National Hotel Co.

National Labor Relations Board - Board Decisions

Jan 18, 1968

169 N.L.R.B. 236 (N.L.R.B. 1968)

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Hotel Company Operating the Jung Hotel
and Hotel, Motel& Restaurant Employees Union,
Local 166, AFL-CIO. Case 15-CA-2975
January 18, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On August 21, 1967, Trial Examiner Herbert Sil-
berman issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He found further
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
and recommended dismissal of these allegations.
Thereafter, the Respondent and General Counsel
filed exceptions to the Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings , conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, National Hotel Company
operating the Jung Hotel, New Orleans, Louisiana,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN , Trial Examiner: Upon a charge
and amended charges, filed by Hotel, Motel & Restaurant
Employees Union, Local 166, AFL-CIO, herein called
the Union, on November 29 and December 2, 1966, and
February 13, 1967, a complaint , dated March 17, 1967,
was issued alleging that the Respondent, National Hotel
Company operating the Jung Hotel, herein called the
Company , has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1) and (3)
and 2(6) and (7) of the National Labor Relations Act, as
amended. The complaint, as amended at the hearing, in
substance, alleges that the Company unlawfully
discharged six employees on various dates in November
1966 and on February 5, 1967, and by such discharges
and other conduct set forth in the complaint has inter=
fered with, restrained, and coerced employees in the exer-
cise of rights guaranteed in Section 7 of the Act. Re-
spondent's answer, as amended at the hearing, generally
denies that it engaged in the alleged unfair labor practices.
A hearing in this proceeding was held in New Orleans,
Louisiana, on May 3, 4, and 5, 1967. Thereafter, briefs
were filed on behalf of the General Counsel and the
Respondent which have been given careful consideration.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a Texas corporation, operates the Jung
Hotel in New Orleans, Louisiana. During the 12 months
preceding the issuance of the complaint, which period is
representative of the Company's business operations,
Respondent's business receipts were in excess of
$500,000, and more than 25 percent of such receipts were
from the rental of lodgings to transient guests who stayed
at the hotel for periods of less than 1 month. During the
same period of time, Respondent purchased merchandise
and supplied valued in excess of $10,000 which were
shipped to it directly or indirectly from points outside the
State of Louisiana. I find that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization with the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The alleged unfair labor practices herein purportedly
arose from Respondent's opposition to an organizational
campaign conducted by the Union at the Jung. On
November 29, 1966, an election was conducted by the
Board among employees of the hotel pursuant to a stipu-
lation for certification upon consent election entered into
on November 2, 1966. The Union lost the election by a
decisive margin: 288 votes having been cast against the
Union and only 135 votes having been cast for the Union.
However, the Union filed timely objections to the elec-
tion and on February 24, 1967, the Board adopted the
Regional Director's recommendation that, because the
Company had failed to file a list containing the names and
addresses of all the eligible voters in accordance with the
rule announced in Excelsior Underwear Inc., 156 NLRB
1236, the election should be set aside and a second elec-
tion should be conducted.
The six employees who are alleged to have been dis-
criminatorily discharged worked in the hotel's coffee
shop. Four of them had been employed as busgirls and
169 NLRB No. 51
NATIONAL HOTEL COMPANY
two as waitresses. Respondent's defense is that the four
busgirls were discharged for incompetence, that one of
the waitresses, Mae Bernard, was discharged for violating
a rule prohibiting waitresses from giving or selling food to
other employees, and that the other waitress, Irene E.
Lane, quit her position. During the times material hereto
Josephine Foret was the dining room supervisor and had
direct charge of the waitresses and bus help. Mrs. Foret
was strongly opposed to the organization of the em-
ployees. She testified that she believed that her position
would become untenable if the employees were to be
represented by a union and that she would then be forced
to give up her job as dining room supervisor, which she
found to be highly rewarding (in the personal satisfaction
she derived from holding a responsible position in which
she was subject to a minimum of direction and supervi-
sion) after a lifetime of hard work.
Mrs. Foret, of necessity, was the principal witness for
the Respondent and her reliability as a witness therefore
is one of the material considerations in this case. Mrs.
Foret is a highly emotional and excitable person. She
revealed these personal characteristics on the witness
stand and, according to the testimony of various wit-
nesses, she also displayed these traits in her dealings with
the employees whom she supervised. However, her
testimony, although charged with the strength of her emo-
tions, at all times impressed me as having been complete-
ly sincere and honest. There was no hint of evasion or
concealment in any of her answers whether given on her
direct examination by the Company's attorney or on her
cross-examination by General Counsel. Despite her in-
terest and personal involvement in the events about
which she testified, I am of the opinion that her testimony
was truthful and reliable.
The first witness for the General Counsel in this case
was Raymond Anderson, a cook. His supervisor was
head chef, Joseph Makefka.I Anderson was an unreliable
witness. On his direct examination by General Counsel
his memory appeared to be faulty and much of his
testimony was given in response to leading questions or
other prompting by General Counsel. There were some
patent errors' in his testimony and some confusion as to
the dates of the events about which he testified. His
testimony, except about a single private conversation
with Chef Makefka, concerned meetings of employees
which were addressed by General Manager Biger or
Makefka or Mrs. Foret. Presumably his testimony as to
what was said at these meetings, if accurate, could have
been corroborated by the testimony of other employees.
Nevertheless,, no corroborative testimony was offered by
General Counsel. For instance, Mae Bernard, who is one
of the named discriminatees in this case and who was a
witness at the hearing, was present at one of the meetings
described by Anderson. Yet, when General Counsel ex-
i Makefka, like Mrs. Foret, testified that he believed his job would
become untenable if the employees under his supervision were to be
represented by a union.
2 In his brief General Counsel asserts that while testifying at the instant
hearing Raymond Anderson "was obviously intimidated by the presence
of his bosses and completely overpowered by the vigorous cross-examina-
tion of Respondent 's counsel Scared and confused adequately describes
Raymond Anderson " However, it was largely during the direct examina-
tion by General Counsel that Anderson appeared to be frightened In an-
swering the questions put to him by General Counsel he was hesitant to an
extreme and spoke in a very soft voice By the time his direct examination
237
amined Mae Bernard he did not question her about the
subject. As I find that Anderson was not a trustworthy
witness, I do not credit his testimony to the extent that it
conflicts with the testimony of Biger, Makefka, or Mrs.
Foret.2
Anderson testified about certain events which an-
tedated the limitation period of Section 10(b). Such
testimony was adduced as background to demonstrate
Respondent's opposition to the organization of its em-
ployees. It is unneccessary to consider Anderson's
testimony for such purpose because the testimony of
former Manager Emmett Biger, Chef Makefka, and Mrs.
Foret clearly reveals that they were hostile to the Union.
Anderson testified about a speech that Manager Biger
made at a meeting with the cooks and other kitchen help
in September 1966, which was within the limitations
period of Section 10(b). While I do not accept Anderson's
version of the event, I find, based upon Biger's testimony,
that some of the remarks made on that occasion were
statutorily offensive. Biger testified that he told the em-
ployees that "if the Union forced us into a fight in this
campaign it left us no alternative but to fight." He also ad-
vised the employees that "the minimum wage was coming
into effect very soon and that we were hopeful of getting
it approved, prior to the time that it would become effec-
tive, which would be February 1, 1967.... [W]e felt
that we would get an increase for them as we had previ-
ously and that they did not need a Union to get these
things for them, that we could do these things and that
they would not have to have a Union." Biger's promise to
"get an increase" for the employees in the context of his
further remarks that "they did not need a Union to get
these things for them" and that the Company was
prepared to fight the Union "in this campaign" was calcu-
lated not only to impress upon the employees the futility
of seeking union representation but also to advise them in
only loosely veiled terms that future benefits might de-
pend upon their rejection of the Union in the pending or-
ganizational campaign. Such remarks violated Section
8(a)(1) which "prohibits not only intrusive threats and
promises but also conduct immediately favorable to em-
ployees which is undertaken with the express purpose of
impinging upon their freedom of choice for or against
unionization and is reasonably calculated to have that
effect."3 Similarly, I find that the following remarks made
by Chef Makefka to the cooks and other kitchen help
about 2 weeks later constituted further violations of the
Act:
You have your increase in salary, and that the union
didn't get it for you. We don't see no reason why you
should join the union, because you got it without the
union. You also have your five day week without the
union.4
was completed, Anderson seemed to have gained composure and he dis-
played normal self-assurance on his cross-examination
s N.L.R.B. v Exchange Parts Co., 375 U.S. 405, 409. See also
N.L.R.B v. Douglas & Lomason Company, 333 F.2d 510 (C.A 8);
Brandenburg Telephone Company, 164 NLRB 825.
4 The above is quoted from testimony of Anderson which was not con-
tradicted by Makefka. On another occasion Makefka remarked to various
employees in the kitchen that "perhaps if the Union got into the hotel it
would make my life so miserable that I would have to leave the hotel "
Contrary to General Counsel, I do not deem this statement to constitute
an unlawfully coercive threat
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Discharges of Elmira Pierre, Beverly Stewart,
Yvonne Armstead, and Shelia Augillard
Elmira Pierre, Beverly Stewart, Yvonne Armstead,
and Sheba Augillard are young ladies who were hired by
Mrs. Foret as busgirls in the hotel's coffee shop. Pierre
and Stewart were discharged by Mrs. Foret on
November 10, 1966, and Armstead and Augillard were
discharged by Mrs. Foret on November 30, 1966. Each
of these young ladies worked for Respondent between 2
or 3 months before their respective discharges. The
evidence adduced at the hearing overwhelmingly
establishes that they were thoroughly unsatisfactory em-
ployees, incompetent in the performance of their duties
on the floor of the restaurant, insolent to their supervisor,
Mrs. Foret, and indifferent to their job responsibilitites.
However, the issue is not whether there existed valid,
legitimate reasons for their discharges, as to which no
serious question can be raised, but whether they were
discharged for such reasons rather than, as alleged in the
complaint, because of their membership in and activities
on behalf of the Union.
The union activities of these four busgirls were
minimal. They signed union authorization cards and Au-
gillard testified that she attended a union meeting. There
is no evidence that these facts came to the Company's at-
tention. In addition, Armstead and Augillard wore union
buttons on the day of the election. Augillard also testified
that once, about November 15, 1966, she and other em-
ployees and former employees carried a sign in the back
of the hotel "about having fair wages. "5 General Counsel
adduced evidence which purportedly establishes that
Mrs Foret learned that they supported the Union. He ar-
gues, in substance, that Mrs. Foret's opposition to the
Union was so virulent that she promptly discharged each
of them upon learning of their union sympathies.
To support his argument that the Company, through
Mrs. Foret in particular, was readily disposed to
discharge employees who favored the Union, as well as
to support certain of the 8(a)(1) allegations of the com-
plaint, General Counsel, in his brief, refers to the follow-
ing:
1. Irene E. Lane testified that, about October 1966, she
and several other women spoke with a union organizer
across the street from the hotel at which time she
received a union card which she later signed. According
to Lane, the next day Mrs. Foret "told me that I was fool-
ing with that union , and that they weren 't going to have a
union in there . . . that they had fired girls there before,
and there was going to be some more fired." Mrs. Foret
denied making such statements. I credit Mrs. Foret's
5 Augillard testified that Pierre and Stewart also carried signs on that
day. It would appear that this incident occurred after Pierre and Stewart
had been discharged.
6 Contrary to General Counsel, there is no evidence that Lane was with
the group of busgirls on this occasion
' The evidence shows that, for some considerable period of time during
the Union's organizational drive , Washington stationed himself outside
the employees ' entrance of the hotel and spoke with the employees on
their way into the hotel and on their way out of the hotel Such activity on
the part of Washington came to the attention of Mrs. Foret and other su-
pervisors . However, while Mrs. Foret acknowledged that she knew that
employees spoke with Washington , she denied that she had observed
Pierre-speaking with Washington
8 Armstead testified that, prior to the election , at a meeting of busgirls
held by Manager Biger, she complained to Biger that Mrs. Foret had been
picking on her and that Mrs Foret had said to her that "after the Union
was over and all of that mess , that she was going to be fired, and I was
denial not only because I consider her to have been a
credible witness but also because I find substantial parts
of Lane's testimony to be fabrications which attenuate
the reliability of the balance of her testimony.
2. Elmira Pierre testified that one morning she and
other busgirls, including Augillard, on their way to work
stopped to speak with the union organizer, Washington,6
and she observed Mrs. Foret standing in the doorway of
the hotel. The same morning , according to Pierre, Mrs.
Foret "told us that if we signed union cards and we was
fooling with the union, she was going to get rid of us."
This testimony was not corroborated by Augillard who
was a witness for General Counsel at the hearing or by
any of the other employees who allegedly were present on
the occasion in question. Mrs. Foret denied that she had
made the statement attributed to her by Pierre and also
denied that she had observed Pierre speaking with
Washington. I credit Mrs. Foret' s denials.7
3. Shelia Augillard testified that on the day of the elec-
tion she and six other female employees, including
Yvonne Armstead, wore union buttons to work and, as
they were getting ready to go onto the floor of the dining
room, Mrs. Foret said to them that "she knows which
ones to get rid of." Neither Armstead, who was a witness
for the General Counsel at the hearing, nor any of the
other employees, who allegedly were present, cor-
roborated Augillard's testimony. I credit Mrs. Foret's
denial that she made the statement attributed to her by
Augillard.8
4. I do not credit Stewart's uncorroborated testimony,
denied by Mrs. Foret, that Mrs. Foret said to a group of
employees that "the Union was no good and if the Union
would come in we have to work holidays, and that we
didn't want any Union, because we didn't need a Union."
Nor do I credit Augillard's testimony, also denied by
Mrs. Foret, that on several occasions Mrs. Foret said to
her "that the Union wasn't no good and only make us
come to work earlier and wouldn't have an extra day off
for being sick, or if we had somewhere important to go."
5. I credit the testimony of Pierre, Augillard, and Arm-
stead that Mrs. Foret told them to avoid Mae Bernard
because Bernard would try to influence them to vote'for
the Union.9 Such instructions by the supervisor of the
dining room, who was clothed with and exercised the
authority to discharge employees, to avoid the Union's
committeeman in their work area was to' intrude imper-
missibly upon their organizational rights and constituted
an implied threat of reprisal to employees who engaged in
such organizational activity. Accordingly, I find that Mrs.
Foret's direction to employees to avoid Mae Bernard vio-
lated Section 8(a)(1) of the Act.10
going to be the first to go " This alleged threat, as testified to by Armstead,
would seem to have been related to the employees ' incompetence rather
than to their union activities. Furthermore , Biger, who I find was a credi-
ble witness, testified that Armstead did not say anything at the meeting in
question to the effect that Mrs Foret had threatened to discharge em-
ployees who were for the Union
0 Mrs. Foret testified, "I did tell a few of them, behave yourself, keep
out of groups from around Mae Bernard , because the Company does not
want it. They don't want you all in groups . It causes a lot of confusion in
the dining room."
As it was not uncommon for employees to talk with one another in the
dining room, to have singled out Mae Bernard, who was the Union's com-
mitteeman in the coffee shop , as a person to avoid was to suggest to the
employees that the Company objected to their association with Bernard
because of the prounion influence she might exert upon them.
10 The Lau Blower Company, 146 NLRB 1226, 1228, 1233,
Remington Rand Corporation, 141 NLRB 1052, 1053-54
NATIONAL HOTEL COMPANY
6. Pierre and Armstead testified without specific con-
tradiction that Mrs. Foret sought to persuade them not to
sign a union card or to vote against the Union in the elec-
tion because "all they do is take our money" or because
"the union wasn't no good for us ... that they were going
to tell us things that weren't right." Such statements,
which reflect Mrs. Foret's opposition to the Union, are
within the area of an employer's permissible campaign ac-
tivity and do not violate the Act.
In his brief General Counsel does not dispute that the
four busgirls were unsatisfactory employees. However,
he points out that their derelictions, according to Mrs.
Foret's testimony, were continuous from the beginning of
their employment. In effect, he asks why they had not
been discharged earlier. Mrs. Foret's explanation was
that she was experimenting with the use of female bus
help and she was making a strenuous effort to train the
girls she had hired with the hope that they would develop
into satisfactory employees. In any event, each of the
four was discharged within 90 days of her hire and before
the completion of her probationary period of employ-
ment. Thus, while the evidence indicates that there ex-
isted much justification for earlier terminations of their
employment, the fact that they were continued in the
Company's employ for periods of from 2 to 3 months
each does not suggest that Mrs. Foret or the Company
found their work adequate despite their shortcomings.
Pierre and Stewart were discharged on November 10,
1966. The busgirls were provided their meals by the hotel
which they ate in the kitchen. They were required to
remove the dishes which they used and to keep clean the
area in the kitchen where they ate. On the morning in
question, after she had received a complaint from a
kitchen employee that busgirls had not removed their
dishes after eating, Mrs. Foret told Pierre and Stewart to
clear away the dishes. Pierre, who contended that she had
taken away the dishes that she had used, refused to
remove any dishes although instructed to do so several
times by Mrs. Foret. Stewart complied with Mrs. Foret's
instructions. Later the same day, during the busy lunch
hour, several waitresses complained to Mrs. Foret that
Stewart and Pierre had left the dining room and therefore
the waitresses had to do their own bus work. Mrs. Foret
checked the dining room and the nearby areas and could
not find either Pierre or Stewart. She thereupon decided
to discharge them." Mrs. Foret denied that the alleged
union interest of Pierrce and Stewart in any way con-
tributed to her decision to discharge these two em-
ployees.
Armistead and Augillard were discharged on November
30, 1966, the day after the election. During the lunch
hour on that day several waitresses complained to Mrs.
Foret that they were swamped with work and that the
busgirls were not around. Mrs. Foret went to the dressing
room in the back of the hotel where she found Armstead
and Augillard sitting. Mrs. Foret thereupon discharged
these two employees.
I credit Mrs. Foret's testimony regarding the per-
formance at work of the four busgirls and her reasons for
discharging them. Despite Mrs. Foret's admitted an-
tipathy towards the Union and despite any knowledge she
11 While they were working for the hotel Stewart and Pierre appeared
to be close friends. They went to and from work together, and associated
with each other while at work. Mrs . Foret was aware of this relationship
12 Despite conflicts as to details , the various witnesses who described
the events which led to Bernard's discharge were in general agreement as
239
may have had of the union sympathies of these em-
ployees, I find, as testified to by Mrs. Foret, that the four
busgirls were discharged for cause and I further find that
the General Counsel has failed to prove by a preponde-
rance of the evidence that they were discharged because
the Company suspected that they supported the Union.
C. The Discharge of Irene Lane
There is considerable divergence between the
testimony of Irene Lane and Mrs. Foret as to what oc-
curred on Lane's last day of employment. According to
Mrs. Foret, in the early morning of February 5, 1967, be-
fore the dining room was opened to its patrons, Mrs.
For-et overheard Lane soliciting funds from other
waitresses for the benefit of a cook who had been beaten
and robbed the night before. Mrs. Foret advised Lane not
to take up a collection because the waitresses did not earn
enough to make contributions. Whereupon, Lane
excitedly jumped up, made some intemperate remarks,
and left the dining room. After changing into street
clothes in the dressing room, Lane left the hotel. Mrs.
Foret's version of the event was, in substantial part, cor-
roborated by the testimony of other waitresses who were
present on the occasion in question. On the other hand,
no corroboration was offered in support of Lane's version
of the event although there were other employees present
at all material times. In addition, I am of the opinion that
significant portions of Lane's testimony are fabrications
and unworthy of belief. Accordingly, consistent with the
testimony adduced on behalf of Respondent, I find that
Lane was not discharged, as alleged in the complaint, but
voluntarily quit her employment. Furthermore, I do not
credit Lane's uncorroborated testimony that 1 or 2 weeks
after the election Mrs. Foret said to her, "I'd better watch
my step because they Were going to get me."
D. The Discharge of Mae Bernard
Mae Bernard began working as a waitress for the
Respondent in May 1965 and was discharged on
November 29, 1966, the day of the election. Bernard ac-
tively supported the Union. This was known by the
Respondent because, among other reasons, her name was
included in the telegram which the Union on February
17, 1966, had sent to the Company listing its commit-
teemen among the hotel's employees. There is no
question concerning Bernard's competence. Manager
Biger testified that she was a capable waitress.
Bernard was discharged in consequence of an incident
which took place in the morning of November 29.12 The
decision to discharge Bernard was made by Harry Mais
who is an executive and a special representative of the
National Hotel Company, which operates 16 hotels in-
cluding the Jung. In the performance of his business
responsiblities Mais visited the Jung periodically. He pur-
posely arranged for one of his visits to coincide with the
election which was scheduled for November 29, 1966.
About 10 a.m. on that morning Mais saw a dining room
busboy deliver a sandwich with a banquet cover over it to
one of the washermen in the laundry. Mais intercepted
to what had happened. The summary of the incident described above,
which reflects my conclusions as to what had occurred , is based upon my
review and consideration of the testimony of all the witnesses who
described the incident and also my evaluation of their respective reliabili-
ty.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the busboy, and accompanied him to the coffee shop
where the busboy identified Mae Bernard as the waitress
who gave him the sandwich. When questioned about the
matter, Bernard acknowledged to Mais that she had or-
dered the sandwich for the busboy and that she had not
made out a guest check for the sandwich.13 Mais thereu-
pon left instructions that Bernard and the busboy should
be discharged.
Mais testified that he knew that Bernard was active on
behalf of the Union and that he had seen the telegram
from the Union which included Bernard's name among
the list of committeemen. He denied that this fact in-
fluenced his decision to discharge Bernard. His testimony
was that he discharged Bernard because she had violated
the hotel rules and admitted doing so. He explained that
pilferage is a serious problem at the Jung. Among other
things , food disappears out of the kitchen. "And when I
came up on this situation I had no recourse but to correct
it immediately. The same would have been done re-
gardless of whom the individuals were or what hotel it
was at." Regarding the applicable rule, Mais testified that
the bus help eat at a special table in the kitchen and that
waitresses are not permitted to order food for the bus
help.
The rule described by Mais was not in writing. Bernard
testified that she knew she was not permitted to give food
away to other employees because "any restaurant has
that rule." However, in a pretrial statement which she
gave to the Board on January 16, 1967, she said "there
was no company rule prohibiting waitresses from selling
food to other employees, to my knowledge. . . . As a
matter of fact, there is no rule prohibiting waitresses from
giving away food to other employees." Contrary to
Bernard, Mrs. Foret testified that the applicable rules are
explained to all new waitresses. Among the rules she ex-
plains to new waitresses is the rule against ordering,
selling , or giving food to any employees of the hotel.14
Mrs. Foret's testimony was corroborated by the
testimony of waitresses who were called as witnesses on
behalf of the Respondent. Thus, Anna Cherry testified
that, when she first began to work for the hotel, Mrs.
Foret told her that "no food to go to the help without per-
mission . You were to order nothing through those win-
dows for any employees unless they had a guest check, I
mean , an officer's check."15 Christina Nelson testified
that at the time she was hired, the hostess (not Mrs.
Foret) told her that waitresses were not supposed to
order food for anyone except their customers and that we
could be fired for violating the rule. Mary Moliason
testified that when she began working for the Respondent
it was explained to her that she was not supposed to order
any food for any busboy or busgirl or for pantry or
kitchen help and that she would be fired for violating the
rule. Judy Ann Katz testified that when she began work-
ing for the Respondent Mrs. Foret told her that "if you
sell anything to any of the bus help or the waitresses ...
to take out or to eat there, you automatically lose your
job, you get fired."1e Finally, Aurora Weber, a rebuttal
witness for the General Counsel, testified that she has
t3 Bernard testified that she told Mais , "I ordered the sandwich for him
I am getting ready to make the check now."
14 There is an exception which Mrs. Foret explains to the witnesses;
namely , that certain officials are permitted to order food in the dining
room but only if they have a special card which they are required to show
to the waitress.
'S Anna Cherry testified that several times bus help asked her to order
sandwiches for them and she merely ignored the requests.
been a waitress for many years at various establishments
and "it is against the hotel rules" to order food for
busboys. She explained that "I am not supposed to order
tood for busboys. I am not getting paid to serve a
busboy."
There is no dispute that Bernard had ordered the sand-
wich, that the sandwich had been taken from the coffee
shop and delivered to another employee by the busboy
without payment having been made, and that Bernard had
not yet prepared a guest check for the sandwich when she
was questioned about the matter by Harry Mais. General
Counsel, nevertheless, contends that the incident was not
the motivating reason for Bernard's discharge. First, he
points to the testimony of Biger who, in discussing the
rule here in question, variously referred to it as a prohibi-
tion against giving food away, as a prohibition against
selling food to an employee, or as a prohibition against
delivering food to employees without a guest check.
From this alleged inconsistency, General Counsel argues
that there was no rule prohibiting waitresses from selling
food to bus help and that the so-called rule was fabricated
by Respondent for the purposes of this case. However,
this argument falls before the mutually corroborated
testimony of the waitresses who were called as witnesses
at the hearing,17 and who uniformly testified that there
was a rule against selling, as well as giving, food to
busboys. Furthermore, Aurora Weber, General Coun-
sel's own witness, testified in effect that such rule is
general at all hotels. The General Counsel's next argu-
ment is that the entire incident involving Bernard was
some type of trap which the Company set for her. How-
ever, there is no evidence whatsoever to support this
theory.
While the discharge of an active union protagonist by
an employer, who is firmly opposed to the organization of
its employees, immediately before a scheduled represen-
tation election is a suspicious circumstance, nevertheless,
I find that the General Counsel in this case has not
proved by a preponderance of the evidence that Mae
Bernard was discharged because of her union activities or
sympathies rather than for cause as contended by
Respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent found to constitute
unfair labor practices as set forth in section III, above,
occurring in connection with Respondent's operations
described in section I, above , have a close, intimate, and
substantial relation to trade , traffic , and commerce among
the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
11 Katz testified that when she began working at the Jung, Bernard, in
an effort to be helpful , described some of the rules to her and among the
things Bernard told her was never to give a busgirl or busboy any food
because they were not allowed to buy anything and a violation of the rule
is a dischargeable offense.
17 The only waitresses who contradicted the testimony offered on be-
half of Respondent regarding the rule were Bernard and Irene Lane. I do
not credit their testimony in such respect.
NATIONAL HOTEL COMPANY
therefrom and that it take certain affirmative action in
order to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its em-
ployees in the exercise of rights guaranteed by Section 7
of the Act, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Sec-
tions 8(a)(1) and 2(6) and (7) of the Act.
2. Respondent had not engaged in any violations of the
Act by reason of conduct alleged in the complaint to have
constituted unfair labor practices except insofar as such
conduct has been found hereinabove to have violated
Section 8(a)(1) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, and pursuant
to Section 10(c) of the Act, I hereby recommend that Na-
tional Hotel Company operating the Jung Hotel , its of-
ficers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Expressly or impliedly threatening its employees
with loss of benefits if they join, assist, or support Hotel,
Motel & Restaurant Employees Union, Local 166,
AFL-CIO, or any other labor organization.
(b) Expressly or impliedly promising its employees in-
creases in their wages or other improvements in their con-
ditions of employment to discourage them from joining,
assisting, or supporting the above-named Union, or any
other labor organization.
(c) Expressly or impliedly threatening its employees
with reprisals if they associate with persons, including
other employees , who are known or thought to be ad-
herents of the above-named Union , or any other labor or-
ganization.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its Hotel in New Orleans , Louisiana , copies
of the attached notice marked "Appendix." "' Copies of
said notice , on forms provided by the Regional Director
for Region 15, after being duly signed by an authorized
representative of the Respondent , shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to its employees are customarily posted.
Reasonable steps shall be taken by the Respondent to in-
1s In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
241
sure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.19
19 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discharge any of our employees or
reduce their wages or withdraw any employment
benefits that they now have and WE WILL NOT
withhold granting any wage increases or other
benefits to any of our employees because they join,
assist, or in any way support Hotel, Motel & Restau-
rant Employees Union, Local 166, AFL-CIO, or
any other labor organization.
WE WILL NOT offer, promise, or grant wage in-
creases to any of our employees in order to
discourage membership in or support of the above-
named Union, or any other labor organization.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed by Section 7 of the
Act, which provides:
Employees shall have the right to self-organiza-
tion, to form, join, or assist labor organizations,
to bargain collectively through representatives
of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and
shall have the right to refrain from any or all
such activities except as such right may be af-
fected by an agreement requiring membership in
a labor organization as a condition of employ-
ment as authorized in Section 8(a)(3).
NATIONAL HOTEL COM-
PANY OPERATING THE JUNG
HOTEL
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 527-6361.