Old Capital Inn, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1977

227 N.L.R.B. 1323 (N.L.R.B. 1977)

OLD CAPITAL INN 1323
Old Capital Inn, Inc . and Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-
CIO. Case 25-CA-7653
January 21, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On October 15, 1976, Administrative Law Judge
Russell M. King, Jr., issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief supporting the Decision.
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 briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RUSSELL M. KING, JR., Administrative Law Judge: This
case was heard by me in New Albany, Indiana, on April 27
and 28, 1976. The charge was filed by the Amalgamated
Meat Cutters and Butcher Workmen of North America,
AFL-CIO (the Union), on January 14, 1976,1 and the
complaint was issued on February 27, 1976, alleging that
the Old Capital Inn, Inc. (the Respondent) violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
I All other dates are in 1975 unless otherwise stated.
2 Following the hearing, General Counsel filed a motion to correct the
record The Respondent made no response to the motion Accordingly, I
hereby grant General Counsel's motion to correct the record as shown below
in Appendix A (omitted from publication)
3 The facts found herein are based on the record as a whole and upon my
observation of the witnesses The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N L R B v Walton Manufacturing Company & Loganville Pants
Company, 369 U S 404, 408 (1962). As to those witnesses testifying in
contradiction to the findings herein, their testimony has been discredited,
either as having been in conflict with the testimony of credible witnesses or
because it was in and of itself incredible and unworthy of belief All
testimony has been reviewed and weighed in light of the entire record.
4 In conjunction with this motion, the Respondent filed an additional
227 NLRB No. 195
amended (the Act), on or about November 20 by improper-
ly discharging employee Ronald Earl Roll. On March 12,
1976, the complaint was amended by changing the alleged
representative period (for jurisdictional purposes) from the
12-month period immediately preceding the issuance of the
complaint to the period "from March 1, 1975, to March 1,
1976."
Upon the entire record,2 including my observation of the
demeanor of the witnesses,3 and after due consideration of
the briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS OF FACT
1. JURISDICTION
Jurisdiction was contested in this case. It is alleged and
admitted, and I so find, that the Respondent is a corpora-
tion duly organized under and existing by virtue of the laws
of the State of Indiana. It is further alleged and admitted,
and I so find, that the Respondent is in the business of
maintaining and operating a motel in Corydon, Indiana,
and that during the period from March 1, 1975, to March 1,
1976, the Respondent purchased and received delivery of
goods, supplies, and materials valued in excess of $10,000
and which were purchased and transported from States
other than the State of Indiana, and further that other
goods and materials valued in excess of $10,000 were
transported to its facility in Indiana by other Indiana
enterprises who had received said goods and materials
directly from States other than the State of Indiana. The
Respondent does, however, deny that it received gross
revenues in excess of $500,000 during "any representative
yearly period," and further that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. On or about March 3, 1976, the Respondent filed a
motion with a supporting affidavit to dismiss the complaint
on jurisdictional grounds .4 On March 12, 1976, the com-
plaint was amended to change the representative jurisdic-
tional period from 12 calendar months immediately preced-
ing the issuance of the complaint to the penod from March
1, 1975, to March 1, 1976.5 The Respondent's motion to
dismiss was denied or "dismissed" on March 26, 1976, with
motion requesting that the Regional Director of Region 25 withdraw the
complaint and remove the case from the docket of the Board until the
jurisdictional issue could be resolved. The formal papers admitted in the case
do not indicate any disposition of this motion but I consider that subsequent
events render the motion moot
5 The Respondent's motion to dismiss, filed on or about March 3, 1976,
was confined to the representative period of the calendar year of 1975 The
supporting affidavit indicates gross revenues of $445,695.28 during that
calendar year and also indicates that said calendar year (1975) was the "most
lucrative annual penod" for the Respondent. The motion and affidavit do
not specifically go outside of the 1975 calendar year, but the affidavit,
executed by one of Respondent's counsel, does state that the affiant "has no
knowledge or reason to believe that the gross revenues of Respondent meet
the jurisdictional amount prescribed by the Board for any representative
yearly period."
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave to "controvert the complaint as [newly] amended" at
the heanng.6 I find, as stipulated,7 that the Respondent
received gross revenues in excess of $500,000 during the 12-
month period preceding the month of the amendment of
the complaint herein.8 I can find no authority which would
limit the choice of a representative period in this case and
thus find that said period (March 1, 1975, to March 1, 1976)
does constitute a representative period. Accordingly, I also
find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
I further find, as admitted, that the Union is a labor
organization as defined in Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Specific Allegations
Ronald Earl Roll was hired as a desk clerk and night
auditor for the Respondent on November 17. His first day
of actual employment was November 18. Roll worked
November 18 and 19 and was discharged on November 20.
The General Counsel urges in this case that Roll's discharge
was attributable to his union sympathies and his attendance
at a union meeting held the evening of November 19 at the
Respondent's motel. This meeting was conducted by the
Union's international organizer, Jerry W. Everly, and
involved the organization of a local food store at which
Roll's wife was employed. There is no evidence in the
record as to any organizational attempts by any labor
organization of the Respondent's motel facility itself and
Roll was not a union member. The Respondent maintains
in this case that Roll was discharged because he was
incapable of performing his job and that his attendance at
his job during his 2 days of employment was poor.
B. Summary of Testimony and Evidence
Olivia Orme is the Respondent 's motel manager and
responsible for its daily operation . Orme testified that Roll
was hired on November 17 and came to work as a desk
clerk and night auditor "in a training position " on Novem-
ber 18 . Further , and according to Orme, she and General
Office Manager Nancy York together made the decision to
both hire Roll and to discharge him on November 20. Orme
summarized her reasons for discharging Roll as follows:
fi By order entered in Washington, D C, by Administrative Law Judge
Melvin J Welles The Order "dismissed" the Respondent's motion "on the
ground that the amendment to the complaint states a prima facie case for
exercising the Board's jurisdiction herein "
7 Notwithstanding the denial of the jurisdictional amount in "any
representative yearly period" found in the affidavit discussed in fn 5, above,
the parties stipulated at the hearing that during the period from March I,
1975, to March I, 1976, the Respondent, in the course and conduct of its
business operations, received from the rental of rooms and from the sale of
food and beverages and other services, gross revenues of $520,155 78 This
stipulation is found with other stipulations in G C Exh 2 The exhibit (and
stipulations) further reflect gross receipts of $4,089,317 61 between the period
from January I. 1975, to January I, 1976, and gross revenues of
$4,097,703 18 during the period from February I, 1975, to February I, 1976
There is no evidence in the record regarding projected increases or decreases
of the Respondent's gross revenues
8 The alleged unfair labor practice also occurred during this period
He did not seem adept at learning the job, he did not
seem interested in learning the job and he did not seem
inquisitive about any aspects of the job; he was just
generally disinterested in his new ,lob.... He could
meet the people, all right . . . but he didn't know how to
perform the backup duties of running the register,
answering the phone, filling in the applications and
what to do with those things after they were completed.
Orme additionally complained, in testimony, that Roll
"was always leaving his job" and that "he didn't stay long
enough to see a procedure through from the beginning to
end." 9 Orme testified that Roll was to be trained "on the
job" by General Office Manager York or someone appoint-
ed by her. Prior to Roll's termination, both Orme and York
knew that Roll had left the desk at the motel and attended a
union meeting in the motel on November 19. When
questioned about the affect of Roll's attendance at the
union meeting on the ultimate decision to terminate him,
Orme related the following:
The general reasoning for letting him go was just
because he wasn 't there 2 days that he worked, he left,
he wasjust in and out, and he wasn't learning, he wasn't
training, he wasn't interested. . . . The meeting had
nothing to do with his job, if he went to the meeting, we
assumed he went, I guess to support his wife's cause, or
whatever, but the fact that he left his job two or three
times , and we did consider all those things in conjunc-
tion as reasoning that he was not interested and we
didn't want to waste any more time on him.
Orme readily admitted that she knew Union Organizer
Everly and that he had periodically been a guest at the
motel over the past several months, during which period he
occasionally conducted organizational meetings at the
motel. Orme was also familiar with the fact that Everly was
attempting to organize a local food store and occasionally
would accommodate the organizational meetings by setting
up special meeting rooms.
The desk clerks worked in three shifts and the first shift
started at 7 a.m. and ended at 3 p.m. The second shift was
from 3 to 1 I p.m. and the third shift from 11 p.m. to 7 a.m.10
Orme further testified that Roll was originally recom-
mended by the kitchen manager, Mary Rhodes." Orme
indicated to Rhodes that Roll should come to the motel and
complete an application and that thereafter he would be
considered for employment. According to Orme, Roll did
9 Orme testified that she was off on both days that Roll worked and was
"in training" All of her testimonial observations regarding Roll were
admittedly based upon information that she received from other sources or
employees at the motel , and mainly those observations of General Office
Manager Nancy York
10 Roll was to work a different day shift (I I a m to 7 p m ) on his first day
of employment, November 18 His timecard was introduced into evidence
and reflects that on November 18, he arrived for work at 1 125 a m and left
at 1 15 p m , returning at 206 p m., and departing for the day at 6 35 p m
On Roll's second and last day of his employment, November 19, he was to
work the second shift (3 to I I p m) His timecard reflects that he arrived at
work at 3 41 p m and left for the evening at 7 02 p m. The evidence, in fact,
does establish that upon leaving at 7.02 p m on November 19, he attended
the Union's food store organizational meeting at the motel.
II The evidence reflects that Roll was engaged in his own personal
business as a beautician and according to Orme, Kitchen Manager Rhodes
occasionally used Roll's services as a beautician
OLD CAPITAL INN 1325
appear and complete an application approximately 8 weeks
before he was hired. Although the application was ultimate-
ly lost, Orme apparently contacted Roll from information
received later from Rhodes and after a desk clerk position
became available.
Jerry W. Everly was an international organizer for the
Union and testified that from the beginning of September
to the end of November he stayed at the Respondent's
motel three or four nights a week and held approximately
three to five meetings at the motel, in an attempt to
organize the local IGA store. Everly testified that he
planned and conducted an organizational meeting begin-
ning at 7 p.m. on November 19 and had requested the use
of a meeting room for that purpose. On the same date and
between 4 and 5 p.m., Everly approached the desk where
Roll was working and according to Everly, Roll asked him
what he wanted the extra room for that evening. Everly
replied that he was using the extra room for a union
meeting that night and inquired of Roll as to whether or not
his wife would be present at the meeting.12 According to
Everly, Roll indicated that his wife would not be present at
the meeting because she was working that evening, where-
upon, Everly indicated that he invited Roll to the meeting
by stating "if he wanted to come on back, to feel free to do
so." Everly also testified that this conversation took place in
front of General Office Manager York and employee Ruth
Leffler, who were standing approximately 6 feet from the
desk. Everly's personal pocket calendar, used by him
during his testimony, contained the November 19 entry
"meeting CORYDON IGA." According to Everly approxi-
mately 10 people attended the meeting that evening and
Roll was the only employee of the Respondent in atten-
dance. Further, and according to Everly, the meeting lasted
approximately 2 or 2-1/2 hours after which he spoke
personally to Roll and "had him sign a card." 13
According to Everly, he next spoke with Roll the
following evening, November 20, at approximately 11:30
p.m. when Roll knocked on his door at the motel. Roll told
Everly at that point that he had been discharged and that he
"thought it had something to do with the meeting." Everly
then told Roll that he should promptly demand whatever
salary he was due and Everly thereafter packed his bags
and proceeded to the front desk of the motel, where he had
a conversation with General Office Manager Nancy York.
According to Everly, he asked York why Roll had been
discharged, to which she replied that "he wasn't capable of
doing the job." Everly also asked York if Roll had been
fired for attending the union meeting and, according to
Everly, York made no direct reply but asked "why the
12 As previously indicated, Roll's wife worked at the local IGA store and
presumably knew Everly Everly's testimony here conveyed the impression
that he expected Roll's wife to be a possible participant in the meeting later
in the evening
13 The card was introduced into evidence and is a standard union
authorization card with the name of the employer filled in as "Old Capital
Inn "
14 Mr Orme testified briefly in this case Although a corporate officer, the
evidence is unrebutted that he took little or no part in the daily operation of
the motel, which was left completely in the hands of his wife, Olivia Or-me
The evidence further reflects that Mr Orme spent four-fifths of his time away
from the motel and apparently out of town on business.
15 Everly initiated and signed the charge in this case, on behalf of the
Union In testimony, he indicated that he was prompted to initiate the charge
Union was picketing on the Old Capital Inn." Everly also
asked York to rehire Roll and York replied that she didn't
have that authority and that Everly would have to talk to
Mr. Orme14 about the matter. The following morning,
Everly indicated that he talk to Mr. Orme personally
regarding Roll's discharge but that Mr. Orme refused to
discuss the matter in any detail.15 Everly further testified
that Roll's wife had attended union organizational meetings
in the past relative to the IGA store and that on some of
these occasions, she had been accompanied by Roll.
Delois Nolan, an instructor in the James Beauty College,
Clarksville, Indiana, testified that Roll graduated from the
school and that he was a "good hairdresser." Nolan
indicated that Roll had taken a number of courses at the
college, one of which was "salon management," although
she indicated that the management course did not go into
"bookkeeping." Nolan also testified that, while in the
school, Roll's course of instruction went as follows:
He followed through on our demonstrations of dressing
hair, on permanent waving, the things that we taught,
we instructed, he followed through on. He had his
license as an Indiana hairdresser.
Nolan indicated that it took Roll between 8 and 10 years to
complete the course, although during several periods he
dropped out, once because of illness, and during other
periods he was only a part-time student.
Ronald E. Roll testified that he was presently a self-
employed hair stylist. He stated that he had submitted an
application to the Respondent several weeks prior to
November 17 and that on that date General Office
Manager Nancy York telephoned him and requested that
he report for work on November 18. Roll indicated that he
had talked to Manager Olivia Orme 6 or 8 weeks before
regarding the possibility of placing a beauty shop at the
motel.
According to Roll, York indicated that he was being
called to the position of desk clerk and his hours would be 3
to 11 p.m. on Tuesdays and Wednesdays, with a different
shift on Saturdays and Sundays. York also requested that
Roll report at 10:30 on November 18 in order to receive
instructions and training. Roll reported at 10:25 a.m. on
November 18, whereupon he and York discussed his duties.
About 1:15 p.m. he indicated to York that he had "left [his
wife] under the dryer" and according to Roll, York gave
him permission to leave the motel to complete work on his
wife's hair. Roll indicated that he finished his wife's hair
and returned at 2:06 p.m.16 Upon Roll's return at 2:06 p.m.
on November 18, York continued to train Roll in his duties
because of what he considered to be a conspiracy between the owner of the
IGA store and the Respondent in this case Everly indicated that he had been
told that the owner of the IGA store was "out to get" Roll's wife and he
reasoned that the IGA store owner had consulted management at the
Respondent 's motel to this end and as an indirect method of, in some
manner, affecting Roll's wife and her employment The testimony was
allowed to reflect Everly's motivation in initiating the charge in this case but
I do not consider it in any other light, or as evidence that Everly' s suspicions
were in any way true. I here and again note that, other than Roll's signing of
the union card on November 19, there is no evidence in this case that any
organizational attempts were being made at the Respondent's motel. There is
also no evidence in this case that Roll himself was or had been employed at
the IGA store.
15 The record does not explain or make reference to when Roll's wife was
(Continued)
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as desk clerk. Further, and according to Roll, his duties on
Saturdays and Sundays were to be that of a night auditor
but Roll did not receive training in that position on
November 18. At 6:35 p.m., Roll left the motel with York's
consent and was instructed to return the following after-
noon (November 19) between 3:30 and 4 p.m. to receive
training in auditing and posting. Roll in fact did report at
3:41 p.m. on November 19 and met with Nancy York and
employee Ruth Leffler and thereafter resumed his training
and duties as desk clerk, working together with employee
Leffler at the motel's desk. Union Organizer Everly had
placed a long-distance call through the switchboard during
the afternoon and Roll indicated he had handled the
transaction. Thereafter and according to Roll, he and
Leffler engaged in a conversation regarding Everly's job as
a union organizer and regarding Roll's acquaintanceship
with Everly by virtue of his attempts to organize the local
IGA store where Roll's wife worked. Roll indicated that
Leffler's sympathies were against unions and that he
expressed to Leffler his sympathies for unions. Roll also
testified that he told Leffler that there was going to be a
union meeting at the motel that night and that he intended
on going "because it was after I got off from work." 17
Later in the afternoon of November 19 and according to
Roll, Union Organizer Everly approached the desk and
asked him if his wife was going to attend the union meeting
to be held that evening. Roll replied that his wife had to
work and would not be present and, according to Roll,
Everly then asked him to the meeting and Roll indicated
that he would "more than likely be there." Roll indicated
that at the time of this conversation employee Leffler was
also present.18 When Roll clocked out at 7:02 p.m. on
Wednesday, November 19,19 he stayed at the motel, and at
approximately 7:30 or 8 he met Everly at the front desk,
along with several other people who had come to attend the
union meeting. Everly had apparently come to the desk to
pick the key up to the meeting room and, according to Roll,
he, at that time, informed Everly that he would probably be
fired for attending the meeting, noting that Manager
Orme's father was standing at the desk at the time Everly
picked up the meeting room key.20 Roll did attend the
meeting that evening and he also asked Union Organizer
Everly for permission to sign a union card to "protect"
himself because "there would be questions about this and I
might be fired because of it." According to Roll, the
meeting lasted 2 to 3 hours and he was the only employee of
Respondent that attended.
placed under the dryer and whether or not he had left the motel earlier to
begin work on his wife I can only speculate that either such was the case, or
work on his wife was commenced by someone else and completed by Roll
during his departure from the motel. It appears highly improbable that Roll
commenced work on his wife's hair about 10 a m and that she thereafter
remained "under the dryer" until after I p in
17 There is no explanation in the record as to how, at this point in time,
Roll had knowledge of the meeting that evening Such knowledge could have
come from his wife but Roll subsequently indicated that he learned about the
meeting later on in the afternoon from Everly
18 Everly testified that dunng this conversation, General Office Manager
York was also present However , in his testimony Roll stated that he did not
recall anyone else being present, other than employee Leffler
19 Roll indicated that this was done with the permission of York, who had
earlier requested that he return on Thursday night at I I p in (November 20)
The following evening, November 20, at 11 p.m. Roll
reported to the motel, whereupon, according to Roll, York
confronted him and stated as follows:
Ron, I'm sorry I have to tell you this, but we're going to
have to let you go because we don't feel you are capable
of doing the job-the rest of the bookkeeping, auditing
and posting that goes along with the job.
After hearing this, Roll testified that he told York that he
had signed a union card and "if this was the action they
wanted to take, they would be hearing from [him] in court."
Roll denied telling York that he intended to attempt to
organize the Respondent's motel . He further related that he
knew that the signing of a union card was not a prerequisite
to filing charges with the Board, indicating that he had filed
charges before. After he was informed of his discharge, Roll
left the desk and went immediately to Union Organizer
Everly's room and shortly thereafter returned to the desk
where he requested and received his pay in cash. Roll
testified that he had no prior warning that he was going to
be discharged and that, up to the point of his actual
discharge, he had received no complaints about his work or
activities at the Respondent's motel.
Thereafter, Roll continued in his occupation as a hair
stylist, indicating that he had opened his own shop in early
March 1976, which involved keeping his own books and
records. Regarding the House of James Beauty College,
Roll indicated that he withdrew from his education there on
two occasions by virtue of illnesses and that, on at least one
occasion, he lost all the credit that he had obtained up to
the date of his withdrawal. Roll further indicated that to the
best of his memory he went into the motel coffee shop on
only one occasion on Wednesday, November 19, where he
was there long enough to "eat a sa!Jwich and drink a
coke." Roll also testified that he attended meetings con-
ducted by Everly prior to his employment with Respondent
and over a 1- or 2-month period, and during the organiza-
tion of the local IGA store.21
Ruth Leffler was employed by the Respondent primarily
as a desk clerk. She reported to work on Tuesday,
November 18, at 3 p.m. and began to train Roll in his duties
as desk clerk. According to Leffler, Roll was a "good
sociable person," and talked a lot. Leffler testified that she
observed Roll at the 5 p.m. shift change and that he
"seemed to know every one of [the waitresses]" and that
further he "welcomed . . . and greeted them." Leffler also
testified that during the 3-hour period she was with Roll on
November 18, he left the desk five or six times. Leffler had
to receive further training in auditing and posting Here again is another
deviation from Roll's planned and regular schedule, for training purposes
According to Roll, York requested this deviation on Wednesday before she
left and it was unexpected in that he had not planned on working Thursday
evening Roll's training on Wednesday afternoon was to be in auditing and
posting but he was requested to return Thursday evening either to receive
further training in auditing and posting or because York felt that Roll had
not received sufficient training, or any training at all, in these areas on
Wednesday afternoon
20 1 conclude here that Roll, whether correctly or incorrectly, reasoned
that Orme's father would report his attendance at the union meeting to his
daughter and that he would thereafter be discharged for such attendance
21 There is no evidence in the record that Roll was a member of any
union His attendance at the Union 's organizational meetings were presum-
ably with his wife or by virtue of her employment in the local IGA store
OLD CAPITAL INN 1327
worked for the Respondent for 3-1/2 years and indicated
that she had trained every desk clerk which had been
employed by the Respondent except two. She testified that
Roll lacked the "aptitude" to learn the duties of desk clerk
and that the training on November 18 was unsuccessful
either because Roll lacked the aptitude or failed to devote
sufficient time to her instruction. Specifically, Leffler
indicated that Roll failed to learn to operate the telephone,
the cash register, and how to check guests in and out. In her
opinion, at the end of the second day of training (Novem-
ber 19) Roll did not show promise in the job, either because
he was unable or unwilling to learn thejob.
Leffler again reported at 3 p.m. on November 19, to
continue her duties in training Roll. According to Leffler,
Roll was scheduled to report at 3 p.m. also but reported at
3:50 p.m. and that approximately 30 minutes later he left
the desk and went to the dining room to eat "supper,"
indicating that he "hadn't had anything to eat all day."
Soon after Roll returned from the dining room and
according to Leffler, the change of shift occurred and Roll
again became engaged in greeting the incoming waitresses.
Further, and according to Leffler, at approximately 6 p.m.
Union Organizer Everly appeared at the desk and he and
Roll thereafter engaged in a conversation about the union
meeting to be held that evening. After Everly left the desk,
Roll left the desk to phone Everly's room on the "house"
phone and thereafter returned to the desk and indicated to
Leffler that he wanted to visit Everly's room. Leffler then
consented to Roll's leaving and requested that he clock out,
whereupon Roll clocked out and left to go to the union
meeting. Roll did not return that evening and about 10
p.m., General Office Manager Nancy York called the motel
and she and Leffler had a conversation about Roll's actions
and abilities. Leffler denied ever complimenting Roll on his
work and indicated that she had told York that, in her
opinion, Roll would not work out as a desk clerk.
Office Manager Nancy York testified that Roll had
applied for a job at the motel 6 to 8 weeks prior to his
hiring, and that he was recommended by one of the motel's
kitchen employees. York telephoned Roll on Monday,
November 17, and asked him to report to work the
following day. On November 18, Roll reported to work a
little after 10 a.m. and York proceeded to show him around
the motel and explain his duties as desk clerk. According to
York, Roll's normal working hours were 3 to 11 p.m. on
Tuesdays and Wednesdays and I1 p.m. to 7 a.m. on
Saturdays and Sundays. York had requested that Roll
report at approximately 10 to 10:30 on November 18 so
that he could be trained. According to York, Roll was very
slow in learning the functions of desk clerk, specifically, in
properly answering the phone and operating the cash
register. York's normal shift was from 7 a.m. to 3 p.m. and
she testified that at 1:15 p.m. on Roll's first day (November
18), he "all of a sudden" remembered that he had left his
wife under the hair dryer and left the motel to finish his
wife's hair. York trained and observed Roll from 10:30 a.m.
22 In coming to this conclusion , York was obviously disturbed, as she
testified , that Roll left to finish his wife's hair
23 Manager Orme testified that she and York both knew of Roll's
attendance at the meeting . This appears to be the only significant inconsis-
tency in the testimony of both Orme and York
24 Union Organizer Everly, who initiated and signed the charge , testified
to 3 p.m. on November 18, with the exception of the time
Roll left to finish his wife's hair. She indicated that during
this period York made mistakes, although she "was trying
to give him a fair chance." York's conclusion regarding
Roll on November 18 was that "he really didn't impress me
to be that aggressive like really wanting to get in and do the
job the way he should."22 York acknowledged her tele-
phone conversation with desk clerk Leffler on the evening
of November 19, indicating that Leffler told her that Roll
was "not going to make it." York's testimonial summary of
the reasons for Roll's discharge went as follows:
The fact that he arrived late; he left early; he left
without permission from behind the desk to do things
that weren't necessary; and that indicated to me that if
he was not interested enough to stay back there, he
didn't want to learn the job.
York testified that she first consulted with Manager Olivia
Orme and they together decided to discharge Roll. York
denied that she knew any thing about Roll's union activities
and that she did not find out about his attendance at the
union meeting on November 19 until after the discharge.23
She indicated that Roll became very angry when he was
discharged and left the desk area of the motel, returning
later to demand his pay. After he was paid, and according
to York, Roll indicated that he had signed a union card and
said, "You better get a lawyer." York also testified that at
least three other individuals had been hired and soon
thereafter discharged in 1975 because they were unable to
learn or handle the job of desk clerk and night auditor.
C. Evaluation of Law and Evidence and Initial
Conclusions of Law
I cannot find any violations of the Act in this case. Roll, I
find, was discharged solely by virtue of York's conclusions,
be they right or wrong, that Roll would not work out as a
desk clerk and night auditor.
My decision in this case does not turn only on issues of
credibility, although the evidence and testimony contains
its fair share of inconsistencies, the far greater percentage of
which are found in Roll's testimony, much of which
perplexes me and much of which I discredit completely.
The Union, as the Charging Party, was apparently motiva-
ted24 differently than Roll's (and the General Counsel's)
theory propounded herein. The General Counsel has the
burden of proving herein that Roll was discharged because
of union or protected, concerted activity. In 2 days Roll
worked at the Respondent's motel a little more than 10
hours. There were no union or organizational attempts in
the past or planned for the future at Respondent's motel.
This fact was conceded by Roll himself. The subject of
unions, or the "the Union," did not even come up until
Roll's conversation with desk clerk Leffler sometime the
afternoon of Roll's second and last day of work (November
19) and approximately 3 hours away from his last moment
that he was motivated by what he considered to be an attempt to indirectly
and adversely affect Roll's wife, an apparent union supporter in the
organizational attempts at the IGA store where she worked This theory was
not accepted as evidence as to its accuracy or materiality in the case See fn.
15, supra
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment at the motel. I can only conclude and find
that sometime that second afternoon Roll perceived or
concluded that his continued employment was in jeopardy
and that his attendance at the union meeting, admittedly
having nothing to do with Respondent's motel or Roll
directly, together with the signing of a union card, would
add security to hisjob at the motel.
I further find no evidence in this case of union animus on
the part of the Respondent. Everly's mission both at the
motel and in New Albany was not secret and known and
acknowledged by Respondent's management. His sole
purpose was to organize the IGA food store. Roll was not a
member of any union and was not employed at the food
store. He was (and remains) self-employed in his own one-
man business. Roll had sought what amounted to part-time
employment at Respondent's motel to supplement his
income.
I do not herein judge the wisdom of the Respondent's
decision to discharge Roll, although I conclude and find
that there is ample creditable evidence in the record which
supports the conclusion that the discharge was motivated
by legitimate business reasons, none of which were pretex-
tual and related in reality to any actual or supposed union
or protected concerted activity. The complaint should be
dismissed.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Secion 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent did not violate Section 8(a)(1) and
(3) of the Act by its actions as alleged in the complaint and
reflected in the record of the case.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in this case , and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 25
The complaint in this proceeding is hereby dismissed in
its entirety.
2s In the event no exceptions are filed as provided by Sec 102 46 of the of the Rules and Regulations , be adopted by the Board and become its
Rules and Regulations of the National Labor Relations Board, the findings, findings , conclusions , and Order , and all objections thereto shall be deemed
conclusions , and recommended Order herein shall, as provided in Sec 10248 waived for all purposes