Hotel Texas

National Labor Relations Board - Board Decisions

Sep 19, 1962

138 N.L.R.B. 706 (N.L.R.B. 1962)

706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of collective bargaining or other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that such right may be affected
by the provisos in Section 8(a) (3) of the Act.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of International Vehicle Salesmen's Union of America (Ind.),
or any other labor organization.
LARRY FAUL OLDSMOBILE CO., INC,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Midland
Building, 176 West Adams Street, Chicago, Illinois, Telephone Number, Central
6-9660, if they have any question concerning this notice or compliance with its
provisions.
Citizens Hotel Company d/b/a Hotel Texas and Hotel and
Motel Cooks, Waiters , Waitresses and Bartenders Union Local
748, affiliated with the Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO. Case No. 1G-CA-
1591. September 19, 1962
DECISION AND ORDER
On June 2S, 1962, Trial Examiner Benjamin B. Lipton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom,
and take certain allirniative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Leedoni and-
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
'In asserting jurisdiction, we rely only on the facts in the record, as stipulated to at
the lien,ing, which establish that the Respondent is engaged in commerce within the
meaning of the Act, and that its operations satisfy the Board's standards for assertion
of jurisdiction over hotels See also Citizen's Hotel Company, d/b/a Texas Hotel, 131
NLRB 834
138 NLRB No. 82.
HOTEL TEXAS
INTERMEDIATE REPORT AND RECOMMENDED ORDER
707
STATEMENT OF THE CASE
This proceeding heard before Trial Examiner Benjamin B . Lipton on March 26,
1962,' in Fort Worth , Texas, involves allegations 2 that Respondent , Citizens Hotel
Company d/b/a Hotel Texas, violated Section 8(a)(5), (3 ), and (1) of the Act.
All parties were represented and participated in the hearing and were afforded full
opportunity to argue orally on the record . Briefs filed by the Respondent and the
General Counsel have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , ,a Texas corporation , having its principal office and place of business
in Fort Worth, Texas, is engaged in the business of operating a hotel, garage, park-
ing lot, and hotel annex .3 Only the hotel , called the Hotel Texas , is involved in
this proceeding . During the year preceding issuance of the complaint , Respondent
provided less than 75 percent of its guests at the hotel with lodging for a period of
1 month or longer. During the same period , Respondent received gross revenues
for goods and services valued in excess of $500,000, and purchased supplies valued
in excess of $10,000, which were shipped to it directly in interstate commerce. Dur-
ing the year preceding January 1, 1962, Respondent purchased liquor at a cost of not
less than $50 , 000 for use in its package store, and such liquor originated outside
the State of Texas. The foregoing facts were admitted in Respondent 's answer to
the complaint and stipulated at the hearing.
Respondent contests the Board's jurisdiction . As the Board's gross volume stand-
ard of $500 ,000 for transient hotels 4 is admittedly satisfied , the disputed question
is whether the Board has legal jurisdiction over Respondent 5 In the Southwest
Hotels case,6 the Board in finding legal jurisdiction relied on evidence, inter alia:
. that the Employer leases space in its lobby ... to an airline where tickets
for interstate travel may be obtained ; that the Employer sells liquor which is
not manufactured in [the State]; that it provides accommodations both in meet-
ing rooms and in lodgings for persons attending trade conventions ; and that it
extends credit to holders of American Express and Carte Blanche credit cards.
Each of these items has more than a minimal effect on interstate commerce
while, taken together, they underscore the common -sense view that hotels which
serve a transient trade play an important role in furthering travel and in foster-
ing commercial relationships between the inhabitants of the several States.
[Emphasis supplied.]
Respondent here sells liquor originating outside Texas and otherwise has a direct
inflow of supplies which, I find , have more than a minimal effect on interstate com-
merce In addition , the testimony shows that Respondent solicits and caters to the
holding of conventions at its facilities which include , in addition to lodgings , a large
convention hall and other public and meeting rooms . Further, Respondent admits
1 The hearing was concluded on March 26, 1962 , but adjourned subject to the receipt
into the record of certain stipulations which the parties agreed to submit at a later time.
On May 18, 1962 , upon receipt and admission In the record of the stipulations, the
hearing was formally closed
2 The original and amended charges were filed on January 3 and 24 , 1962 , respectively,
and a complaint thereon was issued by the General Counsel on January 31, 1962.
In addition to the lot and hotel building proper, the other pioperties at separate and
different locations consist of the Biltmore Garage , a commercially operated parking lot,
and a lot on which is located the Fort Worth National Bank Annex and Drive -In Bank
and on the second floor of which is the grand ballroom of Hotel Texas . The ballroom is a
block long convention facility which occupies an area of floor space of about one-half
city block Hotel Texas is the largest hotel in Fort worth having about 460 saleable
rooms or 30 to 35 percent of the total saleable rooms available in the city
'As distinguished from permanent or residential hotels and motels defined as those in
which 75 percent of the guests remain a month or more Floridan Hotel of Tampa,
124 NLRB 261, 264.
SSovtliwest Hotels. Inc , 126 NLRB 1151
Ibid
662353-63-vol 138-46
708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in its Reply to Notice to Show Cause that it leases to four airline companies 7 space
in its hotel in which, official notice is taken, tickets for interstate travel are reg-
ularly sold.8
Accordingly, I find sufficient evidence that Respondent's hotel operations affect
commerce within the meaning of Section 2(6) and (7) of the Act, that its gross
volume of business satisfies the Board's jurisdictional standard, and that it will ef-
fectuate the policies of the Act to assert jurisdiction in this proceeding.9
II. THE LABOR ORGANIZATION INVOLVED
Hotel and Motel Cooks, Waiters, Waitresses and Bartenders Union, Local 748
affiliated with the Hotel & Restaurant Employees and Bartenders International Union,
AFL-CIO, herein called the Union is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Contentions and issues
All the issues in this proceeding stem from Respondent's decision and action to
discontinue and refuse to pay its employees a Christmas gift or bonus in December
1961. It is undisputed, as will appear, that ( a) since at least 1945 the employees
had regularly received each year a "gift" at Christmas time under a formula based
upon a percentage of annual income; (b) on October 6, 1961, the Union was certified
as exclusive bargaining representative of the employees, and on October 16, 1961,
the Union requested Respondent to bargain collectively; and (c) Respondent dis-
continued the bonus without notifying or consulting with the Union. The complaint
alleges, in substance , that payment of the Christmas "bonus" was discontinued and
7 American Airlines , Braniff International Airways, Delta Air Lines, and Continental
Airlines.
8 Notice to Show Cause Issued by the Trial Examiner on April 26 , 1962, and Motion to
Quash, and Subject Thereto, Repl3 to Notice to Show Cause received May 7, 1962, are
admitted in evidence as Trial Examiner Exhibits Nos 1 and 2 , respectively . The com-
merce facts , with citations of a source , as to which the taking of official notice was
proposed In the Notice to Show Cause were contained in reply brief for the National
Labor Relations Board filed by the General Counsel with the Court of Appeals for the
Fifth Circuit in a pending proceeding for enforcement of a Board Order (131 NLRB 834)
against this Respondent. At oral argument held before the court on February 6, 1962,
permission was granted the Board to file such a reply brief dealing with the question
there in issue of the Board ' s legal jurisdiction over Respondent The pendency of the
Fifth Circuit proceeding was noted on the record in the present hearing The Board's
reply brief, as a formal public document, independently carne to the attention of the
Trial Examiner . The parties were apprised at the hearing of the Trial Examiner ' s desire
to develop a full record on the issue of Board jurisdiction ; no objection was heard.
Respondent 's motion to quash and its assertions therein of irregularity , partiality, and
collaboration are rejected as devoid of basis In fact or semblance of merit. It is basic in
the law that the question of the jurisdiction of the forum is properly a matter of Inde-
pendent concern to the tribunal involved. The Board, and similarly the Trial Examiner,
may seek to have adduced commerce data in addition to those alleged in the complaint
and thereby does not in the least depart from, or affect, the statutory adversarial char-
acter of the proceeding on the merits . E g., E. F Shuck Construction Co , Inc, 114
NLRB 727, enfd. 243 F 2d 519 (C.A. 9) ; International Association of Heat and Frost
Insulators, et al (Rhode Island Covering Co.), 114 NLRB 1526, 119 NLRB 801, enfd.
261 F 2d 347 (C.A. 1).
Respondent claims prejudice in that an extension of time was granted for filing briefs
without it having received notice of the General Counsel's request for such extension, as
required in the Board's Rules General Counsel's formal request for such extension in-
dicated on its face that proper notice was being given Respondent and on that assumption
the extension was granted by the Associate Chief Trial Examiner, whose administrative
function it is to pass upon such requests Upon inquiring, the Chief Trial Examiner was
advised that notice to Respondent was not in fact sent by the General Counsel because of
a clerical inadvertence Thereafter, a further extension of time to file briefs was requested
by the General Counsel, with proper notice to Respondent, and granted without objection
from Respondent. In the circumstances, there is no resulting prejudice to the Respondent.
O Floridan Hotel of Tampa, 124 NLRB 261, 130 NLRB 1105; Southwest Hotels, Inc.,
supra, Citizen's Hotel Compamf d/b/a Texas Hotel, 131 NLRB 834. See also N L R B v
Fort Worth Transit Co, 187 F. 2d 792 (CA. 5).
HOTEL TEXAS 709
not made in 1961 because Respondent's employees joined or assisted the Union, in
violation of Section 8(a)(3), and in order to undermine the Union and destroy its
majority, in violation of Section 8(a)(5). In its answer, Respondent asserted that
the Christmas "gifts" which it gave the employees in the past were not compensatory,
but discretionary with Respondent, and that therefore the subject of such gifts was
not a bargainable issue under the Act. Alternatively, it stated that in the event these
gifts are bargainable, Respondent has been and is willing to bargain with the Union
thereon. In its opening statement at the hearing, Respondent restated the same
defense and added the position that, assuming without admitting the gifts were
compensatory, its failure to pay the gift in 1961 was entirely for economic reasons.io
B. Background and essential evidence
1. The certification
As stipulated, the unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act consists of-
All employees of Respondent employed at Hotel Texas in Fort Worth, Texas,
but excluding professional employees, confidential employees, guards and watch-
men, technical employees, secretary to the manager, manager, assistant managers,
executive housekeeper, catering manager, maitre d'hotel, head auditor, security
officers, chief engineer, assistant engineer, banquet captains, coffee shop manager,
dining room manager, director of public relations, executive chef, chief steward,
head baker, night manager, credit manager, purchasing agent, supervisors as
defined in the Act, casual employees, personnel director, laundry manager, bar-
ber shop manager, chief telephone supervisor, and room service captain.
On October 6, 1961, the Union was certified as exclusive bargaining representative
in the described appropriate unit, following a secret ballot election conducted under
Board auspices.ii
2. History and nature of Christmas payment
Under the aegis of the Citizens Hotel Company, the Hotel Texas had its inception
in 1921, and has been operating continuously since. It was organized by a group of
local citizens, and its stock was sold to people of the community, to provide Fort
Worth with a first-class hotel. The board of directors then consisted of 15 of the
principal businessmen of the city, with Amon Carter as vice president. For a period
it was operated by a lessee, and following bankruptcy, was taken back by the
original directors in 1934. From 1936 to 1946, the hotel was leased to and managed
by the "Moody interests," incorporated as the Fort Worth Hotel Company, which
operated the hotel as the National Hotel, affiliated with a chain of hotels by that
name. In 1946, Amon Carter, a newspaper publisher 12 and civic leader, purchased
all the outstanding stock of Citizens Hotel Company. Carter then gave or sold a
half interest in the hotel enterprise to Sid Richardson.13 However, the Moody inter-
ests continued to manage the hotel under the existing lease. The Moody interests
had been giving the employees a 10-percent Christmas bonus. In December 1946,
Amon Carter declared that it was not enough. He ordered on his own behalf a
separate payment to the employees of an additional 6 percent and authorized the
taking of a bank loan of $20,000 for such purpose. In 1946 the Moody lease was
bought out and Respondent, Citizens Hotel Company, in March 1947 resumed con-
10I note Respondent 's statement in its brief-which reflects all its arguments at the
hearing-that it did not undertake to brief "all of the facts or all of the defensive matters
or law on which it relies." Respondent cannot reasonably expect consideration of any
position , not otherwise apparent, which it does not make known. Cf Section 10(e)
"On July 18, 1961, the Union filed its representation petition (Case No. 16-RC-2953).
At the election on September 15, 1961, there were 222 ballots cast for, and 96 ballots cast
against, the Union, and 27 ballots were challenged Objections to the election were filed
by the Employer. On October 6, 1961, the objections were overruled in a Supplemental
Decision and Certification of Representatives On November 14, 1961, the Board denied
the Employer's request for review of the Supplemental Decision On the issues and in the
circumstances of this case, the Employer's request for review would not halt or extend
the obligatory date of the Union's certification.
12 Then publisher of the Star-Telegram and Carter Publications, Inc.
13 It was testified that Carter telephoned Richardson one day and said, "'Kid, you own
a half of the hotel,' and that's all there was to it," but that Richardson probably compen-
sated Carter for his half.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trol of the hotel , which it has operated since then . Thereafter , until 1961 , the em-
ployees received a Christmas "gift" each year, and in each instance the money was
borrowed from a bank.14 In 1958, the amount of the "gift " was cut by 50 percent,
and on this reduced basis was continued to be paid in 1959 and 1960. In October
1961, under circumstances which will be described below, Respondent reached a
decision to discontinue the Christmas payment to the employees 15 and all others for
that year , and in fact made no payment at the usual time in December 1961.16
At the time they were hired by Respondent , employees were advised of the Christ-
mas payment along with various benefits they would receive in their employment.
They were told in effect that , business and earnings permitting , a Christmas "gift"
had been given in the past . Also revealing of the practice of making such payments
and the incentive factor connected therewith are the notices received by the employees
at Christmas time, as for example, in 1959 and 1960:
( 1) DECEMBER 18, 1959.
"Merry Christmas"
The officers and directors of the Citizens Hotel Corporation and Hotel Texas-
are pleased to give out this Christmas gift for the year 1959.
The continuation of this practice from year to year is made possible through
the total cooperation of each and every employee.
By getting business and offering our guests the best of good friendly service,,
we should be able to keep this gift coming in future years.
LET'S DO IT!
Sincerely,
HOTEL TEXAS,
(S) L. W. S.
LISTON W. SLACK, Manager.
(2) MERRY CHRISTMAS
The officers and directors of the Citizens Hotel Corporation and Hotel Texas
are pleased to give out this Christmas gift for the year 1960.
We are looking forward to a much busier year in 1961 , and it is management's.
wish that each of you will remain good and loyal employees with us through,
this period of time.
Sincerely,
HOTEL TEXAS,
(S) L. W. S.
LISTON W. SLACK , Manager.
And the precise formula used in making payment was set out in a memorandum to
department heads in 1954 (the amount of which was later reduced by one-half, in
1958), viz:
POLICY OF HOTEL TEXAS
To: All Department Heads
From: Personnel Department
Subject : Christmas Gift
It is the general practice of the Hotel at Christmas time to give to all regular
employees a gift amounting to a percentage of their annual income. This is
not a bonus and should not be considered as a part of the quoted annual wage.
The method used in calculating the amount of this gift is as follows : 1. Those
employees whose name appears on the January 1 payroll and who have worked
continuously through the year will receive a check for two weeks pay. (14
days)
2. Those employees whose name appears on the July 1 payroll and who have
worked continuously from that time will receive a check for one week's pay.
(7 days)
"After Amon Carter died in 1955 and Sid Richardson in 1958 , their controlling Inter-
ests in Respondent , amounting to about 99 percent, was assumed by the Amon Carter
Foundation and Sid Richardson Foundation, respectively
Is Apart from those employed by the hotel, there are no other employees of Respondent.
I6 The gifts were handed out a few days before Christmas For example, on Decem-
ber 22, 1958, and December 20, 1959 , the employees were brought to the hotel manager's
office in small groups and given their Christmas checks In the earlier years, Amon
Carter would personally distribute the checks in a ceremony at which all employees were
assembled.
HOTEL TEXAS 711
3. Those employees who were employed after July 1 and before December
1 will receive 3.846 of their base pay earned during the period that they worked
or $10.00 which ever is greater.
Note: All calculations are made on , base salary only.
(S) H. H. A.
Approved-H. H. ANDERSON.
January 1, 1954
3. Discontinuance of Christmas payment in 1961
The decision not to pay the Christmas "gift" in 1961 was made a few days after
the Union's certification on October 6, 1961. The matter was brought up and
decided at an informal meeting of certain directors of Respondent.17 The Union
was not mentioned at the meeting.18 As in the previous year, a series of such
informal meetings were held in September and October to discuss the company
finances and anticipate the condition of the corporation as it would exist at the end
of the year. As testified, Respondent never had an income on which it has paid
tax to the Federal Government, and this result was attributed, in brief, to the
absence of earnings and the large depreciation account carried. In 1960, Respondent
suffered its worst deficit to date (although, as noted, the Christmas "gift" was paid
nevertheless). It was estimated at this October meeting in 1961 that the deficit for
that year would be $125,000 19 as compared with $133,000 in 1960, after deprecia-
tion and other corporate expenses . (The cost of the Christmas "gifts" would have
been about $12,000.) It suffices to state that Respondent's contention and testimony
is that the determination in October 1961 to discontinue the Christmas "gift" that year
was based entirely on financial considerations. While it is unnecessary to recite
herein the voluminous fiscal data inserted in the record, two matters may be men-
tioned. (1) In September 1960 Respondent undertook a broad expansion and
property improvement program, mainly devoted to providing extensive convention fa-
cilities. The work, which was finally completed in November 1961, ultimately in-
volved a cost of about $1,400,000. About May 1961, the grand ballroom or conven-
tion hall was finished and during the course of the year new meeting rooms became
available. Respondent clearly anticipated that business would increase as a result of
the expansion. Although convention business generally had to be obtained from 1 to
4 years in advance, the hotel manager testified that December,20 January, and
February were profitable months and it looked like the improvements were beginning
to pay off. (2) In 1961, salaries of supervisory personnel were increased. Without
reference to records, the hotel manager could recall only that he and two assistant
managers received salary increases. His own raise, made effective October 1, 1961,
was given by the same people who decided against the Christmas "gift" for the
employees that year. As to the hotel manager, but not the assistant managers, the
reason for the raise was attributed in part to the expanded facilities under his
supervision.
Following the determination in October 1961 to discontinue the Christmas pay-
ment, the employees were so advised verbally by their supervisors. The hotel
manager testified that he told the department heads that he "had just come from a
meeting of the owners of the hotel and that in view of the losses and red ink showing
on the records they had determined that we must advise our employees at this early
i'+ The meeting was attended by Perry Bass , president, director , and representative of
the Sid Richardson Foundation ; Katrine Deakins, trustee of Amon Carter Foundation
and director; H. H. Morse, secretary and director; and Liston W Slack, hotel manager.
Slack's testimony that the meeting took place a few days after the certification appears
more reliable and is credited Morse, who was not sure, testified the meeting may have
been on October 3 Since the election results were already known and the Union ' s certi-
fication awaited only the Board's disposition of the Employer's objections, the legal effect
of Respondent 's unilateral action would be the same under either version of the meeting
date.
IS Referring to the same three directors who made the decision to discontinue the bonus,
Secretary Morse testified generally that they rather deplored the idea that the employees
"were not happy or satisfied with what the company was doing for them," and that "it
was rather surprising that the employees announced themselves as being unhappy with
the status quo and decided to let somebody else represent them "
10 Stipulations received after the conclusion of the hearing show the actual loss for the
year 1961 , based upon final audit of the accountants , as $133 ,986.77.
20 Concerning the profit for December , the manager stated "we were so pleased with it,
it was real good . December normally is a losing month."
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date . that there would not be a Christmas gift for 1961, so that the employees,
wouldn't be dependent upon it." Thereafter, the manager asked the department
heads at various times "if they had made the communication and what the reaction
was." He received the reports that the reaction was that of "a great disappointment
generally."
Respondent never informed the Union it was not going to make the Christmas
payment. As noted, on October 16, 1961, the Union made its formal bargaining
request of Respondent. No specific bargaining request was made by the Union
concerning the Christmas "gift." However, although the first bargaining meeting
did not take place until December 13, 1961, the Union submitted to Respondent, in
October, its contract proposals which included clause 9 entitled "Maintenance of
Existing Privileges" providing that-
No employee shall, as a result of the signing of this agreement, suffer a reduction
in his wages or an increase in hours, nor be deprived of any established and
recognized benefits or privileges in excess of or more advantageous than the
contract provisions.
There was no response to the Union's clause 9 proposal and the subject was not
discussed until the bargaining meeting on February 7, 1962, at which time Respond-
ent rejected clause 9 on the ground that it was a "catchall." 21 Union Representative
J. M. Scott credibly testified that he broached the question of the Christmas bonus
with Respondent's counsel, Karl Mueller, on December 15, 1961. Scott told Mueller
that he "understood that there had been some signs posted within the hotel, one
sign that was printed on a pasteboard, one sign on a blackboard, stating that there
would be no Christmas bonuses paid to the hotel employees for the Christmas of
1961." Scott said if that was true he would have to file charges with the Board,.
and Mueller merely replied, "Well, Jim, I'll be damned "
C. Concluding findings
The major question initially to be determined is whether the Christmas payment
involved is a mandatory subject of collective bargaining within the statutory cover-
age of "wages, hours and other terms and conditions of employment." Respondent
contends that it was purely a "gift," entirely discretionary on its part, and therefore-
not bargainable under the Act. I find to the contrary. Sometime between 1936 and
1946, when the hotel was operated by the "Moody interests," the employees hereirt
began to receive the Christmas payment in the form of a bonus based upon 10 per-
cent of their earnings. Thereafter, under Respondent's resumed interest and control,
the only variation was to increase the bonus to 16 percent of earnings in 1946 2z
and apparently for an indefinite number of following years. A memorandum to,
department heads dated January 1, 1954 (as quoted supra), was inserted in the record
indicating a formula for the Christmas payment amounting to 3.846 percent of base
salary. It is not shown when, if before 1955, this lower percentage formula was
first applied. From 1958 through 1960, while retaining the existing percentage
formula, the amount of the Christmas bonus was reduced by one-half. However,
the essential nature of the bonus vis-a-vis the employees remained unchanged through-
out. It is scarcely a defense that the hotel was operated by an independent lessee
when the bonus was first inaugurated. Suffice it that for 14 unbroken years the
bonus was continued to be paid by Respondent. Nor is it in any way controlling
that Respondent labeled the payment a "gift." No effective measures had been taken
by Respondent to disengage the employees from their dependence upon the bonus
as they had received it from the "Moody interests." Rather, their dependence upon
it was only furthered by Respondent. New employees and old were reminded by
Respondent of the general practice of making the annual payment, and plainly it was
held out to them as an incentive factor in connection with their work. The employees
were thus lead to and did reasonably rely upon the bonus as a condition of their
employment. Absent a contract for a fixed term, the continuation of any term or
condition of employment is subject to the employer's discretion and may be con-
tingent upon favorable business conditions. In and of itself, such discretionary power
in the employer does not serve to remove the term or condition from mandatory
u At this meeting, Respondent asked the Union if the Christmas bonus was intended to
be included under clause 9, and the Union replied that it would see Respondent in court
concerning the bonus.
22 That Amon Carter had in 1946 made the decision, for whatever motive, to add 6 per-
cent to the existing bonus does not alter the character of the payment
HOTEL TEXAS 713
bargainability . 23 In the circumstances here, the Christmas bonus was not a sheer
gratuity but plainly an integral part of the compensatory structure and a term or
condition of employment of the employees . It was therefore a subject concerning
which the Respondent was obliged under the law to engage in collective bargaining
with the Union 24
Respondent was not under any legal duty to agree to any terms regarding the
bonus. However , under firmly established law, it could not unilaterally act, as it did,
in eliminating the bonus in 1961, but had to notify ,25 consult , and negotiate with
the certified union before making any such change . 26 No question or basis is present
that the Union acquiesced in the nonpayment of the bonus or waived its rights to
bargain respecting the same . 27 The Union 's opposition to the Respondent 's unilateral
conduct was manifest , inter alia, in its prompt filing of charges with the Board when
Christmas passed without the bonus payment. Indeed , Respondent in October 1961
was on notice not to make such unilateral changes when the Union requested a
bargaining conference and submitted its demand for "Maintenance of Existing
Privileges ." Again on December 15, 1961, Respondent through its counsel was
apprised of the Union 's strong objection to any unilateral action in discontinuing
the bonus . The duty was that of Respondent to notify and consult the Union before
taking any action ; it was not incumbent upon the Union , as Respondent argues,
specifically to request bargaining about the bonus.
Moreover , despite Respondent 's avowals, I do not believe it would have made
any difference if the Union had made such a request . Respondent's position is and
was that the subject was not bargainable . The "decision" of Respondent to dis-
continue the bonus was made in October. It could have been reconsidered and
corrected , as there was ample time before the effective time for payment at Christ-
mas. But Respondent chose to ignore the certified agent. The necessary effect of
Respondent 's unilateral action was to undermine the Union 's authority and repre-
sentative status in the eyes of the employees . Economic considerations advanced
by Respondent are in no event a justification for its conduct which I find in violation
of Section 8(a) (5) and ( 1) of the Act , as alleged23
With respect to the Section 8(a)(3) allegation, I do not credit the testimony and
contentions on behalf of Respondent that it discontinued the bonus solely because
of unfavorable financial conditions . 29 The financial picture was no worse in 1961
than it was in 1960 when the bonus was paid Throughout the long history of the
Company, net operational losses, after depreciation , were incurred each year. And
28 "It does , of course , merely beg the question to call them ` gifts ' and to argue , however
persuasively , that gifts per se are not a required subject for collective bargaining But if
these gifts were so tied to the remuneration which employees received for their work that
they were in fact a part of it , they were in reality wages, and so within the statute. This
was a question of fact and if the Board 's finding to that effect was supported by sub-
stantial evidence it ends the matter. . . Where , as here, the so-called gifts have been
made over a substantial period of time and in amount have been based on the respective
wages earned by the recipients , the Board was free to treat them as bonuses, not eco-
nomically different from other special kinds of remuneration like pensions, retirement
plans or group insurance , to name but a few which have been held within the scope of
the statutory bargaining requirement . . . Nothing we have said , however , should be
construed to mean that an employer may not make a bona fide gift to an employee-i e.,
one in fact not compensation-without previously bargaining about it " N L.R.B v. Niles-
Bement-Pond Company, 199 F 2d 713 , 714 (C.A. 2)
25 E g, Singer Manufacturing Company v . N L R.B , 119 F 2d 131 , cert denied 313
U S. 595; Niles -Bement-Pond Company , 97 NLRB 165 , enfd 194 F 2d 713 (CA 2) ;
NLRB . v. Crosby Chemicals, Inc, 274 F 2d 72, 78 (C.A 5), 121 NLRB 412, 416; Elec-
tric Steam Radiator Corporation , 136 NLRB 923 ; The American Lubricants Company,
136 NLRB 946.
25 Respondent 's announcement to the employees in October 1961 that the Christmas
bonus would not be paid was hardly , as Respondent appears to contend, the equivalent
of notice to the Union for purposes of bargaining On its face , such a proposition would
be self-defeating of the Act ' s bargaining requirement
29 N.L R B. v. Katz, et at, 369 U S 736; May Department Stores v. N . L R B., 326
U S 376, 384 , N L R B . v. Crompton -Highland Mills, 337 U S 217.
2r E.g , Beacon Piece Dyeing and Finishing Co , Inc , 121 NLRB 953, to the effect that
waiver of a right to bargain on a subject will not be readily inferred and must be clearly
and unmistakably evinced.
28 Cases cited in footnotes 23 and 25.
29 See N.L . R.B. v. Walton Ma'nufacturssig Co , et at ., 369 U S. 404
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at least since 1945 a bonus was nevertheless paid. The amount involved was rela-
tively small, it having been cut by 50 percent in 1958. Salary increases had been
given to supervisors at the same time that the bonus was eliminated. The economic
outlook was clearly optimistic upon completion of the $1,400,000 expansion pro-
gram. Here there was cognizable evidence 30 of past antiunion conduct and animus
on the part of Respondent.31 The elimination of the bonus followed upon the heels
of the Board's certification of the Union. The Union's election appears to be the
only significant event introduced into the picture in 1961 to explain the dropping of
the bonus. Clearly the exclusion of the bonus was a direct discrimination against
the employees in having their economic benefits reduced. Respondent's conduct in-
herently tended to discourage union membership and did, no doubt, have such effect,
as indicated by the employees' reaction of "general disappointment" which Respond-
ent undertook to discover. Respondent held the mistaken view that the Christmas
bonus was purely a gratuity, that it was discretionary, and that it was under no duty
to deal with the Union concerning the same. Of course, if Respondent withheld
even a gratuity to the employees for the purpose of discouraging union membership,
it would violate Section 8(a)(3). On the entire record, I infer and find that Re-
spondent discontinued the bonus because it decided the employees were not deserving
of gratuities and in reprisal against them for having spurned Respondent's "paternal
treatment" and having brought in "somebody else to represent them," i.e., the Union.
Accordingly, as I find Respondent's conduct discouraged membersip in the Union,
and that Respondent was actuated by such a desire, I conclude that Respondent dis-
criminated against the employees in violation of Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth above, occurring in connection with the
operations of Respondent described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall rec-
ommend that it cease and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
It has been found that Respondent violated Section 8(a)(5) in unilaterally dis-
continuing the Christmas bonus for 19-61 without notifying and consulting the Union.
It has also been found that Respondent's conduct in withholding the bonus dis-
criminated against the employees and discouraged their union membership in viola-
tion of Section 8(a)(3). As to both violations, the remedy of not permitting Re-
spondent to retain the fruits of its wrongdoing and restoring the employees to status
quo ante is the same 32 Accordingly, in order to effectuate the policies of the Act,
I shall recommend that Respondent make whole the employees in the appropriate
unit who were deprived of their bonuses in 1961 because of Respondent's unlawful
unilateral action and its unlawful discrimination against them-by paying them the
1961 bonus based upon the formula for payment of bonuses used in the year 1960.
As a broad cease-and-desist order is already outstanding against Respondent,33 and
on the basis of the further unfair labor practices found herein, I shall recommend
no less than the same broad order.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
350fflcial notice is taken of the Board decision, reported at 131 NLRB 834 (Mav 1961),
In which Respondent was found to have violated Section 8(a) (3) by unlawfully discharg-
ing two employees because of their activities on behalf of Local 748, the same union in-
volved herein, and to have violated Section 8(a) (1) by various acts of interference with
the employees' self-organizational rights
31 Cf. N L R B. v. Crosby Chemicals, Inc., 274 F 2d 72 (C A. 5) ; Pittsburgh-Des Moines
Steel Co v. NLRB , 284 F 2d 74 (C A. 9) ; N L.R.B. v. Nash-Finch Co , 211 F. 2d 622
(C A 8) ; Speidel Corp., 120 NLRB 733.
32 The American Lubricants Company, 136 NLRB 394; Industrial Fabricating Inc, 119
NLRB 1162; John W Bolton & Sons, 91 NLRB 989: Electric Steam Radiator Corp., 136
NLRB 923• and see Marcus Tructinq Co, Inc, 126 NLRB 1080, enfd 286 F. 2d 583,
593 (C.A. 2).
31 Citizen's Hotel Company d/b/a Texas Hotel, 13'1 NLRB 1834.
HOTEL TEXAS 715
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act.
2. The Umon is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Union is the sole collective-bargaining agent for the employees of the Re-
spondent in the unit described in section III, above.
4. The payment of Christmas bonuses, within the facts of this case, is a mandatory
subject of collective bargaining under the requirements of Section 8(a) (5) and 8(d)
of the Act.
5. Respondent violated Section 8(a)(5) and (1) of the Act in unilaterally dis-
continuing the Christmas bonus for 1961 without notifying and consulting the Union.
6. Respondent violated Section 8(a)(3) and (1) of the Act by discriminating
against the employees in the appropriate unit in withholding the Christmas bonus
for 1961 to discourage their membership in the Union.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning, of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Respondent, Citizens Hotel
Company d/b/a Hotel Texas, Fort Worth, Texas, its officers, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain with Hotel and Motel Cooks, Waiters, Waitresses and
Bartenders Union, Local 748, affiliated with ,the Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, by unilaterally terminating the Christ-
mas bonuses or unilaterally changing any other term or condition of employment of
its employees within the appropriate unit.
(b) Discouraging membership in Hotel and Motel Cooks, Waiters, Waitresses
and Bartenders Umon, Local 748, affiliated with the Hotel & Restaurant Employees
and Bartenders International Union, AFL-CIO, by withholding or refusing to pay
the Christmas bonus customarily paid to its employees.
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Pay to its employees in the appropriate unit the 1961 Christmas bonus, to
be computed in the same manner as the 1460 Christmas bonus.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to determine
the amount of said bonus payment due and the last known addresses of said
employees.
(c) Post at its hotel in Fort Worth, Texas, copies of the attached notice marked
"Appendix " 34 Copies of said notice, to be furnished by the Regional Director for
the Sixteenth Region, shall, after being duly signed by the Respondent, be posted by
it immediately upon receipt thereof and be maintained for a period of 60 consecu-
tive days thereafter in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by the Respondent
to insure that such notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Sixteenth Region, in writing, within 20
days from the date of this Intermediate Report and Recommended Order, what steps
Respondent has taken to comply herewith 35
31 In the event that these Recommendations be adopted by the Board , the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
=In the event that these Recommendations be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT unilaterally terminate Christmas bonuses or change any other
term or condition of employment of our employees within the appropriate unit,
without bargaining collectively with Hotel and Motel Cooks, Waiters, Wait-
resses and Bartenders Union , Local 748, affiliated with the Hotel & Restaurant
Employees and Bartenders International Union, AFL-CIO. The appropriate
unit is:
All employees employed at Hotel Texas in Fort Worth, Texas, but exclud-
ing professional employees, confidential employees, guards and watchmen,
technical employees, secretary to the manager, manager, assistant man-
agers, executive housekeeper, catering manager, maitre dhotel, head audi-
tor, security officers, chief engineer, assistant engineer, banquet captains,
coffee shop manager, dining room manager, director of public relations,
executive chef, chief steward, head baker, night manager, credit manager,
purchasing agent, supervisors as defined in the Act, casual employees, per-
sonnel director, laundry manager, barber shop manager, chief telephone
supervisor, and room service captain.
WE WILL NOT discriminate against the employees in the appropriate unit by
withholding or refusing to pay Christmas bonuses to discourage membership
in the aforesaid union.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right guaranteed in Section 7 of the Act, to
form labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refrain from any
and all of such activities.
WE WILL pay to each employee within the appropriate unit a 1961 Christmas
bonus to be computed in the same manner as the 1960 Christmas bonus.
All our employees are free to become, remain, or to refrain from becoming or
remaining, members of .any labor organization
CITIZENS HOTEL COMPANY D/B/A HOTEL TEXAS.
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Federal
Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341,
Extension 284 if they have any question concerning this notice or compliance with
its provisions.
Isis Plumbing & Heating Co . and Local No. 582 , United Asso-
ciation, affiliated with United Association of Journeymen &
Apprentices of the Plumbing and Pipefitting Industry of the
United States & Canada , AFL-CIO. Case No. 21-CA-4579.
September 19, 1962
DECISION AND ORDER
On April 11, 1962, Trial Examiner Maurice M. Miller issued his
Intermediate Report in the above-entitled proceeding, finding that
138 NLRB No. 97.