' job to keep the dishwashing equipment (including the machine) clean,
as well as to inspect and rewash (by hand, if necessary) any glasses or dishes
for any reason inadequately cleaned by the machine. The latter responsibility,
according to testimony of the dishwashers, included such tasks as scraping and
removing adherent food and other substances before placing dishes and glasses
into the machine, presoaking extremely dirty glasses before inserting them into
the machine, and rinsing machine-washed dishes and glasses by hand before
placing them in racks for dining room use.
The testimony of General Counsel's witnesses (dishwashers Vaughn, Pierce,
and Keller) as well as that of Respondent's witnesses, establishes beyond doubt
that for a long period prior to their discharge on February 5, 1964, and in
fact more or less continuously since the inception of their employment with
Respondent in the previous April, discharged dishwashers Vaughn and Pierce
had been receiving constant complaints about the dirty condition of glasses
and dishes (i.e., adherent remnants of a former meal or meals) being sent
out by them to the restaurant. As regards glasses, Vaughn testified the com-
plaints, or some of them, were for what she described as a "little white ring"
or "a brown scum"; and, as she further testified, "They had trouble with the
glasses there all the time while I was there, the whole time." Pierce testified
that "time and time he [Food and Beverage Manager and Restaurant Supervisor
James T. Goodman] brought me dirty glasses." Keller also confirmed that
there was no doubt that the glasses were dirty, described them as having "brown
rings and little grit and sand and stuff in the bottom of them." These were
the glasses that were sent out to the restaurant by the dishwashers for the
use of guests, and returned to the dishwashers for rewashing. I find that the
complaints about dirty glasses continued and probably increased in quantity and
tempo in the period of 2 weeks to 1 month preceding the discharge of Vaughn
and Pierce.3 I credit the testimony of Motel Manager Cassidy to the effect
that in the 2 to 3 week period before the discharge of Vaughn and Pierce
he received about a dozen complaints from the motel's most regular customers,
which, together with his expressions of displeasure and expectations of curative
measures, he transmitted to Restaurant Supervisor Goodman, who in turn passed
them on to Pierce and Vaughn.
With the foregoing facts substantially undisputed,4 we come to the events
of February 4, 1964, immediately preceding the discharge of Vaughn and Pierce,
which Respondent asserts precipitated their discharge. On that morning, Motel
Manager Cassidy was served a glass of milk in the motel restaurant. After
he had drained a portion of it, he observed a brown substance or particles
at the bottom of the glass. He set the glass down and called for Goodman,
who was not in. He therefore told Goodman's assistant, Kettery, to call this
to Goodman's attention as soon as he arrived. When Goodman arrived, Cassidy's
milk with its other contents was on Goodman's desk. Accompanied by Kettery,
Goodman immediately went to the dishwashing unit, showed the glass to Pierce
and Vaughn, and inspected other glasses in the rack ready to be sent to the
restaurant, which were also found to be dirty. Goodman reminded Pierce and
Vaughn of the previous complaints, not only from the motel manager but also
from guests, about dirty glasses, and said he would be back after 2 o'clock
to reinspect the glasses and that if they were not satisfactory "then that was
it." To the foregoing account, so far not substantially different from that of
the dishwashers, Pierce in his testimony added that Goodman asked Kettery to
look inside the dishwashing machine and that after he did so Kettery said it
"looked like a garbage can." Although the dishwashers did not indicate in
their testimony that Goodman warned them of any consequence in the event
of continued dirty glasses on reinspection that afternoon, or, indeed, that he
said anything at all about a reinspection, I credit the testimony of Goodman
in this aspect, not only because of my reactions and preferences based upon
testimonial demeanor comparisons, but also because I find it difficult to believe
8 This finding is made upon the basis of Respondent's proof and the testimony of General
Counsel's witness Keller. I do not credit the possibly contrary testimony of Vaughn, which
was evasive, equivocal, and unsatisfactory, if not internally inconsistent.
* To the extent, if any, disputed, the facts are found as aforestated, based upon the com-
posite credited testimony of all witnesses, taking into account the entire record and illy
credibility evaluations resulting in part from their observed demeanor.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that with the degree of provocation and pressure upon him on this occasion,
Goodman would have treated the situation less lightly than his testimony indicates
he did.5
According to Goodman 's testimony , when he returned for the afternoon rein-
spection , he found that the glasses in the racks (ready for dining room guests)
were still just as dirty and foggy and contained the same type of particles. Since
the dishwashers denied that he said he would return , or that he returned or
reinspected , his testimony about the condition of the glasses on the alleged
afternoon reinspection is uncontroverted . For the same reason as indicated above,
I credit Goodman 's testimony in this further aspect. Vaughn and Pierce testified
that they did not find their timecards in the timecard rack at quitting time
that afternoon ( as they had also observed earlier in the day , after the milk
glass incident ), which they interpreted as a discharge signal, but that when
this was called to Goodman 's attention he told them he would take care of
it and to return the following morning. Goodman 's explanation for this is
that although he had decided to discharge them that day (February 4) because
of their unsatisfactory dishwashing , since Motel Manager Cassidy, the only person
authorized to sign checks , was not available when the employees were leaving
for the day around 4 o 'clock, although their terminal paychecks were ready
they had not been .signed, and it was for this reason that he told them to
return the following morning , at which time it is undisputed that he gave
them these checks and informed them that they were discharged . I credit this
explanation by Goodman , which I regard as not unreasonable
It is contended on behalf of the discharged employees that they were fired
for union membership or organizational activity . It is to be borne in mind
in this connection that the discharges occurred on February 5, 1964. Pierce
signed up with the Union on the previous May 27 and Vaughn on July 10. Since
their union affiliation , as well as that of other employees-some of whom are
still working for Respondent-was neither concealed from nor unknown to Re-
spondent, it is difficult to see how their affiliation so long prior to their discharge,
particularly with so protracted a history of employer tolerance of repeated instances
of poor work performance on their part , may justifiably be considered to be
causally related to their discharge . As for organizational action on their part
between the dates of their affiliation and the date of their discharge , Vaughn's
testimony indicates that although she apparently may have 6 furnished a union
card to an employee early in 1964 , according to her own testimony her "organiza-
tional activities" or role in the "Union campaign" between the date of her own
affiliation in July and her discharge the next February , appear to have been
limited to participating in conversation with fellow employees about the Union
but not even asking any of them to sign a card since, as she testified, "most
of them already had Union cards in " Vaughn conceded that at no time during
her employment with Respondent had any supervisor in any way spoken to her
on the subject of any union . With regard to the "organizational activities"
of Pierce , between the time he signed up with the Union in May and his
discharge the following February , the pattern is hardly substantially different.
He, too, participated in discussions with fellow employees about the Union
at lunch or in the locker room . According to him , the "Union campaign"
was confined to such talk and the passing out of cards in the washroom or
locker room and dining room-all a matter of common knowledge around the
motel; in Pierce 's words, "I just believe that everybody knew that it was going
on"-including Goodman , Kettery, and others, i e ., management as well as em-
ployees.7 Pierce testified that at no time did any management person ever
speak to him, or in his presence to anybody else, in any way against or even
6 Asked whether Goodman had ever told him that improvement in the glasses was neces-
sary , Pierce testified : "He didn ' t, indirectly he didn 't say it, but this was the general prac-
tice, if you get me" It was apparent from the witness ' testimony that in his personal
usage and idiom, by "indirectly " be means "directly," as , indeed , was pointed out on the
record.
9I say "may have" because her own self-serving testimony to this effect was unsupported
by testimony of the other alleged employee , whose absence as a witness was unexplained;
and because of my reluctance , all things including my observations considered , to accept
her testimony in this aspect without corroboration.
7 Another General Counsel witness , fellow-employee Knight, a potwasher , also confirmed
this, testifying that "There was talk going all over the place about Unions."
INDIANAPOLIS MOTOR SPEEDWAY MOTEL 623
about the Union-neither threat, question, nor mention; that there was never
any criticism for the handing out of union literature or cards; and that he
had never heard of any management person talking against union or organizational
activities. Pierce further testified that the only union activity he had ever en-
gaged in, other than himself signing a card the preceding May, was that
in January 1964, about a month before his termination, he handed out four
or five cards, and that in so doing he did nothing that everybody else was
not also doing; that nobody ever complained to him about this; and that he
was never told union activity had anything to do with his termination, that
Respondent's discharge notification carried no union context or connotation to
him, and that he had never raised such a question or made such a suggestion
to Respondent.8 Pierce confirmed the testimony of Respondent's witnesses that
during his employment other dishwashers working there had also been discharged.9
Respondent's witnesses testified that Vaughn and Pierce were discharged only
because they were unsatisfactory dishwashers who failed to do their dishwashing
work properly-specifically because of the filthy glass supplied on February 4
to Motel Manager Cassidy himself and their failure to rectify the situation of
other dirty glasses in the rack on that day even after being warned.
It is apparent that, aside from the circumstances of the alleged reinspection
of glasses on the afternoon of February 4 and the actual details of the subsequent
discharges, there is relatively little inconsistency between the versions of both
sides in this case insofar as it relates to Vaughn and Pierce. For reasons already
stated, I have adopted Respondent's version of the events of February 4 as the
more probable and credible. In this connection, as well as for purposes of other
findings herein, it may be appropriate to indicate that I was less favorably
impressed with the testimony of the alleged discriminatees 10 than with that of
Respondent's witnesses, whom I found without exception to be candid, straightfor-
ward, and impressive-even to the extent of making admissions, described below,
which would have been more to their advantage to withhold had they been
inclined to misstate or equivocate for reasons of self-interest. This is by no
means a case in which an antiunion employer, discovering certain employees
attempting to unionize his work staff, precipitously fires them for pretextual
reasons. There is no credible evidence of union animus by the employer here.
The alleged discriminatees had affiliated themselves with the Union-as, appar-
ently, had other employees-7 or 8 months prior to their discharge, overtly,
and their subsequent union activity was in one case (Vaughn) for practical
purposes nonexistent and in the other (Pierce) minimal. Furthermore, whatever
the extent of that "activity" was, it was according to the employees' own testimony
not covert in any way, and was openly known to the employer, who in no
way objected or indicated opposition thereto. Under the circumstances, the dis-
charges' affiliation with the Union is too remote in point of time, and the
extent of their organizational activities too minimal and insubstantial, to justify
8It is undisputed that.4 or 5 days before his discharge, Pierce received a telephone call
from an individual whom Pierce identifies as Joe Taylor , from whom he says he had re-
ceived some union literature This telephone call was received in Goodman's office, where
Pierce spoke to the caller in the presence of Goodman and Kettery. There is no evidence
that either Goodman or Kettery knew who the caller was, nor that they listened to what
Pierce said, nor that union matters were discussed, nor that Pierce said anything to identify
the caller or the call was in any way related to a union matter. Indeed, Pierce explicitly
testified that he said nothing to identify the conversation with any union matter or union
business and that neither Goodman nor Kettery had any reason to suppose it was.
6 The proof is uncontroverted that not only while Vaughn and Pierce were employed by
Respondent, but since then, other dishwashers have been discharged for failing to clean
eating paraphernalia properly , also, for example, that a day or two after the discharge of
Vaughn and Pierce, a cook was discharged by Goodman for "slopping food on a plate."
10I do not necessarily ascribe this to any deliberate intention on the part of these wit-
nesses to misstate or mislead. For example, Vaughn, while freely admitting her employer's
continuous complaints about her dishwashing, at the same time insisted that she had never
been told that her work was not satisfactory but that, on the contrary, her work had always
been praised. While appreciating that perhaps a certain amount of dirty dishes are "par
for the course," so to speak, the total picture and circumstances here presented convince
me that any reasonable allowance quota was exceeded and Respondent's patience justifiably
exhausted.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conclusion-particularly in view of the entire record, including their admitted
shortcomings as dishwashers and the unfortunate specific incident of February 4
involving the motel manager himself-that they were discharged for discrimina-
tory reasons in violation of the Act. Whether or not Respondent expected too
much of its dishwashers or whether or not their discharge was warranted for
reasons other than those cognizable under the Act (or, indeed, for any reason,
so long as not within the Act's proscription) are totally beside the point for
purposes of this proceeding. As has been said many times in many ways, it
is not a violation of this Act for an employer to fire an employee for any
reason whatsoever or for no reason whatsoever, so long as he is not fired for
union or organizational activity or otherwise exercising rights which he is guar-
anteed the freedom of exercising under the Act 11
It is urged on behalf of the discharged employees that discrimination is estab-
lished by reason of the fact that the third day-shift dishwasher, Keller, was
not also discharged. The answers to this are that Keller appears to have had
no responsibility for cleaning glasses; and that he had regularly been performing
work other than dishwashing for substantial periods of time in an eminently
satisfactory manner, and Respondent (particularly Kettery) therefore did not wish
to discharge him. It is undisputed that after Vaughn and Pierce were discharged,
Keller voluntarily quit, stating, "I came in to get my check . I just don't
like the way things go around here." A further answer to the implications
of this contention is that it is conceded that dishwashers other than Vaughn
and Pierce were also discharged, without claim that any of such discharges
were union connected; and that other employees, concededly members of the
Union, have not been discharged. It appears to be further contended that the
dirty glasses in question were "night shift glasses" as distinguished from "day
shift glasses." Apart from the fact that this has by no means been established,
it is noted that the discharged employees admitted continuous complaints to
them about the conditions of the glasses they were sending out to the dining
room; that Keller explicitly conceded that the complaints about glasses included
"day shift glasses" as well as "night shift glasses"; that since, according to
the testimony of Vaughn, the day shift dishwashers washed glasses that had
been used at breakfast (which started at 6:30 a.m.), it is obvious that dirty
breakfast glasses could have been glasses processed by the day shift (i.e., glasses
used after 6.30 a.m. and returned to the day shift dishwashers after 8 am.
for washing); and that Respondent was entitled in the conduct of its business
to take the view that in any event dirty glasses should not have been sent
out to the dining room by the dishwashers, regardless of when or by whom
the particular glasses were processed. It is additionally urged, on behalf of
the dischargees, that they were discharged without notice. Respondent submitted
credible testimony to the effect that this was in accordance with its practice
in discharges for improper work performance, while conceding that in the case
of a cook discharged a few days after these two employees, for "slopping
food on a plate," 2 days' notice was given. This, -again, is beside the point.
Whether or not the failure to give Vaughn and Pierce notice was in accord
with its usual practice, it does not in itself establish discriminatory motivation
in violation of the Act. 1
Upon the total record presented, I am convinced that the true and only reason
for the discharge of Vaughn and Pierce was that, in culmination of a long
history of unremedied, unsatisfactory dishwashing, the "straw that broke the
11As stated by the Board in an early case: "This Board does not attempt to-interpret
employers' rules or pass upon their reasonableness. The only issue with which we are con-
cerned is whether Green had been discharged because of his Union activity .. . Matter
of Montgomery Ward and Co., Inc., 4 NLRB 1151, 1166. Cf also Sunshine Biscuits, Inc.
v. N.L R B , 274 F. 2d 738, 741-742 (C A. 7): While there is no necessity for me, for
purposes of this proceeding, to go beyond deciding the question of whether the discharges
were for discriminatory reasons under the Act, nevertheless if I believe Respondent's ex-
planations for discharging the employees , as I do in this case, this excludes a finding of
discriminatory discharge.
12 It is also contended that the motel is admittedly still receiving some (although less)
complaints about the condition of its glasses. But even if the motel glasses are still dirty,
this does not establish that Vaughn and Pierce were fired for union activity as charged.
It may , for example , simply mean that Respondent has not yet succeeded in finding compe-
tent dishwashers.
INDIANAPOLIS MOTOR SPEEDWAY MOTEL 625
back of [Respondent's] tolerance and condonation" 13 was the intolerable incident
of February 4 when the motel manager himself drank a glass of milk with
filth in it, and the employees' failure even then to clean up the other racked
glasses that day, notwithstanding Goodman's warning to them. Whether or
not Respondent was justified in discharging these employees for this reason
is beside the point, since there is no credible evidence that they were discharged
for any other, and a finding that they were discharged for discriminatory reasons
violative of the Act would be based on sheer surmise, conjecture, and speculation.14
I find and conclude that it has not been established by a preponderance of
the substantial credible evidence that the discharge of Vaughn or Pierce was
for discriminatory reasons in violation of the Act.
B. Alleged interrogations and economic threats
The complaint also alleges and the answer denies that, in violation of Section
8 (a) (1), on or about January 31 and February 1 Respondent through its Supervi-
sors Goodman and Kettery interrogated employees concerning their union mem-
bership, activities, and desires; and that on or about January 31 Respondent
through Kettery threatened employees with a pay decrease for joining or support-
ing the Union or engaging in organizational activities.
The alleged unlawful interrogations are claimed to have been established
through the testimony of Respondent's former dishwasher Keller and its employees
Knight and Wesley; and the alleged economic threats through the testimony
of Keller. Discharged dishwashers Vaughn and Pierce testified that they were
at no time in any way questioned or spoken to on the subject of union or
organizational activities.
Respondent's former dishwasher Keller, who, it will be recalled, resigned, tes-
tified that he signed up with the Union on September 14. He further testified
that around the end of January 1964, when he and Kettery were alone in the
locker room, Kettery told him that he knew Vaughn and Pierce were passing
out union cards and asked Keller if he knew anything about it and whether
they had approached him. Keller testified that he said no, although he had
originally (about 4 months prior to this) received his union card from Pierce;
but that, when asked whether he knew anything about the Union "trying to
get in," he said yes. According to Keller, Kettery then remarked that if the
Union got in he would be making 80 cents instead of $1.20 an hour, which
prompted Keller to say that he would not work for that. Keller testified that
Kettery then told him not to worry and to "leave what was said right here
in the locker room." On cross-examination, Keller conceded that far from indicat-
ing there would be any retaliation against him for union affiliation, "he [Kettery],
to be truthful, he told me my job was safe" and that "you got a job as long
you wanted to work here . don't worry." Kettery's version of this incident
is that one day, probably in January 1964, as he was leaving the restroom
he passed Keller and remarked, "Leon, has anyone ever asked you to join the
Union," Keller said yes, and Kettery continued on out without saying anything
else or even asking him whether he had joined. There is thus raised a pure
issue of credibility between Keller and Kettery. I was adversely impressed by
Keller as a witness, among other reasons because he appeared to hedge, shift,
and equivocate as he testified. On the other hand, I was extremely favorably
impressed with the demeanor of Kettery. I accordingly credit Kettery's version
of this incident, and find. that no economic threat, suggestion, or conversation
took place such as narrated by Keller; and I further find that the passing remark
which Kettery honestly conceded he made while coming out of the washroom
was in no sense coercive or even designed to obtain information relative to
13 Magnolia Petroleum Company v. N .L.R B., 200 F 2d 148, 149 (C A. 5), The fact that
Respondent did not see fit to discharge Vaughn and Pierce previously for poor work does
not mean that when it did its action was discriminatory "But to Dunson [ Employer's
personnel manager], already exasperated by the number and perseverance of Hughes'
creditors , the final batch of threats of garnishment was enough . . . . Proof that a rule is
flexible is not tantamount to a showing of discrimination , if there is reason for its s net
application . To Dunson 's personal knowledge, at least three other employees had been dis-
missed because of excessive garnishments . Thus Hughes was not alone in feeling the brunt
of the company policy." N.L . R.B. v. Georgia Rug Mill, 308 F 2d 89, 93 (CA. 5).
14 Cf. Consolidated Edison Co. of New York, Inc. v. N.L.R.B., 305 U.S. 197 , 230; G H.
Hicks and Sons, incorporated, 141 NLRB 1272 , 1277 ; Lo-K Foods, Inc., 134 NLRB 956,
957; Blue Flash Empress, Inc, 109 NLRB 591, 592.
770-076--65-vol. 149-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Keller's union or organizational status, activities, or desires, and that it was
isolated and not in violation of Section 8 (a) (1) of the Act.15
Respondent's potwasher, Knight, testified that around June, while he was work-
ing on the garbage rack behind the motel, Goodman asked him if he "had
heard anything about a Union" When Knight said he had not, Goodman
said, "You don't have to tell me who it is" and that he could probably tell
Knight, mentioning Josephine Malone, then employed at the motel.16 Further
according to Knight, on another occasion during the summer of 1963, Goodman
again, to use Knight's own words, "asked me if I had heard any more or
something like that, and I took it he was probably talking about the Union.
He didn't say Union or horse race . . . . And what I told him was,
I said, 'No."' Knight testified that the foregoing was the only time or two
that the subject of union was in any way broached or even hinted at by any
supervisory personnel, even though among the employees "There was talk going
all over the place about Unions." Knight further testified that he had signed
up with the Union in July or August, but was never asked about it in any
way by Goodman or any other supervisor, and that at no time did he hear
any threat or suggestion that it would be bad if he or anybody else joined
a union Goodman candidly conceded that he had indeed one day on the garbage
dock asked Knight whether he had heard anything about the Union, and that
Knight said he had not, and that was the end of the conversation. Goodman
added that at this time he was under the impression that Knight had affiliated
with the Union because one of the maintenance men had mentioned it to him
previously
Respondent's janitor (in the motel part of its business) Wesley testified that
he has never signed up with the Union, and that at sometime before or after-he
could not remember which, or how long before or after-Vaughn and Pierce
were discharged Goodman remarked to him in the hallway between the motel
and the dining room (known as "gasoline alley") in a completely friendly way,
" `Is it true, I heard that you been approached about a Union,' or `Do you
know anything about a Union?' Something like that." Wesley testified that
since he had not in fact been approached and knew nothing about any union
activity, he truthfully told Goodman he knew nothing about it, and that Goodman
then said that the motel paid about the same as other motels and that Goodman
"was trying to say" that "The Union wouldn't make too much difference, either
way, I guess." Wesley told nobody about this conversation. Goodman's account
of this encounter is substantially the same.
Although Goodman's version of his remarks to Knight on the garbage rack
and to Wesley in "gasoline alley" do not differ significantly from those of
the employees, it may be appropriate to mention that I was extremely favorably
impressed with the testimonial demeanor of Goodman, whom I found to be
candid, straightforward, and convincing in look and manner. After observing
him, I was left persuaded that he testified truthfully in all essential respects,
including, as already indicated, his testimony with regard to the discharges
of Vaughn and Pierce.17
15 Cf. N.L.R.B. V. Kelly & Picerne, Inc, 298 F. 2d 895, 898 (C.A. 1) ; NL.R.B. v.
England Brothers , Inc., 201 F. 2d 395, 397-398 (C.A. 1) ; John S. Barnes Corporation v.
N L R B , 190 F. 2d 127, 130-131 (,C A. 7) ; G H. Hicks and Sons, Incorporated, 141 NLRB
1272, 1278; Charlton Press, Inc, 129 NLRB 1352, 1357; The Great Atlantic & Pacific
Tea Company, Inc., 129 NLRB 757, 760; Gibbs Automatic Division, Pierce Industries, Inc.,
129 NLRB 196, 198; Lenox Plastics of P.R, Inc, 128 NLRB 42, 44; True Temper Corpora-
tion, 127 NLRB 839, 842; Hot Point Co., 120 NLRB 1768, 1772; Haleyville Textile Com-
pany, Inc., 118 NLRB 1157, 1158; Blue Flash Express, Inc., 109 NLRB 591, 593, 594, 595;
The Frohman Manufacturing Co., Inc., 107 NLRB 1308, 1315.
11 There is neither evidence nor charge that Malone's termination, which occurred soon
after racetime (apparently consistent with customary practice of retrenchment at that
time, according to this witness' testimony), was causally related to any union activity on
her part, nor is there any evidence as to what the reason or circumstances of her termina-
tion were.
17 Much has been made of a statement executed by Goodman several days after the dis-
charges, which is said to be highly inconsistent with his testimony. Other than the per-
haps understandable fact that Goodman did not then expressly identify Motel Manager
Cassidy as being involved with a dirty glass on February 4 (while stating that some guests
were), this statement varies from Goodman's testimony in certain noncritical respects. I
have taken these, as well as Goodman's credited explanation of the undenied hasty circum-
stances under which the statement was executed, into consideration, and I am not per-
suaded to view his credibility as poor or to reject his testimony as totally lacking in ver-
acity, or of the available alternatives to prefer other testimony to his.
.1
1
IRVING AIR CHUTE CO., INC., MARATHON DIVISION 627
In the light of the employees' own testimony and the record as a whole,
including the absence of antiunion sentiment by the Employer , 18 it appears to
me that the few remarks thus admittedly made by Goodman to Knight and
Wesley, considering the casual circumstances under which they were made and
the total absence of even a suggestion of coercive atmosphere or design, could
hardly be regarded as other than isolated and as in no way calculated to interfere
with, restrain, or coerce the employees in the exercise of their Section 7 rights.
Innocuous pleasantry or dialogue is not per se illegal interrogation merely
because an organizational subject is referred to; nor is mere use of the word
"union" by an employer to an employee freighted with hazard 10
I accordingly find and conclude that no economic or other threats were made
by Respondent as alleged; that, as to the alleged interrogations, the alleged
incidents involved (to the extent found) were merely isolated and concoercive
in character, in no way interfering with, restraining, or coercing Respondent's
employees in the exercise of any of their rights under the Act; and, further
that, in any event, even if these incidents were considered to constitute technical,
minor infractions, viewing the case as a whole it would not effectuate the policies
of the Act or serve any useful purpose to issue a cease-and -desist order herein
based thereon.20
CONCLUSIONS OF LAW
1. Respondent is an employer engaged
Section 2 (6) and (7) of the Act.
2. The Union is a labor organization
of the Act.
3. Respondent has
in the complaint.
in commerce within the meaning of
within the meaning of Section 2(5)
not engaged in any of the unfair labor practices alleged
RECOMMENDED ORDER
It is recommended that the complaint be dismissed.
1s Cf. N.L . R.B. v. Jamestown Sterling Corp ., 211 F . 2d 725 , 725 (C.A. 2 ) ; N.L.R.B. v.
Linda Jo Shoe Company, 3Q7 F. 2d 355, 357 (C.A. 5).
11 See cases cited supra, footnote 15.
20 Cf. Pennsylvania Tire and Rubber Co. of Mississippi , Inc., 144 NLRB 466; G . H. Hicks
and Sons, Inc., 141 NLRB 1272, 1278 ; and cases cited supra, footnote 15.
Irving Air Chute Company, Inc., Marathon Division and Textile
Workers Union of America , AFL-CIO and Elected Committee
for Employee Representation ,' Party in Interest . Cases Nos.
3-CA-2097 and 3-RC-3140. November 10, 1964
DECISION AND ORDER
On May 18, 1964, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that Respondent had not engaged
1 Even though the Elected Committee for Employee Representation did not formally meet
with the Respondent, employees participated in it, elected representatives, and admittedly
formed it for the purpose of meeting with Respondent to negotiate concerning rates of pay,
seniority rights, and other working conditions . Accordingly, we find that the Elected
Committee for Employee Representation is a labor organization within the meaning of Sec-
tion 2 (5) of the Act.
149 NLRB No. 59.