The Little Rock Downtowner, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1964

148 N.L.R.B. 717 (N.L.R.B. 1964)

THE LITTLE ROCK DOWNTOWNER, INC. 717
WE WILL NOT in any other manner interfere with, restrain , or coerce,.our
employees in the exercise of their right to self-organization ,• to farm •.tinibn's,'to
join or assist District 50, United Mine Workers of America, or any other , union,^
to bargain collectively through representatives of their own choosing , and to en-
gage in concerted activities for the purpose of collective bargaining of'other
mutual aid or protection , or to refrain from any and all,such activities , except,
to the extent that such right may be affected by an agreement requiring union
membership as a condition of employment , as permitted by Section 8 (a) (3
of the National Labor Relations Act,,as modified by, the Labor ,Management,
Reporting and Disclosure Act of 1959.
All our 'employees are free to become, remain , or refrain from becoming or re-
maining, members of the above-named or any other union , except to the extent that
such right may be affected by an agreement requiring union membership as a condi-
tion of employment as permitted by Section 8 (a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
METALAB-LABCRAFT, DIVISION OF METALAB
EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Any questions concerning this notice or compliance with its provisions may be
directed to the Board's Regional Office, 2107 Clark Building, 701-17 Liberty Avenue,
Pittsburgh, Pennsylvania, Telephone No. 471-2977.
The Little Rock Downtowner , Inc. and Hotel -Motel,. Restaurant
Employees Union , Local- No. 200 , Hotel and Restaurant • Em-
ployees and Bartenders International Union , AFL-CIO. 'Case'
No. 206-CA-157°2. August 31, 1964,
• DECISION AND ORDER
On February 26, 1964, Trial Examiner A. Bruce Hunt issued his
Decision in the above-entitled proceeding, finding that the Respondent,
had engaged in and was engaging in certain unfair labor practices, and.
recommending that it cease and desist therefrom, and take certain,af-
firmative action, as set forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent had not,engaged
in certain other unfair labor practices alleged, in the complaint and
recommended that such allegations be dismissed. , Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision and a sup;
porting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed: The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
this case, and finds merit in the exceptions of the Respondent. Ac-
cordingly, the Board adopts the findings of the Trial Examiner only
to the extent consistent herewith.
148 NLRB No. 78.
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The events with which this case is concerned occurred in July 1963.
Both ; the- present,record . and that in an earlier case involving this
Respondent 1 disclose that in 1961, before the advent of the Union as
representative of the employees, the Respondent's parent corpora-
tion prepared, and caused to be distributed to all the Downtowner
motels, a maid's manual containing detailed instructions as to how the
maids should perform their work 2 Despite the various requirements
of the manual, however, the maids were lax in the performance of their
duties, and the Respondent's motel rooms were kept in a dirty and
untidy condition. In October 1962, the Respondent sought to remedy
this situation by appointment of a new housekeeper, Mrs. Virgie
Peters, who was charged with the duty of supervising the maids.
Peters thereafter inaugurated a program for improvement in the
care of the motel rooms with a`view toward getting the maids to work
harder and more efficiently and achieving stricter enforcement of the
existing rules.
The record in the present case discloses that the unsatisfactory con-
dition of the rooms was nevertheless not entirely corrected. Prompted
by a number of complaints from guests, Baker, an officer of the Re-
spondent's parent corporation, and Arnett, the local manager, made an
inspection of the -rooms on July 1 or 2, 1963. This inspection again
confirmed that there was a continuing failure by the maids to meet
the standards of cleanliness and order that Respondent desired in the
care of its motel rooms. During the inspection, Baker and Arnett
called Peters to one of the guestrooms and pointed out the deficiencies
in room care they had found. As a result, Peters on the following
morning instructed the maids specifically to wash the motel windows on
the inside daily, ,as required by the manual. This order resulted, in
the development of dissatisfaction and concern among the maids, and
on July 11, 1963, 11 of the maids went out on strike, joining others of
the Respondent's employees who had begun a strike some 4 months
earlier. Within 3 weeks, the maids abandoned their strike and applied
for reinstatement, but the Respondent refused to reinstate them.
Upon essentially the foregoing facts, the Trial Examiner found
that the Respondent's "rule" contained in the maid's manual requiring
the daily washing of windows by its maids had earlier been abandoned ;
that its revival in July 1963 (by reason of Peter's work instruction)
"constituted a new and independent action concerning which Re-
spondent was under an obligation to consult with the Union"; and by
thus "unilaterally changing the working conditions of the maids
Respondent violated Section 8 (a) (5) and (1). We do not agree.
1 The Little Rock Downtowner, Inc., 143 NLRB 887.
3 Among the instructions contained in this manual was one directing the maids to wash,
the inside of the motel windows each day, which was the subject of the controversy be-
tween the Respondent and its maids that gave rise to the present case.
THE LITTLE ROCK DOWNTOWNER, INC. 719
We are not persuaded in'the first place that the record substantially
supports the Trial Examiner 's factual predicate for finding unlawful
unilateral action, namely , that Respondent effected a change in the
maids' conditions of employment by directing them to comply with
the window-washing requirement as set out in the maids' manual. The
manual was in essence simply a compendium of instructions to the
maids concerning their job duties . These instructions had been com-
piled and published prior to the advent of the Union , and the Union
after it became the bargaining agent had not sought either to question
or to effect a change in the published job requirements . It is true that
the maids had not for some time maintained the level of job perform-
ance called for by the manual standards . But from this fact alone we
are not prepared to infer an abandonment by Respondent of its pub-
lished job requirements.
Moreover , other record facts, heretofore alluded to , strongly militate
against a finding of such abandonment . Thus it appears that despite
the deficient performance by the maids of their work tasks, Re-
spondent did not condone their shortcomings or overlook the lack of
cleanliness and order resulting therefrom . On the contrary , although
finding the situation difficult to remedy , Respondent exerted continuing
efforts to improve the maids ' work performance so that they would
conform to expected standards . This was done particularly, as dis-
closed in the earlier case , by changing the maids' supervision and re-
quiring a stricter adherence to the manual's instructions . Supervisor
Peters' instructions to the maids in July 1963 , the specific action here
in issue , were, we find, simply another aspect of Respondent 's continu-
ing efforts to achieve compliance with required job standards , and not,
as asserted by the General Counsel and-found by the Trial Examiner, a
change in conditions of employment through revival of a working rule
earlier abandoned.
In any event, even if we were to assume the validity of the Trial
Examiner 's factual premise that Peters ' window-washing instruction
to the maids constituted in effect a revival of an earlier abandoned
manual rule , we would not be disposed , simply because the work order
was effected unilaterally , to base an 8 (a) (5) violation finding thereon.
This type of work order does not exceed the compass of the job duties
the affected employees were hired to perform and falls within the nor-
mal area of detailed day-to -day operating decisions relating to the
manner in which work is to be performed . In our view , it is not of
such a character as to require , under good-faith bargaining standards,
prior notice to-and consultation with the Unions This'is not to say, of
course, that the matter is not a required subject for bargaining if the
Union raises an issue concerning it through resort to grievance proce-
B Irvington Motors, Ino., 147 NLRB 565.
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dures. In this respect, we think it also worthy of not e that, so-far
as appears, the Union made no attempt to press a grievance or to re-
quest an opportunity to negotiate with Respondent about the action of,
which it now complains.4 -
We find accordingly that Respondent did not, by Peters' conduct
above set forth, violate Section 8 (a) (5) and (1).5
As we have found that the Respondent did not violate the Act by
requiring its maids to wash the motel windows daily, we further find
that the strike of the maids occasioned by this requirement was not an
unfair labor practice strike, but an economic strike. And, as the maids
possessed the status only of economic strikers, we likewise find merit in
the Respondent's defense, asserted at the hearing, that the maids were
not entitled to reinstatement upon their abandonment of the strike
because the Respondent had permanently replaced them before their
application for reinstatement. Accordingly, we find that the Respond-
ent did not, by refusing to reinstate its maids who had gone on strike,
violate Section 8 (a) (3) and (1). As we have found that the Respond-
ent did not violate. the Act in any manner alleged in the complaint, we
shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
4 Member Fanning , in concurring in the dismissal of the complaint in this case , does not
rely upon the statements and conclusions contained in this paragraph of the opinion.
5 Contrary to the Trial Examiner; we do-not regard as determinative of this case the
Board's decision in an earlier proceeding involving the same Respondent , 145 NLRB 1286,;
wherein it was found that Respondent had violated 8(a) (5) and ( 1) by unilaterally
promulgating a rule requiring its waitresses , contrary to long preexisting practice, and
possibly also to State law, to remain standing at their stations at all times except dur-
ing regular periods of relief .. Unlike the situation here , the findings an the earlier case
show an actual change in working conditions , rather than an instruction to achieve com-
pliance with established job requirements . Moreover , the unlawful unilateral action
found in the earlier case occurred during a period of contract bargaining at which changes
in existing working conditions were or - could have been considered , and in a context, be-
sides, of substantially contemporaneous other 8 ( a)(5) conduct by Respondent reflecting.
an aim on its part , to evade its statutory bargaining obligations . In addition, the
unilaterally effected action in the earlier proceeding involved a substantial change in
working conditions extending beyond routine job directions . Finally, unlike the situation
in the earlier proceeding , where the Union did protest Respondent ' s action, pointing out
that Arkansas • law requires that seats must be made available to female employees not
actively engaged in work, the ,Union, as indicated . above, at no time prior to the filing of
the instant charges, or prior to the time the maids joined the strike, informed Respond-
ent of its objection to the alleged change in working conditions or requested bargaining
with respect thereto.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding , in which the charges were filed on July 11 and August 12, 1963,
and the complaint was issued on the latter date , involves allegations that the Re-
spondent, The Little Rock Downtowner , Inc., violated Section 8 (a)(1), (3), and
( 5) of the National Labor Relations Act, as amended , 29 U.S .C., Sec . 151, et seq.
On September 23 and 24, 1963, Trial Examiner A. Bruce Hunt conducted a hear-
ing at Little Rock , Arkansas , at which all parties were represented . The Respond-
ent's motion to dismiss the complaint is disposed of, in accordance with the
determinations below. Upon the entire record , and from my observation of the
witnesses , I make the following:
THE LITTLE ROCK DOWNTOWNER, INC.
FINDINGS OF FACT
1. THE RESPONDENT-
721
The Respondent , an Arkansas corporation , is a wholly owned subsidiary of The
Downtowner Corporation , a Tennessee corporation ( herein the parent corporation).
The latter corporation operates motels in various States, and the Respondent operates
a motel in Little Rock , Arkansas , the only motel involved in this proceeding. At
all times material , the Respondent and the parent corporation have been operated as
a single integrated enterprise with some common officers and directors , and repre-
sentatives of the parent corporation have formulated and administered a common
labor policy for the two corporations . During a 12-month period preceding issu-
ance of the complaint , the Respondent purchased goods exceeding $ 10,000 in value
which were shipped to it directly from points outside the State of Arkansas, and
during the same period the parent corporation purchased goods valued in excess
of $10 ,000 which were shipped to its place of business in Tennessee directly from
points outside that State . These facts establish the jurisdiction of the Board. Lamar
Hotel, 127 NLRB 885, 886; Milk Drivers and Dairy Employees' Local 680, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, Ind. (Durling Dairy Distributors d/bla Woolley's Dairy), 145 NLRB
165. In addition , during the same 12-month period , the parent corporation had
gross revenues exceeding $500,000 . During that period , the Respondent was not
a "permanent" or "residential" motel because it rented more than 25 percent of its
rooms to transient guests who remained less than 1 month and it received more
than 25 percent of its rental income from such guests. These additional facts bring
the Respondent within the Board's standards for exercising jurisdiction . Floridan
Hotel of Tampa, Inc., 124 NLRB 261, 264. These is no dispute, and I find, that
the Respondent is engaged in commerce within the meaning of the Act.,
II. THE UNION
Hotel-Motel , Restaurant Employees Union , Local No. 200, Hotel and Restaurant
Employees & Bartenders International Union, AFL-CIO, is a labor organization
which admits to membership employees of the Respondent. -
III. THE UNFAIR LABOR PRACTICES
A. Background
This is the third unfair labor practice proceeding against the Respondent in less
than 2 years. All arose during the course of the Union 's efforts to organize and
represent the employees. The first proceeding is reported at 143 NLRB 887. In
it, Trial Examiner Alba B. Martin found, and the Board affirmed, that during the
summer and autumn of 1962 the Respondent violated Section 8 (a)(1) and (3) of
the Act . The second proceeding is reported at 145 NLRB 1286 . In it, Trial
Examiner Samuel M . Singer found, and the Board affirmed , that during the fore-
part of 1963 the Respondent violated Section 8(a)(1), (3), and (5 ) and that an
unfair labor practice strike resulted during March.
B. The issues in this case
The events with which we are concerned occurred during July 1963. There
is no dispute that certain classifications of employees constitute an appropriate unit
and that at times material the Union was the exclusive representative of all employees
therein . One classification of employees in the unit consists of the maids who clean
the guestrooms . Until .-July they did not join the unfair labor practice strike of other
employees which began during March. Our issues, in substance, are whether the
Respondent violated Section 8(a)(5) by unilaterally changing the maids' working
conditions during July ; whether the Respondent violated Section 8(a)(3) by making
such change , allegedly because the maids had engaged in union or concerted activities;
whether the maids struck during July because of a change in their working condi-
tions; whether their strike was an unfair labor practice strike ; and whether the Re-
spondent's subsequent refusal to reinstate them upon application violated
Section 8 ( a)(3).
C. The facts
During late June 1963, Rose Williamson, a maid and a union member, complained
to Earl F. Yeargan, a representative of the Union, that another maid, Earline
760--577-65-vol. 148-47
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCauley, had been abusive toward some of the maids. Yeargan, who had par-
ticipated in bargaining sessions with management, telephoned a representative of the
Respondent and asked that the matter be corrected: Within a few days, the working
conditions of the maids were changed.
Our discussion of the change begins -with a provision in the' maid' s manual, a
booklet which had been in"existence since before the start of the Union's organiza-
tional activities. The manual reads, in part:
VIII. CLEANING WINDOWS AND MIRRORS:.
Wash inside of windows, doors and window frames each day. - Never'leave
spots 'or finger prints on windows and doors. Household ammonia and water
is recommended for window and mirrors . Window cleaner will leave a film
[Emphasis supplied.]
The windows referred to are of a type sometimes called "picture windows." They
are, quite large, occupying the entire front portion of each room except for the
space which is filled by a door and transom. They are in fixed positions and,cannot
be opened. The references below to washing or cleaning them are to interiors ex-
clusively. The exteriors are cleaned by men.
The record is clear that the working condition that windows be washed daily was
not enforced prior to July 1963.1 Illustrative of the testimony in this connection is
that given by Hester Wills and Lillie Mae Smith, maids who testified for the Re-
spondent. Wills testified.that she never washed windows daily, that she never saw
other maids do so , and that she merely removed spots from them. Smith testified
that she cleaned" windows when they needed cleaning , which was, "occasionally."
In addition, other witnesses for the Respondent testified that porters have the task
of cleaning windows when they become dirty or stained during parties held'by guests.
During the forepart of July, the Respondent enforced the rule requiring daily
washing of windows, but the testimony on the point is conflicting. According to the
General Counsel, the decision to enforce it was made by Lawrence C. Arnett, manager
of the motel , without consultation with the Union, the maids' representative, and in
retaliation because a maid' (Williamson) had sought the Union's assistance in
stopping abusive conduct by McCauley. On the other hand, the Respondent asserts
that the maids' supervisor, Virgie Peters, changed or sought to change the maids'
working conditions by enforcing the rule contrary to Arnett's instructions. We shall
consider the conflicting testimony.
The General Counsel, in support of his contention, called only two witnesses,
Peters and Williamson. According to them, during the afternoon of July 1 or 2,
Arnett spoke to Peters in the presence of several maids, saying that the maids must
wash the windows each day. An inconsistency in the ,testimony of these two witnesses
is that Peters testified that Arnett spoke of having stools made in order to enable the
maids to reach the tops of the windows, whereas Williamson testified to the contrary.
Although Peters testified that four or five maids were present when- Arnett spoke,
and Williamson testified that three or four were present, the General,Counsel did not
call as a witness to the conversation any maid other than Williamson.2 In contradic-
tion of the testimony of Peters and Williamson, the Respondent called Arnett and
Wills as witnesses . According to Arnett, he was present during the afternoon of
July 2 when Don T. Baker, an officer of the Respondent's parent corporation, spoke
with Peters in one of the guestrooms of the motel concerning the failure of some
maids, unidentified, to clean rooms properly. Arnett testified that he then pointed
out to Peters that the window of the room in which they were talking had a consider-
able amount of dust on it and that he told Peters that he wanted the maids to wipe
the windows each day with a cloth.3 The next morning, according to Arnett, he
In the first of the cases involving the Respondent, cited above, Trial Examiner Martin
11found that there had been a "wholesale ignoring of the rules by the maids . . . .
2 Two additional maids, Carolyn Loving and Magnolia Handley, were witnesses for the
General Counsel, but their testimony was on another subject The record does -not estab-
lish that they were present when Arnett spoke Another maid, Gloria-Crowley, was
identified by Williamson as having participated in the conversation with Arnett, but
Crowley was not a witness. The record indicates that she did not go on"strike with
other maids on July 11. Of the 16 or 17 maids who were employed on July If, approxi-
mately 11 went on strike that day.
3 Peters acknowledged that this conversation occurred, but she testified that this was
not the occasion when Arnett spoke of washing windows. Baker, a witness for the Re-
spondent; corroborated Arnett's version, but Baker was not present at any conversation
which Arnett had with maids . ' - • -
THE LITTLE ROCK DOWNTOWNER, INC. 723
happened to see Peters and eight or nine maids gathered in a group, whereupon Peters
said to him that he should tell the maids to wash the windows daily because tney
had not believed her when she told them that he had so directed. Arnett testified also
that he replied that he had not directed that the windows be washed daily, that he had
said instead that he wanted "those windows cleaned every day," and that he added
that dust could be removed with a dry cloth and that smudges could.be removed with
a sponge or spray. Arnett altered his testimony somewhat, however, by testifying
that he "did not tell" the maids that the windows had to be cleaned daily and that,
instead, he "put it this way, if it takes every day, then it has to be done every day."
Wills corroborated Arnett's testimony only to the extent-that Arnett "said for the
maids to take a little dry rag and run across the windows." Wills did not testify that
Arnett spoke of a sponge or a spray, nor did she testify that Peters asked Arnett
to speak to the maids because they would not believe Peters. Indeed, Wills testified
that Peters did not say in Arnett's presence that the maids were to wash the windows
daily.
The record will not support a finding that Arnett directed that the windows be
washed daily, nor will it support a contrary finding. With respect to the General
Counsel's two witnesses, Williamson and Peters, the former testified that, until she
was directed by Peters to wash the windows, she had never seen anyone wash or clean
windows and that she had never even removed spots from them. I cannot believe
this testimony. The record is clear that the maids' duty was to keep the rooms clean
and supplied with necessary articles, and surely that duty included some attention.to
the windows. Turning to the credibility of Peters, who quit her position -as house-
keeper for the Respondent a few days after the maids went on strike, she impressed
me as being hostile toward her former employer. Although Peters possessed a copy
of the maid's manual when she was the housekeeper, and although she required newly
hired maids to read it, she unconvincingly denied having known of provision VIII
therein, quoted above. Too, she experienced difficulties with several employees and
she testified that they threatened her life, that she sought Arnett's aid in ending the
threats, and that she was "bothered" by his refusal to aid her. She quit her employ-
ment on July 16 after, so she testified, a porter entered her quarters when she was
changing clothing, said to her that she had been "telling big lies on him," and
threatened to do her harm, whereupon she ran out and appealed to Arnett, but the
appeal fell on unsympathetic ears. The record discloses that Peters swore out a
warrant against the porter and that he was prosecuted, but the outcome of the case
is not disclosed. For these reasons, plus the demeanor of Peters and Williamson,
plus Peters' falsehood to some of the maids on the day they struck, discussed herein-
after, I cannot credit the testimony of Williamson and Peters .4 Additional witnesses to
Arnett's alleged direction concerning the washing of windows likely were available to
the General Counsel, but he did not call them and I conclude that, he has not sustained
his burden of proof. Turning to the Respondent's evidence, I note that it likely could
have called as witnesses maids in addition to Wills. Arnett testified that he spoke
to Peters and to eight or nine maids. As I said in-footnote 2, no party called Crow-
ley. Her failure to participate in the maids' strike indicates that she may not -have
been adverse to the Respondent. I have noted substantial variations in the testimony
* Peters was a witness in both of the proceedings against the Respondent prior to this
one - In the first proceeding, she was called by the Respondent, and Trial Examiner
Martin credited her in recommending dismissal of portions of the complaint. Certain
facts upon which the Respondent now relies in attacking Peters' credibility, I e , 'the past
union membership of Peters and certain members of her family, were developed at the
hearing before Trial Examiner Martin In the second proceeding, before Trial Examiner
Singer, Peters was called by the General Counsel. The Trial Examiner credited her,
noting, among other things, that Peters was then in the Respondent's employ and that
her testimony on one issue was'not unfavorable to the Respondent. ' In' the instant case,
the Respondent's position necessarily must be that sometime between the hearing in the
first proceeding and the hearing before me, Peters developed a hostility toward the Re-
spondent which makes her unworthy of belief I agree that the hostility existed when
she testified before me I agree too that it existed on July 11, 1963, when Peters told
some maids a falsehood concerning the illness of Lillie Mae Smith, as recited below.
With respect to the fact that Trial Examiners Martin and Singer credited Peters whereas
I discredit her, it should be noted that the circumstances under which she testified, some
of which I have referred to, differed in, each of the proceedings against the Respondent,
I also note that the seeds of disenchantment between Peters and Arnett were commented
upon by Trial Examiner Singer in footnote 16 of big Decision Those seeds could well
have developed into hostility before the termination of her employment and could have
been intensified by the facts surrounding the termination.
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Wills and Arnett concerning the latter's remarks to maids. I shall recite herein-
after a self-contradiction in Arnett's testimony concerning another conversation he had
with Peters. I add that neither Arnett nor Wills impressed me favorably. In sum-
-mary, I cannot determine with any assurance of accuracy just what. Arnett said to
Peters or to the maids.
Although the record does not establish that Arnett told Peters or the maids that
the latter were to wash the windows daily, the fact remains that Peters so instructed
-them. In addition to the testimony for the General Counsel to that effect, Wills testi-
fied for the Respondent that Peters so directed her, but that Wills did not comply with
the direction because the maids had never been required to wash the windows daily
and because there was inadequate working time in which to perform the task. Wills
testified further that she heard Peters direct other maids to wash the windows each
day. Moreover, the record is clear that within a day or two of Peters' direction,
the Respondent changed its brand of liquid for cleaning glass, and I credit Peters'
and Williamson's testimony that Peters gave quantities of the new solution to the
maids. -
Following Peters' direction to the maids, dissatisfaction and concern developed.
One maid suffered a miscarriage. The Respondent argues, as set out in the footnote,
that window washing could not have caused the miscarriage.5 Nevertheless, some
maids believed that there was a direct connection, however erroneous such belief
may have been. Later, on July 10, Lillie Mae Smith, a maid, was not feeling well
while at work, but it does not appear that she disclosed her condition to any fellow
employee. That night or early the next day, she went to a hospital for treatment for
gastritis. Smith's sister, Betty, telephoned Peters to report the ailment and to say
that Lillie Mae would be late for work and perhaps unable to work at all on July 11.
Peters told Betty Smith that the pains were due to washing windows .6 Within a short
while Peters told some of the maids that Lillie Mae Smith would not be at work that
day and that other maids would have to clean the rooms assigned to Smith. Peters'
said also, untruthfully, that Smith's absence was due to shoulder pains caused by
washing windows.? After discussions among themselves, later that morning approxi-
mately 11 maids went on strike, joining the employees who had struck 4 months
earlier. According to the Respondent, Peters provoked or contributed to the maids'
strike by saying falsely to some maids that Smith was suffering from shoulder pains
caused by washing windows. Wills testified for the Respondent that Williamson
asked her to walk out with the others, saying that Smith was in a hospital and that
Sheard had miscarried because of washing windows. Outside the motel, the striking
maids engaged in the picketing. When Sheard recovered from her illness, she engaged
in it too.
According to Williamson and the Union's representative, Yeargan, before the maids
struck be had become aware of their dissatisfaction and had suggested to Williamson
that they continue at work. Yeargan testified also that the Union did nothing to en-
courage the strike by the maids, that those employees "came out on their own," and
that the Union did not seek to bargain with the Respondent concerning the unilateral
5 Celia Sheard suffered the miscarriage. She last worked for the Respondent on July 2.
She was not scheduled to work the next day, and the miscarriage occurred before she
was due to report to work on the 4th. By the time she was able to work, the strike
of the maids was underway and she joined it. If Peters' Initial direction to the maids
to wash windows was given during the late afternoon of July 2 or later, any stretching
of the body or exertion in washing windows could not have contributed to Sheard's
miscarriage
6 The findings concerning the nature of the ailment are based upon the testimony of the
two Smiths, witnesses for the Respondent. The findings concerning the conversation be-
tween Betty Smith and Peters are based upon the testimony of the former. On the other
hand , Peters testified that Betty Smith told her that Lillie Mae Smith had shoulder pains
which might be attributed to washing windows I cannot credit Peters' testimony con-
cerning the conversation
7 Peters contradicted herself on this point, but acknowledged that she told some maids
that Smith was in a hospital for that reason On the other hand, Williamson testified
that Peters said that Smith was in a hospital with shoulder pains, and that the maids
themselves decided that the pains had been caused by washing windows. I do not believe
that Williamson's testimony on this point reflects dishonesty I think it possible that
Peters' remarks to some maids were not identical with her remarks to others. More-
over, it is clear that during a few hours after the maids reported for work on July 11
they discussed Smith's being in a hospital and, decided that Smith' s ailment was due to
washing windows. It is quite possible that Williamson's discussions with other maids,
rather than Peters' remarks to Williamson, dominated Williamson's memory on the point.
THE LITTLE ROCK DOWNTOWNER, INC. 725
change in the , maids' working conditions . Within a matter of hours after the maids
struck, however, Yeargan initiated this case by filing a charge in their behalf. It does
not appear that Arnett , if unaware why the maids struck , sought promptly to learn
the reason . According to Arnett , he "got busy right away hiring replacements" and
within a matter of hours had replaced all striking maids. Arnett testified also that at
an undisclosed time he asked Wills why other maids had struck , but he did not testify
concerning Wills' answer . ( Wills' testimony concerning Williamson 's remark to her
is recited near the end of the paragraph next above. ) Arnett testified further that he
was busy "getting our new maids trained " and that he could not recall talking with
Peters concerning the reason for the strike . He contradicted himself, however, by
testifying also that Peters told him that the strike was caused by one maid 's "having
a miscarriage and another girl reportedly to be in the hospital , and that they were
leaving before something happened to them .
Within 3 weeks, the maids decided to abandon the strike. On July 28, Cleoplus
Thompson applied to the Respondent for reinstatement . On or about August 1,
the following maids applied : Ethel Berry , Opeal Grey, Handley, Loving, Emma
Straw, Beatrice Taylor, Lizzie Taylor, and Williamson . On August 15, Sheard
applied . All were denied reinstatement.8
D. The question whether the change in the maids' working conditions
violated Section 8(a) (3)
As noted at the beginning of the factual recitation above, Williamson complained
to Yeargan that McCauley had been abusive toward some of the maids, following
which Yeargan asked the Respondent to correct the situation . As also noted above,
the maids constitute a classification of employees within the appropriate unit for
which the Union is the exclusive representative . According to the General Counsel,
because "the maids had taken no active part in the strike," the Respondent did not
know that any maid was "actively interested in the Union ." The General Counsel
asserts further that the Respondent 's requirement that the maids wash windows
daily "was made in retaliation for the concerted activities of the maids in attempting
to secure redress of their grievances [concerning McCauley ] through their duly
selected representative ." I disagree with the General Counsel's contention. I
have found that he did not sustain his burden of proof that Arnett directed that the
maids wash the windows daily. That finding alone dictates that the General Coun-
sel's contention must fail. Moreover , even if one should conclude that Arnett so
directed , the contention still must fail . There is no evidence in this case that any
striking maid other than Williamson had any contact with the Union prior to the
maids' participation in the strike. There is, however, in the first case against the
Respondent , a finding by Trial Examiner Martin that Arnett, in talking with a group
of maids, referred "to the union group and the nonunion group " among them. Ob-
viously, Arnett was aware that there were union adherents among the maids long
before Williamson appealed to Yeargan for aid to remedy McCauley's alleged
abusive conduct toward some maids . Although no maid joined the strike when it
began during March , this fact alone does not establish that the union adherents
among them ceased to be adherents . Indeed , Williamson joined the Union the day
after the strike commenced , but she continued at work .9 I shall recommend dis-
missal of this allegation.
E. The question whether the change violated Section 8(a) (5)
As recited , the Respondent's evidence establishes that, during early July, Peters
directed the maids to wash windows daily and that this working condition , although
8 The Respondent 's records establish that applications were made by Sheard, Thompson,
and the two Taylors . Other evidence establishes that the remainder made applications.
In this connection , early in the hearing the Respondent stipulated that applications were
made by Berry , Grey , Handley , and Straw Subsequently , the Respondent withdrew from
the stipulation , without objection by the General Counsel or the Union The stipulation
and later withdrawal are of no consequence The evidence proves that those four maids
applied.
In the second case against the Respondent, Trial Examiner Singer found that the
strike began on March 13 and that 19 employees participated It does not appear that
any of the 19 were maids , and the various classifications of employees who struck, as
listed by Trial Examiner Singer , does not include that of maids Trial Examiner Singer
found further that on ;lurch 13 the Respondent hired three maids , that in April it hired
one, and that in May it hired-nine . It does not appear that any of the newly hired
maids-replaced union sympathizers: - - . -
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a part of the maid' s manual , had not been enforced. Other evidence establishes
that some of the maids obeyed• Peters' direction until they struck on July 11. In
defense, the Respondent asserts that Peters, although a supervisor within the mean-
ing of the Act, was not authorized to institute the new working condition and that
she instituted it contrary to Arnett' s instructions . I conclude that, whatever may
have been Arnett's instructions (a point which I have been unable to determine),
the Respondent is responsible for Peters' action. She was- the maids' supervisor,
charged with the responsibility of seeing that they performed their work. She
possessed at least apparent authority to direct that they perform the duties set forth
in the maid's manual. The Respondent, through Peters' action, unilaterally changed
one of the maids' working conditions. Quoting from a determination of the Board
on a similar issue in the second proceeding involving the Respondent, 145 NLRB
1286, it is clear "that the rule adopted" in the maid' s manual "had been abandoned
by the Respondent and its revival in" July 1963 "constituted a new and independent
action concerning which Respondent was under an obligation to consult with the
Union." Continuing the quotation:
This is not to say that the Union's consent is a sine qua non for effecting
changes. Once an impasse is reached, the employer may unilaterally institute
any term and condition of employment which the Union has rejected in the
bargaining.
The question arises, however, in view of my failure to find that Arnett directed
Peters' action, whether the Respondent should he absolved of responsibility for
Peters' conduct because there is no evidence that the Respondent's representatives
who were engaged in bargaining with the Union were aware of Peters' conduct.
In this connection, we have seen that the Union did not inform the Respondent that
there had been a unilateral change in the maids' working condition , nor did the Union
seek to bargain about the change. On the other hand, we have seen that Arnett
acknowledged having talked to both Wills and Peters concerning the reason for the
strike by the maids. We have seen too that the maids joined in the strike and
picketing by other employees which was in progress. Too, on the day that the
maids struck, the Union filed the charge which initiated this case, alleging invalid
discrimination against certain maids and that the Respondent had refused to bargain
collectively with the Union since on ",or about July 1, 1963," the approximate date
that Peters changed the working conditions. A copy of the charge was served upon
the Respondent within a few days and thereby the Respondent's representatives were
put on notice that unfair labor practices involving the maids had allegedly occurred
Under all these circumstances, if the Respondent's representatives were unaware of
the unilateral change in working conditions, and if they failed to inquire and learn
of the change, the Respondent should not be absolved of responsibility for Peters'
conduct. On the other hand, if those representatives were aware of the unilateral
change, they failed to notify the Union that they repudiated it. In either event,
I conclude that the Respondent, by the unilateral change, violated Section 8(a)(5)
and (1).
F. The maids' participation in the strike; their right to reinstatement
As recited, about 11 of 16 maids struck on July 11. They joined unfair labor
practice strikers who had struck about 4 months earlier. The General Counsel argues
that the maids' strike was "in protest of, and only in protest of, the change in [their]
working conditions . . . " [Emphasis supplied.] On the other hand, the Respond-
ent. arguing that the maids had no reasonable basis upon which to conclude that
Sheard's miscarriage and Smith's pains had been caused by washing windows, asserts
that the "walkout had all the earmarks of a pre-conceived and smoothly-engineered
plan, a plan which wac fortuitrucly enhanced by the timely sickness of Lille Mae
Smith as reported on the day of the [maids'] strike." The Respondent asserts also
that,
. . . the real for the walkout was never explored on the record. This reason we
suggest, but have no way of proving, centers around the continuation of the
partial strikes and other harassment directed against the Respondent by the
Union in an effort to break the deadlock in negotiations which has existed for
some time.
'We have seen'that the evidence is to the effect that the Union did not instigate the
maids' strike and, indeed that Yeargan and Williamson testified that be told the latter
before the strike that the maids should continue at work. If it be true, as the
Respondent suggests, that the maids str"* because of encouragement by the Union
to do so, not because of the unilateral change in their working conditions, it would
THE LITTLE ROCK DOWNTOWNER; INC. 727
not follow necessarily that they became economic strikers instead of unfair labor
practice strikers. As we have seen, Trial Examiner Singer and the Board held in the
second of the proceedings against the Respondent that the strike which began on
March 13 was an unfair labor practice, strike. The maids were in the unit rep-
resented by the Union. If there were evidence that the maids joined the strike at the
instigation of the Union, the evidence might establish that they were unfair labor
practice strikers, in which event the principal issue in this case, the right of the maids
to reinstatement upon application, might be resolved in the maids' favor on a ground
other than that advanced by the Gentral Counsel.ia But there is no evidence that the
Union encouraged the maids to strike, although, as the Respondent says, it is clear
that when the maids ceased work they "were dove-tailed into the picket line without
even a conference.. "
The record warrants only one finding as to why the maids struck, i.e., they struck
in protest against the requirement that they wash windows daily. They believed
that such task had caused Sheard to miscarry and Smith to suffer shoulder pains,
and they feared that mishaps might occur to other maids. Aside from the General
Counsel's evidence to this effect, Wills testified for the Respondent that Williamson
gave this reason for the maids' strike, and Arnett testified that after the strike was
underway Peters reported the same reason to him. It is true, as the Respondent
says, that Smith's pains were not a result of having washed windows. It may be
true, and the Respondent says it is, that Sheard's miscarriage was unrelated to wash-
ing windows. Contrary, however, to a contention which the Respondent may ad-
vance, the maids were not obligated to ascertain the facts. Like many human
beings, they formed opinions in this instance on the basis of hearsay and perhaps
gossip among themselves, but the reinstatement issues in this case do not turn upon
whether their belief concerning Sheard's and Smith's illnesses was well founded.
However erroneous that- belief, the maids struck in protest against having to wash
windows daily, a condition of employment which the Respondent-had fixed unilat-
erally. It follows that the maids were unfair labor practice strikers, entitled to rein-
statement upon their applications therefor. The Respondent, in treating them as
economic strikers who had been replaced by newly hired employees, and in rejecting
their applications for reinstatement, violated Section 8(a)(3) and (1).
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce, I shall recommend that it cease and desist therefrom and that it take
affirmative action to effectuate the policies of the Act. In particular, I shall recom-
mend that the Respondent offer Ethel Berry, Opeal Grey, Magnolia Handley, Caro-
lyn Loving, Celia Sheard, Emma Straw, Beatrice Taylor, Lizzie Taylor, Cleoplus
Thompson, and Rose Williamson immediate and full reinstatement to their former
or substantially equivalent positions (The Chase National Bank of the City of New
York, San Juan, Puerto Rico, Branch, 65 NLRB 827), without prejudice to their
seniority or other rights or privileges, dismissing, if necessary, any persons hired
by the Respondent on and after July 11, 1963. I shall also recommend that the
Respondent make whole each of said employees for any loss of pay she may have
suffered by reason of the Respondent's refusal to reinstate her, by payment to her
of a sum of money equal to that which she normally would have earned from 5 days
after her request for reinstatement 11 to the date of a proper offer of reinstatement,
less her net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during
said period, the payment to be computed on a quarterly basis in the manner estab-
lished in N.L.R.B. v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S. 344, with 'in-
terest at 6 percent per annum, N.L.R.B. v. Globe Products Corp., 322 F. 2d 694
(C A. 4); Revere Copper and Brass, Inc. v. N.L.R.B., 324 F. 2d 132 (C.A. 7). I
shall recommend further that the Respondent preserve and, upon' request, make
available to the Board or its agents, for examination and copying, all payroll records,
"See N L B B. v Riles-Coleman Lamber Co. 98 F 2d 18, 23 (C.A 9), wherein' it is
said, "There is nothing in the Act which limits the reinstatement remedy . . . to strik-
ing employees who are primarily and directly aggrieved by an unfair labor practice which
causes a strike. . . It is sufficient here to hold that any of these 600 employees of this
single employer who strikes by reason of unfair labor practices directed against any of
the 600 has a sufficiently immediate relation to such practices to warrant the Board in
requiring his reinstatement " -
11 For Thompson this date is August 2. For Sheard the date is August 20. - For the
remaining eight maids named above, the date is on or about August 6, all dates being
in 1963. -
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
social security payment records , timecards , personnel records and reports, and all
other records necessary to analyze the amounts of backpay and the rights to rein-
statement under the terms of this Recommended Order.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in said section . N.L.R.B. v. Express Publishing
Co., 312 U.S. 426; N.L.R.B. v. Entwisitle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. All regular full-time and part -time employees of the Respondent at its Little
Rock, Arkansas, place of business , including front office employees, porters, cleanup
men, maids , waitresses , cooks, cashiers , dishwashers , potwashers , and room service
employees, exclusive of office clerical employees , professional employees , watchmen
and guards , and supervisors as defined in the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
3. On October 30, 1962 , the Union was, and at all times since it has been, the
exclusive representative of all employees in said unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of their
rights under the Act, by discouraging membership in the Union through discrimina-
tion in employment , and by unilaterally changing the working conditions of the
maids, the Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1), (3 ), and (5 ) and Sec-
tion 2 ( 6) and (7).
5. The allegation of the complaint that the Respondent violated Section 8(a)(3)
by unilaterally changing the working conditions of the maids has not been sustained.
[Recommended Order omitted from publication.]
Brewery Workers Union No. 8, International Union of United
Brewery, Flour, Cereal , Soft Drink & Distillery Workers of
America, AFL-CIO and Bert P. Williams, Inc. Case No. 1-CC-
360. August 31, 1964
DECISION AND ORDER
On October 4, 1963, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices, and recommending that
it cease and desist therefrom, and take certain affirmative action as set
forth in the attached Trial Examiner's Decision. Thereafter, the Re-
spondent and the General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs. The Charging Party filed
an answering brief to the Respondent's exceptions.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case.' The Board adopts the findings of fact made by the Trial
1 As the record , exceptions , and briefs adequately present the Issues and positions of
the parties , the Respondent 's request for oral argument Is hereby denied.
148 NLRB No. 70.