Sheraton-Houston Corp.

National Labor Relations Board - Board Decisions

Sep 22, 1964

148 N.L.R.B. 1195 (N.L.R.B. 1964)

SHERATON -HOUSTON CORPORATION 1195
Alexander, told her that "Anybody wearing a [Union] button and
working so hard for the Union, if the Union don't come in, they might
have it rough." On the basis of the foregoing, the Hearing Officer
found that the supervisors' remarks constituted threats of loss of bene-
fits and employment, of reprisal for union adherence, and of the fu-
tility of choosing the Union as bargaining representative. He recom-
mended that the Board sustain, objections Nos. 4, 5, and 6.
In its exceptions the Employer contends that the supervisors' state-
ments, if made as reported, were isolated and therefore insufficient to
justify setting aside the election. We disagree. The supervisors' con-
duct must be viewed in the light of-all the circumstances of this case,
including conduct that was the subject of objections Nos. 2, 3, and 10.
We note that the theme of layoffs and plant shutdown reiterated by
the townspeople was the same theme expressed by Supervisors Ozier
and Alexander to Siegel employees. Furthermore, substantial dis-
tribution of "I Vote No" tags during working hours, the use of a
supervisor's office for the distribution of some of the tags, and the
apparent encouragement of the wearing of such tags by one super-
visor, contributed to a highly-charged election atmosphere. Far from
being isolated, the. statements by Ozier and Alexander, which we find
to be coercive, when viewed in the context of the election campaign as
a whole, had a substantial impact upon the employees' free choice in
the election. We shall therefore sustain objections Nos. 4, 5, and 6.1
Accordingly, we shall order that the election be set aside and direct a
second election.
[The Board set aside the election conducted on May 24, 1963.]
[Text of Direction of Second Election omitted from publication.]
2 In view of our finding as to objections Nos. 4 , 5, and 6, we find it unnecessary to pass
upon oche : remaining ;objections.
Chairman McCulloch places greater - weight on the community activity as creating a
background situation for the supervisors' conduct, and would also sustain objections Nos.
2 and 3 as well as objections Nos. 4 , 5, and 6.
Sheraton-Houston Corporation and Hotel , Motel and Club Em-
ployees Union , Local 251, AFL-CIO
Sheraton-Houston Corporation and Daniel L. Etheridge. Cases
Nos. 23-CA-1721 and 93-CA-1737. September 22, 1964
DECISION AND ORDER
On June 16, 1964, Trial Examiner David London issued his De-
cision in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices and
148 NLRB No. 127.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the General Counsel
filed cross-exceptions and a brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(c) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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, exceptions and cross-exceptions,' briefs, and the•
entire record in these cases, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner with the modi-
fication noted below.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act,
as amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent,,
Sheraton-Houston Corporation, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order, with the following addition to paragraph 2(a)
thereof :
"Notify Johnny Charles, Theresa Adams, Clarence McWilliams,
and Daniel Etheridge, if presently serving in the Armed Forces of
the United States, of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal
Military Training and Service Act of 1948, as amended, after dis-
charge from the Armed Forces."
'In the General Counsel's cross-exceptions , he requested that the Board disregard and
deny all the Respondent's exceptions for failure to comply with Section 102.46 of the
Board's Rules and Regulations , Series 8, as amended. We find, however , that these excep-
tions meet the requirements of the Rules, The General Counsel 's request is therefore
denied.
2 The Respondent excepted to the Trial Examiner's finding that Respondent violated
Section 8 ( a) (1) of the Act by distributing apples to employees during a preelection cam-
paign, each apple bearing a sticker with the legend , "An apple a day keeps the Union
AWAY." In view of the other violations of Section 8(a) (1) committed by the Respond-
ent, we find it unnecessary to decide whether this conduct constituted an additional viola-
tion , as such finding would be cumulative and would not, in any event , affect the remedy
and order recommended by the Trial Examiner and adopted herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge in Case No. 23-CA-1721 filed on December 4, 1963, by Hotel,
Motel and Club Employees Union , Local 251, AFL-CIO, hereinafter referred to as
SHERATON-HOUSTON CORPORATION 1197
the Union, and another charge filed in Case No. 23-CA-1737 on December 23, 1963,
by Daniel L. Etheridge, the General Counsel of the National Labor Relations Board,
acting through the Board's Regional Director for Region 23, on January 16, 1964,
consolidated said cases and issued a complaint against Sheraton-Houston Corpora-
tion, herein called Respondent, alleging that Respondent had engaged 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, 29 U.S.C. Sec. 151, et seq., herein called
the Act.
In substance, the complaint, as amended at the hearing, alleges that Respondent
engaged in conduct constituting interference, restraint, and coercion of employees in
the exercise of rights guaranteed by the Act, and discriminated against the four em-
ployees named in the footnote I by terminating and refusing to reinstate Charles,
Adams, and McWilliams because of their union activities or because they engaged in
other concerted activities for the purpose of collective bargaining and other mutual
aid or protection. With respect to the termination of Etheridge's employment, the
complaint alleges that he was discharged "in order to give an appearance of legitimacy
to Clarence McWilliams' discharge."
Respondent's answer admits that it terminated the employment of the four em-
ployees named in footnote 1, supra, but denies that it did so for the reasons alleged -
in the complaint. With respect to Charles, the answer pleads affirmatively he was
not reinstated "on or about November 11, 1963, when he returned to the hotel follow-
ing an unauthorized absence." The answer further denies the commission of any
other unfair labor practice.
Pursuant to due notice, a hearing was held before Trial Examiner David London
at Houston, Texas, on February 17, 18, and 19, 1964. All parties were represented
at the hearing and were afforded full opportunity to be heard, to introduce evidence,
to examine and cross-examine witnesses, to present oral argument, and to file briefs.
Since the close of the hearing, the General Counsel and Respondent have filed briefs
which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses and
their demeanor, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is now, and has been at all times material herein, a Delaware corpora-
tion maintaining a place of business at Houston, Texas, where it is engaged in the
business of providing hotel accommodations and services to transient and resident
patrons. During the 12 months preceding the filing of the complaint herein, Re-
spondent, in the course and conduct of its business operations, received gross revenues
in excess of $500,000, and provided hotel accommodations and services to patrons
75 percent of which were transients who remained at the hotel for less than 30 days.
During this same period, Respondent purchased goods and materials having a value
in excess of $10,000, which goods and materials were shipped directly from outside
the State of Texas to Respondent's hotel at Houston, Texas. Respondent admits, and
I find and conclude, that it is now and has been at all times material herein an em-
ployer engaged in commerce within the meaning of -Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hotel, Motel and Club Employees Union, Local 251, AFL-CIO, is, and has been
at all times material herein, a labor organization within the meaning of Section 2(5)
of the Act.
IH. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
A campaign to organize Respondent's hotel employees was commenced in the
spring of 1963 when the Charging Union filed two petitions with the Board seeking
to be certified as collective-bargaining representative of those employees. Both peti-
tions were, however, withdrawn by the Union. On September 27, 1963,2 the Union
filed another such petition, Case No. 23-RC-2152, on which petition a hearing was
1 Johnny Charles, Theresa Adams, Clarence McWilliams, and Daniel L. Etheridge.
a Unless otherwise specified, all reference to dates herein are to the year 1963.
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted October 25 .. On November 29, the Board 's Regional Director issued his
Decision and Direction of Election in that proceeding but, insofar as the record dis-
closes, that election has not yet been conducted .3
Clarence McWilliams , one of the alleged discriminatees herein , was employed by
Respondent as a houseman in November 1962, about 6 months after the hotel was
opened for business . He signed a union card in April 1963 and thereafter was
actively engaged in soliciting union membership from other employees of Respond-
ent. Part of that activity consisted of the distribution of union cards to employees
outside the hotel premises as they came to and departed from work , and placing
union cards in the restrooms , the lockers , and "on the bulletin boards where every-
body could see them."
Sometime in September , Don Cork, Respondent 's general manager , accompanied
by a hotel chef, came to the fourth floor of the hotel where McWilliams was
engaged . After the chef pointed McWilliams out to Cork, the latter asked McWil-
liams who was responsible "for putting those union cards up in the restrooms .
and on the wall." McWilliams denied having any knowledge pertaining thereto
because, he testified , that if he admitted that he had done it, he"would be fired."
On or about November 12, McWilliams had a conversation with Charles Arm-
strong, the hotel 's bell captain and admittedly a supervisor within the meaning of
the Act. At that time , Armstrong , who, while previously employed at the Rice
Hotel in Houston , was president of the Union , told McWilliams that Cork had
advised him to keep McWilliams "under pressure and surveillance . . on account
of that union business."
Early in December , shortly after the Decision and Direction of Election in Case
No. 23-RC-2152 was issued on November 29, Roosevelt Revis, employed by
Respondent in its housekeeping department under Supervisor Marjorie Hannan, was
asked by Hannan "how things were going upstairs how did the employees
feel about the Union ," and whether he thought the employees would vote for the
Union in the election which was expected to take place in approximately 2 weeks.
When Revis told her that he thought about 90 percent of the employees would vote
for the Union , Hannan tried to convince him that the employees "would be better
off without a union ." In the course of their conversation , Hannan asked him
whether he had been "talking to the rest of the employees about a union," and Revis
replied that he had . Hannan then told him "it would be a good idea for [him]
to talk to the rest of the employees against a union" and that if he did, she "would
see what she could do about the little raise" he had previously requested.
The findings in the preceding three paragraphs pertaining to Cork 's interrogation
of McWilliams about his union activity , Armstrong's statement to McWilliams that
he had been instructed by Cork to keep him under pressure and surveillance, and
Hannan 's conversation with Revis , are based on the testimony of McWilliams and
Revis which I credit 4 Accordingly , I find that by engaging in that conduct, Re-
spondent interfered with, restrained , and coerced employees in the exercise of rights
guaranteed by the Act and thereby violated Section 8 (a)(1) of the Act.
Respondent , in its brief, concedes that "it is uncontroverted that around the first
week of December , after an election had been directed , the hotel placed a basket
of apples near the employee entrance , each apple bearing a sticker with the legend,
'An apple a day keeps the Union AWAY,' " and the testimony establishes that these
apples were offered to and accepted by employees.
Respondent characterizes the incident , which occurred on or about November 4,
shortly after the hearing in the representation proceeding , as a harmless "campaign
gimmick ." The General Counsel describes it as conduct "intended and reasonably
calculated to interfere with the employees ' free choice as to whether they desire to
be represented by the Union ," and therefore violative of Section 8(a)(1) of the
Act. Though the incident , on its face, does not appear to have monumental sig-
nificance , I am nevertheless constrained to condemn it as violative of Section
8(a)(1) of the Act. Small as each apple was in value, ' it nevertheless was a gift
designed to influence the employees in the approaching election. The sophisticated
8The charge in Case No . 23-CA-1721 herein , alleging violations of Section S(a)(1)
and (3 ) of the Act, was filed by the Union on December 4, 1963. It is the Board ' s policy
not to proceed further in representation proceedings pending the disposition of existing
unfair labor practice charges against the same employer unless those charges are specifi-
cally waived by the parties.
4 My reasons for rejecting the denials of Cork, Armstrong, and Hannan that they en-
gaged in the conduct attributed to them are set forth in later portions of this Decision
dealing with other credibility findings.
SHERATON-HOUSTON CORPORATION 1199
might view it, as counsel for Respondent do in their brief, as a "clever [but]
pointless" gesture. Judging, however, by the appearance and demeanor of Respond-
ent's employees that appeared before me, I conclude that these unsophisticated em-
ployees might well view it as a token of better things to come if they should "keep
the Union AWAY." As the Supreme Court recently said: "Employees are not
likely to miss the inference that the source of benefits now conferred is also the
source from which future benefits must flow and' which may dry up if it is not
obliged." N.L.R.B., v. Exchange Parts Company, 375 U.S. 405, 409 (Jan-
uary 13, 1964).
B. The discharges
1. Johnny Charles
Charles was employed in Respondent's laundry and valet department from
May 1962 to November 11, 1963, under Supervisor David Brown. Charles be-
came active in behalf of the Union in April 1963 following which, during his three
daily breaks, he talked to other employees about the advantages to be gained by
membership in the Union and solicited their membership therein.
Shortly after this campaign began, several employees suggested that Charles'
speak to Brown and, arrange for a meeting with him and the other laundry em-
ployees as "they wanted to talk to him about the union cards [they] had received."
Brown called such a meeting at which he was asked what he thought about the
Union. In reply, Brown talked about what he considered to be the disadvantages
of the Union, that the employees would "only be spending more money, that he and
the hotel could do more for [them] than the Union could, that it wasn't necessary
to have a third boss."
On an occasion about noon of a day in August, Charles was in the midst of a
group of four other employees trying to get one of them, Vernel Clewis, to sign
a union card. As he handed the card to Clewis, Brown was standing a few feet
away and Clewis returnd the card to Charles.
Early on the morning of October 23, Charles became ill and instructed his wife
to call Brown and inform him that he would not be able to report for work that
day. She called the hotel and, Brown not being there, asked the valet who answered
the telephone to inform Brown of her husband' s illness. Charles went to his doctor
who told him he had pneumonia as a result of which he was hospitalized that
evening. On November 1, while he was so confined, he called Brown and asked
him to send his check by another employee and Brown did so.
On November 5, after Charles was released from the hospital , he called Brown
and informed him that pursuant to word from his doctor, he would report for
work on the following Monday, November 11. He reported early during the
morning on that day and began working. Later, when Brown appeared, he asked
Charles what he was doing and if he had talked to Richard VonReider, Respond-
ent's personnel director. Charles replied he had not and asked whether he should
have done so and why. Brown replied that VonReider had called him a few days
earlier and informed him that Charles would not be back to work. When Charles
asked why, Brown answered that he did not know but merely instructed him to
see VonReider.
Charles did as requested and asked VonReider whether he had told Brown that he
would not be back to work and VonReider denied that he had such a conversation
with Brown. Charles informed him of his hospitalization and asked whether such a
misfortune meant the loss of his job to which VonReider replied: "Well, the work
has to go on." When Charles reminded him that another named employee had been
confined to a hospital for a longer period than he without a loss of her job, VonReider
stated that Brown was not satisfied with his work. Charles remonstrated that he had
been on the job for almost 18 months, that Brown never hold him that he was not
satisfied with his work, and added that he was sure "this [was] not the reason why
[he was] being discharged" and VonReider knew it. VonReider made no reply and
Charles left the premises.
Respondent's answer pleads that Charles was discharged "following an unauthor-
ized absence." His "Separation Record," prepared and signed by Brown, reports that
it was "due to delayed illness, had to be replaced immediately." VonReider, who
discharged Charles, testified he construed "delayed illness" to mean "continued ill-
ness." No testimony was offered by Respondent that Charles' absence from work
on and after October 23, occasioned by his illness, was an "unauthorized absence" as
pleaded in Respondent's answer. Instead, in its brief, Respondent now contends that
"Charles was terminated because he was undependable," that "starting around June
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963, Charles began leaving work to visit a maid on -the fourth floor 5 and, with in-
creasing frequency, Brown was required to go to the fourth floor to get Charles
when there was work waiting to be done." Indeed, substantially all of Brown's testi-
mony was devoted to an attempt seeking to substantiate this belatedly offered defense.
Thus, Brown testified that though he "endeavored to make [Charles his] right
hand man" from among the 18 employees in his department, he first observed his
work "slipping" in June 1963 when he began missing him out of the laundry and be-
gan looking for him on the fourth floor where he had previously seen him "talking
to the housemen." Two or three days later, he testified, he again had to search for
him and again found him on the fourth floor talking to a maid, a task and situation
which was repeated within "one, two or three days" later. Thereafter, he twice testi-
fied, he "began to catch him up there about every day . . . almost every day . . it
just kept getting worse all the time." Significantly, however, when he asked VonReider
to discharge Charles, he failed to ascribe the fourth floor visits as the reasons for
that termination but "just told him his work wasn't worth a darn." However, no
credible testimony was offered that Charles' work performance in the laundry, while
actually engaged therein, was in any manner unsatisfactory.6
I find it inconceivable if, during a 4- to 5-month period, Brown found it necessary
to search for and find Charles on the fourth floor as frequently as he testified, that he
would not have discharged him long before November 4 when he finally decided to
do so. "It is reasonable to assume that the Company would have discharged him at
or near the time of the [numerous foregoing] incident[s] instead of waiting until
[the approaching election] to discharge him for that reason." N.L.R.B. v. Griggs
Equipment, Inc., 307 F. 2d 275, 278 (C.A. 5). Indeed, Brown testified that about
6 weeks before Charles became ill, when he allegedly called him to his office "for
being on the fourth floor so much," he rejected a proffered opportunity to discharge
him. Thus, he testified that during the course of their conversation at that time,
Charles asked him whether he wanted to discharge him, and he replied that he did
not. When asked why he did not do so, Brown, who admitted he had previously
discharged other employees, testified he does not "like to fire anybody and [Charles]
had been with [him] so long that [he] rocked along and hoping that he would
straighten out."
After Charles became ill, Brown told Carolyn Booth, his secretary, that he in-
tended to talk to VonReider about finding a replacement for Charles. When she
asked the reason therefor, Brown told her that "they had been pressuring' him to get
rid of Johnny Charles for some time and that he felt, now that Johnny was off, that
it would be a good time to do so." Brown also told her "they definitely knew that
Clarence McWilliams was mixed up with the Union, that he used to come in the
laundry and talk to Johnny Charles too much . . . and that there had been cards
seen passed between the two, Clarence McWilliams and Johnny Charles."
Though Booth was unaware that Brown "had some run-ins with Charles about not
staying on the job and spending time on the fourth floor," Brown told her, during the
afternoon of the day before she testified herein, that he had been instructed by
VonReider to "refresh" her as to matters concerning which she was expected to
testify. Brown further told her that if she should be asked "about the dismissal of
Johnny Charles, to tell them that [he] had caught Johnny Charles up on [floor] four
with one of the maids, and that every time [he] would look for Johnny Charles that
[he] would have to go look for him when [he] want[ed] him for something." 7
On the entire record, I find that none of the inconsistent reasons assigned by Re-
spondent for Charles' termination are in truth and fact the reasons for that action.
Instead, I find that Respondent discharged Charles because of his union activities and
to discourage union membership and activities by its remaining employees thereby
violating Section 8(a)(1) and (3) of the Act.
5 The laundry was located on the third floor.
9 Though Brown testified he made out "disciplinary record forms" concerning Charles,
Respondent's counsel conceded that Respondent had no "record of any disciplinary slip
on Johnny Charles."
9 The findings in the preceding two paragraphs are based on the credited testimony of
Booth who was in Respondent's employment at the time of the hearing. Of all the wit-
nesses who testified herein, Booth's demeanor while testifying impressed me as being the
most worthy of belief, and gave me the distinct impression that she was an honest and
truthful witness She was not a member of the Union and had no apparent interest herein
other than to tell the truth. Brown on the other hand, by his inconsistent, generalized
testimony, his tendency to grossly exaggerate, and by his demeanor, convinced me that his
sole concern was not to establish the truth, but to absolve Respondent of all liability
herein. I do not credit his denial of the statements attributed to him by Booth.
SHERATON-HOUSTON CORPORATION 1201
2. Theresa Adams
Adams was hired by Respondent as a maid on September 24, 1963, and discharged
,on November 26. About noon on November 25, while the Union's petition for rep-
resentation was pending before the Board, Marjorie Hannan, Respondent's executive
1lousekeeper, conducted a meeting of maids and housemen under her supervision.
She testified she called this meeting to bring the employees "up to date on things [she]
wanted them to do . that they were neglecting, and somehow or other got into a
.discussion on [the] Union [but couldn't] remember what all [she] said at that meet-
ing." She admitted, however, she told the employees that they would lose money if
they joined the Union and went on strike, and told them about a conversation she
had overheard concerning a strike at the Shell Oil Refinery at Houston as a result of
which one of its employees lost "everything he had."
At this point in the meeting Adams asked, and was granted permission to speak.
She told the assembled group that she and her husband had experienced a strike of
118 days without financial loss to them and that, as pioneers, the employees "must
not be afraid" to vote for the Union, that it was their right to do so, and that they
had need for a union. When Hannan interjected that she had been misunderstood,
Adams replied that she had "understood [her] perfectly well."
About 3 p.m. of the same day, Hannan came to Adams and told her that, be-
cause work was "getting slow," she would probably have to lay her and some other
girls off. This, notwithstanding that only the day before she had informed the
maids that, to avoid long layoffs, she would divide the work by reducing the num-
ber of days each maid would work during the week.
When Adams reported for work on the following morning, she found her name
on the blackboard along with the names of two other maids, with instruction to
report to Hannan's office. Hannan testified, she there told Adams that she could
not "break her heart" to tell her what was apparently in store for her, and instructed
her to report to VonReider's office. There, VonReider told her that because work
was less available at that time of the year she was being laid "off for a while,"
but would be recalled when work was available. VonReider admitted that he did
not "let any other of the maids go" on that day, and that "the other two girls" were
kept on, though "not working full weeks." On November 29, Adams went to
Respondent's payroll office and received her final paycheck. Attached thereto was
an "Employees' Earning Statement" bearing the following notation: "TERMINA-
TION UNTIL BUSINESS INCREASES." Adams has never been recalled by
Respondent.
In its brief, Respondent contends that Adams, who had seniority over at least
two other maids, "was a new employee whose work in general was relatively quite
poor, and when work became slack it was decided to terminate her services." 8
In support thereof, Hannan testified that commencing on or about October 4, only
10 days after Adams was hired, she "got repeated complaints about her work"
from the floor housekeeper, that "she was not doing her rooms properly, she was
not cleaning right, she was noisy on the floors, spent quite a bit of time visiting,"
and that these complaints continued in October, "two or three a week " Though
Hannan testified that the complaints concerning bathrooms not cleaned and beds
not made right by Adams came to her repeatedly from floor housekeepers, she was
unable to name or otherwise identify any floor housekeeper who made these "re-
peated complaints," nor was any floor housekeeper called as a witness to substan-
tiate these alleged complaints .9
VonReider testified it was "standard procedure" for supervisors to fill out a writ-
ten "Employee Disciplinary Record" describing the time and "incident" which
justify the execution of that record or form and which also required the signature
of the employee involved. Hannan testified that she made out two or three of
these disciplinary slips concerning Adams but never asked Adams to sign them for
the strange reason that if she had, "it would have been a mark against her." io
8 Hannan testified that during November and December she "actually terminated [no-
body] except Theresa Adams" ; she only gave them time off.
8 Adams was a "swing maid" who worked on a number of floors under the supervision of
at least three floor housekeepers, two of whom she named during her testimony early in
the hearing.
1o Hannan did not impress me as a supervisor who would allow sentiment or concern
for the feeling of employees to interfere with-the performance of her duties.
760-577-65-vol. 148-77'
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Though Respondent produced three such slips signed by Hannan pertaining to other
employees, Respondent's counsel conceded that Respondent had no disciplinary slips
pertaining to Adams.
Not only does the record fail to establish by credible evidence that Adams was
guilty'of'poor work performance, but Hannan's demeanor, while testifying not'only
with respect to'Adams but also with respect to McWilliams as will hereafter appear,
convinced me that she, no less than Brown, was concerned only with one objective-
to absolve Respondent of all liability herein without regard for the truth. Adams,
on the other hand, left me without doubt as to the truthfulness of her testimony,
which I credit, that Hannan "never criticized [her] work."
In arriving at my ultimate conclusion with respect to Adams, I have also con-
sidered the timing of her termination, occurring as it did within 24 hours after she
openly challenged Hannan's argument that joining the Union might prove costly to
the employees, and urging them not to be afraid to exercise their legal rights. Sig-
nificant also is the fact that though she was told she was only being laid "off for
a while," she has never been recalled. On the entire record, I find that Adams was
discharged because of her activities in behalf of the Union and conclude that Re-'
spondent thereby violated Section 8 (a) (1) and (3) of the Act.
3. Clarence McWilliams
McWilliams was employed by Respondent in November 1962 and discharged on
December 3, 1963. Until October 1, 1963, he was engaged as a houseman where
it was his duty to keep clean the fourth floor restrooms and lockerrooms of Re-
spondent's approximately 400 employees. As previously found, he signed a union
card in April 1963 and thereafter distributed union cards in the hotel, at the em-
ployees' entrance thereto, and placed them in the restrooms, the lockers; and on
the bulletin boards. It was concerning this activity that he was questioned by Cork,
the hotel manager, in September 1963 as found in section III, A, above.
From November 1962 until June 10, 1963, when Hannan took over as executive
housekeeper, his supervisor was Mrs. Predmore, who told him he "was the best man
she had in her department . and always complimented [him] on [his] work." ll
According to Hannan's own testimony, it was during September, the same month'
in which Cork questioned McWilliams about his union activity, that she became
dissatisfied with the latter's work performance and which then prompted her to make
out two disciplinary notices, dated September 11 and 23, respectively, concerning'
the poor condition of the restrooms and instructed him to subscribe his signature
to those slips.12 Indeed, she testified, his work was so bad late in September that
she "was ready to discharge" him, and it was only through Cork's intercession that
he was not discharged, but instead, was transferred to the position of lobby porter.13
In its brief, however, Respondent contends it was not McWilliams' continued
failure, after his second disciplinary notice, to satisfy Hannan's work standards that
prompted his transfer, but that it was "the shoe shining incident" of September 30,
hereafter detailed, which "precipitated McWilliams' transfer to the lobby."
McWilliams testified, without contradiction, that pursuant to a request from Cork,
he began shining the latter's shoes when he assumed management of the hotel in
March 1963. Thereafter, until September 30, a period of about 6 months, but
only during his morning break or noon lunch hour, McWilliams also shined shoes
for others and was paid therefore.
About noon of September 30, while on his lunch hour, McWilliams was engaged
in shining shoes and was observed in doing so by Thomas Curtin, Respondent's
resident manager, and VonReider. Curtin told him that he did not want any "more
shoe shining on. [his] time or the Company's time." McWilliams took his shoe
shining equipment home that evening and shined no shoes in the hotel thereafter.
n Respondent sought to minimize the effect of this commendation by a memorandum
from Cork to Predmore, dated May 13, calling her attention to poor condition of the
locker rooms. McWilliams, however, was not the only houseman employed by Respondent.
Respondent's Exhibit No 18 establishes that Joe Babino, Jr., another houseman, was given
a disciplinary notice by Hannan on September 10 for allowing a public restroom to remain
unclean Respondent's brief admits that Babino "was discharged shortly thereafter."
=The compunction Hannan entertained with respect to her unwillingness to demand
Adams' signature to two or three disciplinary notices because "it would have been a mark
against" her , apparently did not engender similar qualms with respect to McWilliams.
13 Cork testified he wanted to give McWilliams another chance notwithstanding his fur-
ther testimony that be had "to notify the housekeeper that the locker room was in a filthy
condition 20 or 25 times at least."
SHERATON-HOUSTON CORPORATION 1203
Curtin testified that the incident described above occurred between 2:15 and 2:45
p.m. VonReider, however, testified that it was "after noon, possibly one o'clock."
McWilliams placed the incident as having occurred during his noon lunch hour
and I credit his testimony that, it took place during that period. He had, within
the preceding 3 weeks, been the subject of two disciplinary notices by Hannan and
interrogation by Cork about his union, activities. McWilliams impressed me as a
meek and compliant servant who would not, certainly under the foregoing circum-
stances, risk the further displeasure and criticisms of his employer and the possible
loss of his job by engaging in a personal venture on company time.
In any event, and even if it be assumed that he was so engaged, on company time,
no reasonable explanation was offered by this incident should have "precipitated"
McWilliams' transfer to the job as a lobby porter. If, in fact, McWilliams was as
incompetent as Hannan claimed, and/or was guilty of shining shoes during work-
ing hours, company policy permitted his discharge and Respondent would have been
without legal liability under the Act in doing so.
Respondent, in its brief, and Cork by his testimony, contend that Cork did not
discharge him "because he did not want to become involved in an unfair labor prac-
tice." Respondent was, however, on that very day, already involved in an unfair
labor practice charge-Case No. 23-CA-1686-filed on September 27, 1963, charg-
ing Respondent with the discriminatory termination of two other employees and a
threat to discharge McWilliams because of his union membership and activities.
And, what aura of plausibility to Cork's testimony that might be engendered by
reason of the foregoing circumstance is completely dispelled by my appraisal of
Cork. He impressed me- as a forceful business executive who could not be in-
timidated, or diverted from discharging an alleged highly incompetent and dishonest
employee by a pending unfair labor practice charge, or the possibility that another
such charge might be filed.
For the reasons stated above, P-reject the reason assigned by Respondent for
McWilliams' transfer to the job of, lobby porter of October 1.14 It appears rea-
sonable to assume that an order to stop the practice would normally suffice. On
the entire record,- I find that McWilliams was transferred from his job as a house-
man on the fourth floor, where the restrooms and lockers of Respondent's approxi-
mately 400 employees were located and where he -was carrying on his union activ-
ities, to the ground floor lobby where he had practically no employee contacts and
could be kept under surveillance as, indeed, he was.15
Though McWilliams accepted the transfer without protest, the change in work-
ing hours imposed a hardship on him: As a houseman, his workday began at
7 a.m. but Cork told him that, as lobby porter, he would be expected to report at
2 p in. As a result, because his wife was also employed during the evening, McWil-
liams found it necessary to arrange for a babysitter to take care of his children.
Though he 'was given some assurance by Charlie Williams, his supervisor, that he
might within a few weeks be transferred to the day shift, he remained on the night
shift until he was discharged on December 3.
On his first day as a lobby porter, McWilliams went to the linen room at. 1:50 p.m.
to pick up a lobby porter's uniform but found that it required some alteration.
Being due to report at 2 p.m., he donned his houseman's uniform and went to the
lobby. There, he encountered Cork who asked him why he was not attired as a
lobby man. When McWilliams began to explain that it required alterations, Cork
interrupted him and said: "I don't want to hear nothing that you have to say.
You're going to comply with the rules and regulations of the hotel. You have been
giving us lots of trouble around here, and I think that we have been good to you.
If you don't like the way that I am telling you, or the way that we are doing around
here, you know what you can do. You can just hit that door."
Cork testified that within 2 or 3 days after McWilliams was transferred to the
lobby on October 1 he began "noticing that the condition of the lobby [was]
deteriorating." He further testified that in the first part of November he and
VonReider inspected the lobby and found it was "not being cleaned properly .. .
14 Cork testified that both Curtin and VonRelder "came immediately to [his] office and
informed" him of the incident. Unless these two officials were searching to find cause for
disciplinary action against McWilliams, the seriousness of this infraction of Respondent's
rules, if indeed it was, would hardly seem to require their running immediately to the top
executive to report the incident
w It will be recalled that it has previously been found that Bell Captain Armstrong, sta-
tioned in the lobby, told McWilliams, on or about November 12, that he had been in-
structed by Cork to keep McWilliams "under pressure and surveillance . . . on account of
that union business."
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dust over the entrance to the lobby . . . and finger prints on the revolving
doors eight planters outside the hotel . . . were littered [with] gum wrappers,
cigarette butts, a couple of coke bottles . . . candy bar wrappers , pieces of paper."
He further testified that he "probably asked " VonReider if he knew who was on
duty at that time , and that VonReider "checked" with Williams and later reported
that it was McWilliams . VonReider , however , testified that this inspection was made
about 10 a.m., 4 hours before McWilliams was scheduled to report for duty.
Cork was next asked whether he recalled "an incident on or about November 27
involving McWilliams and Etheridge ." His only response thereto was that he
"pointed out [ to McWilliams and Etheridge ] the area that [they] had to pay par-
ticular attention to." He further testified that he was "sure" that VonReider was
in the reservation office at the time, and that he merely told him that it seemed
"impossible to keep the lobby and the outside of the building neat and orderly. "
Cork gave no specific testimony as to the conditions that prompted him to speak
to either McWilliams, Etheridge , or VonReider While testifying concerning this
incident , he could not "recall whether Mr. Curtin'was• present at the time or , not."
However, VonReider , when asked whether ,on November 27 be -was "present-in the
lobby of the hotel on that date with Mr. Cork ," testified that while Cork was stand-
ing "by the front desk" he was asked by Cork whether he had checked the lobby
area and whether he remembered their "little tour a short while ago ." VonReider
further testified that at Cork's suggestion both men "went through the same thing
practically [ they] had gone through before [and ] found practically the same thing
as [they] found before, it was a mess." He further testified that he was confused as
to whether it was on this occasion , or "another time, when Mr . Curtin [the resident
manager] was with [them ] on the same thing."
Curtin testified that he was "present in the lobby" at 2 p.m. on November 27 with
Cork and VonReider , that Cork showed him the potted plants in the lobby, that he
and Cork , with no mention of VonReider , inspected the eight flower beds oh the out-
side and found "cigarette butts, cigars twisted up,'cigarette packs, and so forth . . . in
all eight beds . and some of the paper looked as though it had been wet and
dried ." He did not talk to McWilliams about that condition , and did not see or
know whether Cork did, but was "assuming" that Cork did.
On the same day, November 27, following a memorandum from Cork to Charlie
Williams, Respondent's security officer and supervisor of the lobby porters, the latter
caused a notice addressed to the "lobby porters" to be posted at the bell captain's desk
advising them that this notice would be the "last warning" they would receive about
keeping the lobby and hotel entrance clean , and that the next notice would be a
termination notice.
Cork testified that about 11 : 15 p.m . on December 2, which time at that point in
his testimony was definitely fixed by him as the occasion "when [ he] had Mr. Curtin"
with him , is he inspected and "found the planters inside and the planters outside in a
deplorable condition, an accumulation of debris" which he thought "had been there
at least a day or so." He further testified he was "sure " that about 10 a.m. of the
next day, December 3, he told Williams that something would have "to be done
about the lobby porters" and that following a discussion with his attorneys that
afternoon he told Williams to " let Clarence McWilliams go." He first denied that
he told Williams "to discharge" Etheridge , but then added that he told Williams-that
they "might as well get two new lobby porters and make a clean sweep." During
his cross -examination , 'however, he retracted the portion of his earlier testimony that
he was with Curtin on the night of December 2 and testified that "on the evening of
the 2nd . [he ] was with Charlie Williams [his ] security officer and that [was]
when [he] told him to discharge the lobby porters."
Cork was not satisfied to exaggerate his own complaints concerning the condition
of the lobby and entrances to the hotel but "gilded the lily" by testifying that, in
October and November , "many guests" complained that while they "had a pleasant
stay in [the ] hotel, enjoyed the food , [ they] noticed the lobby was dirty." To be-
lieve that a Sheraton Hotel manager , with 400 employees at his command, would
allow such a condition to continue for 2 months without taking prompt and drastic
action to remedy that situation is, indeed , stretching credulity to the breaking point.
I do not credit Cork's testimony concerning his alleged conversations with guests,
the conditions he found in November or at about 11:15 p.m. on December 2, nor his
testimony that he ordered McWilliams ' discharge because he failed to keep the lobby
and outside planters clean of debris . Not only did Cork's demeanor , while testifying,
fail to engender confidence in the truthfulness of his testimony , but on the contrary,
is Curtin , in his testimony , made no mention of an inspection tour on December .2
SHERATON-HOUSTON CORPORATION 1205
he appeared to be uncomfortably struggling and grasping to make certain that his
decision to rid Respondent of McWilliams not be disturbed. Nor can I ignore his
gross exaggerations and inconsistent testimony in appraising the truthfulness of the
remainder of his testimony. Also of significance is Respondent's failure to produce
any witness who cleaned up the alleged debris which Respondent, in its brief, asserts
was still there at 10 a.m. on December 3.17
McWilliams testified, and I credit his testimony, that during his shift on Decem-
ber 2, he checked the outside flower boxes about every 30 to 40 minutes, the last time
at 10:30 p.m. and found no trash. He further testified, and this without contra-
diction, that Williams, his supervisor, told him that he "was doing a wonderful job
and, at the time [he] was discharged [Williams] also told [him] that . Mr. Cork
[has] got it in for [him] about that Union"; that Williams, personally, did not care
bow many unions he belonged to, "but the man is putting pressure on" him and that
he would have to let him go. Respondent's failure to call Williams as a witness
warrants the inference that, if called to testify, his testimony would not be favorable
to Respondent. Interstate Circuit v. U.S., 306 U.S. 208, 225-226; N.L.R.B. v.
Remington Rand, Inc., 94 F. 2d 862, 871 (C.A. 2), cert. denied 304 U.S. 576;
N.L.R.B. v. Sam Wallick and Sam K. Schwalm, d/b/a Wallick and Schwalm Com-
pany, et al., 198 F. 2d 477, 483 (C.A. 3); N.L.R.B. v. Ohio Calcium Company, 133
F. 2d 721, 727 (C.A. 6).
McWilliams, by his demeanor and frankness impressed me most favorably as to the
truthfulness of his testimony. Thus, he admitted that about November 26 VonReider
and Cork stopped him and Etheridge in the lobby where they were, and "for the first
time" they were told by Cork that "if he [again] found gum wrappers at the front en-
trance and found the flower pots outside to be filthy" they would find their checks
waiting for them. He further admitted that on the same day, Armstrong, the bell
captain, presented both lobby porters with a written notice signed by Williams, dated
November 27, and containing substantially the same admonition reported immedi-
ately above. Cork, however, testified that on November 27 he sent a memorandum
to Williams stating' "that this was the last time [he] was going to warn the lobby
porters to keep the lobby and the outside area clean " In view of what Williams
told McWilliams on December 3 it is reasonable to infer and conclude that Williams'
memorandum of that day was prompted only by Cork's memorandum of the same
day.
I find it incredible that if McWilliams' work performance as a houseman was as
poor as Hannan and Cork testified, and his performance as a lobby porter as wretched
as claimed by Cork, Curtin, and VonReider, Respondent would not have discharged
him long before December 3 regardless of any pending unfair labor practice charge
which Respondent contends stayed Cork's hand. It must be remembered that we
are dealing here with the lobby and entrance of a Sheraton Hotel, the showcase of
that national institution which prides itself on the cleanliness of its premises. I can-
not believe that if, as Cork testified, the condition of the lobby began deteriorating
2 to 3 days after McWilliams' transfer, that guests complained about the condition
of the lobby in October and November, that early in November he found the lobby
"not being cleaned properly . . . dust over the entrance to the lobby, finger prints
on the revolving doors, eight planters outside the hotel littered with gum wrappers,
cigarette butts, a couple of coke bottles, candy bar wrappers, pieces of paper," that
Cork would not more promptly dispense with McWilliams' services.18
The timing of the discharge on December 3 and several other incidents are
significant. It will be recalled that McWilliams was transferred from the fourth
floor *to 'the lobby, where he could be watched, shortly after Cork interrogated him
about his union activities, and only 3 days after the Union filed its petition to be
certified as bargaining representative of Respondent's employees. The discharge
on December 3 occurred only a few days following the issuance of the Board's
Order directing that the requested election be conducted.
On the entire record I am convinced and find that McWilliams was discharged
on December 3 not for the reasons assigned by Repondent, but in order to dis-
courage its remaining employees from voting for the Union in the approaching elec-
tion. In any event, and even if it be assumed that McWilliams' work performance
17 On the other hand, it was literally impossible for the General Counsel to produce
any testimony, other than that of McWilliams, that conditions were not as portrayed by
Cork on the evening of December 2 or the morning of December 3.
1s Respondent, in its brief, states that the "rate of employees turnover so far has been
approximately 250 percent. From the opening [in June 1962] until February 13, 1964,
1,082 employees quit or were terminated for various reasons."
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was not entirely satisfactory, I am unhesitatingly convinced and find that he was
not discharged for that reason, but that this circumstance was seized upon by Re-
spondent as a pretext to give its action an aura of plausibility.
Whatever lingering doubt, though I find none, that the record may present as
to Respondent's motive in discharging McWilliams is completely dispelled by the
testimony of Booth, whose reliability as a witness has already been noted. She
testified, and I credit her testimony, that "right after" Etheridge was fired, she asked
Brown why he was fired and he told her it was "to make the firing of Clarence
McWilliams look legal." When she asked Brown "what possible reason could they
give for firing" Etheridge, Brown "kind of laughed, and said it was something about
finding a cigarette butt in a flower pot at the entrance of the hotel."
4. Daniel Etheridge
Etheridge was hired by Respondent as a lobby porter on September 29, 1962,
and discharged on December 3, 1963. Prior to his employment by Respondent he
had worked at another hotel in Houston for 11 years. While working for Re-
spondent, McWilliams asked him to sign a union card but he was "afraid" to do so
and did not become a member thereof.
December 3 was his day off and he did not report at the hotel on that day. When
he came to work before 7 a.m. on December 4, he found a slip attached to his
timecard indicating he was to see VonReider. Upon learning that he was being
discharged, he asked VonReider why he was terminated and was told that Cork
"was very unhappy about the plants on the outside." VonReider apparently must
have said something about the condition of the planters during the preceding day
because Etheridge remonstrated that he did not work that day, a protest which was
of no avail.
Cork testified that Etheridge "was a perfectly satisfactory employee . . prior to
McWilliams' coming into the lobby, but . McWilliams had some influence on
him." And, though Etheridge, as well as McWilliams, admitted that on Novem-
ber 27 Cork talked to them about the condition of the lobby and threatened them
with discharge, I am not persuaded that either the criticism, or the threat, was in fact
justified by the condition of the lobby or the outside planters. Instead, I find that
the conditions prevailing at the time of the criticism and warning were purposely
exaggerated to lay a foundation for the dismissal action that followed and were part
and parcel of a scheme to create a false but plausible explanation for the discharges
that were imposed a few days later.
Though the foregoing finding has reference to both McWilliams and Etheridge,
it is acutely significant with respect to Etheridge. He was a "perfectly satisfactory"
lobby porter for the entire year prior to the time McWilliams came into the lobby
on October 1, and it was only on and after November 27 that his services deterio-
rated to such an extent that it was necessary to discharge him within a week there-
after. No explanation was offered why Williams, the immediate supervisor of
Etheridge, as well as McWilliams, was not called to testify concerning their work
performance and, as heretofore been noted, it can reasonably be inferred that, if
called, his testimony would not be favorable to Respondent.
Cork testified that it was when he observed the alleged "deplorable condition"
of the plants or planters both inside and outside the lobby at 11:15 p.m. on Decem-
ber 2 that he told Williams to discharge both porters.ls Respondent's own records,
however, establish that Etheridge checked out of the hotel at 3:40 p.m. on that
day, that he did not report back to work until December 4, and that he could hardly,
therefore, he held responsible for conditions that prevailed at 11:15 p.m. on Decem-
ber 2. In view of Etheridge's "perfectly satisfactory" performance to within a short
period prior to his discharge, and the paucity of credible evidence that his perform-
ance was unsatisfactory, I find that Etheridge was not discharged for the reasons
assigned by Respondent. Instead, I find that he was fired for the reasons asserted
by Brown to Booth, that "they fired [Etheridge] to make the firing of McWilliams
look legal." Wonder State Manufacturing Co. v. N.L.R.B., 331 F. 2d 737 (C A. 6);
Majestic Molded Products, inc. v. N.L.R.B., 330 F. 2d 603 (C.A. 2); Arnoldware,
Inc., 129 NLRB 228; Englewood Lumber Company, 130 NLRB- 394;' Superex
Drugs, Inc., et al., 143 NLRB 110. .
In arriving at my ultimate conclusion with respect to the discharge of all four
employees involved herein I have not been unmindful of Respondent's, contention,
19 His inconsistent testimony pertaining to his conversation, with Williams ' has previ-
ously been pointed out.
SHERATON-HOUSTON CORPORATION 1207
in its brief, "that not one of the alleged discriminatees took the stand to, rebut the
testimony of Respondent's witnesses concerning the reasons for their termination." 20
Assuming, arguendo, that the state of the record pertaining to the work perform-
ance of all four of these dischargees is as claimed by Respondent, I nevertheless
conclude that this circumstance does not require a different conclusion than that
reached by me. The contention of Respondent in this respect "is an ancient fallacy
which somehow persists despite the courts' numerous rulings to the contrary. It
overlooks the significance of the carriage, behavior, bearing, manner, and appear-
ance of a witness-his demeanor-when his testimony is given orally in the pres-
ence of the trier of facts. As stated by the Court of Appeals for the Second Cir-
cuit in a recent case, Dyer v. MacDougall, 201 F. 2d 265, 269: `Moreover, such
evidence may satisfy the tribunal, not only that the witness' testimony is not true,
but that the truth is the opposite of his story; for the denial of one, who has a
motive to deny, may be uttered with such hesitation, discomfort, arrogance or
defiance, as to give assurance that he is fabricating, and that, if he is, there is no
alternative but to assume the truth of what he denies."' NL.R.B. v. Howell
Chevrolet Company, 204 F. 2d 79, 86 (C.A. 9), affd. 346 U.S. 482.21
One or more of the characteristics which the court in Howell Chevrolet deemed
significant enough to reject uncontradicted testimony in that case were also displayed
by Brown, Hannan, VonReider, and Cork. On that appraisal, the circumstances sur-
rounding the discharge of all four of these employees, and Booth's testimony, Yarn
satisfied that their "separation from employment, just as the crucial stage in the cam-
paign of the union to organize the [hotel] had been reached, was the proximate re-
sult of [the] union activities" of Charles, Adams, and McWilliams. I. C. Sutton
Handle Factory v. N.L.R.B., 255 F. 2d 697, 698 (C.A. 8); see also Martin Sprocket
& Gear Co., Inc. v. N.L.R.B., 55 LRRM 2739 (C.A. 5, March 19, 1964).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent found to constitute unfair labor practices as set forth
in section III, above, occurring in connection with the operations of Respondent as
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
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent unlawfully discriminated in regard to the hire and
tenure of employment of Charles, Adams, McWilliams, and Etheridge, I recommend
that Respondent offer each of them immediate and full reinstatement to their former
or substantially , equivalent position, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of earnings they may have
suffered by reason of the discrimination against them, by the payment to each of a
-sum of money equal,to that he or she normally would have earned during the period
of discrimination, with backpay and interest thereon computed in a manner pre-
scribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumb-
ing & Heating Co., 138 NLRB 716.
In view of the serious nature of Respondent's unfair labor practices, it will be
recommended that it cease and desist from in any manner infringing upon the rights
of employees guaranteed by Section 7 of the Act. -
Upon the basis of the foregoing findings of fact, and on the entire -record.in the
case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a)(1) of the Act.,
20 In the following sentence , however , Respondent concedes that "McWilliams ' testi-
mony on direct and cross -examination did touch 'on most of the circumstances covered by
Respondent ' s witnesses."
21 In a later case , Bon Hennings Logging Co . v N.L.R.B., 308 F. 2d 548, 554 (C.A. 9),
the same court of appeals noted that " the Supreme Court In a recent opinion (N.L.R.B. v.
Walton Manufacturing Company, Loganville Pants Co., 369 U S. 404 ) has laid to rest,
quite properly , any contention that the uncontradicted evidence of an employer as to his
-motive for a certain course of action must be accepted by the Board . No one but the
employer or his confidants are ordinarily in a position to give direct evidence of his mo-
tive and , to understate the case, It Is unlikely that - unfavorable evidence would be
forthcoming."
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discharging Charles, Adams, McWilliams, and Etheridge, Respondent en-
gaged in unfair labor practices proscribed by Sections 8(a)(3) and 8(a)(1) of
the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of Sea--
tion 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and the
entire record, it is recommended that the Respondent, Sheraton-Houston Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Directly, or by implication, promising benefits to its employees to discourage
union membership and activity.
(b) Interrogating its employees concerning their union membership, activities, or
sympathies, in a manner constituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act.
(c) Surveillance of the union activities of its employees or creating the impression
that they are being watched.
(d) Discouraging membership in, or activities on behalf of, Hotel, Motel and
Club Employees Union, Local 251, AFL-CIO, or any other labor organization, by
discriminatorily discharging any of its employees or by discriminating in any other
manner in regard to their hire and tenure of employment or any term or condition
of employment.
(e) In any other manner interfering with, restraining, or coercing its employees.
in the exercise of rights under Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer Johnny Charles, Theresa Adams, Clarence McWilliams, and Daniel
Etheridge immediate and full reinstatement to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and privileges, and make
them whole for any loss of pay suffered by them as described in the section of this-
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the rights of employment under the terms of this Recom-
mended Order.
(c) Post at its hotel in Houston, Texas, copies of the attached notice marked
"Appendix." 22 Copies of this notice, to be furnished by the Regional Director for
Region 23, shall, after being duly signed by a representative of Respondent, be posted
by Respondent immediately upon receipt thereof, and be maintained by it for 60 con:
secutive days thereafter, in conspicuous places, including all places where notices to
its employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that such notices are not altered, defaced, or covered by other material.
(d) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of this Decision, what steps Respondent has taken to comply therewith.23 Un-
less Respondent so notifies the said Regional Director, it is recommended that the
Board issue an order requiring Respondent to take the aforesaid action.
21 If 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree of
the United States Court of Appeals, Enforcing an Order" for the words "a Decisions
and Order."
23 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 23, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
AMERICAN ART CLAY COMPANY, INC. 1209
WE WILL NOT interrogate our employees in connection with their union
membership , activities , or sentiments , in a manner constituting interference,
restraint , or coercion under the National Labor Relations Act.
WE WILL NOT, directly or indirectly , promise benefits to our employees in
order to effect their free choice of a collective -bargaining representative.
WE WILL NOT engage in surveillance of the union activities of our employees,
or create the impression that they are being watched.
WE WILL NOT in any manner discriminate against any employee because
of his membership in, or activity on behalf of , Hotel , Motel and Club Em-
ployees Union, Local 251, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of the right to self-organization , to form organiza-
tions, to join or assist the above-named or any other labor organization, 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 , or to refrain from any or all such activities.
WE WILL offer to Johnny Charles, Theresa Adams, Clarence McWilliams,
and Daniel Etheridge immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to seniority and other
rights and privileges , and make them whole for any loss of pay suffered as a
result of our discrimination against them.
SHERATON-HOUSTON CORPORATION,
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.
Employees may communicate directly with the Board 's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No.
CA 8-0611, Extension 4271, if they have any questions concerning this notice or
compliance with its provisions.
American Art Clay Company , Inc. and Ludene Burnett
American Art Clay Company , Inc. and Local 135, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America. Cases Nos. 25-CA-1775, P25-CA-1775-2, and
925-CA-1819. September 02, 1964
DECISION AND ORDER
On April 7, 1964, Trial Examiner Jerry B. Stone issued his De-
cision 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to certain por-
tions of the Trial Examiner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
148 NLRB No. 124.