Baker Hotel of Dallas, Inc.

National Labor Relations Board - Board Decisions

Sep 28, 1962

138 N.L.R.B. 1123 (N.L.R.B. 1962)

BAKER HOTEL OF DALLAS, INC. 1 1 23
Baker Hotel of Dallas, Inc. and Hotel-Motel -Restaurant & Club
Employees Union , Local 353, AFL-CIO. Case No. 16-CA-1534.
September 28, 1962
DECISION AND ORDER
On March 22,1962, Trial Examiner Phil Saunders issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also recommended that certain other allegations
of the complaint be dismissed. Thereafter, the Respondent and the
General Counsel filed exceptions to the Intermediate Report, together
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions , and recommen-
dations of the Trial Examiner, with the exceptions and additions
noted below.'
1. We agree with the Trial Examiner's findings that the Respond-
ent interfered with, restrained, and coerced its employees in violation
of Section 8(a) (1) of the Act by interrogating employees concerning
their sentiments with respect to the Union, threatening them with
loss of employment if the Union were successful in the representation
election, and making promises of benefits if the Union were not
selected.
2. We also agree with the Trial Examiner that the Respondent
discharged Lorrayne Johnson because of her activity on behalf of
the Union, thereby discriminating against her in violation of Section
8(a) (3) and (1) of the Act.
3. Contrary to the Trial Examiner, we find that Evelyn Williams
also was discharged for unlawful reasons.
Williams was employed by Respondent in 1955. As found by the
Trial Examiner, Respondent's witnesses characterized her as a good
elevator operator. Like Johnson, she served as an observer for the
' We find without merit Respondent 's contention that the Board lacks jurisdiction over
its business . Jurisdiction was asserted over the Respondent in 134 NLRB 524 and the
instant record does not disclose any change in commerce facts which would warrant a
different holding
138 NLRB No. 120.
662353-63-vol. 138-72
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union in the April 11, 1961, representation election. On April 24,
confronted with an emergency, and with no one present to relieve
her, Williams parked her elevator at the basement level, with the
switch down, and hurried to the restroom. She returned to her ele-
vator in 2 or 3 minutes. Shortly thereafter, she was told by McGuire,
her immediate supervisor, who had learned of her momentary ab-
sence, that since she and Johnson "are mixed up in this union mess
... I've got to lay you off." 2 When Williams called McGuire on the
following Thursday, as he had suggested she do, she was told to take
off the rest of the week. When she called back on Monday, and again
on Tuesday, of the following week, McGuire told her he had not yet
heard from Manager Graham in the matter. This treatment by
McGuire, which is more fully described in the Intermediate Report,
resembles that which was accorded Johnson. Neither was rehired.
All these circumstances, particularly considered in the context of
Respondent's unlawful conduct shortly before Williams' discharge,3
persuade us that Williams, like Johnson, was discharged because of
her union activity and not because she left her elevator unattended
momentarily in the circumstances described above. We conclude that
Williams' discharge also violated Section 8(a) (3) and (1) of the Act.
We shall therefore require the Respondent to reinstate her with back-
pay in the manner provided for in "The Remedy" section of the In-
termediate Report with respect to Johnson. The backpay obligation
of the Respondent as to the discriminatees shall include the payment
of interest at the rate of 6 percent to be computed in the manner set
forth in Isis Plumbing c6 Heating Co., 138 NLRB 716.4
ORDER
The Board adopts the Recommendations of the Trial Examiner as
its Order, with the following changes :
(a) Substitute the following for paragraph 2(a) therein :
Offer Evelyn Williams and Lorrayne Johnson immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings suffered by reason of
the discrimination against them, in the manner set forth in the sec-
tion of the Intermediate Report entitled "The Remedy," and in the
decision above.
2 Although McGuire denied a portion of the statements attributed to him by Williams.
he did not deny having made this particular statement.
s Also see the earlier case against Respondent in which the Board found the discharge
of another employee for antiunion considerations.
* For the reasons set forth in the dissent in Isla Plumbing & Heating Co , supra, Mem-
ber Leedom would not grant 6 percent interest on backpay , and does not approve such
award here.
BAKER HOTEL OF DALLAS, INC. 1125
(b) Delete the paragraph below 2(d) of the Recommendations
and substitute therefore :
It is recommended that the allegations of the complaint as to
Manager Graham's statements be dismissed.
(c) In the appendix to the Intermediate Report, substitute the
following for the next to the last paragraph :
WE WILL offer to Evelyn Williams and Lorrayne Johnson im-
mediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority and
other rights and privileges, and make them whole for any loss
of pay suffered as a result of the discrimination against them.
(d) The following note will appear immediately below the signa-
ture in the notice :
NOTE.-We will notify any of the above-named employees
presently serving in the Armed Forces of the United States of
their right to full reinstatement upon application in accordance
with the Selective Service Act after discharge from the Armed
Forces.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges filed by Hotel-Motel-Restaurant & Club Employees Union, Local
353, AFL-CIO against Baker Hotel of Dallas, Inc ., herein called the Hotel, Respond-
ent, or the Company, the General Counsel issued a complaint and amended com-
plaint alleging that the Respondent had engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act.' The Re-
spondent filed an answer denying the commission of the alleged unfair labor prac-
tices. A hearing, at which all parties were represented by counsel, was held before
Trial Examiner Phil Saunders at Dallas, Texas, on November 30, December 1, 4,
5, 6, and 7, 1961 .2 All parties were afforded full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence pertinent to the
issues. The General Counsel and counsel for the Respondent submitted briefs, which
I have fully and carefully considered . Reserved rulings are in accordance with my
findings herein.
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
In this proceeding I take official and judicial notice of the Board 's decision in
Baker Hotel of Dallas, Inc., 134 NLRB 524. In this decision the Board affirmed the
Trial Examiner , and for jurisdictional purposes the Intermediate Report therein
stated the following:
1 On August 25, 1961, the original charge was filed which related to the alleged un-
lawful discharge of elevator operator Lorrayne Johnson On September 13, 1961, a first
amended charge was filed, which related to the alleged improper discharge of Lorrayne
Johnson and elevator operator Evelyn Williams and other acts and conduct which re-
strained and coerced employees . On October 12, 1961, the original complaint was filed
alleging the unlawful discharge of the above two elevator operators , and on October 25,
1961, an amended complaint was filed alleging the discharges of Williams and Johnson,
and also alleging certain coercive statements of Respondent ' s supervisors.
2 All dates are 1961 unless specified otherwise.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent, a Texas corporation, operates a hotel, known as The Baker,
at Dallas, Texas. The Baker has about 585 guestrooms. Less than 75 percent
of its guests stay at the hotel for a month or longer. During the year preceding
the date of the issuance of the complaint, a representative annual period, the
Respondent's gross revenues exceeded $500,000. During that same annual
period, the Respondent purchased and had shipped to its hotel from sources
outside the State of Texas goods, equipment, and supplies having a value in
excess of $10,000. In line with the established Board authority, and contrary
to the contention of the Respondent, it is found that the Respondent is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act. See, e.g,
Floridan Hotel of Tampa, Inc., 124 NLRB 261.
In accordance with the above, it is found in the instant proceeding that the Re-
spondent is engaged in commerce within the meaning of the Act .3
II. THE LABOR ORGANIZATION INVOLVED
Hotel-Motel -Restaurant & Club Employees Union , Local 353, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Initial contentions, findings, and conclusions in respect thereto
Prior to the hearing in this case Respondent filed a motion to strike paragraphs
10 and 11 of the amended complaint, which was again presented and argued at the
hearing.4 The Respondent contends that neither the original charge nor the first
amended charge sets forth any facts whatsoever relating to independent 8(a)(1)
violations, and that the alleged 8(a) (1) violations are completely different in nature
from those involved in the 8(a)(3) discharges and not even remotely connected.
Counsel for the Company further argues that the 6 months' limitation provided in
Section 10(b) of the Act, and the lack of any charge alleging any facts relating to
independent 8(a) (1) violations, bars the Board from trying the Respondent on
the 8(a)(1) violations alleged in paragraphs 10 and 11 of the amended complaint.
At the hearing I denied the Respondent's motion to strike, and I reaffirm and make
the same ruling here.
The amended charge in the proceeding was dated September 13, and duly served
upon the Respondent on September 14. The prior 6 months' limitation or cutoff
date is therefore March 14.5 Its relevant part states as follows: "By the acts set
forth above, and by other acts and conduct, it, by its officers, agents, and employees
has interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act." The purpose of the charge is not to define the
issues to be tried with the precision that is sought normally in pleadings in lawsuits.
The purpose of the charge is to give the Board a preliminary basis for determining
whether to proceed in the investigation of the case. For this purpose it is, of course,
not essential that the charge be precise. Indeed, it would hardly be consistent with
the general investigatory nature of the action on the charge to confine the subsequent
complaint to its allegations. Moreover, at the very least this charge puts the Com-
pany on notice that by their other "conduct" and "acts" it has interfered with rights
of employees guaranteed by Section 7 of the Act. In accordance with the above, I
find a legally sufficient relationship between the subject matter of the charge and
the allegations of the complaint .6
The Respondent further argues that the Trial Examiner was in error in granting
the General Counsel's petition to revoke subpenas, that it was in error to refuse
into evidence a memorandum prepared by a Board attorney, and the Respondent
apparently also contends that certain indiscretions were used by the General Counsel
in the investigative stage of this proceeding. The Board's Rules clearly provide
that its agents and attorneys need not testify or present any files or records, unless
3 Judicial notice is also taken of the Respondent's representation Case No 16-RC-2825
(not published in NLRB volumes).
4 Paragraphs 10 and 11 allege that the Respondent, between March 15 and April 10,
questioned and interrogated employees about their union activity, and also alleges that
the Company warned and threatened its employees of discharge and payroll reductions or
pay under certain circumstances If the Union was successful in organizing the Respond-
ent's Hotel.
It has been repeatedly held that the date for tolling the 6 months' limitation is the
date on which the charge is served
6 See N.L.R.B. v Kingston Cake Company, Inc., 191 F 2d 563 (C.A. 3).
BAKER HOTEL OF DALLAS, INC. 1127
permission- is expressly given in writing by the General Counsel or the Board.7 The
different time elements and factors involved in the filing of charges, the complaint,
and the taking of affidavits appear to be in the ordinary course of proper procedures,
and determinations were then made upon whatever circumstances the various investi-
gations disclosed.
The Respondent's answer admits that General Manager Graham, Superintendent
of Service Walker, and Housekeeper Hatcher are supervisors within the meaning
of Section 2(11) of the Act. At the hearing, it was stipulated between the parties
that Kitchen Chef Edmond Kasper, former auditor and now Resident Manager
Witte, and Assistant Manager Welch are also supervisors within Section 2(11)
of the Act.
In addition to the above the General Counsel alleges that Head Elevator Starter
Jerry McGuire is a supervisor while the Respondent contends that he is not There
is credible testimony in the record that McGuire, as head elevator starter in the
Respondent's Hotel, has under his specific control and supervision a complement of
approximately 24 elevator operators. There is further credited and admitted evidence
that McGuire's duties consist of full authority to assign operators to any of the three
daily shifts and to change the shifts as he alone determines, that he prepares and
executes the work schedules of all the operators, that he makes complete arrange-
ments for all time-off periods, that he likewise sets the holiday schedules for all
elevator operators, and that he would criticize or compliment operators on different
occasions and circumstances. McGuire testified that he had no authority to hire
or fire the elevator operators without first getting the approval of Superintendent
Walker, his immediate boss, but that he did make recommendations in this respect.
Superintendent Walker stated that McGuire does not have authority to hire and fire
operators, but that he does have authority to make recommendations on the same.
As to the weight given McGuire's recommendations, Walker affirmed that they would
be given very serious consideration, and that his recommendations would have a
substantial bearing upon whether or not any operator was hired or fired. Also
in this respect, General Manager Graham agreed that McGuire's recommenda-
tions would be "pretty" largely followed. From the credible and admitted testimony
in respect to the duties and responsibilities of McGuire, it appears to me that he is
responsible for the operations in his division. In furtherance thereof, McGuire,
at his own discretion, assigns and reassigns the work and overtime of the elevator
operators, and changes employees from one shift to another depending on the in-
dividual circumstances. The record further reveals that he spot checks the work of
the operators, answers their questions, on occasions instructs them as to their duties,
is responsible for the maintenance of discipline, and administers verbal reprimands
for improper conduct. In addition McGuire makes effective recommendations to
his department head, Walker, as to whether applicants are to be hired and whether
operators are to be discharged. Admittedly his recommendations in this respect are
given serious consideration and have a substantial bearing. In view of the fact that
the authority exercised by McGuire is not of merely routine or clerical nature, but
requires the use of independent judgment, as aforestated, coupled with the authority
to make effective recommendations in hiring and firing, I find that Head Elevator
Starter McGuire is a supervisor within the meaning of Section 2(11) of the Act.
B. Events
The record established that starting April 3, the Respondent held three different
series of meetings with the employees. The Respondent's General Manager Graham
testified that management had 15 to 20 meetings during each of the 3 series, and that
altogether a total of somewhere between 45 to 60 different and separate meetings
were held. It was also established that the above meetings were arranged to cover
all classifications of employees, and that all the meetings were held during the week
of April 3
The record further reveals that on April 11 a representation election was held,
and the Union's attempt to organize the Respondent was defeated. No objections
to the election were filed. The parties stipulated that Vivian Hampton, Frank
Vasquez, Jimmy Ramirez, and alleged discriminatees Lorrayne Johnson and Evelyn
Williams acted as observers for the Union at the election on April 11.8 Johnson and
7 Section 102 118. The Respondent issued subpenas for four witnesses , all of whom are
or were employees of the Board attached to its Sixteenth Regional Office at Fort Worth,
Texas.
8 Vivian Hampton was found to have been discriminatorily discharged in Baker Hotel
of Dallas , Inc, 134 NLRB 524 . From this record it appears that Vasquez, after being
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Williams are the only two alleged discriminatees involved in this proceeding. Gra-
ham became the Respondent's general manager at the Baker Hotel on Februaiy 1,
1961.
C. Interference, restraint, and coercion; findings and conclusions with respect thereto
1. Company meetings with employees
Numerous witnesses for the General Counsel testified as to what General Manager
Graham told employees at the various meetings management held with the employees,
as aforestated. Lorrayne Johnson testified that Graham told employees that he
would not sign a contract, that if the Union came in employees would be required
to wear a union badge, that if the Union should ask for money for other organizations
the employees would have to pay it, that if employees were caught sleeping, drinking,
or playing on the job the Union would fire them Johnson further stated that
Graham told employees that Al Capone was the head of all unions including the
Union attempting to organize the Respondent, that if the Union was successful it
would call a strike with picket lines established and any employees crossing would
be fired by the Union, that the Union would lay off elevator operators until only
three or four would be working, that the Union would charge $5 dues and that the
same would be deducted out of the employee's paychecks, that employees would
have to work extra time to make up for the lunch hour, that if the Union did not or-
ganize the Respondent, employees would be given coffee breaks, and that employees
would be provided with a lunchroom. Johnson also testified that in his talks with
employees, General Manager Graham had magazines, a typewritten paper, and news-
paper clippings which he referred to during his talks to the employees.
Rosetta Williams testified that she attended several meetings with employees
on the occasions in question, and stated that Manager Graham told employees that
if the Union was successful the Respondent would send the laundry out and that
the laundry department in the Hotel would be closed, and that Graham had also
inquired if any employee had belonged to a union. Jimmy Ramirez testified that
at the meeting he attended Manager Graham told employees about the benefits in
the Hotel, that if the Union was voted in some of the older employees would be
discharged and replaced by younger people, that a string of dollar bills was illustrated
showing the union dues which would be deducted, and that loss of the Christmas
bonus was also mentioned by Graham Evelyn Williams' testimony covered a good
many of the statements attributed to Graham by the above witnesses, but in addition
Williams stated that the employees were first told by Graham that the Union was no
good, that if the Union was successful it would be possible for employees to lose
their jobs, and that if there was no change in working conditions within a year's
time Graham himself would join the Union.
General Manager Graham testified that he held the meetings in question so that
employees could see "both sides," and that the meetings were conducted for infor-
mational purposes and for an expression of his views. That he wanted the employees
to know what had happened in other hotels where the Union had organized, and
that he wanted employees to know the truth Graham admitted that he himself
was opposed to the Union. Graham further stated that in his talks with employees
he also freely used and referred to various printed documentary material he had
assembled 9
Graham credibly testified that in the first series of meetings with the employees
he made the following remarks and in the sequence given below: The Respondent
felt that the Union was not good for the Respondent or the employees, but all
employees should vote in the April 11 election and no one would know how the
employees voted. No employee would have to belong to the Union and no em-
ployee would lose his job because he did not belong; it was his understanding that
the union dues would be $5 per month; he then read about "special assessments"
absent from this job on several occasions, quit his employment at the Hotel, but that
Ramirez is still employed by the Respondent.
9 The documents used by Graham at the meetings were as follows: U S News & World
Report-July 1958-article entitled "Echoes of Capone" : a contract between the Union
and the Claypool Hotel of Indianapolis-Claypool Hotel is also owned by the Company;
bylaws of one of the locals of the Union in Las Vegas, annual financial report of the
Union filed with the Department of Labor for 1960: a proposed contract circulated by the
Union to the employees ; a newspaper article from the Dallas Morning News, of March 16;
an excerpt from the McClellan committee report ; and an article from a Washington
paper, October 24, by Milton Kelly
BAKER HOTEL OF DALLAS, INC. ]129
from the article of the Dallas Morning News; he read verbatim from the bylaws
of the Las Vegas local and mentioned that union members could be fined for not
attending meetings; he showed, read, and discussed the annual financial statement
of the Union filed with the Government and mentioned the Union's income, dis-
bursements, contributions, donations, and salaries; he then discussed job security
and informed employees that only 2 hotels out of 25 owned by the Respondent
had union contracts; the Union had signed a contract with the Respondent's Claypool
Hotel, and then stated the 40 different reasons of how employees could be dismissed
or fined under this contract. Graham further stated that he then also informed
employees at the first series of meetings, that the Lamar Hotel in Houston had an
election in 1960 and none of the promises had been fulfilled, that he mentioned
the Chisca Hotel in Memphis were no contract was signed after the election and
departments were then leased out, and that he told employees to remember that
the Company could not give employee pay raises during a union election or during
negotiations. Graham also stated that he was certain the employees wanted to know
what would happen if the Union won and a strike was called, and in this respect
told the employees that picket lines would be put up, and they would have the choice
of crossing the picket lines with threats and abuses, or not crossing and having jobs
filled by someone else, and that the Company would not be obligated to hire em-
ployees back after the strike was over. He also informed the employees that:
There were 30,000 people out of work in Dallas, he then went into the assets of the
Respondent, he had only been manager for 2 months and there were "a lot of things"
he would like to change, he was studying other changes in benefits that could help
employees, and he informed the employees of his plans for the Hotel in getting
more business so employees could be paid more, and mentioned the improvement
of other facilities and the additions or enlargement of certain departments
Graham credibly testified that in the second series of meetings with employees
he discussed circulars the Union was passing out, that he read the bylaws again as
aforestated, that he showed employees the newspaper clipping and the magazine
article from the U.S. News & World Report and read from the latter, and that he
again went over the Chisca Hotel circumstances.
In the third series of meetings Graham testified that the material concern was
more or less in repetition, but in addition he answered some of the charges the
Union was circulating; he also mentioned that there were no contracts in Texas,
told employees of the strike at the Chisca Hotel, that he reviewed the Claypool
Hotel general rules, and that he further reviewed fines and assessments, the Union's
financial report, the magazine and newspaper articles, read excerpts from the
McClellan hearings, and then told everybody to be sure and vote at the election.io
As to statements in the company meetings specifically attributed to the manager
by witnesses for the General Counsel, Graham credibly denied that he made any
remarks about the lunchroom, losing jobs, reducing the complement of elevator
operators, or the older employees would be discharged, and denied making a state-
ment that any department of the Baker Hotel would be closed. In clarification
as to the signing of a contract if the Union won, Graham stated that he told em-
ployees at the meetings that he would never sign a contract that he did not think
was good for the employees and for the Company. Graham further testified that
he never asked any employee if they belonged to the Union, but had inquired at the
meetings if any employee had belonged to a union, and if so he would give them the
opportunity to make a statement relative to any of their experiences with unions.
Insofar as coffee breaks are concerned, Graham stated that in reply to a question,
he may have told employees that they should have a coffee break. Graham also
testified that he had mentioned at the meetings that some other property had gone
from a 6- to a 5-day week, but said nothing further as to any reduction of employees
or hours of work at the Baker Hotel.
Insofar as the Christmas bonus is concerned, Graham credibly testified that twice
a year the Respondent's board of directors votes on a 10-percent bonus in all its
hotels, and that at the meetings with employees he presented the fact that the em-
ployees of the Claypool Hotel had in prior years been paid the bonus, but after
becoming unionized they no longer received it.
10In specific reference to the above documentary material used by Graham at the
meetings, the record reveals that he read verbatim at least certain portions of the article
from the U S News & World Report. From the bylaws of another local, Graham read
verbatim the material pertaining to fines for not wearing the union button, and also
read verbatim other sections where fines or suspensions would be made in violation of
union rules. Graham also read extensively from the Claypool Hotel contract, and read
therefrom each paragraph dealing with circumstances where union members could be
fined or discharged. He also read verbatim from the Washington newspaper article
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relative to testimony from General Counsel's witnesses dealing with dues and
paychecks, Graham testified that the Company wanted to emphasize how union dues,
under a checkoff system, would affect the individual pay of the employees. In ac-
cordance therewith the Company deducted $5 from each employee for the pay
period ending March 31, and then gave them an additional check of $5 to show
employees what they would not receive in event the Union was successful.
In respect to the above the Respondent contends that General Manager Graham
made no statements at the meetings with employees, and did nothing in contraven-
tion of the provisions of Section 8(a)(1) of the Act. The Respondent further insists
that the Hotel was well within its rights when it presented the various printed docu-
ments at the meetings, and read to employees excerpts from the same. I agree with
the Respondent's contentions in these respects on the basis and for the reasons herein-
after set forth.
It is noted, in the first instance, that no objections were filed by the Union to any
conduct by the Respondent in relation to the representation election. In the second
instance, Manager Graham specifically informed the employees that their ballot in
the election would be secret, and neither the Respondent nor the Union would know
how the employees voted, and that Graham urged each employee to vote. There
is also credited testimony by Graham that no employee would ever be denied work
in the Hotel whether there was a union or not, and that there would be no denial of
work whether employees belonged or did not belong to a union. It is further noted
that employees were informed of the above at the first series of meetings, and at the
initial phases in the sequence of the talks made by Graham on those occasions. It
appears to me that the proper evaluation of Graham's subsequent statements must
be viewed in light of these circumstances, settings, and conditions. Thirdly, on the
basis of demeanor and my observation of Graham as a witness, I feel that at the
hearing in this matter he gave a detailed, accurate, and truthful account of his exact
statements and remarks made to employees at the various meetings.
Rosetta Williams testified that Graham had told employees that if the Union
came in the laundry department would close. The reliable and credited evidence
discloses that Graham actually stated that the Chisca Hotel in Memphis had an
election won by the Union, and the Chisca Hotel then leased out its various de-
partments, and had also closed their laundry department. There is no reliable
testimony that Graham threatened to close any department in the Baker Hotel.
Jimmy Ramirez and others testified that Graham informed employees that they
would lose their bonus payments if the Union was successful. As aforestated,
Graham credibly explained the circumstances of the Claypool Hotel in this respect,
but there was no reference in his statements , or any threat linking this situation with
the Respondent's Baker Hotel.
Several witnesses testified that Graham told them that he would not sign a contract.
The credited evidence by Graham shows that he told employees that he would not
sign a contract that was not good for the Respondent or for the employees. There
was no suggestion by Graham that he would not talk or bargain with the Union
about a contract if they won the election, and the reliable and credited testimony
clearly shows this.
The possibility of a strike by the Union, picket lines, and reemployment of strikers
were also mentioned by Graham at the meetings. However, under these particular
circumstances, I am unable to ascertain how such statements can be deemed to
constitute any interference, and certainly the right in expressing predictions of con-
sequences beyond the Respondent's control has been well established and recognized
by Board decisions. The testimony herein also reflects numerous other statements
attributed to Graham of which I have credited his denial, or indicated what was
actually stated by Graham.
Considerable testimony, as aforestated, related to excerpts read by Graham at
the meetings from various printed documents. A good deal of this material was
taken from the constitution and bylaws of a Las Vegas Local No. 226,11 affiliated with
the Hotel and Restaurant Employees and Bartenders International Union. From
this document Graham read sections dealing with fines and suspensions. The article
from U.S News & World Report referred to by Graham at the meetings related
to Senate hearings on local unions of the Hotel and Restaurant Workers in the
Chicago area, and statements by various people to the McClellan committee that
these locals were dominated by gangsters, and indulged in many other questionable
practices 12 Other than showing and reading excerpts verbatim from these docu-
ments, and others, as heretofore mentioned, there is no credible testimony that
ii General Counsel's Exhibit No 11
12 General Counsel's Exhibit No. 12.
BAKER HOTEL OF DALLAS, INC. 1131
Graham unduly deviated or digressed from this material, nor was there any testimony
whatsoever that the Respondent indictated or had adopted as its own the printed
matter in question, and any contrary finding or decision to the effect that the circum-
stances herein created such an inference would be pure speculation and an assump-
tion of facts that are not credited in this record. I will recommend dismissal of the
complaint in respect to Graham's statements at the employees' meetings.
2. Section 8(a) (1) violations as to other supervisors
Rosetta Williams testified that her supervisor, Mrs. Helen Hatcher, head house-
keeper, called her into her office and asked her how she felt about the Union; "which
way I was going to vote"; "I would like to know if you are on my side"; "Well, it's
definitely not any good," and stated, "These people are just after your money."
Williams testified that Hatcher "kept asking me, and I kept telling her that I hadn't
decided, hoping that I wouldn't have to directly give her an answer. Well, she
asked me several times before I finally told her how I was going to vote." Williams
testified that at the time Hatcher questioned her about how she was going to vote,
she also called practically all of the other maids into her office.
Supervisor Hatcher admitted in her testimony that she did have some discussions
with her employees about union matters. Hatcher stated that "We talked along the
general lines-and discussed it in our department head meetings , and exactly what
I said to them I couldn't possibly remember." Supervisor Hatcher again repeated
that she could not remember what the union discussions were about, and stated that
she did not know. However, when asked if she ever questioned anyone in her
department as to how they were going to vote in the election, Hatcher then specifical-
ly and suddenly remembered that she had not asked this question. Mrs. Hatcher
also remembered instantly that she had not inquired of anyone as to whether or
not they were on her side. With the admitted testimony of Supervisor Hatcher
that she had union conversations with her employees, and on the basis of her complete
nonrecollection of what she told employees except for unqualified denials of state-
ments attributed to her, I credit the testimony of Rosetta Williams.
Evelyn Williams testified that before the April 11 election Elevator Starter
McGuire inquired if she was for the Union or the Hotel, told her that if the Union
came in it would be possible for employees to lose their jobs, and that if the Union
was not successful Graham would give Williams a raise in pay within a year.
Williams further stated that McGuire asked her in early April if she was going to be
an observer for the Union at the coming election, and that thereafter McGuire
would tell her each day that the Union was no good.13 McGuire denied making any
such statements. For the reasons hereinafter set forth, I credit the testimony of
Williams in this respect
Williams also credibly testified that on April 6 or 7 Superintendent Walker asked
her which way she was going to vote at the election, and that he called each
operator into his office for this purpose. Walker admitted that he discussed the union
election with his employees.
Lorrayne Johnson credibly testified that in early April Superintendent Walker
had called her into his office and inquired which way she was going to vote at the
election, and informed Johnson that she should "stick" with the Hotel.14 Johnson
also credibly testified that after coming from Walker's office McGuire mentioned
union matters and asked if she had signed a union card, and also inquired as to how
the Union had acquired her name.
Jimmy Ramirez credibly testified that 11/z weeks before the April 11 election,
Supervisor Kasper asked him if he knew anything about the union election, and
informed Ramirez that Graham had talked to Kasper about it.15 Ramirez stated
that on April 8 he had a conversation with Kasper about his selection as an observer
for the Union, and that on this occasion Kasper inquired, "Do you know what you
are doing?" Kasper then told Ramirez, "You are against me. You are not working
in favor of me," and Kasper then spoke to the pastry chef and said, "That's all
right Let him go. Anyway he will not last long here."
Isaac Pina credibly testified that he had a union conversation with Chef Kasper,
and that Kasper informed him that if there was a strike Pina would not be able to
get a job in Dallas, and suggested that Pina did not know what side he was on.
11 It was established that on April 8 Superintendent Walker informed Lorrayne Johnson
and Evelyn Williams that they had been appointed as observers for the Union
11 Johnson further testified that operator Annie Lee then went into Walker's office
15 It was established that Kasper was the kitchen chef at the Hotel and that Ramirez
worked under him.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the reasons already stated, I have also credited the above testimony
attributed to other supervisors on the basis of demeanor and my observations of
the witnesses.16 It should be further noted here that Chef Kasper did not testify at
the hearing and the interrogations and statements attributed to him stand undenied.
The events, circumstances, and conditions relating to the above incidents clearly show
that departmental supervisors were highly concerned with the employees' efforts to
organize. Supervisors Hatcher and Walker admitted that they had union discussions
with the employees. It appears to me that where two department supervisors
admittedly had union conversations with employees it is highly likely that McGuire
and Kasper also did the same, and in the instances set forth overstepped permissible
bounds.
The foregoing instances of interrogation are threats and promises, not instances
of objective inquiry as to the propriety of recognizing a labor organization; they
are not "casual, friendly, isolated instance[s] of interrogation by a minor supervisor."
See Blue Flash Express, Inc., 109 NLRB 591. Neither do they amount to the mere
exercise of free speech under the first amendment to the Constitution nor to protected
expression of views under Section 8(c). N.L.R.B. v. Minnesota Mining & Manu-
facturing Company, 179 F. 2d 323 (C.A 8); National Shirt Shops of Delaware, Inc.,
123 NLRB 1213. Rather they include an attempt to inquire into loyalties, attitudes,
how employees were going to vote, suggestion of extra pay for voting against the
Union, possible loss of employment, and the definite implication that the employees
would be better without the Union; they therefore constitute violations of Section
8(a) (1) Raymond Pearson, Inc., 115 NLRB 190, enfd. 243 F. 2d 456 (C.A. 5);
Shell Oil Company, 95 NLRB 102, enfd. 196 F. 2d 637 (C.A. 5).17
D. The alleged discriminatees; findings and conclusions in respect thereto
1. As to Evelyn Williams
The record establishes that Williams was hired by the Respondent in 195'5 as an
elevator operator, that Williams acted as an observer for the Union at the April 11
representation election, and that April 24 was the last day Williams worked for the
Respondent.ia
Respondent admits that Evelyn Williams was discharged, but contends that Wil-
liams was discharged because she left the elevator unattended, because such an
19 Unless specifically indicated to the contrary, any credibility evaluation I make of
the testimony of any witness appearing before me is based, at least in part, upon his or
her demeanor as I observed it at the time the testimony was given. Cf Bryan Brothers
Packing Co , 129 NLRB 285. To the extent that I indicate hereafter that I reject in
part or entirely the testimony of any given witness, it is my intent thereby to indicate
that such part or whole of the testimony, as the case may be, is discredited by me.
Jackson Maintenance Corporation, 126 NLRB 115, footnote 1.
"Iris Banks testified that when she was hired she filled out an application form for
employment which contained the question, "Are you a member of a unions" She testified
that she signed two or three applications for employment, and signed one the first day
she started working and two applications about 3 weeks afterward Banks further testi-
fied that the sheet of paper that contained the question, "Are you a member of a union""
was on a short white blank, a typewritten piece of paper, but that this question was not
on the first application she signed Rosetta Williams testified that she "thought" her
employment application contained a question on whether or not she belonged to a union.
but that she was not "positive." Banks testified that she was hired on May 1 The
company records show that she was hired on May 13 Banks testified that she signed
two or three applications for employment. There is no credited or reliable testimony
that the Respondent ever required potential employees to fill out more than one applica-
tion. Banks testified that Lorrayne Johnson filled in one of the last two applications
for her, and yet Banks' testimony in this respect stands uncorroborated Banks' original
application was introduced into evidence, and it contains no question as to any union
affiliations. Rosetta Williams' testimony is likewise unimpressive, and merely "thought"
her application contained an inquiry about union membership. In accordance with the
above, I do not credit any of the testimony of General Counsel's witnesses relative to this
incident Likewise I find the testimony of Ora Price, as to what McGuire and Walker told
her, to be unreliable and discredited upon cross-examination ; nor do I credit the testi-
mony of Frank Vasquez in which he attributed a statement to Kasper
is The evidence shows that Williams was hired by Jerry McGuire at $3 16 per day, she
was given a raise to $3.68 six months later and another raise to $4.90 in the last part
of 1959.
BAKER HOTEL OF DALLAS, INC. 1133
act was strictly against the rules of the Hotel; and because such an act created a
dangerous situation , endangering the life and limb not only of other employees
of the Hotel, but of guests in the Hotel.19
Evelyn Williams testified that about 1 or 2 p.m. on April 24, while she was oper-
ating her passenger elevator, she "had to go" to the restroom. She further testified
that Starter McGuire put some guests on her elevator on the lobby floor and she
took the guests to their floors, that she then returned to the lobby floor, and not
finding McGuire or anyone else on the lobby floor she took her elevator to the
basement level where the restroom was located. When she reached the basement,
she "parked" her elevator, pulled the switch down, and then ran to the restroom and
returned to the elevator in no more than 2 or 3 minutes. When Williams returned,
employees Bugg and Rosemary Grenas, both of whom had served as Respondent's
observers at the election, were waiting at Williams' elevator to go up to the second
floor where they were employed in the office of Auditor Lonnie Witte.
Williams went on to testify that about 3 p.m. on April 24, Starter McGuire said
to her, "Say, are you the one that parked the elevator?" After admitting she had
"parked" the elevator, McGuire continued, "Don't you know you are not supposed
to park the elevator?" Williams then replied, "Yes, Jerry, but I had to go, and you
wasn't on the floor. There wasn't anybody to relieve me." McGuire then replied:
"I am going to have to lay you off for three days. You know if it hadn't been for
the two office ladies, or if it had been me (who) caught you, I could have `squashed'
it, but, you know, the two office ladies seen you, and, you know, you and Lorrayne
(Johnson ) are mixed up in this union mess, and I've got to lay you off." Williams
replied, "O.K., Jerry, I'll take the three days off." McGuire then told Williams
to call him back the following Thursday . When Williams called him as requested
on April 27, McGuire told her to take the rest of the week off. Williams called
McGuire again on Monday, May 1, and inquired when she was to return to work.
McGuire, according to the testimony of Williams, then informed her that he had
not heard anything from Manager Graham . Williams then called McGuire again
on Tuesday but he still had not heard from Graham. On Wednesday, Williams
went down to the Hotel and asked Manager Graham when she could return to work.
Graham informed Williams the matter would have to be handled through Superin-
tendent Walker and for Williams to have Walker call him. Williams then contacted
Walker, but Walker informed Williams that the line to Graham 's office was busy.
After waiting for a considerable time Williams asked Superintendent Walker if she
was fired , and Walker replied "No," but when ,pressed as to when she should come
back to work, Walker informed Williams that he would let McGuire know and that
he could tell her. Williams then called McGuire on the next day, but was informed
by McGuire that he was still waiting on word from Graham as to when Williams
should return to her job. Williams testified that after this she never called McGuire
nor did he call her 20 Williams testified that Supervisor McGuire never criticized
her work as an elevator operator prior to the incident in question , but to the contrary,
complimented her on many occasions.
Superintendent Walker testified that when this incident of parking the elevator by
Williams was reported to him he had McGuire check into it, and when Williams
talked to him about this matter he informed her that the Hotel could not use her
any further. Walker stated that on this occasion he also asked Williams if she
did not know better than to park her elevator, and the reply was that she did
know better. Walker then inquired as to why she did not first check with McGuire
before going to the basement , and that Williams replied , "Well, I just didn't."
Walker further testified that he made the decision to discharge Williams, and that
he called Manager Graham only to ask his permission to compensate Williams for
her vacation pay, and was then instructed to pay it.
Head Elevator Starter McGuire testified that he investigated the incident in ques-
tion and then informed Walker about it, and also stated, "We decided to lay her
off three days until further notice. I waited for further notice to determine." Mc-
19 The Respondent sets forth in its brief various aspects of its prima facie liability for
any inquiries to guests , and the "Attractive Nuisance Doctrine" under Texas statutes
21 The record in this case revealed that there are two freight elevators and four
passenger elevators in the Hotel , and that the outside doors of the two freight elevators
could not be opened without a key or rod which is kept in the assistant manager's desk.
It was established that Williams was operating a passenger elevator at the time of the
incident relied upon by Respondent for her discharge . The outside doors of the four
passenger elevators are controlled by operators when they are on duty ; and otherwise
by the elevator starter with a panel button or key which is located on the wall in the
lobby of the Hotel.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Guire further testified that Williams admitted to him that she knew better than to
park her elevator, that thereafter she contacted him once or twice about this incident,
but he left it up to Walker as to when to discharge her. McGuire specifically denied
that he ever told Williams that he could have "squashed" this incident if the two
ladies from the office had not been involved.
Manager Graham testified that the first he knew of the incident was when
Walker called him as to Williams' vacation pay, and that Walker then also told
him about the "parking" of the elevator and informed him of the rules. Graham
stated that he told Walker, "If that's the rules of the Hotel, discharge her." Graham
further testified that union activities had nothing to do with the discharge, and that
after the election he forgot about all employees who were for the Union.
The General Counsel contends that the Hotel did not have any rule in effect
which would justify Williams' discharge under these circumstances, and that if
there was such a rule it had never been applied or enforced?'
In elaboration and support of this contention by the General Counsel, operator
Lorrayne Johnson testified that about 3 weeks after the freight elevator incident she
had "parked" her elevator, and that she was merely told by Supervisor Welch not
to do so. Johnson also testified that she had parked her elevator in the lobby on
another occasion in the latter part of March, and McGuire had inquired about it,
but that nothing else was said. Johnson further stated that General Manager
Fenton Baker, the immediate predecessor to Graham, would find elevators left
unattended on occasions, but would just "walk out" and another operator would
take him up. Johnson admitted she had been told that when leaving the elevator
to let someone know, but if there was no one around to "go on," leave the door
open and pull the switch. Johnson testified that it was a common practice to
ignore the rule.
As to the rule prohibiting the leaving of elevators unattended, Evelyn Williams
testified that there was such a rule but it was not enforced.22 Williams stated that
about the middle of February she had parked her elevator, and that operator Annie
Lee had also left her elevator and Supervisor Walker was present on this occasion.
Williams further testified that no operator, other than she, had been discharged for
violating the rule, but admitted that operator Ruth Wilson had been reprimanded
in March or April for leaving her elevator and was sent home for 1 day Williams
stated that she herself had never before been criticized or reprimanded for such
practices.
LaVerne Bugg, who reported the incident in question, testified that within the
last 2 years this was the only time she had seen an elevator left unattended Man-
ager Graham stated the biggest problem in the hotel business is accidents, that hotel
people are accident conscious, that each accident is gone over to determine what
caused it, and that in the incident involving Williams the elevator was left unattended
in an isolated (the basement) area where there are no supervisory employees, but
where guests enter the Hotel through the motor lobby level. Graham testified that
the reason for the no-parking rule was the hazard aspects, that guests could take
the elevator, and that guests could get caught in the elevator doors 23 Graham ad-
mitted that the rule itself was not posted, but all operators were told about it and
knew that before leaving the elevators they had to go to the lobby level of the Hotel
and get permission.
Superintendent Walker testified that parking elevators is a hazard and a dangerous
practice. Any guest could enter the elevators and "take off," and guests entering
from the motor lobby level and barbershop would generally use the elevators from
the basement 24 Walker stated that he held group meetings and talked to many of
a The record establishes that in February of 1959, the Respondent's Baker Hotel was
involved in an incident on one of its freight elevators. It appears that an elevator
operator opened the outer door and stepped into the shaft, and that someone else in the
meantime had moved the elevator.
Williams stated that the rule was that operators were not supposed to leave their
elevators until there was another operator to relieve her unless you had to go "downstairs,"
and then it was permissible to leave the elevator unattended
23 Manager Graham in his testimony listed several reasons such as drinking , fights,
prostitution, shootings , and pimping by employees, as causes for immediate and auto-
matic discharges ; that in addition he could list 100 other reasons, and that leaving an
elevator unattended is also in the category for immediate discharge.
i4 The record and personal inspection of the Hotel by the Trial Examiner reveals that
two of the four passenger elevators service the basement level where the barbershop is
located, and where guests who park their cars in the Hotel enter and register The
basement is the motor lobby level for the purposes herein.
BAKER HOTEL OF DALLAS, INC. 1135
the operators individually about unattended elevators . Walker admitted that no
guests had ever taken "parked" elevators on their own , but that it was possible to
do so, and that no operator had been discharged for a violation of this rule. Walker
further testified that it was a "set rule" to discharge operators for this violation
and had informed McGuire of the same.
Starter McGuire stated that the Hotel has had a rule for years about leaving
elevators unattended , and all operators were told that they would be immediately
discharged for violating it. McGuire further testified that he had no knowledge
that Annie Lee or anyone else "parked" an elevator, and as to Ruth Wilson stated
that he informed her that she could not be off duty and that she then failed to
return, but that Wilson had never left an elevator unattended.
Assistant Elevator Starter Vera Stewart, called as a rebuttal witness by the General
Counsel, testified that the Hotel had a well-understood rule and procedure when
operators had to use the restroom. Stewart stated that under these circumstances
operators were supposed to contact the starter, the assistant starter, or someone else,
and then turn the elevator over to them. Operators were not to leave the door open
as people could get hurt , and all the operators were told about this. Stewart further
stated that Williams told her that she did not know why she was fired, and that
Williams felt she should not have been discharged, but should have been given just a
few days off . Stewart also testified that she had no complaint on Williams , that she
had heard of operators parking elevators but had never caught any of them, and
that meetings were held wherein the matter was brought up and discussions to the
effect that if supervisors ever caught operators leaving elevators, "We would have
to let them go, lay them off or something." Stewart then admitted that parking an
elevator and leaving it with the door open was a dischargeable offense.
In attempts by the General Counsel to show that the Respondent did not enforce
other rules relative to operations of its elevators , some additional testimony and
exhibits were received into this record . In these respects it was established that the
Hotel had signs on each floor by its freight elevators to the effect that employees
were to walk three flights of stairs. It is admitted by the Respondent that this rule
was frequently violated by employees and that supervisors were well aware of it.
Graham stated that employees can use the elevators whenever they want to. The
record and personal inspection also revealed that these signs near the freight elevators
had been on the walls for many years , and are not located around the passenger
elevators . It also appears from the record that there are no-smoking signs in some
of the elevators, and that exceptions are also made in this respect.
The specific issue here is whether or not the Respondent would have discharged
Williams for leaving her elevator unattended had she not been engaged in union
efforts to organize 25
The Hotel admittedly had a rule which prohibited the leaving of passenger eleva-
tors unattended; admittedly the rule was well known to all the operators, and it was
also admitted by Stewart and other witnesses that there was a set procedure to fol-
low when elevator operators on duty had to use the basement restroom. There is
further recognition by me that the need for the rule in question is fully warranted,
and that the Hotel must exercise the utmost diligence in insuring the safety of its
guests.
General Counsel's witness, Vera Stewart, even stated in her testimony that parking
elevators was a dischargeable offense. The General Counsel, however, attempted
to show that other operators had left elevators unattended without serious conse-
quences. In the case of Ruth Wilson, Annie Lee, and Dorothy Yedell, it appears
to me that McGuire and other supervisors explained the circumstances involved
in these incidents in a credible manner, and their testimony further shows that eleva-
tor operators Wilson and Yedell were discharged when they refused to follow certain
instructions26 The General Counsel places a good deal of reliance on the fact that
several employees used elevators instead of walking three flights of stairs as the posted
signs indicated . In the first place these signs were placed in the areas of service
elevators, and it is also abundantly clear that the signs had been put up many years
ago and that Manager Graham had never adopted these particular restrictions as
his own policy.
In the final analysis, there is no reliable testimony that the Hotel ever condoned
the leaving of elevators under the circumstances here involved, and that while the
21 It was established that Williams did discuss the Union with other employees, and,
of course , was an observer for the Union at the representation election , and, as afore-
stated , the Respondent had full knowledge of this fact
25 Even assuming , arguendo, that other operators left elevators unattended , it is appar-
ent from their own testimony that the elevators were left on the lobby level of the Hotel,
where various supervisors are at least in the immediate vicinity.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators themselves may have deviated on occasions from such practices without
detection, the official and consistent position of management was that this offense
demanded serious consequences.
My findings here have been difficult for me to make, because in several instances
testimony by Respondent witnesses has admitted that Williams was a good operator.
However, if I were to find a discriminatory discharge here, I would have to ignore
the admitted testimony that the Respondent had a rule prohibiting the parking of
elevators; I would have to ignore that the Hotel had a set and definite procedure
to follow under the circumstances in question, and that operators were fully aware
of it; I would have to ignore that Williams did not follow such procedures; and
I would have to ignore the testimony of General Counsel's witness Stewart that such
a violation was a dischargeable offense.
While the circumstances herein might raise a suspicion that the discharge was
discriminatory, it is well-established law by both the courts and the Board that mere
suspicion or surmise cannot be considered as evidence to support a finding of unfair
labor practices.
I therefore find and conclude that the General Counsel has failed to prove by
the required preponderance of the evidence that the Hotel discriminatorily discharged
Williams in violation of Section 8(a)(3) of the Act. I shall therefore recommend
that the complaint be dismissed in this respect.
2. As to Lorrayne Johnson
The record established that Johnson was hired as an elevator operator in 1951,
that the last day she worked for the Hotel was July 24, 1961 , and that she also
served as an observer for the Union at the April 11 election.
The Respondent contends that Lorrayne Johnson was not discharged ; that she
was requested to "stagger " her work because of a slack in business at the Hotel;
that she then became dissatisfied , and that anything happening in connection with
the interruption of her work had nothing whatsoever to do with her interest in, or
her activities on behalf of , the Union.
Lorrayne Johnson testified that she worked for 5 years as a "relief " operator on
passenger elevators up until the middle of April when she was assigned the duties
of a regular operator , that she was employed on the morning shift from 7 a.m.
to 3 p m , that there were nine operators on the morning shift, that she was second
in seniority counting Assistant Starter Vera Stewart as an operator , and that in
March or April Starter McGuire had praised her as always dependable 27 Johnson
further testified that sometime during the middle of April , and after the representa-
tion election , McGuire informed her that she no longer would be a relief operator,
and that McGuire was to let all the elevator operators have a week on relief duties.
When Johnson inquired if this arrangement was because she served as an observer
for the Union, McGuire told her, "You know what you did." Johnson testified that
following these events she took her annual vacation which started on July 3 and ran
until July 17. Upon returning to her duties after vacation McGuire told Johnson
that business had slacked off and each operator would have to take a day off, which
she did, but other than this, worked from July 17 to 24. Johnson stated that on
July 25 McGuire told her to take 2 or 3 days off, and to call him before coming
back as all operators would be required to take a week off. Johnson called McGuire
and was told to take a week off. About July 30 McGuire called Johnson's home and
left a message that Lorrayne would have to work as an elevator operator on the
night shift . On the next day Johnson contacted McGuire and inquired as to why
she had to work at night, and according to Johnson she was informed by McGuire
that there had been a mixup in the books , that business was slow, and that Manager
Graham had given McGuire a "piece of paper" with Johnson's name on it and she,
therefore , had to be laid off. Johnson testified that McGuire then told her, "Well,
in a way , you were a leader of them all," and that Johnson "was ignorant-for
doing something like that."
Subsequent to these events Johnson contacted Resident Manager Witte and
Superintendent Walker. Johnson testified that Walker informed her that she was
not fired and that Walker also mentioned to her about working on the night shift,
and she then informed Walker that she would be willing to do so and it was left
that final arrangements would be made by McGuire On the next day Johnson
contacted McGuire and was informed that another operator was changing to the
nigiht shift. When Johnson called back on or about August 7 or 8 McGuire told her
"' It appears from the record that "relief" elevator operators have more privileges and
free time than regular operators. McGuire admitted in his testimony that Johnson was
one of his best operators.
BAKER HOTEL OF DALLAS, INC. 1137
that business was still slow, but that a fashion show was coming in and McGuire
would then let Johnson know. Johnson testified that she was never so notified, and
never given any notice of her discharge. She further testified that operator Jemerson
was changed from the night to the morning shift between July 21 and August 7, and
that when Johnson returned from her vacation on July 17 she had noticed that
operator Banks was working on the morning shift, and that before Johnson's vacation
Banks had been working on the evening shift Johnson also testified that her union
activity consisted of being an observer for the Union at the election, that she wore a
union badge in the election, signed an authorization card, discussed the Union
with other elevator operators including Christine Menefee who was McGuire's
daughter, voted for the Union, and that she informed all employees that she was
for the Union.
Manager Graham testified that the first time he had any knowledge about Lorrayne
Johnson was when he received notice of the hearing. After receiving this notice
Graham contacted Walker and was informed by him that the night shift had been
mentioned to Johnson, and the reason for the discharge was that she had not
reported or called back, that the hotel rule required an automatic termination if
employees did not show up for work within 3 days, and stated that Walker also
informed him that Johnson was not as friendly toward guests as she should be.
Graham further testified that seniority of employees is considered by the Respondent,
and when promotions are considered, everything else being equal, the employee
with seniority would be the one promoted.
Superintendent Walker testified that he informed Johnson that she had not been
discharged, and that after talking with McGuire found out that he had asked her
to take some time off because business was slow, but that McGuire would put
Johnson on the shift from 3 to 11 p in., and that he so informed her but Johnson
did not want this arrangement. Walker stated that she automatically terminated her-
self after failing to report within 3 days.
Starter McGuire testified that he called Johnson's home and in doing so wanted
to notify her that business was still slow, but that she could work as an operator
on the evening shift. McGuire stated that when Johnson came back to the Hotel
he already had his operators placed for that particular day, and he then informed
Johnson that she should report "tomorrow, the next day, or you come in in three
days," and also told Johnson that she could work "regardless." McGuire testified
that Johnson was a good operator, but that she does not have a pleasant attitude
toward guests, and one of the main things he had against Johnson was that she would
never assist McGuire when he needed extra help while all the other operators would
help him when he asked them. McGuire also stated that it was his idea to change
Johnson from the day shift to the night shift. McGuire testified that operator Banks
had worked on the night shift when she was first employed, but later desired to
attend school and for that reason Banks was changed to the morning shift.
Resident Manager Witte testified that he had informed Johnson that McGuire
had done some scheduling of elevator operators, and wanted her on the evening
shift 28 Vera Stewart testified that she had a conversation with McGuire about
Johnson's layoff, and that he told Stewart, "If it was left up to me I wouldn't have
laid her off."
In addition to the above, this record also contains some testimony as to efforts
by Manager Graham to make the Hotel a "friendly" place for guests to stay, and also
testimony showing the slack in business for the period in question 28
Graham testified that the Baker was known as a "cold" hotel when he was made
general manager, and that he made constant attempts in meetings and by other means
to make it more friendly. Graham stated that he placed more emphasis on attitude
than ability, and instructed his supervisors that all employees must have a "friendly
attitude," and if they failed in this respect he did not want them as employees regard-
less of how long they had worked for the Respondent. Walker testified that Johnson
was not "real friendly" or "polite," and he had been so informed by McGuire.
Starter McGuire testified that he had talked to Johnson about her attitude and
friendliness, and informed her that she would have to be friendly toward the
guests. McGuire stated that he had nothing against Johnson except her attitude, and
that she would not help him on special occasions and circumstances when he needed
her.
's The morning shift runs from 7 a in. to 3 p in ; the evening shift runs from 3 p m to
11 p in , and the night shift runs from 11 p.m. to 7 a m. In some instances the record
is not clear as to whether Johnson was to change to the evening or night shift
29 The Respondent contends that these two factors played some part in the termination
of Johnson.
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Graham testified that there was a slump in the Dallas hotel business
in 1961 greater than in 1960,30 that the Hotel was losing money at the time he took
over, that he gave instructions to ascertain where cuts could be made, and stated
that management must constantly adjust the number of employees , inventories, and
expenses to the amount of business being done. Graham also testified that in 1961 the
room occupancy of the Hotel varied considerably, that in January 1961 it was 66.3
percent full but during the latter part of May the "bottom fell out," and the July
1961 figure showed a percentage of 36.5 occupancy.31 Resident Manager Witte
testified that Graham had instructed supervisors to economize whenever possible,
that the hotel business has "seasonal slumps" but the business drop in the summer-
time of 1961 was much greater than other years and more than anticipated, and
Witte also stated that the Respondent started making layoffs in June and July when
business declined.32 Superintendent Walker testified that in the summer of 1961
Graham had asked each department to cut expenses , and told supervisors that the
Hotel was overstaffed. Walker stated that around June 1 he went to McGuire and
asked him to cut the payroll. McGuire testified that Walker had informed him that
the payroll had to be reduced, but left the details as to elevator operators to McGuire.
The General Counsel contends that the Respondent's seasonal slump in 1961 was
not severe enough to require the permanent layoff of any operator on the morning
shift, that the complement of the morning shift operators remained constant from
July 1 through December 1, and that the Respondent's contention that Johnson
terminated herself by not showing up for work on the night shift is untenable. The
General Counsel further argues that in the termination of Johnson the Hotel departed
from its established practice of laying off elevator operators on a temporary basis
and according to its day-to-day needs.
The record here established that Johnson had acquired an excellent work record
with the Hotel; there is also credible testimony that Johnson had been previously
told by McGuire of her dependability. There is also no question here but that the
Respondent had ample knowledge of Johnson' s union activities, and it appears from
the record that her efforts on behalf of the Union were quite extensive as afore-
stated, and in other respects at least more verbose than those of any other operator.
It is well-settled law, by both the Board and the courts, that although the discharge
of an inefficient or insubordinate union member or organizer is lawful, it may
become discriminatory if other circumstances reasonably indicate that the union
activity weighed more heavily in the decision to fire him than did the dissatisfaction
with his performance.
In the first instance here the record reveals that several days after the representa-
tion election Johnson was changed from a relief operator to a regular operator.
Secondly, even with full recognition that the business slump did require some re-
duction of payrolls in other departments, there is still no evidence that this situa-
tion caused any change in the number of elevator operators employed on the morn-
ing shift. The testimony by all witnesses shows that there were nine operators on
this shift before any slack in business at the Hotel, and that there still remained
nine operators on the morning shift during the periods of economic curtailments.
The only changes on the morning shift that I can ascertain are that Iris Banks, who
was working on the evening shift, was then transferred to the morning shift,33 and
that operator Jemerson was working on the night shift and then changed to the
morning shift after Johnson had returned from her vacation. There is also credible
evidence that operator Lindsey was transferred to the morning shift during the
latter part of April 34 From the above it is apparent to me that the economic con-
30 Graham testified that his records showed gross income for January 1961-6 percent
below January 1960; February 1961- 6 percent below February 1960; March 1961-
21 percent below March 1960; April 1961-4 percent below April 1960; May 1961-
7 percent below May 1960; June 1961-25 percent below June 1960; July 1961-33 per-
cent below July 1960; August 1961-10 percent below August 1960, and that Septem-
ber and October 1961 ran the same as September and October 1960
31 These figures are reflected in greater detail by Respondent's Exhibit No 5
32 Witte further testified as to the number of elevator operators that were employed, and
the number of those who actually worked and did not work on specific dates in 1961.
He stated that on May 1, 20 worked and 5 did not ; on June 15, 161/2 worked and 9 did
not; on July 15, 15 worked and 7 did not; on August 15, 16 worked and 8 did not;
November 30, 20 worked and 3 did not. (Those who did not work were on the payroll,
but had the day off or were sick.)
33 Banks was hired by the Respondent on May 13, 1961 , and changed to the morning
shift on about July 1.
34 The record is clear that Johnson had several years of seniority in comparison to
Banks, Jemerson , and Lindsey
BAKER HOTEL OF DALLAS, INC. 1139
tentions raised by the Respondent had no material or direct consequences as to the
number of elevator operators required to work the morning shift. In the final
analysis here, after Walker had instructed McGuire to reduce his payroll because
of business conditions, McGuire merely "scattered" the elevator operators in his
scheduling so that they were not working as many hours as previously, and also
were taking a day off now and then. However, what is even more convincing is
the fact that McGuire admitted in his testimony that Walker's instructions to econ-
omize had nothing to do with Johnson's termination.
The Respondent also contended, as previously set forth, that Johnson had mani-
fested an uncooperative attitude and was not friendly, and as a result they desired
to transfer her to the evening shift. This aspect of the case, as outlined by the
Respondent's witnesses, is extremely difficult for me to follow. In the first place
it appears that Johnson worked as a reliable and dependable operator for approxi-
mately 10 years before this personality deficiency was ever detected. In the second
place, when McGuire was asked whether Johnson's attitude had anything to do
with her termination, McGuire replied, "Not directly me, as far as my part. I was
changing her to the evening shift. I wanted to change her. Thought maybe that
would help. Even if I would have taken her back. I told her that, too...." Then
McGuire was asked, "So, her uncooperative attitude you say had something to do
with her termination; is that right?" McGuire replied ,"No. She terminated herself
in a way...." When Superintendent Walker was asked if Johnson's unfriendliness
was one of the reasons for her discharge, he replied, "No, sir. My testimony is that
she terminated automatically after she didn't show up to work for 3 days after she
was supposed to." In making my evaluations here it is granted and recognized that
Manager Graham made some attempts to make the Hotel a more friendly place,
but with the unusual testimony of Respondent's own supervisors relative to this
aspect as pertaining to Johnson, coupled with the fact that her attitude did not
become of any serious concern prior to her activities in the Union, it appears to
me that the Respondent's position is a mere pretext, and I accordingly so find.35
The main reason advanced by the Respondent for Johnson's termination is that
she automatically discharged herself when she did not report for work within 3 days.
I likewise reject this contention. The credited testimony shows that Johnson was
first told by McGuire to take -a week off, was next informed that she would have
to work at night. Johnson then contacted Walker about the matter and was told
to see Witte; Witte then had to call Walker. She then contacted both McGuire
and Witte but they had to first see Walker. Johnson then located Walker herself
and was told to see McGuire but McGuire could not be located. A few days later
Johnson contacted McGuire and was told to call back, and in culmination of the
already hopelessly confused situation, Johnson was told by McGuire definitely to
come back in 3 days, or "You come in tomorrow, the next day," or "You come in
in three days " 36 From these incidents and events it is readily apparent to me
that Johnson had ample justification and every reason for not reporting to work
within 3 days. The credited testimony further shows that after the last contact
with McGuire he promised to call Johnson as to when she could work, that McGuire
never made any such call, that Johnson was always available for work, and that
Johnson never informed anyone at the Hotel that she was not available. The
credited and reliable evidence in this record also shows that, while Johnson was
not happy with her transfer to the evening shift and attempted to stay on as a
morning operator , she did not at any time actually refuse to work on the evening
shift. So even assuming here, arguendo, that the Respondent changed shifts on
Johnson with a legitimate purpose, she was still willing to work on the evening shift,
but was never afforded the opportunity to do so.37 In the final analysis here, if I
were to agree with the Respondent, I would have to find that an elevator operator
with an excellent work record over a period of 10 years, and with top seniority,
suddenly developed personality traits which made it necessary to transfer her to
15 It is also noted that whatever attitude or unfriendliness Johnson may have exhibited,
this factor was apparently of no major consideration at the time McGuire offered to put
Johnson on the evening shift
36 It appears to me that with the above circumstances we have an illustration of the
old Tinker to Evers to Chance double-play combination The main difference, of course,
is that Johnson was cast as the ball, and went from Witte to Walker to McGuire and
then back around the diamond again , but, unlike the famous greats , somebody here missed
the tags
-Johnson credibly testified that when she inquired of Walker about her status, he
mentioned to her about working nights , and that in reply Johnson stated, "Well, I an]
willing to work at night "
662353-63-vol. 13 8-7 3
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
another shift , and then after utter confusion on arrangements to work the evening
shift after the discriminatee had definitely indicated a willingness to do so, coupled
with the fact that there were no economic reasons which affected the number of
elevator operators employed, Johnson terminated herself by not reporting within 3
days after admissions that she was always dependable . This I do not believe. It
appears clear to me that the union activities of Johnson were the substantial or
motivating reasons for her constructive discharge.
From my observation of the demeanor of the witnesses , and for the reasons given
herein , it is accordingly found that the Respondent terminated the employment of
Lorrayne Johnson on July 25, 1961, in violation of Section 8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section Ill, above , occurring in connec-
tion with the operations of Respondent described in section 1, above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and ( 3) of the Act , it will be recommended that the
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act . It will be recommended that the Respondent
offer employee Lorrayne Johnson immediate and full reinstatement to her former
or substantially equivalent position , without prejudice to seniority and other rights
and privileges , and make her whole for any loss of earnings she may have suffered
by reason of the discrimination against her , by payment to her of a sum of money
equal to that which she would have earned as wages from the date of the discrimina-
tion against her to the date of offer of reinstatement less interim earnings , and in a
manner consistent with Board policy set out in F. W. Woolworth Company, 90
NLRB 289.
It will be further recommended , in view of the nature of the unfair labor practices
the Respondent has engaged in, that it cease and desist from infringing in any manner
upon the rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The 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 the Act and admits
to membership employees of Respondent.
3. By discriminating in regard to the hire or tenure of employment of Lorrayne
Johnson, thereby discouraging membership in the above Union, Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
4. By engaging in the conduct set forth in the section entitled "Section 8(a) (1)
violations as to other supervisors ," the Respondent has engaged in and is engaging
in unfair labor pratcices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Baker Hotel of Dallas, Inc., Dallas,
Texas, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Hotel -Motel-Restaurant & Club Employees
Union , Local 353, AFL-CIO, or in any other labor organization , by discharging
or refusing to reinstate employees, or in any other manner discriminating against
them in regard to their hire or tenure of employment or any term or condition of
employment.
(b) Interrogating employees concerning their interests in, and intentions with
respect to joining, the above-named or any other labor organization , in a manner
constituting interference, restraint , or coercion violative of Section 8(a)(1) of
the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
BAKER HOTEL OF DALLAS, INC. 1141
join or assist the above-named Union or any other labor organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Offer Lorrayne Johnson immediate and full reinstatement to her former or a
substantially equivalent position, without prejudice to her seniority or other rights
and privileges, and make her whole for any loss of earnings suffered by reason of
the discrimination against her, in the manner set forth in the section above entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all records necessary to analyze the amount
of backpay due and the right to reinstatement under the terms of the Recommended
Order.
(c) Post at its hotel in Dallas, Texas, copies of the attached notice marked
"Appendix." 38 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being signed by a representative of the Re-
spondent, be posted by the Respondent immediately upon receipt thereof and be
maintained by it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notice is not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in writing, within
20 days from the date of the receipt of this Intermediate Report, as to the steps
it has taken to comply herewith.39
It is recommended that the allegations of the complaint with respect to the
discriminatory discharge of Evelyn Williams be dismissed, and it is also recommended
that the allegations of the complaint as to Manager Graham's statements be
dismissed.
It is further recommended that, unless within 20 days from the date of receipt
of this Intermediate Report and Recommended Order the Respondent notifies the
Regional Director for the Sixteenth Region, in writing, that it will comply with the
foregoing Recommendations, the National Labor Relations Board issue an order
requiring the Respondent to take the aforesaid action.
11 In the event that these Recommendations be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
39 In the event that these Recommendations be 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 the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in Hotel-Motel-Restaurant & Club Em-
ployees Union, Local 353, AFL-CIO, or any other labor organization , by dis-
charging or refusing to reinstate any of our employees , or in any manner
discriminating in regard to their hire or tenure of employment , or any term
or condition of employment.
WE WILL NOT interrogate or threaten employees concerning their interests in,
and intentions with respect to, joining the above -named or any other labor
organization , in a manner constituting interference , restraint , or coercion vio-
lative of Section 8(a)(1) of the Act.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist the above -named or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activities.
WE WILL offer to Lorrayne Johnson immediate and full reinstatement to her
former or a substantially equivalent position without prejudice to her seniority
and other rights and privileges, and make her whole for any loss of pay suffered
as a result of the discrimination against her.
All our employees are free to become, remain , or refrain from becoming or re-
maining members of Hotel-Motel-Restaurant & Club Employees Union, Local 353,
AFL-CIO, or any other labor organization.
BAKER HOTEL OF DALLAS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
2093, Federal Center, 300 West Vickery, Fort Worth, Texas, Telephone Number,
Edison 5-5341, Extension 284, if they have any question concerning this notice or
compliance with its provisions.
Seafarers International Union of North America, Great Lakes
District , AFL-CIO and Office Employees International Union,
Local 10, AFL-CIO and Allied Marine Section , Great Lakes
Tug and Dredge Region , Inland Boatmen 's Union , affiliated
with Seafarers International Union of North America, Atlan-
tic, Gulf, Lakes and Inland Waters Union , AFL-CIO, Party
to the Contract . Case No. 7-CA-3164. September 28, 1962
DECISION AND ORDER
On February 23, 1962, Trial Examiner Thomas S. Wilson issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report together with a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings,2 conclusions, and recom-
mendations 3 of the Trial Examiner, except as modified herein 4
'Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Members Leedom , Panning,
and Brown].
2 We hereby correct an inadvertence contained in section III, B of the Intermediate
Report. It was on May 5, rather than on May 4, as stated by the Trial Examiner, that
Respondent relied on its assistant secretary -treasurer 's telegram to justify its refusal to
negotiate further with Local 10. Accordingly, we find that Respondent's actions of
May 2 , 3, and 5, rather than of May 2 , 3, and 4, as found by the Trial Examiner , establish
its unlawful refusal to bargain.
a For the reasons stated in 1858 Plumbing & Heating Co., 138 NLRB 716, we adopt the
Trial Examiner 's recommendation , as set forth in "The Remedy" section of the Inter-
138 NLRB No. 130.