Shamrock Hilton Hotel

National Labor Relations Board - Board Decisions

Feb 24, 1961

130 N.L.R.B. 701 (N.L.R.B. 1961)

SHAMROCK HILTON HOTEL, ETC. 701
Hilton Center, Inc., d/b/a Shamrock Hilton Hotel ; and Inter-
national Club of Houston , Inc. and Hotel & Restaurant Em-
ployees and Bartenders International Union . Case No. 23-CA-
985. February 24,1961
DECISION AND ORDER
On September 30, 1960, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Jenkins, and
Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Hilton Center,
Inc., d/b/a Shamrock Hilton Hotel and International Club of
Houston, Inc., Houston, Texas, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from :
(a) Discouraging membership in Hotel & Restaurant Employees
and Bartenders International Union or any other labor organization
of its employees by discharging any of its employees or in any other
manner discriminating in regard to the hire or tenure of employment
or any term or condition of employment.
(b) Interrogating its employees concerning their union affiliations,
activities, and sympathies in a manner constituting interference, re-
straint, or coercion in violation of Section 8(a) (1) of the Act, or
i With respect to Respondent's contentions relating to the sufficiency of the charge, the
complaint, and the bill of particulars , see, e.g., Hudson Pulp & Paper Corporation, 121
NLRB 1446
130 NLRB No. 62.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threatening employees because of their union affiliations, activities,
and sympathies.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Hotel & Restaurant Employees
and Bartenders International Union, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7
of the Act, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Niami Bryan full reinstatement to her former or sub-
stantially equivalent position and make her whole for any loss of
earnings in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents all social security payment records, payroll records, personnel
records and reports, and all other such data convenient for a computa-
tion of backpay due.
(c) Post at its offices in Houston, Texas, copies of the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-third Region, shall,
after being duly signed by the Respondent, be posted by it immedi-
ately upon receipt thereof and be maintained for a period of 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage self-organization or concerted activi-
ties among employees for their mutual aid or protection as guar-
SHAMROCK HILTON HOTEL, ETC. 703
anteed in Section 7 of the Act, by discharging any of our
employees.
WE WILL NOT engage in interrogation of employees concerning
their union membership, activities, and sympathies in a manner
constituting interference, restraint, or coercion in violation of
Section 8 (a) (1) of the Act, or threaten employees with reprisals
because of such membership, activities, and sympathies.
WE WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of their rights to engage in union or
concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL offer to Niami Bryan full reinstatement to her former
or substantially equivalent position without prejudice to her sen-
iority or other rights and privileges previously enjoyed.
WE WILL make Niami Bryan whole for any loss of pay suffered
as a result of our discrimination.
All employees are free to become, remain, or refrain from becoming
or remaining members of Hotel & Restaurant Employees and Bar-
tenders International Union or any other labor organization.
HILTON CENTER, INC., D/B/A S (-IAMROCK
HILTON HOTEL; AND INTERNATIONAL
CLUB OF HOUSTON, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before the duly desig-
nated Trial Examiner in Houston, Texas, on May 16, 17, and 18, 1960, on complaint
,of the General Counsel and separate answers by Shamrock Hilton Hotel and Inter-
national Club of Houston , Inc. The issues litigated were (1) whether Shamrock
Hilton Hotel and International Club of Houston , Inc., should be considered a single
employer (the charge, amended charges, and complaint treated both as a single
employer); ( 2) whether the Board has and should assert jurisdiction in this matter;
(3) whether Shamrock Hilton Hotel and International Club of Houston , Inc., vio-
lated Section 8 (a) (1) of the Act because of certain statements of its supervisors;
and (4 ) whether Shamrock Hilton Hotel and International Club of Houston, Inc.,
violated Section 8(a)(3) of the Act in discharging certain named employees.' All
parties were afforded full opportunity to examine and cross -examine witnesses, to
introduce evidence , to present oral argument , and thereafter to file briefs. Briefs
were received from all counsel.
Upon the entire record and from my observation of the witnesses , I make the
following:
1 At the hearing the General Counsel 's motion to amend the complaint to remove the
name Augustine Lopez alleged to have been discriminatorily terminated on October 19,
1959, was granted without objection.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESSES OF HILTON CENTER, INC., D/B/A SHAMROCK HILTON HOTEL, AND
INTERNATIONAL CLUB OF HOUSTON, INC.
At the hearing the parties stipulated that Hilton Center, Inc., is and has been at
all times material hereto, a Texas corporation, having its principal office and place
of business in Houston, Texas, where it is engaged in the operation of the Shamrock
Hilton Hotel, which has 1,100 rooms, a 1,000-car garage and several dining facilities.
Hilton Center, Inc., rents space on the ground floor of the Shamrock Hilton Hotel to
airlines which serve the city of Houston, Texas. During the year 1959, the Sham-
rock Hilton Hotel received gross revenue in excess of $500,000 for rental of its rooms
and allied facilities. During such year, over 75 percent of the Shamrock Hilton's
guests stayed at the hotel less than 30 days of the year. The Shamrock Hilton Hotel
purchased, during the year 1959, food, supplies, and other materials of a value in
excess of $10,000, which originated outside the State of Texas.
The parties further stipulated that the International Club of Houston, Inc., is, and
has been at all times material hereto, a Texas corporation, with its principal office
and place of business located in the Shamrock Hilton Hotel, Houston, Texas, where
it is engaged in the operation of a private club for the purpose of providing food,
drink, and entertainment for its members. The food served to its members is pur-
chased, prepared, sold, and served by the Shamrock Hilton Hotel . The employees
of the International Club are hired by the International Club. During the year
1959, the International Club had a gross revenue in excess of $315,000 but less
than $316,000, from all sources.
By the terms of a lease made on April 1, 1957, by and between Hilton Center, Inc ,
and International Club of Houston, Inc., the club facilities consisting of a lounge,
gameroom, grillroom, El Charro Room, locker space, health room, and the Sham-
rock Room occupy certain designated space on the main and second floors of the
Hotel. The club offices are located in the garage building adjoining the Hotel. Club
members and their guests are allowed the use of the hotel swimming pool located on
the hotel premises. All services for the Club such as the preparation and serving of
food and drink, utilities, janitor services, insurance , credit office facilities, and re-
pairs are furnished to the Club by the Hotel. In fact, the Club has only three
employees: Kenneth Smith, the manager, his secretary, and a clerk-typist. The
record reveals that the clerk-typist was referred to her job with the Club by the
personnel director for the Hotel.
Both the Hotel and the Club use the same auditing firm, the same publicity agent,
the same addressograph machine, the hotel printing plant , and the same employee
for its mailings. The Club also has a reciprocal agreement with private clubs lo-
cated in Hilton hotels in Fort Worth, El Paso, and San Antonio, Texas, and New
Orleans, Louisiana. In return for the services set forth above, the Club, in ac-
cordance with the terms of the lease, pays the Hotel 97 percent of its gross monthly
profits.
Robert Leroy, food and beverage manager for the Hotel, handles this function
for the Club along with purchasing its beer and wine. Leroy and Smith jointly de-
termine the number of employees who will serve food to the club members and
their guests on any particular day or night based on figures of the volume of club
business.
All of the stock issued by the International Club of Houston, Inc., is owned by
the Hilton Hotel Corporation, the operators of the Shamrock Hilton Hotel since
November 12, 1954. Porter P. Parris, the vice president and general manager of
Shamrock Hilton Hotel, was one of the original incorporators of the Club and a
member of its first board of directors. He is now the club president. George
Niggemyer, chief accountant for the Hotel, was also one of the original incorporators
of the Club and on its first board of directors. He is presently the secretary of the
Club. Rodney Morgan, resident manager of the Hotel, is presently vice president
of the Club
I find from the above and the entire record that the interrelationship between
Shamrock Hilton Hotel and International Club of Houston, Inc., is such that they
constitute a single employer within the meaning of Section 2(2) of the Act. Hot
Shoppes, Inc., Case No. 10-RC-2896, issued April 13, 1955, not printed in NLRB
volumes; Youngstown Tent and Awning Company, etc, 110 NLRB 835. I find fur-
ther that the record reflects that the Board's jurisdictional standards for hotels has
been met. Indiana Hotel Company (Claypool Hotel), 125 NLRB 629; Dinkler-
St. Charles Hotel, Inc., 124 NLRB 1302; Floridan Hotel of Tampa, Inc, 124 NLRB
261. I find also that legal jurisdiction of the Board over the employer is established
by the volume of direct inflow Lamar Hotel, 127 NLRB 885, Catalina Island Sight-
SHAMROCK HILTON HOTEL, ETC. 705
seeing Lines, etc., 124 NLRB 813. Finally, I find that it will effectuate the purposes
and policies of the Act to assert jurisdiction over the Respondent herein.
II. THE LABOR ORGANIZATION INVOLVED
Hotel & Restaurant Employees and Bartenders International Union is a labor
organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The inception of union organization; interference, restraint, and coercion
The record reveals that in 1954 an attempt was made to organize and represent
the Hotel's employees for purposes of collective bargaining. The Union's most re-
cent organizational effort among Respondent's employees commenced in or about
September 1959. Frank McCarty, business representative of the Union, openly
distributed union authorization cards and literature to employees outside of the
Hotel, while they were on their way to and from their jobs.
The Respondent lost little or no time thereafter in calling employees to Leroy's
office, where they were interrogated regarding union activities and organizaiton.
Leroy also called meetings of groups of employees to discuss the Union's organiza-
tional efforts and the effect it would have on the employees in the event it was suc-
cessful.
Euesbio Hernandez, employed by Respondent and its predecessor for 9 years as
a broiler cook in the main kitchen, testified that one evening late in September 1959,
while he was working, Leroy stopped at his station and told him to drop by the office
the next day before he reported in to work.
Hernandez, following instructions, found Leroy and his assistant, Scott Sudden,
in the office. Hernandez testified that Leroy asked how long he had been working
at the Hotel and if he liked his job. Hernandez told Leroy he liked the job, other-
wise he would not have worked there that long. Leroy wanted to know how many
raises Hernandez had received. He was told, two. Leroy said there were three
employees due for raises but because union organization had commenced, it was
against the law to grant raises at this time. Leroy also commented about Hoffa and
characterized him as affiliated with a gangsters union. Leroy mentioned that if the
hotels in the city of Houston were organized by the Union and there was a city-
wide contract, this might result in the lowering of the existing pay scale of Shamrock
Hilton employees. The example Leroy gave Hernandez was that men working in
downtown hotels received $8 per day whereas Shamrock Hilton employees were
paid $10 daily, "if the Union came in, [they] would drop it down to $9 or union
scale to make the men happy downtown, and the ones working at the Shamrock
would suffer a dollar."
Hernandez testified further that Leroy asked if he was going to behave any better
Hernandez inquired what Leroy meant by that remark. Leroy then took a union
membership card from his wallet and asked Hernandez if he had seen one 2 Her-
nandez acknowledged that he had. Leroy said, "I understood you took part in the
last campaign they had around here." Leroy told Hernandez he received an
anonymous telephone call from some woman who said he (Hernandez) was on top
of the list and most often mentioned, and while he did not place much stock in
anonymous calls, he called Hernandez down "just in case." Leroy said he had a
list of the employees who were union organizers. Before releasing Hernandez to
his job, Leroy inquired how many union cards he had. Hernandez answered he did
not have any.
Sometime in October while Hernandez was at the chef's office, Leroy passed him
and told him not to forget the union meeting on the 24th. Hernandez testified that
Leroy came to his station of work about 7:30 p.m. on October 26 and inquired if
he had gone to the union meeting. Leroy asked about the condition of the charcoal;
Hernandez said it was fine. Leroy then asked if Hernandez had seen any more mice.
Hernandez said, "No " Whereupon Leroy said, "Well, we got rid of the charcoal and
we got rid of the mice. All our trouble now is to get rid of the union agitators."
Joseph Yanascavage, a cook in the main kitchen of the Hotel for 2 years and a
union member, testified that early in September 1959, he was called to Leroy's
office. Sudden was also present. Leroy asked if Yanascavage was a union member.
Leroy accused Yanascavage of being active in the Union and being one of the
organizers. Yanascavage denied that he was an organizer, but told Leroy he was a
unionman and would always be a unionman. Whereupon Leroy said, "Why don't
2 Hernandez signed a union membership card during the organization drive.
597254-61-vol. 130-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you go where there is a union ?" The conversation continued, according to Yanas-
cavage, with Leroy mentioning Hoffa and the criminal element. Leroy also said
that if the Houston hotels were organized by the Union, even if the downtown hotel
pay rates were raised but did not reach the level paid Shamrock employees, the
latter group would have to be lowered to the rates paid downtown hotel workers.
Dora Padilla, a busgirl in the Pine Room at the Hotel whose husband is also
a hotel employee assigned to work in the drugstore, testified that she was called
to Leroy's office in September 1959. Sudden was in the office at the time. Leroy
told Padilla that her husband was "pushing" other employees to join the Union.
Leroy cautioned Padilla to tell her husband that if he did not know what the Union
means, "to tell him to keep his mouth shut." Leroy mentioned that he had a list
of the people who had signed union authorization cards and mentioned several
names. Padilla protested that her husband did not know anything about the Union
and was not talking to others in its behalf.
Inez Brooks, a waitress in the Pine Grill for 9 years, testified that in September
1959 Leroy spoke to an assemblage of employees of the Pine Grill held at the
pool bar. Leroy told the employees he did not know how many had signed union
cards but that was entirely up to them. Leroy mentioned that there never had been
a union representing the employees in the Hotel and that conditions might be
different. He noted that some of the older girls (in point of length of service)
who made higher wages would "probably" be hurt. He cautioned the employees
not to discuss the Union on the floor, but to confine such discussions to their off
hours. He also said that working conditions might be different.
Marselino Garza, a waiter in the hotel banquet department, since it was opened,
testified that in November 1959 his supervisor told him to report to Leroy's office.
After some conversation about the Union's drive at the Hotel, Leroy asked Garza
if he passed out any union authorization cards. Garza readily admitted giving
some cards to the kitchen help, but denied that he did so in the Hotel. Leroy then
told Garza, "Me and you are not going to get along too good now." Garza left
the office and returned to his job.
Niami Bryan, a clerk-typist in the Club from May until November 2, 1959, whose
alleged discriminatory discharge will be discussed more fully hereinafter, testified
that several days after she attended the October 26 union meeting, Smith told her
he heard she had attended the meeting. He inquired if his information was accurate.
Smith also told Bryan he "was very much shook up" since he heard she attended
the union meeting and that he was disappointed in her. Bryan testified further that
Smith told her unions would not work in the South, and "They had been telling
the people [there] that any raise the Union would get . . . the employees, the
union dues would surpass."
Smith admitted interrogating Bryan regarding her attendance at the union meeting.
He testified that his reason for doing so was that since the Union's membership in-
cluded cooks and bartenders, he was "puzzled" why Bryan, a white-collar worker,
would be interested. This, together with his curiosity, gave rise to the interrogation.
Leroy admitted talking with Hernandez, Yanascavage, Padilla, and Garza in his
office about the Union. In addition, he admitted calling three other employees to
his office, as well as going around to assembled employees in various departments to
talk about the Union. He denied asking any employee if he was a union member,
and testified he told all employees to whom he spoke that they were free to join
or not to join the Union as they saw fit. Leroy also denied that he at any time main-
tained a list of hotel employees who were alleged to be members, organizers, or
active in the Union. He explained that the payroll department gives him an up-to-
date list of personnel employed under his supervision which he keeps on his desk
for purposes of refreshing his memory regarding the employee's entering upon em-
ployment with the Hotel, his department, and his rate of pay.
Leroy denied that when he talked with Hernandez he mentioned anything about
the latter being on top of the list. He admitted that reference was made in their
conversation to employees entitled to increases in pay, but testified that he explained
to Hernandez that he could not give them a raise while a union organization cam-
paign was underway. He denied that he asked Hernandez if he was going to "be-
have any better."
Leroy testified that he called Yanascavage to his office to talk with him be-
cause he "thought" he observed him passing out union literature at his station, and
he "knew" he was conversing with the waiters about the Union. His purpose was
to set Yanascavage straight on the rights of employees carrying on union activities
while they were working. Leroy did not recall asking Yanascavage why he did
not go where there was a union. Thereafter, in answer to a leading question, he
testified he did not make such statement.
SHAMROCK HILTON HOTEL, ETC. 707
Concerning Padilla's testimony, Leroy testified that he called Dora to the office,
rather than her husband (the subject of their conversation) because the latter does
not speak English and because he knew Dora better than her husband. His version of
the conversation was that he told Dora he understood her husband was telling
employees that if a union "came in" they would be paid $1.25 an hour. If her
husband was saying this, he was referring to the minimum wage law and not to a
union contract, and until he knew what he was talking about, Leroy felt he should
not be spreading such rumors.
With regard to Garza's testimony, Leroy denied the statement "me and you are
not going to get along too good." Leroy testified that his only reason for calling
Garza to his office was to make "clear to him that he was not allowed to pass litera-
ture or organize for the Union during the Hotel's working hours, that is, the working
hours that he was assigned to the floor."
Finally, as to the testimony of the General Counsel's witnesses that with unioniza-
tion some employees might suffer a reduction in rates of pay, Leroy testified that
having at one time been a union member himself, and having come from a union
city, it was his opinion, which he expressed to the employees, that if a citywide con-
tract was negotiated, it would set forth a wage per category for all hotels, and since
some of the downtown hotels paid far less than the Shamrock, "It was entirely pos-
sible or probable, or could be, that the wage might be set somewhere between [their]
wage and the downtown wage, . . . but it possibly could be within the prerogative
of management to pay the union wage as opposed to the wage that might be higher
than the union wage."
A most difficult and trying task of a trier of fact is the resolution of credibility of
witnesses. I carefully observed the demeanor of the witnesses as they testified dur-
ing the hearing and I was left with the distinct impression that 'Hernandez, Yanas-
cavage, Bryan, Garza, Brooks, and Padilla were testifying truthfully and should be
credited by me. Leroy's versions of his conversations with the said witnesses (all
but Bryan and Brooks) did not so impress me. I had the feeling that Leroy did not
disclose the true facts as he knew them and was concerned primarily with giving
answers which displayed his knowledge of the law, and which were most favorable
to his employer. A careful reading of the transcript of testimony has not changed
the conclusion I reached at the close of the hearing. I find, based on the testimony
of Hernandez, Yanascavage, Bryan, Garza, Brooks, and Padilla which I credit, that
Leroy and Smith engaged in the conversations as testified to by them. Accordingly,
I conclude and find that Respondent violated Section 8(a)(1) of the Act by the
following conduct: (1) Leroy's threat to Hernandez and Yanascavage that unioniza-
tion nand a citywide hotel contract would result in a wage cut to Shamrock employees;
(2) Leroy's interrogation of Hernandez as to how many union cards he had and if
he had seen a union card; (3) Leroy's veiled threat to Hernandez in the statement,
"Well, we got rid of the charcoal and we got rid of the mice. All our trouble now is
to get rid of the union agitators"; (4) Leroy's interrogation of Yanascavage regarding
his union membership; (5) Leroy's coercive statement to Padilla to tell her husband
"to keep his mouth shut" if he did not know what the Union means; (6) Leroy's
threat that working conditions might be different if the employees became union-
ized; 9 (7) Leroy's interrogation of Garza regarding his union activities and the
veiled threat contained in the statement, "Me and you are not going to get along too
good now"; (8 ) Smith 's interrogation of Bryan regarding her attendance at a union
meeting.
B. The discharges
Niami Bryan was employed by the Respondent from May 25, 1959, until her
termination on November 2, 1959. She answered a newspaper ad placed by the
Hotel sometime in May and was interviewed by Richard Minner, personnel director
for the Hotel. She did not accept the first job offered. Several days later Minner
notified her of a job available at the Club. Bryan was sent to see Smith and was
hired as a clerk-typist in the club office at a starting salary of $200 per month,
with a promise of a raise to $225 per month after 3 months. Her duties consisted
of answering the telephone, accepting reservations, answering inquiries regarding
membership, filing, and general office routine.
Bryan testified that in September she and Gretel Junker, secretary to Smith, left
the office and were walking to Bryan's car when Frank McCarty, union business
agent, handed each some union literature and a blank union authorization card. At
home 'Bryan filled in the requisite information on the card and mailed it to the Union.
3 Since this statement was made in a context of interrogation and other threats, I do
not en" 'der that it was merely a predicton of what might happen in the event of
unionization.
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Junker admittedly brought the union literature and the blank authorization card to.
the office the following day and placed it on Smith 's desk.
Bryan and Junker discussed the Union on several occasions. Bryan attended the
union meeting on October 26, 1959 . Bryan testified that on the morning of Novem-
ber 2, 1959, Junker inquired if she had been to the union meeting and what tran-
spired . Bryan answered Junker 's questions . Junker, called as a witness by Re-
spondent, admitted that after her conversation with Bryan she reported to Smith
later that day that she had heard that Bryan attended the union meeting.
Bryan testified that about 4 p.m. that day 4 Smith came to her desk and told her
they were cutting down the staff and eliminating her job. Smith handed her a pay-
check for 1 day's work.5 After some further conversation regarding how the office
would get along with only one girl , Smith told Bryan she was not being fired and he
would give her a good reference. Bryan then left, and was outside the building
when Smith came after her and reminded her that she walked off with the office key.
As she was returning it to him Bryan said, "Mr. Smith, do you realize you are firing
me for going to a union meeting when I have not admitted it to you?" Smith
replied that he knew she wasthere. The record reveals that a replacement for the
club office was obtained shortly after Bryan 's termination. It is also clear from the
record that except for brief periods while replacements were being obtained the
personnel of the club office consisted of the manager, his secretary, and a clerk-typist.
Respondent contended at the hearing that Bryan was discharged for cause. In its
brief it sets forth six aspects of Bryan's unsatisfactory performance which it contends
made Smith realize for some time before she was discharged that he eventually would
have to terminate her employment.
Smith testified that Bryan's progress in her job from the inception was slow
and that he was "generally unhappy" with her. He admitted, however, that when
Bryan spoke to him about a raise after she had been employed for 3 months he
merely said he could not grant the raise at that time and did not say anything to her
about unsatisfactory performance . Indeed , Smith admitted on cross-examination
that during the entire period of Bryan's employment he did not tell her he was
unhappy or dissatisfied with her work, or that if she did not improve he would have
to terminate her.
Smith testified that Bryan was involved in two "incidents" which resulted in com-
plaints by club members. The first occurred in September 1959 and the member was
only "apprehensive" about whether or not he would get a table. The record reveals
that the member's reservation was properly channeled by Bryan and there was no
difficulty involved in the member getting his table. As,to the second incident which
took place early in October, it appears that Bryan told a member over the telephone
that his request was unusual. This was interpreted by the member as a "curt and
rude" remark. Bryan nevertheless complied with the request. When Bryan com-
plained to Smith that she would never take another reservation again from this
member, she was told that as telephone receptionist she must be polite and handle
all requests. No further action was taken with respect to the said "incidents."
Smith testified that even though he knew he was going to employ a new person to fill
Bryan's job, he wanted to let her down easy and therefore told her the force was
being reduced.
Bryan testified that no one in the office criticized her work. On the contrary, she
received praise for her performance several times. She stated that she became aware
of the complaint by member Henry King only after she wasterminated.
Junker testified on direct examination that Bryan progressed slowly in her job,
noting specifically that she did not know telephone technique, filing, or general
office routine. She admitted, however, on cross-examination that when Bryan was
taught telephone technique she did it the correct way and also did a fair job in
general office routine.
Smith did not impress me as a reliable witness and I do not credit his testimony
regarding the deficiencies in Bryan's performance.
The evidence is clear and I find in accordance with Bryan's testimony, which I
credit, that Smith never expressed dissatisfaction with her work. Moreover, since
Bryan was discharged several hours after Respondent learned of her interest in the
Union and that she had attended a union meeting and the discharge took place with-
out warning on the beginning day of a new payroll period, in fact before the end of
the workday, for the alleged reason that the force was being reduced, which Smith
admitted was not the truth, the only fair inference to be drawn is that she was
Bryan' s hours of work were 9 a.m. to 5 p in.
Bryan was paid semimonthly and had received a paycheck for the previous period on
October 31.
SHAMROCK HILTON HOTEL, ETC. 709
discharged for her union membership and activities and I so find . In discharging
Bryan, Respondent violated Section 8(a) (3) of the Act.
Gabriel Saucedo was employed part time while attending school from 1954 to
1957. He worked full time from 1957 until his termination on November 13, 1959.
He held various jobs such as houseman, runner in the cafeteria, sandwich man, and
coffee boy. For 3 weeks immediately before his termination he was a coffee boy
in the employees' cafeteria and prior thereto he worked in the main kitchen.
Saucedo testified he signed a union membership card, attended union meetings
in October and November, and solicited other employees to join the Union. He was
successful in obtaining employees' signatures to about five union authorization cards.
In fact about 4:30 a.m. on November 13 before reporting for work, Saucedo gave
a card to housekeeping employee Jesse Carrion outside of the cafeteria.
At the finish of Saucedo's workday on November 13, Chef Mendicina, supervisor
of all kitchens in the hotel, told him there were too many coffee boys and he was
being laid off.
It is the General Counsel's contention raised in his brief that Saucedo's termina-
tion was due to his union activities. He recites the following as arguments favoring
his contention: (1) Saucedo was terminated soon after he distributed a union au-
thorization card; (2) he was senior to one of the coffee boys who was retained; (3)
the person in charge of the employees' cafeteria appeared to be satisfied with Sau-
cedo's work; (4) working in the employees' cafeteria afforded Saucedo an excellent
opportunity to solicit for the Union; and (5) even if one of the kitchens did close
down Saucedo should have been given another job or a part time job rather than
be terminated.
Even assuming that the facts set forth above are sufficient to raise a prima facie
inference of discriminatory discharge for suspected union activities, I find that Re-
spondent's explanation for Saucedo's termination is sufficient to overcome this in-
ference. There is no evidence in the record which would warrant drawing the
conclusion that Respondent's officials particularly suspected or knew that Saucedo
was a union adherent or active in promoting the interests of the Union.
On the other hand the Respondent adduced testimony which is uncontroverted
to support its contention that Saucedo was laid off solely for economic reasons.
Thus Francis Mendicina, executive chef at the Hotel for 3 years, and associated with
the Hilton chain for 30 years, testified that in November the main kitchen was
closed down except at night when it serviced the nightclub. This reduced the need
for regular coffee boys by one. Mendicina also testified that from his observation
,of how all of the coffee boys worked and considering, in addition, their attendance,
their attitude, and their personal appearance, it was his opinion that Saucedo did not
compare favorably with the other boys and he was terminated.
Mendicina further testified that he had received complaints about the quality of the
coffee served in the employees' cafeteria and his investigation revealed this was due to
the fact that Saucedo did not keep the urns clean. He talked with Saucedo many
times about his performance on the job and even though Saucedo promised to do
better, his work did not improve.6 With regard to Saucedo's personal appearance,
Mendicina testified he did not keep his clothes clean and he often had to be told to
have his hair cut.7
Upon the foregoing and the entire record, I am convinced that the General Coun-
sel has not sustained his burden of proving by a preponderance of the evidence that
Saucedo was discharged for the reasons alleged in the complaint. I will hereinafter
recommend that this allegation of the complaint be dismissed.
Galo Mera started his employment as a room service waiter with the original
Shamrock Hotel in February 1949.8 Mera testified that he signed a union authoriza-
tion card in September 1959. Thereafter, he spoke to other employees in an attempt
to interest them in the Union, passed out authorization cards to housekeeping de-
partment employees, dishwashers, kitchen runners, and waiters, and was successful
in obtaining about 15 signed union membership cards.
Mera testified without contradiction that about 5:45 a.m. on November 15, 1959,9
while he was passing out union authorization cards to housekeeping department
9 Andrew Berbel , in charge of the employees ' cafeteria , testifying as a witness for the
General Counsel, stated he was satisfied with Saucedo's work and that Saucedo kept his
area clean On cross-examination, however, he admitted that on occasion he had to
caution Saucedo to keep his station clean.
7 Berbel admitted he also had to talk with Saucedo along similar lines . From my obser-
vation of the witness Saucedo, I can understand why this would be necessary.
8 The Respondent assumed management of the Hotel in November 1954
1 Mera started to work at 6 a.m.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, Homer Houston, night cleaning foreman, was standing about 10 feet
away observing his activities.10 Mera also testified that in December 1959 while he
and other day room service employees (six full-time waiters, two part-time waiters,
a busboy, and the order clerk) were attending a party at the home of the day room
service captain, Larry Del Monico, a supervisor within the meaning of the Act, he
made a prounion speech, which he claimed was not too well received. Del Monico
denied he heard Mera's speech.
On or about February 9, 1960, Mera was called into a meeting with Del Monica
and Anthony Christine, Respondent's room service manager. Christine told Mera
that because he had been holding back on tips," demanding tips from guests in cash
and not accepting such tips as charges on the check, and further because he was not
getting along with the other waiters, Christine was going to transfer him to another
department. When Mera remonstrated, claiming his entire training was in room
service and this would mean he would have to learn something new after 11 years,
he was told to come in the next day to see Leroy and Minner. After about an hour's
discussion with Leroy and Minner on February 10, Mera was told to call the per-
sonnel office later that day. When Mera called Minner he was told his services were
terminated. Mera testified he never received any complaints about his work from
Christine or Del Monico.
It is the General Counsel's contention that Respondent became dissatisfied and
distrustful of Mera in the fall of 1959 when the Union was engaging in a vigorous
organizing campaign and Houston had observed Mera passing out union authoriza-
tion cards. He contends further that Mera was discharged because of his union
membership and activities and to discourage organization among the other
employees.
Respondent claims that cause existed for its decision to terminate Mera. Thus
Del Monico testified that in June 1959 he began receiving complaints about Mera's
participation in the kitty. Del Monico and Christine in a meeting with Mera in
June 1959 told the latter that the other day room service waiters were "dissatisfied
with his coming up in the kitty," and he was given a month to show some improve-
ment. Del Monico testified that for a period of 3 weeks Mera did very well but
thereafter he reverted to low man in the kitty, with the result that he received fur-
ther complaints from the waiters. In November 1959 the waiters complained that
Mera turned in less money than he had signed for on the slip. In December 1959
Del Monico talked with Christine again about the dissatisfaction among his staff
and suggested that something had to be done. In the meantime a check was in-
stituted by Scott Sudden concerning Mera's participation in the kitty.
Del Monico also testified that as in the past, the kitty was split up among the
participants about December 14, 1959, and not reinstituted until after the first of
the year. When it was reestablished on or about January 27, 1960, Mera was not
permitted to participate "because the boys would not work with him no more." Del
Monico testified that when Mera "went for himself," he commenced taking orders
out of turn and taking two orders at one time. Del Monico explained that the basic
idea of the kitty is that all employees get along and work in harmony. It is inevit-
able that dissension among the employees will arise when some are in and some are
out of the kitty. This, together with the fact that it was called to his attention
that Mera ran two orders without calling the men in the backroom to take the regular
turn, led Del Monico to again confer with Christine on or about February 9, 1960,
and advise that the department just could not get along with Mera there and that
either Mera was to be transferred out or he would ask for a transfer.
Christine corroborated Del Monico's testimony regarding Mera's difficulties with
his fellow workers, the several meetings that he had with Mera, and the request for
Mera's transfer out of the day room service department. Christine testified that he
took the problem up with Leroy and asked for Mera's transfer out of the department.
Leroy testified that in November 1959 he had called to his attention the dis-
satisfaction among the day room service crew regarding the gratuity situation, and
10 Richard Minner , Respondent' s personnel director , testified that as night cleaning fore-
man, Houston supervises, directs, and is held responsible for the work of the 17 night
cleaners in the housekeeping department. Although Houston does not have the power to
promote or lay off employees under his supervision , he recommends such actions and also
may discipline employees. I find Houston to be a supervisory employee within the meaning
of the Act.
n The day room service waiters and captain had an arrangement among themselves
whereby they pooled all of the tips in a kitty. At the end of each day the kitty was split
up. A part of it went to the busboy, another part into a Christmas fund and the re-
mainder was divided evenly among the waiters and the captain.
SHAMROCK HILTON HOTEL, ETC. 711
at that time instructed his assistant to run a survey on Mera's checks in an effort
to determine whether the complaints were valid or invalid. Thereafter the request
to transfer Mera from the department was received. Leroy conferred with Minner
and it was their joint opinion, mutually arrived at, after Minner had talked with the
six day room service waiters, that it would not "be fair" to transfer Mera to another
department and it was decided to terminate him. Mera was terminated on February
10, 1960.
Mera did not impress me as a reliable witness. His testimony was inconsistent
in several respects and untruthful with regard to his participation in the kitty. Del
Monico, Christine, and Minner testified in a straightforward, consistent manner and
I credit their testimony set forth above. I also credit Leroy's testimony concerning
his participation in Mera's discharge.
Although the General Counsel made out a strong prima facie case with regard to
Mera, the ultimate finding herein must be based upon the totality of the record.
Upon consideration of all the evidence, I find it insufficient to support, as required
by law,12 the allegation that Mera was discharged because he joined or assisted the
Union or because he engaged in other protected concerted activities, and I shall
therefore recommend that the complaint be dismissed in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent set forth 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 threatening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act. Having found
that the Respondent has discriminated in regard to the tenure and employment of
Niami Bryan it will be recommended that Respondent offer her immediate and full
reinstatement to her former or substantially equivalent position without prejudice to
seniority and other rights and privileges previously enjoyed, and make her whole
for any loss of pay suffered by reason of the discrimination against her by payment
to her of a sum of money equal to the amount she would have earned from the date
of her discharge to the date of offer of reinstatement, less her net earnings during
the said period. Backpay shall be computed in accordance with the Board's Wool-
worth formula.13
It has also been found that the Respondent conducted an antiunion campaign by
engaging in interrogation, threats, and other illegal conduct in order to interfere
with and intimidate the employees from exercising their rights under the Act. By
such activity the Respondent has revealed an antipathy to the objectives of the Act
as to justify the inference that the commission of other unfair labor practices may
be anticipated in the future. It will be recommended, therefore, that Respondent
be ordered to cease and desist from in any manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed by 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. Hotel & Restaurant Employees and Bartenders International Union is a labor
organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of
Niami Bryan, thereby discouraging concerted activities and membership in the
aforesaid Union, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) of the Act.
3. By the above unfair labor practices, and by otherwise interfering with, restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
12 N.L R B. v. G len Raven Silk Mills , Inc., 203 F. 2d 946 (C A. 4), enfg. as mod.
101 NLRB 239
11P. W. Woolworth Company, 90 NLRB 289.
`712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent did not commit unfair labor practices by discharging Gabriel
Saucedo and Galo Mera.
[Recommendations omitted from publication.]
National Furniture Manufacturing Company, Inc. and Local
Union No. 215, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case No. 25-
CA-1198. February 24, 1961
DECISION AND ORDER
On August 16, 1960, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in comlection with this case to a three-member
panel [Chairman Leedom and Members Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case and hereby adopts the Trial Examiner's findings, conclusions,
,and recommendations.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that National Furniture Manufacturing Com-
pany, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union No. 215,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of all over-
the-road truckdrivers at its Evansville, Indiana, plant, excluding
clerical employees, professional employees, guards and supervisors as
defined in the Act, and all other employees, with respect to rates of
pay, wages, hours of employment, and other conditions of
employment.
130 NLRB No. 72.