Skirvin Hotel and Skirvin Tower

National Labor Relations Board - Board Decisions

May 24, 1963

142 N.L.R.B. 761 (N.L.R.B. 1963)

SKIRVIN HOTEL AND SKIRVIN TOWER 761
All our employees are free to become, or remain, or refrain from becoming and
remaining members of the above -named or any other labor organization.
DALTON'S BEST MAID PRODUCTS, INC.,
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, Sixth
Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, 76102, Tele-
phone No. Edison 5-4211 , Extension 2131 , if they have any question concerning
this notice or compliance with its provisions.
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-1737. May 24, 1963
DECISION AND ORDER
On February 26, 1963, Trial Examiner C. W. Whittemore 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 attached Inter-
mediate Report. Thereafter, the General Counsel and the Respond-
ent 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 Leedom 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 briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations to the extent consistent herewith.
1. We find, in agreement with the Trial Examiner, that the Re-
spondent violated Section 8 (a) (1) of the Act by the following con-
duct: (a) On July 27, 1962, Chef Barnes warned employees that if the
Union "came in" he would no longer assist them to borrow money
from Respondent as he had in the past; i that the Respondent would
1 Although the Trial Examiner found that Barnes stated he would no longer lend them
money, the testimony is that Barnes stated he would no longer act as intermediary be-
tween them and Mr. James, the Respondent 's board chairman Member Leedom agrees
with this finding of violation because, insofar as appears from the record , Barnes ' threats
related to loans which the Respondent itself had previously made to employees . See Hill d
Hill Truck Lines, Ino., 120 NLRB 101, 110. He regards as distinguishable the Board's
142 NLRB No. 89.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no longer pay for the laundering of employees' uniforms ; and that the
Respondent would abandon its custom of permitting employees to
deduct money from their pay for a "Christmas fund," upon which it
paid interest; (b) on July 31 Chef Barnes again told employees that
if the Union came in, he would discontinue helping them to borrow
money; (c) Manager Patricia Hendrickson told employees on July 31
that if the Union won the election, the employees would have to pay
for their uniforms which the Respondent had previously provided;
that employees would lose their transfer rights and, would be unable
to work in any department other than the one in which they had been
hired; and that the Respondent would not have to bargain with the
Union "for years"; and (d) on July 31 Hendrickson told an employee
that if the Union came in, she would no longer be allowed to do extra
work to obtain added income. We likewise agree with the Trial
Examiner that the Respondent further violated 8(a) (1) in its pre-
election circulars and letters to employees by declaring that if the
Union won the election, the Respondent could not afford to "sign"
a contract, a strike would inevitably occur, and the employees would
"lose their jobs." 2
2. We find, however, contrary to the Trial Examiner, that the fol-
lowing conduct of the Respondent did not violate Section 8 (a) (1) :
(a) The no-solicitation rule: Early in March 1962 the Respondent
posted and distributed to employees a notice prohibiting employees
from soliciting union memberships and discussing union matters "on
working time, on company property." 3 The Trial Examiner ap-
parently interpreted the Respondent's rule as prohibiting the discus-
sion of union matters only on "working time"; we agree with this
finding 4 and, in the absence of any evidence that the rule was promul-
decision in Baltimore Binding and Waistband Corp ., 130 NLRB 1629, in which the Board
found that the respondent did not violate the Act by its general manager's conduct in
refusing to make personal loans to employees , not involving any of the respondent ' s funds.
9 Texas Industries, et al., 139 NLRB 365 . For the reason stated in Texas Industries,
Inc, et al., supra, footnote 5, Member Leedom would not find that the remarks contained
in the preelection circulars and letters violated Section 8 (a) (1) of the Act.
The Respondent 's notice reads as follows:
"NOTICE TO ALL EMPLOYEES
"All employees of the Skirvin Hotels are directed and instructed not to solicit
Union memberships and not to discuss union matters ( either for or against the
Union) while on working time , on company property
"Your attention is directed to the fact that violation of this rule will necessarily
interfere with both the work of the employee violating the rule and the work of other
employees of the hotel; and you are , therefore , notified that any employee violating
this rule will be subject to immediate discharge
GEORGE W. JAMES, President"
+ The General Counsel contends that the words "on working time, on company property"
should be construed as also prohibiting union solicitation on company property during
employees ' "non-working time," and hence, under Walton Manufacturing Company, 126
NTLRB 697, enfd. 289 F . 2d 177 (CA 5), the rule was presumptively invalid . We find no
merit in this contention. As noted, the rule applies only to "working time , on company
property." The mere fact that a comma appears between these two phrases is insufficient,
in our view , to establish that the Respondent 's rule prohibited Union discussion on com-
SKIRVIN HOTEL AND SKIRVIN TOWER 763
gated for a discriminatory purpose, further find that the rule was
presumptively valid.' However, the Trial Examiner also found that
the rule was necessarily invalidated because the Respondent itself
disregarded the rule and conducted several meetings during working
hours on company property for the purpose of engaging in antiunion
solicitations. We do not agree that this fact is sufficient in and of
itself to render the rule invalid. In the Nutone decision,6 the Supreme
Court expressly cautioned against the utilization of precisely this kind
of per se approach to the instant problem-laden area. While pointing
out that there may well be situations which justify finding an unfair
labor practice where an employer is enforcing a valid no-solicitation
rule while simultaneously engaging in antiunion solicitation, the
Court made it clear that "there must be some basis, in the actualities
of industrial relations, for such a finding."' Upon analyzing the
record in this case in light of these pronouncements in Nutone, we are
satisfied that there is no basis for invalidating the Employer's other-
wise valid no-solicitation rule. Accordingly, we find, contrary to the
Trial Examiner, that the Respondent's enforcement of its rule did not
violate Section 8(a) (1) of the Act.
(b) The statement of Dan James relative to loss of employee privi-
lege of discussion: The Trial Examiner further found that the Re-
spondent violated Section 8 (a) (1) by the statement of Dan James,
board chairman, to employees that if the Union were selected as bar-
gaining representative, they would lose their privilege of discussing
matters with management. The record shows that James stated that if
the Union came in, the employees would have to go to a union man (Mr.
Ellenbarger) for adjustment of their problems, and that "Mr. Ellen-
barger lives in Tulsa . . . you would have to wait for him" and "if
he didn't want to come, he wouldn't have to come." In our opinion,
James' statement constituted no more than a lawful prediction that if
the Union were selected as the representative of the employees, the
employees would have to work through their union representative in
resolving their grievances.8 We therefore find, in disagreement with
the Trial Examiner, that by this statement the Respondent did not
violate Section 8 (a) (1) of the Act.9
pany property, although not taking place on working time This conclusion is supported
by the language of the second paragraph of the rule which states that a violation thereof
"will necessarily interfere with the . . . work . . of the employees " [Emphasis
supplied ]
5 Walton Manufacturing Company, supra; Stoddard-Quark Manufacturing Co , 138
NLRB 615.
"NLRB. v. United Steelworkers of America, CIO (Nutone, Inc, Intervenor), 357
U S 357.
7 The Court's opinion in Nutone at pp. 363-364 indicates what some, if not all, of the
bases for invalidating an employer's no-solicitation rule might be.
8 See Section 9(a), second proviso.
9 See Safeway Stores, Inc., 122 NLRB 1369, 1373.
Member Brown would affirm the Trial Examiner's unfair labor practice finding with re-
spect to this incident.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The statement of Chef Barnes relative to loss of privilege of
discussion: The Trial Examiner also found that the Respondent
violated Section 8(a) (1) by the statement of July 31 of Chef Barnes
to employees that if the Union were voted in, they would be unable to
"see or talk" with Mr. James except through a union representative.
According to the credited testimony of employee Chancellor, Barnes
told employees that when they were "in a financial need, I went and got
money for you," and that "if the Union comes in, that will be stopped,
because . . . you will have to go through them in order to see or talk
to Mr. James." It was on the basis of this testimony that we have
found, supra, in agreement with the Trial Examiner, that Barnes un-
lawfully threatened that employees' borrowing privileges would be
discontinued if the Union came in. Unlike the Trial Examiner, how-
ever, and for the reasons stated above, we do not believe that these
remarks by Barnes are a separate unlawful threat that if the Union
came in, the employees would be able to see Respondent's officials only
through the union representative."
(d) The statement of Dan James as to "loss of lobs": The Trial
Examiner further found that by the statement of James on July 27
that if employees voted for the Union and went on strike, they would
"lose their jobs," the Respondent also violated Section 8(a) (1). Ac-
cording to the credited testimony of employee Alice Chancellor, James
told employees that if "we voted union and had a strike . . . they
could replace us and hire help in our place," and that "when the strike
was over we would come back and have no jobs, because the other
people . . . would have our jobs." As these remarks constituted no
more than a statement by the Respondent of its lawful right to hire
replacements in the event of an economic strike," we find, contrary
to the Trial Examiner, that such statement did not constitute inter-
ference, restraint, or coercion of employees in the exercise of their
rights under Section 7, in violation of Section 8 (a) (1).
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the following modifications :
(1) Paragraph 1(b) and paragraph 2(a) of the Recommended
Order are deleted.
(2) The Appendix is amended by deleting the second indented
paragraph.
10 Member Brown would affirm the Trial Examiner 's unfair labor practice finding with
respect to this incident.
11Roy C. Hanson, Jr., Mfg., 137 NLRB 251 . There, the Board rejected the General
Counsel's contention that an employer , in circumstances such as these , must make it clear
to employees that he had a right to hire replacements only in the case of an economic
strike and not in the event of an unfair labor practice strike.
SKIRVIN HOTEL AND SKIRVIN TOWER 765
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by the above-named labor organization on September 27, 1962,
a complaint and notice of hearing thereon were issued and served on November 9,
1962, by the General Counsel of the National Labor Relations Board. The above-
named Respondent filed its answer dated November 14, 1962. The complaint alleges
and the answer denies that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) of the National Labor Relations Act, as amended.
Pursuant to notice, a hearing was held on January 21, 1963, in Oklahoma City,
Oklahoma, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from General Counsel and the Respondent.
After the close of the hearing a motion to correct certain typographical errors in
the transcript was received from General Counsel, said motion showing service upon
other parties. No objection having been received, said motion is hereby granted and
is made a part of the record.
Upon the record thus made and from his observation of the witnesses the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Oklahoma corporation. It maintains its principal offices and
places of business at the Skirvin Hotel and Skirvin Tower buildings in Oklahoma City,
Oklahoma, where it is engaged in the business of operating hotels and services
incidental thereto, including restaurant facilities. Only these two hotel facilities are
herein involved.
During the year preceding issuance of the complaint the Respondent provided
services and sold products valued at more than $500,000. During the same period
the Respondent purchased goods directly from points outside the State of Oklahoma
valued at more than $2,000. And during the same period 75 percent of its hotel
guests occupied its facilities for a period of less than 1 month.
The Respondent concedes and it is found that it is engaged in commerce within
the meaning of the Act.
H. THE CHARGING UNION
Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO,
Local No. 246, is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All of the matters herein alleged to have been violative of the Act arose during
a period when, as counsel for the Respondent conceded, the Respondent wanted to
defeat the Charging Union at a representation election, which was held on August 2,
1962. General Counsel contends, and the Respondent denies, that various speeches,
notices, and letters to employees contained material not privileged under the Act but
which interfered with, restrained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act.
B. Interference, restraint, and coercion
Undisputed and credible testimony of employees and many documents admittedly
posted or distributed by the Respondent to its employees establish the following
facts:
(1) From early March 1962, until the time of the election the Respondent both
posted and distributed to employees a "Notice to Employees" which warned them of
discharge if they violated the instruction "not to discuss union matters" while "on
working time, on company property." No evidence was adduced by the Respondent
to show why discussion of only "union matters" should be prohibited. Any possible
validity to the statement contained in the same notice that "violation of this rule
will necessarily interfere with the work" is negated by the undisputed facts. described
more fully below that, (a) on several occasions following posting of the rule manage-
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment representatives themselves conducted meetings of many employees at which
such supervisors vigorously campaigned against the Union; and (b) at least at one
such meeting counsel for the Respondent , according to his own testimony , invited
discussion of union matters . All such meetings were held during working hours, on
company property.
(2) At an assembly of employees convened by management during working hours
on July 27 Chef Barnes, conceded by the Respondent to be a supervisor within the
meaning of the Act, warned employees that (a ) "if the Union came in" he would no
longer loan them money, as he had in the past; ( b) the company would no longer
pay for the laundering of uniforms , as had been the custom ; and (c) the company
would abandon its custom of permitting employees to have deducted from their pay
money for a "Christmas fund ," upon which it had been paying them interest.
(3) At another meeting of other employees held the same day, Dan W. James,
chairman of the board , warned employees that if they selected the Union as their
bargaining representative they would lose their present privilege of discussing matters
with him or Chef Barnes . He also warned them that if they voted for the Union
and went on strike they would lose their jobs.
(4) At an assembly of other employees on July 31 Chef Barnes reiterated his threat
to withdraw the privilege of borrowing money if they voted for the Union, and
told them that they would be unable to "see or talk" with Mr. James except through a
union representative.
(5) At another meeting of employees on July 31 Manager Patricia Hendrickson,
admitted by the Respondent to be a supervisor within the meaning of the Act,
warned employees that if the Union won the election : (a) employees would have to
pay for their own uniforms which the hotel then provided ; and (b ) they would be
unable to work in any department except the one in which they were hired ; and that
James did not have to bargain with the Union "for years ." Hendrickson also told
one employee , who customarily had "worked " banquets bringing her added income,
that she no longer could perform such work.
(6) Repeatedly in its preelection circulars and letters distributed to employees the
Respondent declared, in effect , that if the Union won the election and the Company
could not afford to "sign" a contract a strike would inevitably occur and employees
would lose their jobs.
The Trial Examiner concludes and finds that by the above -described threats of loss
of jobs and privileges the Respondent has interfered with , restrained , and coerced
employees in the exercise of rights guaranteed by Section 7 of the Act.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , set forth in section III, above, occurring in con-
nection with the operations of the Respondent , 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices the Trial
Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO,
Local No 246, is a labor organization within the meaning of Section 2 (5) of the
Act.
2 By interfering with , restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices within the meaning
of Section 2(6) and (7) of the Act.
IIn his brief General Counsel appropriately cites , among other cases: Texas Industries,
at al , 139 NLRB 365 ; Aztec Ceramics Company, 138 NLRB 1178 ; and N L R B v . Babcock
d Wilcox Company, 351 U 9 105
SKIRVIN HOTEL AND SKIRVIN TOWER 767
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that James Hotel Company, a corpora-
tion , d/b/a Skirvin Hotel and Skirvin Tower, its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals to discourage membership in or activity
on behalf of Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, Local No. 246, or any other labor organization.
(b) Prohibiting, by rule, or otherwise , lawful union activities on company property
during employees ' nonworking time.
(c) In any like or related manner interfering with , restraining , or coercing their
employees in the exercise of their right to self-organization , to form labor 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 , except to the extent that such
rights may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by 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 will effectuate the policies of the
Act:
(a) Rescind the company rule posted since March 1962 , which prohibits employees'
union discussion on company property, or, in lieu thereof , revise such rule to make
it clear on the fact thereof that the prohibition against employees ' discussion is not to
be interpreted as discriminatorily limited to union matters.
(b) Post at its hotels in Oklahoma City, Oklahoma, copies of the attached notice
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 's authorized
representative , be posted by the Respondent immediately upon receipt thereof,
and maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices are not altered , defaced, or
covered by any other material.
(c) Notify the said Regional Director in writing within 20 days from the date
of the service of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith.3
2In the event that this Recommended Order be adopted by the Board , the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" In the notice . In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "A Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Deci-
sion and Order."
3In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the 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
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten our employees if Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO, Local No. 246, or any other labor
organization , is designated their bargaining representative.
WE WILL NOT prohibit , by rule or otherwise , lawful union activities on
company property during our employees ' nonworking time.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organization,
to bargain collectively through representatives of their own choice, 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,
except to the extent that such rights may be affected by an agreement requiring
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment as authorized
by Section 8(a) (3) of the Act, as modified by the Labor -Management Reporting
and Disclosure Act of 1959.
JAMES HOTEL COMPANY , A CORPORATION D/B/A
SKIRVIN HOTEL AND SKIRVIN TOWER,
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, Meacham
Building, 110 West Fifth Street , Fort Worth, Texas, 76102 , Telephone No. Edison
5-4211 , Extension 2131 , if they have any questions concerning this notice or com-
pliance with its provisions.
United Packinghouse , Food and Allied Workers, Local 673, AFL-
CIO and Ora Mae Riley and J-M Poultry Packing Company,
Inc. d/b/a Dixie Broiler Company, Inc., Party to the Contract.
Case No. 15-CB-575. May 204, 1963
DECISION AND ORDER
On December 21, 1962, Trial Examiner George L. Powell 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 attached Inter-
mediate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and the Respondent filed 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 [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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
As found by the Trial Examiner, Respondent, up to February
1962, collected $3 a month from each employee, or from the Employer
on their behalf, as periodic dues under the parties' union-security
agreement. Beginning with that month, the amount collected was
increased to $4. In agreement with the Trial Examiner, we find
1 The Trial Examiner found that Respondent Union violated Section 8 ( b) (1) (A) and (2)
of the Act by maintaining and enforcing the "side agreement ," a form of union security,
at a time when it was assisted by the Employer . In the absence of exceptions to these
findings , we adopt them pro forma.
142 NLRB No. 84.