Springs Motel

National Labor Relations Board - Board Decisions

Jun 10, 1986

280 N.L.R.B. 284 (N.L.R.B. 1986)

284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Springs, Inc., d/b/a Springs Motel and Service Em-
ployees' International Union , Local 557, AFL-
CIO. Case 9-CA-20549
10 June 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 6 July 1984 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended
Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings
No exceptions were taken to the judge 's finding that the Respondent
did not threaten to decrease the waitresses ' hours of employment or to
ban cigarette smoking at waitress stations in violation of the Act.
The judge declined to decide whether Supervisor Fox asked employee
Ferrell if she signed a union authorization card, noting that a determina-
tion would require a resolution of the conflicts between their testimony
and that a finding of unlawful interrogation would be cumulative . As nei-
ther the Charging Party nor the General Counsel has excepted and inas-
much as we are unable to make a credibility resolution on the record
before us, we do not reach the issue here.
a Chairman Dotson, dissenting in part , would reverse the judge's find-
ing that the Respondent violated Sec . 8(a)(l) by interrogating employees
on three occasions following company-sponsored meetings with labor
consultant Lyn Rogers and by creating an impression of surveillance of
the employees ' union activities . Regarding the interrogations , the Chair-
man notes that Supervisor Nancy Fox asked employees Ferrell and
Heischberg in separate incidents after the meetings, "How did it go?"
Fox had not attended these meetings . On another occasion during a meet-
ing that Fox did attend , Rogers asked Ferrell for comments about a
newspaper article he distributed which gave details of a strike at another
employer 's facility and the contract negotiated by the union and the em-
ployer . Ferrell made one comment but refused to finish another and left
the meeting . Fox followed Ferrell out, told her to feel free to speak, and
said Fox was there and "everything would be all right." In the Chair-
man's view the judge improperly distinguished Rossmore House, 269
NLRB 1176 (1984), on the basis that the three incidents did not involve
known union supporters and concluded that Fox 's "repeated 'implicit in-
vitations . . to disclose .. [union] sympathies,' anti-company feelings,
and the effectiveness of the Respondent 's anti -union campaign" tended to
be coercive. He finds that the judge failed to consider the circumstances
in which the questioning took place and that considering all the circum-
stances the questions amounted to nothing more than harmless curiosity
In this connection he notes that the questions were not phrased to elicit
union sympathies , that the only logical and apparent object of the inquir-
ies was the quality of Rogers' presentations at the meetings that Fox did
not attend, and that the record establishes that the employees answered
candidly . He also finds that Fox's telling Ferrell she was free to comment
and assuring her that everything would be all right can hardly be charac-
terized as tending to instill fear or restraint in employees . Finally, in the
absence of evidence that Fox articulated the Respondent 's view when she
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Springs,
Inc., d/b/a Springs Motel, Lexington, Kentucky,
its officers, agents, successors , and assigns, shall
take the action set forth in the Order.
told Ferrell that she "did not feel" that enough employees signed union
authorization cards to ensure the Union's victory, and in the absence of
evidence that Fox's department-by-department estimation of union
strength referred to unlawfully obtained information , Chairman Dotson
finds that Fox's statements constituted a lawful expression of her personal
opinion and did not create an impression of surveillance among employ-
ees.
Members Dennis and Babson conclude that the judge correctly found
under Rossmore House, above, that Supervisor Fox's systematic interroga-
tion of employees Ferrell and Heischberg following company-sponsored
campaign meetings violated Sec. 8 (a)(1) of the Act. They disavow, how-
ever, the judge 's statement that Rossmore House held that "even hostile
inquiry into the union sympathies of an employee prominently identified
with the union does not tend to interfere with the employee's free exer-
cise of Section 7 rights .11
Further, in adopting the judge 's finding of unlawful creation of the im-
pression of surveillance , Members Dennis and Babson agree with the
judge's application of the test set forth in South Shore Hospital, 229
NLRB 363 (1977), and find that employees would reasonably assume
from Fox 's specific estimation of card signings in several departments
that their union activities had been placed under surveillance.
Damon W. Harrison Jr., Esq., for the General Counsel.
Charles H. Zimmerman Jr., Esq., and Michael A. Luvisl;
Esq. (Greenebaum, Young, Treitz & Maggiolo), of Lou-
isville, Kentucky, for the Respondent.
Irwin H. Cutler Jr., Esq. (Segal, Isenberg, Sales & Stewart),
of Louisville, Kentucky, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
matter was tried before me on May 2 and 3, 1984, in
Lexington, Kentucky, on the General Counsel's com-
plaint' alleging, in substance, that Respondent, by its su-
pervisor, Nancy Fox, in violation of Section 8(a)(1) of
the National Labor Relations Act (the Act) unlawfully
interrogated employees regarding their union activities,
and threatened them with discharge and loss of benefits
concerning their union activities and created an unlawful
impression among its employees that their union activi-
ties were under Respondent 's surveillance . Respondent's
timely filed answer admits certain of the allegations of
the complaint, denies others , and denies the commission
of any unfair labor practices.
At the hearing, all parties were represented by counsel
and were given full opportunity to call and examine wit-
nesses, to submit oral and written evidence, and to argue
orally on the record. After the close of the hearing,
counsel for all parties engaged in oral argument on the
i The charge, filed by Services Employees' International Union, Local
557, AFL-CIO (the Union) on January 12, 1984, was served on Respond-
ent Springs, Inc, d/b/a Springs Motel on the same date . The complaint
issued on February 29, 1984.
280 NLRB No. 33
SPRINGS MOTEL
record at my request and also submitted posthearing
briefs which have been carefully considered.
On the entire record , including the briefs , and from
my observations of the demeanor of the witnesses as
they testified , I make the following
FINDINGS OF FACT
1. RESPONDENT AS EMPLOYER
The complaint alleges , Respondent admits , and I find
that at all material times , Springs , Inc., d/b/a Springs
Motel has been and is a Kentucky corporation with an
office and place of business in Lexington, Kentucky,
where it is engaged in the operation of a hotel and res-
taurant . I further find that during the 12 -month period
preceding the issuance of complaint , a representative
period of Respondent 's business , Respondent derived
gross revenues in excess of $500,000, and during the
same period purchased and received at its Kentucky fa-
cility products , goods, and materials valued in excess of
$5000 directly from points outside the State of Kentucky.
Respondent admits and I find that at all material times it
has been and is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
H. THE UNION AS A LABOR ORGANIZATION
The complaint alleges , Respondent admits, and I find
that at all material times , Service Employees ' Interna-
tional Union, Local 557 AFL-CIO (the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
As above noted , Respondent operates a motel and res-
taurant in Lexington , Kentucky, employing a total of
about 180 employees including custodial , maintenance,
desk, housekeeping , and dining room employees. In the
dining room, Respondent employed a total of about 28
busboys, waitresses , and hostesses (supervisors), exclud-
ing cooks and kitchen help. The focus of the alleged
unfair labor practices relates to the dining room where
Respondent used approximately five waitresses each
evening with seven to eight on the weekends. These
waitresses also from to time serve at lunch on particular
days of the week.
Discussions of union activity among employees of Re-
spondent have been occurring since about July 1983. Re-
spondent knew of such discussions (Tr. 11, 250).
In the period September through November 1983,
when the alleged unfair labor practices were to have oc-
curred , Respondent maintained four hostesses to cover
its weekly operations: hostesses Joan Price , Patsy Delp,
Marie O'Rourke, and Hilda Mucio and Dining Room
Mananger Nancy Fox. Fox worked a 6-day week cover-
ing most lunches and six evenings . Respondent admits
that its hostesses and its dining room manager are super-
visors within the meaning of Section 2(11) of the Act
and Respondent 's agents within the meaning of Section
2(13) of the Act.
285
The waitresses who testified in this proceeding all
worked a 5 to 10 p.m . shift, 5 nights per week, with one
to two lunches per week . Although it seemed to me that
Respondent 's witnesses generally sought to deny that
waitress Betty Lilley was the most prominent union sym-
pathizer among its waitresses in the above period, I con-
clude from the testimony of Respondent 's supervisor,
Marie O'Rourke, and from Respondent 's concession in
its brief (Br. 16), that Respondent knew that Betty Lilley
was the prominent union sympathizer and that she was
identified as the most dedicated union adherent among its
waitresses . On this matter and others, in my evaluation
of the credibility of the witnesses in this proceeding, I
have credited much if not all the testimony of Supervisor
Marie O'Rourke on my observation of her as a careful,
reluctant, and accurate witness . I have also credited the
testimony of Mary Heischberg Daugherty (identified in
places in the transcript as "Mary H."). Mary Heischberg,
no longer employed by Respondent, like Marie
O'Rourke, was a reluctant witness , with no apparent
stake in the outcome , who impressed me as being accu-
rate and careful and who desired nothing more than to
escape the rigors of testifying in this proceeding both in
direct and cross-examination . To the extent , however,
that Mary Heischberg 's testimony corroborates the Gen-
eral Counsel 's chief witness Alyce Ferrell , I also credit
Ferrell . Ferrell and Heischberg were the General Coun-
sel's sole witnesses . To the extent that Heischberg is con-
tradicted by the testimony of Respondent's witnesses, es-
pecially Nancy Fox, I credit Heischberg principally for
the above reasons.
Respondent's employees, in general , and the waitress-
es, in particular, talked among themselves regarding the
wisdom of supporting the Union in July 1983 with the
chief proponent of the Union being waitress Betty Lilley.
Sometime about September 1983, Respondent held
three meetings on a day wherein it presented its labor
consultant , Lyn Rogers, to various employees to express
Respondent 's position that the employees did not need
this particular Union, that the Union would not help
them , and that the particular background of the Union
made it a poor choice for the employees. The employees
were obliged to attend and were paid for all time spent
in the meeting.
Alyce Ferrell attended one of the meetings and testi-
fied that there were no supervisors present among the 25
to 30 employees who were there. After the meeting,
Nancy Fox spoke to her and asked her: "How'd it go?"
Ferrell answered that she did not understand the meet-
ing; that she had never been handed a union card prior
to that day; that Consultant Rogers was a joke , ignorant,
and out of control at the meeting; and that she was
handed a union card in the parking lot in front of TV
cameras that day.
Mary Daugherty Heischberg, who, after initial coop-
eration during the investigation with the General Coun-
sel, thereafter refused to cooperate with the General
Counsel or the Union in preparing for the hearing , testi-
fied that she too attended one of the meetings addressed
by Labor Consultant Rogers along with 25 other em-
ployees and that, as in the case of Ferrell, Nancy Fox
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked her, after the meeting, "[h]ow it went?" Heisch-
berg told her it was a waste of money, that the meeting
riled people up. Nancy Fox told her that Rogers had
been hired to inform the employees of the lack of
wisdom of supporting that particular union.
A few weeks later, in late September or early October,
Ferrell attended another such meeting at which Rogers
spoke. Fox was present. Rogers asked Ferrell to read
some newspaper articles and asked her if she understood.
Ferrell then said , referring to the article, that the con-
tract mentioned therein should not have been ratified and
the employees would not have gone on strike . Ferrell
then said she wanted to make a further comment and
then said she was not going to make it. When Rogers
told her that she should feel free to say anything she
would like to, Ferrell refused and left the meeting. Fox
also left and invited Ferrell to say what she wanted to
say (Tr. 28). After first refusing , Ferrell said she knew
about strikes and had "survived" a 110-day strike in
which her husband, a "union man," participated.
B. Discussions and Conclusions: Interrogation
The complaint alleges that during September 1983 Re-
spondent , by Nancy Fox, coercively interrogated its em-
ployees regarding their union membership, activities, and
sympathies in violation of Section 8(a)(1) of the Act. Re-
spondent does not deny the occurrence of the above
meetings of the Fox-Ferrell, Fox-Heischberg conversa-
tions, as above described.
The credible evidence shows only that in September
1983 Respondent obliged its employees to attend meet-
ings dedicated to convincing them to not support the
Union and thereafter asked two employees , in substance,
"How did it go?" or "How it went?" Neither employee,
on this record , was prominently identified with the
Union; neither employee was overtly intimidated by the
questions.
Supervisor Fox's inquiries to both Ferrell and Heisch-
berg, of course , constitute interrogation . The statutory
question, however, is whether her questions to them
after the meetings represent "coercive interrogation,"
which is banned by Section 8 (a)(1) of the Act. As noted
in NLRB v Laredo Coca Cola Bottling Co., 613 F.2d 1338
(1980), cert. denied 105 LRRM 2658 (1980), although in-
terrogation into union activities is not per se illegal, "any
interrogation [concerning union activities] presents an
ever present danger of coercing employees in violaton of
their Section 7 rights." Whether a particular instance of
interrogation reasonably tends to coerce employees is de-
termined in light of the totality of the circumstances in
which the interrogation occurs.
In the recent case in Rossmore House , 269 NLRB 1176
(1984), overruling PPG Industries, 251 NLRB 1146
(1980), the Board held that even hostile inquiry into the
union sypathies of an employee prominently identified
with the union does not tend to interfere with the em-
ployees' free exercise of Section 7 rights and is therefore
not "coercive" within the meaning of Section 8(axl).
The Board , in returning to a prior view of coercive in-
terrogation under the Act, states the present rule to be:
"whether under all of the circumstances , the interroga-
tion reasonably tends to restrain , coerce, or interfere
with rights guaranteed by the Act." In this regard, the
Board citing Mid-West Stock Exchange v NLRB, 635
F.2d 1255, 1267 (7th Cir. 1980), announces that hereafter
it will not find casual interrogation of an employee to be
"coercive" because such a rule is a "per se" rule which
disregards both the circumstances surrounding an alleged
interrogation and ignores the "reality of the work place."
The Board overruled PPG, supra, and similar cases: "to
the extent they find that an employer's questioning open
and active union supporters about their union sentiments
in the absence of threats or promises, necessarily inter-
feres with, restrains, or coerces employees in violation of
Section 8(aXl) of the Act."2
In the instant case , the employees were obliged to
attend what amounts to Respondent-sponsored antiunion
meetings, however lawful under Section 8(c) of the Act,
after which two employees were asked what their senti-
ments were. As in NLRB v. Laredo Coca Cola Bottling
Co., supra, 103 LRRM at 2906, Fox's questions to Ferrell
and Heischberg, of "[h]ow did it go" were repreated
"implicit invitations ... to disclose ... [union] sympa-
thies," anticompany feelings, and the effectiveness of the
Respondent's antiunion campaign among employees.
Thus, these were not the casual questions put to employ-
ees as a matter of shop talk concerning the give and take
of union activity as in Graham Architectural Products
Corp. v. NLRB, 697 F.2d 534, 541 (3d Cir. 1983), cited
with approval in Rossmore House, supra, because in the
instant case , the Fox interrogation was (1) systematic; (2)
following an antiunion meeting which the employees
were obliged to attend ; (3) occurred during a union or-
ganizational effort; (4) and were designed to cause the
employees to divulge union sympathies. Again , (5) nei-
ther Ferrell nor Heischberg, on this record, was identi-
fied, certainly at the time of Fox's questions , as promi-
nent union sympathizers. Fox's questions to Ferrell fol-
lowing the second antiunion meeting explicitly required
Ferrell to divulge her sentiments regarding strikes in sup-
port of collective-bargaining agreements.
In short, I conclude that an employer 's systematic oral
inquiry of its employees emerging from employer-spon-
sored antiunion meetings concerning the effectiveness of
Respondent 's otherwise lawful attempt to dissuade em-
ployees from supporting the Union, whether or not re-
garded as unlawful polling under Struksnes Construction
Co., 165 NLRB 1062 (1967),' still constitutes coercive in-
terrogation within the meaning of Section 8(axl) of the
Act. As I perceive the Board position on this matter, it is
still the Board rule, as stated in Quemetco, Inc., 223
NLRB 470 (1976), as favorably cited by the court in
NLRB v. Laredo Coca Cola Bottling Co., 103 LRRM at
2906, that with regard to Fox's "friendly interrogation":
An employee is entitled to keep from his employer
his views so that the employee may exercise a full
' The Board, while citing with approval the standards for unlawful in-
terrogation , announced in Bourne v. NLRB, 332 F.2d 47 (2d Cir. 1964),
notes that the Bourne standards are not to be mechanically applied.
8 The Struksnes standards require, inter aha, explicit assurances against
reprisal by the polling employer and the polling of the employees by
secret ballot . Neither of these two elements were present in the instant
interrogation.
SPRINGS MOTEL 287
and free choice on whether to select the Union or
not, uninfluenced by the employer's knowledge or
suspicion about those views and the possible reac-
tion toward the employee that his views may stimu-
late in the employer. That the interrogation might
be courteous and low keyed instead of boisterous,
rude and profane does alter the case.
As the Board noted in Quemetco, Inc., supra, it is "the
effort to ascertain the individual employee's sympathies
by the employer, which wields economic power over
that individual, which necessarily interferes with or in-
hibits the expression by the individual of the free choice
guaranteed him by the Act." I therefore conclude that
Respondent's inquiries in September 1983 and early Oc-
tober to Ferrell and Heischberg, as alleged, violate Sec-
tion 8(a)(1) of the Act as unlawful "coercive interroga-
tion" because they "tend to coerce" within the Rossmore
House rule, supra.
Respondent's defense (Br. 13) is that Fox's questions
were "not calculated to determine [the employee 's] union
membership , activities or sympathies." I conclude to the
contrary. But even if that was not Fox's design, the
Board rule is not based on intent in fording violations of
Section 8(a)(1) in coercive interrogation. Rather, the rule
is "whether under all the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere with
rights guaranteed by the Act." Rossmore House, supra.
Such a standard is consistent with Board interpretation
of 8(a)(l ) violations. El Rancho Market, 235 NLRB 468,
471 (1978), and cases cited (tendency to interfere, not
employer motive, is the criterion).
C. The Coffeepot Incident
The testimony in this record regarding the "coffeepot
incident" is noteworthy for the extensive contradiction
between and among the witnesses, the contradiction
within Respondent 's witnesses' testimony being some-
what greater than between the General Counsel's two
witnesses , Ferrell and Heischberg . Because of contradic-
tions among Respondent 's witnesses on significant points,
I tend to credit Ferrell's and Heischberg's versions (espe-
cially where Heischberg corroborates Ferrell) and do not
credit Respondent's witnesses regarding this incident.
In late September 1983, in the evening , waitresses
Mary Heischberg and Betty Lilley were working adjoin-
ing stations. Alyce Ferrell was working nearby. Mary
Heischberg ran out of coffee and took a coffeepot from
the adjoining Lilley service station. Lilley, on the dining
room floor, told Heischberg to put the coffeepot back
and to get her own coffee. Nevertheless, Heischberg
took the pot and poured coffee for her customers. Later
that evening, Heischberg complained to Lilley on the
work floor concerning why she "called her down" in
front of customers. Although Supervisor Nancy Fox did
not hear this conversation, she became aware of it
through other means and walked back to Heischberg and
Lilley inquiring whether there was something she could
help them with. Lilley and Heischberg told her that
there was no problem and that they could handle the sit-
uation . About a half an hour later , Heischberg com-
plained to Fox that she did not have to work under these
circumstances and conditions with Lilley calling her
down in front of customers. Fox told Heischberg that
she would speak to both of them. Later in the week, in
the dining room, with Ferrell present, Heischberg told
Fox that if "she [Lilley] fools with me, I'll pull her wig
off."4 To the extent that Supervisor Fox denies ever
having heard Heischberg threaten to pull Lilley's wig
off, I credit Heischberg and do not credit Fox. This
credibility resolution is based on the credited testimony
of Supervisor Marie O'Rourke who testified that Super-
visor Fox was present when waitress Heischberg said
that she would pull Lilley's wig off.
When Heischberg threatened to pull Lilley's wig off, I
credit Heischberg's testimony, and do not credit Fox's
denial, that Fox then said that this would be a good way
to get rid of Betty Lilley; that Heischberg and Lilley get
into a fight on the floor whereupon Fox would fire both
of them and thereafter rehire Hieschberg. Heischberg
credibly testified, supporting Ferrell's testimony, that
thereafter, while having coffee with Alyce Ferrell
present, Nancy Fox again stated that Heischberg should
"go ahead and have a fight" with Lilley so that she
could fire both of them and later rehire Heischberg (Tr.
40, 119). Finally, Heischberg testified that on a third oc-
casion, perhaps 2 weeks later, after her original threat to
tear off Lilley's wig , Fox asked Heischberg whether she
was "going to get her" (Lilley). Fox denies asking any
such statement but rather testified that she said that
when Heischberg threatened to get Lilley, all that Fox
said was that if she did, Fox would fire both of them. I
do not credit Fox's version.
Another Respondent witness, Mary Kay Smithers, tes-
tified that not only did she hear Heischberg threaten to
"whip that bitch," but testified that it was Mary Kay
Smithers who told Nancy Fox, in front of Ferrell and
Heischberg, that because Smithers was not going to
remain in employment for much longer,5 she would be
willing to fight Lilley on the floor so that Fox could fire
the both of them. Smithers testified that Fox said that if
Smithers fought Lilley on the floor, she would fire
Smithers and Smithers answered that nothing would pre-
vent Fox from rehiring Smithers. Although Smithers'
testimony suggests that Fox did not answer her, Supervi-
sor Mucio testified that Fox said that she would not hire
Smithers back. In particular, however, Smithers, contra-
dicting Fox on whether these statements were made in a
joking manner , testified that, in making this remark to
Supervisor Nancy Fox, Smithers said it in a serious vem:
that she would "whip" Lilley. I find it significant that
Nancy Fox and other Respondent's witnesses, contradict-
ing Smithers , testified that all the conversations regard-
ing either pulling the wig off Lilley or "whipping her"
(or, as Smithers put it, "slap the shit" out of Lilley) were
uttered in a joking manner . I conclude that, in fact,
Heischberg not only threatened to tear the wig off Lilley
if Lilley continued to "fool with her," but also threat-
4 Notwithstanding that Heischberg denied it, I credit Respondent's
witnes$es, particularly Fox, who say they also heard Heischberg threaten
to "whip that bitch."
s Smithers , however, remained in employment through the time of the
instant hearing.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ened to "whip the bitch." I further conclude that as
Heischberg and Ferrell credibly testified, Fox on more
than one occasion seriously urged Heischberg to get into
a fight on the floor with Lilley so that she could fire
them both and thereafter rehire Heischberg. I conclude
that Fox was serious and repeatedly urged Heischberg to
engage in that misconduct . The purpose of this staged
misconduct was to get rid of Lilley.
Supervisor Hilda Mucio, employed as a supervisor for
20 years, testified that on numerous occasions during
Betty Lilley's 5 years as a waitress, she recommended to
Supervisor Fox that Respondent fire Lilley. On each
such occasion, Fox refused, saying that she would work
things out with Lilley. Lilley was never discharged.
Lilley was the most prominent union proponent in Sep-
tember-October 1983. Respondent knew of Lilley's sym-
pathies at this time.
On the above record, I conclude that the inference
which should be drawn concerning why Fox urged
Heischberg to fight Lilley on the floor, then firing both
of them and subsequently rehiring Heischberg, was to rid
Respondent of Betty Lilley, the most prominent employ-
ee union supporter. I reach this conclusion on the facts
that (1) I credit, in substance, Heischberg's version, espe-
cially as it corroborates Ferrell's version; (2) I was par-
ticularly impressed by the Smithers contradiction of Fox
and Mucio in that Smithers testified that she seriously
urged a serious fight between herself and Lilley where as
Mucio and Fox contradicted Smithers, in substance, and
said that all urgings of such a fight were in a joking
manner; and (3) 1 was also impressed by Fox's testimony
that in the event of a floor fight involving Heischberg or
Smithers and Lilley she would fire both participants.
This was the Fox response as testified to by Smithers,
Heischberg, and Ferrell (although, according to Heisch-
berg and Ferrell, Heischberg would be rehired). Howev-
er, such a Fox response raises the ominous question of
why Fox would be constrained to fire both the aggressor
(Heischberg or Smithers) as well as Lilley in the event of
a floor fight. Certainly Lilley was known to Fox to be
innocent of any physical aggressiveness towards any of
her would-be attackers. Thus there is no reason for Su-
pervisor Fox to state that she would fire both partici-
pants in a fight in which Lilley was innocent, was known
to Fox to be innocent, and when the other participant
was the premeditated , physical aggressor . I conclude that
Fox's repeated urging of Heischberg to get into a fight
on the floor with Lilley so that she could fire both of
them and thereafter rehire Heischberg , made in Septem-
ber 1983 as alleged, was a threat to fire Lilley because of
her union activities, a threat in violation of Section
8(a)(1) of the Act.
D. The Busboy Tip Incident
The regular practice in Respondent's dining room was
for waitresses to voluntarily give money to the busboys.
The waitresses would deposit money in an envelope,
sometimes with the donor's name on the envelope, in
common with other waitress donors. On one occasion,
Fox told Alyce Ferrell that the tip that she had enclosed
in the envelope was not enough and that a further dollar
was needed. Ferrell gave the extra dollar. About a week
later, in late September or early October, Ferrell was
about to deposit tip money in an envelope marked with
the name of another waitress when she discovered that
the envelope was empty. She remarked to waitress
Lilley, who was then leaving, that she "couldn't believe
it"; that she had been "called down" for not leaving
enough tips and that she had discovered that another
waitress' envelope for busboy tips was actually empty.
Lilley then left. Supervisor Fox came over and told Fer-
rell that she would be willing to talk about it. After they
discussed Ferrell's complaint concerning the failure of
the other waitress to leave a tip for the busboy, the con-
versation led to Supervisor Fox asking Ferrell what she
thought of a 3-day suspension of Betty Lilley, which had
occurred around this time. Ferrell credibly testified that
she told Fox that Respondent had made a mistake, that
anyone could "set up" an employee6 and that Respond-
ent had suspended Lilley without a signed customer
complaint. Fox admitted it. When Ferrell repeated that
Respondent had erred in its treatment of Lilley and that
Respondent had no complaint against Lilley for miscon-
duct, Ferrell credibly testified that Fox then said that if
Ferrell "fooled with Betty Lilley, [Ferrell] would be out
the front door with her." I also credit Ferrell's further
testimony that Fox admonished Ferrell not to be a fol-
lower of Lilley, but rather to be a "leader" and not to let
her fellow waitresses guide her thinking. Although I do
not credit Ferrell's further testimony, adduced as another
description of this conversation with Fox, in which Fox
said that if she continued to "fool with Lilley" she
would be out the front door "because Betty [Lilley] is a
union supporter," I do not conclude that it is sufficient
to generally discredit Ferrell. I regard this subsequent
"sweetened" addition as an attempt to advise me what
Fox's conversation actually meant rather than what Fox
actually said. I do not credit Fox's blanket denial of this
conversation regarding Ferrell being "out the door" if
she continued to "fool with" waitress Betty Lilley. The
circumstances and timing convince me that Ferrell's tes-
timony on this point rings true.
In view of the above findings of unlawful interroga-
tion by Supervisor Fox, I need not reach or decide the
credibility issue relating to apparent unlawful interroga-
tion posed by Ferrell's further testimony, and Fox's
denial, that, at this juncture, Fox asked Ferrell if she had
signed a union card, that Ferrell denied signing the card
because she did not know enough about the Union, and
that Ferrell said Respondent's employees did not need a
union at this time because the problem was a manage-
ment problem that management should solve. The
remedy would be the same in the presence or absence of
a finding on this alleged interrogation.
I do not credit Ferrell's uncorroborated further testi-
mony that Fox then added that if a union came in, there
would be no smoking at the work stations and that Re-
spondent would hire more waitresses and cut the wait-
resses ' working hours . Rather, I credit Fox 's testimony
6 Ldley had been laid off after a customer complaint concerning her
performance without the customer having made the complaint in writing,
a practice apparently sometimes required by Respondent to effectively
deal with the allegedly erring employee
SPRINGS MOTEL
that a similar conversation occurred when Fox, under
emergency conditions, was cleaning off a table; that it
was Ferrell who told her that if a union came in Fox
would no longer be permitted to wait on the tables; and
that Fox answered that if a union came in maybe Re-
spondent would hire more waitresses in order to ade-
quately staff the dining room. I further credit Fox who
testified that she said nothing about cutting the hours of
the waitresses. In addition, I credit Fox's testimony that
no waitress had ever told her that they did not like Fox's
waiting on tables or clearing tables especially under
emergency conditions. On crediting Fox on this portion
of the conversation, I regard it as "out of character" for
Fox to have made blunt antiunion remarks. That I never-
theless concluded that, in the same conversation, she un-
lawfully threatened to discharge Ferrell flowed from my
observation that Fox's animus was directed at Lilley for
unlawful reasons and that her threat to Ferrell was
merely cautionary.
Thus, I conclude that as alleged in the complaint, Fox,
in late September or early October 1983, threatened to
discharge Ferrell if she continued to associate with
known union supporter, Betty Lilley, and that such a
threat violates Section 8(a)(1) of the Act. On the other
hand, contrary to the allegation of the complaint, I find
insufficient credible evidence to support the allegation
that Respondent threatened employees with the loss of
benefits if the Union became their collective-bargaining
representative. I recommend that the Board dismiss this
latter allegation.
E. The Alleged Unlawful Impression of Surveillance
Supervisor Fox and Alyce Ferrell are in apparent
agreement that on Alyce Ferrell's breaktime about Octo-
ber 1983, in the dining room, she and Alyce Ferrell had
a conversation, without other witnesses, at the round
table near the lobby door. There is no dispute that Fox
said that she did not think there were enough cards
signed for the Union to come in; that the bar employees
did not want the Union; that housekeeping employees
did not want the Union; that the dining room employees
were "so-so" about the Union; and that the kitchen em-
ployees were an unknown matter regarding their union
preference.
In substance , Ferrell testified that the conversation
started with Nancy Fox saying that she did not feel there
were enough union cards signed for "Springs to go
union ." Fox, on the contrary, testified that it was Alyce
Ferrell who asked Fox if she thought that the Union
would come in whereupon Fox gave her estimates of
union strength in the various departments among Re-
spondent's employees, i.e., bar, dishwashers, dining
room, ending with her conclusion that there were prob-
ably not enough cards signed for the Union to be suc-
cessful. Fox failed to deny Ferrell's testimony that Fox
mentioned a particular employee-"Alma"-and Fox's
being unable to be "real sure" about Alma [and her
union sympathies]. Ferrell testified that she told Fox
[about Alma]: "You may be surprised." (Tr. 64; 226, et
seq.)
Because I credit the testimony of Alyce Ferrell in this
particular exchange and reject Fox's version that it was
289
Alyce Ferrell who started the conversation, it is unnec-
essary to decide the further question (raised by the Gen-
eral Counsel) of whether there would be an unlawful im-
pression of surveillance even if Alyce Ferrell asked Fox
if Fox thought that the Union would come in. The Gen-
eral Counsel's theory is that there would have been the
creation of an impression of unlawful surveillance by
Fox enumerating her particularized estimate of union
sentiments in the various departments notwithstanding
that Ferrell initiated the conversation. The employee
thus would have only raised the general question of
union success and received from Fox an itemized esti-
mate of union strength on a department-by-department
basis. In any event, as I have noted, I credit Ferrell over
Fox. The basis for this credibility preference is that there
are uncontroverted in this record conversations between
Ferrell and Fox in which Fox, according to Ferrell's
credited testimony, consistently urged Ferrell, in particu-
lar, to "feel free to say anything" concerning her reac-
tion to a later antiunion meeting run by Lyn Rogers at
which both Fox and Ferrell were present. This meeting,
as above noted, took place about 2 weeks after the first
meeting . When Fox urged Ferrell to talk freely to her
concerning Ferrell's reaction to the meeting and certain
events at the meeting, Ferrell at first refused. I believe
that in judging the relative restraint in discussing union
matters, I would find that Fox, in trying to determine the
employees' union sentiments, including Ferrell's particu-
lar position, might well take, and did take, the initiative.
I also find that Ferrell, without Fox's prodding, was not
anxious to discuss her union sentiments with Fox. Thus, I
consider it unlikely that Ferrell would initiate a conver-
sation with Fox and ask her if Fox thought that the
Union would be successful.
I therefore conclude that Fox, by declaring, in a con-
versation with Ferrell, in October 1983, that there were
not enough union cards signed for Respondent to be sub-
ject to union representation and then enumerating her es-
timate of card signings in the various departments (bar,
housekeeping, dishwashers, dining room, etc.) demon-
strated to Ferrell that Respondent was keeping tabs on
union sentiment among its employees in the various de-
partments thus creating an unlawful impression of sur-
veillance and that employees could reasonably assume
that their union activities had been under surveillance.
South Shore Hospital, 229 NLRB 363 (1977). There is
also the uncontradicted Ferrell testimony that after Fox
said that Respondent's day shift was not for the Union,
but she was not sure of the night shift, Fox also said she
was not sure of the union sentiments of "Alma" (a day
waitress) to which Ferrell answered, "You may be sur-
prised." Although this piece of testimony has elements of
ambiguity, I believe that it has a certain declarative
sound to Ferrell's response which, as I observed the wit-
nesses, leads me to conclude that the conversation was
initiated by Nancy Fox, rather than by Ferrell.'
The fact that the source of some of Fox's knowledge was her super-
visors and labor consultant Lyn Rogers supports this conclusion (Tr.
228). To the extent Respondent argues (Br. 11) that a discriminatory
motive is necessary for an 8(axl) violation based on unlawful impression
Continued
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The November 1983 Threat Regarding Betty Lilley REMEDY
Lastly, the complaint alleges that in November 1983
Respondent threatened to discharge an employee because
of her union activities or her participation in an NLRB
proceeding.
The record shows that an NLRB hearing was to be
held in November 1983 at which Betty Lilley was to tes-
tify. Respondent's employees were told that they would
be notified of the result of the NLRB hearing.
At a conversation at which Mary Heischberg, Alyce
Ferrell, and Nancy Fox were present, Fox stated that
Lilley was going to testify at the hearing and that there
might be changes after the trial and it was likely that
Lilley would be gone after the trial. Ferrell notes that in
this expression of opinion, Fox added: "I'm sick and tired
of Betty's shit." Heischberg recalls that Fox said that
after the trial there "may be big changes around here
... Betty's days are numbered ." There is also Heisch-
berg's credited testimony that Fox immediately added to
the above statement that if Ferrell and Heischberg re-
peated what Fox had just said, she would say that Fer-
rell and Heischberg were liars.
I credit Heischberg and Ferrell 's statements and regard
Fox's statement that "Betty's days are numbered" and,
according to Ferrell, that it was "likely that Lilley
would be gone after the trial," as constituting threats of
discharge. I also conclude that in view of Lilley's status
as the prime union proponent among the waitresses, the
threat was made because of Lilley's status and because of
her testimony at the hearing. Such a threat violates Sec-
tion 8(a)(1) of the Act. I make this redundant finding of
an unlawful threat of discharge because I believe it nec-
essary to establish Respondent 's animus focusing on
Lilley and Lilley's union status.
CONCLUSIONS OF LAW
1. The Respondent , Springs, Inc., d/b/a Springs Motel
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Service Employees ' International Union , Local 557
AFL-CIO, the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. In the months of September , October, and Novem-
ber 1983 , Respondent coercively interrogated employees
concerning their union activities and sympathies ; threat-
ened employees with discharge and other reprisals if
they engaged in activities on behalf of or supported the
Union; and gave the impression of unlawful surveillance
of its employees ' union and protected activities, all in
violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
of surveillance , this is neither the Board nor court rule. Anserphone Inc.
v. NLRB, 632 F 2d 4 (6th Cir. 1980), is not to the contrary . Although it
is true that the court did not enforce the Board 's impression of surveil-
lance finding , the issue of discriminatory motive mentioned in the same
paragraph related only to another question or the case , an unlawful dis-
charge . In any event, with all deference to the court , I am bound by the
Board's view of the violation of Sec . 8(a)(l) by impression of unlawful
surveillance in Anserphone, Inc, 236 NLRB 931 (1978), not the court's.
Iowa BeefPackers, 144 NLRB 615 (1963)
I shall recommend to the Board that Respondent cease
and desist from the above unlawful activities and any
like or related activities. I shall also recommend that Re-
spondent post the usual notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed8
ORDER
The Respondent , Springs, Inc., d/b/a Springs Motel,
Lexington, Kentucky, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening employees with discharge or other re-
prisals because of their sympathy in, support of, or mem-
bership in Service Employees ' International Union,
Local 557, AFL-CIO, or any other labor organization.
(b) Coercively interrogating employees concerning
their activities on behalf of the Union or any other labor
organization or protected concerted activities.
(c) Creating the impression that the employees ' activi-
ties on behalf of the Union are under Respondent's sur-
veillance.
(d) In any like or related manner, interfering with, re-
straining, or coercing employees in the exercise of their
rights to self-organization, to form , join , or assist any
labor organization, to bargain collectively through repre-
sentatives of their own choosing or engage in concerted
activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its place of business in Lexington, Ken-
tucky, copies of the attached notice marked "Appen-
dix.", Copies of the notice, on forms provided by the
Regional Director for Region 9, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
° If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
° If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
SPRINGS MOTEL 291
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with discharge
or any other reprisals because they are members of, sym-
pathize with, or engage in activities on behalf of Service
Employees' International Union, Local 557, AFL-CIO,
or any other labor organization.
WE WILL NOT coercively interrogate our employees
concerning their activities on behalf of the Union, pro-
tected concerted activities, or other activities on behalf
of any other labor organization.
WE WILL NOT create the impression that the activities
of our employees on behalf of the Union or any other
labor organization are under our surveillance.
WE WILL NOT in any like or related manner , interfere
with, restrain , or coerce our employees in the exercise of
their rights to self-organization , to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, or to engage in
concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from
any and all such activities.
SPRINGS, INC., D/B/A SPRINGS MOTEL