Holiday Inn of Charleston

National Labor Relations Board - Board Decisions

Jun 25, 1964

147 N.L.R.B. 693 (N.L.R.B. 1964)

HOLIDAY INN OF CHARLESTON 693
All Metropolitan insurance consultants, canvassing, regular, and
office account agents attached to the Employer's district office in
Holyoke, Massachusetts, and to any office which may be detached from
the Holyoke office, but excluding all independent agents, retired agents,
managers, assistant managers, cashiers, clerical employees, secretaries,
professional employees, guards, watchmen, and all supervisors as
defined in the Act..
[Text of Direction of Election omitted from publication.]
Stanton Enterprises , Inc., d/b/a Holiday Inn of Charleston and
Hotel & Restaurant Employees and Bartenders International
Union , AFL-CIO, Local No. 128 . Case No. 9-CA-2905. June 25,
19611
DECISION AND ORDER
On January 7, 1964, Trial Examiner Arthur E. Reyman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in the unfair labor practices alleged in the complaint,
and recommending dismissal of the complaint, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations 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 thehearing 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 finds merit in the exceptions of the General Counsel.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent that they are consistent herewith.
While we agree with the Trial Examiner that the Respondent
violated Section (a) (1) of the Act, we do not agree with his view
that the violation was only "technical." As we view the credited testi-
mony on the record, the Respondent's conduct was in flagrant dis-
regard of the employees' statutory rights and was expressly designed
to ferret out those employees who were supporting the Union's orga-
nizational campaign.
147 NLRB No. 81.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, according to the credited and uncontradicted testimony of Mrs.
Koon,' Respondent's President Stanton and Assistant Manager Bald-
win made no secret of Stanton's intense opposition to and dislike of
the Union and unions in general, and on learning that the Union was
carrying on an organizational campaign among its employees, they in-
structed Koon to go out and-
tell my friends, meaning the girls that I had hired, that he did
not want a Union and if they voted a Union in they would be paid
union scale, which was less than he was paying them and that was
all they would get, that he would post signs saying "no-tipping"
and that they would receive salaries and that would be all.
Further than this, according to Koon, Stanton said that she should
tell the girls that there might be 'a union some day, but there would be
a strike long before there would be a union, and they could possibly
be out of work for as long as 6 months.
On another occasion, in the course of a conversation in the dining
room among Koon, Baldwin, and Stanton after they were sure it was
the waitresses who were supporting the Union, Stanton said that "in
the event there was a strike, he [Stanton] would fire all these girls, if
he found out who they were, but that they would . . . keep the dining
room open but we won't use the waitresses." The Trial Examiner
found there was no question but that Koon did convey to the waitresses
the feelings of President Stanton and Assistant Manager Baldwin in
regard to what might or might not happen if they joined the Union.
The Trial Examiner specifically found, on the uncontradicted testi-
mony of several waitresses, that Koon reported to them (the wait-
resses) what had been told to her 'by President Stanton at her meeting
with him and Baldwin in the dining room at the time it appeared the
Union was actively engaged in soliciting membership among the
waitresses and kitchen help.
Although Mrs. Baldwin testified that Koon had volunteered to
find out about the employees' union activities, the Respondent does
not contend that Koon's interrogation and unlawful conduct was either
contrary to its wishes or without its encouragement. Indeed, Bald-
win testified and the Respondent admitted that President Stanton said
to Koon, "Well if you want to go out and find out who have signed
up, if they are all for the Union or part of them are for the Union,
whatever you want to do go out there, they are your friends. Go out
and find out if you want to . . . we cannot do it"; and that Koon
had reported back that she had tried to find out who had signed au-
thorization cards, but was unsuccessful in that none of the waitresses,
1 Respondent conceded and the Trial Examiner found that Koon was a supervisor during
her employment.
0
HOLIDAY INN OF CHARLESTON 695
except Violet Miles, would admit that she had done so. Stanton on
his part did not deny that Koon, although a supervisor, had at least
been encouraged by him to dissuade the waitresses, with many of whom
Koon was friendly, from joining or adhering to the Union. Further-
more, Baldwin conceded that Stanton had commented to other wait-
resses about the Union, but had done so in a joking manner and with-
out any intent to influence them, but then added that Stanton had also
told the union agent that he was going to fight the Union to the "bitter
end." While the Trial Examiner appears generally to have credited
Stanton's denial that he had engaged in any unlawful interrogation of
the waitresses, or that any of his remarks to the waitresses constituted
a threat of economic reprisals, the Trial Examiner did observe that
there was at least an "intimation of a threat" with respect to the post-
ing of "no tipping" signs. True, the Trial Examiner appears to have
credited Stanton's explanation that the remark about posting "no
tipping" signs was merely a prophecy as to what the Respondent
might have to do if the Union came in and higher wages had to be
paid 2 But it is plain that Koon's remarks to employees that Respond-
ent would post "no tipping" signs if the Union came in, which re-
marks also had Stanton as their source, were not stated to be contingent
on any action the Union might take in the future, but conveyed a clear
threat of economic reprisal. Koon was discharged by the Respondent
not because she had misstated Respondent's position but, on the con-
trary 'as the Trial Examiner himself found, because she had employed
waitresses who turned out to be adherents of the Union and because
she had been unsuccessful in persuading them not to adhere to the
Union.
On the foregoing evidence and on the record as a whole, we find that
the Respondent unlawfully interrogated employees as to their union
activity and threatened them with economic reprisals if they selected
the Union as their bargaining representative. Such conduct inter-
fered with, restrained, and coerced employees in the exercise of their
statutory rights in violation of Section 8(a) (1) of the Act, and we
find that it will effectuate the policies of the Act to order the Re-
spondent to cease and desist from engaging in such unlawful conduct.'
2 The Trial Examiner apparently overlooked the inconsistency in Stanton ' s explanation
of his threat to post "no tipping" signs . Stanton's explanation was that if be was going
to raise wages under a union demand, this cost would go up to the point where in order
not to lose business he would have to do away with tipping. But on the other hand, it is
clear that Stanton had no intention of ever permitting such situations to arise, for he in-
structed Koon to tell the employees that if they voted the Union in, they would be paid
union scale, which was less than the 50 cents an hour he was then paying them.
8 Camco Inc., 140 NLRB 361. We deem it unnecessary to consider other conduct also
alleged as violative of Section 8(a) (1) of the Act as any such findings would not affect the
scope of the order herein.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We are also of the opinion , contrary to the Trial Examiner, that
the Respondent discharged Betty Jo Kinder , Myrle Richardson , Violet
Miles, Lois Poe, Eula G . Chevalier , Juanita L. Hogg, Margaret Ann
Field, and Jeane G. Salmon , because of their support of the Union and
that such discharges were in violation of Section 8(a) (3) of the Act.
On the record before us we cannot accept the Trial Examiner's con-
clusion that the employees in question were laid off or discharged
for reasons unrelated to union considerations.
Betty Jo Kinder was discharged on June 6; Myrle Richardson was
discharged on June 15 ; Violet Miles, Lois Poe, Eula G . Chevalier,
Juanita L . Hogg, and Margaret Ann Field on June 20 ; and Jeane
G. Salmon on July 17, 1963 . Of the , eight alleged discriminatees
employed as dining room or banquet waitresses , four of them were
hired between December 1962 and February 1963, when the dining
room was first opened to the public. All had signed union authoriza-
tion cards prior to their discharge . The record is replete with evi-
dence of Respondent 's hostility to the Union and to union organization
among its employees . Stanton was "shocked" and, as the Trial Ex-
aminer observed, even dismayed by knowledge that his employees were
supporting the Union in its efforts to organize them, and he formulated
plans not only to discourage the employees ' union activities by in-
terrogation and threats of economic reprisal , but to rid the Company
of those waitresses who were supporting the Union even if it were
necessary to do so on some assumed ground. Thus , according to the
above-quoted credited testimony of Koon, Stanton remarked in the
course of the dining-room conversation that in the event of a strike
he would fire all these girls if he found out who they were .4 Indeed,
Koon became the first victim for having failed in her assigned mission
and the Trial Examiner expressed no doubt in terming "fallacious"
Respondent 's explanation that she was discharged for an alleged fail-
ure to perform her banquet duties.
Further , there can be little doubt that the Respondent had knowledge
of these dischargees' union activities . President Stanton himself
admitted that he had , on many occasions, discussed the Union with his
employees , and Baldwin admitted that Myrle Richardson , during a
conversation in mid-May , informed her as to the identity of certain
waitresses who had attended union meetings . Furthermore, Koon
testified that Violet Miles told her she had signed a, union authoriza-
4 Another portion of Koon's testimony not adverted to by the Trial Examiner includes
the following colloquy pursuant to Stanton's instruction that Mrs. Baldwin fire the
waitresses:
BALDWIN: We can't just fire them because we think they signed union cards. We
have to have a reason.
STANTON: Find a reason.
BALDWIN: Well, I have cautioned them about smoking in the rear of the dining
room. I will go through one day soon and find about six smoking and I will fire them
for that reason.
HOLIDAY INN OF CHARLESTON 697
tion card, and it is reasonable to infer that Stanton suspected Eula
Chevalier and her sister, Lois Poe, had joined the Union in view of
their close association with Stoddard who, according to Stanton
admitted to Stanton that he was the prime mover in organizing the
waitresses. The Trial Examiner made no contrary findings as to Re-
spondent's knowledge of its employees' activities on behalf of, their
adherence to, and support of, the Union. • Indeed, it would be com-
pletely inconsistent to hold, as did the Trial Examiner, that the Re-
spondent discharged Koon because she was friendly with the girls
she had hired as waitresses and was unsuccessful in persuading them
not to adhere to the Union, and not to infer that the Respondent knew
or suspected' at the time of Koon's discharge who should have been
and who had not been dissuaded from adhering to the Union. In
this context, and particularly the Respondent's strong hostility to
union organization, its determined efforts to discourage union adher-
ence, its knowledge, of the identity of the union adherents, and its
dismissal of Koon clearly for reasons connected with the employees'
efforts to achieve union representation, we find that the General Coun=
sel has established a strong prima facie case of discriminatory motiva-
tion in the discharges of the waitresses in question.
Moreover, unlike the Trial Examiner, we are unable to accept the
Respondents' explanation for terminating the waitresses. Thus, the
record evidence shows that the Respondents' own contentions with re-
spect to the cause of the discharges contain certain inconsistencies
which are set forth below. For example, Baldwin testified in the in-
stant proceeding regarding her problems in the dining room arising
from the alleged misconduct of the dischargees and "'how it seemed
like I [Baldwin] was always hiring and firing waitresses." However,
when Baldwin was confronted on cross-examination with the trans-
cript of testimony given by her at an earlier Board hearing wherein
she testified concerning the satisfactory work and conduct of the wait-
resses, Baldwin thereupon affirmed her prior testimony,' and further
admitted that the place had not gone completely "to pot" during the
month between Baldwin's prior testimony and the occurrence of the
instant discharges.
We also specifically reject as pretextual Respondent's assertion that
Betty Jo Kinder and Violet Miles were discharged for engaging in
misconduct in the kitchen with the men employed as cooks. Thus, the
Respondent admitted on the record that it was aware of the fact that
5 Whether an individual waitress' union activity was known or merely suspected is im-
material, as a discharge for either reason is violative of the Act. See United States Air
Conditioning Corporation, 128 NLRB 117, 118.
e At a Board hearing on the representation petition on May 23, 1963, Baldwin testified
that the hostesses, whose job it was to report any work deficiency or unsatisfactory con-
duet of the waitresses, had not reported to her because "we have a good bunch of waitresses
in there and most of the time I see their conduct. . . .
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such misconduct was widespread and not confined to these two wait-
resses, yet there is nothing to indicate that Respondent discharged
any of the participants immediately upon learning of the situation;
or, indeed, that it discharged any other waitresses because of such
misconduct. In this connection, although Baldwin testified that
Kinder and Miles were discharged "about the same time" for gossip-
ing and flirting with the cooks, no explanation was offered with respect
to the record evidence which shows that the actual discharge of Kinder
preceded that of Miles by 14 days and that Miles was terminated
coincidentally with four other alleged discriminatees on June 20,
Similarly, we find pretextual the reason given by Baldwin for dis-
charging Juanita Hogg, namely because a customer had complained
3 weeks earlier that Hogg had used foul language in the dining room,
in view of the time lapse between the asserted misconduct and the
discharge.
We are likewise persuaded that the remaining dischargees were fired
for discriminatory reasons. This conclusion finds particular support
in the Respondent's failure to offer any reason for their discharge at
the time of such discharge other than vague references to their alleged
unsatisfactory conduct; the fact that all of the waitresses in question
had signed union cards; and the Respondent's expressed intention to
"find a reason" for terminating union adherents.
Moreover, the assertion advanced by Stanton-that there was "such
a tremendous turnover that some employees were here one week, they
were gone the next, some of them lasted two days . . . two weeks • .
two months"-in support of his original position that the Union defer
its organizing efforts because of the unstabilized nature of the em-
ployee complement, whatever its accuracy as a general proposition, can
have no applicability to the discharges here in issue in view of the
salient fact that all but one' of the waitresses selected for discharge
had been employed by the Respondent from the inception of its busi-
ness, and had worked under the most difficult conditions due to the in-
completed physical facilities. In these circumstances, we are con-
vinced that the causes assigned by the Respondent for the discharges
are pretextual, and that Respondent was, in reality, carrying out the
above-noted plan to seize upon any opportunity to rid itself of those
waitresses who, it knew or suspected, were supporting the Union's
organizing campaign.
Accordingly, we find, from the foregoing and on the entire record
as -a whole, that the Respondent discriminatorily discharged Betty
Jo Kinder, Myrle Richardson, Violet Miles, Lois Poe, Eula G. Chev-
alier, Margaret Ann Field, Juanita L. Hogg, and Jeane G. Salmon in
violation of Section (a) (3) and (1) of the Act.
7 Betty Jo Kinder had worked approximately 2 months at the time of her discharge.
HOLIDAY INN OF CHARLESTON
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
699
The activities of the Respondent set forth above, occurring in con-
nection with the operations described in the Trial Examiner's De-
cision, 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 the free flow of commerce.
THE REMEDY
As we have found that the Respondent has engaged in certain unfair
labor practices , we shall order that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent unlawfully discharged Betty Jo
Kinder, Violet Miles, Eula G. Chevalier , Lois Poe, Margaret Ann
Field, Juanita L. Hogg, Myrle Richardson , and Jeane G. Salmon, we
shall order the Respondent to offer them immediate and full rein-
statement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , dismissing,
if necessary, any employees hired to replace them. Since the record
shows that dining-room waitresses received only nominal wages and
banquet waitresses received no wages from the Respondent, but that
both groups received tips which are regarded as their salary or pay,
we shall order that the Respondent make whole the above -named em-
ployees-for any losses they may have suffered because of Respondent's
discrimination, by payment to each of them of a sum of money equal
to the amount she normally would have earned as wages and/or tips 8
from the date of such discrimination to the date of the offer of rein-
statement ,9 less her net earnings during said period, the back-pay to
be computed on a quarterly basis in the manner established by the
Board in F . TV. Woolworth Company, 90 NLRB 289, and shall in-
clude the payment of interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing t Heating Co.,
138 NLRB 716.
Furthermore , because the discriminatory discharges and the Re-
spondent 's entire course of conduct evince -a studied intent to thwart
the rights of employees in freely selecting their collective -bargaining
representative , we shall issue a broad cease-and-desist order.
e Brennan'8 French Restaurant, 129 NLRB 52, 76. The determination of that portion of
the discriminatees ' earnings attributable to tips should be ,based upon the weekly average
of tips received by the waitresses employed by the Respondent during the backpay period.
9 A.P.W. Products Co., Inc., 137 NLRB 25 , 28-31.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Stanton Enterprises, Inc., doing business as Holiday Inn of
Charleston, the Respondent herein, is an employer within the meaning
of Section 2 (2) of the Act.
2. The Union, Hotel & Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, Local No. 128, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By discriminatorily discharging Betty Jo Kinder, Violet Miles,
Eula G. Chevalier, Lois Poe, Margaret Ann Field, Juanita L. Hogg,
Jeane G. Salmon, and Myrle Richardson because of their activities
on behalf of the Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) and (1)
of the Act.
4. By the foregoing conduct, and by interrogating and threatening
employees as to their union activities, Respondent has interfered
with, restrained, and coerced employees in the exercise of the rights
guaranteed them by Section 7, in violation of Section 8(a) (1) of the
Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Stanton Enterprises, Inc., doing business as Holiday Inn
of Charleston, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, Local No. 128, or in
any other labor organization of its employees, by discriminatorily
discharging, terminating, or laying off any employee, or in any other
manner discriminating against any employee in regard to hire, tenure,
or any other term or condition of employment.
(b) Interrogating and threatening employees concerning their
membership in, or activities on behalf of, the above-named labor
organization, or any other labor. organization, in a manner constitut-
ing interference, restraint, or coercion in violation 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
HOLIDAY INN OF CHARLESTON 701
form labor organizations, to join or assist the above-named labor
organization or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in other
concerted activities for the purpose of mutual aid or protection, or to
refrain from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Betty Jo Kinder, Violet Miles, Eula G. Chevalier,
Lois Poe, Margaret Ann Field, Juanita L. Hogg, Jeane G. Salmon,
and Myrle Richardson immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make each of them 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) We will notify the above-named employees if presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(d) Post at its place of business at Charleston, West Virginia,
copies of the attached notice marked "Appendix." 10 Copies of said
notice, to.be furnished by the Regional Director for the Ninth Region,
shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(e)' Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals , Enforcing an Order."
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WVE WILL NOT discourage membership in Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO,
Local No. 128, or any other labor organization of our employees,
by discriminatorily discharging, terminating, or laying off any of
our employees or in any other manner discriminating against our
employees in regard to their hire, tenure, or any other term or
condition of employment.
WE WILL NOT interrogate and threaten employees concerning
their membership in, or activities on behalf of, the above-named
labor organization, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation 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-organiza-
tion, to form labor organizations, to join or assist the above-named
labor organization or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of mutual aid or pro-
tection, or to refrain from any and all such activities, except to the
extent that such right might be affected by,an agreement requiring
membership in a labor organization as a condition of employment,
as authorized by Section 8 (a) (3) of the Act, as amended.
EVE WILL offer to Betty Jo Kinder, Violet Miles, Eula G.
Chevalier, Lois Poe, Margaret Ann Field, Juanita L. Hogg, Jeane
G. Salmon, and Myrle Richardson immediate and full reinstate-
ment 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.
All of our employees are free to become, remain, or refrain from
becoming or remaining, members of Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, Local No. 128, or any
other labor organization.
HOLIDAY INN OF CHARLESTON,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
HOLIDAY INN OF CHARLESTON 703
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Room 2023 Federal Office Building, 550 Main Street, Cincinnati,
Ohio, Telephone No. 381-2200, if they have any question concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , herein called the Act.
On July 11, 1963, Hotel & Restaurant Employees and Bartenders International
Union, AFL-CIO, Local No . 128, herein sometimes called the Union , filed a charge
against Stanton Enterprises , Inc., . doing business as Holiday Inn of Charleston,
Respondent , herein sometimes called the Company or the Employer , asserting that
the Company had engaged in certain unfair labor practices as set forth and defined
in the Act. Thereafter , on August 26, 1963, the General Counsel of the, National
Labor Relations Board , on behalf of the Board , by the Regional Director for the
Ninth Region , issued a complaint and notice of hearing against the Employer, the
complaint setting forth certain unfair labor practices . said to have been engaged
in by the Respondent under Section 8(a) (1) and ( 3) of the Act, affecting commerce
as defined in Section 2(6) and (7) of the Act. On or about September 5 the Re-
spondent filed an answer to the complaint , effectively denying the violations of the
Act set forth in the complaint.
It is asserted in the complaint , and denied in the answer, that the Employer en-
gaged in unlawful acts through certain of its agents and officers in that it : interrogated
employees concerning whether or not they had signed union authorization cards, and
who of the employees attended union organization meetings ; threatened employees
that if they displayed sympathy toward the Union they would be discharged;
threatened to close down the motel operated by the Respondent if they selected the
Union as their representative for collective -bargaining purposes ; told an employee
that : uniforms would not be supplied to waitresses as had been done before , and their
wages would be reduced if the Union were selected as their representative; em-
ployees would be laid off if there were picket lines formed by the Union at the
Employer's place of business ; forgery had been committed in the signing of union
authorization cards with employees ' names; "no tipping" signs would be posted in
public dining areas if the Union represented the employees for collective -bargaining
purposes ; threatened discharge to one or More employees because of their union
sympathy ; that the Employer would close its business operations and fire all the
waitresses if the employees selected the Union as their bargaining representative, and
that the Employer had paid employees for attending a meeting during the last week
of April or during the first week of May with an object of discouraging sympathy for,
membership in, or activities on behalf of, the Union . The complaint alleges that the
Employer, the Respondent herein , discharged certain named employees during the
month of June because of their activities on behalf of the Union.
Pursuant to notice , this case came on to be. heard before Trial Examiner Arthur
E. Reyman at Charleston , West Virginia , on October 8, 1963 , and was closed on
October 11 . At the hearing each party was represented by counsel and was afforded
opportunity to be heard , to examine and cross -examine witnesses , present relevant
evidence , make oral argument , and to file briefs or proposed findings of fact or
conclusions of law, or both . Counsel for each party engaged in brief oral argument
at the conclusion of the hearing. Briefs were not submitted.
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent , Stanton Enterprises , Inc., doing business as Holiday Inn of
Charleston , is a West Virginia corporation . engaged in the operation of a motel
and restaurant at Charleston , West Virginia , said operations having begun on or about
December 1 , 1962 , and becoming fully operative on or about February 1, 1963.
0
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During the past 6 months immediately preceding the hearing, which is a representa-
tive period, the gross revenue of the Company exceeded $500,000 and at least 75 per-
cent of its guests stayed less than 1 month. It is contemplated and agreed that during
a 1-year period dating from February 1, 1963, the Company will purchase food prod-
ucts, towels, linen and other material, and other commodities and products used in
its business operations of a value in excess of $50,000 shipped in interstate commerce
directly to the motel from suppliers, manufacturers, and processors located outside
the State of West Virginia.
At all times material herein, the Respondent is and has been an employer as
defined in Section 2(2) of the Act engaged in commerce and in operations affecting
commerce as defined in Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO,
Local No. 128, is a labor organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background
The motel with which we are here concerned was constructed during the year
1962 and was opened for business on approximately December 1 of that year. The
enterprise was and now is headed by Lyman Stanton as president. President Stan-
ton testified that the opening of the motel was delayed by a series of labor disputes
during its construction, and that he had gone through some 18 strikes before he
was able to put the motel in operation. The motel, as is usual, has, besides rooms
used by transients generally, a sizeable dining room with necessary facilities for food
supply, cooking, and the serving of patrons of the restaurant.
Local 128, the Union herein involved, began in early 1963 an effort to organize all
of. the employees of the motel (some 72 or more in number) and, upon a showing, a
hearing was held before a Board hearing officer on the question of representation of
the employees by the Union. The Respondent had received a letter in usual course
from the Regional Director in April; the hearing on the Union's petition was held on
May 23, 1963. Case No. 9-RC-9366. Thereafter, as above noted, Local No. 128
on July 11 filed a charge resulting in the pending unfair labor practices as set forth
in the complaint.
The allegations of the complaint regarding the termination of employment of em-
ployees involves waitresses only, each of these employees being discharged, allegedly,
for their sympathy for, membership in, and activities on behalf of the Union, be-
cause of the organizational efforts of the Union among the employees, and for the
purpose of discouraging membership in the Union. It is alleged that Betty Jo Kinder
was discharged on June 6, and Violet Miles, Eula G. Chevalier, Lois Poe, Juanita
L. Hogg, and Margaret Ann Field on June 20. At the hearing, counsel moved on
behalf of the General Counsel that the names of Jeane G. Salmon and Myrle
Richardson be included as those among the waitresses who are alleged to have
been discharged, Miss Salmon's discharge being alleged as having been made on
July 17, and Miss Richardson's discharge as of June 15, 1963. The Trial Examiner
reserved ruling on the motion of counsel to add these names as alleged discriminatees
because of their union activities. The motion is resolved by the findings and con-
clusions set forth below.
Upon and after the opening of the motel during the first part of December 1962,
management labored under the difficulties inherent in starting a new operation.
Delays were incurred in the acquisition of furnishings, so that it was necessary to
borrow or rent equipment from other sources in the city of. Charleston, and at the
same time .to recruit a staff as quickly as could be done.
Other than the operation of the main dining room,'management undertook to book
reservations for banquets, special lunches, and similar affairs.
By the middle of June or theretbbut, it appears from the collective testimony of
the several witnesses who testified on the point, the motel was equipped, as nearly'
as possible, to cater to the dining-room patrons and banquet and special event
activities.
The record shows that as of October 9, 1963, the motel had employed, from Jan-
uary 1 to September 30, 1963, 74 employees as dining-room and kitchen help, includ-
ing 41 employees as waitresses, and 7 employees as hostesses. The record also shows
that the motel has had 258 employees on its payroll from January 1, 1963, to Sep-
tember 30, 1963. Sixty-seven employees were on the payroll the week ending
September 27, 1963.
HOLIDAY INN OF CHARLESTON 705
With the summary and background set forth above, the following facts in the way
of testimony and exhibits adduced and shown at the hearing are now considered:
The Case for the General Counsel
About the time of the opening of the motel, Mrs. Dorothy M. Koon was employed
about December 1, 1962, by Mrs. Cora Baldwin who, in her capacity as assistant
manager of the motel, had been employed by President Stanton to recruit and hire
a staff of waitresses. Mrs. Koon was employed as banquet manager until her em-
ployment was terminated about May 1, 1963. Her work included office work dur-
ing the day, and the scheduling of banquets for special events. She also was given
permission to put on a uniform and work at night as a waitress, in which she shared
tips given to waitresses.
At the time of her employment Koon was put in charge of the employment and
supervision of all employees in the food department. She had nothing to do with
the maids or anything other than the employment of proper persons to work in the
dining room as waitresses, nor did she have anything to do with the employment of
other employees for various duties such as maintenance of the property, or the
keeping of rooms or maid service. Her main responsibility was for the employment
of waitresses and their supervision. She was put in complete charge under the in-
structions given her by Baldwin and, according to her, the restaurant was opened
in iearly January 1963. Preparation for opening had occurred during December
1962, when she was given the responsibility of hiring waitresses to take care of the
dining room and, further, to book banquets or special dinners or other affairs that
go on in establishments such as this. Koon, during this initial period, seems to have
been in complete charge of the activities of the waitresses and the hostesses. I accept
the testimony of Koon in this respect, since it is undenied upon the record.' Koon
was hired by Baldwin. In summary, as the record discloses, Koon was charged with
the duty of recruiting waitresses for employment at Holiday Inn; she had a fairly
wide acquaintanceship among waitresses in restaurants in Charleston; she was selected
for the job she undertook on December 1, 1962, -because she had knowledge of the
restaurant business in Charleston and the girls she might recruit for waitresses.
Lyman Stanton, president of Stanton Enterprises, Inc., and Cora Baldwin are
executives or supervisors within the meaning of the Act. At the hearing herein,
after denying that Dorothy Koon was a supervisor, in its answer to the complaint,
counsel for the Respondent conceded that Koon was, during her employment, a
supervisor.
About the first of 1963, Baldwin, the assistant manager, took a 6- or 7-week
holiday and during her absence Koon was in complete charge of the restaurant and
banquet operations at the motel. When Baldwin returned to take over her primary
duties as assistant manager , Koon remained as banquet manager.
After the organization of the employees was undertaken by the Union , President
Stanton , Assistant Manager Baldwin , and Banquet Manager Koon consulted in
respect to the activities of the employees , particularly the waitresses, in connection
with the union organization drive.
According to the testimony of Koon , sometime in late March or early April
Baldwin told her that she had opened a letter addressed to Stanton by the National
Labor Relations Board, in his absence, and according to her best recollection the
letter informed the employer that the Labor Board had been presented with cards
signed by some 30 percent of the Holiday Inn employees asking for union representa-
tion ; Baldwin told her that Stanton "would not want a union and we would have to do
something about it"; Baldwin informed her that neither she nor Stanton could go
out among the employees and talk against the Union because they were of manage-
ment, but that "I would be, at liberty. to do so." Later, . according to Koon, a
meeting was held in the office of Stanton „ she and Baldwin being present ; at this
meeting Stanton said .he did not want a union , he did not need it , and he had fought
unions all his life; they only cost him money and they did not benefit him in any way
and she (Koon) should go out and "tell my friends, meaning the girls that I had hired,
that he didn't want a union and if they voted a union in they would be paid union
scale which was less than he was paying them and that was all they would get; that he
would post signs saying 'No tipping ,' and that they iwould receive salary and that
would be all.". Further than this, according to Koon, Stanton said that she should tell
the girls that there might be a union some day,'but there would be a strike long
'Baldwin, before assuming full charge of her duties as assistant manager, spent 6 or
more weeks on vacation in Hawaii.
756-236-65-vol. 147-46
706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before there would be a union and they could possibly be out of work for as long as
6 months.
Koon remembered a discussion with Violet Miles, who told her that she had
signed a union authorization card , and that Miles told her that she did not realize
that she might be causing trouble or getting in trouble herself, that she just felt that
working conditions were so bad that something might help and she signed the card
with "no ill will to anyone." Koon repeated her conversation with Miles to Baldwin.
After this, which had occurred on about April 20 or a -few days before , Koon said
she overheard a conversation between Stanton and Baldwin:
Yes, I sat one day in the dining room with Mr. Stanton and Mrs. Baldwin after
they were fairly certain of the girls . At one time they didn 't know whether it
was the maids or waitresses who signed the cards until they got digging around.
After they were sure it was the waitresses we sat down and talked about it
and Mr . Stanton said in the event there was a strike he said he would fire all these
girls if he found out who they were and Mrs. Baldwin said "You will have to
have some help to operate the food business ," and he said , "You can serve and
so can Dorothy . We will keep the dining room open but we won 't use the
waitresses."
During one of the last days of April ( the 25th or 26th ), a meeting was called by
Stanton to introduce to the waitresses one Paul Holdren who had been hired by
Stanton as a food manager. Holdren was introduced to the gathering of the waitresses
as the one who was to take over complete charge of the dining room, and to act
as banquet manager? Again , according to Koon , the meeting was called for about
4 o'clock in the afternoon:
Well, the employees were all assembled and Mr . Stanton was due at a given hour,
4 o'clock, I believe. He was several minutes late and we sat around talking and
waiting for him and Mr . Holdren was there and Mrs. Baldwin and Mr. Stanton
breezed in and asked "Is this a union meeting?" and got a big laugh and we went
right in to the meeting . He offered apologies for the hardships that had been
caused on everyone and said he realized that we had had a rough time and that
he had had lots of other problems with the motel and was going to concentrate
on the dining room and attempt to straighten out the problems. And he asked
Mrs. Baldwin to introduce Mr. Holdren and she introduced him as the new
director of foods and he made a short speech , what he would expect of the girls
in the way of hair nets and promptness and checking in and making lots of
promises about straightening all the problems out and then Mr . Stanton backed
up all his promises once again ; he realized things had been real rough and we
were going to straighten it out and he appreciated everybody attending the meet-
ing and we would all be given an extra $5 in our paycheck for staying after hours
and attending the meeting.,.
At this meeting identification cards were passed out to the employees requesting
their names and addresses , their dependents , their marital status, when they were
first employed and in what capacity , and to state the amount of their salary. This
seems to have been in line with the introd uction of Holdren to his new job, so he
could have information concerning each employee to assist him in his new re-
sponsibility . Holdren worked at his new job for about 2 weeks , when he • was
replaced.
The General Counsel asserts that one of the purposes of the meeting was to make
clear to the employees its determined opposition to the Union ; and that the $5 pay-
ment for attendance was intended to influence the employees to think along manage-
ment lines.
On the morning following the meeting above described which seems to have
occurred on April 25, Koon reported for duty and was requested by Holdren to
confer with him. They went into Stanton 's office , where Holdren handed Koon a
paycheck and told her that she was being discharged at the request of Stanton
because of her failure properly to handle a luncheon date and arrangements there-
for made by her in connection with a ladies' garden club; that there had been serious
complaints about her handling of that situation . There is a great deal of testimony
in the record , which I consider more or less immaterial , as to whether or not Koon
had properly booked the banquet , or luncheon . According to her , she was under
instructions to not assign banquet rooms for small parties , and this party included
only nine ladies ; that she so informed the group through its chairlady, and arranged
to have a table for nine reserved in the main dining room on the appointed day; that
2 This was the day before Koon was discharged.
HOLIDAY INN OF CHARLESTON 707
having made such arrangements her responsibility ceased because she was responsible
only for banquet parties. The net result, however, was that April 26 was the
last day Koon worked for the Respondent, but was discharged on that day for
the reason stated to her by Holdren.
There is no question in my mind but that at the beginning of operations in the
dining room, Koon was given full authority by President Stanton and Assistant
Manager Baldwin to hire girls to serve as waitresses in the dining room; she ap-
parently had acquaintances in Charleston restaurants and was able to recruit
girls. Later, she was criticized by both Stanton and Baldwin at the time they told
her to speak to the girls and tell them that management would not have a union.
At one time she was informed by Stanton that she would be classed either as a banquet
manager or as a waitress but could no longer hold down two jobs-she could not
work in the office during the day for a salary as a manager of banquets and then put
on a uniform at night and work as a waitress; she would be permitted to do one
but not both and that would of course affect her earnings.
As mentioned above, Koon was instructed to speak to the girls concerning the result
or possible result of their joining the Union and there is no question but what Koon
did convey the feelings of President Stanton and Assistant Manager Baldwin to the
waitresses in regard to what might or might not happen if they joined the Union.
Koon, under instruction during the course of her first employment and after
the opening of the dining room, on uncontradicted testimony of several of the
waitresses, spoke to them concerning the benefits to be derived should they not join
the Union or support the Union. She reported to them faithfully what had been told
to her by President Stanton at her meeting with him and Baldwin in the dining room
at the time it appeared the Union was actively engaged in soliciting membership
among the waitresses nand kitchen help for support as the Union's representative of
these employees .3
I turn now to the testimony of the individual waitresses and other kitchen and
dining-room employees.
Violet Miles was first engaged as a banquet waitress in December 1962, and after
that worked as a waitress in the dining room , at times also serving as a hostess.
She was first approached for employment by Koon while she was at work at another
restaurant. On the following day she talked toKoon and Baldwin, who engaged
her. She was discharged on June. 20 by President Stanton. Stanton informed her,
according to her testimony, that he had an overloaded payroll and therefore was
reducing the number of employees in the dining room. The reason advanced by the
Employer for the discharge of Miles was that she spent too much time in the smoking
area in the kitchen and was-guilty of ffirting with the cooks.
She testified that there was some discussion among the employees after her em-
-ployment concerning the advisability of joining the Union and that she, early in the
month of March, signed an authorization card on request of one Larry Stoddard,
a waiter, who seems,to have been the most active employee in soliciting membership
in the Union. She said that after she hail' signed the authorization. card she was
approached by Koon and was asked if she knew, that "they" ,were trying to negotiate
with the Union; that she replied` no and that Koon said that "they" were and pro-
ceeded "to. tell me that the Union could not help me, it would only hurt me." She
said that Koon further remarked that if the Union was successful in organizing the
employees, President Stanton would post "no tipping" signs; that the regular wait-
resses would not -be allowed to work as banquet waitresses, as they were, then doing;
and requested her to "talk the Union down" to the other girls. About a week later,
she said , Koon again talked to her in the dining room, again asked her if she had
signed a union card and when she replied in the affirmative, Koon asked her where
she had obtained the card, to which she said that "Larry." had given it to her. During
this second conversation,Koon again pointed out. the disadvantages that would be
incurred, should-the Union be successful in organizing the employees . Miles testified
in connection. with a conversation in early June, probably June 11, with Stanton,
during the course of which Stanton is said, to have remarked:
that I had signed a union card , was that right , and I told him yes, and
he said , "well, don 't we all make mistakes ," and he wasn't holding it against
me but he would like to know who else had signed cards and I informed him
that I didn 't know. ^ If I didn't I wouldn 't tell him because I didn 't mind telling
on myself but I wouldn 't tell about another employee.
Koon testified under subpena after refusing to sign a formal statement regarding her
participation in trying to dissuade the dining-room and kitchen employees from joining
the Union . Admittedly , there was , at the times we are concerned with herein , ill feeling
existing between Baldwin and Koon. I do not believe these facts weaken Koon 's credibility.
0
A
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She said that another time, while Stanton was showing blueprints of the new swim-
ming pool, a man came up and addressed her by name (apparently gathered from
the nameplate worn on her uniform) and Stanton asked her if that was one of her
union friends. On another occasion or occasions he asked her if she was going to
attend a union meeting at the Daniel Boone (a local hotel) or "if my union friend
Mr. Gillespie" was in town. Miles also testified in respect to attending the meeting
at which Paul Holdren was introduced and for which the waitresses were given a
'bonus or an extra payment of $5.
Lois Poe was employed by Dorothy Koon in the latter part of January and worked
as a waitress until she was discharged on June 20.
On June 20 Mrs. Poe reported for work at 5 o'clock in the evening, went to the
kitchen to punch her timecard, found that it was not there, encountered her sister,
Eula Chevalier, and on their way to see Stanton in his office met a hostess who, handed
them their paychecks, at the same time informing Poe and Chevalier that they were
no longer employed by Holiday Inn. Thereupon, the two waitresses searched for
Stanton whom they said they could not then find, so they waited in the lobby until
he came downstairs from his upstairs office, told him they wanted to talk to him,
whereupon he led them into his office where they inquired from him why they were
discharged. He said he had complaints; they asked him whether or not it was
their service and he said no, just in a general nature, and he was going to "remedy
it" by laying off "some of us." Upon inquiry by the two waitresses as to why he
was letting them go he said that she (Poe) was in the kitchen smoking too many
cigarettes. Poe was emphatic that she had never smoked cigarettes and so told
him. Upon inquiry by Chevalier, Stanton told her the reason she felt he was
letting her go was because she was a friend of Larry Stoddard and then Stanton
said, "Larry sold us down the river." Stanton indicated that Stoddard had ap-
proached him, told him in effect that he was organizing the girls, but if Stanton
would pay him, Stoddard, a certain amount of money, he could get rid of the Union.
Poe had signed a union authorization card about mid-April at the solicitation of
Stoddard. She testified further that about April 25 or 26, the date of the discharge
of Dorothy Koon, she engaged in a conversation with Cora Baldwin, the assistant
manager, in Baldwin's office.
On this occasion, according to Poe, Baldwin inquired as to whether or not Poe
had signed a union card and Poe told her that she had not. Then, according to
Poe, Baldwin told her the disadvantages of the Union, specifically:
Yes, that Mr. Stanton would post "no tipping" signs and that our salary would
be cut and that we couldn't work banquets; that we could only do our waitress
work and there would be no uniforms furnished ... that if the Union came in
he would close the dining room ... .
Poe also testified as to statements made by Koon having told several of the girls in
her presence the disadvantages that would be attached should they join a union-she
mentioned salary cuts , no-tipping signs, and, from the general text of the testimony
of Poe, Koon attempted to discourage not only her but other waitresses from taking
any interest or joining or assisting the union organization movement of which, at
that time, management was fully aware.
Eula Chevalier was first employed in December 1962 as a banquet waitress by
Koon and then was engaged by Baldwin as a regular waitress in the dining room.
Her testimony, concerning the circumstances of her discharge, was substantially
the same as that of her sister , Poe. She and Poe were given their paychecks by the
hostess, Lee Mallett, and-then she and Poe waited for Stanton to come from his office
so they could demand from him an explanation of their discharges. After President
Stanton had told Poe that she was being discharged for smoking a cigarette or too
many cigarettes in the kitchen and had been informed that Poe had never smoked
a cigarette in her life, Chevalier asked why he was letting her go to which, he replied,
he had had complaints on the service ia,general ; she asked him if he had any com-
plaints on her services, to which he replied no, not individually, that he was just going
to make some changes; she then asked him if he had had complaints and after he had
answered in the negative, she said that he then "told me that when he said that he
didn't have any complaints on my service, he just said I complained, went around and
complained all the time, and I asked him who to and what about and he said, well,
I would just stand around and complain in the kitchen about the food"; she asked
Stanton if that was the real reason and stated that she felt she was being let go
because Larry Stoddard had admitted he was a union organizer there and:
HOLIDAY INN OF CHARLESTON 709
I had felt that since Larry Stoddard and I were friends that they suspected me
of union activities to which Mr . Stanton laughed and said, well , Larry had sold
us all down the river , and asked me if I knew that Larry had come to him trying
to get money from him and I answered no, that I did not know it and he said
that Larry had.
According to Chevalier , Stanton intimated that because Stoddard had driven her and
her sister to and from work, Stoddard had told him all about his (Stoddard 's) con-
versations with the waitresses in regard to joining the Union.
Chevalier testified to a conversation between her and Koon on or about April 10:
Well, Mrs. Koon and I were setting up for a banquet and she told me that Mr.
Stanton had been approached by union officials that day and that he was very
angry and that Mr. Stanton had said that he would close the dining room before
he would ever allow a union to come in ; that he would post "no tipping" signs;
that he would cut our salary from 50 cents an hour to 331/3, which was the
union scale; that he would not be allowed to furnish our uniforms ; he would not
be allowed to select the employees , that we,would have to work with whatever
the Union sent in for us to work with.
She testified to another conversation held with Baldwin on or about May 26, at which
her sister , Myrle Richardson , and Martha Richards , another waitress , were present,
during the course of which Baldwin came into the ,banquet room , said she would like
to talk to the girls, and that management suspected the union officials had forged their
names to authorization cards and-
she asked us did we sign and we all replied no, and then she told us the
disadvantages of the union . . .. Well, she said if we hadn 't signed union
cards and there had been forgery and that was a case for the FBI, and she was
calling them in the next morning . . . she told us that Mr. Stanton wouldn't ac-
cept the union , that if there was an election held and the union won the vote that
we would go on strike and that we girls would have to walk picket lines carrying
big signs on our backs ; that they would not be allowed to furnish our uniforms;
our salary would be cut.
She, too, substantiated the testimony of Koon regarding a meeting at which Stanton
promised and did pay a $5 bonus or added increment for attendance at that meeting.
Although Chevalier told Stanton she felt she was being discharged because of union
activities "because of my friendship with Larry and it was a known fact that Larry
was a union organizer and then that is when he laughed and said that Larry had sold
us all down the river ," it was then she asked why she was being discharged, and
Stanton said that all she did was stand around the kitchen and complain.
Betty Jo Kinder testified that she was first employed on April 10 and worked
until June 6. She said that on the latter day she was told by Baldwin that she need
not come back the next day , there being an overloaded payroll , and that she would
be laid off. She said that on the following day, when she went to pick up her pay-
check, she saw two new waitresses at work who had not been there prior to her layoff.
She signed an authorization card on May 14, prior to her discharge.
Her testimony further shows that she signed a union authorization card at a meet-
ing held by the Union during the first part of the month of May; about a week after
she had started working, Stanton, in the presence of Baldwin , asked her if she had
been approached by anyone to sign a union card and she replied in the negative.
He interrogated her further and told her there were disadvantages to a union in that
"they would have to pay union dues." She testified to a conversation between
President Stanton and Baldwin while they were talking to Violet Miles , and heard
Stanton ask Miles if she had signed a union card ; Miles said she had . She testified
further to being present at.the meeting when Holdren was introduced to the em-
ployees and that she received $ 5 in addition to her regular compensation for appear-
ing at that meeting.
On cross-examination of Miss Kinder, a question was raised as to whether or not
she had failed to return a uniform purchased by her on authorization of Baldwin
from J . C. Penney Company after her discharge . It appears that the employer
furnished uniforms to waitresses; that Kinder was furnished a uniform which did
not fit her but which she tried to make over . The raising of this question I now
consider improper , as a belated effort to show , in addition to the reason above stated
by Baldwin for her discharge , that she was discharged and was responsible for a
uniform received by her, not paid for, and not returned to the Company.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jeane Salmon was employed by Baldwin about February 1 as a waitress and worked
until July 17. She had been absent the day before and , according to her testimony,
she had asked her daughter to telephone the office to advise them that she would be
out of town on that day and would be about 2 hours late; that after being off a day
on Tuesday and reporting to work on Wednesday she inquired of one of the super-
visors concerning the fact that her timecard was not in the rack , asked him if she
was fired to which he replied, no, she was not fired, just terminated . The supervisor
she talked to was Harlan Burns, who had succeeded Holdren as manager of the dining
room and kitchen . She said that she replied to Burns that that was just fine, she
needed a rest anyhow.
She said that while employed she was aware that the Union was attempting to
organize , that she signed a union card at the request of Stoddard and testified further
to a conversation she said she had with Stanton in his office about the middle of
May in which, according to her, Stanton asked her if she had signed a union card;
that she said no, whereupon he told her about the Union "how if the Union got in
I would have to pay out so much money in union dues and things like that, and
I said I needed all the money that I made and I wouldn't like to share it with anyone."
According to her, Stanton said further that if the Union came in he would close;
they were forcing him to have an election , to which she replied she didn 't see how
they could force anyone to have an election if they didn 't want one . She, like
other witnesses , testified regarding Koon talking to the waitresses concerning the
Union and the posting of "no tipping" signs and lower wages should the Union be
successful in its organization campaign. .
The pattern of testimony follows the same line all the way through insofar as
the waitresses were concerned , in being apprised either directly by Koon or in-
directly by Stanton that their jobs or their earnings would be jeopardized should
they continue to adhere to or to join the union organizing effort.
Waitresses Myrle Richardson and Juanita Lee Hogg by their testimony corroborated
the facts related by other witnesses who preceded them on the witness stand and
who testified regarding the efforts made by members of management , including Koon,
to dissuade them from continuing to engage in individual or concerted activities on
behalf of the Union.
The Case for the Respondent
Cora Baldwin, assistant manager, testified that she had been employed by "this
particular Holiday Inn" from the time construction started and, except for a vacation,
was on the building site at all times. She said further that she had been connected
with Holiday Inns for 3 years, had been in the restaurant business for some 5 years,
and had experience in working with employees in connection with management
and the enforcement of rules and regulations that should be followed.
Baldwin testified that her first intimation or knowledge of union activity was the
receipt of a letter from a representative of the Regional Office of the National Labor
Relations Board and that when she talked the matter over with President Stanton
they were rather surprised to find that a labor movement among the employees
in the motel was in progress . She denied that she or Stanton , so far as she knew,
had ever interrogated or talked to any employees "in any demeaning way about the
Union or the union activities ." The whole import of her testimony was that what-
ever she or Stanton had said to the girls about the Union was more or less in a
joking manner. She had knowledge , she testified , that there was some discussion
among the waitresses and other employees in the restaurant and banquet department
about a union , but that any comment she ever beard Stanton make was in a joking
manner and was not intended , the implication of her testimony is, to influence the
waitresses in any way, or any other of the employees , including the cooks and maids,
regarding their interest in the Union. She said that she could remember Stanton
telling the girls on several occasions when she was present that this was a free
country, they could do as they like, if they wanted to vote for the Union that was
their privilege , but had told Jack Gillespie 4 that he was going to fight it to the bitter
end; that was the policy of the Company as formulated by Stanton. She made it
clear that Stanton had formulated such a policy of opposition to the union organiza-
tion efforts of the employees , which he communicated to the employees:
Well, yes, at that time because we were setting up and our turnover was
tremendous and we thought it was a silly thing to even try to get the Union
issue in at this point . If we had been established, we had as I said, had such a
tremendous turnover that some employees were here one week , they were
gone the next , some of them lasted two days, some lasted two weeks, some
lasted two months.
A Representative of the Union.
HOLIDAY INN OF CHARLESTON 711
Baldwin described the duties of Koon, and corroborated the fact that she had more
or less given Koon carte blanche in regard to the hiring of waitresses both for the
main dining room and the banquet room; that a number of the girls hired by Koon
were strangers to her and that she had informed Koon that she preferred to use
the girls from the dining room because "I always had in the banquets before let the
girls that we had employed make their extra tips."
In respect to the girls hired by Koon, Baldwin testified upon inquiry as to the
relationship between the waitresses hired by Koon and herself:
Well, some of them I didn't even know until they came in to work banquets,
I don't know where they came from, but there were a few that were strangers
to me. Of course all the girls were strangers to me in the beginning when we
first set up, but I know on some occasions later on she had her daughter that
came in to work some, but Mrs. Richardson started out with the banquets and
she was satisfactory to us and also to Mrs. Koon, so we employed Mrs. Rich-
ardson the entire time until she worked the last one, I didn't hear from her
anymore no, they were under no payroll. They [the banquet waitresses]
worked for their tips alone, and then the dining room girls, of course, when
they went to work a party they weren't on the payroll at the time they were
working. They would check out and work the party for the tips. If they
were in the dining room, I mean, they wouldn't get 50 cents an hour for also
working the parties, but they punched the timeclock and then worked the parties
for their 15 percent.
Baldwin denied that she had ever instructed Koon to talk to the employees against
the Union or make any comment whatsoever about it. She testified to a certain
conversation between her and Koon concerning the letter received from the Regional
Office of the Board in April. Regarding this:
We had gotten this letter and me and Mr. Stanton were in the office discussing
this when Mrs . Koon came in and Mr. Stanton says "I don't know who it is,
how long its been going on, . . . this is quite shocking . you know we
can't say a thing to any of our employees one way or the other . . . neither
Cora nor I." Mrs. Koon said "is there any reason why I can't?"
Then, according to Baldwin , President Stanton said , "Well if you want to go out and
find out who have signed up, if they are all for the Union or part of them are for the
Union, whatever you want to do, go out there. They are your friends. Go out and
find out if you want to . . . we cannot do it." Further, according to the testimony
of Baldwin, Koon came back at one time and then another and told Stanton and
Baldwin that she had tried to find out who had signed authorization cards, but could
not find out as nobody would say she had signed a card; that she knew that Violet
Miles, a hostess, had told her that she had signed an authorization card but so far
as the hostess was concerned she had never said anything to any of the girls who
were acting as waitresses . Baldwin denied engaging in interrogation concerning who,
if any, of the employees had signed union authorization cards. In substance, the
testimony of Baldwin was to the effect that she and Stanton knew of the organizing
campaign initiated by the Union, that although from time to time she commented
concerning union organization , she herself did nothing to encourage or discourage
membership in the Union by any of the employees under her supervision.
The discharge of Koon, as related above, I am convinced, resulted from her par-
ticular personal acquaintanceship with the waitresses she had employed and who
turned out to be adherents to the Union, and the apparent sympathy of Koon toward
the desire of some of the girls she had hired to support the Union.
After the expression of dismay and shock by Stanton as reported by Baldwin, in
finding that the employees had signed union authorization cards, she said that Violet
Miles and one other had been told that some of the girls were signing union cards;
that the information from the hostess that Miles signed the card meant nothing
to her; that she said nothing to Miles about it and, insofar as she was concerned, the
girls had a right to sign cards.
In connection with her business dealings with Koon, Baldwin said that Koon was
employed before the motel was set up for operation and worked with her and two
more girls that Baldwin had hired; that Koon kept the banquet book in which was
recorded events to take place in the future; her account of the discharge of Koon
was premised on the failure of the latter to effectively handle a garden club party. It
was the responsibility of Koon, she said, to book banquets, and to see that they were
properly taken care of.
It seems to me the reason given for the discharge of Koo" is fallacious . To single
out one instance of alleged failure of Koon to perform her banquet duties, after Koon
712 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been charged with the responsibility that she had undertaken and performed
in connection with the hiring of waitresses and the running of the banquet depart-
ment and at the same time working in the office , makes it incomprehensible to me
that the sole reason for her discharge was her one failure to take care of one party
of nine on a particular -day. l believe the reason for the discharge of Koon was that
she was friendly with the girls she had hired as waitresses, and was unsuccessful in
persuading them not to adhere to the Union.
Lyman A. Stanton , the president of the Respondent corporation , testified that he
first learned of a union organizing drive at his establishment in Charleston when he
was informed by Jack Gillespie, the union business representative, of the campaign
at lunch at Holiday Inn; that he, Stanton, told Gillespie that he had had enough
trouble with unions in the construction of the building, that he had gone through
18 strikes and was very much against the Union, considering the trouble he had had,
and that he would much prefer to defer discussions of the union organization among
the waitresses , cooks, maids , and other employees until the employment situation had
stabilized . At that time he informed Gillespie that he, together with Baldwin,
had experienced difficulty in obtaining qualified waitresses and others , that there
had been a considerable turnover , and that so far as he was concerned he would
prefer to wait until the restaurant , particularly , was better organized and in more
of a position to render service than it was at the time. He was told by Gillespie that
the Union intended to or had filed a petition with the National Labor Relations Board
for an election in the unit described , as above, and that he, Gillespie , intended to
proceed with organizational efforts. The conversation apparently was a friendly one
and,. according to Stanton , he*said that he had made his position clear and "may the
best man win."
In regard to the meeting called to introduce Holdren as the new food and
restaurant manager, Stanton said that he did come in a little late and said, facetiously,
"Is this a union meeting?" He insisted that he had no intention either by that remark
or by his promise to pay the employees an extra $5 for their attendance at this meet-
ing to "butter up" the employees in order to gain their opposition to the Union.
Stanton was examined in regard to certain gifts of hosiery he had made to waitresses,
at the Charleston Holiday Inn. He explained that that was his custom, that he had
done the same thing in other motels which he operated including those at Huntington
and Chicago.5
Stanton was a frank and open witness and made no secret of his opposition to
the Union coming in at the time it attempted to do so. For example, he was asked:
Q. Did you ever say that you would shut down the operations if the Union
was selected by the employees to represent them for collective bargaining
purposes?
A. I did say that and I did it because from the statement of a letter that was
written by Mr. Gillespie to the employees that he was going to up their wage
scale if the Union got in and I said we. were having enough trouble, we could
not pay any more or put on any more help than we had and if it came down
to that I would close it down before I would lose money.
He explained that gat the time the statement was made by him "we will pay more than
the other restaurants , hotels, motels, are paying for all our employees and we were
having the problem with our restaurant any way and we are still having it."
From what I can gather from the testimony in this case, which is lengthy, Larry
Stoddard was regarded by Stanton as an excellent waiter. According to the testi-
mony of Stanton, Stoddard was going to school and Stanton discovered that he was
leaving earlier than usual hours required and that he would request waitresses to
check him out on his timecard . This was called to Stanton's attention , and he took
the matter up with Stoddard. Stoddard conceded the fact. Later, according to
Stanton , Stoddard approached him and said that he had been engaged in soliciting
membership in the Union, that he could swing the girls either way, and that he was
going to be married the following week: that if Stanton would give him $250, he
could get the girls to withdraw from the Union or to revoke their union authorization
cards. According to Stanton, after his conversation with Stoddard, he gave the
latter a week off with instructions to come back and see him. He said that after the
lapse of a week , he discharged Stoddard, saying that under the circumstances he
just did not see how he could keep him in his employment.
5 These were more or less in the nature of Christmas gifts, as I understand the testi-
mony , and therefore give it no weight, insofar as it pertains,to an alleged effort of Stanton
to influence his employees regarding their feeling toward the Union.
HOLIDAY INN OF CHARLESTON 713
Stoddard did not testify nor is there any showing that any attempt was made
to call him as a witness . Consequently the testimony of Stanton , in regard to
Stoddard 's statements to him regarding his efforts to organize the Union , and also
his request for $250 to discontinue his efforts of organization so he could get married,
must stand on the record . The argument of counsel for the Charging Party to the
effect that Stoddard was not required to check in and out by the timecard method is
meaningless and in my opinion the testimony of Stanton in this regard must be
taken as a fact.
Stanton was interrogated at length concerning any remasks he may have made
concerning the Union to waitresses , or any interrogation he may have engaged in in
regard to their union membership . As will be later commented on herein , Stanton
either denied or had a reasonable explanation for each remark attributed to him in
regard to his comment from time to time regarding the work of the waitresses and
how they performed their work. The whole import of the testimony , considering
that of Baldwin and Koon, is, in effect , a discussion in respect to some discussions
regarding the efficiency of the work of the waitresses , and nothing else.
The sum and substance of the testimony of Stanton , both on direct and cross-
examination , redirect and recross, shows that he was entirely frank in his dealings
with the employees and with Gillespie, the union agent ; that Stoddard attempted to
extract money from him should he (Stoddard ) cease his efforts to help the Union.
According to Stanton, Stoddard told him that he was leaving his work early and was
receiving pay from the Union to further the union organizing effort.
Stanton was interrogated concerning the conduct and the ability of Betty Jo Kinder
as a waitress , concerning Violet Miles , Lois Poe, Margaret Ann Field, Jeane Salmon,
Myrle Richardson , and Eula Chevalier.
The earnings of the waitresses , as well as those of some of the cooks, depend
greatly on the amount of tips they receive . It is a matter of common knowledge
that the tipping system in itself is not uncommon.
The General Counsel makes a great to -do concerning the testimony of Stanton
given as follows:
Q. Well, what were the circumstances of making this statement about that
you would put up "no tipping" signs?
A. The circumstances were that if the Union , according to the letter Mr.
Gillespie signed said they were going to raise the wages, would better the wages
of the waitresses , and if he did that I would have to raise the price of food so
high that I would have to put a "no tipping " sign out, as many restaurants have
done and many other places have done and I have done it myself.
Stanton denied that he had ever said that he would refuse to pay the cost of uni-
forms, and the record bears out his statement . There is no intimation of a threat,
other than the putting up of the no-tipping sign, that the regular earnings of the
waitresses or other employees would be reduced because of their interest in the
Union . One factual question resolves down as to whether or not to accept Stanton's
statement that Gillespie told him that he would insist on a higher wage scale and
other benefits and that Stanton in effect replied he was opposed to Gillespie's position
and would continue to oppose it within the limits allowed by law.
It seems to me that the testimony of President Stanton was concise and clear in
regard to his knowledge of the waitresses above mentioned and the manner in
which his restaurant was run . He did have to rely on reports made to him, par-
ticularly by Baldwin or some of the hostesses , but he himself testified regarding the
poor service offered by some of the waitresses to the patrons of his restaurant. In
regard to the individual waitresses concerning whom he testified , he displayed a
firm general knowledge of their particular abilities and capacities . As he testified,
Well, I certainly am not there every minute to see it . I have to have somebody
to tell me something . With 200 rooms and 85 employees I can't see everything
that everyone does.
In the course of his observation of the way his restaurant was run , Stanton
testified that he had discharged cooks based on complaints on the way food was
served including one Jess Hobbs, one Jimmy Lewis, and James Stephens (later men-
tioned herein ) and reprimanded one cook named Eddie Halstead, admitted that he
without doubt was indiscreet although unintentionally , so in the various comments
he made regarding the work of the waitresses and the cooks in the establishment
of which he was the head, he necessarily had to depend on Baldwin and Koon for
the proper organization and direction of the restaurant . The General Counsel
seems to place a great deal of emphasis on the fact that Koon was discharged, and
that Holdren succeeded her and was announced as her successor at the meeting
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where $5 per waitress was paid for attendance at the meeting . I discount a great
deal of the lengthy testimony in this case in this connection . I observed Stanton
on the witness stand; I believe that he was not fully informed concerning the ac-
tivities of his kitchen and his restaurant until he personally took cognizance of what
was happening there. Notwithstanding this conclusion , it is my opinion that some
of his comment was misplaced and not according to the strict requirements of the
Act, particularly Section 8 (a) (I).
Harlan Burns, a witness called by the Respondent , testified that as restaurant
manager he discharged Jeane Salmon because of her failure to report on time, be-
cause of slow service, because "she couldn' t handle a full station"; that she had
been warned about this before her discharge. Burns denied that during his em-
ployment he had heard any of management interrogate the employees or that he
had interrogated any employee or made threats to any of the employees by reason
of their union activity.
James A. Stephens, employed as a cook, testified concerning discharges of Betty
Jo Kinder, Violet Miles, and Eula Chevalier. Each of these girls had been accused
of improper conduct in the kitchen in connection with spending their time gossiping
or flirting with the cooks and other kitchen employees . He said that he had observed,
specifically , the "writing on the jackets [of the cooks] quite -a bit of playing around.
I would rather not say any more." The testimony of Stephens amounts to this:
that as a cook he observed waitresses from time to time smoking either in an area
reserved for the cooks or in an area leading to the lounge between the waitresses'
bathroom and the men's lounge next to it, and that there had been a considerable
waste of time; that orders might have been delayed because of this. Actually the
sum and substance of his testimony is to the effect that he observed some tomfoolery
in the kitchen , that Betty Jo Kinder and Violet Miles spent more time in the smoking
area of the kitchen than other girls , that it did not interfere with his work, nor so far
as he knew the work of other cooks; and he further confirmed the fact that he thought
Eula Chevalier had carried orders around in her pocket without giving them to the
cook properly: "I remember she brought an order to me one night and asked
me if I would put it ahead of the orders because she had forgotten it in her pocket."
On cross-examination the matter of writing on jackets, the holding up of orders, the
smoking in the cooks ' area, and other matters which had been gone into at length
were rehashed . Stephens , in effect , corroborated the testimony of Baldwin regard-
ing what she said she had seen in the kitchen , and that of Stanton , who testified that
from time to time when he went into the kitchen he would find his employees engaged
in playing around , smoking, and not taking proper care of customers.
Martha Richards is employed as a waitress and has been since January; she testi-
fied that she did not have too much to do with Betty Jo Kinder or Violet Miles but
saw them in the kitchen quite a lot and, when pressed , said that she saw Kinder in
the kitchen at least 8 or 10 times a day during the week of her employment after
January up until the time Kinder was discharged . The duties of Richards in-
cluded going into the kitchen to pick up glasses , cups, and saucers , bring in silverware
and juices from the icebox; she would see them back there every 20 or 25 minutes
.picking up things and "Well, the girls just didn 't do the work; they stayed in the
kitchen all the time and they couldn't keep the work going in the dining room."
Although Richard's had only one particular station to which she was assigned, her
complaint was, "I did more than my share , I would say," and so she complained to
Baldwin . She testified further that she was not aware of the union organizing
campaign going on during the course of her employment although "I did hear the
girls whisper around as far as I recall." She denied saying anything to President
Stanton or Assistant Manager Baldwin about the Union; she said she had never heard
anyone joking about the Union; she was never asked if she had signed a union card.
In answer to a question as to whether she had observed anything more than innocent
kissing going on in the kitchen , this witness testified:
A. Yes, it [sic] did. The cooks feeling around over the girls , and then they
would go over and start fixing the orders for us to take out to our guests and
I didn 't think it was right.
Q. What were the cooks doing?
A. Feeling around over the girls and the girls would fall all over the cooks
hugging and kissing.
Q. Was your objection on sanitary grounds?
A. Well, I would say that was part of it.
Q. Who is in charge of the kitchen?
The WITNESS: At that time Mr. Hobbs was.
TRIAL EXAMINER : Was Mr. Hobbs in and out of the kitchen?
The WITNESS : He was there the most of the time.
HOLIDAY INN OF CHARLESTON 715
TRIAL EXAMINER : Did you ever see Mr. Hobbs in the kitchen at the time you
observed these activities?
The WITNESS: I had talked with Mr. Hobbs about it.
TIDAL EXAMINER: Did you ever see him in the kitchen when you observed
yourself of these carryings on that you have described?
The WITNESS: Not at that time, no, sir.
She went on to testify that: the "carryings on" that she was talking about was while
Hobbs was out of the kitchen; she spoke to Hobbs and related to him what she had
testified to; he said that he was going to talk with Baldwin and Stanton about it and
"at that time we had a sign printed and put on the bathroom door that the door
would be shut at all times when the girls were there"-this referred to the ladies' room.
Richards, in summary, substantiated what President Stanton and Baldwin and, to
some extent, Stephens had said "went on in the kitchen" or had heard of the
situation.
Rebuttal
Lois Poe, called by counsel for the Charging Party, testified that: she had worked
previously as a waitress at six establishments in Charleston or nearby; she had worked
long enough in the restaurant business to know first-class restaurants; and denied
that while working at Holiday Inn she ever carried checks around in her pocket so
that the cooks would be delayed in filling the order.
Dorothy Koon was also called on rebuttal by counsel for the Charging Party.
The susbtance of her testimony was merely a rehash of all that has been related
above. A great deal of time was spent in regard to her handling of the luncheon
or banquest for the nine people allegedly the cause of her discharge; instructions
given to her by Baldwin; the policy of the motel in regard to a general rule not to
discharge or when to discharge employees and not to go into their reasons for his
or her discharge; then again testimony was taken regarding her hiring of waitresses
who appear in this case as having been discharged because of their activities for or
interest in or membership in the Union. There was a great deal of testimony
taken regarding the distribution of tips, all a repetition of testimony above sum-
marized; and, in particular, an answer to the accusation of Baldwin and Stanton
that Koon had insisted that she be paid by check for banquet parties, the check to
be made out in her name. I credit the testimony of Koon and I credit the explana-
tion given by her as to why she had advanced money for tips to waitresses after a
banquet party before the check was paid by the guest or guests, and why she felt
that she should be reimbursed as soon as possible. I do not believe Koon to be a
dishonest person and I accept her testimony and her explanation in regard to the
incidents brought up regarding her calling this person or talking to that person about
how the banquet check should be paid. The testimony against Koon in this respect
appeals to me as an afterthought. Admittedly on the record Baldwin and Koon
did not get along too well together.
The following testimony on cross-examination by counsel for the Respondent
after Koon had been recalled on rebuttal is of interest:
Q. (By Mr. GARDNER.) And weren't all receipts to come through Holiday Inn?
A. There was never any discussion along this line.
Q. You were never instructed that all receipts were to come through Holiday
Inn?
A. Mr. Gardner, from time-from the time I took over the banquet business
there were practically no discussions as to how I was to carry on. I went to Mr.
Stanton on different occasions to ask questions. He would be very busy with
many things and he would say, "My dear, you take care of it in your own
customary good manner," and I proceeded. That was a favorite expression
of his.
Q. Did Mrs. Baldwin also say this, take care of things?
A. I had very few discussions with Mrs. Baldwin in regard to these things.
I had no problems. I just carried on the way I felt was right and was never
questioned.
Q. Did you ever receive or did you ever request of a banquet party a check,
that a check be sent directly to you?
A. Yes sir, and this check was sent to my home.
Q. How many times did this occur?
A. One time.
Q. Do you recall the name of.that?
A. I certainly do. I had trouble getting my money.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The testimony of Koon in this respect went on to relate who it was, who was in
charge, and why she had called for a check from the person, Fairfax Brown, of the
Junior Chamber of Commerce.
Koon apparently was in charge of paying out tips to the girls in the banquet
department-that is, the girls or perhaps a waiter such as Stoddard who might from
time to time have served as a waitress or waiter at a particular affair. I am con-
vinced after reading the record and on my first opinion formed at the hearing on the
testimony of Koon that Koon was put in complete charge, during the time she
was employed, of the banquet department.
The friction apparently was caused by the fact that Baldwin -felt that Koon should
not serve customers without a regular uniform. The story is too long to be included
herein but the fact of the matter seems to be that Stanton took the part of Baldwin
and told Koon that Baldwin objected to her acting as banquet manager and then
putting on a uniform with high heels and a different uniform than Koon was ac-
customed to wear after acting as banquet manager or hostess, and serving customers.
Koon testified that she herself had purchased her own uniforms.
Koon further testified:
Yes, there was hostility and I felt she was very much out of place in discussing
my salary. Waitresses had no idea what I made. I felt like salaries were some-
thing that were confidential and at the same time I discussed this with Mrs.
Baldwin. She said, "I am not happy here. I am not going to stay because
he is paying a room clerk and I am assistant manager and I make only $125,
so I am going to get out." So I said "Well, I disagree with you for discussing
my salary with my employees. Now you are discussing another employee's
salary with me."
This was the beginning of the hostility between Mrs. Baldwin and I.
On rebuttal it was brought out by counsel for the Charging Party that Eula Chevalier
was unemployed at the moment; had at the times she worked been employed as a
waitress at a number of restaurants in and near Charleston; she was married and her
.husband is employed.
I listened closely to other witnesses called on rebuttal, most of which amount to a
denial of the Respondent's case with little or no explanation of charges in mis-
behavior or charges of incompetence, of charges of failure to report on time, of
charges that they were poor waitresses, and of charges that in general their respec-
tive discharges were justified for incompetency.
On the basis of the facts set forth above I make the following:
Concluding Findings
1. The Respondent through Dorothy Koon, violated Section 8(a)(1) of the Act
in technical sense , by her interrogation of waitresses employed by her as a representa-
tive of management. The interest of President Stanton and Assistant Manager Bald-
win in the comments made by them cannot be attributed to anything other than
normal interest on the part of management to determine the extent to which em-
ployees were committed to union organization. Scrutiny of the record, the demeanor
of the witnesses, and the congeries of fact impel me to find that a recommendation
for a cease-and-desist order herein would be misplaced. Such an order would not
effectuate the policies of the Act.
2. I find that Betty Jo Kinder, Violet Miles, Eula G. Chevalier, Lois Poe,
Juanita L. Hogg, Margaret Ann Field (who did not appear ,as a witness), Myrle
Richardson, and Jeane Salmon were laid off or discharged for reasons within the
prerogative of management, and not because of their membership in or individual
or concerted activities on behalf of the Union.
3. On the basis of the whole record herein I find that the Respondent has not been
proven to have had any intent, at any time, to actively interfere with the efforts of
the Union to organize the employees of the Company not restricted under any of
the provisions of the Act. It has been shown that company policy was placed in
opposition to union organization. It further has been shown that expression of com-
pany policy was , in a casual sense, made well known to its employees, particularly
to the waitresses, in a way not inconsistent with Section 8(c) of the Act.
4. The General Counsel has failed to sustain the allegations of the complaint to
the extent of the necessity for an order which would effectuate the purposes of the
Act.
On the basis of the foregoing findings of fact and upon the preponderance of the
evidence, I make the following:
EDWARD AXEL ROFFMAN ASSOCIATES, INC. 717
CONCLUSIONS OF LAW
1. Stanton Enterprises, Inc., doing business as Holiday Inn of Charleston, the
Respondent herein, is an employer within the meaning of Section 2(2) of the Act.
2. Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO,
Local No. 128, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in the unfair labor practices alleged in the
complaint.
4. The complaint herein should be dismissed.
RECOMMENDED ORDER
It is recommended that the Board enter an order herein dismissing the complaint.
Edward Axel Roffman Associates , Inc. and Upholsterers' and
Springmakers ' Union, Local 76 , United Furniture Workers of
America, AFL-CIO. Case No. f2-CA-9290. June 25,1961p
DECISION AND ORDER
On February 11, 1964, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had not engaged in the unfair labor practices alleged in the com-
plaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Decision. Thereafter the General
Counsel and the Charging Party filed exceptions to the Decision and
supporting briefs, and the Respondent filed exceptions and brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations 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 Trial
Examiner's Decision, and the exceptions and briefs of the parties, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following exceptions.'
[The Board dismissed the complaint.]
1 While we agree with the Trial Examiner that the complaint here should be dismissed
for the reasons set forth In the Trial Examiner 's Decision , we do not agree with and do
not adopt the Trial Examiner 's collateral finding that the Respondent 's determination to
move to Allentown was discriminatorily motivated. Apart from the fact that the com-
plaint does not allege that the Respondent ' s move was discriminatorily motivated and that
this issue was not before the Trial Examiner , we are of the opinion that a case of dis-
criminatory motivation was not established by a preponderance of the evidence. Further-
more, we do not adopt the Trial Examiner ' s analysis of the Board 's decisions in Town &
Country Manufacturing Company, Inc., 130 NLRB 1022, and Adams Dairy, Inc., 137
NLRB 815, as reflecting the Board 's true holdings in those cases.
Member Leedom agrees that the complaint should be dismissed for the reasons relied on
by the Trial Examiner . However, he adopts the Trial Examiner 's conclusions concerning
Respondent's obligation to bargain only to the extent consistent with his position as ex-
pressed in Town & Country Manufacturing Co., Inc ., supra, Adams Dairy, Inc., supra, and
Northwestern Publishing Company, 144 NLRB 1069.
147 NLRB No. 87.