The Hotel Roanoke

National Labor Relations Board - Board Decisions

Mar 15, 1989

293 N.L.R.B. 182 (N.L.R.B. 1989)

182 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Virginia Holding Corporation d/b/a The Hotel Roa-
noke and Hotel, Cafeteria , Hospital & Restau-
rant Employees , Local 121 , Hotel Employees
and Restaurant Employees International Union,
AFL-CIO Cases 5-CA-15924, 5-CA-16065,
and 5-CA-16664
March 15, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 16, 1986, Administrative Law Judge
James L Rose issued the attached decision The
Respondent filed exceptions and a supporting brief,
the General Counsel and the Charging Party filed
cross-exceptions and supporting briefs, and the
General Counsel and the Charging Party filed
briefs in opposition to the Respondent's exceptions
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, i and
conclusions only to the extent consistent with this
Decision and Order 2
We agree with the judge, for the reasons set
forth below, that the Respondent violated Section
8(a)(5) and (1) by declaring impasse on September
26, 1983, and unilaterally implementing its last offer
on October 1, 1983 Contrary to the judge, howev-
er, we find that the Respondent additionally violat-
ed Section 8(a)(5) and (1) by failing and refusing to
bargain in good faith with the Union
We agree with the judge that the strike com
mencing on October 1, 1983, was an unfair labor
practice strike from its inception Contrary to the
judge and for the reasons set forth below, we find
that the Respondent violated Section 8(a)(3) and
(1) by discriminating against strikers returning to
work We agree with the judge that the Respond-
ent violated the Act by suspending and failing to
reinstate striker Kenneth Arney when he aban
doned the strike and made an unconditional offer
to return to work on October 1, 1983 We also
agree that the Respondent violated Section 8(a)(3)
and (1) by failing to reinstate certain named strikers
and that the Respondent did not violate the Act by
' The Respondent the General Counsel and the Charging Party have
excepted to some of the judge s credibility findings The Board s estab
lished policy is not to overrule an administrative law judges 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
2 We grant the General Counsels unopposed motion to accept an ad
dendum to the General Counsels briefs
failing to reinstate strikers Douglas Simmons,
Martha Henry, Ronnie Hayslett, Ralph Hayes,
Robert Tankesley, and John Wade Jr For the rea-
sons set forth below, we find that the Respondent
violated Section 8(a)(3) and (1) by failing to rein-
state strikers Charles W McQueen and Alfreda
Sayles
Finally, we agree, for the reasons stated by the
judge, that certain statements made by the Re-
spondent's supervisors violated Section 8(a)(1)
Contrary to the judge, however, we find below
that the Respondent made additional statements
violative of the Act
Background
Since about May 1965, the Union has been the
collective bargaining representative of certain em-
ployees employed by the Respondent 3 Before the
strike that gave rise to this proceeding, the Union
and the Respondent were parties to a collective
bargaining agreement that was effective from
August 15, 1980, through August 14, 1983
On May 31, 1983,4 the Respondent requested the
Union to begin negotiations on a new bargaining
agreement The parties met for negotiations on
about eight occasions between July 19 and Septem-
ber 26 During the afternoon session on September
26, the Respondent's chief negotiator, George
Gardner, announced that the parties had reached
an impasse in negotiations and that the Respondent
would unilaterally implement its last offer on Octo
ber 1 The Respondent subsequently implemented
its last offer
At 6 p m on October 1, the Union began a strike
and established a picket line at the Respondent's fa
cility The strike was prolonged and, at times, vio
lent The strike ended on April 16, 1984, when the
Union and the Respondent executed a comprehen-
sive package including a new collective-bargaining
agreement, Letter of Understanding, and Strike
Settlement Agreement
I DECLARATION OF IMPASSE
The judge found that the Respondent violated
Section 8(a)(5) and (1) by declaring impasse on
September 26 and unilaterally implementing its last
offer on October 1 The judge reached this conclu
sion after finding that the impasse issues were rela-
tively minor in comparison to the concessions de-
manded by the Respondent, that the parties eventu-
8 The bargaining unit consists of All employees employed by the Re
spondent at its Roanoke Virginia location excluding the general manag
er assistant to the general manager assistant manager supervisors confi
dential and executive employees agreed casual employees guards and all
others defined by the Act
4 All dates are in 1983 unless otherwise indicated
293 NLRB No 16
HOTEL ROANOKE 183
ally agreed on all issues at the conclusion of the
strike, and that the Respondent's proposal to elimi-
nate binding arbitration, if permitted, would allow
the Respondent to choose which items of national
labor policy it would accept We agree that the
Respondent violated the Act, but only for the fol-
lowing reasons
In Taft Broadcasting Co, 163 NLRB 475, 478
(1967), the Board stated
Whether a bargaining impasse exists is a matter
of judgment The bargaining history, the good
faith of the parties in negotiations, the length
of negotiations, the importance of the issue or
issues as to which there is disagreement, the
contemporaneous understanding of the parties
as to the state of negotiations are all relevant
factors to be considered in deciding whether
an impasse in bargaining existed
The Respondent declared impasse over three
issues on September 26 its proposal to eliminate
binding arbitration, its proposal to eliminate the
effect of past practice, and its proposal to modify
the "management-rights" clause The Respondent
based its impasse declaration on the contention that
the Union refused to agree to its demands on these
three issues and that it was equally unwilling to
concede on these points Thus, it contends that fur-
ther bargaining would have been fruitless We do
not agree
While it is clear that the parties had discussed
the binding arbitration issue during the course of
the negotiations, the evidence indicates that the Re-
spondent's proposed contract language regarding
the elimination of past practice was not discussed
in detail, if at all, until the September 15 bargaining
session , the last session prior to the time the Re-
spondent declared impasse Further, prior to de-
claring impasse , the Respondent had not presented
the Union with specific contract proposals regard
ing the management rights clause, and the record
shows that the Union did not oppose modification
of the management-rights clause 5 Moreover, al
though the Respondent was insisting on the elimi
nation of binding arbitration, the Respondent's own
internal bargaining memorandum indicates that the
Respondent had a compromise position regarding
this issue and actively pursued proposals it believed
relevant only if it was unsuccessful in eliminating
binding arbitration 6 The Respondent's ability to
compromise on the binding arbitration issue, its
failure to present a specific proposal regarding the
management-rights clause, and its introduction of
significant new proposals at a late stage of negotia-
tions,' all undermine its contention that the parties
had reached an impasse and that further bargaining
would have been fruitless
Additionally, before and during the September
26 session, the Union made numerous concessions
in response to the Respondent's bargaining de
mands The Union agreed to eight out of nine fi-
nancial proposals and agreed to withdraw all of its
own bargaining demands in order to focus on the
Respondent's proposals Although the Respond-
ent's economic proposals were seemingly more im-
portant to it than the nonfinancial proposals, at no
time did the Respondent indicate to the Union that
agreement on nonfinancial bargaining proposals
was absolutely necessary to avoid impasse More-
over, while the Respondent contends that each one
of its proposals was "absolutely necessary,"as indi-
cated above the Respondent's internal bargaining
materials reveal that it considered itself to have
room to negotiate on at least one of the " impasse
issues "
Finally, when the Respondent declared impasse,
its representative told the union negotiating com-
mittee that the Respondent was available to contin-
ue negotiations should the Union request it prior to
October 1 8 However, the Respondent did not indi-
cate to the Union which of the remaining issues
had to be resolved in order to avoid the alleged
"impasse " The failure of a party to communicate
to the other party the paramount importance of the
proposals presented at the bargaining table or to
explain that a failure to achieve concessions would
result in a bargaining deadlock evidences the ab-
sence of a valid impasse Henry Miller Spring Co,
273 NLRB 472 (1984), enfd mem 800 F 2d 1136
(3d Cir 1986) This factor, especially in light of the
concessions made by the Union on September 26,
demonstrates that the Respondent's breaking off
negotiations on September 26 was not the result of
a genuine impasse, but was itself a bargaining tactic
designed to prevent an agreement Therefore, the
subsequent implementation of the Respondent's last
offer was not the result of a genuine impasse
In light of this conduct, we agree with the judge
that no genuine impasse existed when the Respond
5 The evidence indicates that the Union took the position that modifi
cation of the management rights clause was unnecessary because the Re
spondent already had the management rights it was demanding Thus
while the Union indicated that any change to the management rights
clause was unnecessary it did not refuse to agree to the Respondents
modification of that clause
6 Member Cracraft does not rely on the Respondents internal bargain
ing memorandum
' For example in addition to the proposal regarding the elimination of
past practice the Respondent introduced a new proposal at the August
30 bargaining session requiring that all employees be free of any felony
conviction and subsequently introduced a new proposal requiring that
the time employees spent on grievances not be counted as time worked
9 For purposes of this discussion we assume arguendo that as the Re
spondent contends it made this statement to union negotiators immediate
ly after it declared impasse on September 26
184 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent precipitously declared impasse on September 26
and unilaterally implemented its last offer on Octo
ber I We therefore conclude that the Respondent's
actions violated Section 8(a)(5) and (1)
II SURFACE BARGAINING
The judge found that the Respondent did not
violate Section 8(a)(5) and (1) by failing and refus-
ing to bargain in good faith with the Union The
judge concluded that although the evidence
showed that the Respondent's bargaining appeared
to be "inconsistent with a real desire to bargain for
a mutually acceptable agreement," other factors ne
gated the implication that the Respondent entered
into negotiations in bad faith Thus, the judge
found that the Respondent had engaged in lawful
"hard bargaining" rather than unlawful `surface
bargaining " The General Counsel has excepted to
the judge's conclusions We find merit in the Gen-
eral Counsel's exceptions
In determining whether a party has bargained in
bad faith, the Board looks to the totality of the cir
cumstances in which the bargaining took place
Port Plastics, 279 NLRB 362, 382 (1986), Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984) The
Board looks not only at the parties' behavior at the
bargaining table, but also to conduct away from
the table that may affect the negotiations Port Plas-
tics, 279 NLRB at 382 In reviewing the totality of
the Respondent's conduct here, including conduct
that occurred away from the bargaining table, we
find the evidence establishes that the Respondent
violated the Act by refusing to bargain in good
faith with the Union
As found below, during the period of negotia-
tions, Supervisors Holden and Turk, who were
members of the Respondent's negotiating commit
tee, as well as other supervisors engaged in various
acts violative of Section 8(a)(1) Thus, Holden in-
terrogated employees concerning whether they
planned on striking He also threatened them to the
effect that, if they did strike, they could lose their
jobs, that the Hotel had determined not to sign a
contract, and that the Hotel was undertaking a
course of action to dissolve the Union Turk threat-
ened Vickie King that the "Union will not be there
much longer " Craghead told Shirley Spillman that
the Respondent wanted to get the Union out of
here," and further warned her that if she went out
on strike she would lose her job Furthermore, Su
pervisor Hurt told Connie Isbell that the Respond
ent did not intend to bargain in good faith, had
been preparing for a strike for 3 years, and had no
intention of giving the Union a contract These
threats, made while the Respondent purported to
be trying to negotiate a contract, constitute sub-
stantial evidence of bad faith bargaining
Further evidence of bad faith can be found in a
review of the pattern of bargaining On July 19,
during the first negotiation session, the Respondent
presented the Union with a list of 27 "financial"
and "non-financial' demands 9 At the same session,
its attorney and chief negotiator, George Gardner,
told the union negotiators that the 13 demands pre-
sented by the Union would not be accepted, and
the Respondent summarily rejected all those de-
mands at the August 10 session (Thereafter, the
parties used the Respondent's July 19 demands as
the basis for their negotiations) It was not until the
August 30 bargaining session that the Respondent
proposed specific contract language in connection
with its original demands Furthermore, the Re
spondent introduced significant new bargaining de
mands during the August 30 and 31 and September
15 sessions These demands were not made in re-
sponse to any union demands or proposals, and
when the Union protested the timing of their sub-
mission , the Respondent's reply was simply that it
reserved the right to make proposals when and as
it wished Other than this comment, the Respond-
ent gave no explanation for its failure to include
these demands as part of its original list The piece-
meal introduction of these significant new bargain-
ing demands at comparatively late stages in negoti-
ations could only have hampered the bargaining
process and lessened the likelihood of the parties'
reaching an agreement and thus constitutes addi
tional evidence of bad-faith bargaining
Further, while the Respondent summarily reject
ed each and every one of the Union s bargaining
proposals, a member of its negotiating team, Turk,
admitted that several of the Union s demands were
a "small item," not a "big matter," or "no big
deal Yet, the Respondent adamantly refused to
consider making any movement on even these
` minor" issues Additionally, George Gardner, the
Respondent's attorney, testified that the Respond
ent "felt" that it might have to make some conces
sion on the proposal to eliminate binding arbitra
tion Thus, Gardner explained that the Respondent
was also attempting to eliminate the "just cause','
for discharge requirement from the bargaining
agreement The Respondent's internal bargaining
memorandum also shows that the Respondent be-
lieved it might have to abandon its "no arbitration"
stance The Respondent's unyielding refusal to
agree to even minor matters and its refusal to make
9 The Respondent contends this list was presented to the Union on
July 19 The Union asserts that the list was not presented until August
10 We assume arguendo that the list was presented on July 19
HOTEL ROANOKE 185
any concessions even though it was prepared to do
so, evidences an intent not to reach agreement Al-
though the duty to bargain does not compel a
party to make concessions, it does require a will-
ingness to search for common ground and presup
poses a desire to reach ultimate agreement Excelsi-
or Pet Products, 276 NLRB 759, 761-762 (1985)
Because the Respondent, on its own, had deter
mined that it could make concessions to the Union,
its inexplicable refusal to raise any such suggestions
even as to "minor" matters evidences bad faith bar-
gaining
In finding a lack of good faith, we also rely on
our conclusion, above, that the Respondent violat-
ed the Act by precipitously declaring impasse on
September 26 and unilaterally implementing its last
offer on October 1 As found above, the Respond-
ent had no reasonable basis for declaring impasse
on September 26 because the Union had agreed to
eight out of nine of the Respondent's financial pro-
posals (as well as numerous nonfinancial proposals),
and the Respondent never communicated to the
Union which of its remaining proposals had to be
agreed to in order to avoid impasse Unilaterally
changing the terms and conditions of employment
in these circumstances is a further indication of the
Respondent's bad-faith bargaining
In concluding that the Respondent had not en
gaged in unlawful "surface bargaining," the judge
relied on the fact that the parties had an established
bargaining relationship, that the Respondent had
demonstrated a need for concessions, and that the
parties ultimately reached an agreement in which
the Union was unsuccessful in achieving any of its
objectives We do not find these to be adequate
bases for that conclusion First, although the Union
had a successful bargaining relationship with the
Respondent's predecessor in-interest,10 a 1982
merger between Respondent's predecessor-in-inter
est and another entity led to the creation of the Re-
spondent, the Virginia Holding Corporation i i
Thus, the identity of the Respondent had changed
prior to the 1983 negotiations, lessening the proba
tive value of the prior bargaining history
Furthermore, while the Respondent subjectively
may have believed that it had to gain concessions
from the Union, its own bargaining materials indi-
cate that it had room to negotiate and could have
made some concessions itself The desire or need to
achieve concessions does not justify a refusal to
bargain in good faith Excelsior Pet Products, 276
NLRB at 762 Nor does the fact that the parties
eventually reached an agreement persuade us that
10 The Norfolk and Western Railway Company
11 The Virginia Holding Corporation is a subsidiary of the corporation
created by the 1982 merger
the Respondent was bargaining in good faith
before the strike, as the ultimate agreement came at
the end of a bitter 7-month strike and the Respond
ent continued to engage in unlawful conduct
Accordingly, we find that the totality of the cir-
cumstances, including the Respondent's unlawful
statements to employees, its introduction of signifi-
cant new bargaining proposals at a late stage of ne-
gotiations, its unyielding stance in negotiations, and
its unilateral implementation of terms and condi
tions of employment, establishes that the Respond
ent violated Section 8(a)(5) and (1) by refusing to
bargain in good faith with the Union
III DISCRIMINATION AGAINST RETURNING
STRIKERS
The judge concluded that the Respondent did
not violate the Act by discriminating against re-
turning strikers The General Counsel has excepted
to the judge's conclusions We find merit in certain
of the exceptions
As noted by the judge, it is axiomatic that an
employer is not permitted to discriminate against
returning strikers unless it establishes a substantial
business justification for doing so NLRB v Great
Dane Trailers, 388 U S 26 (1966) Unfair labor
practice strikers are entitled to immediate reinstate
ment on the conclusion of the strike, even if the
employer must discharge permanent replacements
in order to do so NLRB v Mackay Radio & Tele
graph Co, 304 US 333 (1938) However, a union
may waive strikers' reinstatement rights in a strike
settlement agreement when that waiver is part of a
quid pro quo agreement Hotel Holiday Inn de Isla
Verde, 278 NLRB 1027 (1986), revg 265 NLRB
1513 (1982) Applying these principles to the facts
of this case, we find that the Respondent violated
Section 8(a)(3) and (1) by recalling strikers out of
order of their seniority, by failing to schedule strik
ers to work certain hours, by denying insurance
benefits to strikers, and by reducing the wages of
strikers
As indicated above, at the conclusion of the
strike the Respondent agreed to reinstate returning
strikers pursuant to a comprehensive Strike Settle-
ment Agreement, Letter of Understanding, and col-
lective-bargaining agreement Under the bargaining
agreement, the parties for the first time agreed to
define `full-time employee " Article I, section 4, of
the bargaining agreement provides that an employ-
ee who works an average of 24 hours per week
during the preceding 12 months shall be considered
a full time employee Under article XII of the bar-
gaining agreement, full-time employees are entitled
to employer-paid life and accidental death/dis-
ability insurance, sickness and accident insurance,
186 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
hospitalization and major medical benefits, and
dental care benefits 12
The Strike Settlement Agreement provides that
1 All striking employees shall be recalled to
work in the classification which they held
prior to striking, or its equivalent, by seniority
within three (3) months from the date of the
ratification of the collective bargaining con-
tract
3 No strike replacement shall be placed in
any classification ahead of any returning strik-
er, provided that the striker is qualified to
work in such classification
The Letter of Understanding, which was execut-
ed contemporaneously with the Strike Settlement
Agreement, provides
1 There will be a minimum of one hundred
sixty (160) full time jobs at the Employer Em-
ployees in these positions will be considered
full time Employees as referred to in Article 1,
Section 4 of the Agreement
2 Employees who were on the payroll of
the Employer on or before October 1, 1983,
will be placed into their jobs according to
their seniority in their classification Any such
employees whose seniority is not sufficient to
claim these full time positions will be able to
claim whatever schedules and/or hours
become available according to their seniority
in that classification
3 Employees on the payroll as defined in
paragraph 2 above shall be given consideration
for full time positions in other classifications
Contrary to the judge's conclusions, it is clear
from the above-quoted provisions of the agree-
ments that strikers were to be recalled to their
former positions, or their equivalent, by seniority
The Respondent guaranteed to create 160 full-time
positions,) s agreed to recall strikers to these posi-
tions by seniority, agreed to treat all returning
strikers as "full-time" for purposes of, inter alia,
benefits, and agreed to allow all strikers who did
not have enough seniority to claim a full-time posi-
tion to claim whatever schedules and hours became
available
The uncontroverted evidence further reveals that
the Respondent repeatedly violated these provi-
sions Thus, Karen Dunn, the Respondent's person-
12 The benefits specified in art XII are available to full time employees
on completion of 6 months of continuous employment The Respondent
does not contend that it refused to provide benefits to any striker because
he or she had not been employed for 6 months
13 The Respondent does not claim that the 160 full time jobs it agreed
to create excluded any of the positions at issue here
nel manager, and Jack Abbott, the director of food
and beverage service, admitted that they sometimes
ignored seniority during the recall procedure, a
clear violation of the Strike Settlement Agreement
Although Dunn asserted that the Union agreed to
the reinstatement of certain strikers out of seniority
order, we find this assertion unpersuasive Dunn
was not a participant in the final negotiations re-
garding the comprehensive agreements Moreover,
Dunn at first testified that the Union agreed to
nonseniority recall on April 13, 1984, 3 days prior
to the signing of the agreements which unambig-
uously provided for recall by seniority Dunn later
indicated that the Union might have agreed to non-
seniority recall on April 16, 1984, the date the
agreements were signed Dunn's equivocal testimo
ny does not persuade us that the Union ever agreed
to nonsenionty recall Thus, we find that the Re-
spondent's failure to recall strikers by seniority, as
it had expressly agreed to do in the Strike Settle-
ment Agreement, discriminated against returning
strikers in favor of strike replacements and thereby
violated the Act 14
The uncontroverted evidence also reveals that
some returning strikers were scheduled to work
less than an average of 24 hours per week, while
strike replacements were working in the same job
classification Wilson Leftwich, who was working
more than 40 hours per week before the strike, was
scheduled to work between 18 and 24 hours per
week after the strike even though strike replace-
ments were scheduled to work hours to which
Leftwich was entitled under the Letter of Under-
standing Linda Carter also testified that immedi-
ately after the strike she was scheduled to work
only half days even though strike replacements
were still employed in the same job classification
This violated the Letter of Understanding because
it did not allow strikers to claim "available" hours
The General Counsel contends that all strikers
are entitled to the same hours they were scheduled
to work before the strike We do not agree Rather,
we find that the Union waived the right of strikers
to be scheduled to work more than 24 hours per
week The collective-bargaining agreement defines
full-time employment in terms of an employee who
works an average of 24 hours per week The
Letter of Understanding provides that the Re-
spondent will create at least 160 full-time jobs
Thus, when the documents are construed in con-
text, it is clear that the Union agreed to limit the
right of returning strikers to be scheduled to work
14 We note that some strikers may have been unavailable when initially
recalled We leave to compliance the determination of the Respondents
obligations with respect to these strikers
HOTEL ROANOKE 187
more than 24 hours per week as part of the com-
prehensive agreement 15
We therefore conclude that the Respondent vio-
lated the Act only to the extent that returning
strikers were scheduled less than an average of 24
hours of work per week while any strike replace-
ment worked in the same job classification, exclud
Ing hours that were incompatible with the return
Ing strikers' availability We leave to compliance
the determination of the extent of the Respondent's
make-whole obligation
The General Counsel further contends that the
Respondent violated the Act by discontinuing cer-
tain benefits to which returning strikers were enti-
tled We agree When read in context, the Strike
Settlement Agreement and Letter of Understanding
provided that all returning strikers placed in full-
time positions would be considered full-time em-
ployees under the bargaining agreement 16 The un-
controverted evidence establishes that Wilson
Leftwich was available to work at least 24 hours
per week after the strike and did not have insur
ance benefits 17 Patsy Mounts was likewise re-
called to a position where she actually worked
more than 24 hours per week but was denied insur
ance benefits We find the evidence establishes that
other returning strikers were denied the fringe ben-
efits specified in article XII of the bargaining
agreement and that, by doing so, the Respondent
violated the Act We leave to compliance the iden-
tity of the employees affected by this conduct
Finally, the General Counsel contends that the
Respondent discriminated against certain returning
strikers by placing them in lower paying job classi
fications We agree The unrebutted evidence es-
tablishes that before the strike Ruben Moorman,
Andrea Edwards, and Inez Terry were employed
as "bus persons" and were paid $4 20 per hour
After the strike, these three employees were desig-
nated "room service" employees and were paid
$2 73 per hour The Respondent offers no explana-
tion for the change in assignments or the failure to
pay these employees their former wage rate 18
l s The General Counsel contends that the Respondent orally agreed to
maximize 40 hour jobs We find that the evidence taken as a whole
fails to support the contention that the Respondent breached the agree
ments in this regard The record contains no evidence that the Respond
ent failed to maximize the number of 40-hour positions given its finan
cial constraints
16 The Respondent has failed to establish which positions were full
time positions and which were not In the absence of evidence to the
contrary we find that all strikers working or capable of working 24
hours or more per week were in full time positions
17 Jack Abbott the director of food and beverage service admitted
that after the strike some stnkers were not given sufficient hours to qual
ify for benefits under the contract However Abbott did not explain why
these strikers were not considered to be full time employees as required
by the parties April 16 1984 Letter of Understanding
18 We note that when the Respondent recalled striker Frank Lancaster
the Respondent properly paid him his former wage rate even though the
Thus, we find that the Respondent violated the
Act by reducing the wages of these employees
The General Counsel contends that other employ
ees were discriminated against in a similar fashion
We leave to compliance the identification of simi
larly situated employees and the extent of the Re-
spondent's make-whole obligation
IV INDIVIDUAL STRIKER REINSTATEMENT19
For the reasons stated by the judge, we agree
that the Respondent violated the Act by suspend-
ing and failing to reinstate striker Kenneth Arney
when he abandoned the strike and made an uncon-
ditional offer to return to work on October 1,
1983 20 We also agree with the judge that the Re
spondent violated Section 8(a)(3) and (1) by failing
to reinstate stnkers James V Anderson, Shirley
Ann Barnes, Joyce Brown,21 Robert Brown, Roy
Campbell, Esther Emerson, Edward Ernouf, Julie
Hampton, Brenda Mason, Frederic Munnerlyn,22
Darlene Smith,23 Cherlyne Taylor, Sarah Taylor,
record shows his former job classification of Senior Painter had been
eliminated in the new bargaining agreement
19 The Respondent argues that the claims of certain strikers should be
dismissed because they are cognizable under the grievance arbitration
provisions of the parties collective bargaining agreement We do not
agree The Respondent has not indicated a willingness to arbitrate the
claims of these employees nor has it agreed to waive any agreed upon
contractual time limitations United Technologies Corp 268 NLRB 557
(1984) Given the Respondents rejection of the principles of collective
bargaining as found above we find that deferral would be inappropriate
in this case Id at 560
We find it unnecessary to rely on the judge s statement in the first par
of sec II C of his decision that where a strike is caused by the employ
er s unfair labor practices it has a stronger burden of proving employees
were lawfully denied reinstatement
20 We find that the Respondents suspension of Arney on October 1
lends additional support to the judge s and our finding that the strike was
an unfair labor practice strike
21 Contrary to the Respondents contention we find that the list of
strikers prepared by the union secretary B J Smiley ostensibly on
behalf of the Union does not constitute a waiver of the reinstatement
rights of employees on the list such as Brown The record does not of
firmatively establish a clear and unmistakable waiver of strikers reinstate
ment rights by the Union No evidence was presented to show that the
Respondent requested such a list from the Union or that the list was pre
pared pursuant to the Union s instructions Moreover the list which was
typed on a plain piece of paper was voluntarily given to the Respondent
and was prepared subsequent to the negotiation execution and ratifica
tion of the new collective bargaining agreement Letter of Understand
ing and Strike Settlement Agreement When contrasted with the formal
documents negotiated by the parties the list is simply insufficient to juste
fy the conclusion that it was a voluntary waiver by the Union of strikers
reinstatement rights
22 Even if as the Respondent contends the Union agreed to the orien
tation sessions there is no evidence to support the Respondents conten
tion that the Union agreed that a striker s failure to attend -or as with
Munnerlyn a striker s late arrival-would result in the waiver of his or
her recall rights
23 The Respondents contention that Smith was young and in school
is insufficient to establish a good faith belief that she was unavailable for
employment There is nothing inconsistent with Smith s alleged status as
a student and her being available to work at the Hotel
188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Michael Wells, Barbara Bowling,24 and Gladys
White Additionally, we agree with the judge that
the Respondent did not violate the Act by failing
to reinstate strikers Douglas Simmons and Martha
Henry We likewise agree that the Respondent vio-
lated Section 8(a)(3) and (1) by failing to reinstate
strikers Clifford A Bratton, J T Bratton, Maurice
Buckner, James Calloway, Buddy Cook, Reed
Cotton,25 Darryl Lanier, John Swain' 26 Bonnie
Finney, Curtis Hatcher, Vera Hill,27 William Lam
bert ,28 Jack Lancaster, Robert Leftwich, Ernest
Lindsey, Dallas Mangus, Julia Mangus, Herman
Mason, Cecil Meadows, Kenneth Mitchell'29 Jeff
Ratigan, 3 ° Betty Shockley, Earl Smith, Michael D
Taylor,31 T Arthur Taylor, Samuel Terry, and
Margaret Watson We also agree that the Respond-
ent did not violate the Act by failing to reinstate
strikers Ronnie Hayslett, Ralph Hayes, Robert
Tankesley, and John Wade Jr for their picket line
misconduct Contrary to the judge, however, for
the reasons set forth below, we find that the Re-
spondent violated Section 8(a)(3) and (1) by failing
to reinstate strikers Charles W McQueen and Al
freda Sayles
The judge found that the Respondent did not
violate Section 8(a)(3) and (1) by its refusal to
recall McQueen because the Respondent had termi-
nated him prior to October 1 We find merit in the
Charging Party's exception to this finding
Personnel Manager Dunn was responsible for re-
calling strikers at the conclusion of the strike
Dunn testified that she did not recall McQueen be-
cause he had broken his leg in August 1983 (before
24 Bowling testified that she spoke with then Personnel Manager Hoff
man when she went out on sick leave and with her own supervisor when
she later went out on strike This testimony which was not rebutted es
tablishes that Bowling was not terminated prior to the strike
25 In adopting the judge s decision we rely on Cotton s credible denial
that he engaged in the alleged acts of misconduct We find it unnecessary
to rely on the absence of evidence concerning the size weight or type of
rock allegedly thrown
26 In adopting the judge s conclusions that the Respondent violated the
Act by failing to reinstate Lanier and Swain we rely on the fact that the
Respondent s reports fail to establish that Swain and Lanier were actually
seen throwing apples at the guards and on the employees unrebutted as
sertions that they did not engage in the alleged misconduct
27 In adopting the judge we rely on Hill s denial that she had engaged
in the alleged acts of misconduct and on the judge s finding that the ma
tenal conflict between Security Officer 0 Neal s testimony and his writ
ten report casts doubt on his credibility We do not rely on the judge s
general assertion that for a striker to be denied reinstatement for throw
ing an object the object must be identified
26 In adopting the judge we rely on the fact that the Respondent s evi
dence failed to establish that Lambert threw the paint balloon
29 In adopting the judge we rely on the fact that the Respondent s evi
dence failed to establish that Mitchell threw the paint balloon
30 See fn 21 above
31 In adopting the judge s finding that the Respondent violated the Act
by failing to reinstate Taylor we rely on the judge s finding that the ma
tenal divergence between Security Officer 0 Neal s written report and
his testimony casts doubt on his credibility on Taylor s denial that he en
gaged in the alleged misconduct and on the undisputed contention that
0 Neal had in the past confused Michael Taylor with his brother
the strike) and had been off work without request-
ing a leave of absence Dunn claimed that she
checked with the personnel file, the payroll office,
and the general manager, and that "no one had any
idea when he was coming back "
McQueen testified that he dislocated his knee in
August 1983, was unable to work because of his
injury, and told his supervisors that he was unable
to work Neither supervisor told McQueen of any
obligation to request a leave of absence or other-
wise indicated that he was in danger of losing his
job One supervisor visited McQueen at his home
on three occasions during his convalescence
Even assuming Dunn's testimony is accurate, we
find that the evidence fails to establish that
McQueen was terminated before the strike Dunn's
testimony that "no one had any idea when
[McQueen] was coming back" is simply insufficient
to establish that the Respondent made a decision to
terminate McQueen before the strike Further, the
Respondent knew before the strike that McQueen's
medical condition prevented him from working at
the Hotel and yet made no mention of his supposed
obligation to apply for a formal medical leave
Thus, we find that the Respondent violated the
Act by failing to reinstate McQueen at the conclu-
sion of the strike
The judge also found that the Respondent did
not violate Section 8(a)(3) and (1) by refusing to
reinstate Alfreda Sayles The credited testimony re-
veals that Dunn contacted Sayles 3 days prior to a
scheduled orientation session and told Sayles to
attend Sayles agreed to attend but failed to do so
Although the judge found that the Respondent had
not established a substantial business justification
for requiring attendance at an unpaid orientation
session as a prerequisite to reinstatement, a finding
with which we agree'32 he found that the Re-
spondent lawfully refused to reinstate Sayles for
what was, in effect, a failure to comply with a
"reasonable reporting date We do not agree
Assuming that the Respondent could impose a
reporting date on a striking employee, we find that
there is no evidence that the Respondent treated
the mandatory unpaid orientation session as a "re
porting date" First, the Respondent did not tell
Sayles, or any other employee, that the orientation
session was a "reporting date" Dunn testified
simply that Sayles was not reinstated because she
failed to attend an unpaid orientation session Fur-
thermore, some employees who attended an orien-
tation session were not reinstated to work for some
time after the orientation 33 Accordingly, because
22 See also fn 22 above
22 For example Ruben Hale Ethyl Moorman and Lillie Graves
HOTEL ROANOKE
we find that the Respondent did not in fact impose
a reporting date, we conclude that the Respond-
ent's failure to reinstate Sayles violated the Act
V SECTION 8(A)(1) STATEMENTS
After the first negotiation session on July 19, at
which the Respondent made its demands for sub-
stantial concessions from the Union, the Hotel's
employees began to discuss the possibility of a
strike and the Respondent began making strike
preparations The judge concluded, and we agree,
that during this time period Supervisors Robert
Holden, Willie Hurt Jr, and Michael Craghead
made statements and threats that violated Section
8(a)(1) We also agree, for the reasons stated by the
judge, that Personnel Manager Beth Hoffman's al-
leged statements did not violate the Act The Gen-
eral Counsel excepts to the judge's findings that the
Respondent did not violate Section 8(a)(1) by cer-
tain statements made by management personnel
Herman Turk and Karen Dunn, and an additional
statement made by Michael Craghead We find
merit in the General Counsel's exceptions
Employee Vickie King testified that about 3
weeks before the strike, Turk told her that "the
union will not be there much longer " The judge
found that the General Counsel did not establish
the complaint allegations relating to Turk The
complaint alleged that (a) Turk threatened employ-
ees that the Respondent would refuse to sign a col-
lective-bargaining agreement with the Union, and
(b) he told employees that "the Respondent would
engage in a pattern of conduct designed to remove
the Union as the employees' collective-bargaining
representative " Turk testified at the hearing and
denied that he said that the Hotel would refuse to
sign a collective-bargaining agreement with the
Union Turk did not, however, deny making the
statement King attributed to him King's testimony
is closely related to the allegations of the complaint
and, on this record, is unrebutted Thus, we con-
clude that Turk's statement violated Section
8(a)(1)
Shirley Spillman testified that Craghead told her
before the strike that the Respondent was out to
"get rid" of the Union and, if employees went out
on strike, they "would not have fobs " Craghead
did not contradict Spillman's testimony The judge
found, and we agree, that Craghead's statement to
Spillman that the Respondent was out to "get rid"
of the Union violated the Act 34 Additionally, we
find that Craghead's threat to the effect that em-
ployees who went out on strike would lose their
jobs also violated Section 8(a)(1)
34 The Respondent has not excepted to this fmdmg
189
B J Smiley testified that following her suspen-
sion by the Respondent, Dunn told her to come
back to work and talk about "the veal and lemon
sauce and not about the Union " The judge, finding
that Dunn in fact made this statement, concluded
that it was not the promulgation of an unlawful no-
solicitation rule We agree that Dunn's statement
did not constitute the promulgation of an unlawful
rule However, Dunn's statement, coming as it did
at the conclusion of Smiley's unlawful suspension,
clearly is coercive within the meaning of Section
8(a)(1) We therefore conclude that Dunn's state-
ment to Smiley violated the Act
ORDER
The National Labor Relations Board orders that
the Respondent, the Virginia Holding Corporation
d/b/a The Hotel Roanoke, Roanoke, Virginia, its
officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Threatening employees that it would refuse
to sign a collective-bargaining agreement with the
Union
(b) Threatening employees that during contract
negotiations it would engage in a pattern of con-
duct designed to break the Union as the employees'
collective-bargaining representative
(c) Threatening employees that it would termi-
nate or refuse to reinstate strikers
(d) Informing returning strikers that they would
be considered new employees and that their previ-
ous seniority would not be recognized
(e) Refusing to bargain with the Union as the
duly designated representative of a majority of its
employees in the bargaining unit appropriate for
purposes of collective bargaining, within the mean-
ing of Section 9(b) of the Act
All employees employed by the Respondent at
its Roanoke, Virginia, location, excluding the
general manager , assistant to the general man-
ager, assistant manager , supervisors, confiden-
tial and executive employees, agreed casual
employees, guards, and all others defined by
the Act
(f) Unilaterally implementing terms and condi-
tions of employment during the course of collec-
tive bargaining without the parties having reached
a genuine impasse
(g) Suspending employees because they engage
in concerted protected activity
(h) Refusing to reinstate employees because they
engage in concerted protected activity
(i) Discriminating against employees for engag-
ing in concerted protected activity by refusing to
reinstate strikers according to their seniority,
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
scheduling stnkers to work less than an average of
24 hours per week while strike replacements were
scheduled to work in the same job classification,
denying fringe benefits to strikers, and cutting the
wages of strikers
(f) Refusing to furnish the Union with informa-
tion requested, which is necessary for it to perform
its function as a representative of employees in the
above-described bargaining unit
(k) In any other manner interfering with, re-
straining , or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action neces-
sary to effectuate the purposes of the Act
(a) Continue to recognize and bargain with the
Union as the duly designated representative of its
employees in the above-described appropriate unit
(b) Offer immediate and full reinstatement to
Kenneth Arney and those nonreinstated strikers
named in the "Appendix," to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions, without loss of seniority or other
privileges and make them whole in accordance
with the remedy section of the judge's decision,
with interest 35 In addition, make whole Betty J
Smiley for any loss of wages and-benefits she may
have suffered as the result of the discrimination
against her, with interest
(c) Remove from its files any reference to the
unlawful suspensions and notify Kenneth Arney
and Betty J Smiley in writing that this has been
done and that the suspensions will not be used
against them in any way
(d) Furnish the Union with the information re
quested, which is necessary for it to perform its
function as a representative of employees in the
above-described bargaining unit
(e) Make whole, with interest, all unit employees
whom the Respondent discriminated against by re-
calling them out of their seniority order, by refus-
ing to schedule them to work an average of 24
hours per week while scheduling strike replace-
ments to work in the same job classification, by de-
nying them the fringe benefits provided in the bar-
gaining agreement, and by reducing their wages
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
35 In accordance with our decision in New Horizons for the Retarded
283 NLRB 1173 (1987) interest on and after January 1 1987 shall be
computed at the short tern Federal rate for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp 231 NLRB 651 (1977)
amount of backpay due under the terms of this
Order
(g) Post at its Roanoke, Virginia facility copies
of the attached notice marked "Appendix "36
Copies of the notice, on forms provided by the Re
gional Director for Region 5, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places, including all places where no-
tices to employees are customarily posted Reason
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
36 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
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT threaten employees that we will
refuse to sign a collective-bargaining agreement
with the Union
WE WILL NOT threaten employees that during
contract negotiations we will engage in a pattern of
conduct designed to break the Union as employees'
collective-bargaining representative
WE WILL NOT threaten employees that we will
terminate or refuse to reinstate strikers
WE WILL NOT inform returning strikers that they
will be considered new employees and that their
previous seniority will not be recognized
HOTEL ROANOKE
WE WILL NOT refuse to bargain with the Union
as the duly designated representative of a majority
of our employees in the following unit appropriate
for purposes of collective bargaining
All employees employed at our Roanoke, Vir-
ginia, location, excluding the general manager,
assistant to the general manager , assistant man-
ager, supervisor, confidential and executive
employees, agreed casual employees, guards,
and all others defined by the Act
WE WILL NOT unilaterally implement terms and
conditions of employment during the course of col-
lective bargaining without having reached a genu-
ine impasse
WE WILL NOT suspend employees because they
engage in protected concerted activity
WE WILL NOT refuse to reinstate employees be-
cause they engage in protected concerted activity
WE WILL NOT discriminate against employees for
engaging in protected concerted activity by refus-
ing to reinstate strikers according to their seniority,
scheduling strikers to work less than an average of
24 hours per week while strike replacements are
scheduled to work in the same job classification,
denying fringe benefits to strikers, or reducing the
wages of strikers
WE WILL NOT refuse to furnish the Union with
information requested, which is necessary for it to
perform its function as a representative of employ-
ees in the above-described bargaining unit
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the exer-
cise of the rights guaranteed them by Section 7 of
the Act
WE WILL offer full and immediate reinstatement
to the following of our striking employees (if we
have not already done so) who were unlawfully
denied recall following the end of the strike, and
WE WILL make them whole for any losses of wages
and benefits they may have suffered as the result of
the discrimination against them
James V Anderson
Shirley Ann Barnes
Joyce Brown
Robert Brown
Roy Campbell
Esther Emerson
Edward Ernouf
Julie Hampton
Brenda A Mason
Dallas Mangus
Julia Mangus
Alfreda Sayles
Darlene Smith
Cherlyne Taylor
Reed Cotton
Bonnie Finney
Curtis Hatcher
Vera Hill
William Lambert
Jack Lancaster
Darryl Lanier
Robert Leftwich
Ernest Lindsey
Charles W McQueen
Frederick Munnerlyn
Herman Mason
Cecil Meadows
Kenneth Mitchell
Sarah Taylor
Michael Wells
Barbara Bowling
Gladys White
Clifford A Bratton
J T Bratton
Maurice Buckner
Margaret Watson
Buddy Cook
Jeff Ratigan
Betty Shockley
Earl Smith
John Swain
Michael D Taylor
T Arthur Taylor
Samuel Terry
James Calloway, Jr
191
WE WILL offer Kenneth Arney reinstatement to
his former job or, if that job no longer exists, to a
substantially equivalent position of employment
without any loss of rights and benefits, and WE
WILL make him whole for any loss of wages or
other benefits he may have suffered as the result of
the discrimination against him effective October 1,
1983
WE WILL make whole Betty J Smiley for any
loss of wages or other rights and benefits she may
have suffered as the result of her suspension on or
about July 10, 1984
WE WILL notify Kenneth Arney and Betty J
Smiley that we have removed from our files any
reference to their suspensions and that the suspen-
sions will not be used against them in any way
WE WILL make unit employees whole for any
losses suffered as a result of our unlawful discrimi-
nation by refusing to reinstate strikers according to
their seniority, scheduling strikers to work less than
an average of 24 hours per week while strike re-
placements were scheduled to work in the same
job classifications, denying fringe benefits to strik-
ers, and reducing the wages of strikers
WE WILL furnish the Union with the information
requested, which is necessary for it to perform its
function as the representative of the employees in
the above-described bargaining unit
WE WILL recognize and bargain with the Union
as the duly designated representative of our em-
ployees in the above-described appropriate unit for
collective bargaining
THE VIRGINIA HOLDING CORPORA
TION D/B/A THE HOTEL ROANOKE
Eric Fine Esq and James Lewis Esq, for the General
Counsel
George V Gardner Esq, of Roanoke, Virginia, and Asa
Ambrister Esq, of Nashville, Tennessee, for the Re
spondent
Gary M Ebin Esq and M Catherine Lacinak, Esq, of
Cincinnati, Ohio, for the Charging Party
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
JAMES L ROSE, Administrative Law Judge The Hotel
Roanoke' is a large , elegant old railroad hotel which is
now operated by The Virginia Holding Corporation, a
wholly owned subsidiary of Norfolk & Southern Rail
way Corporation Norfolk & Southern came into being
in 1982 with the merger of Southern Railway Corpora
tion and Norfolk & Western Railway Company, which
had previously operated the Hotel as a wholly owned
subsidiary, and whose offices are across the street from
it
For many years the Hotel had recognized the Charg
ing Party2 as the bargaining representative for a unit of
its employees The bargaining unit represented by the
Union includes bellmen, waitresses, maids, and engineers
The parties negotiated successive collective bargaining
agreements , the most recent of which prior to the events
in this matter was effective from 15 August 1980 through
14 August 1983 3
The principal substantive issues involved here apse out
of negotiations for a successor agreement In brief, the
parties first met on 19 July with the Union making sever
al economic demands to which the Hotel responded neg
atively, stating that its aim was to negotiate concessions
from the Union The parties continued to meet through
out the summer of 1983, ultimately in the presence of a
Federal mediator
On 26 September, after meeting for approximately 2
hours, George Gardner, the Hotel's chief spokesman and
counsel for the Hotel in this matter, stated that the par
ties were at an impasse and the Hotel intended to imple
ment its proposals effective 1 October He said that if the
Union had anything further to discuss, he could be
reached at the Hotel
On 1 October the Hotel did in fact implement various
of its proposals and on that day the employees com
menced a strike which lasted about 6 1/2 months
After a nearly 4 month hiatus the parties resumed ne
gotiations in January and ultimately reached agreement
on the terms of a contract and settlement of the strike
In April the Hotel began to recall employees, in con
nection with which they were required to attend an on
entation meeting presided over by the then personnel di
rector, Karen Dunn Employees were recalled in groups
of 10 or more The entire complement of recalled stnk
ers was to be in place within 90 days after execution of
the strike settlement agreement
The Hotel, however refused to recall 36 strikers
whom it maintains engaged in such egregious picket line
misconduct as to render them unfit for further service In
addition, a number of other employees were not recalled
The General Counsel maintains that by failing to recall
all these strikers the Respondent violated Section 8(a)(1)
and (3) of the National Labor Relations Act, 29 U S C §
i Herein the Hotel the Company or the Respondent
2 Hotel Cafeteria Hospital & Restaurant Employees Local 121 Hotei
Employees and Restaurant Employees International Union AFL-CIO
(the Union)
8 All dates are between July 1983 and June 1984 unless otherwise mdi
cated
151, et seq The Respondent contends 36 of them en
gaged in picket line misconduct and therefore lost pro
tection of the Act, and that others were not recalled for
legitimate business reasons, including failing to attend an
orientation session , and being physically infirm
The General Counsel further contends that the Re
spondent violated the Act in its recall of employees by
discriminating against strikers in job assignments and
hours available for employment The Respondent con
tends that in all cases the recall of employees was in ac
cordance with the strike settlement agreement and the
newly executed collective bargaining agreement
Both before the strike and at its conclusion, various
members of management are alleged to have made state
ments to employees in violation of Section 8(a)(1) of the
Act, including threats interrogation, and the like
Finally, the General Counsel alleges that the strike
was called to protest the Respondents unfair labor prac
tice of improvidently declaring an impasse where none
existed, and unilaterally altering the terms and conditions
of employment, or, in the alternative, that the strike was
prolonged by the Respondents unfair labor practice of
discharging employee Kenneth Arney following com
mencement of the strike on 1 October and, inferentially,
discharging all other employees simply because they en
gaged in the protected activity of striking In addition it
is alleged that employee Douglas Simmons was unlaw
fully discharged and that Bettie J Smiley was suspended
for 9 days in July 1984 These discharges and suspension
are alleged violations of Section 8(a)(3)
The Respondent generally contends that it bargained
in good faith with the Union, that it did not precipitously
declare an impasse , that the strike was at all times an
economic strike, that it had lawful reasons for failing to
recall the various strikers and that the discharges of
Arney and Simmons and the suspension of Smiley were
for cause Finally the Respondent contends that its man
agement personnel did not engage in the acts attributed
to them which are alleged violations of Section 8(a)(1)
The issues framed by the amended consolidated com
plaint4 and the answer were tried before me on various
dates at Roanoke Virginia, between 19 March and 25
June 1985 Following the close of the hearing, counsel
for all parties submitted extensive briefs On the record
thus made, 5 including my observation of the witnesses,
briefs and arguments of counsel I issue the following
4 The charge in Case 5-CA-15924 was filed on 9 November 1983 and
amended on 13 January 1984 the charge in Case 5-CA-16065 was filed
on 6 January and amended on 13 January 1984 and the charge in Case
5-CA-16664 was filed on 12 September and amended on 21 September
and 27 November 1984 The amended consolidated complaint issued on
18 January 1985
5 On 20 February 1986 counsel for the Respondent moved that I take
notice of the order in Case 5-CA-15942 in which a charge filed by the
Union during the instant trial was adjusted by execution of a settlement
agreement which the Union declined to join Though I grant the motion
neither the order nor the Union s reference to the allegations in its charge
were considered in reaching any conclusion in this matter
HOTEL ROANOKE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
As indicated, the Respondent is a wholly owned sub
sidiary of Norfolk & Southern Railway Corporation Un
deniably, in connection with its business, the Respondent
annually receives goods, products and materials directly
from outside the State of Virginia in excess of $50 000,
and annually derives gross revenues in excess of $500,000
from its operation as a hotel It is admitted and I find
that the Respondent at all times material was an employ
er engaged in interstate commerce within the meaning of
Section 2(2), (6), and (7) of the Act
It is likewise admitted, and I find, that the Union was
at all times material a labor organization within the
meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICFS6
A Bad Faith Bargaining
The General Counsel and the Charging Party allege
that the Respondent entered into negotiations in 1983
with a predetermined intent not to bargain in good faith,
that it pursued its unlawful bargaining position through
at least 26 September, at which time it improvidently de
Glared an impasse and thereafter unilaterally implemented
certain changes in terms and conditions of employment
By these acts it is alleged that the Respondent breached
its bargaining obligations and thus violated Section
8(a)(5) of the Act
1 Surface bargaining
After preliminary discussions by telephone and letters
the parties first met to negotiate a new collective bar
gaining agreement on 19 July in Roanoke At that meet
ing the Union's chief spokesman was Ronald Richardson
executive secretary treasurer of Local 25 of the Hotel,
Cafeteria, Hospital & Restaurant Employees Union
(Washington, D C), and an International vice president
Gardner had earlier denied Richardson s suggestion that
the two of them meet in Washington and negotiate a
contract in 2 or 3 days
At this 19 July meeting, the Union presented a list of
13 demands, ' all of which related to more compensa
tion for employees The Union demanded an across the
board wage increase increased life insurance, increased
sick leave pay increased sickness and accident benefits
increased contribution to the pension plan and free park
ing In addition the Union demanded more guaranteed
worktime for senior employees and engineers as well as a
new classification for cooks in one of the restaurants
At this meeting, undeniably, Gardner told the union
negotiators that the Company would not accept any of
the Union s demands and he intended to negotiate con
cessions (or `give backs') Although he did not submit
specific contract proposals at this time, Gardner did
present to the Union a list of the Hotel's concerns in
6 Inasmuch as the allegations in the amended consolidated complaint
are extensive involving events occurring over a period of many months
and often of only a tangential relationship to each other the facts and
analysis of each alleged unfair labor practice will be separately treated
193
both economic and noneconomic areas The principal
items under economics included elimination of guaran
teed workweeks for certain classifications of employees,
pay for employees who are called in to work, and a
method by which overtime and premium pay are calcu
lated Among the 18 items in the non financial catego
ry, were tightening management control of security (in
cluding the inspection of employees' pocketbooks and
giving them polygraph and alcohol tests), improving
management 's right to alter job classifications and to
assign employees to specific tasks, increasing the proba
tionary period, and removing the arbitration clause from
the contract
The General Counsel and the Union argue that by
making demands that could not be accepted and by re
jecting out of hand the Union s proposals, the Company
thereby demonstrated its subjective intent not to negoti
ate with the Union in good faith It is argued that this
predetermined position is also demonstrated by the fact
that during the subsequent bargaining sessions through
26 September (of which there were nine), the Company
did not relinquish any of its degrading proposals Fur
ther it is argued that the Company claimed its proposals
were necessary in order to become profitable but that it
was dilatory and less than honest in presenting documen
tary evidence to support this position 7 The General
Counsel and Union further argue that the Respondent s
predetermination not to reach an agreement is demon
strated by the acrimony exhibited by Gardner as well as
other members of the management team, during the
course of negotiations
Section 8(d) of the Act defines the parties obligation
to bargain collectively as requiring them to meet at rea
sonable times and to confer `in good faith with respect
to wages hours and other terms and conditions of em
ployment, or the negotiation of an agreement While
the Board is not the arbiter of a position taken by either
party to collective bargaining, the Board is charged with
monitoring the overall conduct of parties to ensure that
they in fact bargain in good faith And where the totality
of one s conduct demonstrates that it engaged in dilatory
conduct and otherwise evidenced a determination to
avoid reaching an agreement, then that party has violat
ed its obligations under Section 8(d) of the Act and can
be held to have refused to bargain in good faith See
e g Leeds Cablevision 277 NLRB 103 (1985) (Chairman
Dotson dissenting)
While the law is clear in defining a party s obligation
to bargain in good faith what constitutes a breach of
that obligation is not so clear This is because the ulti
mate conclusion involves subjective intent and the ob
jective facts tending to prove an unlawful intent might
also tend to prove hard bargaining, which is lawful
Here there is no real dispute concerning the salient
facts before and during bargaining The parties disagree
only on the interpretation to be derived from those facts
On balance I conclude that the evidence proves a pos
' It is noted in this respect that in July 1983 the Union filed a charge
alleging a violation of Sec 8(a)(5) based on the Truitt doctrine NLRB Y
Truitt Mfg 351 U S 149 ( 1956) which was dismissed by the Regional
Director
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ture of hard bargaining on the part of the Respondent
and reasonable attempt to become more productive and
profitable , given its economic situation
The dramatic changes from the existing collective bar
gaining agreement sought by the Company , along with
its failure to propose any wage or benefit increase at all,
leads one initially to conclude that the Company had no
intention of reaching an agreement , other than total ca
pitulation by the Union The Hotel must necessarily have
known such could not be acceptable In short the Re
spondent s proposals stated , in effect , This is what we
would do if we had the power to do what we want
without negotiating Such appears to be inconsistent
with a real desire to bargain for a mutually acceptable
agreement Good faith necessarily means negotiating to
reach an agreement that would be mutually acceptable,
and such presupposes that neither side gets all it wants
Notwithstanding , there are factors here that tend to
minimize the strident nature of the Respondents bargain
ing position and tend to negate the implication that the
Respondent entered into negotiations in bad faith
First , the parties had a collective bargaining relation
ship for nearly 20 years and as far as this record indi
cates such had been amicable Some of the same individ
uals for both the Company and the Union had been in
volved in negotiating the previous contracts Gardner
had been the Company s chief spokesman in prior negoti
ations James Wade , the Union s president , had partici
pated in previous negotiations on behalf of the Union
Second , the Company stated at the outset of negotia
tions and established , if only in general terms, its per
ceived necessity to negotiate concessions from the
Union The evidence reveals that there had been several
new motels (hotels) built in the Roanoke area , servicing
the same clientele as the Respondent As a result of this
and perhaps other factors the Respondents occupancy
rate had gone down to about 40 percent Such was unac
ceptably low While the Respondents principal restau
rant (which enjoys a four star rating ) continued to be
busy , the room occupancy rate necessarily had a nega
tive effect on the Hotel s restaurant business in general
The General Counsel and Union argue that because
the Respondents parent company is profitable these fac
tors are largely irrelevant I disagree Because as the
question here involves an analysis of the Respondent s
subjective intent , I conclude that managements desire to
alter contract terms in an effort to become more com
petitive and therefore productive , given its current eco
nomic situation , is relevant Certainly the overall eco
nomic position of the Hotel (including the nature and
extent of the competition) cannot be discounted where
the issue is whether Respondents posture was one of
hard bargaining or of bad faith
It is also argued that the acrimony demonstrated by
company negotiators, particularly Gardner , toward union
negotiators evidences a surface bargaining intent Al
though such may be a relevant factor , as has been noted
on many occasions by the Board and the courts, unfortu
nately sometimes during collective bargaining ad ho
minem attacks are made by one side or the other or
both Such must be viewed as a reality rather than some
thing of definitive importance See, e g , Leeds Cablevi
lion supra Further a review of the testimony here re
veals that neither side is totally blameless in the matter of
acrimonious statements and posturing
In fact the parties did meet on 10 occasions within an
approximate 2 month period and did discuss at length the
Company s proposals Indeed , tentative agreement was
reached on many items Finally , and of significance, al
though not controlling , is the fact that the Company and
the Union ultimately reached accord on a successor col
lective bargaining agreement Although this occurred
following a strike which lasted nearly 7 months, never
theless the employees (through their Union) agreed to a
contract that contained most of the substantive proposals
with which the Respondent entered negotiations
The principal changes from the 1980 - 1983 contract in
elude a 12 week probationary period , a definition of a
full time employee , deletion of the 40 hour per week
guarantee for certain classifications , a further delineation
of management rights, deletion of overtime pay for work
in excess of 8 1/2 hours in a given day and deletion of
double time for the seventh consecutive day worked, a
change of from 4 to 2 hours in showup pay and a change
from 8 to 2 hours of pay if one calls in and works 1
hour , deletion of a provision relating to part time em
ployees working less than 3 days a week , a provision
that holiday pay applies only to full time employees,
similarly, that full vacation pay be for full time employ
ees with part time employees who work 1200 hours a
year to get vacation on the basis of 3 days for each week
of entitlement and those who work less than 1200 hours
to get vacation pay on a prorata basis, a more restrictive
leave of absence policy , a change in the dollar amount
for cash register errors and notice to be given the em
ployee deemed responsible , a deletion of the banquet em
ployees' health and accident insurance , a change in the
arbitration grievance procedure to provide for a perma
nent arbitrator deletion of the grandfather clause a
provision that bellmen and maids might be assigned to
do certain duties outside their normal work , a provision
that the Company could create new job classifications,
the addition of a mandatory retirement age, and the addi
tion of a clause that past practice would not be control
ling
The wage and compensation schedules remained un
changed, as did many of the other contract provisions
They include dues checkoff, the general language of the
management rights clause , the specific holidays, the
amount of vacation employees earn , providing meals and
a place for employees to eat them , uniforms seniority
(with some minor changes involving leaves of absence),
dressing rooms, insurance , hospitalization pensions a
grievance procedure , with , as noted, a change in the ar
bitration provision strike, lockout and picketing provi
sions a nondiscrimination clause, and bereavement and
sick leave pay
Comparing the expired contract with the 1984 con
tract , along with the Company s proposals and the
Union s demands , reveals that the Union was not suc
cessful in achieving any of its objectives However, the
Company was successful in negotiating a wage freeze
along with certain other provisions affecting economics,
HOTEL ROANOKE
particularly including overtime and showup pay, and the
amount of compensation and fringe benefits to be paid
less than full time employees Many economic and non
economic provisions of the expired contract were includ
ed in the new contract verbatim or with minor changes
My analysis of these documents leads to the conclusion
that the Company was not successful in securing all its
demands, nevertheless it was substantially successful in
the area of economics and in deleting what it perceived
to be the onerous past practice clauses The Company
ultimately withdrew its demand for no arbitration and
the parties agreed to having a permanent arbitrator for
their dispute resolution
Inasmuch as most of the Company s principal demands
were achieved in substance, I cannot conclude that they
were so outrageous as to evidence a predetermination
not to reach an agreement with the Union
Other of the Company s demands, including a provi
sion that it be allowed to search employees give them
polygraph and blood urine tests, while potentially de
meaning , are not so outrageous as to require the conclu
sion of surface bargaining The nature of the industry
and the undenied evidence that in fact some employees
had been intoxicated at work and some property was
missing give a rational predicate for these proposals
On the record before me, I conclude that the Re
spondent did not enter into negotiations with a predeter
mined intent not to agree to a contract acceptable to the
Union Accordingly, I will recommend dismissal of para
graph 16(b) of the amended consolidated complaint
2 The impasse
Although the parties dispute precisely what was said
and by whom at the 26 September meeting all agree that
Gardner stated that they had reached an impasse, and
the Company intended to implement its proposals effec
tive 1 October The Respondent maintains that Howard
Richardson8 made some response indicating that he
agreed there was an impasse The Union and General
Counsel witnesses, including Richardson, deny that he
made such a statement Specifically they testified that on
26 September it was the Union s position, and its state
ment to Gardner, that there was in fact no impasse
Richardson told Gardner there had been movement on
significant issues and there remained room for movement
were the Respondent to negotiate in good faith
Although conceptionally impasse is less subjective
than surface bargaining, it is at least as difficult to ana
lyze When surface bargaining tends to be static, impasse
is shifting Whether the parties are at impasse can change
depending sometimes on subtle changes in the situation
In any event whether or not there is an impasse depends
on an analysis of the total factual situation to determine
the state of mind of both parties to bargaining at a par
ticular point in time See Taft Broadcasting Co 163
NLRB 475 (1967) petition for review denied 395 F 2d
622 (D C Cir 1968) Basically, at a given point there is
8 After the first meeting Ronald Richardson no longer participated in
negotiations Howard Richardson of Euless Texas is another Interna
tional vice president and was the Union s chief spokesman until negotia
bons to settle the strike
195
impasse if it can reasonably be concluded that the par
ties' positions on important issues (to them) are so fixed
that movement toward an agreement is not probable
Inasmuch as collective bargaining agreements aim to
codify a full range of terms and conditions of employ
ment , some items are more important than others Thus,
during negotiations there can be movement, indeed
agreement, on some provisions and there still be an im
passe because the parties positions on important items
are intransigent Nevertheless, the fact of movement by
one party or another toward agreement is one factor to
be considered in determining whether or not at a given
time there was impasse
In these negotiations the positions of the parties was
far apart The Company wanted substantial changes from
the existing contract in important areas The Union
wanted a substantial increase in wages and other mone
tary benefits Shortly after the beginning of negotiations,
the parties took as their guideline for discussion the
Company s proposals and during the several bargaining
sessions prior to 26 September each of these items was
discussed at some length, and agreement was reached on
some of them Although the parties remained far apart
on many items even after nine negotiating sessions the
question is whether on 26 September the posture of the
Union as reasonably perceived by the Company, was
such that progress could be made with continued bar
gaining , and whether the Company s position on items
which it determined of utmost importance was so fixed
that without concession on them no agreement was
likely
Whether impasse exists at a particular time in negotia
tions is dependent on the particular circumstances at the
time and is by its nature a fleeting concept In essence,
impasse means that further bargaining given the same
conditions would not likely produce an agreement But
whether an impasse exists at any particular time during
the course of negotiations is largely of academic interest,
unless one party takes action which is permissible only in
the event of impasse For instance here the Respondent
declared impasse on 26 September and announced that it
would implement its proposals effective 1 October The
unilateral implementation of changes in terms and condi
tions of employment during negotiations amounts to an
unlawful refusal to bargain unless the parties have
reached impasse Taft Broadcasting, supra Thus whether
or not there was an impasse is critical to a determination
of whether the unilateral changes were unlawful And in
analyzing the circumstances to determine whether there
was an impasse, the tests set forth in Taft remain applica
ble
Whether a bargaining impasse exists is a matter
of judgment The bargaining history, the good faith
of the parties in negotiations , the length of negotia
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego
tiations are all relevant factors to be considered in
deciding whether an impasse in bargaining existed
[163 NLRB at 478 ]
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A review of the relevant factors leads me to conclude
that here there was no impasse on 26 September My
conclusion is predicated primarily on a finding that the
alleged impasse issues were relatively minor , in compare
son to concessions demanded by the Respondent and ul
timately agreed to by the Union , and the parties reached
a negotiated settlement concerning these issues The al
leged impasse issues were compromised rather than the
Union capitulating to the Hotel s demands
Where the parties have demonstrated an ability to
compromise on a specific issue , such suggests that fur
ther negotiations on that issue would not have been fruit
less On the other hand , where the parties announce
fixed positions on a particular issue and then one side or
the other capitulates following some change in circum
stance , such tends to indicate they had a real inability to
compromise on that issue Therefore further bargaining
on it would not have been productive Capitulation by
one side implies that there was no compromise on the
particular issue Hence negotiation was not what led to
agreement which was a result of changed circumstances
Absent the changed circumstance it was unlikely there
would have been an agreement Of course , neither com
promise nor capitulation is dispositive of the impasse
question What happened subsequently merely tends to
shed light on the party s positions at the moment under
consideration
Here regarding the issues which the Respondent
claims resulted in impasse, there was compromise and no
particular reason to believe such could not have been
achieved with continued bargaining Quoting from the
Respondent's brief
[T]he parties were entrenched into two different po
sitions concerning the key issues of binding arbitra
tion , elimination of past practices and clarification
of management rights pertaining to consolidation of
jobs and scheduling It is important to note that
these three issues were the precise matters which
Mr George Gardner testified were the three pnnci
pal thrusts which the Hotel negotiators believed to
be the most important in negotiating a new con
tract
The Respondent proposed an elimination of binding
arbitration as the final step in the grievance procedure
Howard Richardson stated during negotiations that he
would never accept a contract that did not include bind
ing arbitration
The Respondents witnesses testified that the elimina
tion of arbitration was proposed because the Union had
taken frivolous grievances to arbitration in the past This
was a time-consuming and costly endeavor , and further
the Union had won reinstatement of discharged employ
ees through arbitration (due to the claimed union bias of
arbitrators) which was also costly not only in backpay
but in the discipline credibility of management The Re
spondent s evidence regarding this was at best vague and
general Only one specific arbitration case was testified
to
I do not credit and cannot accept Respondents gener
alized conclusions that it found binding arbitration to be
more onerous or costly than might generally be expect
ed No doubt there is some expense attendant to having
an arbitration clause in a collective bargaining agree
ment No doubt to some extent the fact that manage
ment s discipline decisions can be reviewed by an arbitra
tor serves as a brake on management exercise of arbi
trary authority over employees Nonetheless , arbitration
is a preeminent national labor policy See, e g , Steelwork
ers trilogy 9 Thus, to accept the Respondents argument
concerning the seriousness of its proposal to eliminate
binding arbitration would be to allow the Respondent to
pick and choose among items of national labor policy it
would accept Such would be similar to the argument
that a company should not have to bargain because a
collective bargaining agreement might be inimical to its
ability to do business in the manner it wants The nation
al labor policy simply cannot permit this argument nor
the one advanced by the Respondent to be seriously con
sidered
Beyond that, the parties in fact did negotiate changes
in the arbitration clause whereby they would select a
local permanent arbitrator to handle disputes arising
under the collective bargaining agreement In short, nei
ther side capitulated on this issue This suggests that had
the parties negotiated specifically on this issue on or after
26 September, a similar tentative agreement could have
been reached
Because binding arbitration is a favored national labor
policy and because the parties did compromise their re
spective positions on this provision , I conclude that this
was not truly an impasse issue on 26 September
The parties discussed the elimination of past practices
The Respondent contended that this was important be
cause the Union s president (who had been an employee
of the Hotel for 40 years) took advantage of the Re
spondent s young managers However the testimony
does not reveal that this was an issue about which the
parties could not ultimately have reached an agreement
had they negotiated further after 26 September There is
nothing in the testimony , even of the Respondents wit
nesses, that the Union objected to some type of clause
whereby the contract would be interpreted on its face
The Union simply insisted that the Respondent state spe
cifically what it had in mind concerning the elimination
of past practices
The clause that the parties finally agreed to states
Any past practice inconsistent with this agreement
should not be controlling There is no indication that
the Union ever objected to this particular language
Indeed , such is probably redundant, for labor contracts
are normally interpreted in accordance with their unam
biguous language and the matter of past practice be
comes relevant only in the event of an ambiguity
In short, the nature of the relief sought by the Re
spondent in this proposal and the clause ultimately
agreed to by the Union, along with testimony of the par
ties does not suggest that it was such an issue that the
parties could not have made progress had they negotiat
9 Steelworkers v American Mfg Co 363 U S 564 ( 1960) Steelworkers v
Gulf Navigation 363 US 574 ( 1960) Steelworkers v Enterprise Corp 363
US 593 (1960)
HOTEL ROANOKE 197
ed concerning it on or after 26 September I do not be
lieve that this was, or could have been significant
enough to cause a true impasse
Finally Respondent contends that the matter of clan
fying the management rights clause pertaining to consoli
dation of jobs and scheduling was an impasse issue
Management rights pertaining to consolidation of jobs
and scheduling is contained in article III (Management
Rights) and article XVII (Miscellaneous) of both the ex
pared and new contracts The expired contract gives the
employer broad management rights, which are similarly
set forth in the new contract , with the addition of specif
ics such as B The right to establish work schedules "
In article XVII of the expired contract
Section 12 Establishment of new classifications
In the event the Employer adds any new classifica
tions to its payroll which would normally fall
within the scope of the bargaining unit the Em
ployer and the Union will meet to establish wage
rates and conditions for these classifications
In the new contract in article XVII is the following Ian
guage
Section 9 Establishment and Consolidation of Clas
sifications
The Employer may consolidate classifications
add new classifications , and change classifications of
Employees which would normally fall within the
scope of the bargaining unit The Union agrees to
assist the Employer in any consolidation addition,
or change of classification
Although the language in the two contracts vanes
somewhat concerning the matter of establishment and
consolidation of classifications , it does not appear that
there is a sufficient substantive difference between them
to support the conclusion that such would be an impasse
issue singularly or in connection with other issues The
testimony is simply inadequate and unpersuasive that the
Respondents authority in the area of classifications and
scheduling needed to be changed in any substantive re
spect , or that the Union opposed the changes sought by
the Respondent
On 26 September the parties were a long way from
reaching an agreement But, from the totality of this
record I cannot conclude that further negotiations on, or
immediately after 26 September would have been an ex
ercise in futility Specifically I believe that the three
issues that the Respondent contends resulted in impasse
were of relative insignificance In any event they were
matters over which the parties could have bargained in
good faith and reached a tentative agreement without
any change in the circumstances then surrounding the
negotiations
It is further noted that in fact there had been move
ment by the parties during the course of bargaining
Indeed on 26 September the Union made certain conces
sions The Union s demonstrated willingness on 26 Sep
tember to make concessions and, from the credited testi
mony of the Respondents witnesses , its acknowledgment
that Respondent needed concessions , further prove there
was no true impasse when the Respondent cut off negoti
ations
To both the Respondent and the Union , the central
issues involved in these negotiations involved economics
wages, the allocation of tips, overtime , guaranteed work
week fringe benefits , and the like These were significant
issues However , these were issues that the parties were
in the process of resolving , and such is at least tacitly ad
matted by the Respondent The Respondent does not
contend that impasse was caused by any one or a combi
nation of the economic issues The alleged impasse issues
were clearly not central to both parties Indeed, to the
extent that these issues were important , they were of
more importance to the Respondent than to the Union,
again as demonstrated by the concessions made and the
agreement reached
Notwithstanding that I conclude the Respondent bar
gained in good faith until 26 September , I nevertheless
conclude that by declaring impasse on that day and sub
sequently implementing unilateral changes the Respond
ent violated Section 8(a)(5) of the Act Compare
Hamady Bros Food Markets , 275 NLRB 1335 (1985)
(Member Dennis dissenting)
B The Strike
On 1 October employees in the bargaining unit corn
menced a strike and it lasted until 16 April 1984 at
which time the parties executed the new collective bar
gaining agreement along with the strike settlement agree
ment There is little doubt nor is it really disputed, that
the strike was caused in substantial part by the Respond
ent s bargaining The Respondent simply contends that
this was not an unfair labor practice strike because it did
not engage in any unfair labor practices predating the
strike
In agreement with the General Counsel and the Union
I conclude that in fact a principal causative factor of the
strike was the Respondent 's improvident declaration of
impasse on 26 September and its unilateral implementa
tion of changes in terms and conditions of employment
on 1 October These acts of the Respondent were unfair
labor practices Because the strike was called , in part at
least, to protest the Respondents unfair labor practices
it was at its inception an unfair labor practice stake See,
e g Mastro Plastics Corp v NLRB , 350 U S 270 (1956)
C Reinstatement of the Strikers
Though the employees status as unfair labor practice
strikers does not appear generally material , this has some
bearing on the reinstatement issues Thus in Radio Elec-
tric Service Co, 278 NLRB 531 (1986), there was no im
passe and the strike was a result of the company s unfair
labor practices in bargaining The Board held that the
company had the burden of proving an economic neces
sity for not reinstating strikers And in Seminole Asphalt
Refining, 207 NLRB 167 (1973), the Board held that the
employees misconduct must be weighed against the em
ployer s unfair labor practices precipitating the strike in
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
determining whether they lost protection of the Act 10
In either case , where the strike is caused by the employ
er's unfair labor practices, it has a stronger burden of
proving employees were lawfully denied reinstatement
In material part, the strike settlement agreement pro
vides that
1 All striking employees shall be recalled to
work in the classification which they held prior to
striking, or its equivalent, by seniority within three
(3) months from the date of the ratification of the
collective bargaining contract, with the exception of
the employees as specified in paragraph 2 herein
2 The Hotel will not recall employees which it
contends engaged in misconduct during the strike
The Union does not agree that there are any em
ployees ineligible to be returned to work other than
those convicted of picket line misconduct and will
submit this matter to the National Labor Board for
determination Nothing herein shall be construed to
be a waiver of any such employees rights and reme
dies under the National Labor Relations Act, as
amended
By these provisions of the strike settlement agreement,
it appears that the parties agreed that the Respondent
could lawfully recall employees during a period of 3
months And in a letter of understanding the Respond
ent agreed there would be a minimum of 160 full time
jobs For any employee whose seniority did not qualify
him or her for a full time job, that employee could claim
available hours, based on seniority
I conclude that the strike settlement agreement recog
nized the exigencies of the industry and the Respondent s
operation and allowed for recall of strikers over a 3
month period based on the availability of work and of
the returning strikers
Although the general recall plan is not questioned the
General Counsel and the Charging Party contend that its
application to certain nonreinstated and reinstated strik
ers was unlawful
The law is quite clear that strikers cannot be dis
charged because they have chosen to engage in the pro
tected activity of striking Consistent with this an em
ployer must reinstate strikers who make unconditional
offers to return to work, provided that under certain cir
cumstances an employer may refuse to rehire an econom
is striker who has been permanently replaced and can
deny reinstatement to those whose conduct during the
course of the strike was so egregious as to render them
unfit for further employment
The Respondents duty under the Act in these regards
is irrespective of motive Thus an employer, for in
stance, is required to reinstate a striker notwithstanding
its good-faith belief that that individual has engaged in
egregious picket line misconduct on a showing that the
employee in question did not engage in such conduct
See e g Rubin Bros Footwear 99 NLRB 610 (1951) Al
10 Chairman Dotson and then Member Hunter questioned this pnnci
pie in Clear Pine Mouldings 268 NLRB 1044 (1984) and New Galax
Mirror Corp 273 NLRB 1232 ( 1984) but neither case involved reinstate
ment of unfair labor practice strikers
though a good faith belief that an employee has engaged
in picket line misconduct may be sufficient in the first in
stance, if it is rebutted by evidence showing the employ
ee did not commit the misconduct, or that the miscon
duct was not serious, then the employer must reinstate
the striker with backpay
On unconditional offers of reinstatement, striking em
ployees are entitled to reinstatement In refusing to do so
on grounds of misconduct, the employer acts at its peril,
even if in good faith, if the evidence ultimately shows
that the employee did not commit a serious act of mis
conduct Similarly, as to strikers not reinstated for rea
sons other than misconduct, the Respondent has the
burden of proving the economic necessity for its refusal
Radio Electric Service Co, supra
Finally it is unlawful for an employer to discriminate
against strikers whom it has reinstated with regard to
wages, hours, and other terms and conditions of employ
ment However, unlike the reinstatement issue, proof of
such is dependent on a proscribed motive which can be
rebutted by the employer showing a lack of unlawful
motive, e g business justification NLRB v Great Dane
Trailers, 388 U S 26 (1967)
Here the cases of nonreinstated strikers fall into sever
al categories First is Kenneth Arney who initially went
on strike but later on the day of 1 October offered him
self for work He was told he was suspended It is also
alleged that Douglas Simmons offered himself for rein
statement before the end of the strike and was denied
Following the execution of the strike settlement agree
ment, the Hotel began recalling strikers first having
them attend orientation sessions before returning to
work Several of them were denied reinstatement even
though they attended an orientation session several were
not recalled because they did not attend an orientation
session two strikers were not contacted by the Hotel to
return to work, three were not recalled because of al
leged medical problems two were not recalled because
of alleged violations of sick leave policy, and four were
not recalled because they allegedly could not work the
only available hours for them Finally 32 employees
were not recalled because of alleged picket line or relat
ed misconduct
1 Kenneth Arney
Arney testified that he walked out when the strike
commenced at 6 p in on 1 October About 9 p in that
day, having changed his mind on discussion with his
wife, Arney returned to work and talked to Beth Hof
mann , the Hotel s then personnel director, as well as his
supervisor, Bob Finney
Although there are several versions of what transpired
and precisely what Arney was told, in sum as counsel
for the Respondent notes in his brief, both Mr Finney
and Mrs Hofmann told Mr Arney that he was suspend
ed pending an investigation and that in any event a re
placement had already been hired for his job that
evening "
The alleged justification for having suspended Arney
was the potential for his engaging in sabotage although
HOTEL ROANOKE 199
the Respondent presented no evidence to support any
reason for harboring such a belief
Hofmann was unable to testify who, if anybody, in
fact replaced Arney Arney s job was night cleanup It is
possible he was replaced within 3 hours , but such is
highly unlikely And absent some evidence, I do not
accept the Respondent 's assertion that he was Further,
because I conclude that the strike was caused by the Re
spondent 's unfair labor practices , the defense of perms
nent replacement is not viable
The testimony to the effect that Arney had been "re
placed, ' I conclude , was a cute after the fact character
ization by the Respondent Inasmuch as economic stnk
ers can be permanently replaced , I believe this word was
used in an effort by the Respondent to avoid liability
Other than the assertion , there is no evidence that Arney
had in fact been replaced Further , on the evening of the
strike , the type of work he normally did was being per-
formed by an employment contractor There is no evi
dence his services would have been redundant
Finally , testimony from the Respondent 's witnesses
proves that Arney was discharged for striking Herman
Turk, the operations manager at the time of the strike,
testified that Arney was not allowed to return to work
because "he walked out on strike He further testified
that Arney had been suspended because , I was under
the impression he walked out on strike and he had made
his decision
It is clear from the testimony of Turk and Hofmann
that Arney was discharged , or at least denied the oppor
tunity to return to work on his unconditional offer, be
cause, and only because , he was a striker Such is clearly
unlawful
I therefore conclude that the Respondent violated Sec
tion 8 (a)(1) and (3) of the Act by refusing to reinstate
Kenneth Arney on 1 October 1983 He is entitled to rein
statement and backpay from that time until he is given
an unconditional offer of reinstatement Abilities & Good-
will 241 NLRB 27 (1979)
2 Douglas Simmons
It is alleged that in January 1984 Douglas Simmons
made an unconditional offer to return to work which
was denied by the Respondent in violation of Section
8(a)(3) of the Act
The evidence concerning this incident comes primarily
from the testimony of Simmons and Dunn Although
there are conflicts in their testimony concerning his con
versation with her when he called offering to return to
work , such are not particularly material
Basically , Simmons testified that following conversa
tions with his wife and in order to appease her, he
agreed to attempt to return to work Thus he initiated a
call to Dunn Simmons testified that when he called
Dunn he had no intention of accepting if offered his job
As he testified, I done that [called Dunn] because my
wife was pressuring me And when asked what he
would have done if he had been offered a job at that
time, Simmons testified I wouldn 't have went to
work "
It is therefore clear from the testimony of Simmons
that he did not in fact make a bona fide unconditional
offer to return to work I therefore conclude that the Re
spondent did not violate Section 8 (a)(3) of the Act by re
fusing to reinstate him in January 1984, and will recom
mend that so much of paragraph 20 of the complaint as
it relates to Douglas Simmons be dismissed
3 The other nonmisconduct cases
The Respondent does not deny its duty to reinstate the
strikers on their unconditional offer without discrimmat
ing against them It contends this duty was fulfilled to
the extent required by the Act The Respondent defends
its failure to reinstate the individuals named in the com-
plaint on one or more of several grounds the nonrein
stated strikers did not make an unconditional offer to
return to work, the Respondent had a legitimate and sub
stantial business justification for not recalling all the
strikers inasmuch as the Hotel's worsening financial con
dition meant that fewer jobs were available , many of the
strikers were not reinstated because they engaged in
strike misconduct , Union Agent B J Smiley submitted a
list of former strikers who did not want to return to
work for various reasons , and Roy Campbell was not re
instated because he was not a striker Finally , counsel for
the Respondent argued If an anti union motive be
found or inferred in any of the Hotel s actions, all of
which is denied , the Hotel relies upon the doctrine an
nounced in Wright Line 251 NLRB 1083 (1980), enfd
662 F 2d 899 ( 1st Cir 1981 ) cert denied 455 U S 989
(1982), as justifying any action it took affecting the al
leged discnminatees '
In addition to the above defenses as set forth in its
brief, the Respondent's testimony and other argument
suggests that certain of the strikers were not reinstated
because they did not attend the required orientation ses
sions, did not return when called for work , or had some
sort of physical impairment that prohibited their return
ing to work
Although the facts relating to the 50 employees listed
in Appendix A of the complaint , as amended, vary some
what there are certain general principles applicable to
them all
Establishing that an individual was a striker who made
an unconditional offer to return to work and was denied,
proves a prima facie violation of the Act See generally
Great Dane Trailers, supra , and for strike misconduct,
Rubin Bros. Footwear, supra The fact of nonreinstate
ment of individuals who engaged in the protected activi
ty of striking implies a discriminatory motive And in
matters apart from picket line misconduct, as with picket
line misconduct , the employers good faith belief, or an
administrative mistake is not sufficient to exonerate it
The Respondent makes the general assertion that none
of the striking employees and particularly those not rein
stated , made an unconditional offer to return to work
The Respondent cites no evidence in support of this con
tention On the contrary , the record is quite clear that all
the strikers, through the Union , offered to return to
work, and the Union was treated by the Respondent as
the agent for this purpose Indeed, Dunn testified that in
preparing for the orientation sessions following the cessa
tion of the strike , she contacted union officials with the
200 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
names of strikers to be recalled and the date of the on
entation session which they were to attend
Further, it is quite clear that in negotiating the collec
tive bargaining agreement along with the end of the
strike , representatives of the Union made the requisite re
quest on behalf of its members to return to work Such
clearly follows from the negotiation sessions leading to
execution of the strike settlement agreement , and is, at a
minimum , implicit in the strike settlement agreement in
which it is stated, 1 All striking employees shall be re
called to work in the classification which they held prior
to striking '
A bargaining agent has the authority on behalf of its
members to make requests and receive from the employ
er offers of reinstatement See, e g , Bagel Bakers Council
of Greater New York City, 226 NLRB 622 (1976), Airport
Parking Management, 264 NLRB 5 (1982) I therefore
conclude that the Respondent's defense that none of the
employees listed in the complaint made unconditional re
quests for reinstatement is unmentonous
As to the general business justification the Respondent
brought forth no evidence tending to indicate that its
business was less viable at the end of the strike than at
the beginning There is no evidence to support the con
clusion that the Respondent had fewer jobs available in
April 1984 than it had in October 1983 To the contrary,
the end of the strike brought execution of a new collec
tive bargaining agreement in which the Union made sub
stantial concessions which the Respondent argued
during negotiations (and in this proceeding) were needed
to continue in business profitably I therefore reject, as
not being supported by sufficient objective evidence, the
Respondents assertion that it was economically justified
in not rehiring any of those strikers named in the coin
plaint
The Respondents other general defenses are arguably
supported by evidence relating to the individual situa
tion The circumstances surrounding the denial of rein
statement to those individuals named in Appendix A of
the complaint will be treated individually
James V Anderson Dunn testified that Anderson was
not recalled because he was only available for work on
Saturdays and Sundays He had a full time job with an
other company and he refused to work 14 May 1984 "
The record evidence however establishes that at the
time of the strike Anderson was a part time employee
working only on weekends, therefore, he was entitled to
be reinstated to his former position There is no evidence
that Anderson was contacted and declined employment
There is simply the statement by Dunn that he was un
available for full time work I do not take her testimony
as meaning that she contacted him and he declined to
return to work on 14 May 1984 Had this been the fact,
presumably she would have so testified
In any event, since 14 May was a Monday even if
Dunn s testimony is accepted at face value hers was not
a reasonable offer of reinstatement Anderson was a part
time weekend employee prior to the strike, and was enti
tled to be reinstated to his normal hours and days What
ever contact Dunn made with Anderson, from her testi
mony such was not sufficient to satisfy the Respondent's
duty to offer Anderson full and complete reinstatement
to his former job I therefore conclude that by failing to
reinstate Anderson, the Respondent violated the Act
Backpay will be calculated from May 12, the nearest Sat
urday to the date the Respondent asserts it would have
reinstated Anderson
Shirley Ann Barnes had been a part time cashier prior
to the strike and, as was known to the Respondent had a
full time job at a local bank Following the end of the
strike, Dunn called Barnes concerning her availability
Barnes said that she would like to come back Dunn then
specified the hours Barnes would need to be available
would be from 4 00 to close on some days and from
6 00 to close on some days Barnes stated that she
would check with her bank supervisor to see if she could
arrange availability during these hours, and subsequently
called Dunn back stating that she would be able to work
an early shift at the bank and would be available to work
at the Hotel at 4 or 6 p in According to Barnes testimo
ny, undenied by Dunn, Dunn told me that she would
get back with me in a couple of weeks and let me know
when I was to come in for orientation Barnes has
heard nothing further from the Hotel since that date
Dunn simply testified that Barnes name was on a list
submitted by the Union of individuals who were not in
terested in reinstatement But Barnes testimony belies
whatever lack of interest the Respondent thought she
had
The Respondent gave no explanation about why
Barnes has not been recalled , and its failure to do so is
clearly violative of Section 8(a)(3) Barnes is entitled to
an offer of reinstatement and backpay
Joyce Brown was a maid who went on strike and who
walked the picket line until February 1984, when preg
nancy prevented her from doing so The baby was born
on 10 July 1984 and following her 6 week (about 24
August) checkup Brown contacted the Union (B J
Smiley) and was advised to contact the Hotel Brown
called the personnel department explaining that she was
ready to come back to work She was told she no longer
had a job because the Hotel did not have a formal medi
cal leave of absence for her
Brown acknowledged that she did not request preg
nancy leave She learned she was pregnant only after the
strike began
The Respondent apparently contends that it was not
required to reinstate Brown because during the strike she
had not requested a medical leave of absence
Although it is true that Brown did not in fact request
a leave of absence to allow this formalistic omission on
the part of one engaged in a strike to relieve the Re
spondent of its obligation to reinstate all the strikers is
unwarranted The Respondent had the duty, under the
Act and the strike settlement agreement to offer Brown
reinstatement Perhaps by August 1984 the Hotel was
fully staffed and there were no jobs available However,
such is not the import of the Respondents defense
There is no indication in the record that work was not
available for Brown in or after August 1984 Nor does
the Respondent maintain that it was somehow prejudiced
by Brown s failing to apply for a medical leave while she
was on strike or after the strike was settled
HOTEL ROANOKE 201
Dunn testified that when she called Brown, Brown
stated that she had been pregnant and requested not to
be recalled until after August Dunn testified , I alerted
her to the fact that I would not be there after July and
for her to call Sharon Smith and let her know when she
was able to return to work "
Dunn did not testify that she told Brown she would
have to file a request for a pregnancy leave of absence,
or otherwise indicate she would not be allowed to return
to work with the other strikers
I believe under the circumstances of this case, the
Hotel had an obligation to recall Brown on her request
in August , if there were jobs available (and there is no
evidence in this record that jobs were unavailable for
Brown) The claimed defense that Brown had failed to
file a formal request for a leave of absence is spurious
Not only is the Respondents defense formalistic in the
extreme , given that Brown was on strike and therefore
not working , but when contacted by Dunn in the spring
of 1984, Dunn did not indicate that the Hotel required
her to make such a formal application I therefore con
elude that this contention is an after the fact attempt to
justify the Hotel s failure to recall a striker who should
have been recalled I conclude that whatever minor
omission in form Brown may have made in not applying
for a pregnancy leave of absence while she was on
strike , such is insignificant and does not justify the Re
spondent 's failure to recall her I conclude that the Re
spondent 's defense in this respect is unmentonous and
that it violated the Act in failing to recall Brown in
August 1984 She is entitled to an offer of reinstatement
and backpay from 24 August 1984
Dunn testified that Robert Brown was notified to
report for orientation on 23 May He did not show up
and he did not call explaining his absence This is of
fered by the Respondent to justify its failure to reinstate
Brown
Brown , on the other hand , testified that he never re
ceived any notification to attend an orientation meeting
and that when he finally learned he was to be recalled,
he made three calls to the Hotel personnel office He fi
nally reached Dunn and explained to her why he had
failed to attend the orientation session of 23 May Dunn
simply told him that his employment had been terminat
ed
There is no indication in the record that in fact Brown
was personally contacted To the contrary , the evidence
supports a conclusion that in fact notification to Brown
was attempted via word of mouth contact between
Dunn , or someone in the personnel department and the
Union to Brown s former girl friend In any event there
is no evidence to justify discrediting Brown 's testimony
that in fact he did not receive actual notice , in any way,
of the orientation meeting Further , I credit Brown's
denial that he knew of the orientation session I further
credit that Brown took immediate steps to get his job
back on learning that he had been called
Even if the Respondent was entitled to require attend
ance at an orientation session of all returning sinkers
(which it was not infra), it is clear from the evidence in
this matter that Brown 's failure to attend was excusable
and through no fault of his own Therefore the Company
was unjustified in refusing to reinstate him He is entitled
to an offer of reinstatement and backpay from 23 May
1984
The Respondent relies on the following testimony of
Peter Kipp in arguing that it was justified in not recall
ing Roy Campbell
A Mr Campbell had not been well and we, as I
recall , we did not feel because of his illness that he
would have made an acceptable employee
Q What was the nature of his illness?
A He had , I believe , cirhossis [sic] of the liver
Q Do you know what caused this?
A Alcoholism
Q Was he an alcoholic?
A To the best of my knowledge he was
In short , the Respondent argues that as a result of his
alcoholism Campbell `was not a striker , notwithstand
ing that the Union paid him strike benefits The Re
spondent also relies on the testimony of James Wade to
the effect that prior to the strike , the Hotel had sufficient
basis for discharging Campbell had it wished to do so
Of course the Respondent could have discharged
Campbell for his perceived alcoholism Indeed , the law is
well settled that an employer does not run afoul of the
Act in discharging an employee for any reason it chooses
other than those specifically proscribed But the fact that
the Respondent had justification for discharging Camp
bell prior to the strike does not exonerate it for unlawful
ly failing to recall him after the strike In effect the Hotel
argues that it was entitled to exercise its prestrike option
to discharge Campbell after the strike was over
To accept this argument would effectively negate em
ployees' Section 7 and Section 13 right to strike If an
employer does not exercise its right to discharge a par
ticular employee , for whatever reason , prior to his and
other employees engaging in protected activity, the em
ployer may not use that justification following the end of
the strike to refuse to reinstate him
When a strike ends , an employer has the statutory ob
ligation to reinstate the status quo notwithstanding that
it might want to be rid of one or more of the strikers for
reasons unrelated to their protected activity
Because the Respondent had not exercised its right to
discharge Campbell prior to the strike of 1 October, and
because the record evidence is clear that even though
debilitated Campbell associated himself with fellow em
ployees in the strike (and was given strike benefits) I
conclude that the Respondent was obligated to reinstate
him on the same basis that it reinstated other employees
Only after reestablishing the prestrike status quo was the
Respondent at liberty to reevaluate Campbells situation
and terminate him then if the facts so indicated
I shall therefore recommend that the Respondent be
ordered to offer reinstatement to Roy Campbell, and
make him whole for any loss of wages he may have suf
fered from the time he would reasonably have been re
called
Esther Emerson was a full time clerk in the gift shop
and participated in the strike She was called to attend
the 23 May orientation meeting and in fact did so Nev
202 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ertheless the Respondent did not recall her for work
The Respondent brought forth no evidence to explain
why Emerson was not recalled nor does the Respondent
make any argument concerning this situation other than
its general assertions
Inasmuch as Respondent was obligated to recall Emer
son to her former job and failed to do so, the Respond
ent prima facie violated the Act Because the Respondent
brought forth no evidence to justify its action I must
conclude that it violated the Act in not recalling Emer
son following the 23 May session She is entitled to an
offer of reinstatement and backpay from the date
Edward Ernouf was a full time (40 hours per week)
employee for the Respondent prior to the strike He
worked two (or if necessary three) shifts as the night
auditor and the other two or three nights a week as a
cashier Prior to the strike Ernouf also was a full time
employee of the Patrick Henry Hotel in Roanoke but
because he did the scheduling at the Patrick Henry there
was never any conflict between these jobs
Ernouf credibly, and undeniably, testified that he was
contacted by Smiley to call Dunn concerning being rein
stated following the end of the strike He reached Dunn
who told him that he was to report for an orientation
session the next morning the Thursday following the
end of the strike and was to report to work the follow
ing Monday, 23 April at 3 p m He told her that given
the short notice he would be unable to arrange his
schedule at the Patrick Henry in order to return to work
on Monday Dunn said that he would then be put at the
bottom of the recall list and that she would recall him
after the others He talked to her again about this matter
at the orientation session and told her that he would
know definitely by Friday if he would be able to work
the following Monday On Friday he called her again
stating that he had been unable to resolve the conflict
and as she had earlier suggested perhaps he should be
put at the bottom of the recall list
Dunn told Ernouf at that time, if you can't come on
Monday I will have to lay you off He told her that
she said earlier he would be placed at the bottom of the
recall list She stated that she could not do that
Ernouf has not since been recalled to work nor has he
heard from the Hotel concerning his job
The Respondent seems to maintain that inasmuch as
Ernouf did not accept the schedule for which he was se
lected by the Company at the time the Company indicat
ed he could return to work, he forfeited his recall rights
I conclude that Ernouf was entitled to reasonable notice
of his reinstatement, particularly given the fact that the
Hotel knew he worked another full time job That he
was unable to accept work on the precise day it was of
fered, given such short notice could not bar him from
further consideration for reinstatement
Individuals who engage in the statutorily protected ac
tivity of striking are entitled at the end of the strike to
return to the status quo in a reasonable fashion Reinstat
trig strikers is not an exercise in requiring them to submit
to arbitrary standards set by the employer nor should
the burden put on them be unreasonable In this case it
was known to the Hotel that Ernouf had another full
time job with a competing hotel, because, since he was
in charge of scheduling at the other place he could, with
reasonable notice, arrange his schedule to comply with
the Respondents needs Thus, the Respondent was re
quired to give Ernouf reasonable notice so that he could,
in fact return to work as he had in the past Anything
less than reasonable notice to him was not a real offer of
full and complete reinstatement
I therefore conclude that by considering Ernouf laid
off' because he did not accept the precise schedule he
was offered, under these circumstances, was a denial of
reinstatement to him and a violation of the Act I shall
recommend that he be offered full and complete rein
statement and backpay Because the Hotel recalled him
for 23 April, but because he was unable to commence
work that day I conclude that a reasonable date to set
backpay would be the following week-30 April
It should be noted that Ernouf did not lose his status
as a striker entitled to reinstatement as a result of his
work at the Patrick Henry Hotel inasmuch as such pre
dated the strike The Patrick Henry job cannot be con
sidered full time employment elsewhere within the mean
ing of the Act because it was not a substitute for the job
from which he was striking
Julie Hampton had worked in the cafeteria for the Re
spondent since 1978 During the entire course of her em
ployment and before, she was under the care of a psy
chiatrist and during the time of her employment was on
Melindone, which is, apparently a mood altering pre
scription drug
Dunn testified that Hampton was not recalled because,
Ms Hampton is not mentally capable or stable She is a
client of the mental health services and relies on strong
medication to stabilize her moods' Dunn testified that
she talked to a social worker whom she could not iden
tify, who told her the medication was a mind altering
drug and also a mood altering drug and if she did not
maintain the medication level instructed and those levels
change periodically that she would be a hazard to herself
working with the type of equipment she had to work
with Dunn further testified that she checked with a
local doctor concerning Melindone and made the deter
mination Hampton should not be recalled, and she was
not
Not hearing from the Company during the recall of
other employees Hampton contacted the personnel de
partment and was advised that she was not on the recall
list It was suggested that she go to the Union She did
and was told by James Wade to secure a doctor s state
ment concerning the medication she was taking She did
so The statement dated 21 May 1984 signed by Dr
Evelyn Wade, reads
The above patient is followed by Mental Health
Services Extended Ca'e She is on only one medica
tion, Melindone She takes this as directed, is on a
stable level We see her only every three months
She is able to work
Inasmuch as Hampton s condition was known to the
Hotel at the time she was hired and at least 5 years prior
to the strike, and inasmuch as the doctor s statement does
not indicate any reason why she could not be returned to
HOTEL ROANOKE
her job (notwithstanding her condition and medication),
I conclude that the Respondents refusal to reinstate
Hampton was unjustified Thus the Respondents refusal
to restore Hampton to the status quo was violative of the
Act
Though Dunn may have had a good faith belief that
Hampton is on sufficiently strong medication to render
her unemployable, such was rebutted by the only compe
tent objective evidence concerning Hampton's medical
status-the report from her treating physician Thus,
even if Dunn's belief was sufficient to meet the Respond
ent's burden in failing to reinstate a striker , such was re
butted
I therefore conclude that the Respondent's refusal to
reinstate Hampton was violative of the Act, and I shall
recommend an appropriate reinstatement and backpay
remedy
Martha Henry worked for the Respondent approxi
mately 30 years as head cashier in the kitchen depart
ment Dunn testified that during the recall period, Henry
came to an orientation session and was scheduled to
return to work on the night shift but told Dunn that she
would be unable to do so because the only transportation
available to her was public and it was available only
during day shift hours Dunn told Henry that she would
call her for the next available opening on the day shift
Dunn testified, credibly I believe, that within a few
days she in fact called Henry and talked to her Dunn
testified that she had difficulty communicating with
Henry at the time and that Henry seemed unable to un
derstand the import of what Dunn was saying Dunn fur
ther testified that she discussed this matter with B J
Smiley-telling Smiley that she had had a conversation
with Henry but Henry was apparently intoxicated and
unable to understand
While Smiley testified to a conversation she had with
Dunn concerning Henry, she denied the substance of
Dunn's testimony Smiley testified generally that in her
conversation with Dunn, she told Dunn that if the Hotel
would take Henry back only on the night shift that she
would be willing to give Henry a ride
The conflict between the testimony of Dunn and
Smiley in this regard is resolved in favor of Dunn,
though both versions are sufficiently lacking in detail and
reasonableness to be questionable Thus it really does
not seem probable that a 30 year employee whose total
life revolved around her job would not take further steps
to ensure reemployment after being called by Dunn But
there is no indication in this record that following her at
tendance at the orientation meeting Henry followed up
in an attempt to secure reinstatement On the other hand,
it is not reasonable that the Union would not support
such a senior and apparently capable employee seeking
to return to her precise prestrike job But such is the
import of Smiley's testimony
I conclude that in fact Dunn contacted Henry and for
whatever reasons Henry did not respond Thus, the Re
spondent did make reasonable efforts to reinstate Henry
and satisfied its obligations under the Act and the strike
settlement agreement
In addition to what I consider to be Dunn s positive
demeanor when testifying, I note that for some time she
203
has not worked for the Respondent and no longer lives
in the Roanoke area Other than the fact that she was an
employer representative at the time of the facts in this
matter , there is no particular reason to conclude that
Dunn would in any way slant or alter her testimony in
favor of one party or the other In general I found Dunn
to be a credible witness
Charles W McQueen was a part time waiter who in
jured his knee before commencement of the strike, and
as a result was unable to work until March 1984 He was
not recalled to work because, according to the testimony
of Dunn, he had been off work and had not applied for
or received a leave of absence Therefore he was consid
ered by Respondent to have been terminated prior to the
advent of the strike
The General Counsel and the Charging Party general
ly contend that McQueen had told his two immediate su
pervisors he had been injured and was unable to work
Therefore, whatever requirement there may have been
for him to request a leave of absence should be waived,
and inasmuch as McQueen associated himself with the
strike he was entitled to reinstatement
The 1983 contract specifically provides that consider
ation will be given for any reasonable request for a leave
of absence but, (A) written request for a leave of ab
sence is to be submitted to Management, with a copy to
the Union The contract is explicit In order to be enti
tled to a leave of absence an employee must make a writ
ten request therefor Unquestionably, McQueen made no
such written request nor can I conclude from his tests
mony that by telling his supervisors of his injury he satin
feed the contractual requirement On this record it ap
pears that McQueen would have been considered terms
nated by the Respondent and would not have been rein
stated on his application in March had there been no
strike There is simply nothing persuasive in the record
to negate Dunn s credible testimony that McQueen was
considered terminated prior to the strike and was not a
striker entitled to consideration for reinstatement
Because the record establishes that in fact McQueen
was injured and was off work for some period prior to
the strike and did not apply for or receive a leave of ab
sence, I conclude that he was not an employee at the
time of the strike Therefore he was not entitled to rein
statement
Although the record is sketchy it appears that Brenda
A Mason injured her back in 1981 for which she was
treated by Dr Robert S Widmeyer (an orthopedic sur
geon) or Dr Darwin J Ferry Jr (a neurologist), or
both In evidence is a note from Dr Widmeyer dated 14
May 1984, that as a result of being treated for lumbar
disc disease, ' the condition requires occasional use of
Darvocet N-100 Dr Darwin J Ferry submitted a
report, dated 17 May 1984, stating that Mason was diag
nosed as having "low back pain and patient requests
verification that she was released to return to work on
12/7/81
Mason was called to attend an orientation session
during which there was discussion about blood tests and
urinalysis Mason spoke up stating that a lot of people
204 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
take nerve medication and that she took occasional medi
cation for her back pain
This statement apparently caused Dunn to reconsider
reinstating Mason Dunn testified that in consultation
with Kipp and Gardner it was decided not to reinstate
Mason Because she was taking pain medication, such
posed a safety hazard relating to Mason s job as a steam
press operator in the laundry
The only evidence concerning the type of medication
Mason takes are the reports from her treating physicians
concerning the requirement for occasional use of Darvo
cet N-100 and her testimony that she takes it only when
her back pain is severe
Apparently Mason was injured in a job related acci
dent At least , when she hurt her back in 1981 the Hotel
was aware of it and was aware that she was off work as
a result of this condition, for which she was released to
return to work She returned to work nearly 2 years
prior to the strike
Given that Mason was known to have had a back
injury but had come back to work, and the absence of
evidence that either her back condition or the occasional
requirement for pain medication in fact posed any kind
of a safety problem, I conclude that the Respondent did
not establish sufficient justification for refusing to recall
Mason following the termination of the strike Further
the Respondent offered no evidence that Mason could
not have worked elsewhere if in fact Dunn and others
truly believed she should not operate a steam press
Accordingly I conclude that the Respondents failure
to recall Mason was violative of the Act and that she is
entitled to reinstatement and backpay
Concerning the inquiry by Frederic Munnerlyn of 30
August 1984 as to why he had not been recalled, Sharon
Smith, the then personnel manager , wrote on 31 August
1984
In reviewing your file I found that you were
scheduled for a mandatory orientation on May 15
1984 You neither attended the orientation nor
called to explain your absence As this meeting was
mandatory, your position was filled by another
person and is no longer available
The substance of the letter was apparently taken from
Munnerlyn s personnel file and substantially corroborates
the testimony of Dunn that Munnerlyn had not attended
the orientation session for which he was scheduled
Munnerlyn testified that although he was sick on the
day of the orientation session , he nevertheless did show
up albeit a few minutes late He testified that Dunn re
fused to let him into the meeting This testimony was
corroborated by two employees who attended the 15
May orientation meeting and one who attended an on
entation session on 23 May stating that Munnerlyn ap
peared at that meeting Munnerlyn s testimony was also
corroborated by James Wade
Munnerlyn testified that following the meeting from
which he had been banned, he did talk to Dunn in her
office, words were exchanged and he left He has not
been contacted by the Hotel subsequently Dunn was not
asked about meeting with Munnerlyn and neither con
firmed nor denied Munnerlyn s testimony in this regard
She did testify, however, that those who showed up late
for orientation sessions were not allowed to attend, if she
had already begun her presentation
Thus, there is no real direct conflict between Munner
lyn s testimony and Dunn s From the composite of the
record, it appears that in fact Munnerlyn was scheduled
for an orientation session, that he did show up but was
late and was not allowed to attend And thereafter he
was not further contacted by the Company until the 31
August response to his inquiry
Without getting into whether Dunn was justified in ex
ciuding Munnerlyn from the orientation meeting when
he arrived late, or how late Munnerlyn was, I conclude
that the Respondent was not justified in requiring attend
ance at an unpaid orientation session as a necessary pre
requisite to reinstatement
The starting point of any analysis regarding the rein
statement of strikers is that on application they have the
right to their jobs, and for the company to put up road
blocks and set conditions to deny reinstatement is, prima
facie discriminatory NLRB v Fleetwood Trailer Co 389
U S 375 (1967) However, conditions for reinstatement
can be justified and if the company is able to prove their
necessity they are permissible In any event, for any
conditions imposed on the reinstatement of strikers, the
company has the burden of establishing legitimate and
substantial business justifications for the conduct
NLRB v Great Dane Trailers, supra at 34
Where a company imposed the mandatory require
ment of an individual interview with management as a
condition precedent to reinstatement without proving a
legitimate and substantial business justification denial
of reinstatement for failure to meet the interview was
violative of the Act Scalera Bus Service 210 NLRB 63
64 (1974)
Thus, with the few exceptions noted above and to be
discussed below regarding strikers engaged in picket line
misconduct on the termination of a strike, the Respond
ent has an absolute obligation to reinstate unfair labor
practice strikers to their former jobs discharging, if nec
essary any replacements
Certainly an employer may require attendance at an
orientation session and may give employees instructions
concerning their jobs as well as company procedure and
policy However to require attendance at an unpaid on
entation session outside working hours as a precondition
for reinstatement is not patently justifiable, and the Re
spondent brought forth no evidence to establish the ne
cessity for such a requirement in this situation The Re
spondent could just as easily have reinstated the strikers
to their former jobs and then had orientation meetings
for them if that appeared necessary At least there is
nothing on this record to indicate the necessity for re
quiring attendance at unpaid orientation meetings prior
to reinstatement
In the case of Munnerlyn, as indicated the composite
of the testimony is that he did not show up on time for
the orientation session and was sufficiently late that
Dunn did not allow him to attend However he was in
fact there on the day designated Even if attendance at
an orientation generally could be found an acceptable re
HOTEL ROANOKE
quirement , the Respondents denial of reinstatement to
Munnerlyn was not justified under any kind of a rule of
reason
Accordingly , I conclude that by denying Munnerlyn
reinstatement because of his failure to attend an orienta
tion session , the Respondent breached its obligations to
reinstate him and therefore violated the Act Munnerlyn
is entitled to reinstatement and backpay from 15 May
1984 the date he would have been reinstated but for the
Respondents unfair labor practice
Alfreda Sayles testified that she was contacted by B J
Smiley on the evening before 23 May and told to report
at 8 the next morning for an orientation session Inas
much as Sayles had obtained a part time job during the
strike and would not be able to make the orientation ses
Sion at that time , she called the Hotel the morning of 23
May She testified that she tried to reach Dunn but was
unable to do so, and talked to somebody who identified
herself as "Sharon "
Dunn testified that her notes reflect she personally
contacted Sayles and gave her 3 days notice of the 23
May orientation session
Smiley was not interrogated concerning this matter
and therefore neither confirmed nor denied Sayles testa
mony that she had been contacted by Smiley rather than
Dunn
Although there appears to be a credibility conflict be
tween Dunn and Sayles concerning how and by whom
Sayles was contacted with regard to attending the onen
tation session , a conflict I resolve in favor of Dunn, I do
not believe such is material As I conclude that the Com
pany failed to justify its requirement that employees
attend a nonpaid orientation session prior to being rein
stated , the fact that Sayles did not show up on 23 May is
insufficient to deny her reinstatement
As noted however , I do credit Dunn that Sayles was
contacted by her directly Although Dunn testified after
reviewing Sayles personnel file rather than from an in
dependent recollection of the events, I nevertheless
credit her There is no apparent reason why Dunn would
fabricate her testimony regarding Sayles at the time of
the hearing or make incorrect entries on her contempora
neous notes Sayles version on the other hand , was not
corroborated by Smiley
I find that Sayles in fact was notified of the orientation
session for 23 May and did not physically report to the
Hotel at any time She simply tried to make contact by
telephone which she must have known was generally
unacceptable And when she talked to Sharon' she re
ceived no satisfaction Thus, the equities in this matter
tend to mitigate against Sayles Though the Respondent
did not justify its requirement that all employees attend
an orientation session prior to being reinstated , to set a
report day with some reasonable flexibility , is permissi
ble Coca Cola Co of Memphis 269 NLRB 1101 (1964)
Sayles did not avail herself of the opportunity to return
to work, and is therefore not entitled to reinstatement
and backpay
Darlene Smith was not reinstated because according to
Dunn , "she was not available for work She was in
school also She was young and in school ' Dunn of
205
fered no basis for this contention and there is none in
the record
The Respondent argued on brief that Darlene Smith s
name appeared on a list submitted by B J Smiley of in
dividuals who would not be coming back because they
had other jobs, had retired, or were out of town In fact
however, Smith s name does not appear on this list as as
serted by counsel
Whatever may have been Dunn s good faith belief
concerning Smith s status the undisputed facts are that
Smith was an employee prior to the strike, joined in the
strike , and was not offered reinstatement by the Compa
ny following execution of the contract and the strike set
tlement agreement Inasmuch as I have concluded that
the Union made application for reinstatement on behalf
of all striking employees , and since there is no justifica
tion on this record why Smith should not have been re
instated , I conclude that the Company violated the Act
by failing to reinstate her
It may well be that in the confusion of putting back to
work a large number of employees on a staggered basis,
Dunn made a mistake with regard to Smith Such, how
ever, would not excuse Respondent A mistake such as
this , if there was one, is chargeable to Respondent Ac
cordingly , I will recommend an appropriate reinstate
ment and backpay remedy with regard to Darlene Smith
Cherlyne Taylor was called and attended an orientation
meeting She was not thereafter reinstated and Dunn was
unable to give a reason why
Because the record establishes that Taylor was a strik
er on whose behalf the Union requested reinstatement
and was not reinstated prima facie the Respondent vio
lated the Act in failing to do so No evidence was pre
sened to justify its action Accordingly I conclude that
by failing to reinstate Cherlyne Taylor the Respondent
violated the Act and should be required to offer her rein
statement and backpay
According to Sharon Smith s letter to Sarah Taylor
dated 19 September 1984 our files indicate you were
terminated from employment of Hotel Roanoke due to
failure to report for Mandatory Orientation scheduled on
5/23/84 You neither called nor reported explaining your
absence The substance of this letter corroborates
Dunn s testimony concerning what the personnel record
of Taylor shows
On the other hand, Taylor testified, credibly I believe
that in fact she was called by Dunn to attend the onenta
tion session on 23 May and did so Dunn testified that
she did not know many of the returning strikers and spe
cifically did not know Taylor, and her testimony is based
only on notes made at the time Without impugning a
sinister motive to Dunn, from these facts she certainly
could have been mistaken with regard to whether Taylor
in fact attended the orientation session
In any event , as I have concluded that the requirement
of attending mandatory orientation as a precondition for
reinstatement was unlawful , I conclude that the Re
spondent s terminating Taylor for this reason was unlaw
ful I conclude that Taylor is entitled to reinstatement
and backpay
206 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Dunn testified that Michael Wells had been convicted
of a felony in December 1983 while on strike, and he
had had a criminal record dating from 1980 Dunn testi
fled the contract provided that employees must be free
from any felony convictions Though he was called
back for orientation, when it was brought to her atten
tion that he had been convicted of a felony in December
1983, he was dismissed for that reason
Although it appears that Wells in fact has a criminal
record of one or two misdemeanor convictions, there is
no evidence that in fact he was ever convicted of a
felony The Respondent brought forth no evidence of
such other than Dunn s assertion Specifically, the Re
spondent did not seek to introduce any kind of court
record nor did the Respondent offer the testimony of
anyone who professed to know first hand or from in
spection of court records, whether in fact Wells had
been convicted of a felony Dunn testified that she
learned of Wells alleged conviction as a result of the on
going security investigation occurring simultaneously
with the orientation sessions The Respondent, however
did not call as a witness whoever it was who was sup
posed to have conducted the investigation of Wells
On the other hand, Wells testified that he has never
been charged with nor convicted of a felony There is
simply no reason in this record to discredit Wells or to
conclude that he was convicted of a felony during the
course of the strike
There is some indication, particularly in the testimony
of Kipp, that the reason advanced by Dunn was not the
sole basis for the Company's refusal to reinstate Wells
He had been accused of stealing a ham from the Compa
ny (an allegation which went to arbitration and Wells
was exonerated) And there is testimony concerning an
Equal Employment Opportunity Commission (EEOC)
charge filed by Wells against the Hotel and some discus
sion with Dunn concerning it But these matters are
largely immaterial because the reason asserted by the Re
spondent for denying Wells reinstatement was solely the
allegation that he was convicted of a felony in December
1983
Inasmuch as the Respondent failed to establish the fac
tual basis for denying Wells reinstatement, I conclude
that it was not justified in acting as it did I therefore
conclude that the Respondents asserted reason for not
reinstating Wells lacks sufficient basis to exonerate it
from its duty to reinstate him By failing to do so the Re
spondent committed an unfair labor practice and an ap
propriate remedy will be recommended
It appears from the testimony of Dunn that Barbara
Bowling was denied an opportunity for reinstatement be
cause pnor to the strike, she had been off work for med
ical reasons and had made no application for a medical
leave of absence, nor was there any approval of one
Dunn testified, `She was not recalled because she made
no attempt in the time that I was there to get in touch
with me or to let me know of her medical status and that
she wished to return to work "
Bowling on the other hand testified that she was off
work from 30 November 1982 until 21 March 1983, and
was off again from a second operation, on 17 August
She testified that on or about 20 November (following
the beginning of the strike) she was released by her
doctor to return to work and so notified the Hotel send
ing it a copy of her medical release via her husband
Bowling testified that during this period she had a tele
phone conversation with Dunn at which time Bowling
told Dunn the doctor was releasing her as of 20 Novem
ber Also about this time she talked with Stables, her su
pervisor, who said that she was not scheduled for work
because she still was considered on sick leave
According to Bowling, she told Dunn she was in the
Union and was going on stnke In fact she began walk
mg the picket line on Saturday night, 20 November
Dunn did not deny that she had such a conversation
with Bowling
Bowling was not offered reinstatement following the
end of the strike
It is technically true that Bowling did not apply for or
receive a medical leave of absence However, in light of
her undenied testimony (concerning her medical ab
sences and the fact that she did contact the Company in
November 1983 on her release), I conclude that the Re
spondent was well aware that Bowling had been released
to return to work and at that time associated herself with
the strike
On the record before me, I conclude that the Re
spondent has not proved a reasonable or substantial justi
fication for denying Bowling reinstatement I conclude
that Bowling continued to be an employee and did in
fact become a striker at the time that she could have re
turned to work As such she was entitled, along with the
other strikers, to reinstatement
I conclude that the Respondent violated the Act by
not recalling Bowling and that Bowling is entitled to an
offer of reinstatement and full backpay
Gladys White is a striker who was not reinstated Her
name was added to the complaint after the initial testi
mony of Karen Dunn Dunn was subsequently recalled
during the Respondents case in chief but was not inter
rogated concerning White Therefore White s testimony
is undenied In addition, she was a generally credible
witness
White was a waitress in the banquet department Fol
lowing termination of the strike and during the recall of
employees White was contacted by Dunn to attend an
orientation session There was apparently miscommunica
tion between her and Dunn when White showed up at
the Hotel on a Monday, she was advised that Dunn was
out of town that there was no orientation session that
day, and the one which she was supposed to have at
tended was the previous Thursday White was advised
that she would be recontacted but she was not Thereaf
ter on several occasions, White contacted the personnel
office but has not been recalled
There is simply no evidence in the matter to justify the
Respondents refusal to reinstate White And, there is
ample evidence that White made repeated contacts with
the Hotel seeking reinstatement I therefore conclude
that the Respondents refusal to reinstate White, at least
by the end of the 90 day period following execution of
the strike settlement agreement was violative of the Act
HOTEL ROANOKE
and an appropriate reinstatement and backpay remedy
will be recommended
4 The stnker misconduct cases
In addition to the strikers who were denied reinstate
ment named above, the Respondent also refused to rein
state some individuals whom it alleged had engaged in
such egregious misconduct associated with the strike as
to render them unfit for further employment During the
course of negotiating the strike settlement agreement, the
parties were unable to agree about which, if any, of the
strikers should be denied reinstatement on this basis
They left determination of this issue for the Board Prior
to trial the number of individuals said to have been
denied reinstatement for strike misconduct vaned Liti
gated before me were 31 cases of denied reinstatement
based on egregious strike misconduct
The parties are in general agreement concerning the
test to determine whether an individual was lawfully
denied reinstatement because of strike misconduct As
with other causes for denying reinstatement the starting
point in analyzing these matters is that employees have a
statutory right to strike and may not subsequently be dis
criminated against because they exercise this right In
general, a striker who has offered himself for reinstate
ment must be given his job back (A different set of
rules, not material here, apply to permanently replaced
economic strikers) In recalling employees a company
may adopt certain reasonable rules and procedures re
garding showup, notification, and the like But in gener
al, the employer may not create artificial barriers or oth
erwise discriminate against strikers, and this holds for
employees whose conduct during the strike the employer
finds objectionable The mere fact that an employer does
not like something a striking employee has done in con
nection with the strike is an insufficient basis to justify
denying the striker reinstatement
Indeed, long ago the Supreme Court noted that during
strikes employees sometimes engage in moments of
animal exuberance " Milk Wagon Drivers Union v Mea
dowmoor Dairies 312 US 287 293 (1941) Thus name
calling minor threats, mass picketing, and the like are
generally not deemed sufficient to deny employees their
statutory protection However, when the striker has
stepped over the line and engaged in threats of physical
violence actual physical violence or property damage,
such has a coercive effect on the rights of other employ
ees The individual involved in such conduct may be
deemed unfit for further employment and be denied rein
statement
The Board s most recent definitive pronouncement in
this area is Clear Pine Mouldings supra There the Board
stated that verbal misconduct justifies denying reinstate
ment, if "the misconduct is such that under the circum
stances, it may reasonably tend to coerce or intimidate
employees in the exercise of rights protected under the
Act "
In order to meet this standard, however the employer
must offer proof by objective evidence that the verbal
misconduct for instance meets the test Thus in a recent
matter the Board held that a physical assault by a stnker
was sufficient to deny that striker reinstatement Howev
207
er, the statement by another striker to a driver at the
time of the assault, Don t get on the radio, was insuffi
cient to establish that the second striker had associated
himself with the assault sufficiently to deny his reinstate
ment Buffalo Concrete, 276 NLRB 839 (1985)
To summarize a myriad of cases, totally benign behav
for is not required on the picket line However, where
strikers physically assault others or threaten to do so
when the threat has the immediacy of reality or when
they engage in property damage, then such is sufficient
to justify the employer denying them reinstatement
In Rubin Bros, supra the Board delineated the order
of proof in these matters To establish a prima facie vio
lation of the Act the General Counsel need show only
that the individual in question was a striker who had
been denied reinstatement The burden then shifts to the
employer to establish its good faith belief that the mdi
vidual engaged in egregious strike misconduct The
burden then shifts back to the General Counsel to prove
that the individual in question did not engage in the al
leged activity Thus, the employer may establish through
hearsay evidence, for instance, that an individual has en
gaged in strike misconduct (typically security officer or
police reports) its good faith belief, but such reports may
be countered by direct evidence denying the substance of
the report Where such occurs, then the employer is at
liberty to rebut the denial or argue that the denial is un
trustworthy
Before getting into this matter of who has what
burden and whether the burden has been satisfied by suf
ficient proof, the threshold question is whether the al
leged misconduct is of sufficient magnitude to deny rein
statement If the misconduct is trivial then it does not
matter whether it in fact occurred
Within these parameters of analysis each case must be
separately considered on its own facts
Clifford A Bratton was denied reinstatement because
on 5 October he was observed by Security Officer Willie
E O'Neal throwing an object (or objects) over the fence
and onto the Hotel parking lot 0 Neal testified consist
ent with his report at the time that upon observing Brat
ton and others do this he contacted the police who ar
rived shortly thereafter
Bratton admits that he was picketing on the morning
in question and that the police did interrogate him con
cerning a report they had that he had thrown something
on the parking lot Bratton denied to the police and
denied in testimony before me that he in fact threw any
thing on the parking lot
The Respondent submitted no evidence concerning
what it was that Bratton was supposed to have thrown,
nor was there any circumstantial evidence concerning
objects found in the parking lot after this event allegedly
occurred
From 0 Neal s mere observation without followup in
vestigation it is difficult to conclude that Bratton en
gaged in activity of such an egregious nature as to affect
the Section 7 rights of other employees For instance
simple littering would fit within Bratton s testimony and
incident report but such is scarcely of such significance
208 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as to deny one his protection of the Act-uncivil as it
may be
Further , I tend to credit Bratton s denial that in fact
he threw anything onto the parking lot on the morning
in question Accordingly , I conclude that the Respond
ent has failed to establish a sufficient basis to deny Brat
ton reinstatement The Respondent 's failure to reinstate
Bratton on the conclusion of the strike was therefore
violative of the Act and he is entitled to reinstatement
and backpay
J T Bratton was denied reinstatement for allegedly
having engaged in strike misconduct The Respondent
did not argue on brief what Bratton 's alleged misconduct
was supposed to have entailed , nor point out where in
the record there is proof of such misconduct on his part
The only apparent testimony relating to Bratton oc
curred in examination of 0 Neal when he was asked
whether he pointed out to guards "employee John Brat
ton or Tom Bartow O'Neal answered "I can remem
ber vaguely , but as far as giving you any other informa
tion , I can t remember Presumably, John Bratton and
J T Bratton are the same individual
John Bratton testified that he was a striker who was
denied reinstatement He denied ever having been
stopped by a security guard for any purpose and specifi
cally denied having engaged in the sort of activity the
Respondent accused other strikers of having engaged in
In view of the total lack of evidence brought forth by
the Respondent that John Bratton engaged in any strike
misconduct , and given Bratton 's credible denials that he
did so , I conclude that the Respondent did not establish
sufficient justification for denying him reinstatement Ac
cordingly by failing to reinstate Bratton the Respondent
violated the Act and should be required to reinstate him
with full backpay
The evidence of alleged strike misconduct by Maurice
Buckner are three incident reports dated 5 November, by
three security guards, all of which are identical in sub
stance These reports state that Beulah Gardener, John
Wade Jr, and Maurice Buckner were observed violating
paragraphs 1 3 and 4 of court injunction This alleg
edly occurred between 2 50 and 3 20 a in on 5 Novem
ber
There is no indication in any of these reports nor
from the testimony of any of these or other security
guards or other witnesses called by the Respondent, con
cerning what Buckner and the other two individuals
were alleged to have done
The conclusion that these individuals were observed
violating certain paragraphs of an injunction is simply
not sufficient to establish what specific conduct the indi
viduals were supposed to have engaged in Buckner testi
feed in general terms that she did not engage in any
picket line misconduct Inasmuch as there was no evi
dence concerning precisely what he is claimed to have
done she necessarily could not have denied or affirmed
specific acts
I conclude that the vague reports submitted by the Re
spondent regarding Buckner do not constitute sufficient
credible evidence to support even a good faith belief that
she committed such egregious picket line misconduct as
to deny her protection of the Act Further, even if the
security officer reports could be considered sufficient for
a good faith belief in the first instance , I conclude that
Buckner s denial of having engaged in any picket line
misconduct in general , and the specific acts for which
others were denied reinstatement in specific , suffices to
rebut the Respondents case I credit Buckner
Based on the record before me, I conclude that the
Respondent violated the Act in refusing to reinstate
Maurice Buckner following the end of the strike, and I
shall recommend an appropriate reinstatement and back
pay remedy
The only evidence concerning James Calloway s al
leged picket line misconduct is in two security officer re
ports , one of which names Calloway and the other does
not Both refer to an incident that occurred on 8 Decem
ber at about 4 10 am , in which John Wade Jr and
Calloway were reported to have a dummy set up at
front entrance with a bottle like a real person " Subse
quently Calloway took the dummy to the union hall
Calloway admitted his participation in this event
Although this is apparently the basis on which
Calloway was denied reinstatement , the Respondent did
not suggest how this interfered with other employees'
Section 7 rights Nor did the Respondent note any inci
dence where the Board or courts have found such an act
to be egregious strike misconduct
At worst , setting up a dummy to look like a drunk
person in the early hours of a morning is a trivial prank
and certainly does not rise to the seriousness required to
deny those engaged in such activity their statutory pro
tection The penalty the Respondent imposed was much
too severe for the misconduct
I conclude that the Respondent did not sustain its
burden of proving that the incident for which it refused
to reinstate Calloway was of sufficient seriousness to ,jus
tify the denial of reinstatement Accordingly I will rec
ommend an appropriate reinstatement and backpay
remedy
Buddy Cook was a striker who was denied reinstate
ment presumably because he was involved in an incident
reported to security officer Ralph Miller on 20 March
1984 The substance of Miller s report and his testimony,
relative to Cook is further Earl Smith John Wade,
Buddy Cook Louis Lambert was hurling vulgar words
at our guests as they were coming and going And
further , Mr Osborne said these four fellows said they
would gang rape an unknown lady "
Although Cook was called as a witness and testified
generally to his picket line conduct , denying that he en
gaged in certain activity he was not interrogated con
cerning this particular incident or generally whether he
had used vulgar language on the picket line
Nevertheless, I conclude that the evidence presented
by the Respondent is insufficient to base a finding that
Cook lost the protective mantle of the Act during the
course of the strike The totality of the Respondents evi
dence is that he and three others hurled vulgar words
What these words were is unknown on this record
While there is a general acceptance of what is vulgar
and what is not, such is a subjective matter depending to
some extent on the predisposition of the one who hears
HOTEL ROANOKE
the words In any event, I conclude that vulgar words"
is insufficiently precise to sustain the severe penalty of
discharge Further, given the imprecision of Miller s as
sertion against him, Cook would be in no position to
affirm or deny the incident
The matter of gang raping an unknown individual,
while more definitive, is, as far as this record is con
cerned, also vague and established by hearsay Although
a respondents good faith belief may be substantiated by
hearsay evidence, in this situation I conclude that the al
legation against Cook-that he participated in some kind
of verbal assault on an unknown person-is not suffi
ciently proved to justify denying him reinstatement It is
unknown who the alleged target of the statement was,
nor is there any evidence that Cook was more than
simply a bystander when such occurred, if it did I do
not believe that Miller's report is sufficient to justify the
Respondents refusal to reinstate Cook Accordingly, I
conclude that by failing to do so the Respondent violat
ed the Act I shall recommend an appropriate reinstate
ment and backpay remedy
Reed Cotton s name appears on security officer reports
involving three incidents A rock thrown against the
garage door on 18 October, a fire bomb on the dock on
19 October and apples thrown at security guards on 8
November
Burns Security Officer Jim Crandall reported concern
mg the 18 October incident I was sitting in garage and
heard a rock hit the garage door When I walked outside
they [Wade, Cotton, and Swain] were hiding behind the
picket fence mouthing off Action taken Picked up rock
and notified Hotel security " There is no assertion in this
or the other report concerning this incident, nor in testa
mony that Cotton, or either of the other two pickets
who were observed at or about the time of this alleged
incident in fact threw a rock Nor is there any indication
in either of these reports or in testimony concerning the
size , weight or type of rock allegedly thrown
The lack of any definitive evidence concerning the
precise nature of the alleged incident or Cotton s partici
patron in it coupled with Cotton s denial that he in fact
ever threw a rock on the Hotel property during the
course of the strike lead me to conclude that the Re
spondent has failed to prove the factual basis of this inci
dent In addition given the paucity of evidence concern
mg the rock, I cannot in any event conclude that the
incident was of sufficient seriousness to deny a striker his
protection under the Act
The incident of 19 October is of a more serious nature
Security Officer Willie E 0 Neal reported that he was
looking out the window of the tower when I saw a
flash hit the dock at the backgate I radioed Officer
Helms, that there was a fire on the dock " 0 Neal fur
ther reported, "I saw Reed Cotton and George Jones sit
ting against the wall near the entrance of the backgate
The two men were there the entire time I stepped inside
the tower to recharge my radio I was inside for approxi
mately 2 minutes When I saw the flames hit the dock I
checked the spot where the two men were and they had
departed
Clearly, throwing a fire bomb is an act of serious mis
conduct Nevertheless, the mere fact that a fire bomb is
209
thrown and one or more pickets is in the area in a pose
tion to have done the throwing is not sufficient to prove
who was the perpetrator There is simply no evidence in
the reports concerning this incident nor in testimony,
which would lead to the conclusion that Cotton threw a
fire bomb onto the dock From this lack of evidence
along with Cotton s denial that he did so, I conclude that
the Respondent failed to establish by any reasonable
quantum of evidence that in fact Cotton engaged in the
misconduct attributed to him
Finally there are reports from Security Officers Cran
dall and John M Grill to the effect that in the early
morning of 8 November, Cotton, Swain, and Lanier
were observed throwing apples which landed within 5
feet of the secu-ity officers And a separate report by
Crandall states that at the same time Cotton, Swain, and
Lanier were observed at the location of a fire in leaves at
the Jefferson Street entrance to the Hotel
As with the earlier two incidents, the apple throwing
is not of particularly grave significance whereas the fire,
potentially, would be a serious act of misconduct How
ever, the Respondents evidence concerning the nature
and extent of either of these incidents is far short of that
sufficient to deny a striker his right to reinstatement
Further, while the incident report concerning Cotton
having thrown apples seems to be specific enough with
regard to Cotton s involvement, I do not accept this
report by itself over Cotton s credible denial Crandall
was not called as a witness on behalf of the Respondent
nor did the Respondent explain this failure His report,
therefore , while sufficient to sustain the Respondents mi
teal burden of a good faith belief that Cotton engaged in
the activity alleged, is not sufficient when weighed
against Cotton s credible denial
There is no evidence, even in the incident reports that
Cotton participated in starting the fire, or the nature and
extent of the fire Accordingly, I conclude that the evi
dence of this incident is insufficient to support the con
clusion that Cotton should be denied his right to rein
statement
In summary the specific evidence offered linking
Cotton with acts of strike misconduct is insubstantial
and, at best, amounts to unpersuasive inferences of his
participation e g, Cotton was in the area at a time when
an incident occurred The quality of the Respondent s
proof that Cotton in fact engaged in picket line miscon
duct is minimal , and cannot be considered sufficient to
overcome Cotton s otherwise credible denial that he in
fact engaged in the incidents alleged
The matter of Cotton's misconduct was considered by
the Virginia Employment Commission, which concluded
after hearing, that the Hotel in fact presented evidence of
"five separate incidents of violence on the employer s
property, in which he (Cotton) either participated or was
seen nearby,' inasmuch as the Commission noted that
Cotton did not appear at the hearing, it was concluded
that the acts of misconduct had been established suffi
ciently to disqualify him from benefits This decision of
course is not binding on the Board While based on the
type of evidence before me the examiner did not benefit
from the testimony of Cotton Therefore while the opin
210 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ion of the special examiner is noted, I do not consider it
dispositive of the issues here
Accordingly I conclude that by denying Reed Cotton
reinstatement following the end of the strike, the Re
spondent committed an unfair labor practice, and Cotton
should be offered reinstatement and backpay
The Respondents evidence against Bonnie Finney is
the testimony of Beverly Grubbs, who stated that in No
vember as she was leaving work about 5 p in , Finney
yelled her name several times and "finally she [Finney]
said , Beverly, if you give out any more paychecks to
new employees I m going to beat your ass And I just
kept walking, I never said anything to her I just kept
walking straight to my car and got in my car and left
Finney denied this incident, and Grubbs identification
of her is questionable in view of the fact that other pick
ets whom Grubbs identified as having been present cre
dibly testified that they heard no such exchange Vera
Hill, said by Grubbs to have been present, credibly tests
fled that she did not picket with Finney except on three
occasions in the early days of the strike In any event
whether the incident in fact happened as reported by
Grubbs really need not be decided because it is not of
sufficient seventy to warrant the discharge of a striker
It has long been held that the picket line is not a
Sunday School picnic " Often things are said in the heat
of a strike that would not be polite in other situations
yet do not rise to the level of seventy to deny one the
protection of the Act A statement that "I'll beat your
ass, not associated with menacing gestures, the showing
of weapons, or the like, fits into the insignificant catego
ry Absent some indication that the threat" has an im
mediacy of reality, the Board will not find a mere state
ment enough to deny a striker his or her right to rein
statement
There is nothing in Grubbs testimony that would indi
cate that if Finney made the statement to her, it was any
more than just that, a statement as opposed to a genuine
and reasonably perceivable threat to a working employee
of physical harm As far as I can tell from this record,
Grubbs went home, came back to work the next day
continued to do the job which she had done and there
was no reoccurrence Nor is there any evidence that in
fact Finney participated in any activity that would tend
to indicate that her alleged words should be taken as a
serious threat
I conclude that the Respondent has not sustained its
burden of proving that the alleged basis for having
denied Finney reinstatement was sufficiently serious
under all the circumstances Accordingly, I conclude
that in denying Finney reinstatement, the Respondent
violated the Act and should be ordered to reinstate her
with full backpay
There is evidence of several instances of misconduct
involving Ronnie Hayslett the principal of which oc
curred the day before the strike
According to the generally credible testimony of
Rosemarie Clark, for several days prior to the strike ten
sion was building Employees who intended to go on
strike asked Clark if she would join them She said she
did not want to do so Then on the day before the strike,
several employees made generalized statements concern
ing what they were going to do
A They were just wild that day, the guards had
to calm them down several times , they were just
yelling, they just said `they were going to lace the
food we are going to fix it up good before we
leave, and we have got rocks', and they said we re
going to nail the driveways And about that time
Ronnie [Hayslett] looked over at me, and he
grabbed me and put me up against the wall
Q Physically grabbed you?
A Yes, he did, and he said , you are going to
walk, aren't you, and I didn t say anything, and he
just held me against the wall, and he said, I am
going to personally see that you don t cross the
picket line, you are going to walk one way or the
other, you are going to be sorry," and I still didn t
say anything, and the lady with the glasses on, she
said , Hey, you better walk with us, we 11 give you
$50 a week' And I still didn t say anything, I just
let them keep going on and on
And then Ronnie, I don't know, I can t remem
ber if it was that night, or before that, he came in
the PBX room, I was taking a break
Q This is Ronnie Hayslett?
A Yes and he said, you had better know what
you are doing,' and he said you had better walk
with us, and if you don t he said, People get hurt
bad when they don't and I said I told you, I
don t know anything about it, just leave me alone,"
and he just kind of grinned, he said, "well, if you
don't, you will pay'
Hayslett testified in general terms to not having laid
hands on anyone the day before the strike, and general
ly denied that he engaged in any of the acts testified to
by Clark, or others the day before the strike or on the
picket line
I found Clark to be a generally straightforward wit
ness without any apparent stake in the outcome of this
matter On the other hand, I was not impressed with
Hayslett's demeanor and note that he in fact stands to
gain in the event of a favorable resolution of this particu
lar issue Beyond that, I noted that Hayslett s denial is
more in the nature of a negative pregnant response than
a direct denial of Clark s testimony On balance, I credit
Clark and conclude that the day before the strike Hays
lett in fact physically grabbed her and made statements
along the lines to which she testified
Given the physical act associated with these state
ments , which are in their nature threatening, if ambigu
ous, I conclude that Hayslett exceeded the bounds of
permissible conduct He in fact made threats which
would reasonably have a tendency to coerce employees
in the exercise of their Section 7 right to refrain from
striking I conclude that on the basis of this incident
alone, the Respondent was justified in denying Hayslett
reinstatement, and I therefore shall recommend that the
allegation concerning his reinstatement be dismissed
A review of the record reveals no evidence adduced
by the Respondent concerning any alleged strike miscon
HOTEL ROANOKE
duct on the part of Curtis Hatcher, nor has counsel for
the Respondent directed my attention to such evidence
Inasmuch as the Respondent has the initial burden of
proving that a striker has engaged in some activity that
would justify denying him reinstatement, and inasmuch
as no such evidence was adduced by the Respondent in
this matter, I am constrained to conclude that the Re
spondent did not meet its burden of proof regarding
denial of reinstatement to Curtis Hatcher Accordingly, I
conclude that by failing to reinstate Hatcher, the Re
spondent violated the Act and an appropriate reinstate
ment and backpay order will be recommended
As the General Counsel states on brief, There is no
dispute as to the fact that Ralph Hayes toured several
public and work related areas of the Hotel during the
late evening of 3 April 1984 " By this counsel no doubt
means Hayes admitted that about midnight or so, he en
tered the Hotel and was in public as well as areas re
served for employees Hayes testified that the reason he
did this was Well, since I wasn t planning on going
back, and I had been set up to go to college and get a
job with the VA, I wanted to take one more look, you
know, at the Hotel and so, that night, I decided to enter,
you know, to take one more look
Employee Joseph Bell testified that he came upon the
individual who was later identified as Hayes, and Hayes
told him, If I say anything, he would kill me' Bell tes
tified that he reported this incident to the security offs
cers, although he did not know Hayes' name at the time,
Hayes was chased and arrested
While conceding that Hayes presence in the Hotel
was unauthorized, the General Counsel maintains that
Hayes credibly denied having made any threatening
statements to any employee or security guard while
there, and therefore the Respondent did not prove its
case
Based on my observation of the witnesses as well as
the inherent probability of this matter, I specifically dis
credit Hayes testimony I do not believe he came onto
the Hotel premises to take one more look It is un
known precisely what Hayes had in mind, but his actions
belie a benign intent In addition , I found Bell to be a
credible witness and conclude that in fact Hayes threat
ened him
The unauthorized entry onto the employers property,
associated with the threatening statement to Bell, I con
clude, goes beyond the bounds of permissible picket line
conduct Hayes act was sufficient justification for the
Respondent to have denied him reinstatement Accord
ingly, I conclude that the allegation with regard to the
denial of reinstatement to Ralph Hayes should be dis
missed
Presumably, the Respondent refused to reinstate Vera
Hill because of activities she allegedly engaged in which
are set forth in two incident reports written by Security
Officer 0 Neal, and one by Security Officer Miller For
the reasons set forth below, I conclude that Respondent
was unjustified in denying Hill reinstatement
First, I conclude that the incidents, even if they oc
curred precisely as reported by the security officers
were too trivial either singularly or in combination to
211
deny one her protection under the Act, and second, I
credit Hill s denial that the events occurred as alleged
O Neal reported that on 12 November he observed
Hill standing with Michael Taylor between the Union
building and the Kinsley building `Michael threw an
object at the van as it drove by them I could hear the
sound of glass hit the street 0 Neal testified concerning
this incident stating
I saw Vera Hill and Michael Taylor standing in
front of the Union hall, which is right across from
the hotel, and the hotel van went by and I saw Mi
chael and Vera with, what seemed to be, I heard
some glass They threw some objects towards the
van and it sounded like glass They threw it to
wards the wheel of the van as it went by
O Neal did not explain why in his contemporaneous
report he did not mention that Hill, whom he named as
present, had been one of the throwers Nor was he asked
to do so Whether Hill was a mere observer of another
employee throwing an object or herself was a participant
is a material divergence It can neither be viewed as a
minor technicality nor excusable inadvertence, absent at
least some plausible explanation The fact that 0 Neal
testified in such a materially different way than he wrote
his report (which is not ambiguous in this respect) casts
doubt on the credibility of his testimony In addition, I
generally credit Hill s testimony denying that she threw
any object at the van on the night in question and con
clude that she did not in fact participate in a throwing
incident on 12 November I conclude that the Respond
ent did not establish through persuasive evidence the fac
tual basis of the alleged misconduct on that occasion
The other incident reported by O'Neal also allegedly
took place on 12 November, in which he wrote Vera
Hill threw an object that hit the roof of the pool ' Hill
denied having done so, a denial which I tend to credit
Beyond that however O'Neal s report is simply too
sketchy and vague to support a conclusion that the Re
spondent was for this reason justified in denying Hill re
instatement There is no indication in this report or from
0 Neal s testimony what the object may have been and
from this lacking it is impossible to determine whether or
not, even if Hill had thrown something, it was sufficient
to rise to the level of potential property destruction or
intimidation of other employees in the exercise of their
Section 7 rights
The Board has held that throwing objects that do not
figure to cause personal or property damage is miscon
duct-for instance a tomato thrown at a moving vehicle
Harry Hoffman & Son Printing, 278 NLRB 671 (1986)
Nevertheless there is no per se rule and presumably not
all objects qualify Therefore to deny one reinstatement
for throwing, the object must be identified A company
may refuse to reinstate employees who have engaged in
picket line misconduct, but it does not have carte
blanche the right to pick trivial incidents and base its re
fusal to reinstate on those The refusal to reinstate stnk
ers must be based on serious and substantive incidents
Where such occur the Respondent should be able to es
tablish through evidence their seriousness As to Hill and
212 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the throwing incidents, I conclude the Respondent failed
in this burden of proof
The final report in which Hills name appears was
written by Security Officer Miller but the substance set
forth in that report was not testified to by him nor was
the report offered into evidence through him Rather
the report was offered as one of a large number of re
ports submitted by various secunty officers to the chief
of security during the course of the strike and which the
chief of security testified were considered by the Re
spondent in reaching its conclusion as to whether or not
to reinstate certain strikers
Although this and the other reports were received into
evidence for the purpose offered, namely, that they were
received in the normal course of business and were used
by the Respondent in making its decision , the weight of
this report must be affected by the fact that the Respond
ent chose not to introduce it through the author, nor in
terrogate the author concerning the substance of the
report Along these lines , I note that in the report , Miller
stated , A witness to this proceeding was Roger Brown
No 269 who said he would also testify to the abusive
speech Roger Brown in fact was not called as a wit
ness by the Respondent
Given the way Miller s report came into evidence, the
fact that Miller was not interrogated concerning the sub
stance of the report nor available for cross examination
concerning it, and the fact that the Respondent did not
call his purported witness, I discredit the assertions in
the report as against Hill s testimony She credibly
denied having engaged in the alleged acts of trespassing
10 feet on company property and abusive speech di
rected toward the security officers
Beyond that, the report does not define the abusive
speech " Thus there is no basis on which to evaluate
whether the speech was of such a nature as to disqualify
one from the protection of the Act, or was trivial Fur
ther the allegation that Hill was 10 feet on company
property is simply too insignificant to justify the Re
spondent in denying her reinstatement
I therefore conclude that separately or in the aggre
gate , the various allegations of misconduct against Vera
Hill were too insignificant to justify denying her rein
statement and that by doing so the Respondent violated
the Act And I shall recommend an appropriate backpay
and reinstatement remedy
William Lambert is mentioned in five incident reports
submitted into evidence by the Respondent and, presum
ably, the acts complained about in these reports are the
basis of the Respondents refusal to reinstate him
In a report by Security Officer Miller dated 20 March
1984 it is stated that Lambert as well as three other
strikers were hurling vulgar words at our guests as they
were coming and going The rest of the report relates
to what another security officer apparently told Miller,
does not specifically relate to Lambert, and in any event
is vague and conclusionary concerning what any of the
strikers purportedly did
Regarding the matter of the hurling vulgar Ian
guage,' I conclude that such is simply not persuasive
proof to establish that Lambert engaged in the kind of
egregious picket line misconduct that would deny him
protection of the Act In testimony, Miller did not elabo
rate on what the vulgar ' language was supposed to
have been , and without some evidence concerning spe
cifically what Lambert is alleged to have done, I con
clude that the Respondent failed in its burden of proof
with regard to this incident
Similarly Security Officer Helms reported on 10 Oc
tober that Lambert had directed some specifically identi
fled opprobrious language towards a nonstriking employ
ee Although Lambert admitted in testimony to having
used the words attributed to him, he contends that the
nonstriking employee was not the subject of his derision
but rather some individuals whom he described as
winos who were sitting on the sidewalk in front of a
nearby liquor store I do not credit Lambert I did not
find his demeanor persuasive , nor his explanation plausi
ble I conclude that Lambert in fact called a nonstriking
employee a mother fucker
Although this is certainly profane language , by itself
such does not seem threatening or generally of such a
severe nature as to exceed the bounds of permissible
(albeit not condonable) picket line language Lambert s
language was very unpleasant , but I do not believe that
the use of these particular words in the situation de
scribed in the security report is of sufficient seriousness
to justify denying him protection of the Act
Reports by Assistant Chief of Security Glenn Under
wood and Officer Helms dated 12 January 1984 associ
ate Lambert as well as others with the throwing of an
object which knocked a hole in window pane by drink
machine, a hole of about 2 1/2 inches The object did
not come inside Neither report nor the testimony of
Underwood or Helms do more than identify Lambert as
being one of the strikers who was observed about the
time of the incident Neither suggests that Lambert in
fact threw the object nor is there any proof that he did
so Absent some evidence that in fact Lambert engaged
in the act of throwing an object that caused even this
minor property damage I cannot conclude that the Re
spondent has sustained its burden of establishing that
Lambert should be denied reinstatement
To similar effect are reports by Officers Brandau and
Helms concerning an allegation of paint throwing on 8
January 1984 Brandau reported that I saw a balloon of
paint come across the street from the union hall It
landed in front of the dumpster at the back loading
dock" Brandau did not testify concerning this incident
Specifically there is no testimony or indication that the
balloon of paint broke and splattered paint or what the
result of this alleged incident was Beyond that, Brandau
was not asked to testify concerning this incident, nor was
Helms, to whom Brandau reported his observations Nor
is there any evidence that Lambert was the one who
threw the balloon of paint Given the paucity of evi
dence offered by the Respondent concerning this event I
conclude the Respondent failed to establish this as a basis
for denial of reinstatement of Lambert
The report of the vulgar language on 20 March was
also contained in a report by Security Officer Osborne
but, as with the report by Helms it did not detail what
HOTEL ROANOKE 213
Lambert , or any of the others, was supposed to have
said
Based on the lack of credible evidence that in fact
Lambert engaged in any more than normal picket line
activity of a trivial nature insofar as opprobriousness is
concerned , I conclude that the Respondent failed to es
tablish that it was justified in denying him reinstatement
Thus , its failure to reinstate Lambert was violative of the
Act Accordingly , I shall recommend an appropriate
order of reinstatement and backpay
Jack Lancaster was denied reinstatement presumably
for his participation in an event reported by Officer Os
borne on 9 February 1984, wherein Lancaster and an
other striker , Darrell Lanier , purportedly made vile
threats to Catherine Karnes , now Marmon , of a sexual
nature Marmon testified to this event , but Osborne was
not called as a witness Marmon testified that she did not
know the two individuals in question and could only de
scribe them as a tall slim black man and a short, heavy
set white man
Lancaster, a white man , testified that he is 6 feet I
inch and thus does not fit very closely the physical de
scription testified to by Karnes Further he denied, cre
dibly I believe, that he participated in any such an mci
dent as testified to by Karnes or as set forth in Osborne s
security report
Based on the credible testimony of Lancaster, I con
clude that the Respondent did not establish by persuasive
evidence that he was involved in the event for which,
apparently , he was denied reinstatement Accordingly, I
conclude that the Respondents failure to reinstate Lan
caster (by the time of the hearing he had been reinstated)
was unlawful and an appropriate reinstatement and back
pay remedy will be recommended
Darryl Lanier is the other striker named in Osborne s
report of 9 February concerning the Catherine Karnes
matter Lanier is a black man who stands 5 feet 7 inches
and who , like Lancaster , was not identified by Marmon
Again Osborne was not called as a witness concerning
this matter The identification of Lanier in this report is
as faulty as that of Lancaster The physical evidence
does not lend circumstantial credibility to the identifica
tion of either In view of this , I credit Lanier s denial
that he participated in an event similar to that outlined in
Osborne s report of 9 February and conclude that the
Respondent has failed to establish the factual basis for
denying him reinstatement on this ground
Security Officer Benton Nester filed a report on 1 No
vember stating that he observed two strikers start a fire
in Wells Street about 1 10 a in that day He radioed this
report to Officer Helms who similarly filed a report con
cerning this matter In his report , Nester stated that
Lanier was identified as one of the individuals by Assist
ant Chief of Security Glenn Underwood
Although these reports might be sufficient to establish
that the Respondent had probable cause to believe
Lanier had engaged in the act of starting a fire in the
street, they are clearly insufficient evidence that he did
so There is no testimony from Nester, Underwood,
Helms, or anyone else concerning how the purported
identification of Lanier was made Nor is there any testi
mony concerning the nature or extent of the alleged fire,
other than it was out by the time the fire department ar
rived approximately 15 minutes later In view of the lack
of evidence associating Lanier with this event , I am con
strained to credit Lanier s denial that he in fact set a fire
on 1 November or any other time , and conclude that the
Respondent failed to establish by persuasive evidence
that the event took place as alleged If in fact the event
had occurred , surely the Respondent could have brought
forth testimony concerning the fire as well as some
direct and definitive evidence that Lanier was at least a
participant Accordingly , I conclude this cannot be con
sidered a basis for denying Lanier reinstatement
A similar incident of a leaf fire was reported by Burns
Security Officers Jim Crandall and John Guill on 8 No
vember Their reports state that Lanier , along with two
other strikers , started a fire in leaves at the Jefferson
Street entrance to the Hotel Again there is no indication
in these reports who made the identification of the strik
ers or how it was done Neither Crandall nor Guill was
called as a witness Nor is there any indication in either
report concerning the nature or extent of the alleged fire
In view of the limited evidence concerning this event
and the lack of any credible identification of Lanier or
the other two individuals allegedly participating in it,
and given Lanier s denial that he in fact set a fire on or
about the date indicated in the report , I conclude that
the Respondent failed to establish by persuasive evidence
that the event occurred It may well be that the reports
are sufficient to establish a good faith belief on the part
of the Respondent, however , in view of Lanier s denial
that the event occurred the reports are clearly insuffi
cient to establish his culpability and absent the reports
there is simply no evidence that Lanier did what the re
ports say he did
Also on 8 November Security Officer Robert Meador
reported that he saw Lanier pick up something and hand
it to fellow striker Rodney Bumbrey Bumbrey ' throwed
(sic] it through the old laundry building window on
Wells Avenue " What it was that Lanier was supposed
to have picked up was not identified in the report There
is no indication whether any damage was done as a
result of Bumbrey s act , which , on the bare facts of the
report seems quite trivial I therefore conclude that
whatever Lanier s participation may have been in Bum
brey s act it is too insubstantial to be considered a basis
for denying Lanier protection of the Act
To deny Lanier reinstatement based on this incident
would be to assume that Lanier handed Bumbrey a rock
knowing that Bumbrey was going to throw it through a
closed window and cause damage to the Company s
building While this might be a plausible assumption, it is
not so definitive as to base ones continued employment
on it
According to the reports about 20 minutes before the
rock throwing incident (at the same time Lanier , Cotton,
and Swain were reportedly starting a fire), Crandall and
Guill also reported that Lanier , Cotton , and Swain threw
apples at them Crandall described the incident Three
strikers throwing apples and landing within 5 feet of
myself and Guill ' As indicated , Crandall and Guill were
not called as witnesses in this matter , and from the
214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sketchiness of the reports themselves, it is difficult to get
an idea of what these security officers were allegedly re
porting concerning the activities of the three strikers on
the night in question The report concerning the apple
throwing incident on its face seems trivial, though if
proved such might be enough to support a denial of rein
statement Harry Hoffman & Son Printing, supra Howev
er, there is no indication in the report who in fact did
the throwing Absent any specific identification of Lanier
as one who threw something at a security officer, and
given what appears to be the triviality of the event, I
conclude that this is an insufficient basis on which to
deny Lanier reinstatement either singly or with the
other events he allegedly participated in on the night of
8 November or at other times
I conclude that the evidence brought forth by the Re
spondent relating to alleged picket line misconduct on
the part of Lanier is insufficient to establish that he en
gaged in activity of the type and character that would
disqualify him for future employment There are numer
ous reports in which his name appears But real evidence
that he actually engaged in one or more acts of serious
picket line misconduct is lacking Accordingly I con
clude that by denying him reinstatement the Respondent
violated the Act and an appropriate reinstatement and
backpay remedy will be recommended
The Charging Party also contends that inasmuch as
the Respondent ultimately reinstated Lancaster, it has
waived its privilege to discharge Lanier by recalling
Lancaster who was equally implicated if the Respond
ent s assertions are credited " I specifically reject this ar
gument of the Charging Party, noting that the basic issue
with regard to Lanier s recall is whether his strike relat
ed activity was such that he lost protection of the Act If
it was, then he has no rights under the Act regardless of
whether the Respondent chose to rehire someone whom
it was not required to rehire The basic issue concerns
Lanier s status under the Act not a defense to his dis
charge In any event, I have concluded that Lanier s ac
tivity was not so egregious as to cause him to lose his
status as an employee and his rights under the Act
Apparently Robert Leftwich was denied reinstatement
because on 4 November about 9 20 p in , a rock was
thrown through the window of the Shenandoah Room
This incident was reported by Burns Security Officer
Albert Castile to Hotel Security Officer Frank Helms,
who then called the chief of security and radioed Secun
ty Officer Benton Nestor
Nestor filed a report stating that he had been contact
ed concerning a rock having been thrown through the
window of the Shenandoah Room and that Helms had
reported to him there were no pickets in sight at the
time Nestor went on to report, Robert Leftwich was
seen in area shortly after
Assuming the accuracy of Nestor's identification of
Leftwich having been observed in the area following this
incident such is scarcely sufficient to establish even in
ferentially, that Leftwich threw a rock through a
window Beyond that , Nestor was not called as a witness
and there is no testimony from him concerning how this
identification was supposed to have been made Leftwich
credibly testified that he did not picket during the
evening of 4 November, and hence would not have been
on the picket line or near the Hotel when the rock
throwing took place Finally, he credibly denied having
in fact thrown a rock through the window of the Shen
andoah Room On all these factors, I conclude that the
Respondent failed to establish that Leftwich engaged in
the act of picket line misconduct for which he was
denied reinstatement Accordingly I conclude that by
denying Leftwich reinstatement the Respondent violated
the Act, and I shall recommend an appropriate reinstate
ment and backpay order
Ernest Lindsey was apparently denied reinstatement be
cause he was reported to have been involved in viola
tion of injunction on 6 December about 4 30 a in That
is he was reported to have engaged in an act or acts of
yelling such that he caused a guest of the Hotel not to be
able to sleep
Assistant Chief of Security Glenn Underwood testified
concerning this incident and identified for the record his
report of 6 December, in which he stated On the above
date and time received a call from Mr J Harrington of
Southern States, he could not sleep, someone was on the
street yelling very loud Underwood went on to state
that he and a Burns security officer went outside and
identified Lindsey, who was walking with an unidenti
feed individual
Although Underwood testified that he knew Lindsey
as a Hotel employee and gave a physical description of
him it is noted that this event occurred during the hours
of darkness While there was some light available, it is
far from clear if the light was adequate to make a posi
tive identification from some distance Further, Lindsey s
physical description given by Underwood satisfies that of
many of the strikers
Lindsey credibly testified that he did not picket during
the postmidnight hours at any time during December
having been hospitalized in October Lindsey s denial
that he was even present on the picket line was credible,
and given Underwood s far from certain identification, I
conclude that the evidence preponderates in favor of
finding that Lindsey in fact was not at the Hotel on the
date in question
Beyond that the evidence is very sketchy concerning
the yelling incident It is no doubt possible that under
certain conditions and circumstances yelling could be
egregious picket line misconduct However such is far
from established by the Respondent in this case Under
wood did not hear the yelling which was presumptively
reported to him by the guest the guest was not called as
a witness Underwood himself observed only one inci
dent of yelling I just simply do not believe that the
Respondent brought forth sufficient evidence to demon
strate that the act by whomever was sufficient to justify
concluding that an employee thereby lost his protection
of the Act
I therefore conclude that by denying Lindsey rein
statement following the end of the strike, the Respondent
violated the Act I shall recommend an appropriate back
pay and reinstatement order
The apparent reason the Respondent denied reinstate
ment to Dallas Mangus was activity he engaged in at the
HOTEL ROANOKE 215
outset of the strike, as reported by Helms on 1 October
In stating the nature of the complaint Helms reported
Directing Strikers & not legal on Blue Card' Helms
went on to report, and subsequently testified that what
Mangus had done was to return to the Hotel shortly
before 6 p in and not clock in as he was required to do
He further told fellow employees that they did not have
to clock out, and that he was directing traffic that day
and it was supposed to have been my job '
Mangus had been the shop steward for the engineering
department and was on the contract negotiating team
He admits that his shift ended about 3 p in on 1 Octo
ber He went home, and then he returned to notify em
ployees in his department that the strike had com
menced Thus, there is no real dispute concerning the es
sential facts in this matter
The question is whether coming on Hotel property in
technical violation of the rules, and telling fellow em
ployees what they could and could not do with regard
to beginning the strike, amounted to such egregious mis
conduct as to render Mangus unemployable
I do not believe that Mangus activity rises to the level
necessary to deem him to have lost his protection under
the Act At most, he committed a technical violation of
the company rules but was not otherwise a trespasser
Nor was he engaged in any disruptive acts or acts that
would cause property damage He was there to help
start the strike And his purpose must have been clear to
the Respondent Compare Ralph Hayes, supra
Mangus activity was directly related to commencing
the strike, notifying employees that the time had come,
and directing them concerning how to leave work This
is activity directly protected by the Act, and to be
denied reinstatement for this reason is clearly a violation
unless it was performed in an egregious manner There is
no evidence it was I accordingly conclude that by deny
ing Mangus reinstatement the Respondent violated the
Act I shall recommend an appropriate reinstatement and
backpay remedy
The name of Julia Mangus appears on two incident re
ports submitted by the Respondent The Respondent of
fered no evidence of acts other than contained in these
reports as a basis for refusing her reinstatement I con
elude the assertions set forth in these reports including
the testimony of Brandau who testified concerning his
are insufficient to establish misconduct of the quantum
necessary to deny strikers reinstatement
Security Officer Frank Helms reported that on 31 Oc
tober about 11 28 p in he observed a Pepsi bottle hit
the brick wall on the dock about 4 feet high from the
door He reported that he went out a door to see where
the bottle had come from and `Julia Mangus was stand
ing at the entrance of Wells Avenue, she said to me, Of
ficer No 218 [Helms], that she didn t throw the bottle
Though called as a witness , Helms did not testify con
cerning this incident
Mangus credibly denied that in fact she had thrown
the bottle She confirmed that portion of Helms' report
in which she told him that she did not throw one She
went on to testify that Helms said to her `I know you
didn't, Julia Given Mangus' credible denial that she in
fact threw anything at the Hotel on the evening of 31
October, along with Helms' sketchy report containing at
best a weak inference that Mangus was involved in the
incident reported, I conclude that the Respondent has
failed to establish by persuasive credible evidence that in
fact Julia Mangus was in any way associated with the act
of throwing a Pepsi bottle against the wall of the Hotel
Further, it is doubtful that the act as reported could be
deemed egregious misconduct
Security Officer Leon Brandau submitted an informa
tion report dated 8 December in which he stated
On the above date and time Julia Mangus, one of
the strikers Roger [Brown] and I was on Back
Loading Dock Roger was dumping trash When
Julia Mangus made these remarks to us Said that
Roger didn t have much longer to live For security
officer to go back inside, that she would take care
of Roger
Brandau reiterated the allegation set forth in his report
and testimony He was unable to remember the date the
incident allegedly happened or even the season of the
year however he did remember that at a distance of 41
1/2 feet' he heard Mangus say She told me to go back
inside, that Mr Brown did not have much longer to live
that they would take care of Mr Brown their own
way
Julia Mangus testified that she normally picketed be
tween the hours of 10 p in to 2 a in She stated that she
first learned of this allegation against her during an un
employment compensation hearing She testified that one
evening when she was picketing with Barbara Bowling
as they walked past the loading dock on which were
standing a security guard, whom she could not identify
and an employee Bowling yelled in a very jokingly
jovial manner She yelled back and told the guard to go
on up inside, she wouldn t harm a hair on the guy s head
and I assume that she may have been referring to an
other person who was out there with him " Inasmuch as
Mangus was testifying to an incident which she stated
occurred on 8 December 1983, presumably this is the
same event to which Brandau testified although their
versions obviously differ regarding the precise words
used and by whom
Although there is no particular reason to credit Bran
dau over Mangus his version is contained in a contem
poraneous report But he subsequently testified that he
heard the words he reported from a distance of some
41 1/2 feet on a winter night Though he testified that
the dock was well lighted he was able to identify only
one of several strikers who were in the vicinity
To deny Mangus reinstatement based on Brandau s
report and testimony would require finding that she said
the precise words attributed to her by Brandau It would
further require finding these words were uttered in such
a fashion and under such circumstances as to give imme
diacy to the threat of physical harm to employee Roger
Brown I do not believe that Brandau s testimony is suffi
ciently persuasive or that his memory of the incident is
sufficiently detailed or credible to make such findings
No doubt something was said by strikers to the securi
ty officer and the working employee, but such is often
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the case in these matters The test is whether the striker
goes beyond the bounds of permissible name calling and
into the area of threatening physical harm Thus, even if
Brandau is credited (and there is reason here for not to
tally crediting his version) given Mangus generally cred
ible recollection of the event as well as Brandau s lack of
detail and lack of recall, I conclude that the Respondent
did not establish by persuasive evidence an event of suffi
cient consequence so as to deny Mangus her continued
protection of the Act I conclude that by failing to recall
Mangus , the Respondent thereby violated the Act and I
shall recommend an appropriate reinstatement and back
pay remedy
It appears the Respondent refused to reinstate Herman
Mason because of two incidents in which he was report
ed throwing, or was associated with throwing, an object
on hotel property
The first report was by Security Officer 0 Neal dated
6 October in which he stated that he was standing on
the roof of the Hotel overlooking Wells Avenue when
he observed Mason get up and look to his left and to
his right Herman then threw an object on the apron
parking area near the garage I heard the object striking
the ground It sounded like it was a hard object Nei
ther in the report nor in his testimony did 0 Neal give
any indication of what kind of an object Mason was sup
posed to have thrown, and whether there were any
people or property in the area which could have been or
were damaged
Mason denied he ever threw anything on hotel proper
ty
Although 0 Neal testified and reported that the light
was good, I note that this incident allegedly occurred at
11 15 p in and that 0 Neal was some distance away
0 Neal reported that he was on the roof of the Hotel,
although he testified that he was actually inside the
Hotel on the fourth or fifth floor In any event while I
do not discredit 0 Neal s intent to report what he saw I
conclude the physical circumstances made it difficult for
him to report accurately whether in fact Mason did any
thing more than make some kind of a motion which ap
peared to be an act of throwing Mason denied ever
having thrown anything on hotel property and there is
no basis from his testimony or demeanor to discredit his
denial Beyond this , absent any evidence of damage, or
potential physical damage , as a result of Mason s alleged
act I consider it too trivial to be the basis for refusing to
reinstate him
Mason was also named in Helms Pepsi bottle throw
ing report of 31 October Helms reported that when he
went out the door to see where the bottle had come
from and observed, `Mason was running to the union
hall Helms further reported that before the bottle
throwing incident , he had observed Mason with Julia
Mangus As noted above Helms did not testify to this in
cident
This report is simply insufficient to establish by persua
sive evidence that Mason (or Mangus) threw a pop
bottle against the wall of the Hotel The inference that
Mason engaged in this act is just too weak to deny him
his statutory protection Though I consider throwing a
pop bottle without more to be a borderline incident of
picket line misconduct , there is insufficient evidence to
link Mason with the act so as to deny him reinstatement
In view of the insufficiency of the Respondents evi
dence linking Mason with serious picket line misconduct
I conclude that by denying him reinstatement the Re
spondent violated the Act I conclude that the Respond
ent should be ordered to reinstate Mason with full back
pay
The Respondents reason for refusing to recall Cecil
Meadows is not apparent from the record Presumably,
however , Meadows was denied reinstatement because he
was reported to have been in the presence of Rodney
Bumbry and Darrell Lanier who were reported by Secu
my Officer Robert Meador as having broken a window
on 8 November (discussed above)
There is nothing in Meador s report or his testimony
that suggests that Meadows engaged in any activity
other than being present on the picket line There is
simply no suggestion that in any way he participated in
the alleged act of object throwing or did anything else
which would warrant denial of reinstatement
Given the lack of evidence that Meadows engaged in
any egrenous act of misconduct during the course of the
strike , I conclude that the Respondents denial of rein
statement to him was unlawful I shall recommend an ap
propnate reinstatement and backpay order
Presumably Kenneth Mitchell was initially denied rein
statement because of his alleged participation in an inci
dent of paint throwing reported by Security Officers
Brandau and Helms on 8 January
Brandau reported that he saw a balloon of paint
come across the street from the union hall It landed in
front of the dumpster at the back loading dock He did
not see any strikers on the street at the time , but went
out on the roof of the Hotel He then noticed two indi
viduals sitting in the window of the second floor of the
union hall across the street He called Helms who identi
fled them as William Lambert and Kenneth Mitchell and
also identified two of the three cars in front of the union
hall as belonging to Lambert and Mitchell
Though witnesses in this proceeding neither security
officer testified to this event Thus, the totality of the
Respondents evidence that Mitchell engaged in any
picket line misconduct is the identification of him sitting
in the window of the union hall sometime after a bal
loon of paint was thrown by someone at the loading
dock of the Hotel
Under accepted rules of inference the evidence prof
fered by the Respondent is simply too sketchy to estab
lish that Mitchell participated in the act of paint throw
ing Thus , I conclude that the Respondent failed to es
tablish the factual basis on which it denied Mitchell rein
statement Therefore the denial violated the Act and I
shall recommend an appropriate reinstatement and back
pay order
Jeff Ratigan was apparently denied reinstatement based
on a complaint report of an event occurring on 28 Janu
ary submitted by Security Officer Irwin McGarrell
McGarrell reported that Ratigan , who was identified to
him subsequently by other security officers supposedly
made an obscene comment to employee Cindy Love as
HOTEL ROANOKE 217
she was walking across the parking lot to go to work
Neither Love nor McGarrell testified in this matter, and
thus the entirety of the Respondents evidence concern
mg Ratigan is contained in the report and is , of course,
hearsay Although the report may be sufficient evidence
to support the Respondent s initial burden of a good faith
belief that the event happened such is not persuasive in
view of the credible live testimony of Ratigan
Ratigan testified, presumably, to the incident reported
by McGarrell Although he stated he did not remember
precisely what he said on this occasion nor could he
identify to whom his remarks were directed, he did re
member that he used the word "sleazy,' and that when
confronted by Security Officer Helms , he said, "It was
me, it was me , it was me'
Even accepting the Respondents evidence without
qualification, at most it is an incident of a striker making
a vaguely obscene comment to an employee you had
better get your sleazy ass up there and get to work girl
and keep sleazing around because your ass am t going to
be here long Although it is highly questionable wheth
er in fact Ratigan uttered these words precisely as writ
ten in the report, even if he did, such amount to little
more than a vulgar epithet Such is not so serious to
deny one his protection under the Act
Accordingly, I conclude that the Respondent's evi
dence that Ratigan engaged in egregious acts of picket
line misconduct has not been established by persuasive
and competent evidence I conclude that by denying Ra
tigan reinstatement , the Respondent violated the Act I
shall recommend an appropriate reinstatement and back
pay order
Betty Shockley was denied reinstatement apparently be
cause she was alleged to have participated in picketing to
obstruct the entrance to the Hotel during the early days
of the strike and, more seriously to have threatened em
ployee Mane Clark on the day the strike began and sub
sequently The incident of obstructing traffic was report
ed by Chief of Security Mills on 3 October He reported
that about 4 55 p in , Betty Shockley and Shirley Spell
man patrolled slowly in front of the entrance to the
parking lot occasionally stopping so that one of them
was almost always in the middle of the place where traf
fic would be driven This had the effect of slowing down
traffic, particularly railroad employees who were leaving
work Roanoke city police were called They arrived
and talked to Spellman and Shockley
Shockley and Spellman admit they picketed across the
entrance to the driving lot or in front of the driving lot,
particularly during the early days to the strike, but both
deny that they obstructed traffic' or picketed in such a
way as to stop traffic
Neither Mills report nor his testimony concerning this
do more than suggest in a conclusionary manner that the
pickets obstructed traffic There is no indication in Mills'
testimony or report of the extent to which traffic was
blocked or inconvenienced Based on the testimony of
Mills and his report I conclude that the Respondent of
fered insufficient evidence to support the contention that
Shockley's picketing at the parking lot was such that it
amounted to egregious misconduct of the sort that
should deny her protection of the Act
It may very well be that Shockley and Spellman in
fact picketed in such a way that the flow of traffic was
disrupted Such however, is not of itself particularly se
nous misconduct Disruption of ingress and egress of ve
hicles is often associated with picketing and is the type
of thing to be expected When a strike occurs, there nec
essanly and commonly will be some disruptions The
question is whether the acts of disruption are so serious
as to deny one continued employment, which is very se
nous indeed Although it is possible for a picketer to dis
rupt traffic in a manner exceeding the permissible bounds
of strike activity, I do not believe that the Respondent
presented sufficient evidence that Shockley or Spellman
did
Mane Clark submitted a statement , dated 14 October,
in which she stated that on 1 October when the strike
began, Betty Shockley and others "started to leave They
told me to come and I said no Betty Shockley said they
would wait on me I told her to go on, I was staying
She then said if I didn t leave with them I would be very
sorry I told her to go on and leave me alone They left
the building' Clark went on to report that thereafter,
she and members of her family began receiving crank
phone calls at her home Although she could not identify
who made the calls, she stated in the report that Betty
Shockley was the only one here who had her phone
number And Clark reported that her daughter had
stated that Shockley one time had called the house The
substance of Clark's written statement was testified to by
her
Clark's statement , as elaborated in her testimony, does
not reliably prove that Shockley made any kind of tele
phone call to her residence The contention that Shock
ley did is based on hearsay and a very weak inference,
neither of which can be accepted as proof of the alleged
fact in the face of Shockley's credible denial that she
made such telephone calls Based on the credible evi
dence of record, I conclude that in fact Shockley made
none of the telephone calls apparently relied on by the
Respondent in denying her reinstatement
The statements made by Shockley to Clark at the
outset of the strike do not suggest a threat to Clark in
any meaningful substantial, or objectionable way No
doubt Shockley told Clark to join them in the strike, and
when Clark declined to do so, she made some statement
Even accepting without qualification Clark s version that
Shockley said If I didn t leave with them I would be
very sorry, ' this is not such a threat of harm sufficient to
deny one protection of the Act Under the circumstances
here, where most employees were going out on strike
but others were declining to do so there was no immedi
acy to the alleged threat of harm Nor in fact was Clark
harmed
Although Clark testified at length concerning this
matter, in general her testimony was conclusionary and
not based on sufficient credible facts to support the Re
spondent s contention that Shockley engaged in serious
acts of picket line misconduct
Accordingly I conclude that by denying Shockley re
instatement the Respondent violated the Act, and I shall
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
recommend an appropriate order of reinstatement and
backpay
The principal allegation of picket line misconduct
against Earl Smith involves an incident that occurred
about 6 p in on 20 March, where it was reported that
Smith made some very obscene comments to employee
Linda Torres as she was leaving work
Torres testified that she reported this incident to Secu
my Officer Joseph Osborne who drafted a complaint
report On his report he stated he asked Torres to identi
fy the individual in question, which she did Then Os
borne in turn contacted Security Officer Miller and
pointed out the individual to Miller to get a name identi
fication Miller testified that the individual pointed out to
him by Osborne was Earl Smith
Torres does not know and could not identify Smith as
being the individual who made the comments to her
Miller was not present during this event and did not take
the statement from Torres, nor did Torres identify her
verbal assailant to Miller Rather, Torres made the iden
tification to Osborne who in turn sought help from
Miller Osborne did not testify
There is a serious and fundamental lacking of eviden
teary connection between the person Torres testified
made the verbal assault on her and the ultimate identifi
cation of Smith as being the one who allegedly commit
ted this act At best, the chain of identification is estab
fished through hearsay evidence Although such may be
sufficient to support a good faith belief that Smith en
gaged in the conduct alleged, it does not suffice to prove
the matter
I was impressed with Smith s demeanor He testified
that he did not in fact make the statements attributed to
someone by Torres In view of this credible denial and
the lack of persuasive competent evidence that he in fact
was the one who did so, I conclude that the Respondent
failed to establish that Smith committed this particular
act of misconduct Such cannot be a basis for Respond
ent s subsequent denial of reinstatement of Smith
The Respondent presented evidence of two other inci
dents allegedly involving Smith on which it apparently
also based its decision not to rehire him Security Officer
Ralph Miller reported that on 22 March about 6 15 p in
Earl Smith drove his black car all the way into the
loading dock, blew his horn and backed out Although
Smith credibly denied having engaged in any such act at
any time during the course of the strike even if it oc
curred as reported by Miller, it is too trivial to be con
sidered egregious conduct of a nature to deny one his
protection under the Act
Finally, Security Officer Helms reported that on 3 Oc
tober it was reported to him that Earl Smith followed
the hotel van as the van was taking nonstriking employ
ees home The report states variously that the driver of
the van was either David Phillips or Mark Davis There
is, however, no detail in the report nor testimony from
the driver of the van suggesting exactly what it was that
Smith was supposed to have done, and how long he did
it
Smith testified that on one occasion in the early days
of the strike, he did follow the hotel van for approxi
mately a mile but that he did not follow it to employees
homes
Even accepting the statement set forth in the security
report as accurate , and accepting Smith's admission con
cerning this event, it appears to be too insubstantial to
justify denying one his rights under the Act Perhaps
there is an implied threat associated with a striking em
ployee following a van of employees, if in fact the van
was full of employees at the time However, Smith fol
lowed the van for such a short period of time as to
negate whatever threat might be implicit in this In short,
I simply do not believe there is sufficient evidence of
egregious picket line misconduct associated with follow
ing the van as to justify the Respondent denying Smith
reinstatement
Accordingly, I conclude that the Respondent violated
the Act by refusing to recall Smith and I shall recom
mend an appropriate reinstatement and backpay order
Similarly, the principal allegation of misconduct
against John Swain is his having followed the hotel van
on 10 October
The Respondents evidence concerning this matter is a
report by Chief of Security Edward Mills, reporting
what he had learned from employee Willie Foster The
report states that Swain, who was subsequently identified
from pictures, followed the van some distance to the
home of employee Karen King
Although Swain testified that he followed the hotel
van for a distance of some 2 miles he stopped at a red
light and the van went on He testified, credibly I be
lieve, that he did not follow the van to any employee s
home The basis of the report that Swain followed the
van to Kings house is unknown Mills did not testify
concerning this particular report nor did any of the ap
parent witnesses such as King or Foster, testify
In view of the paucity of evidence offered by the Re
spondent concerning this, and given Swain s generally
credible testimony concerning following the van I con
elude that the event occurred as testified to by Swain
that on one occasion he followed the Hotel van for ap
proximately 2 miles and then ceased As with a similar
incident involving Earl Smith, I conclude that this event
is simply too insubstantial an implied threat to deny
Swain protection of the Act Under other circumstances
the act of following a hotel van might be considered se
rious misconduct, but here it was not
Swain is named as one of three strikers allegedly in
volved in starting a leaf fire about 2 15 a in on 8 No
vember (Lanier and Cotton are the other two) And,
along with Lanier and Cotton, Swain is also alleged to
have thrown apples at two security guards on 8 Novem
ber As the discussion regarding Lanier and Cotton con
cerning this event is applicable to Swain, I do not be
lieve that the Respondent established that these events
occurred or if they did, that they were sufficiently sen
ous to justify denying a striker his protection under the
Act
Swain is also included in Crandall s report of 18 Octo
ber where he stated that a rock was thrown about 3 35
a in against the garage door Crandall reported that he
saw Wade, Cotton and Swain standing in front of the
HOTEL ROANOKE 219
garage after he heard the rock hit This incident was re
ported by Security Officer Benton Nestor, presumably
the hotel security officer to whom Crandall made his
report As above, I do not believe that this report of
Crandall is sufficient to establish that Swain threw a rock
or otherwise engaged in a serious act of picket line mis
conduct
I conclude that none of the events reported, in which
Swain's name appears , are of sufficient seriousness or
were established with sufficient credibility so as to justify
the Respondent in denying Swain reinstatement follow
ing the close of the strike I conclude that by denying
Swain reinstatement the Respondent violated the Act,
and I shall recommend an appropriate backpay and rein
statement remedy
Robert Tankesley was apparently denied reinstatement
based on an event in which he participated during the
evening of 3 October C Brown Pearson testified that
he arrived at the Hotel about 10 p m on the evening of 3
October to attend a function As he drove into the hotel
parking lot he was stopped by several individuals He
asked them what the problem was, and they told him
that they were on strike and not to go into the Hotel At
that time somebody mentioned that if he did, something
would happen to his car There ensued a discussion con
cerning the strike and why employees were on strike
Toward the end one striker stated, Get out of here Just
don t be surprised if your car gets all torn up Pearson
testified he said, Well, wait a minute, don't talk about
doing anything to my car' Pearson went on to testify
that an individual ran around the back of his car and up
to the door on the driver's side and jerked the door
open Pearson then reached for a 22 caliber pistol which
he has a permit to carry and which was in the car at the
time He pointed the pistol at the individual Thereafter,
two other strikers pulled the one away who had opened
the door
Pearson then went into the Hotel, found a security of
facer made a brief report then checked in and went to a
social event He returned to the security area shortly
thereafter At this time , a Roanoke city policeman was
there with Robert Tankesley, who Pearson identified as
being the individual who had pulled open the car door
The policeman interrogated Pearson concerning his right
to carry the pistol, and then left
Tankesley and fellow striker John Burke testified to
this incident Both denied that Tankesley ran around
behind Pearson s car or opened the driver s side door
and both denied any statements were made concerning
potential damage to Pearson s car Tankesley did admit
that he told Pearson I hope you have four flat tires
when you come out
There is a direct credibility conflict concerning wheth
er in fact Tankesley opened Pearson s car door On this
issue I credit Pearson His testimony was candid, inter
nally consistent, and not apparently subject to exaggera
tion As far as I am able to determine Pearson is a disin
terested witness with no stake in the outcome of this
matter And generally, I found his demeanor credible
Tankesley of course, does have a stake in the outcome
of this matter, and generally his testimony did not appear
so candid Burke's testimony is not particularly defini
tive In testifying to the confrontation Tankesley had
with "the man who pulled the gun out,' Burke testified,
I wasn t looking too much at what was going on
anyway " I simply cannot believe that one s attention
would not be riveted to a confrontation which resulted
in a pistol being produced I do not credit Burke's at
tempt to corroborate Tankesley's denial of his participa
tion in the confrontation
I conclude that the event occurred substantially as tes
tified to by Pearson After threatening possible physical
damage to the car, Tankesley gave immediacy to this
threat by approaching the car and opening the door on
the drivers side Notwithstanding that Tankesley's act
was apparently met by a superior reaction, I conclude
that Tankesley did in fact engage in an egregious act of
misconduct on the picket line sufficient to conclude that
he thereby lost protection of the Act I therefore con
clude that the Respondent did not violate the Act in re
fusing to reinstate Tankesley, and I shall recommend that
this portion of the consolidated complaint be dismissed
It appears that Michael D Taylor was denied reinstate
ment because of two reports of his having thrown ob
jects onto hotel property (There is also a report of the
Taylor boy" participating with Vera Hill in her alleged
act of trespassing and abusive speech, supra Suffice it
that there is nothing in the report nor in the testimony of
Ralph Miller, the security officer who wrote it, to sug
gest whether Michael Taylor was in fact the Taylor
boy " Accordingly this incident without more, could
not be the basis for denying him reinstatement )
Throwing objects onto company property can be sera
ous or trivial, depending on the object and the attendant
circumstances Therefore, even accepting the reports of
Security Officer 0 Neal, dated 7 October and 12 Novem
ber, relating to Michael Taylor having engaged in
throwing an object," the Respondent must further show
that the object thrown posed at least a potential chance
of personal or property damage
Although 0 Neal testified at length, he really did not
expand on his written reports in any substantive way
The report dated 7 October states that he observed
Taylor throwing an object towards Wells parking Mr
Nestor [another security officer] and I could hear the
object strike one of the cars that was parked at Wells
Michael Taylor threw two objects towards Wells park
ing lot striking cars 0 Neal apparently did not investi
gate whether in fact there was damage done to the cars
although he did report that he heard or saw the object
strike the cars Presumably, had Taylor in fact thrown an
object with such force as to strike a car and cause it
damage, that damage would have been apparent to
O'Neal who would reported it Why O'Neal did not fur
ther investigate this incident is unknown
Similarly, O'Neal reported that Taylor and Vera Hill
threw an object at the hotel van as it drove by, and I
could hear the sound of glass hit the street ' In testimo
ny 0 Neal stated And they just threw the glass to
wards the van, as if they were trying to break the glass
so that the van could run over it
Presumably the security officers were instructed to
make complete investigations Thus, if in fact Taylor
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threw a glass object which broke as it hit the street or
the van which is the import of 0 Neal s report and testa
mony then there should have been some evidence of it
which he would have reported Again there is no indica
tion that in fact the van was damaged, or what in fact
was thrown by Taylor
Finally, 0 Neal reported again on 12 November that
he saw Taylor throw an object that hit the roof of the
old garage, and he heard the sound of glass There is no
indication, however of whether there was in fact
damage done or what in fact Taylor was supposed to
have thrown The absence of such facts from the report
suggests they were not deemed helpful in making a case
against Taylor In other reports, where detail appears
helpful, it is included
Given she conclusionary nature of O'Neal s report and
the fact that a more definitive investigation was not
made concerning the objects allegedly thrown by Taylor
and the presumed damage done I conclude that the Re
spondent has not presented sufficient persuasive evidence
to establish that any throwing incident which Taylor
may have participated in was of such a serious nature as
to deny him protection under the Act Accordingly I
conclude that by refusing to reinstate Michael Taylor
the Respondent violated the Act and I shall recommend
an appropriate backpay and reinstatement remedy
T Arthur Taylor was also denied reinstatement As
with the others who allegedly engaged in misconduct,
the Respondent does not state precisely the basis of his
denial
As noted above, in a report dated 7 December by Se
cunty Officer Miller concerning trespassing plus abu
sive language, it is alleged that the Taylor boy chimed
in also Even if this report establishes sufficient acts of
misconduct to justify denying reinstatement (which I do
not believe), there is insufficient identification to associ
ate Arthur Taylor with the alleged activity Miller did
not testify that Arthur Taylor was one who participated
and Taylor denied he in fact did so Thus, I conclude
that the Respondent failed to establish Taylor s participa
tion in the alleged acts of 7 December
Security Officer 0 Neal reported that on 5 October
about 2 a in he observed Arthur Taylor along with sev
eral other strikers walking near the Wells parking lot He
reported that he observed Taylor and one other throw
some kind of object or objects out to the parking lot
The police were called and Taylor and the other striker
were searched At this time Taylor produced an egg
which O'Neal reported as being raw, and which
Taylor testified was hard boiled
There is no indication by O'Neal either in his report or
in his testimony what the nature of the object was which
was supposed to have been thrown on the parking lot
Nor is there any indication that he made an effort to find
out There is no evidence at all that the alleged act re
ported by 0 Neal actually or potentially was the cause of
personal or property damage, nor, indeed, that Taylor
did anything more than make a motion which is normal
ly associated with throwing The fact that Taylor had an
egg in his pocket does not tend to prove that he engaged
in any act of picket line misconduct After all people do
eat eggs
From the Respondents evidence regarding this matter
I conclude that it failed to establish a factual basis that
Taylor engaged in any act of egregious misconduct
which would justify denying him reinstatement Accord
ingly, I conclude that by refusing to reinstate Taylor, the
Respondent violated the Act and I shall recommend an
appropriate reinstatement and backpay order
That unreliability of the incident reports establish
actual facts (as distinguished from giving the Respondent
a good faith belief), is demonstrated by 0 Neal s report
in which he stated specifically that Taylor was found to
have in his possession a raw egg On cross examination
0 Neal was asked
Q You don t know whether the egg was raw or
whether it was hard boiled, do you?
A No
Although this may seem insignificant the fact is that
O'Neal reported more than he actually observed Why
he did so is unknown, however, it is noted that common
ly when it comes to throwing things, it is raw eggs and
not hard boiled eggs which are the missiles Raw eggs
make more of a mess
In denying reinstatement to Samuel Terry, the Re
spondent relied solely on a statement given by Shawn
J Moore to Security Chief Mills dated 8 October The
gist of this statement concerns certain allegedly threaten
ing remarks made by Terry to Moore as Moore was
leaving work at the Hotel about 12 07 a in on 8 October
Moore was not called as a witness, nor did the Re
spondent offer the testimony of anyone else who might
have observed this alleged event
Terry testified, credibly and uncontrovertably, con
cerning a discussion he had with Moore during the early
days of the strike Terry testified that he and Moore are
longtime friends and they live in the same neighborhood
Indeed Terry named a son after Moore And Terry
knows Moores parents and grandparents Thus when
Terry observed Moore leaving the Hotel premises he did
call him across the street and they did have a discussion
concerning the basis for the strike at which time Terry
told Moore to be careful There ensued a discussion in
which Moore stated that he was not afraid that he had a
gun and so forth
Under these circumstances particularly including the
fact that Moore and Terry are longtime friends, I do not
believe the statements Terry made to Moore can be con
sidered threatening
I discount Moore s statement to Officer Mills because
it is hearsay and Moore was not called as a witness The
statement cannot be accepted particularly in the face of
Terry s credible and uncontroverted denial of the precise
statements attributed to him The conversation as testi
fled to by Terry was not of such a nature as to amount
to egregious picket line misconduct
Accordingly, I conclude that by denying Terry rein
statement the Respondent violated the Act, and I shall
recommend an appropriate reinstatement and backpay
remedy
The name of John Wade Jr appears in several incident
reports The alleged activity summarized in these reports
HOTEL ROANOKE
apparently forms the basis of the Respondents denial of
reinstatement to him The General Counsel and the
Charging Party contend that the Respondent failed to es
tablish by credible evidence that the incidents occurred
as stated in the reports, and/or that the activity alleged is
not sufficient to deny one reinstatement Specifically, the
Charging Party contends that Wade was denied rein
statement not because of any of the incidents alleged in
the reports, but because of his relationship, the precise
nature of which was not stated, with Union President
James Wade
For the reasons given below, I conclude that the Re
spondent was justified in denying Wade reinstatement
As with so many of these cases, there is a credibility
conflict between the Respondents witnesses (normally
security guards) and Wade In such event I specifically
discredit Wade I found his demeanor to be that of an
unpersuasive witness His testimony was cutesy and in
some cases outright implausible For instance, he stands 6
feet 1 inch and weighs 270 pounds In one incident he
was referred to as big John He denied that he was
ever called big John
Although Wade s name appears on many of the mci
dent reports which have been discussed previously, the
most serious allegation against him is an event which Se
cunty Officer Carlisle reported as having occurred on 7
October about 4 08 am Carlisle wrote that as he was
going through the parking lot, in response to a radio
message from another security officer, I observed a
rock coming over the fence When I raised myself up I
observed John William Wade releasing a rock that hit a
Buick station wagon Carlisle elaborated in his testimo
ny concerning this incident
When I reached the next to last row of cars at the
corner, I saw an object coming over the fence I
raised myself up to run towards the corner when I
seen one subject like a basketball hook shot a rock
about the size of half a buck just releasing it from
his hand coming over and landing on a windshield
of a Buick station wagon
The individual throwing the rock was identified as
Wade Unlike other incidents reported of throwing ob
jects, where there was no further investigation or identi
fication of the object or whether damage had been done
this incident is specific in detail Wade threw a large
rock that hit an automobile which I conclude presump
lively caused some property damage sufficient to deny
Wade his right to reinstatement
As indicated, there is a direct credibility conflict con
cerning Carlisle s testimony and Wade s denial, 'I didn't
throw no rocks that day, although Wade did remember
having heard a car being hit with some kind of an object
on the date indicated
Another incident involves an allegation of verbal abuse
directed by Wade to employee Wanda Davis on 22
March Although the incident is vulgar and amounts to
verbal sexual abuse and is certainly not to be condoned,
there is in it nothing particularly threatening nor is it the
type of activity that normally would justify denying the
striker his right to reinstatement I do however, credit
221
Davis assertion concerning the event and specifically
discredit Wade s denial that he made the comments to
Davis attributed to him
The other incidents attributed to Wade are much less
serious and would not generally be of the type or char
acter to deny one reinstatement
Nevertheless, I conclude that the one incident of spe
cific identifiable property damage from throwing a rock
is sufficient to deny Wade protection of the Act I there
fore conclude that the Respondent did not commit a vio
lation by not recalling Wade, and I shall recommend that
this portion of the consolidated complaint be dismissed
Finally, Margaret Watson was denied reinstatement
presumably because she engaged in misconduct her
name being on the list of those whom the Respondent
did not recall for that reason However, so far as my pe
rusal of the record reveals, her name appears on no mci
dent report There was no testimony presented by the
Respondent concerning any acts which she allegedly en
gaged in, nor did the Respondent argue orally or on
brief concerning any specific acts she allegedly commit
ted that would justify denying her reinstatement
Based on this, I conclude that the Respondent present
ed insufficient evidence to justify its denial of reinstate
ment of Watson I therefore conclude that, by denying
her reinstatement the Respondent committed a violation
of the Act and I shall recommend an appropriate rein
statement and backpay remedy Watson was reinstated
on 21 March 1985
5 Discriminatory reinstatement of strikers
It is alleged (as amended at the hearing) that 39 strik
ing employees as well as other employees whose names
are presently unknown to the undersigned' were discn
minatorily denied reinstatement in violation of the Act
It is alleged , and argued, essentially that in recalling
strikers the Respondent did not follow seniority and, on
returning to work, these individuals were denied their se
nionty as well as other rights and benefits, particularly
including shift preference and insurance Though not
separately alleged, the General Counsel and the Charg
mg Party additionally contend that by discriminating
against certain returning strikers with regard to shift as
signments and the like, the Respondent also violated the
strike settlement agreement
It is axiomatic that an employer is not permitted to
discriminate against returning strikers, and where it does
so then it has the burden of proving a substantial business
justification in order to avoid the sanctions of the Act
NLRB v Great Dane Trailers, supra Under Great Dane,
the fact of treating returning strikers differently from
nonstrikers or other employees carries with it proof of
the proscribed motive Thus to satisfy the burden of
proof, the General Counsel need only show that return
ing strikers were in some way treated differently than
nonstrikers or strike replacements Should the General
Counsel establish such facts the burden shifts to the Re
spondent to show a substantial business justification for
having acted the way it did
Much testimony and voluminous records were intro
duced by counsel for the General Counsel
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In paragraph 27 of the consolidated complaint it is al
leged
Since on or about April 16, 1984 the exact dates
being unknown to the undersigned , Respondent re
called employees named in Appendix B, who en
gaged in the strike described above in paragraph 19,
back to work at Respondents facility
Also, paragraph 28 states
Since on or about April 16, 1984, Respondent
failed and refused to reinstate the employees de
scribed above in paragraph 27, as well as other em
ployees whose names are presently unknown to the
undersigned , in seniority and to their former posi
tions , and has denied their seniority rights and other
benefits
Initially , it should be noted that a letter of understand
ing, dated 16 April and attached to the contract , states in
material part
1 There will be a minimum of one hundred sixty
(160) full time jobs at the employer Employees in
these positions will be considered full time employ
ees as referred to in Article I, Section 4, of the
agreement
2 Employees who are on the payroll of the em
ployer on or before 1 October 1983 will be placed
into their jobs according to their seniority and there
classification Any such employees whose seniority
is not sufficient to claim these full time positions
will be able to claim whatever schedules and/or
hours that become available according to their se
nionty in that classification
There is no allegation nor argument from the General
Counsel or the Charging Party that the Respondent
breached these provisions of the letter of understanding
The essence , as I understand it of their argument is that
those striking employees who were recalled have not re
ceived as many hours as they would have received had
the status quo been absolutely preserved by the employ
er As will be discussed in more detail below the Gener
al Counsel argues that the employment records of the
various departments show that the Respondent has al
lowed junior employees proportionally larger number of
hours than they had received prior to the strike Re
spondent tended to skew its pre and post strike seniority
resulting in closer earnings between old and new em
ployees This clearly favors replacement employees at
the benefit of strikers "
The strike settlement agreement, as noted above,
states , inter alia
1 All striking employees shall be recalled to
work in the classification which they held prior to
striking , or its equivalent , by seniority within three
(3) months from the date of the ratification of the
collective bargaining contract , with the exception of
the employees as specified in paragraph 2 herein
(the alleged strikers who engaged in misconduct)
By this provision , the Respondent in effect argues that
the nature of its business was such that it could not recall
all the strikers at one time but had to wait until business
justified returning them to work Even then it could not
go strictly by seniority in recalling specific employees
because of the exigencies of its business Accordingly,
the Respondent argues that in negotiating the strike set
tlement agreement it agreed with the Union that it could
have a 3 month period within which to reinstate all the
stnkers whom it deemed eligible The General Counsel
contends this provision , lawful on its face , was unlawful
ly implemented Therefore it is not binding and should
not be considered by the Board to exonerate the Re
spondent
Given the nature of the Respondents business, I con
elude that the agreement to reinstate strikers over a
period of 3 months was not unreasonable Although
there is nothing particularly sacrosanct about seniority,
in labor relations matters all else being equal , normally
seniority is the prevalent consideration The point is,
however , the mere fact that an employer recalls strikers
out of seniority , particularly in an industry such as this,
does not prima facie demonstrate that it acted with a dis
cnmmatory motive There is nothing inherently discnmi
natory about recalling striking employees of a hotel over
a 3 month period as business demands dictate, nor is
there evidence in this matter to support a conclusion that
the Respondent should have recalled strikers in a differ
ent order than it did Thus , to the extent the General
Counsel contends that the order in which strikers were
recalled was unlawful , I find no violation
The General Counsel also contends that by changing
the method of scheduling , the Respondent now gives
more hours (and therefore earnings) to junior employees
at the expense of senior ones
Neither the General Counsel nor the Charging Party
specifically briefed this issue other than to note as the
General Counsel did, that in its recall of strikers the Re
spondent tended to skew its pre and post strike senion
ty resulting in closer earnings between old and new em
ployees However at the trial of this matter counsel
for the General Counsel stated that the allegations of
these paragraphs relate to the Respondents denial of in
surance benefits to returning strikers And implicit in the
arguments and briefs of counsel is that the reinstatement
of strikers during the 3 month period some of whom
were called back out of seniority , was discriminatory
The evidence reveals and the Respondent admits that
in fact some employees (indeed many) were recalled not
always in order of seniority Respondent also admits that
during the course of the strike and consistent with its ne
gotiating position and its management right under the
new contract it did in fact change its method of schedul
ing so that less senior people would get more work than
they had previously
Thus the total record supports the conclusion that (a)
strikers were recalled without consideration to seniority,
however by the end of 90 days after execution of the
strike settlement agreement , all strikers whom the Re
spondent had not determined to refuse to reinstate were
recalled , and (b) the method of scheduling , particularly
HOTEL ROANOKE
in the banquet department, changed such that some
junior people got more hours, which had the effect of re
ducing the hours available for more senior people
There is, however, no evidence that any individual
listed in Appendix B of the consolidated complaint spe
cifically was discriminated against on returning to work,
either in terms of hours available or other rights and ben
efits There is no evidence that any returning striker was
denied insurance or other benefits Whatever changes in
rights and benefits any returning stnker may have suf
fered at the close of the strike were common to all em
ployees and were based on the contractual provisions
agreed to on 16 April by the Union There is simply no
evidence that the Respondent engaged in any discrimina
tory acts against any specific returning striker or any
group of returning strikers
Although the method of scheduling the banquet de
partment changed, according to the testimony of Jack
Abbott, he further testified that this was necessary in
order to ensure a more efficient operation in the banquet
department He credibly testified that in order to serve
more adequately the functions required of the banquet
department, it was necessary to have 'a broader base"
(people who work regularly) and in order to achieve this
it was necessary to call in on a regular basis people with
less seniority than some not called The effect of this
would be that some junior people would receive hours at
a time when senior people would be available for work
I conclude that the agreement to recall strikers over a
3 month period contemplated allowing the Respondent
to recall them, if indicated, out of seniority By making
such an agreement the parties did not engage in an act
that was unlawful Nor do I conclude on the facts
before me, that the Respondent used a lawful strike set
tlement agreement to discriminate against strikers be
cause they had engaged in protected activity Given the
nature of the industry, it does not seem unreasonable
(and therefore not patently discriminatory) to have a
fixed period of time within which strikers could be re
called without considerations of seniority
Similarly, I conclude that the Respondent amply ,juste
feed the basis for changing the method in which it sched
uled the banquet department as well as others Thus by
scheduling them in accordance with the new method, the
Respondent did not discriminate against individuals be
cause they had engaged in protected activity Although
it may be the case that some individual returning strikers
suffered some loss of earnings as a result of the change in
scheduling procedure, whatever discrimination is ether
ent in this was, I think rebutted by the Respondents evi
dence, particularly the credible testimony of Abbott
Further, some returning strikers benefited by the change
in scheduling method Such belies a conclusion that strik
ers were treated detrimentally in favor of nonstrikers
Finally, there is no evidence in the record that return
mg strikers lost insurance or other rights and benefits be
cause they had engaged in protected activity
It may well be that certain returning strikers, because
of the lowness of their seniority and the lack of available
full time jobs, ended up being part time employees And
it may be that some of those individuals as a result lost
benefits which are applicable only to full time employ
223
ees Although no specific individual was demonstrated to
have been in such a position, even if such had occurred,
on the facts before me, I do not believe that the Re
spondent violated the Act Again, based on the agree
ments between the parties and the nature of the Re
spondent's industry, it appears that in fact all strikers
were taken back, that the Respondent agreed to 160 full
time jobs, and that others would be filled by part time
employees The Respondent further agreed and there is
no evidence that this was breached, that no strike re
placement would be given preference in a job to any re
turning striker
On the basis of the above, I conclude that the General
Counsel failed to establish by a preponderance of the
credible evidence that the Respondent discriminated
against those individuals whom it actually recalled to
work, and I shall recommend that these allegations of
the complaint be dismissed
D The Refusal to Furnish Information
On 30 May and again 8 June, Wiley M Craft, local
counsel for the Union, wrote representatives of the Re
spondent (Dunn and Kipp, respectively) asking for infor
matron concerning those individuals who had not been
reinstated and the reasons for the Hotel s actions In spe
cific, in his letter of 8 June to Kipp, Craft wrote, inter
alia
We would request that you advise us, either me as
the legal representative of the individual employees
and the Local Union, the Local Union or the indi
vidual employees of the status of such employees at
the hotel, and if they have been discharged from
their employment, the reason or reasons for such
discharge This way we can review each case of
discharge and decide which merits hearing before
the N L R B
Kipp wrote back that the matter had been turned over
to legal counsel, and on 24 July Craft wrote Gardner
who responded on 25 July in pertinent part
Miss Dunn has told me that she documented
carefully the reasons why each employee was not
called back since the settlement of the strike She
presented this evidence at the unemployment com
pensation hearings and I understand you were
present at most of these
In addition there were replacements in each of
the job positions these employees formerly held It
is my understanding that Miss Dunn used the Na
tional Labor Relations Board guidelines in this
regard, but if you believe this is not correct, the ap
propnate course of action would be to discuss the
matter with a representative of the Board
It is clear from the undenied testimony of Craft, as
well as this correspondence, that the Union in fact made
a request for certain information concerning employees
in the bargaining unit who had not been recalled at the
end of the strike, and that this information was not fur
nished by the Employer
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although some of the information requested may in
fact have been in possession of the Union through other
sources (the unemployment compensation hearings), nev
ertheless the Respondent is required under the Act to
furnish the Union all relevant information requested nec
essary for the Union to perform its duties as the statutory
representative of employees See generally NLRB v
Acme Industrial Co, 385 U S 432 , 435 (1967)
The Respondents failure to furnish the information re
quested in this case is a clear violation of its statutory ob
ligations to bargain in good faith with the representative
of its employees , and by refusing to furnish this informa
tion , the Respondent violated Section 8(a)(5) of the Act
I shall recommend that it cease such activity and shall
recommend an appropriate remedial order
E The Change in Past Practices
In paragraph 34 of the complaint , it is alleged that on
18 September the Respondent notified the Union it
would no longer be allowed to post notices on the bulle
tin board , and in paragraph 35, it is alleged that on 19
September the Respondent hired a new employee with
out posting the job for bid as had been its past practice
It is alleged by these acts that the Respondent unilateral
ly changed past practices and accordingly violated Sec
tion 8 (a)(5) of the Act
Neither the General Counsel , the Charging Party, nor
the Respondent briefed these allegations A perusal of
the record has disclosed no evidence tending to support
factually the basis of these allegations Beyond that, it is
noted that whatever may have been the Respondent's
past practice , the parties negotiated a new collective bar
gaining agreement which was meant to be a comprehen
sive document concerning how all matters , including
those set forth in these paragraphs of the complaint,
would be treated Specifically in the new collective bar
gaining agreement it was agreed that past practices
which were not specifically set forth in the collective
bargaining agreement or letters of understanding would
not prevail Thus, even if it could be found that the Re
spondent had a past practice as alleged in these para
graphs of the complaint and that on 18 and 19 Septem
ber it acted contrary to those past practices , nevertheless,
I could not , without more , conclude that the Respondent
thereby violated Section 8(a)(5) of the Act
On these considerations , I conclude that the General
Counsel failed to establish by a preponderance of the
credible evidence the factual or legal basis to support its
allegation that the Respondent violated Section 8(a)(5) of
the Act by unilaterally altering past practices in Septem
ber 1984 I shall recommend that paragraphs 34, 35, and
36 of the complaint be dismissed
F The Suspension of Bettie J Smiley
Bettie J Smiley according to her testimony, was sus
pended on 3 July 1984 at 2 15 p in by Karen Dunn be
cause , as best Smiley was able to determine, Dunn had
accused her of organizing for the Union while on the
job Apparently , following Smiley's suspension the Corn
pany further investigated this matter, contacted Smiley
and she was reinstated on 11 July , but was never paid
for the roughly 8 days of lost work
Although Dunn testified generally concerning this
matter , the Respondent brought forth no evidence rebut
ting Smiley s testimony that in fact she was suspended on
3 July Nor did the Respondent offer any explanation of
why Smiley was suspended or any nondiscriminatory
justification for it
Given that Smiley was one of the most active partici
pants on behalf of the Union prior to the strike, was an
officer in the Union and participated in the events fol
lowing the strike , and given her generally credible and
undenied testimony that Dunn made references to her
union activity at the time she was suspended I conclude
that the General Counsel established , prima facie at least,
that Smiley was suspended in violation of Section 8(a)(3)
of the Act
The Respondent did not present any evidence to meet
its burden of establishing that Smiley would have been
suspended even absent her union activity Accordingly, I
conclude that the Respondent failed in its burden of
proof to meet the General Counsels prima facie case
See Wright Line, supra
Accordingly , I conclude that by suspending Bettie J
Smiley on 3 July 1984, the Respondent violated Section
8(a)(3) of the Act and an appropriate backpay remedy
will be recommended
G The Threat to James Wade
It is alleged that on 10 July the Respondent through
Karen Dunn , informed the Union s secretary treasurer
that if he returned to Respondents facility he would be
arrested This alleged event occurred when Wade met
with Dunn and other representatives of management
concerning the Smiley suspension During the course of
this meeting , Wade testified
Ms Dunn said to me , she says , It is a shame-
an old man like you to be as mean as you are I
told her I says Well Ms Dunn I in old but I
don t have far to go but you 're young and with the
principals [sic] and attitudes that you have, you
need to change them if you plan to be in the white
election
She told me then to get out and by that time we
was all tired so I walked out of the room As I was
walking out the room she said If you come back
in again, we're going to have you put in jail
Dunn testified about this meeting stating that, The
purpose of the meeting was that I wanted to talk to B J
about some of the things I had heard in her department
that alarmed me' (Dunn denied that Smiley had been
suspended and that this meeting concerned her reinstate
ment ) She went on to testify that Wade was disruptive,
and ultimately Wade asked if she wanted him to leave
Dunn testified she told him no, but that if he did not
want to continue the meeting but Smiley did she would
continue to talk to Smiley In answer to the direct ques
tion of whether anything was said about having anyone
arrested Dunn testified, No The only thing he said was
HOTEL ROANOKE 225
you're telling me to leave and I said, no, I in not telling
you to leave
The composite of the testimony is that in fact there
was a heated discussion on 10 July in which Wade,
Smiley Dunn and others participated Dunn's and
Wades versions of this meeting differed to some extent
Smiley generally corroborated Wades statement that
Dunn made some reference to Wade being old and being
like he was and she testified concerning Wades corn
ment to Dunn Smiley, however did not testify that at
any time Dunn told Wade anything along the lines that
he would be arrested if he returned to the Hotel
Given that this was a heated meeting , that the state
ment attributed to Dunn by Wade at best was ambigu
ous, and that Smiley did not confirm it, lead me to con
elude that the General Counsel did not establish by cred
able evidence that Dunn made any kind of a threat to
Wade that he would be punished for engaging in protect
ed activity Accordingly, I conclude that the General
Counsel failed to establish by a preponderance of the
credible evidence the factual basis for the allegation set
forth in paragraph 30 of the complaint, and I shall rec
ommend that it be dismissed
H The Other 8(a)(1) Conduct
The complaint alleges that several of the Respondent's
management personnel engaged in various acts violative
of Section 8(a)(1) prior to the strike These acts are pri
manly threats to refuse to bargain in good faith, loss of
jobs and the like In addition, it is alleged that following
the strike, during orientation meetings, Karen Dunn
made various statements to employees violative of Sec
tion 8(a)(1), and that following the strike Billy Davis also
made certain unlawful statements to returning strikers
The facts and analysis of each allegation of 8(a)(1) activi
ty will be treated seriatim as it appears in the consolidat
ed complaint
1 Robert Holden
During the material times involved in this matter,
Robert Holden was the comptroller of the Respondent
At the time of the trial he was employed by a competi
tor Holden was called as a witness by the Respondent
and testified at length however he was not interrogated
concerning any of the allegations of 8(a)(1) statements by
him, and thus neither affirmed, denied, or explained the
testimony of the General Counsels witnesses I therefore
rely in making the following findings concerning the al
legations relating to Robert Holden on the testimony of
witnesses for the General Counsel
Dorothy Hedge testified that on three occasions imme
diately prior to the strike Holden, who at the time was
her supervisor, asked her if she was planning on going
on strike On the first two occasions she answered that
she planned to go out, and nothing more was said The
third time, however, the night before the strike com
menced, she said
I said yes, I was going out on strike And he said,
you know you won't have a job if you do? And I
said, you mean to tell me that my work record
hasn t been good enough that I would have a job
no matter which way this strike, whether we won
or lose He turned and didn't answer me and
walked out That ended the conversation
Vickie King testified that about 3 weeks prior to the
strike she had a conversation with Holden , who was her
supervisor at the time during which the possible strike
came up,
and I asked him about the benefits because at the
time, I was six months pregnant, and I was really
worried about them, you know, if I did walk out on
strike, and he said that if I did walk out on strike,
don t plan on coming back because the Hotel wasn t
planning on signing any contract
Betty Shockley joined the conversation and then
Holden said that I'd be out on the picket line for a long
time because, you know, like I said, the Hotel was not
planning on signing a contract, and I said why, and he
said well, the Hotel is trying to do away with the
union
In testifying concerning this event, Betty Shockley
stated that she was kidding Vickie King because King
was pregnant about having to have help carrying the
picket sign Holden said, I hope you girls aren t dumb
enough to go out on strike because the Hotel s not going
to sign a contract and there s not going to be a union'
The testimony of these three employees concerning
what Holden said prior to the strike is generally credible
and was undenied I conclude that prior to the strike
Holden did interrogate employees concerning whether
they planned on striking and followed such interroga
tion with statements to the effect that if they were to
engage in a strike they were in jeopardy of losing their
jobs that the Hotel had determined in advance not to
sign a collective bargaining agreement, and finally that
the Hotel was undertaking a course of action to dissolve
the Union
Although interrogation of employees concerning po
tential union activity and presumably whether or not
they might engage in a strike is not per se prohibited by
Section 8(a)(1) (Rossmore House 269 NLRB 1176 (1984)
enfd sub nom Hotel & Restaurant Employees Local 11 v
NLRB, 760 F 2d 1006 (9th Cir 1985)), interrogation fol
lowed by threats is to tell employees they would lose
their jobs if they engaged in a strike and announcing a
predetermination that the employer would refuse to bar
gain and intended to undermine the Union makes the
total context of the interrogation unlawful
I conclude that the the general tenor of Holden s state
meats to employees prior to the strike including interro
gation of them concerning whether they would engage
in protected activity, along with threats should they do
so, were unlawful within the meaning of Section 8(a)(1)
of the Act I shall recommend an appropriate remedial
order
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Beth Hoffman"
It is alleged in paragraph 6 of the consolidated coin
plaint that in late July, Beth Hoffman, who at the time
was personnel manager, "threatened employees that the
Respondent would cease its collective bargaining rela
tionship with the Union This allegation apparently re
lates to the testimony of Sylvia Wilkerson who testified
that she had a conversation with Hoffman at the waitress
station in one of the Hotel restaurants Wilkerson testi
fled
A Beth Hoffman said shed like to talk to me
about something but first I had to promise her that
I wouldn t tell anyone else in the hotel She said it
was very important that we keep it confidential, so
I agreed
Q Then what happened?
A She said that the Hotel had plans to reopen
the Ad Lip [sic] [the Ad Lib is another restaurant]
and that she wondered if I was interested in a pos
tion down there?
Q What did you say?
A I said no, I in not, I in not interested in work
mg at night
Q Then what happened?
A She said well, that won't be any problem be
cause the room will be open during the day as well
as night You can probably work the same hours
that you are now
Q Then what happened?
A I said well I'll have to think about it and talk
to Allen and-
Q Who s Allen?
A My husband
Q Was anything else said?
A Yes after I said that she said well, don t be
too long with your decision because I 11 be accept
ing applications from outside the hotel and there is
the possibility of a strike
Q Did she say anything else besides the possibili
ty of a strike?
A After that she told me there wouldn t be a
union at the hotel any more
11 On 20 September 1985 counsel for the General Counsel moved to
amend the consolidated complaint by changing the date referred to in
par 6 and adding a par 6 (b) relating to Hoffman The proposed change
in par 6 is not significant Though alleging the proposed addition of par
6(b) was fully litigated counsel for the General Counsel did not indicate
what evidence is relied on to support the allegation nor show that the
Respondent in fact was able to put on a defense to it
On the first day of the trial an oral motion to amend the complaint
with respect to Hoffman was granted with the stipulation that counsel
put it in writing To the extent this is the written version the motion has
been granted though it does not delineate all ways in which Hoffman
allegedly violated the Act nor is the evidence relied on noted Although
the following discussion does not specifically deal with each paragraph of
the oral amendment it does deal with the testimony relating to Hoffman
The General Counsel also moved to substitute new language for that
contained in par 16(b) It appears the substituted language does not make
a substantive change in the allegations but if it does there is no indica
tion that the Respondent had sufficient notice to enable it to put on a
defense
I therefore deny the General Counsels motion to amend the consoli
dated complaint
Hoffman testified that she had many conversations
with Wilkerson but believes the one referred to by Wil
kerson concerned an event in which Wilkerson was ap
parently having personal difficulties with other employ
ees, and Hoffman told her the Hotel was considering re
opening the Ad Lib and that she might want to transfer
to a job there Hoffman denied making the statement
concerning the union contract "I did not discuss the
union contract with employees '
Although the versions of Wilkerson and Hoffman
differ concerning some of the precise words said, gener
ally they appear to have been testifying concerning the
same event, namely, a conversation in which Hoffman
offered Wilkerson the possibility of working at a differ
ent location There is nothing in the subject matter of
such a discussion which would be violative of the Act
The General Counsels allegation regarding this con
versation deals specifically with the contention that Hoff
man said words which, in effect, could be taken to mean
that the Company was going to sever its collective bar
gaining relationship with the Union Even accepting lit
erally the testimony of Wilkerson, such an interpretation
is unwarranted In addition, while Wilkerson appeared to
be a generally credible witness, as did Hoffman, I do not
believe that statements likely to have been made to her
by Hoffman would include threats that the Hotel was
undertaking to cease its collective bargaining relationship
with the Union Such would have been out of context
with the subject matter discussed Hoffman denied
making such a statement
I therefore conclude that the factual proof of this alle
gation is insufficient to find that the employee violated
the Act as alleged in paragraph 6 of the complaint, and I
shall recommend that it be dismissed
3 Herman Turk
In paragraph 7 of the complaint it is alleged that in
August, Turk (a) threatened employees that Respondent
would refuse to sign a collective bargaining agreement
with the Union, and (b) told employees that the Re
spondent would engage in a pattern of conduct designed
to eliminate the Union as the employees bargaining rep
resentative
The only evidence concerning these allegations sug
gested by the General Counsel is in the testimony of
Vickie King, who stated that about 3 weeks prior to the
strike Turk spoke to her and employee Dolores Frazier
King testified
Well, I saw Herman standing there and I walked
over and I asked him about the benefits, if we did
go out on strike what would they be, and he said
they would be the same that the Hotel wasn t
trying to do anything take anything away from us
and, then Delores said something I can't recall
what she said, and to me it sounded like Herman
was getting kind of upset, and he said well the
union will not be there much longer
Although Turk testified to a conversation he had one
afternoon with Dolores Frazier, he did not testify either
affirming or denying King's testimony He did, however,
HOTEL ROANOKE 227
deny the conclusionary allegation that the Hotel `would
refuse to sign a collective bargaining agreement with the
Union'
Although Turk 's statement to King seems to indicate
that the Respondent had undertaken a course of action
designed to eliminate the Union , the statement does not
say so , nor is there a predicate for this statement which
would necessarily mandate that conclusion Given the
paucity of evidence on the allegation set forth in para
graph 7 , therefore , I conclude that the General Counsel
failed to establish the allegations contained therein by a
preponderance of the credible evidence , and I shall rec
ommend that paragraph 7 be dismissed
4 Michael Craghead
The General Counsel contends that the allegations set
forth in paragraph 8 of the complaint relating to Michael
Craghead are proven by the testimony of Shirley Spell
man Spellman was a striker who did not return to work
on being contacted by the Union to see if she wanted her
job back , because she had obtained employment else
where
Craghead was an assistant front office manager and
Spellman 's supervisor at the time Spellman testified that
3 to 5 weeks before the strike , she had a discussion with
him concerning the strike and her concerns She testified
So he was a friend , he is a friend to just about all of
us that worked there , and he said well, he said
They re wanting to get the union out of here
And he said , I feel like the best thing for you to
do is not go out They 11 make accommodations for
you to stay in the Hotel And that was about the
extent of it
Although Craghead denied the conclusion that he
`told employees that the Hotel would engage in a pat
tern of conduct designed to remove the Union as the em
ployees' collective bargaining representative , or that he
made any kind of a threat he did not deny the sub
stance of Spellman s testimony He did confirm that he
and Spellman were and remain friends
Further , Spellman testified as follows
A Well, he [Craghead] wasn t sure as to what
was going on
Q Did he say anything after that?
A But that he knew that if we went out on strike
we wouldn t have jobs
Q Did he say anything besides that?
A Not that I recall
Q Was the statement-
A He said they would make a place for us to
stay
Q Did he say anything about the union
A That they were out to get rid of the union
That was said several times not dust one particular
time , but that was said to me several times They
were out to break the union , that they were going
to get rid of the union
Q Was that said by Mr Craghead9
A Yes, sir
Q Was he, you 're saying , you said he did not
know a whole lot about what was going on
A That he did know that they were out to get
rid of the union
Q That's the way he stated it's
A That's the way he stated it
Craghead did not deny this testimony of Spellman
Although the testimony concerning the predicate for
the allegations in paragraph 8 is somewhat vague, there
can be no question on this record that an admitted super
visor told an employee immediately prior to the strike,
and in discussing the prospects of a strike , that the Com
pany was out to get rid of the Union " Implicitly there
fore , the message relayed to the employee by manage
ment in this respect was that the employer would engage
in a course of conduct designed to remove the Union as
the employees ' collective bargaining representative Such
necessarily tends to interfere with the exercise of em
ployees Section 7 rights I therefore conclude that the
allegations set forth in paragraph 8 of the complaint have
been established
I do not find , however, in this testimony of Spellman a
threat by Craghead that the Company would discharge
and refuse to reinstate individuals who went on strike
Accordingly , I conclude that the allegations set forth in
paragraph 8(b) ought to be dismissed
5 Billy Fields
It is alleged in paragraph 9 of the complaint that in
August , Supervisor Billy Fields interrogated employees
as to their intentions to strike The General Counsel
contends that this allegation is supported by the testimo
ny of John Bratton
Q And what was said?
A Well, he [Fields] wanted to know if we went
out on strike , was I going to work while we was
out on strike
Q And what did you tell him?
A Told him it wasn 't none of his business He d
find out when the time came
Because there is no suggestion in the testimony of
Bratton nor any contention by the General Counsel that
Fields made promises of benefit or threats of reprisal in
connection with this interrogation I conclude that in the
context of this case it does not amount to an unlawful
interrogation within the meaning of Section 8(a)(1) of the
Act As the Board pointed out in Rossmore House, supra
and in subsequent cases , not every act of interrogation
by supervision is violative of the Act
I therefore conclude that the interrogation testified to
by Bratton was not unlawful and I shall recommend that
paragraph 9 of the complaint be dismissed
6 Billy Davis
It is alleged that prior to the strike , Davis interrogat
ed employees as to their intentions to strike " This, ac
cording to counsel for the General Counsel , is estab
228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lashed through Tara Poindexter who testified that Davis
asked her and another employee
I remember he asked were we going on strike You
see, he heard that we were going on strike, and I
said well, we haven't really said we were yet He
said well if you all strike, it's not going to do any
good because this is just a tax write off for EN&W
[sic] That s all it is They probably won t call you
back
Davis categorically denied that he interrogated em
ployees whether they were going to go on strike or in
tended to do so Poindexter testified that Kisha Buckner
was also present during this conversation Buckner tests
feed but was not interrogated concerning whether in fact
Davis made the statements attributed to him by Poin
dexter
This credibility conflict could have been resolved, but
was not, by a witness called by counsel for the General
Counsel From this and Davis' generally credible de
meanor, I conclude that the General Counsel did not es
tablish by a preponderance of the credible evidence that
in fact the conversation took place as testified to by
Poindexter Rather, I conclude that Davis did not, as al
leged, interrogate employees concerning their intention
to strike, nor did he follow up such interrogation with a
statement that the Company would not recall strikers
Accordingly I conclude that the allegations in para
graph 10 should be dismissed
In paragraph 38 of the consolidated complaint, it is al
leged that in May 1984, Davis informed employees re
turning to work from the strike" that they had lost their
seniority to strike replacements' and in July 1984 that
he informed employees that guards would be watching
them because of their participation in the strike' Al
though these allegations were not briefed by any party it
appears that the substance at least of the alleged loss of
seniority was meant to have been established through the
testimony of Gracie Wade
Wade was a banquet department employee who on re
turning from strike, testified that she noticed that she
was not getting too much work, so she confronted
Davis She testified that she asked Davis How did we
stand here because it looks like we re not getting too
much work, and he said-I said is the replacements over
us and he said I m afraid so We were at the bottom of
the list
Davis categorically denied having told returning strik
ers that they had lost their seniority However, he did
testify extensively on cross examination concerning how
returning strikers were treated vis a vis the strike re
placements and the matter of seniority Davis testified,
convincingly and credibly I believe, that it was his im
pression we had 2 or 3 months period, or something
like that to work all of the strikers back in the Hotel,
and we had been told that we had to get rid of all the
other help that we had been working He testified that
because they had the other help they had to get rid of, it
was not necessarily the case that returning strikers would
get their seniority back immediately and that they had 3
months to get all the strikers back and have everything
going like it should be
Davis' detailed testimony is generally consistent with
the strike settlement agreement and, I believe, is a credi
ble recitation, at least of his understanding of how strik
ers were to be returned to work Thus, I do not believe
it credible that he would have told employees something
different-namely, that the returning stnkers had lost se
nionty, as seems to be the tenor of Wade's testimony I
note further that Wade s testimony is rather sketchy and
conclusionary, and I do not believe generally as credible
as that of Davis
Accordingly, I conclude that the General Counsel did
not establish by a preponderance of the credible evi
dence that Davis violated Section 8(a)(1) of the Act by
informing employees that they had lost their seniority to
strike replacements
I was unable to find, on my review of the record, any
testimony concerning the allegations set forth in para
graph 38(b) of the complaint to the effect that Davis in
formed employees that guards would be watching them
because of their strike activity Nor was the testimony on
which this allegation is based pointed out to me on brief
Accordingly, I conclude that the General Counsel failed
to establish by a preponderance of the credible evidence
the allegations set forth in paragraph 38(b), and I shall
recommend that paragraph be dismissed
7 Willie Hurt
Willie Hurt Jr has been employed at the Hotel for 38
years and at the time of the hearing had been the maitre
d in charge of food service for the Regency Room on
the morning shift He is an admitted supervisor, and in
the complaint he is alleged to have committed violations
of Section 8(a)(1) in statements to employees in July,
August, and September The General Counsels proof of
these allegations consists of testimony from Constance
Isbell and Jeandell Powell both of whom were sinkers
and both of whom returned to work following the end
of the strike The Respondents defense is the testimony
of Hurt
Isbell testified that prior to the strike she had four con
versations with Hurt concerning the status of negotia
tions and the possible circumstances in the event of a
strike two by telephone one in the parking lot where
she lives and one at the Hotel Hurt testified that he
only talked to Isbell once prior to the strike Hurt tests
feed that after negotiations started I didn t talk to Isbell
at all but twice He had, however, testified that he was
a social friend of Isbell s, and that prior to then he would
talk to her on the telephone maybe once or twice a
week
Isbell testified that she was a waitress in the Regency
Room on the night shift (and as such was not a direct
subordinate of Hurt) Her first conversation with Hurt
took place at the beginning of negotiations and was by
telephone, during which Hurt told me that the hotel
had been preparing for the strike for the past three years
and that if we went out on strike that we would not get
our jobs back She testified further that Hurt said, the
hotel had no intentions of giving the Union a contract
HOTEL ROANOKE 229
In a subsequent telephone conversation, Isbell testified
that Hurt told her that Beth Hoffman had been brought
into the Hotel as a union buster And he told her that
the Hotel had no intentions of bargaining in good faith
that we were not going to get a contract, that they had
been preparing for this for three years
Isbell testified that one evening in the parking lot
where she lived, Hurt said the hotel wasn t going to
give us a contract and that I should consider very sen
ously about my job status, and that if I went out on
strike I wouldn t get a job-I wouldn t have a job
Finally, she testified that one evening about the time
that the old contract expired, as she was coming to
work, Hurt was leaving the hotel and I stopped to talk
to him and he said that he had been in a meeting and we
discussed the situation with the contract and bargaining
for the contract, and he told us that the hotel had no in
tentions of giving us a contract, that we were going to
have to go out on strike because they were prepared for
it' And he said the hotel was out to break the union "
As indicated Hurt denied not only the substance of
the conversations testified to by Isbell but denied that
they had occurred at all, other than the one which took
place in the parking lot of the housing project where she
lives Tangential to the substantive issues of this case, but
illustrative of the direct conflict between the testimony
of Hurt and Isbell is their respective versions of how this
meeting came about
Hurt testified that Isbell called him at the Hotel and
asked if she could borrow some money, and he said he
would come by her housing project He did and gave
her $30 At this time they had a brief discussion concern
mg how negotiations for the new contract were going
Isbell testified that she talked to Hurt in the parking
lot but his presence there was, as far as she knew, mere
happenstance She denied having called him or requested
the loan of money
Although this matter of whether Isbell called Hurt for
a loan is not material to this case, it does show the direct
credibility conflict between the two A resolution of this
tends to shed light on the general credibility of each one
Although it is not necessarily unusual or unreasonable
for an employee to borrow money from a supervisor
here there was no testimony which would tend to estab
lash such as a pattern of behavior or that Hurt and Isbell
were sufficiently close that it was probable Hurt made
the statement that Isbell called to borrow money, with
out testifying to a predicate which would tend to estab
lash the believability of this event On the other hand, Is
bell s denial was credible
Both agree that a conversation took place in the park
mg lot of the apartment project where Isbell lives, but
there is no satisfactory explanation about why Hurt was
there I tend to credit Isbell s testimony that she did not
know-that he just appeared Given the incredulity of
Hurts testimony about why he came to Isbell s apart
ment and the lack of foundation for believability and
comparing the respective credibility of their testimony, I
conclude that Isbell s version is the more probable
Because Hurt testified that he talks to Isbell quite
often it is not credible that between the time negotia
tions started and the strike he would cease doing so and
have according to his testimony, only two conversations
with her Though unclear from his testimony, perhaps he
meant that only twice did these matters come up
In any event it is my conclusion that Isbell's testimo
ny is more worthy of belief than that of Hurt, and I
therefore conclude that she had four conversations with
Hurt during the months preceding the strike along the
lines to which she testified During these Hurt threatened
that the Hotel would refuse to sign a collective bargain
mg agreement told her that the Hotel would undertake a
course of action designed to frustrate the collective bar
gaining process, and threatened employees with termina
tion should they engage in a strike
It is additionally alleged that in August Hurt told em
ployees that the Hotel would engage in a pattern of con
duct designed to break the Union as employees bargain
mg representative This was the essence of the testimony
of Jeandell Powell when she testified
Well, we [she and Hurt] were talking about the ne
gotiations and I told him that I heard about what
happened at the first meeting, I wasn t there and he
said yes, they re trying to break up the union and I
said yes I know and I said I think so too and we
talked about the time we worked together for years
and we talked about how hard we had getting it in
and how things was happening
While Hurt testified that he had a couple of conversa
bons with Powell, because she was on the union negoti
ating committee, he specifically denied that he told her
the Hotel would refuse to sign a contract Inasmuch as
Powell s testimony is consistent with the type of state
ments I found Hurt made in his conversations with
Isbell I conclude that he made the statement attributed
to him by Powell I credit her testimony over Hurt s
denial I therefore conclude that Hurt threatened an em
ployee that the Company was engaged in a pattern of
conduct designed to break the Union as the employees
collective bargaining representative The Respondent
thereby violated Section 8(a)(1) as alleged in paragraph
11(d) of the complaint
8 Karen Dunn
At the time of the strike settlement and for the first 3
months thereafter Karen Dunn was the Respondent s
personnel manager As noted above in connection with
bringing strikers back to work, Dunn held a series of on
entation sessions During these sessions, it is alleged in
the complaint that Dunn made statements violative of
Section 8(a)(1), and specifically that it would be futile
to go to the Union for assistance that Respondent
would no longer recognize shop stewards, that em
ployees [were] not to talk about the Union while they
were in Respondents facility, that they would be con
sidered new employees and that their seniority would
not be recognized, ' that if anyone s employment was
terminated by the Respondent, they would not be re
placed by returning strikers, and that they had given
up their rights to review their personnel records by be
coming a member of the Union '
230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As far as I am able to determine from reviewing the
General Counsels lengthy brief, the issue involving
Karen Dunn s poststrike activity was not addressed
There was however testimony in the record from nu
merous returning strikers, as well as James Wade and
Dunn , concerning what she said at some orientation
meetings Although I do not necessarily discredit Dunn,
on balance I found the employee witnesses to be credi
ble Further , because Dunn conducted these meetings for
the purpose of explaining to returning strikers matters
concerning their employment status (as noted above a
procedure which was not agreed to by the Union nor ap
parently necessary), I conclude that the Respondent is
responsible for any ambiguity in what she told employ
ees about their employment
It is very difficult for anyone to remember precise
words more than a year after they were uttered Howev
er, such does not justify discounting out of hand the em
ployees perception of the events In making the follow
ing findings and conclusions , I generally credit what the
employees testified they heard Dunn say concerning
their employment status and the Union at these onenta
tion sessions
Constance Isbell was called back to work in May and
had an orientation session on May 17 Karen Dunn con
ducted the meeting which was attended by about 30 em
ployees They were given an employee handbook,
bylaws, and rules of the Hotel , which were discussed by
Dunn Isbell testified that among other things Dunn said
that we worked for the Hotel and not for the Union
and there would be no union in the Hotel that year this
previous year "
Isbell further testified that in June there was a meeting
of the p m shift in the Virginia Room at which Dunn
spoke to about 20 employees Isbell testified
Miss Dunn told us that the hotel had called us back
as the job openings became available She also told
us that it would do no good to run across the street
to the union because we had no union , that we
were working for the hotel We asked about senson
ty status she told us that there was no seniority
She further testified , after a short interruption, the
seniority as far as days off is concerned there
would be no seniority there was no seniority we
worked as the hotel saw fit for us to work
Further at this meeting Isbell testified that there was
no recognition of shop stewards , if you had a problem
you were to take it to your supervisor if the supervisor
could not handle it you were to bung it to the personnel
manager And finally Isbell testified Dunn said, there
would be no strikers recalled, the people that were there
was the permanent staff, in the event that you were un
happy with your job or someone left the job, that it
could not be replaced by a striker , that it would be re
placed by an outside person that this was the permanent
staff "
Helen Taliaferro testified that she was a banquet wait
ress and had been for about 36 years She was a striker
who was recalled and attended an orientation session
conducted by Dunn Taliaferro testified, I recall a few
things where she told us that we were coming back as
new help and that we wouldn t get no seniority, not at
that time No vacation
Linda Carter testified that she was recalled to work
and attended an orientation meeting conducted by Dunn
Carter stated that at the meeting it was mentioned that
you did not work for the Union you worked for Hotel
Roanoke She further testified to some requirements of
employment given by Dunn
Wilson Leftwich testified that at the orientation meet
ing he attended , Dunn told us we d be on a 90 day pro
bation period , then after that , if any of us was still there,
we d be given seniority back
Kisha Buckner attended an orientation meeting in
April Buckner testified that Dunn said she didn t want
to hear anything about a union at the Hotel , and that no
one had seniority until their 3 month probation period
was up Dunn also discussed with them ccrtain employ
ment rules
Berda Lawrence was recalled to work and attended an
orientation session around the 25 or 27 April Lawrence
testified that Ms Dunn told us that we were on a 90
day probation , and that we did not have any seniority
during this time , and, then , after 6 weeks , we would be
evaluated to see if we were capable of doing our jobs "
Karen Dunn specifically denied that during orientation
meetings she ever informed employees that it would be
futile to go to the Union for assistance She further tes
tified to a meeting of night shift employees in the Virgin
is Room She specifically denied that she told employees
it would do no good to run across the street to the
Union because you had no union And she specifically
denied that there would be no recognition of union stew
ards Dunn testified that at the Virginia Room meeting
there was no discussion of the Union or shop stewards
because they were not discussing the grievance proce
dure or discipline rather she was talking to them about
productivity and improving the dining room Dunn spe
cifically denied that she told returning strikers that they
were being recalled as new employees
When called as a witness by the General Counsel (at
the time of the hearing Dunn was no longer employed
by the Respondent), she was asked specifically if she in
formed employees during orientation meetings that they
did not work for the Union She denied that She did tes
tify that seniority rights of employees was discussed I
told them that they came back with their full seniority
they did not lose their date of hire , did not lose their va
cation pay, it was as if they had never left, they were
coming back " Asked if she told them there would be no
seniority for 90 days , Dunn said , No " She did tell em
ployees that they would be evaluated after 6 weeks and
after 12 weeks But she denied telling them that they
were on probation
At the time of the hearing Dunn was no longer an em
ployee of the Hotel and thus would not necessarily be
presumed to be aligned with the Respondent for pur
poses of resolving credibility However at the outset of
the trial in applying for sequestration of witnesses the
Respondent specifically stated that Dunn would be the
company representative I therefore must conclude that
HOTEL ROANOKE
Dunn was not an independent witness in this matter,
whether when called by the General Counsel or the Re
spondent She was closely identified with the interests of
the Respondent
As indicated Dunn conducted numerous orientation
sessions among employees during which she discussed
the recall of strikers , employment , and personnel rules
The General Counsel brought forth numerous witnesses
who testified to these orientation sessions and to specific
statements by Dunn These Dunn specifically denied, al
though admitting that in fact she conducted the orienta
tion sessions and did discuss employee rules (At least
one other witness testimony was excluded on grounds it
was cumulative , since counsel represented that the testi
mory would be the same as that of previous witnesses )
The testimony of employee witnesses to these matters
was fairly vague , conclusionary and often without foun
dation Thus , while I generally credit the employee wit
nesses and conclude that the Respondent is responsible
for any ambiguity in Dunn s statements to employees,
nevertheless , I do not believe that all the allegations
were sustained
I do find , however , that Dunn said something to em
ployees at one or more of the orientation sessions to the
effect that they were working for the Hotel and not for
the Union , implying to employees that they would have
to abide by the rules Such , of course , is a permissible
statement by an employer , and I do not believe in the
context of these orientation sessions Dunn thereby made
an unlawful statement to employees that it would be
futile to seek the Union s assistance , assuming such to be
violative of Section 8(a)(1) Therefore , I conclude that
the General Counsel did not sustain the allegation set
forth in paragraph 37(a)
The allegation in paragraph 37(b) that Dunn informed
employees the Respondent would no longer recognize
shop stewards is in the testimony of Isbell and Ruben
Hale That testimony is just simply too vague to support
such an allegation and there is no predicate for this testi
mony There is no indication that in fact the Respondent
did not recognize any individual shop steward in his or
her capacity as such at any time following the end of the
strike Ruben Hale testified that she attended an onenta
tion meeting during which Dunn stated , that if the
Hotel-if you got into trouble with the Hotel no use
going to the Union because the Union couldn t help you,
and that stewards would not be recognized ' I found this
testimony to be generally not credible and her demeanor
not very positive on this point Beyond that , I found this
testimony to be conclusionary and without context Fur
ther Hale testified that James Wade was in attendance at
this orientation session but he offered no comment when
Dunn allegedly stated that stewards would not be recog
nized Such silence on the part of the union president
and particularly Wade, in the context of this proceeding,
just is too incredible to believe I just do not believe that
the evidence supports the allegation contained in para
graph 37(b), and I will recommend that it be dismissed
Similarly , while it would be an unlawful promulgation
of a no solicitation rule to prohibit employees not to talk
about the Union at any time on the Respondents facility,
I cannot conclude from the testimony before me that
231
Dunn in fact made such a statement I therefore will rec
ommend that paragraph 37(c) be dismissed The allega
tion of paragraph 37(d) concerning Dunn s informing
employees that they would be considered new and that
their seniority would not be recognized , no doubt refers
to Dunn s statements to employees concerning how the
recall was being effectuated and the fact that employees
would be given performance reviews at the end of 6 and
12 weeks Further the recall and then scheduling of em
ployees in fact had changed pursuant to the strike settle
ment agreement , a fact which was explained to employ
ees by Dunn during these orientation sessions Although
this matter is complex and it is as noted , something that
would be difficult for employees to remember precisely a
year after the event , it does appear that Dunn testified
generally to the subject matter set forth in paragraph
37(d), and did leave with employees the impression that
their status had been altered as a result of the strike To
the extent that this is the case , Dunn violated Section
8(a)(1) of the Act , and I so find and conclude
In paragraph 37(e) it is alleged that employees were
told that if any were terminated they would not be re
placed by returning strikers This was allegedly told to
returning strikers after most if not all of them had al
ready been recalled to work The statement , therefore,
makes no sense in the context in which it was allegedly
stated Beyond that , the testimony concerning this allega
tion is vague , and even if in some manner a violation of
the Act, I conclude that the evidence concerning this al
legation is simply insufficient to support a finding that
Dunn thereby violated the Act I therefore will recom
mend that paragraph 37(e) be dismissed
I note that B J Smiley , the Union s recording secre
tary and a cook at the Hotel testified that she attended
three of the orientation sessions Although she testified
generally to what Dunn said during the course of the
meetings she attended concerning how strikers would be
recalled-for instance, that seniority didn t apply for
the first 90 days -she did not mention any of the alleg
edly unlawful statements to which the other employees
testified Such does not necessarily disprove that on oc
casion Dunn did not make the statements attributed to
her However , Smiley s position and the fact that she at
tended three of the meetings at which apparently state
ments like these were not made strongly indicate that
Dunn did not make these statements Smiley testified that
at the end of a meeting during which she was recalled
from suspension , supra Dunn told me to come back to
work and to stop and get my badge and my button, and
from now on when I came back to work to talk about
the veal and the lemon sauce and not about the Union
Although this event , I believe , happened generally as tes
tified to by Smiley , I do not conclude that it constitutes
the promulgation of an unlawful no solicitation rule At
best it was an isolated statement , and even in the context
of the Respondents massive unfair labor practices was
not unlawful
Jeanette Lynch testified that during a meeting of em
ployees in the Virginia Room Dunn stated that if
anyone in this room should happen to quit or get fired
they would not be replaced by a striker We would hire
232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
off the street Again, there is no context for this state
ment which, in itself really does not make sense or
appear to be anything a personnel manager would tell as
sembled employees
Lily Graves testified that at the orientation session she
attended, the only mention of the Union that Dunn made
was she told us that we didn t work for the Union We
worked for Hotel Roanoke
On 30 May, Dallas Mangus made a telephone call to
Dunn for the purpose of seeking certain of his work
records so that he could compile a resume He asked his
wife Julie to listen in on the telephone conversation
Julie testified that when her husband asked for his work
records and told Dunn the purpose,
And she said, frankly, no, you cannot obtain the
work records You gave up that right when you
became a union member And then he stopped
paused and said, Miss Dunn, are you saying I
cannot obtain my work records, and she said, the
only way that you can seek your work records is to
go through your union lawyer with the proper pro
cedure And he said fine And that was the end of
the conversation She very abruptly said , fine, and
hung the phone up
This is alleged violative of Section 8(a)(1) as being a
statement to employees that they had given up the right
to review their personnel records by becoming members
of the Union Although such is a plausible interpretation
it is not reasonable when one considers the total state
ment It is clear that Dunn told Dallas Mangus that he
would have to go through the Union in order to obtain
his personnel records She did not tell him he had no
right to the records Although Dunn may well have been
misinformed of his rights under labor relations law her
statement does not amount to the type of activity that I
believe is violative of Section 8(a)(1) of the Act She
merely told him even if abruptly her understanding of
the proper procedure Accordingly while I conclude
that the facts occurred generally as testified to by the
General Counsels witnesses, I do not believe they sup
port finding a violation of the Act and I will recom
mend that paragraph 37(f) be dismissed
IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices found above, occurring in
connection with the Respondents business have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof within the meaning of Section 2(6)
and (7) of the Act
V THE REMEDY
Having concluded that the Respondent has engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affirmative
action necessary to effectuate the policies of the Act
Inter alia the Respondent will be ordered to offer rein
statement to Kenneth Arney and to those employees
whom it unlawfully denied reinstatement following the
close of the strike, and make them whole for any wages
or other rights and benefits they may have suffered as a
result of the discrimination against them in accordance
with the formula set forth in F W Woolworth Co, 90
NLRB 289 (1950), with interest as provided for in Flori
da Steel Corp, 231 NLRB 651 (1977) See generally Isis
Plumbing Co, 138 NLRB 716 (1962) Inasmuch as em
ployees were recalled between 16 April and 16 July, pur
suant to the strike settlement agreement, and because it is
unknown precisely when during that period these indi
viduals would have been recalled I conclude that the
Respondent should bear the burden of the ambiguity and
that backpay liability will commence to run on 16 April
1984, except for those whose reinstatement date (and
backpay entitlement) is clear from the record In those
cases, the appropriate backpay date is set forth in the
analysis section above Kenneth Arney s backpay period
commences 1 October 1983 B J Smiley is to have
backpay for 9 days
The Respondent implemented certain unilateral
changes in terms and conditions of employment on or
about 1 October 1983 Inasmuch as the parties subse
quently agreed to a collective bargaining agreement the
Respondent will not be ordered to rescind those changes
[Recommended Order omitted from publication ]