Southwest Hotels, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1960

127 N.L.R.B. 1240 (N.L.R.B. 1960)

1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Locals 657 and 968, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen, and Helpers of America, are labor organizations within the meaning
of Section 2(5) of the Act.
2. By discriminating in regard to the terms and conditions of employment of some
of its employees , thereby discouraging concerted activities and membership in the
aforesaid Unions, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of 'Section 8(a)(3) and (4) of the Act.
3. By discharging a foreman in order to discourage its employees ' union activities
and membership the Respondent has engaged in unfair labor practices within the
meaning-of Section 8 (a) (1) of the Act.
4. By the above unfair labor practices, and by otherwise interfering with , restrain-
ing, and coercing its employees in the exercise of the rights guaranteed in Section 7
of the Act, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent did not commit unfair labor practices by discharging George
Askey and Selso Gil.
[Recommendations omitted from publication.]
Southwest Hotels, Inc. and Chauffeurs, Teamsters & Helpers
Local 878, International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen & Helpers of America . Case No. 06-CA-
783. June 17, 1960
DECISION AND ORDER
On March 7, 1960, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding tht t
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Charging Union 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 [Members Rodgers, Bean, and Fanning].
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 entire
record in this case, including the Intermediate Report and the excep-
tions, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
We agree with the Trial Examiner that the Respondent Is engaged in commerce within
the meaning of the Act and that it will effectuate the policies of the Act to assert juris-
diction herein . For a detailed analysis of the jurisdictional facts concerning the Respond-
ent see Southwest Hotels, Inc , 126 NLRB 1151.
127 NLRB No . 154. -
SOUTHWEST HOTELS, INC. 1241
ORDER
Upon the entire record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Southwest
Hotels, Inc., Little Rock, Arkansas, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Chauffeurs, Teamsters & Helpers
Local 878, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or in any other labor organization,
by discharging, laying off, or otherwise discriminating in regard to
the hire or tenure of employment, or any term or condition of employ-
ment, except as authorized by Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
(b) Interrogating employees concerning their possession or signing
of union cards, attendance at union meetings, and other organizational
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1) of the Act.
(c) Threatening employees with discharge or other reprisals to
discourage union membership and activity.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Chauffeurs, Teamsters & Helpers
Local 878, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other labor organization, to
bargain collectively through representatives of .their own choosing,
and to engage in any 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 right may
be affected by, an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Mabel Everett, Ethel
Adams, and Madelyn Taylor, to their former or substantially equiv-
alent positions, 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 .2
2 The Respondent shall pay to each of the three discriminatees a sum of money equal to
that which each would normally have earned as wages, absent the discrimination against
her from the date of the discrimination to the date of the Respondent's offer of full re-
instatement , less other *net earnings during said period, in accordance with Board policy
set out in F. W. Woolworth Company, 90 NLRB 289, and Cr088ett Lumber Company,
8 NLRB-440.
1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Preserve and, upon request , make available to the Board or its
agents, for examination and copying , all payroll records, social secu-
rity payment records, timecards , personnelrecords 'and reports, and
all other records necessary to analyze the amounts of backpay due
and the rights of employment under terms of-these reconnnendations.
(c) Post at its Marion Hotel at Little Rock , Arkansas, copies of
the notice attached hereto marked "Appendix ." 3 Copies of said
notice, to be furnished by the Regional Director for the Twenty-sixth
Region, shall , after being duly signed by the Respondent , be posted by
it immediately upon receipt thereof, and be maintained by it for a
period of 60 consecutive days , in conspicuous places, including all
places Where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-sixth Region,
in writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith..
'In the event that this Oider 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 you that :
WE WILL NOT discourage membership in Chauffeurs, Teamsters
Helpers Local 878, International Brotherhood of Teamsters;
Chauffeurs, Warehousemen & Helpers of America, or in any other
labor organization, by discharging, laying off, or otherwise dis-
criminating' in regard to the hire or tenure of employment, or
any term or condition of employment, except as authorized by
Section 8(a) (3) of the Act, as modified by the Labor-Manage=
ment Reporting and Disclosure Act of 1959.
WE WILL NOT interrogate employees concerning their possession
or signing of union 'cards, attendance at union meetings, and
other organizati'onil activities in a manner constituting inter-
ference, restraint, or `coercion in violation of Section 8(a) (1)'
of the Act.
WE WILL NOT threaten employees with discharge. or other re-
prisals to discourage union membership and activity. , - ` - - -
WE WILL NOT in any other manner interfere with,- restrain, or
coerce our employees in the exercise of their right to form, join,
or assist said Chauffeurs, Teamsters & Helpers Local 878, Inter-
SOUTHWEST HOTELS, INC. 1243
-national Brotherhood of Teamsters, Chauffeurs, Warehousemen
R Helpers of America, or any other labor organization, to bargain
collectively through representatives of their own choosing, or 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 right may
be affected by an agreement authorized by Section 8(a) (3) of
the Act, as modified by the -Labor-Management Reporting and
Disclosure.Act of 1959. -
AVE, WILL offer to Mabel- Everett, Ethel Adams, and Madelyn
Taylor immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their sen-
iority or other rights and privileges, and make them whole for
any loss of pay they may have suffered as a result of-our discrimi-
nation against them.
All our employees are free to become or remain or refrain from
becoming or remaining members of the above union, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the Act, as
modified by ,the Labor-Management Reporting and Disclosure Act
of 1959.
SOUTHWEST HOTELS, INC., -
Employer.
Dated------ ---------- By------------------------------------
(Representative) . (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
- INTERMEDIATE ' REPORT
STATEMENT OF THE CASE
This proceeding, brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), was heard at Little Rock, Arkansas, on November
17 and 18, 1959, pursuant to due notice and with all parties (except the Charging
Union) being represented by counsel. The complaint, issued by the General
Counsel for the National Labor Relations Board on August 14, 1959, and based on
charges duly filed and served, alleged in substance chat Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by
discharging Ethel Adams, Mabel Everett, and Madelyn Taylor on March 17, 1959,
because of their union membership and activities, and by engaging in various
specified acts of interference, restraint, and coercion in March and April 1959.
Respondent answered, denying the unfair labor practices, and averring that it
discharged each of the three employees for just and good cause. Respondent's brief
also raised questions a's to the jurisdiction of the Board, which are disposed of in
section I, below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following: _ • -
FINDINGS OF FACT . }
1. RESPONDENT'S BUSINESS
Respondent, a- Delaware corporation, maintains its principal office and place of
business at Little Rock, Arkansas, where it owns and operates the Albert Pike Hotel,
1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Grady Manning Hotel , and the Marion Hotel. Only the Marion Hotel is in-
volved in this proceeding . Respondent had, during the past 12 months, gross
revenues in excess of $500,000 at the Marion Hotel , and less than 75 percent of the
guests resided at said hotel for a period exceeding 1 month during the aforesaid
,period. During the same period Respondent received directly from suppliers located
at points outside the State of Arkansas goods valued in excess of $7,000.
Though the foregoing facts were admitted by answer and by stipulation , Respond-
ent seeks dismissal at the outset on two bases : ( 1) because of the absence of sub-
stantive evidence showing that Respondent is within the jurisdiction of the Board,
and (2 ) because the acts complained of occurred prior to May 14, 1959, the date
on which the Board announced by press release its jurisdictional standards for the
hotel industry.
Respondent 's contentions are overruled . As to ( 1), the admitted facts established
that Respondent 's operations met the Board 's jurisdictional standards , and I there-
fore conclude and find that Respondent is engaged in commerce within the meaning
of the Act . Floridan Hotel of Tampa, Inc., 124 NLRB 261; Arlington Hotel Com-
pany, Inc., 126 NLRB 400.
As to ( 2), the Board announced on January 11, 1959 (Press Release, R-586), that
as a direct consequence of the Supreme Court's decision in Hotel Employees, Local
No. 255 et al. v. Leedom , et al (Miami Beach Hotel Association ), 358 U .S. 99, it
had determined to assert jurisdiction in cases arising within the hotel industry on
the basis of gross receipts of at least $100 ,000 per annum , subject to such modifica-
tion as the Board might make after receipt of briefs or comments from interested
groups, organizations , and persons . The announcement of May 14, which Re-
spondent cites, actually narrowed the jurisdictional area in which the Board would
operate by increasing the mathematical standard to gross annual business of
$500,000. As Respondent's operations met the modified - standard , they obviously
met the broader one, of which Respondent was on notice on January 11, 1959.
In any case , the fact that the conduct complained of occurred prior to May 14,
does not prevent the Board from asserting jurisdiction over the present unfair labor
practices proceeding . Guy F. Atkinson Company, et al., 90 NLRB 143 , enforce-
ment denied 195 F . 2d 141 (C.A. 9); N.L.R.B. v. Kartarik Inc., 227 F. 2d 190, 192
(C.A. 8); N.L.R.B. v. Stanislaus Implement and Hardware Company, 226 F. 2d
377 (C.A. 9). Both administrative agencies and courts are free to overturn pre-
vious rulings, even though the new decision may work a hardship on one of the
parties involved Securities and Exchange Commission v. Chenery Corporation,
332 U.S. 194, 203; Great Northern Railway v. Sunburst Co., 287 U.S. 358, 364.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5),
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
Local 878 of the Teamsters ' Union began an organizational campaign at the
Marion Hotel in March 1959. Knowledge of that fact reached the manager, Ben
R. Shelley, who, according to the General Counsel's witnesses, promptly embarked
on a course of conduct designed to restrain and discourage the organization of the
employees, including the discharge of three maids on March 17. Much of the
evidence concerning alleged incidents of interference , restraint , and coercion was
either admitted or was not denied , with Respondent contending that no one of the
incidents (which it viewed separately) constituted a violation of Section 8(a)(1).
-As to the alleged discriminatory discharges under Section 8(a)(3), the issues are
whether Respondent knew of the union membership and activities of the three dis-
chargees, whether its action was discriminatorily motivated as charged in the
complaint, or whether Respondent made the discharges for the cause assigned, i.e.,
the unclean condition of certain rooms at found on inspection.
B. Interference, restraint , and coercion
Ruby Phillips and Claudette Fitzpatrick, waitresses in the coffee shop, testified that
in March their supervisor, Hostess Pat Newberry, told them that Shelley had
instructed her to discharge employees who were caught discussing the Union, or
talking to "union people," or signing a union card . Newberry confirmed their testi-
mony, testifying further that Shelley had in fact so instructed her, and that on
another occasion Shelley asked her to find out who the union man was whom
Hazel Harris, the cashier , was dating.
0
k . SOUTHWEST HOTELS, INC. 1 , 1245
Harris testified that around March 27, Shelley questioned her about why she
had attended a union meeting , whether there were any union cards at the meeting,
and' whether `Harris had signed one.
Evelyn Martin, a waitress, testified that Shelley questioned her in March concern-
ing her knowledge of the union activities and whether the employees wanted a
union. A day or so later Shelley inquired whether she herself had a union card,
and she acknowledged that she had. Shelley later sent her to talk with L. W.
Reaves, personnel manager, who questioned her concerning her knowledge of the
discharge of Charlotte Russell (who had been discharged by Newberry around
March 21). Reaves inquired in part whether Russell was working for the Union
or was planning to work for the Union at the time of her discharge, and he also
questioned Martin about her own attendance at union meetings.
There was also testimony by four maids, Dorothy Harris, Mabel Everett, Ethel
Adams, and Madelyn Taylor, that on the morning of March 17 their supervisor,
Annie Gordon, the housekeeper, questioned them in the linen room about whether
they had signed a card for the Union and that she appeared to note their answers,
or check their names off, on a piece of paper on her desk. Harris denied having
signed, but the other three (who were discharged later the same day) acknowledged
that they had done so. Harris testified also that about a week later when she was
cleaning Reaves' office, Reaves asked, her if she had signed a card, and she again
denied it. Reaves told her she should not sign a union card if asked to and that
she should tell him who solicited her and where. Harris testified further that about'
a week before April 20, Gordon asked her again if she had signed a union card and
that she again denied it.
Marie Croston, a maid, -testified that the morning after Everett, Adams, and
Taylor were discharged, Shelley asked her in Gordon's presence whether she had
signed a union card and that she denied it.
Claudette Fitzpatrick also testified in support of the General Counsel' s amend-
ment made at the hearing that on November 11, 1959, during the course of a
prehearing interview, Respondent's attorney, C. J. Lincoln, asked her directly if
she had gotten a union card, who gave the card, if she had signed one, and if she
was at a union meeting.
Most of the foregoing incidents were either admitted or were not denied. Thus„
Shelley admitted that he questioned Hazel Harris about her attendance at a union
meeting and that he questioned Martin about signing a union card. Though
Shelley denied Croston's testimony that he questioned her, he admitted that he
stated to another maid, Ester Doyle (a nonwitness ), "I suppose you also signed a
card," and that she acknowledged that she had done so. Shelley also admitted that
he directed Gordon to find out and report to him how many of the employees were
interested in or in favor of the Union.
Gordon testified in turn that Shelley directed her to find out how many of the,
maids and hall boys had signed union cards, and that she questioned all the 30-odd
employees in the housekeeping department, asking if anyone had given them a
union card and if they had signed.
Though Reaves denied having had any conversation with Dorothy Harris about.
the Union, he made no denial of, Martin's testimony.
Though Shelley denied having instructed Newberry to discharge employees whom
she caught talking with union men, Newberry's testimony that he did so fitted
plainly into the pattern of Shelley's course of conduct as shown in this and in the
following section of this report. Furthermore, Newberry's testimony received at
least indirect support of Phillips' and Fitzpatrick's that Newberry at the time assigned
Shelley as the source of her instructions. Though Respondent is responsible for
Newberry's threats whether or not she was acting on Shelley's instructions, the
entire evidence requires rejection of Shelley's denial.
Respondent also disputed, through its attorney, W. H. Jewell, Fitzpatrick's version
of the prehearing interview. Jewell testified that he was present, that Lincoln
wrote out a statement which Fitzpatrick signed , and he denied that he or Lincoln
interrogated her in the manner she testified to. He- explained that after Fitzpatrick
stated she had given a statement to a Board representative, he and Lincoln ques-
tioned her concerning the contents of that statement. Fitzpatrick called him later
concerning a change she wished' to make in .the statement she had given them, and
he talked with her the next day, preparing -a second statement which Fitzpatrick
signed and which she acknowledged on the stand to be true, and correct. As the
two statements, received on Respondent 's offer, tend to confirm Jewell's version
rather than Fitzpatrick's, Jewell's testimony is credited. ,
It is concluded and found on the basis of the entire evidence that by its interro-.
gation of employees concerning their possession and signing of union cards,
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attendance at union meetings , and other organizational activities , Respondent engaged
in interference, restraint, and coercion within the meaning of Section _ 8 (a) (1) of
the Act. Though Respondent seeks to fragmentize the case by considering separate
incidents in isolation from all other conduct, the evidence here showed such a
widespread and apparently systematic course of interrogation throughout the hotel
concerning union membership and activities as along to constitute a violation of
Section •8(a)(1). There was no pending representation petition, no claim for
recognition, and no request to bargain to give even colorable basis to Respondent's
asserted, right to engage in inquisition and interference. But in any case, as in
Tallapoosa River Electric Cooperative, 124 NLRB 474, the interrogation here did
not stand alone; it was•part of a course of conduct which included not only threats
to discharge because of union activities but also actual discharges for that reason,
as found in the next section.
I reject, however, the General Counsel's contention that the interrogation of
Fitzpatrick by Respondent's attorneys constituted a violation of Section 8(a)(1).
In Jackson Tile Manufacturing Company, 122 NLRB 764, on which the General
Counsel relies solely, the interrogation was not by attorneys during trial prepara-
tions, but was part of an overall plan by supervisory personnel to coach employees
in advance of Board interviews; to control the answers to be given, and to ascertain,
by later interrogation, whether their instructions had been complied with. That
case is plainly inapposite.
C. Discrimination
Much of the evidence concerning Gordon's interrogation of the maids and hall
boys on March 17 is set out in the preceding section. On the late afternoon of the
same day Respondent discharged Mabel Everett, Ethel Adams, and Madelyn Taylor,
three employees who had acknowledged to Gordon that they had signed union cards.
Furthermore, Everett and Adams were the leaders among the maids in the organiza-
tional campaign. On a Sunday in March, Everett had conferred in the hotel with
a union representative who persuaded her, and later Adams, her mother, to sign
membership cards and to set about the procuring of signatures from the other maids.
Both of them thereafter distributed cards among the maids and solicited and pro-
cured signatures.
The discharges were made by Gordon after she and Shelley had made an inspec-
tion of some of the rooms on the respective stations of the three maids. In Everett's
case, Gordon stated that Shelley had found Everett's rooms to be dirty, but Adams
and Taylor testified in their cases Gordon simply said that Shelley had ordered the
discharges. However, the latter two admitted (as Everett did not) that Shelley
had earlier called their attention to conditions he found in some of their rooms.
Newberry testified to an occasion on which Shelley expressly admitted that he had
discharged some maids on account of union activity, but that testimony is not
credited. Newberry had been called into a meeting with Respondent's attorney,
Jewell, during his investigation of the original charge. Jewell denied that Shelley
made the statement which Newberry attributed to him, and testified that the only
reference to the discharges for union activities was made during his own explanation
to Newberry of the allegations of the charges. Jewell's testimony, which was cor-
roborated by Shelley and Reaves, is credited over Newberry's uncorroborated
testimony.
Gordon and Shelley testified for Respondent that the discharges were made because
of the conditions they found in certain rooms on the respective stations of the three
maids during an inspection tour. It is important initially to fix as definitely as
possible the respective timing of Gordon's poll, her report to Shelley, and the
discharges, as well as the extent of the inspection, on which points their testimony
was at times both inconsistent and conflicting..
Gordon's testimony was initially to the effect that she questioned the maids on
the same day Shelley instructed her to; that it was before she and Shelley made
the inspection of the rooms, and could have been on the same day; and that she
reported to Shelley on the same day she questioned the employees and before the
inspection. - On cross-examination, however, Gordon denied that she reported
back to Shelley on the day of the questioning, and testified that she did not do so
until a couple of days after the discharge and several days after the poll.' Gordon's
0
1 Gordon testified that all that she reported to Shelley was that there were "several"
who had signed cards, and Shelley's testimony was to similar effect. Gordon denied that
she made any note of the answers she received from the maids, and professed inability on
cross-examination to recall the name of a single maid who answered affirmatively or
negatively.
SOUTHWEST HOTELS, INC .. ^ _ . _ , 1247
initial version is credited, since it squared with the testimony of the General Counsel's
witnesses that Gordon's questioning, the inspection, and the discharges all occurred
on the same day.. Shelley's testimony is accordingly rejected that his request to
Gordon was around the 15th, and that she did not report back to him for some
3 or 4 days.
Shelley testified that he had warned the maids on March-14 that, he. was getting
too many complaints from guests concerning the condition of their rooms, and that
on the morning of -March 17, a guest who had just checked in to Room 755 com-
plained that the room was "filthy dirty" and insisted on being moved. It was there
that Shelley and Gordon began their inspection tour later in the morning.
- Shelley and Gordon were in agreement that their tour covered four rooms (755,
756, 757, and 758) on Adams' station, and that they then proceeded to Everett's
station on the same floor and inspected only one room (774). From there on their
testimony varied. Gordon testified that in coming down they checked a single
room on the sixth floor (612) on Eula McKuen's station, checked none on the fifth
floor, but proceeded to Taylors station on the fourth floor where they checked 434
and 438. From there Gordon testified that they went back to her office, that Shelley
then went back to his, and that they did not check any further. Though Gordon
claimed at a later point that she and Shelley "spotchecked" other rooms on the fifth
and sixth floors on the same -'afternoon, she was unable to state any of the room
numbers, and she,admitted that she and Shelley checked altogether a total of only
six or seven rooms and that all except one on the sixth floor were on the stations
of Everett, Adams, and Taylor.
On direct examination Shelley's narration of the tour was in substantial accord
with Gordon's, but on cross-examination he claimed that they inspected three or
four rooms on two different stations on the sixth floor and two rooms on the fifth
floor. He also raised to four the number of rooms they inspected on the fourth floor,
thus raising the grand total to some 14 or 15 rooms. Though Shelley testified at one
point that his only inspections that day were made with Gordon, he later testified
that Gordon may not have been with him during some of his inspections and
suggested that he may have checked on the third floor and also probably on the
second as he walked on down.° And though testifying at first that Gordon had left
him on four, he claimed later that after checking the fourth floor, they walked to
the linen room on the third floor, where they jointly determined to discharge the
three maids.
As Gordon's description of the inspection was substantially corroborated by
Shelley's initial version, her testimony is credited as to the extent of the inspection.
Shelley and Gordon were in substantial agreement as to the condition of the
rooms which they checked. Room 755 was found to be dusty and dirty, and the
tub and commode were stained or ringed. The conditions were so bad that Shelley
called in the room inspector , Grace Thompson, and discharged her on the spot
Though the conditions varied from room to room as they proceeded, those which
they checked on the stations of the three maids were found generally to be dirty,
untidy, and unclean. In some, the tubs and commodes were found to be stained
or ringed, in one a dirty towel was found on the bed and used soap in the bath.
Finally, in room 438, a decayed apple was found between window sash and screen.
Shelley testified that they also found the maids' lockers to be dirty, and that they
called to the attention of each of the maids the conditions which they found.
Though Gordon testified that she and Shelley made inspections together "quite
often" (as well as others separately), she admitted that the last such inspection with
Shelley was made in October 1958. Questioned whether other maids had been
discharged for not keeping rooms in order, Gordon first referred to a single discharge
in January 1958, but admitted that she was on vacation at the time and that she did
not know whether Shelley was present. She admitted finally that she had never
discharged a maid , though ,she testified that she had talked to one who quit
without discharge. Shelley, in'tturn, testified that he had never fired a maid, and
though he might' order it done, he had not done so in his 12 years at the hotel.
Adams admitted ,that Shelley, called her attention to the condition of one of her
rooms and testified that she informed him that she had not yet cleaned the room,
that she was off the preceding day, and had not cleaned it then. Taylor also admitted
that Shelley showed her the apple he found in one of her rooms and testified she
explained that she had been off'the day before and had not cleaned the room that
day.
Stipulations entered into on the basis of Respondent 's vacant room reports and
timesheets showed the following facts: -
Room 758 was on Ethel Adams' station from March 13 through March 17. It
was reported in order on each day from March 14 through March 17, during which
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time it remained vacant. It was inspected by Adams on the 15th and 17th, but by
some other maid on March 16, which was Adams' day off. -
. Room 438 was on Taylor's station from March 12 through March 17. It was
reported vacant and in order by Taylor on the 13th through the 17th, but by some
other maid on March 16, on which day Taylor was off.
Room 774 was on Everett's station. It was-occupied on March 13 and 14, on
which days Everett did not work. It was vacant and reported in order on the 15th,
and was occupied on the 16th and 17, on which days Everett inspected and cleaned
the room.
Everett testified that she had never been warned that her work was unsatisfactory,
that Shelley had twice inspected some of her rooms, and once complimented her on
her work. Adams testified that she had never been warned that her work was
unsatisfactory, though Thompson, the inspector, sometimes sent her back to put out
soap or toilet tissue. Taylor testified to similar effect.
Concluding Findings
The burden was upon the General Counsel, of course, to establish by a preponder7
ante of the evidence that Respondent discharged Everett, Adams, and Taylor because
of their union membership and activities. W. C. Nabors, d/b/a W. C. Nabors
Company, 89 NLRB 538, 540, enfd. 196 F. 2d 272 (C.A. 5), cert. denied 344 U.S.
865. Considering the case first as it was postured by the General Counsel's evidence,
a prima facie case was plainly made out that Respondent was discriminatorily
motivated in making the discharges. That action is to be viewed, of course, in the
light of the widespread and systematic interrogation of employees and the threats
of discharge found in section B, above; it was plainly a part and a continuation of
the same course of conduct. Indeed the discharges occurred, without warning, hard
on the heels of Gordon's poll, during which the three dischargees had acknowledged
their union membership, and it included the two leaders in the organizational activities
among the maids.
The question remains whether Respondent's evidence is sufficient to overcome
the General Counsel's prima facie case (cf. Law, et al., d/b/a E. B. Law and Son v.
N.L.R.B., 192 F. 2d 236, 238 (C.A. 10), citing Montgomery Ward & Co. v. N.L.R.B.,
107 F. 2d 555, 560 (C.A. 7), and see Seventeenth Annual Report (1952) NLRB,
page 135) and the conclusion, plainly supported by the foregoing circumstances, that
Respondent discharged the three maids to discourage membership in the Union.
Respondent's defenses were (1) that it had no knowledge of the union membership
of the three maids, and (2) that it made the discharges because of the deplorable
conditions in the rooms which were inspected.
(1) As Gordon admitted that she learned from the poll that several of her
employees had signed union cards, and-as she made no denial of the testimony of
the three dischargees that they acknowledged doing so, her knowledge of their union
membership was plainly established. With that knowledge Gordon participated
with Shelley in the room inspection and in their joint decision to discharge the three
maids, and she herself made the discharges. Gordon's knowledge of their union
membership was plainly attributable to Respondent under all the circumstances,
regardless of when she reported to Shelley?
(2) Respondent's evidence plainly established that Shelley and Gordon found
conditions on their inspection tour for which the dischargees were responsible and
which would furnish grounds for discharge. The explanations and excuses which
the maids gave were plainly overcome by the stipulated facts concerning the room
reports, and the discharge of Inspector Thompson-neither refuted or questioned
here-appeared to establish the adequacy of the grounds assigned for discharging the
maids.
There still remains the question of the motivating cause of the discharge, for it is
well established that if the motivating cause of a discharge is the union activity of
the discharged employees, then the discharge is unlawful even though there might
have been a proper ground for the discharge. N.L.R.B. v. Hudson Pulp and Paper
Company, 273 F. 2d 660 (C.A. 5). Or stated differently, the;existence of some
justifiable ground for discharge is no defense if it was not the "moving cause." Wells
Incorporated v. N.L.R.B., 162 F. 2d 457, ,460 (C.A. 9); Sunshine Biscuits, Inc. V.
N.L R.B., 274 F. 2d 738 (C.A. 7), and cases there cited. -
2 It is found, however, on the basis of the entire evidence, including Gordon's initial
testimony on direct examination, that she reported to Shelley on the same day she con-
ducted the poll and before the discharges. r .
SOUTHWEST HOTELS, INC. 1249
In determining whether Respondent's evidence concerning the results of the room
inspection overcomes the conclusion, clearly supported by the General Counsel's
evidence, that Respondent acted to discourage the Union's campaign, the following
facts are of prime significance:,
(a) The timing of the inspection sand the discharges, which occurred at the height
of Respondent's unlawful conduct to restrain and coerce the employees from joining
in organizational activities.
(b) The limiting of the inspection, with the exception of a single room, to the
stations of three maids who that morning had acknowledged to Gordon their union
membership.
The latter fact plainly, suggested that Respondent set out deliberately to find some
ground, colorable or otherwise,-on which to base a discharge action. That inference
is strongly supported by the undenied testimony of each of the three maids that she
had received no previous warning of discharge, or even that her work was unsatis-
factory, and by the lack of any direct evidence that a single maid had ever been
discharged because of failure to properly clean her rooms.
And though we recognize again that the conditions which Respondent found
constituted grounds for discharge, the conclusion is yet warranted that the motivating
reason for Respondent's action was to discourage participation in the Union's
campaign, as so plainly manifest from its entire course of conduct, including its
threats to discharge for that very reason. It is so found.
Even were it assumed, arguendo, that the organizational activities were not the
sole reason for the discharge, the evidence plainly showed that they were one of the
motivating reasons. In that case the situation would be reduced to one in which
Respondent had two reasons for discharge, one lawful and one unlawful. But that
would not avail Respondent, for it is well established that an employer violates
Section 8(a)(3) where "employees are discharged partly because of their participa-
tion in a campaign to establish a union and partly because of some neglect or de-
linquency." N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).
To similar effect are N.L.R.B. v. Minnesota Mining & Manufacturing Company,
179 F. 2d 323, 327 (C.A. 8) ("union affiliations and activities either caused or
contributed to his being separated from his job"); N.L.R.B. v. Whitin Machine
Works, 204 F. 2d 883, 885 (C.A. 1) ("It need not be the only reason, but it is
sufficient that it is a substantial or motivating reason.")
It is therefore concluded and found on the basis of the entire evidence that
Respondent discharged Everett, Adams, and Taylor in order to discourage union
membership and activities. •
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain. affirmative
action of the type conventionally ordered in such cases, which I find necessary to
remedy and to remove the effects of the unfair labor practices and to effectuate the
policies of the Act. For reasons which are stated in Consolidated Industries, Inc.,
108 NLRB 60, 61 and cases there cited, I shall recommend a broad cease and desist
order.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Charging Union is a labor organization within the meaning of Section 2(5)
of the Act.
2.' By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discharging Mabel Everett, Ethel Adams, and Madelyn Taylor on March 17,
1959, Respondent engaged in discrimination to discourage membership in the
Charging Union, thereby engaging in unfair labor practices proscribed by Section
8 (a) (3) and (1) of the Act. . •
4. The aforesaid unfair labor practices, having occurred in connection with the
operation of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act.
[Recommendations omitted from publication:]
560940-61-vo1 127-80