Skirvin Hotel

National Labor Relations Board - Board Decisions

Jul 31, 1961

132 N.L.R.B. 600 (N.L.R.B. 1961)

£OO DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
5. By offering to engage the aforesaid employees as independent brokers after
idischarging them as salesmen , in order to avoid its responsibilities under the Act
and to deprive the employees of their rights under. the Act, Respondent - has engaged
in and ,is engaging in unfair labor practices within the meaning of Section 8(a) (1)
and (3) of the Act.
6. By making mandatory the requirement that the salesmen call in daily between
8 and 8:30 a.m ., at the location of the first customer, as an act of reprisal because
of their union membership and activity, Respondent has engaged in and is engaging
-in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the
.Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
,merce within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not violated Section 8 ( a) (1) and (3) of the Act by soliciting
customers to send orders directly to Respondent , and discontinuing commissions
on such orders; refusing to fill sales orders brought to it by its salesmen thereby
,eliminating commissions payable to the salesmen ; or conditioning reemployment
on acceptance of reduced commissions and earnings , nor has it engaged in con-
duct violative of Section 8(a)(3) and (4) of the Act by offering to engage as
brokers the aforesaid employees Manuel Alvarez, Goyco, Marti, Monllor, Nieves,
Ruiz, and Seijo provided they withdrew the unfair labor practice charges they
filed against Respondent.
[Recommendations omitted from publication.]
James Hotel Company, a corporation , d/b/a Skirvin Hotel and
Skirvin Tower and Hotel & Restaurant Employees and Bar-
tenders International Union , AFL-CIO, Local No. 246. Case
No. 16-CA-1378. July 31, 1961
DECISION AND ORDER
On December 20, 1960, Trial Examiner Stanley Gilbert 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 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 the brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.' -
1 The Respondent excepts to the finding of the Trial Examiner that Respondent is
-engaged in commerce within the meaning of the Act, and that assertion of jurisdiction is
-warranted . As Respondent purchased goods and merchandise in excess, of $10 ,000 directly
from outside Oklahoma ; wherein Respondent is located , and as such is more than de
132 NLRB No. 34.
SKIRVIN HOTEL AND SKIRVIN TOWER
ORDER
601
Upon the entire record in the 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, James Hotel
Company, Oklahoma City, Oklahoma, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in and activities on behalf of Hotel
& Restaurant Employees and Bartenders International Union, AFL-
CIO, Local No. 246, or any other labor organization, by discriminating
in regard to the hire and tenure of employment of any employees, or
any term or condition thereof.
(b) Coercively interrogating employees regarding union member-
ship or activities or threatening its employees with economic reprisals,
should the Union be successful in the solicitation of memberships or
should they continue participating in organizational activities, or in
any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, Local No. 246, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection
as guaranteed in Section 7 of the Act, or to refrain from any and all
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Arthur Paradis, Mary Carter, Alma Mitchell, Claud-
etta Sadler, Constance Arendell, and Ruby Burke immediate and full
reinstatement to their former or to substantially equivalent positions
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of earnings that they may. have suffered
as a result of the discrimination against them, as provided in the sec-
tion of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
minimis, the Board finds that it has legal jurisdiction . Arlington Hotel Company, Inc.,
126 NLRB 400, 401 . As the record in the instant case shows that Respondent has a gross
volume of business annually in excess of $500,000 and as the Board found in James Hotel
Company, Cases Nos . 12-RC-2760 and 16-RC-2770 ( not published in NLRB volumes),
that 75 percent of Respondent 's guests remain less than 1 month, the Board finds that it
will effectuate the purposes of.the Act to assert jurisdiction herein . Floridan Hotel of
Tampa, Inc., 124 NLRB 261.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agents, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due and
the right to reinstatement under the terms of this Order.
(c) Post at its hotels in Oklahoma City, Oklahoma, copies of the
notice attached hereto marked "Appendix." 2 Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent, be posted immediately
upon receipt thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places where notices to employees are cus-
tomarily posted. Respondent shall take reasonable steps to insure
that such notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
2 In 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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO, Local No. 246, or any other labor organization,
by discriminating against our employees in regard to their hire
and tenure of employment or any term or condition thereof.
WE WILL NOT coercively interrogate our employees regarding
their union affiliation or organizational activities.
WE WILL NOT threaten our employees with economic reprisals
should they select Hotel & Restaurant Employees and Bartenders
International Union, AFL-CIO, Local No. 246, or any other labor
organization to represent them as their bargaining representative,
or should they engage in any activities on behalf of said Union
or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self -organi-
zation, to form labor organizations, to join or assist Hotel &
Restaurant Employees and Bartenders International Union,
AFL-CIO, Local No. 246, or any other labor organization, to
bargain collectively through representatives of their own choos-
SKIRVIN HOTEL AND SKIRVIN TOWER 603
ing, and to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as author-
ized in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer to Arthur Paradis, Mary Carter, Alma Mitchell,
Claudetta Sadler, Constance Arendell, and Ruby Burke immedi-
ate and full reinstatement to their former or substantially equiva-
lent positions without prejudice to their seniority or other rights
and privileges, and we will make them whole for any loss of earn-
ings suffered as a result of our discrimination against them.
All our employees are free to become or remain or to refrain from
becoming or remaining members of Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, Local No. 246, or any
other labor organization.
JAMES HOTEL COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representa tive) ( 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
Charges having been filed against the James Hotel Company , a corporation doing
business as Skirvin Hotel and Skirvin Tower (hereinafter referred to as Respondent or
Company), by Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, Local No. 246 ( hereinafter referred to as the Union), the General Counsel
issued a complaint , alleging that the Respondent has engaged in unfair labor practices
within the meaning of the National Labor Relations Act, 61 Stat. 136 (hereinafter
referred to as the Act).
With respect to the unfair labor practices , the complaint alleges, in substance, that
the Respondent violated Section 8(a) (3) of the Act by discharging Arthur Paradis on
May 5, 1960 , Mary Carter, Alma Mitchell , Claudetta Sadler on June 7, 1960, Con-
stance Arendell on June 10, 1960, and Ruby Burke on June 16, 1960, "for the reason
that they joined or assisted the Union or engaged in other concerted activity which is
protected by the Act." It further alleges that Respondent violated Section 8 (a) (1)
of the Act by the foregoing and by various enumerated acts of alleged interference
with, restraint , and coercion of its employees in the pursuance of the rights guaran-
teed them under the Act. The Respondent admits discharging Paradis, Carter, Mitch-
ell, and Sadler , but denied such action was for the reason alleged. Respondent denies
that it discharged Arendell and Burke. It further denies all allegations with respect
to the violation of Section 8 (a) (1) of the Act. It also contends that it is not engaged
in commerce within the meaning of the Act.
Pursuant to notice, a hearing was held on September 19, 20, and 21 , 1960, at
Oklahoma City, Oklahoma, before the duly designated Trial Examiner . All parties
were represented at the hearing and were afforded full opportunity to examine and
cross-examine witnesses and to introduce evidence bearing on the issues . All parties
waived oral argument . General Counsel and Respondent submitted briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
James Hotel Company, an Oklahoma corporation having its principal office and
place of business in Oklahoma City, Oklahoma, is engaged in the business of operating
hotels in said city and services incidental thereto including restaurant facilities. Re-
spondent admits that during the 12-month period prior to the issuance of the com-
plaint herein, which I find to be a representative period, it did a gross volume of busi-
ness in excess of $500,000 and that it purchased goods and merchandise of a value
in excess of $10,000 directly from sources located in States other than that of
Oklahoma.
Respondent denies that the above facts establish Board jurisdiction, contending
that the amount of out-of-State purchases is de minimis . I find that the Respondent
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and
that assertion of jurisdiction is warranted.I
H. THE LABOR ORGANIZATION INVOLVED
The Union, Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, Local No. 246, as admitted by Respondent , is a labor organization within
the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It appears that Arthur Paradis, employed in the job classification of dishwasher
by Respondent from the middle of November 1959 to May 5, 1960, was the prime
mover in the instigation and waging of a campaign by the Union to organize the em-
ployees of the Respondent. About the middle of March 1960 he started talking to
fellow employees about the desirability of unionization. He contacted the president
of the Local Union who arranged for him to meet the "hotel international organizer,"
Newt Ellenbarger, in the latter part of April 1960. In the course of his conversation
with Ellenbarger, Paradis agreed to solicit fellow employees to sign union cards.
Shortly thereatter, on April 29, Ellenbarger gave him 25 cards which he returned
signed on May 2. At that time Ellenbarger gave him a greater number of cards
which he distributed among employees during that week and at the end of the week,
May 7, he turned over to Ellenbarger those which had been returned signed to him,
an additional 25 to 30 cards.
On May 1, or shortly prior thereto, he gave a card to Mary Carter who was em-
ployed by Respondent since 1951 as an elevator operator and then dispatcher. While
she was looking at the card, which Paradis had just given her, William McCauley,
Respondent's superintendent of services (admittedly a supervisor), asked her what
she was doing. She showed him the card and informed him that Paradis had told her
that the Union was trying to organize the employees. McCauley asked her what union
it was and cautioned her not to do anything until she "found out more about it."
McCauley testified that he did not remember whether Carter told him where she got
the card, but said that he did read it and caution her, as she had testified. When she
returned her signed card to him, Paradis asked Carter's aid in distributing cards and
before his discharge on May 5, she turned over to him about 20 to 25 signed cards.
On May 2, Dan James, president of the Company, summoned McCauley to his
office; McCauley testified as follows to their conversation:
Well, he says, "Come in and sit down," and I sat down. And he says, "I get
back here from the Texas hotel convention and a turmoil about the union in the
hotel." He said, "Mac, you have been around here a long time, you know what
goes, or you ought to know what goes," and he says, "If I don't know what goes,
as far as you are concerned there's going to be some changes made." I told him
that I didn't know what goes.
He says, "Well, there's union activities going on," and then he asked me about a
union meeting. I knew nothing of a union meeting.
He said, "Well, there is a meeting I think to be held tonight," and he says,
"Isn't there some hall around here somewheres," and I know of a union hall on
Walnut and I told him yes, that was the hall that I pass each day to and from
work, and he says, "Possibly that's where it is." So he says, "See what you can
find out."
That night McCauley drove his car to the vicinity of the union hall and parked for
about 20 to 25 minutes where he could observe the entrance. There were no lights on
1 In Southwest Hotels, Inc., 126 NLRB 1151 , the Board asserted jurisdiction where the
amount of out-of-State purchases was only $7,000.
SKIRVIN HOTEL AND SKIRVIN TOWER 605
and nobody entered , so he returned to work. The next day he inquired of various
employees what they knew about the Union , but was unsuccessful in gaining any
information until he "got to one fellow ," a porter named Harding, who informed him
that the meeting had been held on Sunday night, the night prior to his observation
of the union hall. He asked Harding if Mary Carter had been there and was in-
formed that she had not attended but that there were "a lot of other people there
from all departments ." McCauley then related what he had discovered to Roy
Pool, Respondent 's resident manager, and requested that he relay the information
to Dan James.
On May 6, 1960, Hendrickson , manager of the Sooner Room ( the hotel dining
room) and admittedly a supervisor , summoned four of the counter and bus girls in
the hotel coffee shop and asked them if anybody had requested that they sign any kind
of a card. Bobbie Fay Tilley, one of the girls, testified:
And we said no. She said , "Well, if anybody asks you to sign a union card,
don't sign it ." She said , "They will pay more money , but by the time they take
out for your uniform and food you 'll make the same as you are making there,"
and then she said that I-well, if they asked us to sign a card just to tell them to
ask Mrs. Hendrickson about it.
This testimony , which I credit, was corroborated by Nora Mae Rockwell , one of the
three other girls to whom Hendrickson spoke. Hendrickson denied this incident,
which denial I discredit as I do a good part of her testimony for the reasons stated
hereinbelow . Tilley and Rockwell testified that they signed union cards given to
them by Mary Carter.
On or about that same day, May 6, Dan James summoned William H. Evans, bell
captain, to his office . Evans testified that in the course of their conversation James
asked him what he knew of Mary Carter's union activities . He answered that he had
no knowledge thereof. While he relayed to Carter instructions that James had given
that she was not to answer the service telephone , he did not inform her of the inquiry
into her union activities . Evans is admittedly a supervisor.
About the middle of May both Carter and McCauley testified that he asked her
what success she was having in obtaining signatures on the union cards and that she
reported progress.
On June 7, 1960 , McCauley notified Mary Carter and the two other elevator dis-
patchers , Claudetta Sadler and Alma Mitchell , that they were discharged.
On June 10 , Hendrickson called a meeting of waitresses , hostesses, and cashiers
employed by Respondent of which approximately 20 attended . Ruby Burke and
Constance Arendell testified substantially alike as to what was said at the meeting.
Arendell's testimony is as follows:
Well, she starts out with saying she was sorry the new girls had to be at that
meeting at that time, that we knew why that meeting was being called, that she
had reason to believe that there was a union man working in the hotel and she
wanted to know what we knew about it.
She said, "You girls know that I am not opposed to the union where it will
work." She said , "Some of you girls know that I have a brother that is a
business agent," but said, "it definitely won't work in the hotels in Oklahoma."
And then she said-wanted to know what we knew about it, and nobody said
anything , everybody was quiet , and Mrs. Daniels spoke up and she said , "Well,
Pat, you know they know about it. Why don 't you make them tell you what
they know?"
So she called on Delis Daily first and she asked her what she knew about it
and Delis said well, she didn't know anything about it, she'd rather she'd ask
somebody who could tell her more about it.
So then she asked me what I knew about it and I told her that I didn't know
anything about what was going on there in the hotel , but all I knew about was
what I had contact with when I worked on the West Coast, and I said, "For one
thing, you 'd work probably five days a week and be off two and you'd know
every week what your days was off and you wouldn 't be called in to work thirty
minutes before time, you could plan on your two days to do whatever you liked,"
and she said, "Yes, that 's probably true but it won't work here."
And then she said, "You know that your uniforms and your laundry and your
food that you have will be taken away from you," and I said, "Now, Mrs.
Hendrickson , that would be according to how the contract was written up."
And she said , "And the prices would have to go up and that would affect our
tips " She said , "It would work probably everywhere on the West Coast and
maybe in the East, but it definitely won't work in the hotels in Oklahoma."
(606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She said that Mr. James had worked too hard to build his business up here to
let the union come in and let them take over for them to tell them what to do.
Hendrickson admitted that she did ask at the meeting what the girls knew about the
Union's activities but stressed that she indicated her impartiality and minimized what
she had said with regard to the Union.
The last day Arendell worked was on June 10, 1960, the date of the aforementioned
meeting. She had requested (which request was granted ) that she be put on a shift
that had been worked by another employee, Maria Fleming, who had left shortly
prior thereto . Fleming worked as an "extra" averaging 3 to 4 days a week . Arendell
testified that she was never called to work after June 10.
On June 16 , 1960, Ruby Burke's day off, she was asked to report to work and
when she failed to come in , was told by Hendrickson 's assistant not to come back to
work until she saw Hendrickson . On June 20 , Arendell and Burke had a conversation
with Hendrickson to which they testified . Their testimony , which I credit, was
substantially the same. Burke testified to it as follows:
And so she said , . "I tried to warn you girls and tell you what was going to
happen to you, but," she said, "I have got my own job to hold and," she said,
"Mr. James wasn 't sitting on his kiester when he built this hotel and he's not
going to sit on his kiester and let the union take it over."
She said, "Ruby," said, "I like you and," said , "I like Connie , but," she said,
"I have got my own job to hold and there's nothing I can do about it."
So Connie said, "Well , that's why, then , because of what I said in the meeting
about having belonged to the union ," and she said , "Yes, but, . . . I believe it
will blow over."
I said , "Well, are you sure you have the right two girls in Connie and me?"
She said , "We are not sure that we have the right two girls but we are sure that
you were passing out union cards ," and she said , "There's a leak here in the
hotel that everything that's done or said is known ," but she said, "I don't think
the leak is in the coffee shop."
So I said, "But the reason we are being laid off is because of the union?" And
she said, "Yes , it is," but she said , "I do hope that it blows over ," and she said,
"You girls just go on," and said , "don't hang around the hotel talking union,"
and she said , "don't say anything about this conversation to anybody, and
call me."
Hendrickson denied that there was any mention of the Union in this conversation
but did not remember what they talked about. I do not credit her denial for reasons
stated hereinbelow.
A. Thei;violations of Section 8(a) (1) of the Act
The foregoing findings of fact establish that McCauley interrogated employees as
to the actions of the Union and activities of employees with regard to it. Hendrick-
son not only interrogated employees as to union activities , but also threatened
economic reprisals of "taking away" uniforms , laundry, and food. She also indicated
to Burke and Arendell that their employment was terminated because of their union
partisanship . In these respects Respondent violated Section 8 (a) (1) of the Act.
Although I have made findings of fact with respect to instances of interrogation
by James, I did not do so as a basis for a finding of violations of Section 8(a)(1),
since they were interrogations of supervisors . This is also true with respect to the
findings that James requested McCauley to "find out" what he could about a union
meeting and of McCauley 's subsequent abortive attempt to observe those employees
who attended . I do not believe that such actions, without more , interfered with or
restrained or coerced any of the employees in the exercise of rights guaranteed them
under the Act. These findings , however, are pertinent as evidence of the hostility of
the Respondent toward the Union and of its knowledge of the activities of the organ-
izational campaign of the Union and the participation therein of its employees.
B. The violations of Section 8(a) (3)
1. With regard to Arthur Paradis
Paradis, who was hired by Respondent as a dishwasher in November 1959, served
in that capacity for 2 weeks and then was transferred to the job of cooking in the
employees ' cafeteria , although still classified as a dishwasher . J. D. Barnes , chef and
supervisor of the department in which Paradis worked , testified that , since Paradis
seemed to be a "pretty good fellow ," he transferred him to the employees ' cafeteria.
SKIRVIN HOTEL AND SKIRVIN TOWER 607
As above indicated, Paradis was instrumental in enlisting the Union to organize
Respondent's employees and in the period of approximately a week between the initia-
tion of the organizational campaign and his discharge on May 5, 1960, was very
active in the distribution of union cards and solicitation of signatures thereon. During
that period he also was responsible for enlisting the aid of Mary Carter who was a
very effective campaigner for the union cause.
Paradis was hired by Pete Munoz, house steward, who was his immediate super-
visor. Munoz apparently was sympathetic to unionization. Paradis testified that
Munoz informed him that unionization of Respondent's employees had been tried
before unsuccessfully, but wished him luck and warned him not to let anyone in
management know of his activities or he would be "out on the street." Munoz
himself signed a union card, but later requested Paradis to return it, because he feared
that if this fact were discovered he would be "out of a job." These statements by
Munoz are further indications of Respondent's hostility toward the Union.
Early in the afternoon of May 5, 1960, the timekeeper questioned Paradis as to
whether he was the employee who was being discharged that day. When Paradis
stated that he had no knowledge of it, the timekeeper consulted Paradis' timecard
which Paradis was able to see contained the following notation: "For breaking too
many dishes and not following orders," under which was writen Barnes' name or
initials. His discharge was to be effective as of 3:30 p.m. that day.
Munoz told Paradis later that day: "I just got orders to have you fired. . . It's
not my fault, Art . . . I know you have been doing good work down there." To this
Paradis replied that he thought he knew the reason, that it was for his union activities.
Munoz apparently made no comment either affirming or denying the reason advanced
by Paradis.
Barnes testified that he decided to discharge Paradis on May 5 because he had
broken a considerable number of dishes that morning. He placed the dish-breaking
episode at 10:30 a.m., describing it as follows: "He [Parades] was pushing a load
of dishes down and he let them get away from him off onto the floor right at the
service table." Barnes took no action at the time, but testified that about 2 hours
later he told Munoz to fire Paradis because he had broken dishes. Later he made
the notation on Paradis' timecard setting forth the reason for the discharge. As to
the additional reason, of "not following orders," he stated that the "orders" were
not to stack dishes too high. He admitted that in his pretrial statement he ascribed
the additional reason of not storing provisions properly in the refrigerator, but in his
testimony he discounted this reason.
Paradis denied breaking any dishes on May 5 or, for that matter, for a considerable
period prior thereto. It is difficult to credit Barnes' testimony with respect to the
dish-breaking episode, for it contains too many inconsistencies and contradictions as
to what he did or did not observe, as to whether he did or did not see the dishes fall,
as to whether he knew or did not know what caused them to fall, and as to where
in the room the dishes were broken. Further, Barnes testified that there are about
1,500 plates broken a year, but he could not remember anyone else who was dis-
charged for breaking dishes. Barnes did not prove to be a very impressive witness.
From my observation of Paradis and Barnes on the stand and consideration of the
content of their testimony I cannot find that the dish-breaking episode did occur
and consequently it could not have been the reason for the discharge.
I am of the opinion that Paradis was discharged because of his union activities.
Although Barnes denies that such was the reason for terminating Paradis' employ-
ment or that he had any knowledge of Paradis' activities in the Union, in view of the
character of his testimony with regard to the dish-breaking episode, I cannot give
much weight to this denial. There is no direct evidence clearly disclosing that man-
agement had knowledge of Paradis' union activities. Although Munoz, a supervisor,
was informed of Paradis' activities, I do not believe it appropriate to infer, in view of
his prounion sympathies, that he transmitted his knowledge to Barnes or others in
management. Carter testified that she told McCauley of Paradis' organizational
efforts, but McCauley, whose testimony I have credited in its entirety, did not
remember that Carter had told him from whom she had received the union card in
her possession . However, direct evidence of what was in the employer's mind that
motivated the discharge is seldom attainable. N L.R.B. v. Bird Machine Company,
161 F. 2d 589, 592 (C.A. 1).
Paradis was considered a good worker and according to Paradis' testimony, it
appears that Munoz, his immediate supervisor, did not consider that he was being
discharged for inefficiency. As disclosed by McCauley's testimony, management,
as early as May 2, 1960, was aware of the fact that there was considerable union
activity among Respondent's employees and had been apprised of sufficient details
thereof to know that a union meeting was to be held and to suspect Carter, who was
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assisting Paradis in soliciting signatures on union cards. It would appear unlikely
that the sources of such information could have failed to know and to relay informa-
tion of Paradis' participation in the Union's campaign in view of the extent of his
activities. Therefore, I believe it appropriate to infer that Respondent had knowledge
of Paradis' activities on behalf of the Union. The record amply discloses Respond-
ent's hostility toward the Union. Furthermore, the foregoing findings and infer-
ences are "augmented" by my finding that "the explanation of the discharge offered
by the Respondent did not stand up to scrutiny." N.L.R.B. v. Bird Machine Com-
pany, supra. Thus, I am led to the opinion that Paradis was discharged in violation
of Section 8 (a) (3) and (1) of the Act.
2. With respect to Mary Carter, Alma Mitchell, and Claudetta Sadler
Carter, Mitchell, and Sadler were in the employ of Respondent as elevator dis-
patchers on the date of their discharge, June 7, 1960. Each had been hired and
worked as an elevator operator originally and then sometime later had been made a
dispatcher. Carter had been in the employ of Respondent continuously from Novem-
ber 1951, Mitchell from October 1959, and Sadler from August 1959.
General Counsel contends that Respondent, in order "to get rid of Mary Carter"
because of her union activities, used the pretext of abolishing the dispatcher jobs and
that, therefore, the discharge of all three was in violation of Section 8(a) (3) of the
Act. Respondent's position is that its action was not so motivated, but was merely
for economic reasons. Mitchell and Sadler testified that they were not active
in the Union but that they had signed union cards upon the solicitation of Carter.
That they had signed union cards is not material to the issue of their discharge, nor
does General Counsel so contend. It is only corroborative of the fact, which the
record amply discloses, that Carter was very active in the Union's campaign. She
was successful in obtaining 40 to 45 signatures on union cards prior to her discharge.
McCauley, supervisor of the department in which the dispatchers worked, testified
that about 6 p.m. on June 7, 1960, Roy Pool, Respondent's resident manager, told
him, "Mr. James instructed me to instruct you to get rid of the dispatchers." His
testimony continues: "I asked him, `All three of them?' I said, `All of them?' He
says, `Yes. You have three, don't you?' And I said, `Yes.' And he said, `Well,
that's what the number that I thought you had.' I said, `All right. What reason
shall I give them?' He says he didn't have a reason. He said at the time that Mr.
James told him that Mr. James was not in a mood to ask him a reason, so I said
I wouldn't." Shortly thereafter he relayed to the dispatchers his conversation with
Pool. They testified as to what he told them which was substantially a repetition
of his testimony of the conversation he had with Pool, with the exception of an
additional item to which Mitchell testified She, being then on duty, was the first
of the three whom he notified. She testified that after McCauley told her of his
conversation with Pool, "I asked him why couldn't we run the elevators and let
the newer girls go, and he said he wanted to know that from Mr. Pool and Mr. Pool
said Mr. James at that time wasn't in a mood to be questioned. it is not
clear that McCauley did ask Pool directly whether he could transfer the dispatchers
to operating elevators, but it is consistent with McCauley's testimony that he did not
transfer them, despite their seniority, because he did not think he had the authority
to do so. This also despite the fact that the hiring, firing, and assignment of per-
sonnel in his department in the past was his responsibility and was handled by him.
It is Respondent's position that McCauley was not directed to discharge three specific
people, but merely to eliminate the jobs of dispatchers.
In support of its position, Respondent offered the testimony of Dan James, president
of Respondent, and Roy Pool, resident manager of the Skirvin Hotel, to show that
in the interest of economy it was decided to dispense with elevator dispatchers. The
demeanor of these witnesses and the inconsistencies and contradictions in their testi-
mony persuade me to discredit the validity thereof.
James testified that the decision to eliminate the starters was made in an "executive
session" in April or May of 1960. Pool testified that the decision was made in an
executive session which he attended in the latter part of May or early June James
testified that it was his suggestion. Pool testified that he (Pool) suggested the action
be taken. Both James and Pool testified that the decision was made by James at
one of their regular executive sessions. Pool testified that these sessions were regu-
larly held on Wednesday and that-the evening of the day that the decision was made
he informed McCauley of James' decision. When pressed on cross-examination, he
insisted that he informed McCauley no later than 3 days after the decision was made.
When confronted with the fact that June 7, 1960, the day he did tell McCauley that
the dispatchers were to be eliminated, was a Tuesday, 6 days after the regular
SKIRVIN HOTEL AND SKIRVIN TOWER 609
Wednesday executive session , his only explanation was that he could have been
wrong in his testimony as to the day he "told McCauley." When asked whether he
remembered telling the counsel for the General Counsel during the pretrial investi-
gation that he "first heard" of the decision to eliminate the starters "when Mr. Stargel
came down to me and says, `Get rid of the elevator operators' and he did this on
June 6," Pool was evasive and stated that he did not remember the date. When
again questioned whether he remembered making such a statement, his answer
was, "I can't remember right off hand." On the other hand, James testified that he
told Pool to get rid of the dispatchers at an executive session in April or May.
Pool testified that he studied the actions of the dispatchers as a basis for his
recommendation that their jobs be eliminated. In the course of his observations,
he testified, he found them derelict in their duties, but he said nothing about their
faults either to them or their supervisor, which would appear to be inconsistent with
the normal action of a man in his position. There is no indication that any of them
was ever warned about the caliber of her work.
James was questioned extensively as to what process he went through which led
him to arrive at the decision that the dispatchers could be eliminated, but was vague
and evasive in his answers. He indicated that a study of their jobs had been made
and the problem had been discussed, but was unable to supply any details. The
record clearly discloses that McCauley, the supervisor of the department for 11 years,
had never been consulted as to advisability of eliminating dispatchers. It would
appear that, if a study had been made, the normal procedure would require con-
sultation with McCauley who, because of his position and experience, was most
conversant with the factors to be considered in determining whether dispatchers
were or were not needed. Respondent pointed out that since the elimination of dis-
patchers it has not been found necessary to restore the jobs. The wisdom of the
decision is not in issue , nor is it relevant to the question of what prompted Respondent
to arrive at it.
In his testimony James stated that he did not discuss the Union's activity with
anyone because he "didn't know of anything going on." He admitted that he did
have a conversation with Evans, the bell captain who testified that James had asked
him about Carter's union activities, but indicated that their conversation was about
hotel service. Later he indicated that he did ask McCauley what he knew about the
Union and that he had a similar conversation with Evans.
Carter testified to the following conversation with James about the middle of May:
Mr. James said, "Mary, I understand that you didn't get your life insurance
policy," and I said "No."
He says, "What happened?" I said, "Well, I don't know."
He says, "You have been here a long time, haven't you," and I said, "Yes,
eight and a half years."
He said, "You think you'll be here that much longer?" I said, "I don't know."
He said, "Well, I doubt it. I doubt it very much."
James admitted to having had a conversation with Carter about her insurance
and that he might have stated that he doubted she would be employed another 81/2
years, but explained that he might have said it "knowing that the starters were going
to be out." It would appear that, if he had in mind merely the elimination of the
jobs, he would not have thought that she would be discharged in view of the prob-
ability that she would be transferred to another position because of her long and
satisfactory service. The record discloses that as early as May 2, 1960, he was very
suspicious of her union activity and sought information about it from McCauley
and Evans.
In view of Respondent's hostility toward the Union, knowledge or strong sus-
picion of Carter's effective activity on behalf of the Union, and the far from im-
pressive testimony of James and Pool as to what prompted the instructions to
McCauley to "get rid of the dispatchers," I am of the opinion that General Counsel
has sustained his contention that the action was merely a pretext to "get rid of"
Carter because of her union partisanship. I believe McCauley correctly understood
the intent of the instructions given to him, that he was to discharge the three girls
who acted as dispatchers and that he did not have the choice of transferring them
to jobs of operating elevators, equivalent positions.
The discharge of Mitchell and Sadler, as well as that of Carter, was in violation
of Section 8(a) (3) and (1) of the Act, since all three discharges were illegally moti-
vated by the desire to "get rid of" Carter. Arnoldware, Inc., 129 NLRB 228; Heat
Timer Corporation,. 124 NLRB 1256, 1275: American Bottling Co., 99 NLRB 345,
352, enfd. F. 2d 421 (C.A. 5), cert. denied, 346 U.S. 921.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. With respect to Ruby Burke and Constance Arendell
General Counsel contends that Burke and Arendell were discharged because of
union activity and Respondent contends that it did not discharge either of them
but that they quit. Both witnesses were working as waitresses for Respondent under
the supervision of Pat Hendrickson. The last day that Arendell worked for Re-
spondent was June 10, 1960, and Burke June 15, 1960.
On the morning of June 16, which was her day off, Burke had a series of telephone
conversations with a "Mrs. Daniels" (later identified as Agnes Daniel Perry and
hereafter referred to as Daniel) who was in charge of Hendrickson's department
of the hotel in the latter's absence. The first conversation started about 7:30 a.m.
when Daniel called Burke to request that she report for work because there was a
shortage of waitresses. Burke pointed out that she had a transportation problem
and it would not pay for her to take a taxicab? There were further telephone
conversations between them later in the morning during the course of which Daniel
informed her not to come back to work until she talked to Hendrickson who was not
available until the following Monday. Burke then asked for the money due her, and
when Daniel said she did not have the authority to give it to her, Burke replied
that if she had the authority to fire her, she had the authority to get her money for
her.3 Arrangements were made that day through T. G. Stargel, managing direc-
tor to authorize the release of her money. Burke testified that she talked to Star-
gel about Daniel's actions and he complained that problems always seemed to arise
when Hendrickson was away and suggested she talk to Hendrickson. I cannot find
that Daniel's action was motivated by anything but indignation that Burke did not
comply with her request to report to work and, whether Burke was "fired" or
"laid off," rightfully or wrongfully, the action was intended as disciplinary and to
be subject to review by Hendrickson.
Arendell's last day of work was on June 10 and on that day she asked Hendrick-
son if she could work on the same basis as had Maria Fleming, a waitress who had
quit a short time prior thereto. Arendell testified that Fleming "had been working
relief on the morning shift which was from 7 to 2, and she never did work on Sat-
urdays and Sundays." Hendrickson agreed to this request. Fleming testified that
she had worked as an "extra" and averaged 3 to 4 days of work per week. Arendell
asked Hendrickson if she wanted her to report Sunday, but was told not to and
that she (Hendrickson) would call her to let her know when she was next scheduled
to work. Arendell failed to receive such a call at' any time thereafter.
Hendrickson proved to be a far from candid witness, too often resorting to evasive
answers or lapses of memory, and I am constrained to find little or no validity to
her denials of the testimony with respect to her which was elicited from General
Counsel's witnesses. As was set forth more fully hereinabove, in my consideration
of the violations of Section 8(a)(1) of the Act, two witnesses, Tilley and Rockwell,
testified in a simple and forthright manner that on May 6, 1960, Hendrickson met
with four of the counter and bus girls and interrogated them with respect to the
Union. Hendrickson denied that this meeting occurred.
As to the meeting of June 10, also set forth in detail hereinabove, she admitted
that the meeting occurred and that she did talk about the Union but minimized her
references thereto. As I have previously indicated, I credit the testimony of Burke
and Arendell with regard to this incident.
Maria Fleming testified that the last day she worked as a waitress was on May 20,
1960, and that about 2 weeks later (from the context of her testimony it would
appear that the time to which she was referring was almost a month later), Hendrick-
son called her. According to Fleming's testimony of their conversation, Hendrick-
son told her that she was desperately in need of waitresses and asked her if she
could come to work. Fleming asked her why she was so short of help. Her testimony
continued as follows:
And she said, well, she says, "Several of the girls, some of them are sick and
some of them are off for different reasons," and she says, "and you know some
of them has"-I believe she put it are union-minded, some of htem have gotten
union-minded, I believe that's the way that she put it.
Fleming also testified to a later conversation with Hendrickson in which the latter
2 There is a conflict between the testimony of Burke and of Daniel as to whether she
did or did not agree to come to work, but it is not essential to resolve the conflict since
it has no bearing on the issue.
3 Daniel used the term in her testimony of "lay-off" instead of "fire," but I do not believe
it necessary to resolve this conflict in view of my determination with respect to this
episode.
SKIRVIN HOTEL AND SKIRVIN TOWER 611
asked her about her relationship with the Union. Hendrickson denied that she
ever made mention of the Union in her conversations with Fleming.
As to Hendrickson's conversation on June 20 with Burke and Arendell (the
details of which are set forth hereinabove in the consideration of violation of Sec-
tion 8(a) (1) ), Hendrickson denied the truth of the testimony of Burke and Aren-
dell, but was unable to recall what was said.
Hendrickson labeled as false the testimony of the above-mentioned five wit-
nesses. In contrasting their demeanor and the forthrightness of their testimony
with the demeanor of Hendrickson and the character of her testimony, I am un-
able to resolve any issue of credibility in favor of Hendrickson's testimony.
I find that Burke and Arendell were active in soliciting signatures on behalf of
the Union and that Respondent knew or suspected them of such activity. In addi-
tion, at the meeting of June 10, Arendell contradicted Hendrickson as to statements
she made of various disadvantages which might result from unionization and clearly
indicated her sentiments in favor of unionization. Despite the agreement to use
her as an extra, Arendell was never called to report to work after June 10 and I
find that the reason for such failure was her union activity, or suspicions thereof,
and patent union partisanship in violation of Section 8(a) (3) and (1) of the Act.
As I indicated above I do not believe that the action taken by Daniel on June
16, 1960, with respect to Burke was motivated by her union activity. I believe the
intent was to discipline her (for not working on June 16 as requested) by not per-
mitting her to work until she talked to Hendrickson. However, when she did talk
to Hendrickson on June 20, Hendrickson indicated that her employment was not
to be continued because of her union activity or suspicions thereof. At that point
I believe the disciplinary action became a discriminatory action in violation of
Section 8 (a) (3) and (1) of the Act.
As to Respondent's contention that Burke and Arendell quit, it is predicated on
the technicality that they asked for their "Christmas funds" which are normally
only released prior to a certain date in the event of termination of employment. It
was or should have been quite evident to Respondent from the actions of these
two that they desired to continue to work and only sought the "Christmas funds"
because they believed they had been discharged. Therefore, I find no merit in this
contention of Respondent.
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 its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it be ordered to cease and desist therefrom and take certain
affirmative action in order to effectuate the policies of the Act.
Having found that the Respondent discriminated with regard to the hire and,
tenure of employment of Arthur Paradis, Mary Carter, Alma Mitchell,Claudetta
Sadler, Constance Arendell, and Ruby Burke in violation of Section 8(a)(3) and
(1) of the Act, I shall recommend that the Respondent offer them immediate and
full reinstatement to their former or substantially equivalent positions without preju-
dice to their seniority or other rights and privileges and make them whole for any
loss of pay suffered by them as a result of the discrimination by payment to them of
a sum of money equal to the amount they would have earned from dates set forth
here below to the date of the offer of their reinstatement, less their net earnings
to be computed on a quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 291-294. The date with respect to
Arthur Paradis is from and including May 6, 1960. The date with respect to Mary
Carter, Alma Mitchell, and Claudetta Sadler is from and including June 8, 1960.
The date with respect to Constance Arendell is from and including June 11, 1960,
and the date with respect to Ruby Burke is from and including June 21, 1960. It
is noted with respect to Constance Arendell that it was her arrangement with the
Respondent that she work as an "extra." Therefore it will be necessary to deter-
mine what she would have earned as a waitress in the nature of salary and tips
on those days her services would have been required as an "extra" waitress had not
Respondent discriminated against her. With respect to 'Ruby Burke the date of
June 21, 1960, is selected in view of the fact that I found the disciplinary action
that had been taken against her on June 16, 1960, was converted on June 20, 1960,
614913-62-vol. 132-40
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into a discriminatory action, I shall also recommend that the Respondent make avail-
able to the Board, upon request, payroll and other records to facilitate the de-
termination of the amount due under this recommended remedy.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that the Respondent be ordered to cease and desist from in
any manner infringing upon the rights guaranteed to its employees by Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. By discriminating in respect to the hire and tenure of employment of Arthur
Paradis, Mary Carter, Alma Mitchell, Claudetta Sadler, Constance Arendell, and
Ruby Burke, thereby discouraging membership in Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, Local No. 246, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By the foregoing conduct, by interrogating employees with respect to the
activities of the Union and their affiliations with it, and by threatening its employees
with economic reprisals should they select the Union as their bargaining represent-
ative or participate in its organizational campaign, the Respondent has interfered
with, restrained, and coerced employees in the exercise of their rights guaranteed
in Section 7 of the Act, and, thereby the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)( I) of the Act.
[Recommendations omitted from publication.]
Georgia-Pacific Corporation and International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 657. Case No. 23-CA-1078. July 31, 1961
DECISION AND ORDER
On March 28,1961, Trial Examiner George J. Bott issued his Inter-
mediate Report in this case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action as set forth in the Intermediate Report attached hereto. The
Trial Examiner further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that they be dismissed. Thereafter, the Respondent and
the General Counsel both filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 Intermedi-
ate Report, the exceptions and the briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
132 NLRB No. 41.