Texas Hotel

National Labor Relations Board - Board Decisions

May 29, 1961

131 N.L.R.B. 834 (N.L.R.B. 1961)

834 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
WE WILL NOT in any manner interfere with the efforts of National Associa-
ation of Broadcast Employees and Technicians , AFL-CIO, to bargain collec-
tively with us.
FETZER TELEVISION, '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.
Citizen's Hotel Company, d/b/a Texas Hotel and Frances John-
son. Case No . 16-CA-1401. May 29, 1961
DECISION AND ORDER
On March 7, 1961, Trial Examiner James F. Foley issued his Inter-
mediate 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 brief, and the entire record in this
case, and hereby adopts the findings, conclusions,' and recommenda-
tions 3 of the Trial Examiner.
i We correct certain nonmaterial inaccuracies in the Intermediate Report , none of which
affects our concurrence In its ultimate findings • (1) The Union began its organizational
drive at the Respondent 's hotel on or about July 26, not October 26, 1960 ; ( 2)- Trial
testified that he sat through the August 1 union meeting and told Catering Manager
Duvall that none of Respondent ' s employees had been present Contrary to the Inter-
mediate Report , he did not testify that he told Duvall what had gone on at the meeting;
(3) Manager Slack testified that when the business outlook began to Improve , he discussed
with Housekeeper Estes only the necessity of recalling more maids without referring
specifically to Johnson and Williams ; (4) the statement in the Intermediate Report that
Estes "would be unable to obtain maids who wished to stay nonunion" is not based on
any statement attributed to Estes but is apparently a conclusion of the Trial Examiner
based on the conversation between Estes and Washington ; ( 5) Williams and Johnson
returned from their vacations August 15 and 22, respectively , rather than August 8
and 15, and ( 6) when Johnson returned to work she was reassigned to the 12th, not
the 15th, floor.
2 The Respondent contends that Johnson and Williams were only temporarily laid off
and were not discharged , as found by the Trial Examiner . We consider it unnecessary to
decide whether Respondent initially Intended to separate them permanently or tempo-
rarily as , in either event, we agree with the Trial Examiner that their separation from
Respondent's employ was caused by Its opposition to their union activities.
I In "'The Remedy" section of the Intermediate Report , the Trial Examiner recommended
that the Respondent offer Johnson and Williams reinstatement to the positions of maids
on the sixth floor of its hotel , or substantially equivalent work, and that they be made
whole for any loss of earnings they may have suffered from the date of their separation
to the date of the reinstatement offer. The record shows that Respondent asked Johnson
and Williams , on September 30 and October 1, 1960, respectively , to return to work immedi-
131 NLRB No. 109.
TEXAS HOTEL
ORDER
835
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Citizen's Hotel
`Company, d/b/a Texas Hotel, Fort Worth, Texas, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in The Cooks, Waiters, Waitresses
& Bartenders Union, Local 748, or any other labor organization of its
employees, by discharging or laying off any of its employees or in
any other manner discriminating against them in regard to their hire
or tenure of employment or any term or condition of employment.
(b) Engaging in surveillance of employees' concerted activities.
(c) Ordering or instructing employees to engage in surveillance of
Employees' concerted activities.
(d) Ordering or instructing employees to report what they observed
in the surveillance of employees' concerted activities, or interrogating
them as to what they observed.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the aforesaid Union, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection as guar-
anteed in Section 7 of the Act, or to refrain from any and all such
activities.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Offer Frances Johnson and Lula Bell Williams immediate and
full reinstatement to the positions of sixth floor maids, or substan-
tially equivalent employment, without prejudice to seniority and other
rights and privileges, and make them whole for any loss of earnings
suffered by reason of the discrimination against them, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy," as explained in our Decision 'herein.
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social se-
ately They failed to do so until October 14 and 15, 1960, when they were, assigned to
maids' work in other parts of the hotel. We affirm what we believe was the intention of
the Trial Examiner-that the failure of Johnson and Williams to return promptly when
requested to do so, abates their rights to backpay for the period between such offer and
the date on which each actually returned. However, if the work to which they were
assigned upon their return is not substantially equivalent to their previous employment,
they are entitled to be reinstated to such work and to be reimbursed for any losses they
may have suffered after their return.
In view of the nature of the unfair labor practices committed by the Respondent which
are of a nature which go to the very heart of the Act, we shall issue a broad cease-and-
desist order in this case. N.L.R.B. v . Entwi tle Mfg. Co, 120 F. 2d 532 (C.A. 4).
836 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
curity payment records, timecards, personnel records and reports, and
all other data necessary for a computation of backpay due.
(c) Post at its office in Fort Worth, Texas, copies of the notice
attached hereto marked "Appendix." a Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent, be posted by it immedi-
ately upon receipt thereof, and be maintained for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are posted. Reasonable steps shall be
taken by the Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in
writing, within 10 days from the date of this Order, what steps it has
taken to comply herewith.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage self-organization or concerted activ-
ities among employees for their mutual aid or protection as
guaranteed in Section 7 of the Act by discharging or laying off
any of our employees.
WE WILL NOT engage in surveillance of our employees' concerted
activities.
WE WILL NOT order or instruct employees to engage in surveil-
lance of employees' concerted activities.
WE WILL NOT order or instruct employees to report what they
see or hear at employees' concerted activities or interrogate them
as to what they see or hear at such activities.
WE WILL NOT in any other manner interfere with, restrain, or
coerce employees in the exercise of their rights to engage in union
or other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.
WE WILL offer to Frances Johnson and Lula Bell Williams full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights hand
privileges previously enjoyed.
WE WILL make Frances Johnson and Lula Bell Williams whole
for any loss of pay suffered as a result of our discrimination.
TEXAS HOTEL 837
All our employees are free to become, remain, or refrain from
becoming or remaining members of The Cooks, Waiters, Waitresses
& Bartenders' Union, Local 748, or any other labor organization.
CITIZEN'S HOTEL COMPANY,
D/B/A TEXAS HOTEL,
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
Case No. 16-CA-1401 was brought under Section 10(b) of the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519 ), herein called the Act, on
a charge filed August 22, 1960, by Frances Johnson , an individual . On September
28, 1960, the General Counsel issued a complaint premised on the charge, and
Respondent Citizen's Hotel Company, d/b/a Texas Hotel , filed an answer on
October 10, 1960 . A hearing on complaint and answer was held on October 27, 1960.
The complaint alleges, and Respondent 's answer denies , that Respondent intimi-
dated, coerced , and restrained employees in violation of Section 8(a) (1) of the
Act, and discharged and refused to reinstate employees Frances Johnson and Lula
Bell Williams because they joined or assisted the Union, in violation of Section
8(a)(3) and (1) of the Act.
Respondent and General Counsel were represented at the hearing and all parties
were afforded an opportunity to be heard, to introduce evidence , to make oral
argument , and to file -briefs. Counsel for General Counsel and Respondent filed
briefs after the close of the hearing.
Upon the entire record , and from my observation of the witnesses , I hereby
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Texas corporation with its principal office and its place of
business in Fort Worth, Texas, is engaged in the business of operating a hotel.
During the 12-month period preceding September 28, 1960 , its gross revenue was
in excess of $500 ,000, and 84 percent of its hotel guests were transients who remained
at Respondent's hotel less than 30 days. Respondent purchased from local suppliers
liquor, with a value in excess of $5,0,000, that had its origin outside the State of
Texas. I find that Respondent is engaged in commerce within the meaning of
Section 2 (6) and ( 7) of the Act,' and that assertion of jurisdiction will effectuate
the purposes of the Act .2
II. THE LABOR ORGANIZATION INVOLVED
The Cooks , Waiters, Waitresses & Bartenders ' Union , Local 748 ( herein called the
Union ), is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Evidentiary findings
1. Intimidation , restraint , and coercion
It is undisputed that the Union began an organizational drive at Respondent's
hotel on or about October 26, 1960. The Union held meetings in the Majestic
Building on Sunday , July 31 , and Monday , August 1, 1960 . In attendance at the
'Southwest Hotels , Inc (Grady Manning Hotel ), 126 NLRB 1151 ; Dinkler-St. Charles
Hotel, Inc , 124 NLRB 1302; Thomas Jefferson Hotel , 127 NLRB 202 . See Canal Street
Hotel Corporation, 127 NLRB 880.
a Floridan Hotel of Tampa , Inc, 124 NLRB 261.
838 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
July 31 meeting were seven to nine maids employed by Respondent, and Willie
Washington, a houseman. Two of the maids were Frances Johnson, the Charging
Party, and Lula Bell Williams, whom the General Counsel alleges in his complaint
were discriminatorily discharged. The only employee attending the union meeting
on August 1 was Bernie Trial.3 Trial was a captain of waiters, and a supervisor
within the meaning of the Act.
It is also undisputed that Henry Duvall, the catering manager for Respondent,,
and the supervisor of Washington and Trial, had both of them in his office 2 or 3,
days before the union meeting of July 31, and instructed both of them to attend that
meeting. Trial later found he was to attend the August 1 meeting, not the July 31
meeting. Washington testified that Duvall said to them that the boss was anxious.
to know if any of the employees were interested in the Union. Trial testified that
Duvall said he was interested in knowing if any of the employees attended the
meeting. Washington also testified that he had been invited to attend the union
meeting on July 31. He did not testify, as Respondent contends, that he intended
to be present at the meeting without the instruction from Duvall to be there. He
did not disclose Duvall's instruction to anyone. Washington never signed a union
card. Neither did Trial.
On August 1, Washington met with Duvall in the latter's office. Duvall asked
him if he had attended the meeting. When he replied that he had, Duvall asked
him if any of the help were there. Washington answered that some of the maids
were present. On cross-examination, Washington answered yes to Respondent coun-
sel's leading question wherein he was asked if it were not true that Duvall had said
to him that he was only interested in knowing whether employees attended the
meeting and did not wish to know their names. Washington also answered yes to
the cross-examiner's leading question wherein he was asked if it were true that
Duvall had told him that he had a perfect right to join a union, and that the hotel
would not interfere with his efforts in that direction. Counsel for Respondent, as
well as counsel for General Counsel, interviewed Washington before the hearing.
On the afternoon of August 2, Duvall conversed with Trial about the union
meeting on August 1. The conversation took place in Trial's office. Trial testified
that he sat in Duvall's office and went all through what occurred at the meeting.
Then he said that Duvall asked him if he went to the meeting, and when he answered
yes, Duvall asked him what went on. According to Trial, he said that there was
a meeting, and that was all he knew. Finally, Duvall asked him if any of the
employees were there, and he answered no. Trial answered yes to the cross-
examiner's leading questions in which he was asked if it were true that Duvall said
to him that he did not wish the names of the employees attending the meeting dis-
closed to anyone, that he had a right to join the Union, and that the Respondent would
not interfere with this right .4
2. The discharges
Eva Estes, housekeeper for Respondent, and supervisor of the maids, approached
Washington during working hours about 3 days after the July 31 union meeting.
She asked him if he was at the meeting. He replied that he was, and she then
asked him if any of the maids were present. He again answered yes, whereupon
she asked him for the names of the maids who were present at the meeting. He
refused to disclose the names of those attending, saying that he could not give her
the names. Estes then said that she knew that Lula Bell Williams and Frances
Johnson attended. At the time she asked for the names of the maids she said she
did not intend to fire anyone, but merely wished to talk to the girls who were at the
meeting. In this conversation with Washington, she also said that if any of her
help were unionized they could blackball her, and asked him if any of the older maids
were present. He answered no to this question.5
s Trial also spelled his first name "Bernice "
* Although Duvall was present in the hearing room, he did not testify.
s Estes denied that she said to Washington she knew Johnson and Williams were at the
July 31 meeting or that the maids who became union members could "blackball" her
Washington had been in Respondent's employ 14 years at the time of the hearing, and
testified in the presence of Duvall, his supervisor. He had nothing to gain by testifying
contrary to Estes. For these reasons, I have credited Washington and not Estes Estes
admitted talking to Duvall regarding Washington's attendance at the July 31 meeting
about 3 days after it was held, and that he told her Washington and some of the maids
were at the meeting. She also admitted she had heard that Washington was at the meet-
ing in accordance with Duvall' s Instructions . She could not recall the source of this
information. -
TEXAS HOTEL 839
Frances Johnson was first employed by Respondent in November 1958. Lula
Bell Williams began her employment with Respondent in April 1959. Both signed
union cards about a week before the union meeting of July 31. They were the
maids who cared for the sixth floor of the hotel. When they began their vacations
on August 8, 1960, Johnson was entitled to 2 weeks' vacation and Williams to 1
week's vacation. Both Johnson and Williams testified that 2 or 3 days before they
left on vacation, Estes told each one of them separately to look for something else
to do because work was slack at the hotel. When Williams returned on August 15,
and Johnson returned on August 22, Estes said to each of them she did not have
anything for her to do, that she would call her when she needed her.
Johnson testified on cross-examination that Estes told her before she left on vaca-
tion she was going to close down the sixth floor temporarily to renovate it. Williams,
on cross-examination, testified Estes did not say anything about shutting down the
sixth floor during the prevacation conversation she had with her. She further
testified that she did not see the sixth floor shut down when she left. She testified,
however, that Estes told her when she reported for work on August 15 that she was
closing down the sixth floor. Mrs. Estes testified that she told both Johnson and
Williams in her prevacation conversations with them that she was closing down the
sixth floor to renovate it.
It is undisputed that on August 18, 1960, Bobbie Montgomery and Emma Diggs
filed applications for jobs as maids, and on August 20, 1960, Rosie Lee Jones ap-
plied, that each of them began working on August 20, and at the time of the hearing
had been continuously employed by Respondent since August 20 .6 Estes testified
that the renovating of the sixth floor consisted of painting some of the walls in some
of the rooms, and some bathroom ceilings and baths, and cleaning the floor from
top to bottom. She admitted employing maids on the cleaning work during the time
Respondent contends there was no work for Johnson and Williams. Estes testified
that at the time of the hearing the sixth floor had been partially opened. One maid
was assigned to this floor. On their return to work, Johnson was assigned to the
15th floor, and Williams was placed on the swing shift.
It is undisputed that Johnson and Williams were never criticized because of the
caliber of their work. It is also undisputed that Respondent kept a roster of 31
regular maids. Two were assigned to a floor, and the remainder were on the swing
shift. The latter were assigned where their services were required. Most of the 31
had more seniority than Johnson or Williams. On cross-examination, Estes gave the
names of three with less seniority and one with the same seniority who continued to
work when Johnson and Williams were not working. In addition to the 31 maids,
15 maids were kept on an extra list. They were available for call when needed.
They substituted for the regular maids when the latter were ill or absent for other
reasons, and supplemented the regular staff when business was heavy. These 15
were largely experienced personnel who had formerly worked for Respondent and
no longer desired steady employment. Some of these experienced extra maids
worked at different times during the months of August and September 1960, when,
according to Respondent, there was no work for Johnson and Williams.
To explain the presence of Montgomery, Jones, and Diggs, the three new maids,
Estes testified that Respondent constantly trained new maids for the time when they
would be needed, except when the rush of business or other reasons made it difficult
to conduct the training program. According to her, the trainees made up the end
of the extra list of 15, and were called only when the experienced extras either had
been put to work or were-not available. Estes testified that even maids with prior
experience went through a training period. Johnson and Williams were put right
to work without any training. They had had previous experience. Estes admitted
on cross-examination that another maid, Alma Harrison, received no training. Each
of the three new maids, Montgomery, Jones, and Diggs, had had considerable ex-
perience as hotel maids before applying for jobs with Respondent. Diggs had at
least 5 years, Jones 3 years, and Montgomery 1 year. In view of their prior experi-
ence, their steady employment from August 20 on shows that they were on Re-
spondent's payroll for more than a training course preliminary to their being placed
on the lower end of the list of extra maids.
6 Johnson testified that when she went to the hotel during her vacation to pick up A.
check she saw three new maids, and saw them again when she returned on August 22.
Williams testified she saw them when she returned from her vacation on August 15
I credit Johnson's testimony that she saw the new maids on August 22 I do not credit
Johnson's testimony that she saw them when she visited Respondent's premises for a
check, as there is no evidence as to when this visit was made I do not credit Williams'
testimony that she saw the maids when she returned on August 15, since the earliest date
they filed applications was August 18
$40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson returned to work on October 14 and Williams returned to work on
'October 15 , 1960 . Estes testified she contacted Johnson on September 27, 1960,
and attempted , unsuccessfully , to contact Williams on that date . Johnson admitted
on cross-examination that Estes communicated with her on September 27, 1960.
According to Johnson , Estes asked her to report on September 30. She also ad-
mitted that when she did not report for work on September 30, Estes called her and
asked her whether she was going to report for work, and she answered she could
not report for work at that time , but would call her and let her know when she
-could report for work, and that Estes then asked her if she was going to report for
work at all, and she replied that she would let her know later.
Johnson also admitted on cross-examination that she received a copy of the Re-
-spondent 's answer to the complaint in this proceeding on October 12, 1960, and the
following day called Estes to see if she had work for her. Estes told her to report
for work on October 14 . She further testified on cross-examination , that prior to
.calling Estes , she read Respondent 's answer, including the part which stated that
.Respondent had attempted to put her back to work , but that she failed to report
for work. She further stated that she did not report for work on September 30 be-
cause she had filed several applications for employment elsewhere , and was waiting
for answers to them, and that she called Estes on October 13 to inquire about work
.because she did not have anything to do.
It is Respondent 's position that Williams received on or about October 1, 1960,
-a letter from Estes on its stationery to the effect that she should communicate with
Estes at once . The letter also stated that several requests to her to contact Estes
had not been answered . The Respondent , therefore , contends that Williams was
asked to return to work at least by October 1 , 1960. Williams' best recollection
was that she received the letter when she returned to Forth Worth on October 12
from a fishing trip , and in response to the letter she called Estes on October 13, and
was told by her to report for work on October 15.
The evidence of record includes the letter , which was sent by Estes to Williams
by registered mail, return receipt requested , the envelope in which it was enclosed
with the words "Deliver to Addressee Only" stamped on it in two places , and the
-return receipt showing that the letter was delivered on October 1, and that it was
received by a person who signed the name "Lula Bell Williams " as acknowledgment
of the receipt of the letter . Williams positively denied on two occasions during her
testimony that she signed the receipt.
The evidence of record also includes a paper containing the signature of Williams.
This signature was affixed to the paper by Williams when she was on the witness
stand and in full view of the Trial Examiner . From a comparison of the signature
on the receipt with the signature on the paper , I find that the signature on the
receipt is the signature of Williams .7 This finding is supported by Williams' testi-
mony that she returned to Forth Worth from a visit on or about October 1, 1960,
and remained there until departing on a fishing trip the middle of the following
week, and the evidence that the stamp "Deliver to Addressee Only" was affixed to
the envelope in which the letter was enclosed . In addition , Williams testified on
cross-examination that Johnson called her on the evening of October 13, 1960, and
told her she was reporting for work the next morning. Shortly after receiving this
call, Williams called Estes I find that the impetus leading to Williams' telephone
call to Estes on October 13 was the telephone call from Johnson, and not the read-
ing of Respondent 's letter of September 30 .8
3 Respondent 's defense of the discharges
Respondent contends that the slowness in business motivated the layoff of John-
son and Williams on August 15 and 22, respectively , that they were selected because
the sixth floor, to which they had been assigned , was to be closed down for painting
and cleaning.
Lester W. Slack, manager of Respondent , testified that the break-even point in
hotel operations is reached when the rate of occupancy is 52 to 55 percent. He also
7 See Alexander v White, Tex Civ . App, 115 SW 2d 1122 , 1125-1120 ; and CIT.
Corporation v McLeod. Tex Civ. App , 103 S.W. 2d 387 , 387-388 See also C J S.
Evidence § 614
8 Johnson applied . for unemployment compensation and gave as the reason for un-
employment the reason given to her by Respondent , nnmely , a layoff because of lack of
work. The Respondent raised no objection As previously stated , she filed an unfair
labor practice charge on August 22, the day she was told there was no work for her
The record Is silent as to whether she or Williams received unemployment compensation,
or whether Williams ever applied for it
TEXAS HOTEL 841
testified that the occupancy rates for May, June, July, August, September, and
October, 1960, were 59.4 percent, 54.4 percent, 37.4 percent, 45.4 percent, 38.2
percent , and 57.5 percent, respectively, and that Respondent had a monthly operating
profit for May and June, and a monthly operating loss for July, August, and Septem-
ber. Respondent did not furnish its operating revenue for_ October since the hearing
was on October 27. It can be assumed, however, it was a profit somewhat less than
for October 1959, since the occupancy rate ran about 2 percent less.
On a request of counsel for General Counsel, he also produced records and testi-
fied therefrom with respect to the monthly occupancy rates and operating revenues
for 1959. This evidence shows that for May, June, July, August, September, and-
October, 1959, occupancy rates were 58.6 percent, 51.5 percent, 45.1 percent, 53.4
percent, 45.3 percent, and 59.9 percent, respectively, and operating revenues for
these months were a profit for May, August, and October and losses for June, July,
and September.
Slack testified on cross-examination that payroll costs in July and August 1960
were $61,758, and $61,769, respectively,9 and that net sales in August were $21,000
greater than they were in July. Net sales include income from all sales of services
and materials. In connection with the furnishing of the payroll costs for July and
August 1960, Slack said "in our operation at the Hotel Texas, we make every attempt
to maintain a steady payroll in the employment of our employees." Respondent's
defense is silent as to whether there were any layoffs in July and September 1959
because of the decrease in the rate of occupancy.
Slack also testified that the time for training new maids was in the slack season.
He contended that the persons conducting the training program, such as the house-
keeper, supervisors, and other maids, were not available during substantial occu-
pancy. On direct examination , Slack testified that he discussed with Estes the neces-
sity of cutting the payroll because of the drop in business. On cross-examination, he
recalled that he spoke to her about it, but could not recall whether he did so in July,
August, or September, 1960. It was also his testimony that when the outlook for
October 1960 was an increase in business , he discussed with Estes the necessity
of recalling Johnson and Williams. He also testified that they continued to receive
group hospitalization and other insurance coverage during the time they were laid
off, and that none of the other maids who were in attendance at the July 31 union
meeting had been laid off.
B. Analysis and concluding findings
1. Intimidation, restraint, and coercion
I have found that employee Washington attended the union meeting on July 31,
1960, and Supervisor Trial attended the August 1, 1960, union meeting in the
Majestic Building, Fort Worth, Texas, and that they attended the meetings pursuant
to instructions from Duvall, their supervisor. I have found that Washington reported
to Duvall on August 1 in response to the latter's questioning that seven to nine
maids were present at the July 31 meeting, and that Trial reported to Duvall on
August 2, in response to his questioning, what took place at the August 1 meeting,
and that no employees of Respondent were present at this meeting. I have also
found that at the time Duvall instructed Washington, a houseman, to attend the July
31 meeting, he instructed Trial, a captain of waiters, to attend a union meeting, which
he found later to be the meeting on August 1. According to Washington, Duvall said
the boss desired to know if any of the employees were interested in the Union, and,
according to Trial, Duvall said he wanted to know if any of the employees attended
the meeting. Slack, the manager, was Duvall's boss.
I find the conduct of Respondent, initiated by Duvall and carried out by Washing-
ton and Trial, to constitute the illegal act of surveillance within the meaning of
Section 8(a)fl) of the Act and violative of that section of the Act.10 I also find
Estes' statement to Washington on or about August 2 or 3, after he refused to dis-
close the names of the maids who attended the July 31 meeting, that she knew
Johnson and Williams were at the meeting, to be violative of Section 8(a) (1), as by
it she fostered the impression that Respondent was engaged in surveillance 11 Inde-
pendently violative of Section 8 (a) (1) were the instructions of Duvall to Washington
to attend the July 31 meeting and to report to him what occurred, and Duvall's and
9 Payroll costs for other months are not in evidence
"Jackson Tile Manvfactitring Company, 122 NLRB 764, enfd. 272 F 2d 181 (CA. 5)
Carolina Mirror Corporation, 123 NLRB 1712; Franklin Hosiery Mills, 126 NLRB 1160;
Wyatt Food Stoles (Division of Kroger Company), 127 NLRB 262.
11 Capitol Fish Company, 126 NLRB 980
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Estes' interrogations of Washington with respect to what occurred at the July 31
meeting. They interfered with the rights of Washington and other employees to
embrace union membership and engage in union activity. An employee who has to
comply with instructions to attend a union meeting, and give an accounting of what
occurred there, and is subjected to interrogation as to what occurred at the meeting,
as in the case of Washington, might well be reluctant to join the Union or participate
in union activity. Washington did not sign a union card. Respondent is not pro-
tected from a finding of a violation by any self-serving disclaimer given to Washing-
ton or Trial by Duvall that Respondent had no intention of interfering with their
rights or other employees' rights to engage in union activity or become union mem-
bers. The conduct constitutes a violation irrespective of the intention behind it. In
this case, however, the illegal intent is present, as disclosed by the discriminatory dis-
charges which I find infra.
2. The discharges
The evidence shows that Housekeeper Estes disclosed to Houseman Washington
on or about August 2 or 3, 1960, a few days after his attendance at the July 31
union meeting, that she knew that maids Johnson and Williams were present at that
meeting. She also said to Washington that she would be blackballed if the maids
become unionized. She would be unable to obtain maids who wished to stay non-
union . Just prior to Johnson and Williams departing for their vacations on August
8, she told them that business was slow and to look for work elsewhere. When
Williams returned on August 8 and Johnson returned on August 15, they were told
by Estes that there was nothing for them to do, and not to report for work until
they were called. Estes told Johnson before she left on vacation and Williams when
she returned from vacation, that the sixth floor which they serviced was being shut
down for painting and cleaning. However, maids were needed on the sixth floor
for the cleaning, and Estes admitted using maids for this purpose. They were
taken either from other floors, the swing shift, or from the extra list of maids. Some
of the extra maids worked during the period in August and September that Johnson
and Williams were not permitted to work. Moreover, there were three regular maids
with less seniority than Johnson and Williams who were kept on when Johnson and
Williams were laid off. In addition, three new maids were put to work on August
20 as regular employees and not as trainees as Respondent contends. They began
this regular work shortly after Johnson and Williams were told there was no work
for them. Since Respondent had not complained about the caliber of the work of
Johnson and Williams, there must have been some unusual motive behind Re-
spondent's action in laying off Johnson and Williams because of lack of work, while
at the same time continuing to employ three maids with less seniority than Johnson
or Williams, assigning maids from other floors, the swing shift, or the extra list to
do the cleaning work on the sixth floor, which was their floor, and putting three
new maids on regular employment shortly after Johnson and Williams were told
there was no work for them. Two of these new maids applied for jobs on August 18
and the third did not apply until August 20, the day she began work. It is more
than a happenstance that Johnson and Williams who were laid off in this set of
circumstances should happen to be the maids that Housekeeper Estes named in the
conversation she had with Washington on or about August 2 or 3 as two of the
maids who attended the union meeting on July 31.
Respondent's evidence discloses that there was a drop in the rate of occupancy
in July 1960 from what it had been in June and prior months of 1960. However,
the rate increased in August, the month they were laid off. A comparison of the
1959 figures on occupancy and operating income with those for 1960 shows there
is a seasonal drop in the rate of occupancy during June through September. Man-
ager Slack testified that Respondent endeavors to maintain a steady monthly payroll
cost, and disclosed that Respondent's payroll cost for August 1960 was $61,769 com-
pared to the payroll cost of $61,758 for the month of July 1960. The August payroll
included the wages of the three new employees, Montgomery, Jones, and Diggs.
Instead of having less regular employees in August and September, Respondent had
one more than it had in July. In sum, the record shows that Respondent did not
customarily lay off employees during the summer season when there was a decline
in the rate of occupancy, and that in August 1960, when Johnson and Williams
were not working, Respondent had a higher payroll cost than it had in July 1960,
when they were working. This was due to Respondent's employment of the three
new maids on a regular basis, about the time it claimed it did not have work for
regular maids Johnson and Williams, and laid them off. In any event, the saving
Respondent would have made by laying off Johnson and Williams if it had not hired
TEXAS HOTEL 843
the new maids, would have been negligible when compared with the monthly pay-
roll cost.
I have fully considered Respondent's defenses that the other maids who attended
the July 31 meeting were not laid off; that while Johnson had been asked to return
to work on September 30 and Williams had notice by October 1 she could return to
work immediately, that Johnson did not return until October 14 and Williams did
not return until October 15; and that both Johnson and Williams received group
hospitalization and other insurance during the period in August, September, and
October when they were not working. I was of the opinion I should make an evi-
dentiary finding, as to when they were called back to work, for consideration with
other evidentiary findings, in reaching a determination as to whether there was a
discharge, in view of the short period they were out of work. I find that Johnson's
and Williams' delay in reporting back to work does not negate the inference of dis-
criminatory discharge which flows from the other evidence. On the other hand, it
shows a reluctance on the part of Johnson and Williams to return to an employment
from which they had been severed because they exercised their lawful rights under
Section 7 of the Act to engage in union activity and embrace union membership.
Nor does the fact that Johnson and Williams continued to receive group hospitaliza-
tion and other insurance negate the inference of discriminatory treatment that flows
from the other evidence. There could be many reasons, including oversight, why
-this insurance coverage was continued.
On the above evidence, and evidentiary findings made thereon, I find and con-
clude that Respondent discriminatorily discharged Frances Johnson and Lula Bell
Williams for their union activity and membership to discourage membership in the
Union in violation of Section 8(a) (3) and (1) of the Act.12
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 Respondent set forth in section 1, above, have a close,
intimate. and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes threatening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce, it will be recommended that it cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of the Act. Specifically,
I have found that Respondent, in violation of Section 8(a) (1) of the Act, engaged
in acts of surveillance, ordered an employee to engage in surveillance, and interro-
gated him as to what he observed in the course of his surveillance of a union meet-
ing. I shall recommend that Respondent be ordered to cease and desist from en-
-gaging in such conduct. I have also found that Respondent discharged employees
Frances Johnson and Lula Bell Williams for engaging in union activity and em-
bracing union membership in violation of Section 8 (a) (3) and (1) of the Act. I
shall therefore recommend that Respondent be ordered to cease and desist from dis-
-couraging membership in The Cooks, Waiters, Waitresses & Bartenders' Union,
Local 748, or any other labor organization, by discharging employees, or in any
other manner discriminating against them in regard to their hire and tenure of em-
ployment or any term or condition of employment, except to the extent permitted
by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
As an affirmative remedy, I shall recommend that Johnson and Williams be offered
immediate reinstatement to the positions of maids on the sixth floor of Respondent's
hotel, or substantially equivalent work, in lieu of the positions of maid on the 15th
floor and as maid on the swing shift, to which Johnson and Williams were respec-
tively assigned on their return to work, if they prefer such jobs to the jobs to which
they were assigned, without prejudice to seniority and -other rights and privileges.
I further recommend that Respondent be ordered to make them whole for any loss
of earnings they may have suffered by reason of the Respondent's discrimination
against them, by payment to each of them of a sum of money equal to that which
she would have earned from the date of discharge to the date of Respondent's offer
of reinstatement, plus any additional amount she would have earned as a maid on
the sixth floor, over what she has earned from the time of her return to work, less
12 See Talc Trak, Inc, 128 NLRB 876, and Capitol Fish Company, supra . See also
Southwest Hotels, Inc ., 127 NLRB 1240.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any earnings during the period she was not working, to be computed in accordance
with the Board 's policy established in F. W. Woolworth Company, 90 NLRB 289.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Cooks, Waiters, Waitresses & Bartenders ' Union, Local 748, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By engaging in surveillance , ordering an employee to engage in surveillance,
and interrogating him as to what he observed in the course of his surveillance of a
union meeting , Respondent has engaged in and is engaging in conduct interfering
with , restraining , and coercing employees with respect to the exercise of rights guar-
anteed them in Section 7 of the Act in violation of Section 8 (a) (1) of the Act.
3. By discharging employees Frances Johnson and Lula Bell Williams because
they engaged in union activity and joined the aforesaid Union, Respondent discrim-
inated against them , and is discriminating against them, in regard to their hire and
tenure of employment, and the terms and conditions of their employment, thereby
discouraging membership in the aforesaid Union in violation of Section 8(a)(3)
and (1 ) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Standard Metal Fabricating Co. and United Steelworkers of
America, AFL-CIO . Case No. 17-CA-1649. May 29, 1961
DECISION AND ORDER
On February 24, 1961, Trial Examiner Robert E. Mullin 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
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 brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified herein.
We agree with the Trial Examiner that the Respondent knew of
Thomas' union activities when it decided to discharge him the morning
of July 11, and that the decision to do so was prompted by its desire
to rid itself of a union adherent rather than because it was dissatisfied
with his work. In reaching these conclusions, we do not adopt the
Trial Examiner's finding that the Respondent violated Section
8(a) (1) through a remark of Wallace Shearon. The Trial Examiner
found that Shearon was a supervisor within the meaning of the Act,
and he imputed Shearon's knowledge of Thomas' union activities to
131 NLRB No. 112.