The Ramada Inn

National Labor Relations Board - Board Decisions

Jun 25, 1968

172 N.L.R.B. 248 (N.L.R.B. 1968)

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Denmac Corporation , d/b/a The Ramada Inn and
Anna Marie Hawkins . Case 23-CA-2929
June 25, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On April 19 , 1968, Trial Examiner Paul E. Weil
issued his Decision in the above -entitled proceed-
ing, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
in violation of the National Labor Relations Act, as
amended , and recommending that the Respondent
cease and desist therefrom and take certain affirm-
ative action , as set forth in the attached Trial Ex-
aminer 's Decision . Thereafter , the Respondent filed
exceptions to the Trial Examiner 's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended , the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 Examiner 's Decision , the exceptions and brief,
and the entire record in the case, and hereby
adopts the findings , conclusions , and recommenda-
tions of the Trial Examiner ,' as modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Denmac Corporation,
d/b/a The Ramada Inn, Beaumont, Texas, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Trial Examiner 's Recom-
mended Order, with the following modifications:
1. Insert the following as paragraph 2(b), and re-
letter the remaining paragraphs as 2(c ), 2(d), and
2(e), vice 2(b), 2(c), and 2(d):
' Hawkins testified that she had been informed by a waitress sometime
before December 28 that Respondent was in desperate need of waitresses
We do not rely on Hawkins ' testimony as evidence of the fact of need, but
only as an explanation for Hawkins ' specific application for employment on
December 28 There is other evidence in the record to support the Trial
Examiner 's finding that waitress Billie Joe Litton left Respondent 's employ
before December 28 and that Respondent did have need for another
waitress
"(b) Notify Anna Marie Hawkins, if presently
serving in the Armed Forces of the United States,
of her right to full reinstatement, upon application,
in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces."
2. Add the following immediately below the
signature line of the Appendix attached to the Trial
Examiner's Decision:
Note: We will notify Anna Marie Hawkins, if
presently serving in the Armed Forces of the
United States, of her right to full reinstate-
ment, upon application, in accordance with the
Selective Service Act and the Universal Milita-
ry Training and Service Act, as amended, after
discharge from the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On a charge filed
January 12, 1968, by Anna Marie Hawkins, an in-
dividual, the General Counsel issued his complaint
on February 12, 1968, against Denmac Corpora-
tion, d/b/a The Ramada Inn, hereinafter called
Respondent, alleging that Respondent since
December 28, 1967, has been in violation of Sec-
tion 8(a)(1) and (3) of the Act by refusing to
rehire the Charging Party because of her activities
on behalf of the Union and because she engaged in
other concerted activities. Respondent by its duly
filed answer admitted the refusal to rehire Mrs.
Hawkins but contended that its decision was
reached for good cause rather than for the reasons
alleged by the General Counsel.
At the hearing held on March 18, 1968, at Beau-
mont, Texas, all parties were present and had an
opportunity to examine and cross-examine wit-
nesses, adduce documentary evidence, and argue
upon the record. At the close of the hearing the
parties all waived oral argument and the filing of
briefs. Upon the entire record in the case and from
my observation of the witnesses, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation operating a
motor hotel and restaurant in Beaumont, Texas,
from which it annually receives gross revenue in ex-
cess of $500,000. During the 12 months preceding
the issuance of the complaint, Respondent
purchased and received goods valued in excess of
$1,000 shipped directly to it from points outside
the State of Texas. During the same period in ex-
cess of 75 percent of its gross revenues was
received by Respondent from rental payments of
172 NLRB No. 25
THE RAMADA INN 249
guests at the motor hotel who resided there for
periods less than I month . Respondent is, and at all
times material herein has been , an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 750, Hotel, Motel, Restaurant and
Club Employees Union, hereinafter called the
Union, is now and has been at all times material
herein a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
At all times relevant, in the operation of the
Ramada Inn in Beaumont Respondent has em-
ployed approximately 75 employees who worked in'
the front office, as maids and custodial help at the
hotel and as cooks, waitresses, busboys, and
custodial help in the restaurant portions of the en-
terprise. In July 1966 Ben H. Roberts was ap-
pointed manager.
In February 1967 the minimum wage law became
applicable to Respondent's employees. The applica-
tion of the law required that employees who
received tips and gratuities in the course of their
employment report such tips to management, ap-
parently in whole or partial satisfaction of the
minimum wage required to be paid them. Misun-
derstanding and resistance to this requirement on
the part of some of the employees led to strained
relationships between some of the employees, par-
ticularly the busboys and waitresses, and Manager
Roberts.
On March 18, 1967, the Union demanded recog-
nition as the collective -bargaining agent of all
Respondent's employees with the statutory excep-
tions. A petition was filed and an election con-
ducted pursuant to which the Union was certified
as the collective-bargaining representative of the
unit sought. The Charging Party was the Union's
observer at the election and after certification of
the Union became its business agent and a member
of the negotiating committee. After extended and
apparently hard negotiations a contract was ex-
ecuted on December 8 by Respondent's president
and by the president and the Charging Party, as
secretary-treasurer, of the Union.
The Alleged Violation
Anna Marie Hawkins was an experienced
waitress when she commenced work at Respon-
dent's place of business on September 1, 1965. She
worked until Thanksgiving Day, 1965, at which
time she left to have a baby. The baby was born in
May and when it was 2 weeks old Respondent's
head waitress, Wilma Leger, called Mrs. Hawkins
asking when she could come back. Miss Leger
called again 2 weeks later and asked Mrs. Hawkins
to come back for a few hours a day. She worked for
several days and found that she had gone back to
work too soon. Finally, she returned to work in
June 1966. She continued working from then until
on or about August 25, when she notified Manager
Roberts that she was resigning because she had
been offered a job as a manager. He said he was
sorry to hear that she was leaving and she rejoined
that he knew he was glad to see her leave because
he had always considered her the leader of the
Union. He answered, "I can't say that. I have al-
ways considered you as one of my finest dining
room waitresses."
Mrs. Hawkins parted company with her new job
after 5 days' employment. Thereafter she attempted
to find work elsewhere and at some undisclosed
time in November or December applied to Mrs.
Gravatt, the manager, with her husband, of Respon-
dent's restaurant at that time. Mrs. Gravatt told her
that it was not necessary for her to fill out an appli-
cation.
Sometime prior to December 28, Mr. and Mrs.
Gravatt were discharged. A waitress , Billie Joe Lit-
ton,' left the Respondent's employ at the same
time. One of the waitresses called Mrs. Hawkins
and told her that they were desperately in need of
waitresses and asked her to put in an application.
On December 28, Mrs. Hawkins filled out an appli-
cation which she got from Manager Roberts.
Roberts said that he would put the application on
file and give it every consideration. She told him
that she needed to work and would work days,
nights, or part time. Roberts answered that he
would consider it.
On January 2, Donna Hutchinson came to the
Ramada Inn to make application. She did not ex-
pect to be hired and apparently did not want to be
hired but was required in order to continue drawing
unemployment compensation to apply to at least
three places. However, Roberts recognized her as a
girl who had waited on him when he had stayed at
another motel and told her to report to work the
next day. At the time Roberts hired her he said
something about backdating her application, and
explained that "some of the members of the Union
had filled out an application form and if she back
dated it on her application it would come up before
her's did." The application was never backdated.
Mrs. Hutchinson testified that she thought that
she would not be employed by Respondent because
she understood it was a union shop. On the occa-
sion of her hire Roberts asked her if she was union
' Possibly Billie Joe Linton , whose application is in evidence as Respon-
dent 's Exhibit 8
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and she told him she was not; that she would rather
not work if she had to join the Union. He assured
her that she would not have to do so.
On January 17 according to the records of the
Texas Employment Commission, Respondent,
through its then restaurant Manager Taylor,'
requested a waitress for a hotel restaurant to wait
on tables and a counter. The Commission's record
indicates that employees were referred on January
17 and 18, but that on the 22d none had yet ap-
plied. On the 25th one applied and Respondent re-
ported to the Commission that they might hire her.
Finally, on the 31st, the first employee referred,
Tommy Lou Wilcox, was hired. The order for em-
ployees was then canceled.
Manager Roberts first testified that he did not
apply to the Texas Employment Commission for
employees at any time after Hawkins had filed her
application. Later he acknowledged that Taylor
might have done so but that he didn't know about it
and he stated that Taylor had the authority to apply
for applicants in order to build up his file of appli-
cations. With regard to Tommy Lou Wilcox he
testified that she was hired to work in the club but
not as a restaurant waitress.
Manager Roberts testified that when Anna Marie
Hawkins applied for her job he did not need a
waitress. Thereafter he needed a waitress on Janu-
ary 2 and Donna Hutchinson had meanwhile ap-
plied. He testified that he weighed Anna Marie
Hawkins against Donna Hutchinson and chose
Hutchinson because "I couldn't get it out of the
back of the mind that she [Anna Marie Hawkins]
was some sort of a troublemaker. I had had trouble
with her ever since February of 1967 ...." How-
ever he also testified that the need for a waitress
was occasioned by the fact that Billie Joe Litton
had quit. He testified that she quit at the same time
the Gravatts were discharged and he testified that
the Gravatts were discharged prior to December
28. Accordingly it is clear that at the time Hawkins
applied he needed a waitress but did not fill the job
with Hawkins. When 5 days later Mrs. Hutchinson
appeared he hired her without delay and advised
her at that time that at some time in the future he
would ask her to backdate her application.'
Early in the proceeding Respondent appeared to
contend that Roberts declined to rehire Mrs. Haw-
kins because she had quit. He testified that as a
matter of policy, "We just don't like to rehire peo-
ple who have quit." However, it is clear that when
Mrs. Hawkins quit Roberts himself contacted Ada
Holmes, who had quit his employ earlier, to take
Hawkins' place. Nell Prothro who also quit when
she was married was rehired by Respondent. If in
fact Respondent has any policy against rehiring em-
ployees who quit, it apparently is a policy that is
Y Roberts testified that Taylor was hired around February I or 15 He
also testified that Taylor was hired a week or two after the departure of the
Gravatts which occurred before December 28. At any rate it appears clear
that Taylor was restaurant manager on January 17
honored more in the breach than in the observance
except with regard to Mrs. Hawkins.
I view Roberts' testimony that he did not reem-
ploy Anna Marie Hawkins because she was a
troublemaker as dispositive of the issue in- this case.
He testified that the troublemaking that he had
reference to was trouble with the busboys and the
other waitresses who had apparently refused to fill
out reports of their tips in February 1967. How-
ever, he testified that Mrs. Hawkins never refused
to fill out such report. Obviously he blamed her for
their refusal. This in itself is indicative of the fact
that it was the concerted activity of the busboys,
the waitresses, and Mrs. Hawkins to which he had
objection. Thereafter, it is clear that during the ex-
tended negotiations for a contract attended both by
Mrs. Hawkins and Manager Roberts no love was
lost between them. While Roberts attempted to
give the impression that there had been no trouble
between Hawkins and him since February 1967, the
following took place on his cross-examination by
the General Counsel.
Q. My question is, after these incidents
relating to the minimum wage law, after that
was straightened out, did you still consider her
a troublemaker for her activities after that?
A. I gave her very little-I stayed out of it as
much as possible, and I had no reason to con-
sider that she was giving me any trouble at that
time.
Q. So at this time, then, you do not consider
her a troublemaker, during the period after
February or March of '67. Is that correct?
A. Once a troublemaker-no, I didn't have
any more trouble with her after that.
I do not credit Respondent's Manager Roberts.
His attempt to leave an impression that there was
no job opening when Mrs. Hawkins applied con-
tradicted both by his own testimony and by that of
Mrs. Hawkins, as well as by the date of her applica-
tion, is obviously false. The false start in the last
answer quoted above, I find very illuminating.
While due to his evasive answers it is at times dif-
ficult to deduce his rationale for not hiring Haw-
kins, to the extent that it can be deduced, it appears
to boil down to four separate points: First, there
was no job available when she applied. This is con-
tradicted as I have set forth above. Second, he had
a policy not to rehire employees who had quit,
which appears to be disproved by Respondent's
own evidence. Third, no one else was hired, other
than Mrs. Hutchinson against whom Hawkins did
not compare favorably. But the record reveals that
while Roberts himself may not have hired other em-
ployees his restaurant manager hired at least two
and had, in fact, a call to the State Employment
Commission for a period of at least 5 days during
' I do not credit Roberts' equivocal testimony with regard to his conver-
sation with Mrs. Hutchinson, and I credit Mrs Hutchinson 's account
THE RAMADA INN 251
which he appears to have needed a waitress.
Roberts testified that the girl hired as a result of
that call went to work in the club, which was obvi-
ously run by the motel under his ultimate supervi-
sion. It also appears that Glenda Hutchinson was
hired either on a full- or part-time basis during
January, and worked as a waitress initially. Finally,
Roberts' characterization of Mrs. Hawkins as a
troublemaker was an obvious reference either to
her engaging in concerted activity prior to the ad-
vent of the Union or to her activities on behalf of
the Union. I believe in view of Roberts' testimony
that Mrs. Hawkins was a thorn in his side as the
spokesman for the Union. I believe that in the last
answer quoted above he started to say "once a
troublemaker always a troublemaker." It was no
mere reference to an occurrence almost a year be-
fore that caused him to refuse to hire her on
December 28. Accordingly, I find that Respondent
violated Section 8(a)(1) and (3) of the Act by the
refusal to hire Anna Marie Hawkins on December
28.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent 's operations described in section I,
above , have a close, intimate , and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent failed and
refused to hire Anna Marie Hawkins in violation of
Section 8 ( a)(1) and (3) of the Act, my Recom-
mended Order will provide that Respondent cease
and desist from such violations of the Act and that
it offer Mrs. Hawkins employment as a waitress and
make her whole for any loss of pay she may have
suffered as a result of the refusal to hire her by pay-
ment of a sum of money equal to that which she
would have earned as wages from the date of
Respondent's refusal to hire her to the date of
Respondent's offer of employment less her net
earnings during such period, computed quarterly,
with interest in accordance with the formulae
prescribed in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB
716. Because the earnings of waitresses are in part
derived from tips and gratuities from customers the
computation of backpay shall include the computa-
tion of the sum of money reasonably to be expected
in that form.4 I note that such computation should
not be difficult in view of the fact that waitresses
are apparently required to provide statements of
tips to Respondent from which such earnings may
be deduced. Payroll and other necessary records in
possession of Respondent are to be made available
to the Board or its agents to assist in such computa-
tions.
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7)of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to hire Anna Marie Hawkins
because of her concerted activity and because of
her union activity, Respondent has discriminated
against employees in violation of Section 8(a)(3) of
the Act and has interfered with, restrained, and
coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act thereby engag-
ing in unfair labor practices in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
RECOMMENDED ORDER
The Respondent, Denmac Corporation, d/b/a
The Ramada Inn, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Refusing to hire employees or otherwise dis-
criminating in regard to the hire and tenure of em-
ployment or any term or condition of employment
because they have engaged in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection or to discourage member-
ship in any labor organization.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of their right to engage in or to refrain from
engaging in any or all of the activities specified in
Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Anna Marie Hawkins employment
as a waitress at its Beaumont, Texas, facility and
make her whole for any loss of pay she may have
suffered by reason of Respondent's refusal to hire
her in the manner set forth in the section entitled
"The Remedy."
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records and reports and all
4 Holiday Inn of Charleston, 147 NLRB 693
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other records necessary or useful to determine the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its Beaumont, Texas, facility copies
of the attached notice marked "Appendix. "I Copies
of said notice, on forms provided by the Regional
Director for Region 23, shall be posted by the
Respondent after being duly signed by its represent-
ative, immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 23,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.'
In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words " a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words " a Decision
and Order."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to hire any applicant for
employment or otherwise discriminate in re-
gard to hire, tenure of employment, or any
term or condition of employment of any of our
employees because they have engaged in con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection or
in activities on behalf of any labor organiza-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to engage in or to
refrain from engaging in any or all of the ac-
tivities specified in Section 7 of the Act.
WE WILL offer Anna Marie Hawkins im-
mediate employment as a waitress at the
Ramada Inn and will pay her backpay to reim-
burse her for the wages and tips she lost as a
result of our refusal to hire her.
DENMAC CORPORATION,
D/B/A THE RAMADA INN
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
228-4296.