JCR Hotel, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 250 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 250
JCR Hotel, Inc. and Patsy M. Wilson. Case 17–CA–
20622
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On February 9, 2001, Administrative Law Judge Al-
bert A. Metz issued the attached decision. The Respon-
dent filed exceptions, a supporting brief, and a reply
brief. The General Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, JCR
Hotel, Inc., Jefferson County, Missouri, its officers,
agents, successors, and assigns shall take the action set
forth in the Order as modified.
1. Substitute the following for paragraph 2(d).
“(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this order.”
2. Substitute the attached notice for that of the admin-
istrative law judge.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 reversing the findings. Further, we note that despite the
Respondent’s contentions to the contrary, the judge, in fact, credited the
testimony of all of the Respondent’s witnesses regarding the problems
they had working with Charging Party Patsy Wilson. Specifically, the
judge indicated that several former and present employees credibly
testified concerning Wilson’s abrasive manner when dealing with her
coworkers. The judge found, however, that Wilson was discharged at
least in part for engaging in concerted activity, and that she would not
have been discharged in the absence of that activity.
2 We shall modify the judge’s recommended order in accordance
with our recent decision in Ferguson Electric Co., 335 NLRB 142
(2001). Further, we shall substitute a new notice in accordance with
our recent decision in Ishikawa Gasket America, Inc., 337 NLRB 175
(2001).
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the Federal labor law and has ordered us to post and
obey by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Chose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT discharge Patsy M. Wilson or any other
employee because they engage in concerted activities
protected under the Act.
WE WILL NOT in any like or related manner, interfere
with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Patsy M. Wilson full reinstatement to her
former job or, if her job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Patsy M. Wilson whole for any loss of
earnings and other benefits resulting from her discharge,
less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Patsy M. Wilson, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.

JCR HOTEL, INC.

Richard C. Auslander, Esq., for the General Counsel.
Anthony L. DeWitt, Esq., for the Respondent.
DECISION1
ALBERT A. METZ, Administrative Law Judge. The issue pre-
sented is whether the Respondent’s discharge of employee
Patsy M. Wilson is a violation of Section 8(a)(1) of the Na-
tional Labor Relations Act (the Act).2 On the entire record,
including my observation of the demeanor of the witnesses, and
after consideration of the parties’ briefs, I make the following
1 This case was heard at Columbia, Missouri, on November 30,
2000.
2 29 U.S.C. § 158 (a)(1).
338 NLRB No. 27
JCR HOTEL, INC. 251
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a Missouri corporation, operates a Ramada
Inn in Jefferson City, Missouri. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. BACKGROUND
The Respondent’s inn is a large facility composed of 233
guestrooms that are located in four buildings. The Respondent
employs approximately 130 employees, including 32 house-
keeping employees.
Patsy M. Wilson started work for the Respondent on October
28, 1997. She was terminated from employment on November
2, 1999. Teresa Riley, the Respondent’s general manager, testi-
fied that over the years she had received several employee
complaints about Wilson. These complaints centered on Wil-
son’s abrasive manner when dealing with fellow workers. Sev-
eral former and present employees credibly testified about their
knowledge of friction between Wilson and themselves or other
employees. Riley testified that because of this discord, Wilson
was transferred to different jobs. Wilson started her employ-
ment as the catering manager. Riley then moved her to the
night desk manager position. Wilson was finally transferred to
a housekeeping inspector’s job in September 1999. In this posi-
tion she was to insure that housekeepers performed their duties
as directed.
The Government alleges that Wilson’s November 2 dis-
charge resulted, at least in part, because the Respondent be-
lieved that Wilson had concertedly encouraged employees to
walk out of work in protest of working conditions. The Re-
spondent asserts that Wilson’s employment was only termi-
nated because she could not work well with others. The Re-
spondent denies that Wilson ever engaged in concerted pro-
tected activity, and, even if she did, that was not the reason for
her discharge.
III. WILSON’S REMARKS CONCERNING A WALKOUT
It was a practice of the Respondent that employees could ob-
tain a free meal when at work. On October 26, 1999, when
several housekeeping employees went to get their meals they
were told that none were available that day. They were disgrun-
tled by this turn of events and discussed the matter after return-
ing to their breakroom. Wilson was present in the breakroom
for this discussion. Employee Norma Augustine testified that
she also was in the room and recalled fellow worker James
Whittler say that the Respondent would pay attention to the
employees when they all walked out or sat down. Augustine
recalled that Wilson then spoke and said, “Yes, we ought to just
walk out one day when there is a full house.”
Wilson testified that she did say as a followup to Whittler’s
comment, “On the full house day like when the Elks [club]
were there.” Testimony established that the Elks organization
booked the entire inn once a year for a meeting. This organiza-
tion had such a meeting approximately a month prior to the
October 26 discussion in the housekeeping breakroom. Accord-
ing to Wilson she only made the statement as a flippant remark
and was not serious about organizing a walkout of employees.
Wilson and the other employees soon left the breakroom and
returned to their duties.
Wilson continued working from Tuesday, October 26, until
her days off of Saturday, October 30, through Monday, No-
vember 1. She returned to work on Tuesday, November 2, at
which time she was discharged.
IV. WILSON’S DISCHARGE
Riley and other witnesses testified that there was dissatisfac-
tion among some housekeeping employees about working with
Wilson. Riley and Supervisor Teresa Atkisson, executive direc-
tor of housekeeping, met with Wilson on September 24 to dis-
cuss the situation with Wilson. Riley testified that at this meet-
ing she told Wilson to improve her relationship with the em-
ployees. I credit this testimony that, in sum, showed that several
of Respondent’s employees did not like working with Wilson
and that this was a longstanding situation.
Atkisson testified that on approximately October 28 she
overheard employees discussing that Wilson was organizing a
walkout of employees. Atkisson heard the same thing “indi-
rectly through a separate employee.”
Atkisson testified that she had been concerned about Wil-
son’s interpersonal relations with employees. Specifically she
stated that some housekeepers had come to her and reported
that Wilson was picking on them or was going to extremes as to
what she expected of them. In late October, Atkisson tele-
phoned Riley (who was off work for the day) and complained
about Wilson. The two women arranged to meet off the Re-
spondent’s premises to discuss the matter. Riley recalled that
during their telephone conversation Atkisson was upset and
told her that “Patsy (Wilson) was going off about the hotel and
the management.”
Riley and Atkisson met at a restaurant and the latter outlined
the problems she was having with Wilson. Atkisson testified
that during this conversation she also disclosed to Riley, “that
rumor had it that Patsy (Wilson) was trying to get some of the
people to walk out on a full house day.” Riley’s testimony con-
firmed that during this meeting she learned from Atkisson that
it was rumored Wilson was trying to get employees to walk out
during a busy business period.
Riley testified about problems she had with Wilson through-
out her employment that had caused her to shift Wilson to dif-
ferent jobs. Riley stated she was concerned that there was no
where else to place Wilson and the problems continued to oc-
cur. Riley related that, based on this background and her con-
versation with Atkisson about ongoing problems with Wilson,
she decided to discharge Wilson. Riley called the owners of the
Respondent and related her decision to discharge Wilson. The
owners concurred in her decision. Riley denied that the report
of Wilson trying to encourage employees to walk out had any-
thing to do with her discharge decision.
Wilson testified that she was working on the morning of No-
vember 2 when Riley approached and asked that she step into
one of the hotel rooms. The two women went inside a room and
Wilson recalled that Riley said, “Patsy we can’t work together
anymore. And I said what have I done now Teresa, and she
said you just can’t work with people. And I said Teresa I want
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 252
to know what I have done, and she said Patsy you just can’t
work with people. And I said but Teresa I want to know what I
have done. And I asked her several more times and she said
word is you are planning a walk out with the housekeeping
department.”
Riley testified that:

I don’t remember the exact words that I said to Patsy,
but I probably said you know I am sorry, I am going to
ruin your day, but . . . we have tried and we can’t continue
to work together, you can no longer be employed at the
Ramada Inn because you do not work well with others. . . .
And I believe that yes, after I told her she could not longer
work at the hotel and probably after she pushed my hot
button, I said you know, rumor has it you are planning a
walk out . . . .
And as we were getting ready to walk out the door,
and probably as I was walking out the door before her I
said, and rumor has it you are planning a walk out. I was
disappointed in that but certainly not the reason why I
fired her sir.

While the testimony of the two women is somewhat similar,
I have assessed their recitations based on their comparative
demeanor. I have also taken into consideration Riley’s admis-
sion that she did not remember the exact words of what she said
when discharging Wilson, and her prefacing her recollection
with the caveat that she “probably” said what she related in her
testimony. Considering all these factors, I credit Wilson’s tes-
timony as being the most accurate recounting of what was
stated in the discharge conversation.
V. ANALYSIS OF WILSON’S DISCHARGE
A. Concerted Activity
Section 7 of the Act protects employees’ concerted activities
that are for the purpose of mutual aid or protection. Under
Myers Industries, 268 NLRB 493, 497 (1984), employees’
activities in this regard are concerted if they are “engaged in
with or on the authority of other employees and are not solely
by and on behalf of the individual employee.” Moreover, once
the Government establishes that an employee who has suffered
adverse action was engaged in protected concerted activities,
the employer knew of the concerted activity, and the adverse
employment action was motivated by the protected concerted
activity, the burden shifts to the Respondent to demonstrate that
the same action would have been taken, even absent any pro-
tected activity. Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393, 399 (1983); Electromedics,
Inc., 299 NLRB. 928, 937 (1990), enfd. 947 F.2d 953 (10th Cir.
1991); Presbyterian/St. Luke’s Medical Center, 723 F.2d 1468,
1478–1479 (10th Cir. 1983). The test applies regardless of
whether the case involves pretextual reasons or dual motiva-
tion. Frank Black Mechanical Services, 271 NLRB 1302 fn. 2
(1984). “A finding of pretext necessarily means that the reasons
advanced by the employer either did not exist or were not in
fact relied upon, thereby leaving intact the inference of wrong-
ful motive established by the General Counsel.” Limestone
Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th
Cir. 1982).
The Respondent argues that Wilson was not engaged in pro-
tected concerted activity as contemplated by the Act when she
made her remarks to fellow employees concerning a walkout.
The Respondent urges that Wilson made her remarks as a jest
and that there was no serious plan or effort to engage in a walk-
out. Additionally, the Respondent asserts that the Respondent
did not believe that the employees would walk out.
Wilson’s remarks about a walk out when the hotel was busy
were made to fellow employees during a discussion of their
dissatisfaction about working conditions. In particular the dis-
satisfaction centered upon the Respondent’s failure to provide
them with the customary daily meal. Wilson’s statement was
made in agreement with fellow employee Whittler’s remark
that the Respondent would pay attention to the employees when
they all walked out or sat down. I find this discussion between
employees about such working conditions and what they could
do about the matter, was protected concerted activity. I find that
Wilson’s statement was protected concerted activity under the
Act. Salisbury Hotel, 283 NLRB 685, 686–687 (1987).
The record shows that the Respondent took Wilson’s re-
marks seriously. Atkisson testified that the information she
heard was that Wilson was organizing a walkout of employees.
This is what she conveyed to Riley prior to Wilson’s discharge.
Riley told Wilson at the time of the discharge that she under-
stood Wilson was planning a walk out with the housekeeping
department. Riley testified that she was “disappointed” about
learning of Wilson’s walkout discussion. I find that Riley was
concerned about Wilson’s alleged plan of action for housekeep-
ing employees. It is clear that Riley did not know the extent to
which Wilson was serious about carrying out such plans. I find
that Riley did take the threat of the walk out as an important
matter and that she believed Wilson was engaged in concerted
activity. Daniel Construction Co., 277 NLRB 795 fn. 4 (1985).
B. Motivation for the Discharge
The Respondent argues that Wilson was only discharged be-
cause she could not get along with other employees. The record
supports the conclusion that Wilson did have many problems in
dealing with other employees. The Respondent had tolerated
this situation since the start of Wilson’s employment in 1997.
The problems continued into her new position as housekeeping
inspector. The end of the Respondent’s tolerance coincided
with Atkisson’s report that the problem was continuing. It also
coincided with the Respondent receiving reports that Wilson
was trying to organize a walkout of the housekeepers. The re-
cord shows that Atkisson was upset because Wilson “was going
off about the hotel and the management.” The credited testi-
mony establishes that Riley, when pressed by Wilson for the
reasons she was being fired stated, “[W]ord is you are planning
a walk out with the housekeeping department.” Riley conceded
she was “disappointed” about learning of the walkout talk and
that this was a “hot button” issue for her. I find that the Gov-
ernment has shown that Wilson was discharged, at least in part,
because of her protected concerted activity of discussing a pos-
sible walkout of employees. I further find, that in light of the
statements made by Riley to Wilson as to the reason Wilson
JCR HOTEL, INC. 253
was being fired, that the Respondent has failed to establish that
she would have been discharged regardless of her protected
concerted activity. I, therefore, find that the Respondent did
violate Section 8(a)(1) of the Act when it discharged Patsy M.
Wilson on November 2, 1999.
VI. RESPONDENT’S MOTION TO STRIKE
The Government’s complaint also alleged that Riley unlaw-
fully interrogated Wilson concerning her protected concerted
activities. I granted the Respondent’s motion to dismiss this
allegation at the conclusion of the Government’s case in chief.
The basis for the ruling was that no evidence had been pro-
duced to sustain this allegation. The Respondent filed a
posthearing motion to strike a part of the Government’s brief
that made reference to the alleged interrogation, citing the
judge’s dismissal as grounds in support of the motion.
The Government’s brief did contain a reference to Riley’s
testimony that she had asked Wilson if it were true that she was
discussing a walkout with other employees. This testimony
came in during the Respondent’s case. The General Counsel’s
brief noted that this admission was being cited only for the
purpose of showing animus on the part of Riley concerning
Wilson’s walkout talk. I find that the Government’s argument
in this limited regard was proper and, therefore, I deny the Re-
spondent’s motion to strike.
CONCLUSIONS OF LAW
1. JCR Hotel, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act by the
November 2, 1999 discharge of its employee Patsy M. Wilson.
3. The foregoing unfair labor practices constitute unfair la-
bor practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
4. Respondent has not violated the Act except as herein
specified.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended3
ORDER
The Respondent, JCR Hotel, Inc., Jefferson City, Missouri,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging Patsy M. Wilson, or any other employee, be-
cause they engage in protected concerted activity.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommend
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.
(a) Within 14 days from the date of this Order, offer Patsy
M. Wilson full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges pre-
viously enjoyed.
(b) Make Patsy M. Wilson whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her, computed on a quarterly basis, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge of Patsy M.
Wilson, and within 3 days thereafter notify the employee in
writing that this has been done and that the discharge will not
be used against her in any way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under the terms of
this Order. Bryant & Stratton Business Institute, 327 NLRB
1135 (1999).
(e) Within 14 days after service by the Region, post at its fa-
cility in Jefferson City, Missouri, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 17, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since November 2, 1999, Excel Container, Inc., 325
NLRB 17 (1997).
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”