Kiawah Island Co., LTD

National Labor Relations Board - Board Decisions

Jan 16, 1980

247 N.L.R.B. 307 (N.L.R.B. 1980)

KIAWAH ISLAND COMPANY, LTD.
Kiawah Island Company, Ltd. and Hotel, Motel,
Restaurant Employees and Bartenders Union, Lo-
cal 270, Hotel & Restaurant Employees & Bartend-
ers International Union, AFL-CIO. Case 11-CA-
6987
January 16, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On July 31, 1979, Administrative Law Judge
Platonia P. Kirkwood issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions' of the Administrative Law Judge, as
modified and explained herein, and to adopt her
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Kiawah Island Company,
Ltd., Kiawah Island, South Carolina, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
' Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless the
clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products. Inc.. 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings. We note, however, that in
adopting her credibility findings with respect to the substance of the February
18, 1977, conversations between Respondent's officials and the employee
discriminatees herein, we do not rely on the Administrative Law Judge's
erroneous statement that two of Respondent's witnesses contradicted each
other in reference to their whereabouts during the conversations in question.
Respondent further asserts in its brief that the Administrative Law Judge
erred in allegedly failing to consider certain testimony which conflicted with
her findings. As the board stated in Bishop and Malco. Inc.. d/b/a Walker's,
159 NLRB 1 159, 1161( 1966), "The failure of [an administrative law judge to
detail completely all conflicts in the evidence does not mean . that this
conflicting evidence was not considered." Further, "[tlhe absence of a
statement of resolution of a conflict in specific testimony, or of an analysis of
such testimony, does not mean that such did not occur." Stanley Oil
Company. Inc.. 213 NLRB 219, 221 (1974). Finally, as the Supreme Court
stated in N.LR.B. v. Pittsburgh Steamship Company. 337 U.S. 656, 659
(1949), "t]otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact." We have examined the record in
247 NLRB No. 50
light of Respondent's contentions, and we find no merit in its exceptions in
this regard.
: We adopt, inter alia. the Administrative Law Judge's conclusion that
Respondent violated Sec. 8(aX3) and (I) by discriminatorily discharging its
employees James Hymes and Robert Murray in retaliation for their union
organizational activities. We emphasize that our agreement with this
conclusion is based upon our view that the Administrative Law Judge, after
extensive discussion and analysis of Respondent's alleged legitimate cause for
discharging Hymes and Murray. has in fact found that cause to be only a
pretext for its unlawful discriminatory purpose.
DECISION
STATEMENT OF THE CASE
PLATONIA P. KIRKWOOD, Administrative Law Judge:
This matter was heard before me in Charleston, South
Carolina, on October 25 and 26, 1977.' The charge was filed
by Hotel, Motel, Restaurant Employees and Bartenders
Union Local 270, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO (hereinafter
called the Union), on April 5 and was amended on May 2.
A complaint and notice of hearing was issued on May 26
by the Acting Regional Director for Region 11 of the
National Labor Relations Board (hereinafter called the
Board). The complaint alleges, in relevant part, that Kiawah
Island Company, Ltd. (hereinafter called Respondent),
violated Section 8(a)(1) and (3) of the National Labor
Relations Act, as amended (hereinafter called the Act.)
In essence, the complaint alleges that Respondent inter-
fered with, restrained, and coerced its employees by engag-
ing in a variety of proscribed conduct. Additionally, it is
alleged that Respondent discriminatorily discharged its
employees James Hymes and Robert E. Murray on March 2.
Respondent filed a timely answer which admitted certain
allegations, but denied the substantive allegations that it had
committed any unfair labor practices.
All issues were fully litigated at the hearing; all parties
were represented by counsel and were afforded full opportu-
nity to examine and cross-examine witnesses, to introduce
evidence pertinent to the issues, and to engage in oral
argument. Post-hearing briefs have been received from the
Board's counsel for the General Counsel and from Respon-
dent's counsel. These briefs have been carefully considered.
Upon the entire record, from my observation of the
witnesses and their demeanor in the witness chair, and upon
substantial, reliable evidence, "considered along with the
consistency and inherent probability of testimony" (Univer-
sal Camera Corp. v. N.LR.B., 340 U.S. 474, 496 (1951)), I
make the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent, a British Virgin Islands corporation, at all
times material herein, has been engaged in the business of
furnishing food, lodging, and related services to resident and
nonresident guests on Kiawah Island, South Carolina.
During the 12 months immediately preceding issuance of the
complaint, a representative period, Respondent's gross
' All dates hereinafter refer to 1977 unless otherwise stated.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,imt olf hbusiness exceeded $500,000 at said South Carolina
Ic wailio,. I)urinig the same period of time, Respondent
purl'chased and received directly from points outside South
('arolina g)ds and materials valued in excess of $50,000.
Among the facilities maintained by Respondent on Kia-
wA;lh Island is an oceanfront hotel (hereinafter called the
Iin). The Inn contains 150 guestrooms, together with
dlilnig. meeting, and banquet facilities.
ULpon the foregoing, I find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Penn-Keystone Realty
Corp., 191 NLRB 800 (1971).
II1. THE LABOR ORGANIZATION INVOLVED
The parties agree, the record reflects, and I find that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Scenario of Events'
Kiawah Island is a 10,000-acre resort area operated by
Respondent. The area includes a vacation-home recreational
community, golf, tennis, and general recreational facilities,
and a 160-room oceanfront hotel, referred to herein as the
Inn, which contains dining and restaurant facilities. The
alleged unfair labor practices involve employees at the Inn.
The Inn began its operations in May 1976. At that time its
General Manager was Al Forrest. Forrest continued in that
capacity until August 1976 and was replaced by Respon-
dent's vice president of resort operations, George Taylor.
The Inn's business is seasonal. The low points of its business
occur in December and January. Business increases at the
end of February.
The Inn's general manager is responsible for several
departments. Among these is the food and beverage depart-
ment. At all material times, Charles Scott was food and
beverage director. As such, Scott had overall responsibility
for food service at the Inn. Reporting to Scott was Chief
Chef Jean-Yves Charvet. All kitchen activities, including
food preparation and cleanup, were Charvet's overall re-
sponsibility.
The South Carolina Health and Environmental Agency
makes regular inspections of Respondent's food service
facilities. The facility is inspected for general cleanliness of
the areas in which food is stored, prepared, and served. The
inspections result in ratings designated by the letters "A,"
"B," and "C." The grade of "C" indicates unsatisfactory
inspection results. Such a rating denotes an inferior opera-
tion.
The first inspection of the Inn's kitchen was made by the
South Carolina authorities on June 1, 1976, immediately
before the facility opened for business. This inspection
' The facts recited in this section are a composite of the credited testimony
of witnesses presented by the General Counsel and Respondent where they
agreed or which otherwise appears uncontradicted. Where material variations
exist, they are discussed and resolved. Although only the facts relevant to the
issues are recited, I have considered all matters litigated and arguments of
counsel thereon. Omitted material is deemed not credible, irrelevant, or
superfluous.
resulted in a "C" rating. Respondent's vice president,
Taylor, reprimanded then General Manager Forrest. As a
result, Forrest instituted a crash program to correct the
deficiencies.
On June 2 or 3, 1976, Forrest established a regular kitchen
cleanup crew. Alleged discriminatee Hymes was appointed a
working supervisor and remained in that position until
December 1976 when he was demoted in the circumstances
below related.' Hymes formerly worked in the housekeeping
department. His appointment to the supervisory position in
the kitchen area constituted a promotion. He had a 3-man
crew 5 days a week and a 2-man crew on weekends.
On June 4, 1976, the state health inspector conducted a
followup inspection of the kitchen and awarded an "A"
rating. The next inspection was conducted on July 20, 1976.
Again the kitchen received a "C" rating. A followup
inspection after that rating took place on July 27, 1976. This
time, the state agent again revised the rating to "A."
Forrest "left" Respondent's employ shortly after the
unfavorable July 20, 1976, inspection report. Thereupon,
Vice President Taylor temporarily assumed the responsibili-
ty of managing the Inn. he directed more training of the
kitchen cleanup crew. To accomplish this, the chief night
auditor, Stuart Huston, was temporarily appointed to
conduct the training. Huston physically worked with the
cleanup crew to clean the kitchen and established specific
cleanup procedures. Huston performed this educational
function from the first week in August through September
12, 1976.
After Huston relinquished his training activities, Hymes
worked with his crew, presumably in accordance with the
instructions and procedures established by Huston.
The State agency again inspected the kitchen on Novem-
ber 30, 1976. The kitchen was rated "C."'
On December 2, 1976, Taylor addressed a memorandum
to certain of the supervisors, Scott and Charvet among
others, expressing his unhappiness with the most recent
inspection rating. Taylor's memo stated, inter alia, "The
grade of the restaurant is in direct correlation to manage-
ment effectiveness." It concluded by exhorting the supervi-
sory addressees "to respond quickly in maintaining the
kitchen in a top caliber condition at all times." There is no
evidence that Hymes received a copy of Taylor's December 2
memorandum or that he was made aware of it. (In any event
that receipt is immaterial. At the hearing, all parties learned
that Hymes can neither read nor write "effectively.")
Some time between November 30 and December 2, 1976,
Charvet recommended that Hymes be terminated. He also
recommended the immediate termination of alleged discri-
minatee Murray. Murray had worked on the night cleaning
crew since November 3, 1976.
Charvet submitted his recommendation to Scott and to
Respondent's personnel director, Kathleen Smith. Scott
rejected the termination recommendation. He decided,
' Hymes status as a statutory supervisor from the date of this appointment
until he was relieved of these responsibilities in December 1976 is uncontested.
I In the inspector's discretion, Respondent was allowed to post "B" as the
actual rating. According to the inspector's testimony, some "demerits" were
given for unclean conditions of kitchen areas or equipment, others for "food-
handling" problems.
KIAWAH ISLAND COMPANY, LTD.
however, to demote Hymes to a nonsupervisory leadman
position and reduce his pay.
According to Hymes' testimony, which I credit, Hymes
was told by Scott about the decision to demote him at a
meeting on December 2 or 5 at which two other members of
the night crew, Stanley Solomon and a man named Rivers,
were also present. Scott gave as the reason for the "demo-
tion" that a "night supervisor" was not needed and that as a
consequence of the demotion Hymes' pay would be reduced.
Hymes told Scott that he felt "it was wrong of them to do
that to [him]," and after a discussion Hymes asked if he
could "bring in a union representative to help [him] out."
Scott denied that request.'
Organizational efforts among Respondent's employees
commenced soon after the demotion of Hymes was effected.
Hymes and his crewmember, Murray, were the instigators of
this effort. It was the two of them who contacted Union
Agent Richardson, met with him to discuss unionization of
Respondent's employees, and obtained authorization cards
from him. He and Murray then initiated solicitation activity
among the employees and obtained signatures from about 50
of them, Although there is no evidence to indicate the
precise date of which the two men contacted Richardson,
and/or on which they began getting the signatures of fellow
workers on the union cards, I am satisfied, on the basis of
Hymes' testimony of the matter and the sequence of events
which followed, that these dates were closely proximate to
that on which the "demotion" conference of December 2
and 5 between Hymes and Scott took place.
Frank Brumley, Respondent's senior vice president, ad-
mitted on the record that he heard, by early December, a
"rumor" concerning the conduct of a union drive at
Respondent's facility and was "shocked" thereby. Thereaf-
ter, so he testified, he met with various members of his
supervisory staff (including Scott), "discussed" what he had
heard with them, and asked them to seek out what "areas of
concern" would motivate the employees to want union
representation. He also took the step of contacting labor
counsel for "advice."' His testimony on the matter indicates
that, among other things, counsel prepared an antiunion
speech for Brumley, and told him to read it verbatim to the
' Scott had left Respondent's employ by the date the hearing was held, as
had Charvet. Scott did not appear at the hearing. Charvet, however, was
presented by Respondent as its witness on rebuttal and his version of relevant
events here and on other dates differred from that of Hymes as well as with
portions of the testimony of other of Respondent's witnesses. I credit Hymes
to the extent there is a conflict not only because of demeanor factors (he
impressed me as the more truthful witness), but also for reasons appearing
below.
With respect to the events surrounding Hymes' demotion, Charvet testified
that it was he, and not Scott, who personally notified Hymes he was no longer
a supervisor, and that he gave Hymes as the reason that Hymes' work
performance had been poor. He also averred that he told Hymes at the time
that he was not on 2 weeks' probation-that averment was unsubstantiated by
any documentary evidence and lacked any other corroboration from any other
Respondent agent. He was not asked whether Hymes had said anything about
bringing in a "union representative" to help him.
Hymes' report of the demotion conference is more consistent with certain
subsequently occurring events than is Charvet's. Thus, as will appear below,
Hymes later filed a grievance with Respondent's personnel director, Smith,
about his demotion, and in responding Smith did not tell Hymes he had been
demoted because of poor performance, but, rather, said that the establishment
of the supervisory job had been a managerial error and that should such job be
reinstated Hymes would be considered for the post. Also, Hymes contacted
the Union shortly after his demotion, and hence it seems highly plausible to
employees and not to depart from the text or to allow or
answer any questions.
On January 22, Brumley met with groups of Respondent's
employees at two meetings, one held at 3 p.m. and the other,
at 5 p.m. He then read an antiunion speech quoted in full
later in this Decision. At this point, it is sufficient to note
that Brumley told the employees, in the course of that
speech, they would be "sorry" if they signed a Union card;
that Respondent intended to "fight this Union just as hard
as the law permits, and that is pretty darn hard"; and that
"unfortunately for you, when a company and a union get
into a fight, it is the employees who get hurt." As is later
discussed, the General Counsel asserts that by such remarks
Brumley unlawfully "threatened" the employees in violation
of Section 8(a)(l) of the Act.'
On January 25, 3 days after Brumley addressed the
employees, Respondent promulgated a written disciplinary
action policy and distributed it as as "addendum" to the
employee handbook. No such policy existed in writing prior
to that date.' This policy provided, in relevant part:
(a) Supervisors were to prepare a written disciplinary
action report to document "any commendatory or corrective
action" taken by said supervisors on specified printed forms.
Disciplinary forms were to be signed by the supervisor and
the employee.
(b) Preparation of a disciplinary action report before the
termination of an employee was mandatory.
(c) "Normally, three (3) reprimands or warnings during
the course of I year can result in termination."
(d) Imposition of two disciplinary suspensions without
pay "would be cause for discharge."
(e) Where "cause for discharge" is found, the supervisor
"should tell employee orally he has been suspended pending
an investigation of the particular incident, and he will be
notified of the outcome within 3 working days."
(f) Employees aggrieved by disciplinary action could file a
grievance with the personnel department.
On February 4, Hymes presented an oral grievance
asserting, inter alia, that his December 1976 demotion was
unjustified.
me that he would have made the "union representative request" he said he
made at the demotion conference with Scott.
' In his testimony, Brumley denied that the union activity "rumor" on
which he acted in meeting with his supervisors and in contacting labor counsel
came to him through internal sources-i.e., through supervisors or employees.
He averred that such "rumor" was conveyed to him by a statement made to
him by a "friend" at a Charleston Civic Club luncheon meeting held in "late
November or early December." The said "friend," so Brumley testified, said
that he (the friend) had heard a union could be launching a campaign at
Kiawah within the following month or so. I do not credit Brumley's testimony
about how his "suspicions" of union activity were "first aroused." It seems
highly improbable to me that Brumley would have gone to the lengths of
hiring labor counsel simply on the basis of the kind of information he said he
got at the luncheon meeting. I believe it more likely, rather, that Scott
conveyed to Brumley the information that Hymes had made a "union-
representative" request at the demotion conference, that Brumley then also
learned about Hymes' and Murray's solicitation activity, and that he reacted
to that information in contacting labor counsel and in taking other measures,
below detailed, to discourage unionization efforts.
' This and other 8(a)(1) allegations are discussed in sec. III, B, infra.
' Respondent's witnesses described the "policy" at the hearing as a
documentation of the "essence" of the disciplinary "practice" theretofore
followed by Respondent.
309
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 15, Personnel Director Smith rejected
Hymes' grievance. In so doing, Smith indicated that Hymes'
original supervisory position was established by managerial
error, and that Respondent had since altered its perception
of supervisory needs on the kitchen cleanup night shift. The
grievance response concluded with the remark, "if the total
supervisory job is ever reinstated . you [Hymes] ... will
be considered for the job."
Meanwhile, on Saturday, February 12, Murray and
Hymes were scheduled to report to work at 11 p.m. Hymes
reported as scheduled. He clocked in at 11:02 p.m. Murray,
however, did not arrive as scheduled.
Later that night, Murray telephoned Hymes on the job
and requested that Hymes come and pick him up. Hymes
left the premises and returned with Murray sometime after
12:30 a.m. Robert Van Dommelen, the sous chef at the time,
testified that Hymes had earlier reported Murray's absence
to him and that he had asked Vernon Cohn, a dishwasher, to
remain to help out in Murray's absence. Van Dommelen
examined Murray's timecard the next day. That card
showed a punch-in time of 11:03 p.m. for the previous
evening.'
On February 16, Scott summoned Hymes to his office.
There, Scott asked Hymes whether he had punched Mur-
ray's timecard. Hymes denied having done so. He admitted,
however, that he had left the premises to get Murray and
had returned with him during that evening. Scott then
suspended Hymes (but not Murray) for I day for "punching
in" Murray's timecard.
Two days later, on February 18, Scott conducted an
inspection of the kitchen, listed a number of improperly
cleaned areas or items on a written report, and directed that
Hymes be given a disciplinary warning (the second such
warning for Hymes in a 2-day period) and that both Hymes
and Murray be suspended for 3 days. The discipline was
duly administered. Here again, however, there is conflicting
testimony both about who, on Respondent's part, delivered
notice of the disciplinary suspension action to Hymes and
Murray and what the scope of that communication was.
Hymes and Murray, testifying as the General Counsel's
witnesses, reported that Scott was the one who told them
they were suspended and that Scott gave as the reason that
his inspection had revealed the kitchen had not been
properly cleaned. However, they further testified that Scott
never described to them which of the cleanup tasks had not
been done to Respondent's satisfaction. Charvet and his sous
chef Van Dommelen, testifying as Respondent's witnesses,
each gave a report different from that of Hymes and
Murray; but, more importantly, each mutually contradicted
each other. Charvet testified that it was he who orally
advised Hymes and Murray on February 18 that Scott had
ordered each suspended for 3 days; and that, in so doing, he
went over each of the "unclean" items Scott had listed on his
inspection report. (He could not, however, remember any
'Van Dommelen testified that he had concluded that Hymes had punched
Murray's card. He admitted other employees were around at the time, but he
did not query any of them on the matter.
"' Charvet had to clear discharge requests with higher management before
doing anything to implement them.
"My findings on this matter are a synthesis of the credited testimony of
Hymes and Murray. Charvet categorically denied making that or any other
"union" statement: but. for reasons I have earlier indicated. I am unwilling to
one of the items he had allegedly thus mentioned to Hymes
and Murray.) Van Dommelen, on the other hand, testified
that it was he, not Charvet, who talked with Hymes and
Murray on February 18. Van Dommelen further testified
that Charvet specifically instructed him not to discuss
Scott's list of inadequacies. Van Dommelen testified that his
task was to simply have Hymes and Murray sign their
disciplinary forms. In further contradiction of Charvet, Van
Dommelen testified that Charvet actually had removed
himself from the premises when Van Dommelen spoke to
Hymes and Murray.
I credit the testimony of Hymes and Murray.
Vice President Brumley conducted a personal inspection
of the kitchen on February 26 and found it in an unclean
condition. He sent his specific inspection observations to
Scott in a memorandum dated March 1. Scott, in turn,
apparently communicated that memo's content to Charvet.
Acting on Brumley's memorandum (and presumably on
Scott's instructions)"' Charvet served notice of immediate
termination on Hymes and Murray on March 2. In the
ensuing discussion, Charvet, I find, told the two of them that
Brumley had found the kitchen unclean on February 26, but
did not describe to them the "unclean" items set forth in
Brumley's memorandum. Hymes and/or Murray told Char-
vet they were being fired for union activity. Charvet
responded that he had grown "tired" of their union
activities."''
I also observe that Charvet, as well as Brumley, categori-
cally denied having knowledge of Hymes' and/or Murray's
union connections or activities until after the two of them
were fired. Their disclaimer of knowledge appears to me to
be contrived. Another Respondent supervisor, Bell Captain
Mason Haywood, testified in effect that he and Hymes had
spoken to him about the Union on a number of occasions
and that Hymes' prominent activity on the Union's behalf
was well-known to "everyone."
The General Counsel contends that Respondent's asserted
reasons for discharging were of a pretextual character and
that in fact the decision to terminate Hymes and Murray
was rooted in antiunion considerations. As will appear in a
later section of my decision, I find merit in this contention.
Continuing with the chronological statement of relevant
events, it appears that on March 7 the Union filed a
representation petition with the Board on which the Board
directed and conducted an election on June 7.'
Within a week or so after the petition was filed, Respon-
dent's officials summoned all its supervisors to a meeting
where: (a) they instructed the supervisors to explain to the
employees the "benefits" Respondent was providing to the
employees (including the grant of "automatic" increases
after I year of employment, paid insurance, vacation
benefits, etc.), and to tell the employees the Union was
"unnecessary" and that Respondent was opposed to it, and
(b) Respondent's counsel issued advice concerning permissi-
and do not credit his testimony where it is in conflict with that of Hymes and
Murray.
': The General Counsel's brief identifies the R case as being I I-RC-4333.
The record made before me shows only that the petition was filed on March 7.
a hearing thereon was held on March 29, and an election was conducted on
June 7. The record here does not identify the unit or disclose the election
results.
310
KIAWAH ISLAND COMPANY, LTD.
ble and impermissible statements. Describing the "Do's and
Don'ts," counsel pointed out, among other things, "Don't
interrogate, Don't make promises, and Don't make threats."
Pursuant to management's instructions, supervisors did
thereafter talk with employees they supervised about Re-
spondent's benefits and its antiunion stance. The complaint
alleges, inter alia, that in disseminating Respondent's mes-
sage, however, certain of Respondent's supervisors engaged
in verbal conduct violative of Section 8(a)(1). As will appear
hereafter, I find merit in certain of these allegations.
B. The Particular Issues Framed by the
Complaint and its Litigation
1. The alleged 8(a)(1) violation predicated on
Brumley's January 22 speech
Paragraphs 7(a) and (b) of the complaint allege that
Brumley's January 22 antiunion speech contained remarks
carrying threatening implications to the employees.
The parties concede that the full text of Brumley's speech,
as delivered by him on January 22, was as follows:"
I have a very important matter to talk to you about. I
don't want to forget anything, and I will need a record
of what I have said so I have written out what I want to
say. A labor union is trying to get in on Kiawah Island.
Some of you already know about it. I want you to know
how I feel and how the Company feels about a union
being involved here. Sooner or later someone is going to
tell you that if you will sign a union card you will get
more money or a better job or some other good thing. If
you believe those promises and if you sign that card, I
think you will be sorry.
This Company is not very old. Most of you have
worked here for less than I year. But you should know
by now that the Company gives pay increases, promotes
people to better jobs, and soon will have a retirement
program. The Union can't give you these things. Only
the Company can give them. All that the Union can do
is mess things up.
The Company is not going to let the Union mess
things up without a fight. I can tell you right now that
the Company will fight this Union just as hard as the
law permits and that is pretty darn hard. Unfortunately
for you, when a company and a union get into afight it is
the employees who get hurt. I don't want to see that, the
Company does not want to see it, and I know that you
don't want to see that.
When you are asked to sign a union card, think about
what I have said. Reservations are excellent for the
coming year. It should prove to be a busy and successful
time for each of us. The union interference can change
"Underlined portions are those on which the General Counsel bases this
part of the alleged 8(aX I) violations.
" See and compare Greensboro Hosiery Mills. Inc.. 162 NLRB 1275, 1277-
78 (1967), where the Board said:
Our experience shows that in such a setting [i.e.. at the initiation of a
union organizing effort] the employees are constantly on the alert to any
suggestions, whether overt or covert, by their employer, as to the
consequences which may attend their choice of a union as their
collective-bargaining representative. In such a context each employee
that. I suggest that when you are asked to sign a union
card you say, "No." It's up to you. Some of you may
have some questions about what I have said. I suggest
that you put your question in the suggestion box. I will
see that you get an answer. That's all that I have to say.
I appreciate you coming here to listen. It is an
extremely important issue and I want you to think very
carefully about what has been said today. Thank you.
[Emphasis supplied.]
The General Counsel asserts that, in the setting of a newly
instituted union campaign, the employees who heard these
remarks delivered would reasonably interpret Brumley's
declaration that they would be "sorry" if they signed a union
card and that they would be "hurt" if a union were selected
as covert threats or warnings of reprisal. Respondent denies
the validity of this claim. It asserts that its remarks
represented no more than the expression of "views, argu-
ment, or opinion" about the effects of unionization sanc-
tioned by Section 8(c) of the Act. I hold with the General
Counsel on this matter.
In assessing the impact of Brumley's remarks in the
context in which they were delivered, I am guided by the
teaching of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 617-618 (1969). The Court said in relevant part:
Any assessment of the precise scope of employer
expression, of course, must be made in the context of its
labor relations setting. Thus, an employer's rights
cannot outweigh the equal rights of the employees to
associate freely, as those rights are embodied in § 7 and
protected by § 8(a)(1) and the proviso to § 8(c). And
any balancing of those rights must take into account the
economic dependence of the employees on their em-
ployers, and the necessary tendency of the former,
because of that relationship, to pick up intended
implications of the latter that might be more readily
dismissed by a more disinterested ear.
Here, as in Gissel and in related cases in which the Board
has been called upon to assess the impact on employees of
so-called employer "predictions" or statements of "opinion"
or "belief" about the adverse economic consequences of
unionization, the labor relations context in which the
challenged remarks were made was that of an "organization-
al drive, where employers must be careful in waging their
antiunion campaign." Gissel. 395 U.S. at 616."
Reviewing Brumley's speech in light of the above stan-
dards, I have little difficulty in finding that portions of
Brumley's speech went beyond permissible 8(c) bounds and
conveyed prohibited threat or warning of economic retalia-
tion by Respondent because of employee engagement in
union activity. The phrase, "you will be sorry" if you sign a
union card, followed, as it was, by references to the
tends carefully to weigh all the pronouncements of his employer which
bear on the issue in the light of his relationship with his employer and the
economic power his employer possesses to translate what he says into
concrete acts bearing on that relationship and which might have a direct
or "serious" impact on the employees either individually or as a group.
Certainly, employees in the midst of a union organizing campaign are
scarcely likely to be oblivious to . . . authoritative policy pronounce-
ments of top management, even though they purport to be merely
suggestive or advisory in nature.
311
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's existing benefit program, a statement that the
Union could only "mess things up," a promise that Respon-
dent would not permit the Union to do so without
conducting a "pretty darn hard" fight (albeit to the extent
allowed by law), and a declaration that in such a "fight" the
employees would be "hurt," can scarcely be viewed by
employees as mere statements of opinion about the unfavor-
able consequences which might follow unionization. In my
view, the employees would, rather, be reasonably expected to
connect such words with the idea that they would suffer loss
of benefits and injury to their job tenure or terms and
conditions of employment because of action that lay within
their employer's power to take.
The coercive implications of the above remarks were, I
find, increased by certain immediately subsequent concrete
actions taken by Respondent. Two days after Brumley made
the above speech, management disseminated a formal
disciplinary procedure providing for suspension after two
written warnings and for discharge after three such warn-
ings. Within the next 18 or 19 days, Respondent served on
Hymes and Murray, the two instigators of the union
movement, warning and suspension notices it deemed
sufficient to set the two men up for discharge once a new
offense was found. Within the next 10 days, it declared to
both of them that such offense had been committed and it
used the provisions of the said disciplinary procedure to
justify what I regard to be, for reasons below expressed, a
termination action rooted in antiunion considerations. Fur-
thermore, as is also found hereafter, Respondent told
employees, soon after the Union filed its representation
petition, that promised or expected raises had not or would
not be given because of the union campaign, and that
selection of the Union meant "trouble" for the employees.
To conclude, I find that on January 22, as is alleged by
paragraphs 7(a) and (b) of the complaint, Respondent
"threatened its employees that they would be "sorry if they
engaged in union activities . . . [and] that they would be
hurt because they had engaged in union activities" and
thereby violated Section 8(a)(l) of the Act.
2. The 8(a)(1) allegations predicated on verbal
conduct by departmental supervisors
Paragraphs 7(c), (d), (e), (f), and (g) of the complaint
assert, in essence, that in the period between the filing of the
Union's representation petition and the conduct of the
Board election a number of Respondent's supervisors en-
gaged in unlawful verbal conduct in seeking to express
Respondent's antiunion stance. The complaint specifically
names three supervisors, Howard (Bill) Cheshire, Dorothy
Clifton, and David Smythe," as those who made certain
unlawful statements. At dates here relevant, Cheshire and
Clifton were in charge of employees engaged in the perfor-
mance of laundry and general housekeeping functions
(cleaning of floors, carpets, etc.) at the Inn. Cheshire's title
was executive housekeeper, and Clifton's was housekeeper.' 6
" Smythe was mistakenly identified as David McLeod in the complaint as
issued. The correct name of the supervisor was supplied at the hearing by
agreement of the parties and the complaint was amended accordingly.
'" Clifton was no longer in Respondent's employ at the date of the hearing
and did not appear as a witness. Smythe was serving as banquet steward at the
date of the hearing.
Smythe was chief steward in charge of employees perform-
ing kitchen cleaning and dish, silver, and glass cleaning
functions. The supervisory status of all three is conceded.
It is conceded that Clifton and Cheshire individually and
jointly met with certain of the housekeeping employees in
March to disseminate Respondent's antiunion message to
them. The General Counsel alleges, and Respondent denies,
that at one or more of these meetings Clifton and/or
Cheshire engaged in interrogation, solicited employees to act
as informers concerning the union activities of fellow-em-
ployees, and informed employees that they were supposed to
be getting a raise but the Union was holding it up and/or
that they would not get a raise because of the Union. In
support thereof, the General Counsel presented three em-
ployees with whom Clifton and/or Cheshire met in March
as his witnesses.
In her testimony, Bligen reported about a meeting
between her, Clifton, and Cheshire "on or about March 25,"
to which she had been summoned by Clifton. The meeting
took place in an "office" (actually at a desk) maintained by
Cheshire and Clifton in a large room adjacent to the laundry
where the housekeeping employees usually congregated. Her
account of what was said to her by Cheshire or Clifton at the
time is fragmented and confusing and portions of it are
inconsistent with the account set out in the prehearing
affidavit she supplied to the Board investigating agent. As I
do not regard her testimony to be a reliable basis for making
findings adverse to Respondent, I need not and do not
burden this decision by recounting that testimony.
Gibbons' testimony contains a report about a meeting in
the "laundry office" to which Clifton summoned her in
March. Her narration of what was said to her was somewhat
vague and imprecise. Gibbons' initial testimonial report on
the matter was, "I think she [Clifton] asked what we like
about the Union or something like that, I am not sure."
When prompted by the General Counsel for a specific
description of what Clifton said, Gibbons responded, "She
[Clifton] asked me if I had heard about the Union, or
something like that, I can't remember." Gibbons later
testified that she first heard about the Union from Clifton,
and that Clifton had said the employees "don't really need a
union, because they could come to [Clifton] with their
problems."" I base no unfair labor practice findings on
Gibbons' testimony.
Haywood testified that Clifton and Cheshire spoke with
her sometime in March in the housekeeping "office."'"
According to Haywood's testimony, the conversation started
by Cheshire asking if "I knew anything about a union."
Haywood testified that she said, "No." Cheshire then said,
"Do you know what a union is?" Haywood responded,
"No," and Cheshire said, "I'm not for or against a union."
In further relevant testimony, which I credit, Haywood
reported that in February she had been promoted to the
position of "assistant manager" of the laundry (one not of a
supervisory character within the meaning of the Act). She
had been promised a raise in connection with that promo-
" During her cross-examination, Gibbons admitted that the "office" in
which Clifton spoke to her was a common gathering point for housekeeping
personnel.
" During her cross-examination, Haywood acknowledged that she had
visited the locale of this conversation on her own on earlier occasions.
312
KIAWAH ISLAND COMPANY. LTD.
tion; and she had not yet received it when Cheshire spoke to
her (on March 22) to explain Respondent's position on the
Union. Haywood accordingly asked Cheshire why she had
not gotten the raise and Cheshire replied that he would look
into the matter. Cheshire gave her a response 2 days later.
According to Haywood, Cheshire told her she did not
receive her increase "on account of the union." During
cross-examination, Haywood acknowledged that Cheshire
had also said the increase would be considered a "bribe"
because the Union had filed a representation petition.
Cheshire was presented by Respondent as its witness on
rebuttal. He acknowledged that, in response to manage-
ment's instructions about talking to employees about Re-
spondent's views on the Union and Respondent's wage and
benefit policies, he and Clifton conducted several meetings
with one employee at a time (on or about March 22). He
reported that Clifton and/or he told the employees, "You
know the Company is against the union because we don't
feel it is necessary at this time." Cheshire further reported
that Clifton reviewed the existing fringe benefits such as
sickpay, vacations, holiday, and insurance and told the
employees if there were any questions the employees could
come to her or to Cheshire with them. Cheshire specifically
denied the conduct of interrogation of employees about their
union activity at any of these meetings.
Asked about the "wage increase" discussion to which
Haywood had referred, Cheshire admitted that such a
discussion had taken place; he had made an effort to get the
information Haywood wanted and had repeated to her what
he had been told to say: "[Tlhe company could not give any
general raises since the petition was still pending, and that if
anything was given, it was considered a bribe." He also told
Haywood if "she needed anymore information" that she
would have to go to personnel.
Based on the credited testimony of Haywood about
Cheshire's response to her wage-increase question (with
which Cheshire's report is in substantial accord), I find that
Respondent violated Section 8(a)(l) of the Act by advising
employees that, because of the filing of the union petition,
Respondent was withholding wage increases it would other-
wise have been willing to grant.' See Daybreak Lodge
Nursing and Convalescent Home, Inc., 230 NLRB 800, 803
(1977); Petco, Inc., Interstate, 238 NLRB 1297, fn. 2 (1978);
La Marche Manufacturing Company, 238 NLRB 1470
(1978). This violation is charged to Respondent by para-
graph 7(f) of the complaint.
I find unproven, however, the allegations of Sections 7(c),
(d), and (e)(l) of the complaint in which other unlawful
verbal conduct is attributed to Clifton and/or Cheshire.
As earlier noted, the complaint (in pars. 7(b) and (g)) also
attributes the commission of certain unlawful verbal conduct
to Supervisor David Smythe. General Counsel claims that
Smythe also informed employees that they could not get a
raise because of the Union, and that in addition he
"threatened ... employees that the union could get them in
a whole lot of trouble." In support thereof the, General
Counsel adduced the testimony of Vernon Cohen, a dish-
washer at Respondent's facility. He testified that Supervisor
" In its brief, Respondent defends Cheshire's statement as a permissible
explanation of restraint imposed by law. It does not claim, however, that
Haywood was not in fact entitled to the raise which was the subject of
Smythe talked to him about the Union sometime in April on
one of the many occasions when Cohen "hitched a ride" to
work with Smythe.20 According to Cohen, Smythe brought
up the Union. Smythe said that he "didn't know if [Cohen]
was involved with the union or not . . . but the union
probably could get us in trouble." Cohen then asked Smythe
about the raise he was supposed to get, and Smythe
responded that the Union had them "in a hole" and that is
why they could not give a raise.
Cohen further testified that Smythe made a remark about
"trouble" with reference to union activity on a subsequent
occasion-the date of which is not clear. As to this incident,
Cohen's testimony indicates that he and a group of employ-
ees were talking about the Union on a "back porch" at the
Inn when Smythe approached them. One among the group
said something about the Union to Smythe, and Smythe
responded, "You might get a lot of people in trouble."
Smythe, called in rebuttal by Respondent, testified that he
frequently gave Cohen "a ride to and from work," revealed
having taken Cohen home on April 25, and averred that, on
that occasion, he told Cohen he was having problems with
covering the kitchen help oil all the shifts and was looking to
Cohen to be a "leader." He denied that any "raise" was
discussed at that time. On further questioning by his counsel
about the matter, Smythe testified as follows:
Q. Do you recall any conversation with Mr. Cohen
concerning the Union?
A. Could you repeat the question?
Q. Was there any conversation with Mr. Cohen on or
about April 25 of this year while you were driving him
to or from work involving the Union in any way, the
subject matter of the Union?
A. Not directly, not directly question and answer, but
the Union directly, no.
Q. Do you recall such a conversation?
A. No.
Q. Do you recall what you said during that drive?
A. Yes, sir.
Q. What was the conversation?
A. At the time I was a new employee at Kiawah
working in the kitchen, and I was trying to cover three
shifts by myself. I was unable to do so. I needed
somebody who I thought had some strength on one of
the shifts; and after being there for three weeks I saw
Vernon as a possible strength, and on this ride home I
told him my predicament, and that I needed some sort
of help, that I was tired of every time I turned my back
that the people turned right around and started playing
in the kitchen, and I was looking for him to be a leader.
Q. During this conversation, was the subject matter
of a raise discussed?
A. No, sir, not to my knowledge.
Q. Do you recall any conversation subsequent or
before with Mr. Cohen in which the subject of the raise
was discussed?
A. Everybody was asking for a raise at that time in
the Company.
discussion between her and Cheshire. I find no merit in Respondent's position
on this point.
" The complaint dates this union conversation as taking place on April 25.
313
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you recall specifically if Mr. Cohen asked
about a raise?
A. Not specifically, but I imagine that he probably
did.
Q. What was your position, did you tell all employees
when they asked for a raise the same thing?
A. When an employee asked me for a raise, I told
them that the Company at this time was unable to give
any raises due to the pending union vote.
Q. Did you say anything other than that to your
employees?
A. No, not that I can think of, sir.
Q. Did you ever tell Mr. Cohen, or any other
employee, that the Union "would get them into a whole
lot of trouble"?
A. No, I did not.
Q. When was the first time that you learned of any
union activity after you were hired?
A. In a discussion with my supervisor, Charlie Scott.
Q. What were you told at that time?
A. I was told at that time by Mr. Scott that anytime
an employee asked me about the Union that the
Company stance on it was about raises in particular was
that we were not giving any raises except in respect to
yearly increases which were due to the people anyway,
but any raises across the board were not being given
until after the union vote.
Q. Were they yearly raises, or any raises other than a
yearly raise?
A. No, sir, no other raises were given besides yearly
raises.
Q. Were these annual raises or any other type of
raises?
A. Annual raises.
Q. What kind of raises do you have now existing?
A. We have now annual raises.
Q. At that time?
A. At that time.
Q. At that time, what kind of raises were you aware
of?
A. That is all that I was aware of at that time except
that anyone who comes to work for the Company, I
believe, is on 90 days probation in which they start off
at a training rate; up to that time, 90 days, if I feel, or if
their supervisor feels, that they are qualified for a raise,
they are raised from $2.30 to $2.50.
Q. Is that an automatic-type raise?
A. That is an automatic-type raise.
Q. Did employees receive that during the time?
A. There were a few employees, I believe, who did
receive that because they deserved it, it was coming to
them.
Q. Their 90 days were up?
A. Right.
Q. Now-
A. But any other raises at all were not given then.
Q. Did Mr. Scott tell you anything else about the
Union?
A. Could you rephrase that another way?
' Additional alleged independent violations of Sec. 8(a)(1) of the Act in
pars. 7(h) and (i) are based on statements made by Chef Charvet during the
Q. Did he tell you that there was a union campaign?
A. Oh, yes, very much so. It was rather evident.
Q. Did he tell you what you could do or could not
do?
A. He told me that I could not do any questioning,
that I could do no questioning about the Union, that it
was not allowed for the Company to go up to an
employee and say anything against the Union. I was not
allowed to do that. The only thing I ever did if I was
questioned was to say, to talk about it, to look at it from
the Company's standpoint, view, point of view; and try
to outline the company benefits, and what the Company
was doing for the people.
Q. Did you follow those instructions?
A. Yes, as instructed.
I resolve the conflicts between Cohen's testimony and
Smythe's in favor of Cohen. I am satisfied that Cohen
truthfully reported the substance of Smythe's private conver-
sation with him about the Union while the two of them were
in Smythe's auto, and that his account of what Smythe said
on a later occasion to a group of employees on the "back
porch" was also truthful. I agree with the General Counsel
that, in the context of an antiunion campaign, supervisory
advice to employees that union activity will get them "into
trouble" conveys a threatening implication of employer
reprisal in violation of Section 8(a)(1) of the Act. Further,
and for reasons earlier expressed, I find that Smythe's
statements concerning Respondent's unwillingness to grant
wage increases during the pendency of the union petition
also violated Section 8(a)(l) of the Act."
3. The alleged 8(a)(3) and (1) violations
As noted earlier, Respondent fired Hymes and Murray on
or about March 2 for the asserted reason that they had not
been performing kitchen cleaning tasks to Respondent's
satisfaction. The termination action followed an inspection
of the kitchen conducted by Brumley on February 26 and
was preceded by another inspection conducted by Scott on
February 16, as a result of which Hymes and Murray had
been given a 3-day suspension for unsatisfactory work on
that occasion. According to Respondent, the disciplinary
policy it put into effect on January 27 called for the
termination action when Brumley's February 26 inspection
revealed that portions of the kitchen had not been properly
cleaned inasmuch as the two men had previously been
suspended for poor performance on February 18.
The General Counsel asserts that Respondent's given
reasons for disciplining Hymes and Murray and for severing
their employ are of a pretextual character and that the
motivating reasons were of a discriminatory nature ground-
ed in Respondent's antiunionism.
Before proceeding with an analysis and discussion of the
evidence bearing on the issues here presented, some prelimi-
nary observations are in order.
The burden of proving that an employer has discharged an
employee in order to discourage membership or activity on
behalf of a union rests, of course, with the General Counsel.
That burden may be met, however, by circumstantial
terminal interview of Hymes and Murray. These statements are discussed
below together with the alleged 8(a)(3) violations.
314
KIAWAH ISLAND COMPANY, LTD.
evidence which, viewed in its totality, establishes the
presence of unlawful motive or intent. As stated by the
Eighth Circuit in a case cited by the General Counsel here:
Intent and motive are subjective and often may be
proved only by circumstantial evidence.... Illegal
motive has been held supported by a combination of
factors, such as "coincidence in union activity and
discharge . 'general bias or hostility toward the
union' .. variance from the employer's normal
employment routine . . . and an implausible explana-
tion by the employer for its action. [McGraw-Edison Co.
v. N.L.R.B., 419 F.2d 67, 75 (8th Cir. 1969).]
In that same case, the court noted at 76: "The existence of
justifiable cause for discharge, however, does not preclude
the finding of an unfair labor practice.""
The case before me is, I believe, one where the circumstan-
tial evidence points strongly to the presence of discriminato-
ry motive and intent in Respondent's undertaking to punish
and to terminate Hymes and Murray as it did. The totality
of the considerations which lead me to this conclusion are
explained below.
1. Respondent was unquestionably opposed to the union-
ization of its employees, and, on learning that a union
organizational campaign was in progress, it lost no time in
taking countermeasures. Inter alia, it warned its employees
that it was prepared to "fight" their pursuit of organization-
al desires, and that the employees would have reason to be
"sorry" as a result; and, on the heels of these warnings, it
installed and disseminated a "disciplinary policy" with the
stated purpose, among others, of "provid[ing] documenta-
tion of all disciplinary measures," including those which had
not theretofore been documented. An additional purpose,
implicit in the text, was to serve warning that: (a) offenses
which were made the subject of three reprimands within a
year "can result in termination"; and (b) an offense punished
by "suspension" would, on the commission of a second such
offense, be "cause" for immediate discharge.
2. Hymes and Murray, the two men who introduced the
Union to the facility and played the leading roles in getting
the support of fellow employees, were the first of Respon-
dent's employees to whom disciplinary "suspensions" were
administered after the above disciplinary policy was in-
stalled. And while Respondent claims, in effect, that each of
the "suspension" actions was triggered solely by the commis-
sion of punishable offenses by each, and not by any
knowledge of their role as Union sponsors and activists, I am
unable to accept this as a truthful claim.
?: Relevant also as a guideline is the following statement of the Ninth
Circuit Court in Shattuck Denn Mining Corporation (Iron King Branch) v.
N.LR.B.. 362 F.2d 466. 470(9th Cir. 1966):
Actual motive, a state of mind, being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book. If he finds that the stated motive for a
discharge is false, he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that the employer
desires to conceal, an unlawful motive, at least where .. the
surrounding facts tend to reinforce that inference.
'i I have already narrated certain of the evidence which leads me to this
To begin with, it is plain, as I have found, that Respon-
dent's disclaimer of knowledge or suspicion of Hymes' and
Murray's leadership role as the union sponsors and activists
is of a contrived and fabricated character." In truth, I find,
Respondent's management and supervisory agents had,
indeed, promptly identified Hymes as the employee who
introduced union activity to the facility in mid or late
December, 1976, and had, by early February, at the very
least, also identified Murray (a known friend of Hymes) as a
coworker in the extrusive solicitation efforts which, by early
March, had achieved sufficient success to enable the Union's
filing of a viable representation petition. 4
3. Hymes was the first one to receive a "suspension"-
this, for I day, on or about February 13, on an alleged good-
faith suspicion or belief that Hymes had falsely punched
Murray's timecard on the evening of February 12 to show
Murray's arrival by 11:03 when in fact Murray did not come
in to work until about I a.m. The presence of some
discriminatory taint in the administration of that discipline
to Hymes is, in my view, exposed by Respondent's failure to
consider the possibility that Hymes, who denied having
punched in Murray's card, might be telling the truth since:
(a) there were four or five other employees in a position to
have punched Murray's timecard at the time, none of whom
were asked for any information on the matter; (b) Hymes
had advised his superior near the outset of the shift that
Murray had not turned up; and (c) Hymes admitted to
Respondent's agents the following day that he had left the
premises to pick Murray up at or about 12:30.
4. The presence of discriminatory intent is also to be found
in the circumstances in which Respondent next imposed on
Hymes and Murray a 3-day disciplinary suspension on or
about February 18 following Supervisor Scott's inspection of
the kitchen 2 days before and his listing of a number of areas
or items he said he found to be untidy or improperly cleaned.
When Chef Charvet, the departmental supervisor immedi-
ately responsible for day-to-day enforcement of Respon-
dent's cleanliness standards in the kitchen, was sent Scott's
list, he noted, so he testified, that, while the "unclean"
condition of some of the items on the list was attributable to
the night cleaning crew, the "unclean" condition of other
items was attributable to employees engaged as dishwashers
or cooks. Significantly, however, the record is devoid of any
evidence of the delivery of any reprimand of any kind to any
employee other than Hymes or Murray. Furthermore,
although Hymes and Murray were described by Respondent
as the "scheduled night cleaners" on the evening preceding
Scott's suspension, the record shows that (a) a Solomon
Stanley was also employed as a member of the night cleaning
conclusion. Other evidence is to be found, as well, in the testimony of
Supervisor Stuart Huston concerning a conversational exchange he had with
Hymes shortly after Christmas 1976, during which Hymes complained of
difficulties he was having in working with Charvet and Scott. According to
Huston, Hymes informed him that he had a "friend" who could help him with
or 'take care" of those difficulties and he showed Huston the business card of
David Richardson, the Union organizer. Huston relayed the substance of this
exchange to Scott and told Scott he thought it "best" that management "look
into it." Huston claimed that he thought, when shown Richardson's card, that
he might be "an attorney." He saw Richardson on the premises in February.
however, and knew then that he was in fact the union organizer.
' As has been noted, Bell Captain Mason Charles Haywood. an admitted
supervisor, testified that by early February. "lust about ... everybody knew
that Mr. Hymes and Mr. Murray were working for the Union."
315
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crew; and (b) while Stanley might not have been at work on
the evening preceding Scott's inspection (there is no evidence
on this one way or the other), some of the items on Scott's
"list" included items (such as microwave ovens and a glass
"dolly") that were in an unclean condition because of an
"accumulation" of grease or dirt over a period of time.
However, so far as the record shows, nothing was said to
Stanley about what had been found by Scott. Finally, as
admitted by Charvet (as well as by other of Respondent's
witnesses), on all occasions prior to the Union's advent when
checks of kitchen cleanliness revealed a failure of the night
crew to do some cleaning task acceptably, Charvet had done
no more than point out to Hymes what had been found to be
unclean, and, as Charvet admitted, the task was subsequent-
ly done.2 On this occasion, as has been found, Hymes and
Murray were not told exactly which of their cleaning tasks
had not been done acceptably. They were precipituously
subjected, rather, to the 3-day suspension on generalized
advice that the kitchen was "found unclean by Scott and
they were being punished for "unsatisfactory performance"
accordingly. In sum, in thus disciplining Hymes and
Murray, Respondent not only resorted to "corrective ac-
tion" of a punitive type different from that it had used before
the advent of the Union, but also in so doing it treated the
two men differently from the way it treated other employees
whose "poor" performance contributed to the "unclean"
condition in which Scott claimed he found the kitchen on
February 16.
5. The circumstantial facts surrounding the termination of
Hymes and Murray about 10 days after this joint suspension
contain even more obvious indicia of discriminatory treat-
ment or intent. Brumley's inspection report of March I on
which Respondent rests its claim of justifiable "cause" to
terminate Hymes and Murray covered two areas, the kitchen
and the "Jasmine Porch." Brumley's memo indicates that he
found in both a number of unsatisfactorily cleaned areas or
items. Following this memo, Respondent entered written
notations of "unsatisfactory performance" on printed "ac-
tion" forms for five employees-all of whom were kitchen
employees-Pinckney, Campbell, Stanley, Hymes, and Mur-
ray; discharged the latter two and in the case of the others
noted the issuance of a "reprimand and warning that
additional infraction will lead to positive disciplinary action,
which may include suspension or discharge." So far as the
record shows, no employees chargeable with the unsatisfac-
tory items found in the "Jasmine Porch" area were formally
reprimanded or otherwise disciplined. However, several
kitchen employees were served with printed "action" forms
noting "unsatisfactory performance" of kitchen cleaning
tasks, but indicating only that the form was a "warning"
that "additional infraction will lead to positive disciplinary
" Charvet's practice before the advent of the union campaign was to talk
with Hymes about any "problems" he had with kitchen cleanliness on Friday
afternoons, and occasionily to leave notes in his office window with directions
for the cleaning of certain items. The "problems," so Respondent's witnesses
asserted, were no different in nature at that time than they were when the
disciplinary action here in issue was administered.
'" This word is unreadable on the exhibit.
2' I have not overlooked the complaint's allegation that Respondent,
through Charvet, engaged in an independent violation of Sec. (a) I) when, in
the course of the terminal interview of Hymes and Murray, Charvet stated
that he was "tired" of their union activities. Although Charvet's comment
indicates his knowledge about the two men's union activities. I base no 8(a)(l)
action." Among those receiving such a form was Solomon
Stanley. The comment about his "unsatisfactory perfor-
mance" on the form states, inter alia, "shelves left dirty for
over [?]2" week period. General cleaning of kitchen over-
looked." In sum, none other than Hymes and Murray
suffered any serious disciplinary action, while, by contrast,
Hymes and Murray were fired.
Considering all the above circumstantial facts in their
totality, I am convinced and find that Respondent's termina-
tion of Hymes and Murray on about March 2 was rooted, at
least in part, in unlawful and discriminatory considerations.
I conclude, accordingly, that, by terminating Hymes and
Murray, Respondent violated Section 8(a)(3) and (1) of the
Act, as alleged by paragraphs 8 and 9 of the complaint.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
CONCI.USIONS OF LAW
1. Kiawah Island Company, Ltd., is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by: (a)
impliedly threatening its employees with retaliatory action in
the event they choose union representation; (b) advising its
employees that wage increases were being withheld because
of the pendency of the Union's campaign; and (c) telling
employees that union activities would or might get them "in
trouble."
4. By terminating its employees James Hymes and Robert
E. Murray on March 2, 1977, Respondent discriminated
against them in violation of Section 8(a)(3) and (1) of the
Act.
5. Respondent did not commit any of the alleged unfair
labor practices not specifically found unlawful herein.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, including the discriminatory discharge of an
employee, the recommended order shall require that it cease
and desist therefrom and from interfering with, restraining,
or coercing employees in any like or related manner in the
exercise of Section 7 rights.2' I shall also recommend that
Respondent take the following affirmative action in addition
to that required by the usual notice-posting provisions:
finding on it. The comment was made after Hymes and Murray injected the
Union in the conversation and, in the circumstances, I do not view it as a
"threat" of reprisal. I shall therefore recommend the dismissal of pars. 7(h)
and (i) of the complaint.
z I have considered the question of whether a so-called "broad" order
should be entered here in light of the Board's decision in Hickmott Foods. Inc.
242 NLRB 1357 (1979), where the Board reconsidered its policy of entering
such an order automatically in every case involving a discriminatory
discharge. The Board there indicated that the "narrow 'in any like or related
manner' order" would "usually be more appropriate" in cases involving a
single discriminatory discharge absent evidence that a respondent (I) "either
previously to or concurrent with the discriminatory discharge, engaged in
316
KIAWAH ISLAND COMPANY, LTD.
Offer to James Hymes and Robert E. Murray full and
immediate reinstatement to their former or substantially
equivalent jobs, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any
loss of earnings they may have suffered as a result of the
discrimination against them by payment of a sum equal to
that which he would have earned absent the discrimination
from the date of his termination to the date of Respondent's
offer of reinstatement. The backpay obligations of Respon-
dent shall be computed in accord with the rules set out in
E W. Woolworth Company, 90 NLRB 289 (1950), and Florida
Steel Corporation. 231 NLRB 651 (1977).29
Upon the above findings of fact, conclusions of law, the
entire record in the case, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'o
The Respondent, Kiawah Island Company, Ltd., Kiawah
Island, South Carolina, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Threatening employees with retaliatory action in the
event they choose union representation.
(b) Telling employees that wage increases were being
withheld because of the pendency of the union campaign.
(c) Telling employees that union activities would get or
might get them in trouble.
(d) Discriminating against its employees because of their
union activities or sympathies.
(e) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Offer James Hymes and Robert E. Murray immediate
and full reinstatement to the job each formerly held or, if
that job no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights and
privileges, and make each of them whole for any loss of pay
and other benefits suffered by reason of its discrimination
against them in the manner described above in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay and interest due under the
terms of this Order.
(c) Post at its Inn on Kiawah Island, South Carolina,
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
for Region 11, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
other severe conduct" violative of the Act; or (2) was a "repeat [offender] ...
or egregious violator] ... of the Act."
The situation before me here does not, in my judgment, fall within the area
in which the Board indicated it would regard the "broad-form cease-and-
desist order" to be appropriate.
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 11, in writing,
within 20 days from the date of this Order what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that all complaint allegations
not specifically found to constitute a violation of the Act be
dismissed.
" See, generally, Isis Plumbing d Hearing Co.. 138 NLRB 716 (1962).
'° In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations. be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
' In the event that 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
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present evidence, it has been decided that we broke the law
in certain ways. We have been ordered to post this notice.
We intend to carry out the order of the Board and abide by
the following:
The National Labor Relations Act, as amended, gives
employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives of
their own choosing
To engage in activities together for the purposes of
collective bargaining or to act together in order to
seek improvement in their wages, hours, working
cor.ditions, and other terms and conditions of em-
ployment.
To refrain from any and all such activities.
WE WILL NOT threaten to take retaliatory action
against employees because of union activity or sympa-
thy.
WE WILL NOT tell employees that wage increases will
be withheld because of the pendency of an organization-
al campaign by Hotel, Motel, Restaurant Employees
and Bartenders Union, Local 270, Hotel & Restaurant
Employees & Bartenders International Union, AFL-
CIO, or any other labor organization.
WE WILL NOT tell employees that union activity may
or will get them into trouble.
WE WILL NOT discharge or otherwise discriminate
against employees because they engage in union activi-
ties.
317
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WEt Wll. NOT in any like or related manner interfere
with, restrain, or coerce employees because they engage
in any of the protected activities described at the top of
this notice.
WE wit . offer James Hymes and Robert E. Murray
immediate and full reinstatement to their former jobs
with us, without loss of seniority or other rights and
benefits, or, if those jobs no longer exist, to substantially
equivalent jobs. WE W.I make them whole, with
interest, for any loss of pay or other benefits they may
have suffered as a result of our having fired them on
March 2, 1977.
KIAWAH ISLAND COMPANY, LTD.
318