Midwest Motel Management Corp. of Birmingham

National Labor Relations Board - Board Decisions

May 7, 1982

261 N.L.R.B. 719 (N.L.R.B. 1982)

MIDWEST MOTEL MANAGEMENT CORP.
Midwest Motel Management Corp. of Birmingham
and Curtis L. Lewis, Jr. Case 10-CA-17099
May 7, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On February 18, 1982, Administrative Law
Judge Richard J. Linton issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Midwest Motel Management Corp. of Birmingham,
Birmingham, Alabama, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following for paragraph 2(a):
"(a) Offer Curtis L. Lewis, Jr., immediate and
full reinstatement to his former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or
other rights and privileges previously enjoyed, and
make him whole for any loss of earnings suffered
by reason of the discrimination against him, in the
manner set forth in the section of this Decision en-
titled 'The Remedy."'
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
a In his recommended Order, the Administrative Law Judge inadvert-
ently failed to include the make-whole portion of the remedy for Lewis'
discharge. We shall amend the recommended Order to correct this error.
We have modified the Administrative Law Judge's notice to conform
with his recommended Order.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT unlawfully ask you about
your activities or the activities of other em-
ployees on behalf of Retail, Wholesale and De-
partment Store Union, or any other labor or-
ganization.
WE WILL NOT promise you money if you re-
frain from supporting a union or for dissuading
other employees from supporting a union.
WE WILL NOT threaten you with discharge
if you support a union.
WE WILL NOT ask you to solicit other em-
ployees to withdraw their support for a union.
WE WILL NOT threaten you with more strict
enforcement of work rules if you support a
union.
WE WILL NOT unlawfully surveil you
through the presence of one of our supervisors
at a union meeting you may be conducting.
WE WILL NOT discharge employees because
they are active on behalf of a Union.
WE WILL NOT in any like or related manner
interfere with, restrain, coerce, or discriminate
against you in the exercise of the rights guar-
anteed by Section 7 of the Act.
WE WILL offer Curtis L. Lewis, Jr., immedi-
ate and full reinstatement to his former posi-
tion of employment or, if such job no longer
exists, to a substantially equivalent job, with-
out prejudice to his seniority or other rights
and privileges previously enjoyed, and WE
WILL make Curtis L. Lewis, Jr., whole, with
interest, for any loss of pay he may have suf-
261 NLRB No. 100
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fered as a result of our discharging him on
June 12, 1981.
MIDWEST MOTEL MANAGEMENT
CORP. OF BIRMINGHAM
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge: This
case was heard before me in Birmingham, Alabama, on
December 8 and 9, 1981, pursuant to the August 26,
1981, complaint and notice of hearing issued by the Gen-
eral Counsel of the National Labor Relations Board
through the Acting Regional Director for Region 10 of
the Board. The complaint is based on a charge filed by
Curtis L. Lewis, Jr. (Lewis or the Charging Party
herein), against Midwest Motel Management Corp. of
Birmingham (Respondent or Midwest herein).
In the complaint the General Counsel alleges that Re-
spondent violated Section 8(a)(1) of the Act by interro-
gating and threatening employees, and interfering with
their Section 7 rights by other conduct, and Section
8(a)(3) of the Act by discharging Lewis on June 12,
1981.1
By its answer, Respondent admits certain allegations,
but denies that it has violated the Act in any manner.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel and Re-
spondent, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Alabama corporation, is engaged in
operating the Best Western Airport Motel in Birming-
ham, Alabama. During the first 4 months of operation in
1981, Respondent received gross revenues which, when
projected over a 12-month period, will exceed $500,000.
Based on this 4-month history, Respondent at the end of
a 12-month period will have purchased and received at
its Birmingham, Alabama, location goods valued in
excess of $50,000 directly from suppliers located within
the State of Alabama who in turn will have purchased
and received said goods directly from suppliers located
outside the State of Alabama. Respondent admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Retail, Wholesale
and Department Store Union (the Union herein) is a
labor organization within the meaning of Section 2(5) of
the Act.
All dates shown are for 1981 unless otherwise indicated.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Principal Issues
Did Respondent discharge Curtis L. Lewis, Jr., on
June 12 because of his union activities, as alleged by the
General Counsel, or was he fired because, as Respondent
states at brief page 19:
In this case, the company acted as prudently as pos-
sible. They kept an employee, who was organizing
but was incompetent, until after the union's activi-
ties were over, and then dismissed the incompetent
employee.
B. Early Chronology
1. Midwest becomes the motel owner on January 1
Hired by Respondent's predecessor on June 1, 1979, as
maintenance supervisor of the Birmingham airport motel,
Lewis was retained in that capacity for 2 months after
Respondent became owner and operator of the 120-room
motel on January 1. N. J. D'Adamo was appointed the
new manager, replacing Elizabeth Turner. Under
Turner, the motel usually employed an assistant for
Lewis.
Hans Schmalfeldt, who owns a one-half interest in Re-
spondent, 2 testified that he had visited and inspected the
motel on different occasions during the last 9 months or
so of 1980. According to Schmalfeldt, whose back-
ground is in maintenance, the motel needed many routine
repairs. Shortly before the motel sale, the previous
owner, Bill Ash, supposedly told Schmalfeldt that Lewis
was not a good maintenance supervisor and advised
Schmalfeldt to replace him. As Ash's remarks confirmed
Schmalfeldt's observations, the latter told D'Adamo:
At your earliest convenience I'd like to see Mr.
Lewis replaced as maintenance supervisor. We need
somebody with greater capability in that position.
2. Lewis is demoted on March 1
The credited testimony of Sales Director (and also
D'Adamo's secretary) Carol Smith, front desk clerk
Greta Strong, and Executive Housekeeper Ida Belle
Davis reflects that in the January-February period there
were constant repair problems, ranging from minor to
major, at the motel. Smith witnessed D'Adamo complain
to Lewis about these matters in late January and early
February.3 I credit Lewis' testimony that about 10
2 He testified that Charles M. Trout owns the other 50 percent.
3 Smith testified that, while Respondent utilized a disciplinary system
which ranged from oral reprimands, written warnings, and suspensions to
dismissal, the usual procedure was for management to discuss problems
with the affected employees. There were instances, however, when em-
ployees received written reprimands, and these, or copies of them, were
placed in Respondent's files.
While D'Adamo, as I find, did complain orally to Lewis about mainte-
nance problems, I credit Lewis' testimony that D'Adamo never warned
or reprimanded him. That is, I find that D'Adamo neither told Lewis that
their talks were oral reprimands, nor did D'Adamo so classify them
under Respondent's formal disciplinary system.
720
MIDWEST MOTEL MANAGEMENT CORP.
rooms would be blocked (not for rent except at a re-
duced rate) because of television problems,4 and that
D'Adamo told Lewis that the budget would not permit
the expense of certain repairs to unblock other rooms be-
cause he was spending the money in other areas.5 While
the rooms with the bad TVs (some worked, but only as
black and white sets since the color was out) could rent
at a discounted rate, the rooms blocked for repairs would
not be rentable.
Although Respondent's witnesses credibly described
an undesirable state of repair of the motel, it is clear, and
I find, that it was not all the fault of Lewis. Moreover,
front desk clerk Strong, called by Respondent, testified
that in her opinion Lewis repaired the maintenance prob-
lems to the best of his ability. As we shall see later,
Strong's assessment coincides with the evaluation of
Lewis' replacement, Robert N. Coates.
Schmalfeldt further testified that in February
D'Adamo complained to him about Lewis' performance
and requested permission to hire Robert N. Coates as the
maintenance supervisor, explaining that Coates had
served him in that capacity at a Holiday Inn in New
Castle, Indiana. Schmalfeldt gave his approval.6 Coates
became Respondent's maintenance supervisor on March
1, and Lewis was demoted to his assistant. Lewis testi-
fied that his demotion included a reduction in pay from
$1,000 to $800 a month. Lewis conceded that he agreed
to stay as maintenance helper and learn from Coates.
However, Lewis credibly testified that D'Adamo told
him he had cut back in all departments since the motel
budget was overspent. Lewis credibly denied that
D'Adamo said anything to him about his continued em-
ployment being contingent on his learning more about
his job from Coates. Indeed, Coates himself testified that,
when he talked to Lewis on March 1 about staying on as
his assistant, he said nothing to Lewis about his contin-
ued employment being contingent upon anything. As far
as Coates was aware, Lewis was not told of any contin-
gency.
Before passing to other topics, it should be noted that
the record amply supports the finding, which I make,
that, after Coates' arrival, maintenance became much less
of a problem, and items which were repaired, in contrast
4 As Lewis credibly explained on rebuttal, D'Adamo planned to co-
ordinate the service contracts on the television sets so as to get the new
sets and old ones under one contract. Until that occurred, he did not
want to spend money repairing them.
5 D'Adamo left Respondent's employ around October 1, and did not
testity. Smith testified that a criminal proceeding, initiated by charges
filed by Respondent's owners, is pending against D'Adamo based on cer-
tain (unidentified) conduct of his in his motel management capacity.
Respondent's counsel represented that he did not know the where-
abouts of D'Adamo (Schmalfeldt testified that he was somewhere in Bir-
mingham) and that he had learned the name of D'Adamo's attorney only
the day before the instant hearing. Furthermore, counsel represented that
he had made no effort to contact D'Adamo, through his attorney, be-
cause of his belief that the attorney would not permit D'Adamo to testify
here for fear of waiving his fifth amendment rights in the criminal pro-
ceeding and because of possible hostility.
6 The record does not disclose why D'Adamo waited until February
to make this request in light of Schmalfeldt's December 1980 instruction
to replace Lewis, nor is there any explanation why D'Adamo, according
to Schmalfeldt, requested "permission" to replace Lewis with Coates.
Schmalfeldt did not explain these matters, and D'Adamo, as noted above
in fn. 5, did not testify.
to previous months, stayed fixed. In short, the presence
of Coates was a decided improvement. Coates testified
that he left Respondent's employ on October 1.
C. Preelection Events
I. Lewis contacts the Union
On an unspecified date before March 1, Lewis contact-
ed Union Representative Robert Jackson relative to or-
ganizing the motel's employees. Jackson told Lewis that
Lewis could not participate in an organizing campaign
because of his supervisory status.
Within a week after his demotion, Lewis recontacted
Jackson, who approved Lewis' participation. Thereafter,
Lewis picked up authorization cards, distributed leaflets,
attended meetings at the union hall, and held about four
union meetings at his home. On April 22 the Union filed
a representation petition in Case 10-RC-12396, and
Lewis served as the Union's observer at the election on
May 15-which the Union lost.7 Respondent and its wit-
nesses conceded knowledge of Lewis' prominent role in
the Union's campaign.
2. D'Adamo's countercampaign
a. The April 14 conversation with Lewis
Lewis testified that, around 5 p.m. on April 14,
D'Adamo invited him to have a seat with him in the
motel's restaurant. Just the two of them were present at
the table. D'Adamo said he was very disappointed, for
he found out that someone was talking behind his back.
Lewis asked what he meant. D'Adamo explained that
one of the ladies in the motel lounge had told him that
Lewis had asked her to sign a union card and that she
did not want to be involved with the Union. D'Adamo
then asked Lewis how he stood with the Union.8 Lewis
responded that he was for the Union 100 percent because
he thought it would help him and the employees.
D'Adamo responded that he could give Lewis two
choices. He said that he could either have Lewis "hit"
before he walked out the door or have Lewis fired.9
Lewis testified that D'Adamo then spoke in an angry
tone telling him to come to the office.
In the office D'Adamo told Lewis that the motel was
preparing to spend $87,000 to add a new wing to the
motel, and that, if Lewis would talk to the other employ-
ees and get them to change their minds about "it," there
would be more money in Lewis' pocket when the motel
made some money, but that Lewis would have to play
ball with D'Adamo. 0° Lewis responded that he was for
T The tally of ballots reflects that, of an approximate 45 eligible voters,
12 voted for the Union, 20 voted against, and 4 cast challenged ballots
(Resp. Exh. 2).
e Complaint par. 7 alleging interrogation.
9 Complaint par. 9 alleging threat of discharge. On cross-examination
Lewis explained that by "hit" D'Adamo meant he would kill Lewis and
by "fired" he meant that D'Adamo would fire him He emphasized that
he did not withdraw his support for the Union, that D'Adamo knew that.
and that D'Adamo did not fire him until about 2 months later on June 12.
My conclusions respecting this conversation are reported below.
I' Complaint par. 8 alleging unlawful promise of benefits.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union regardless of what D'Adamo was going to do.
Over objection, Lewis testified that he understood
D'Adamo to mean that, if Lewis would talk to the other
employees and dissuade them from supporting the Union,
then when the motel made money D'Adamo was going
to put money in the pocket of Lewis for helping him put
a stop to the union activities. He explained that
D'Adamo had said that he thought Lewis was the leader,
the intelligent one, and that he was telling Lewis this be-
cause he thought he had more influence.
b. The April 16 conversation with Lewis
Two days later around 5:30 in the evening, Lewis re-
ported to D'Adamo in the latter's office. Only the two
were present. D'Adamo said that Union Representative
Jackson had telephoned him and said that the Union had
enough names to file an election petition at that time and
that he wanted to see what D'Adamo thought about it.
D'Adamo then told Lewis that he wanted Lewis to call
a meeting of the other employees and to dissuade them
from supporting the Union. I'
Lewis testified that about 10 o'clock in the morning, 4
days later on April 20, he did conduct a meeting with
the employees concerning the union question. D'Adamo
had a notice posted on the timeclock advising employees
that it was permissible for them to attend the meeting.
Lewis testified that about 80 percent of the motel em-
ployees were present, including Kitchen Supervisor Gay
Carter.12 Lewis testified that the meeting resulted with
those who had signed union cards expressing a desire to
proceed in support of the Union and those who had not
signed cards wanting to talk to a union representative to
find out more concerning what would happen if the
motel became unionized.
In compliance with D'Adamo's previous instructions,
Lewis reported the result of the meeting to him.
D'Adamo responded, "Okay, that's okay, partner, I ap-
preciate that. I will just call one and tell them the facts
about the union, and I'm going to get stricter with it, the
rules and regulations. I'm going to enforce them to the
letter because since this trouble is starting around."
Lewis testified that Maintenance Supervisor Coates was
present when Lewis made this report to D'Adamo in the
engine room. Although Respondent called Coates, out of
order, immediately after Lewis testified, Coates was not
asked about this engine room conversation. On the other
hand, no paragraph in the complaint alleges that D'Ada-
mo's statement to Lewis about stricter enforcement vio-
lated the Act. (Complaint par. II makes such an allega-
tion regarding a meeting D'Adamo subsequently held
with employees, to be discussed below.)
As earlier noted, D'Adamo did not testify. Sales Di-
rector Carol Smith testified that Lewis never said any-
thing to her about being threatened by D'Adamo if he
continued his union activities even though she and Lewis
talked frequently and had a good relationship. She fur-
ther testified that Lewis never told her that D'Adamo
had offered him more money if he would persuade other
I Complaint par. 10 alleging unlawful solicitation.
I2 Respondent declined to admit Carter's supervisory status. Complaint
par. 16 alleges that Carter's presence constituted 8(a)(1) surveillance.
employees not to vote for the Union. While I credit
Smith, such fact does not disprove Lewis' testimony.
Over the General Counsel's hearsay objection, I re-
versed an earlier ruling and permitted Smith to testify
that, during the period of April, D'Adamo told her that
he knew that Lewis was involved with union activities,
that he did not like Lewis talking about the Union on the
job, and particularly that he wanted to get the union ac-
tivities over and done with, but that he wanted to be fair
about it. Smith was describing, in ambiguous fashion, re-
ports given to her by D'Adamo of conversations
D'Adamo supposedly held with Lewis in the month of
April. Although Respondent's counsel specifically asked
Smith about the conversations of April 14 and 16, Smith
could only generalize. 13
Conclusions
I credit the testimony of Lewis concerning his descrip-
tion of the April 14 and 16 conversations he had with
General Manager D'Adamo. Accordingly, I find that
Respondent violated Section B(a)(l) of the Act as al-
leged in complaint paragraphs 7-10.
As earlier noted, Lewis testified that Supervisor Carter
was present at the employee meeting assembled by
Lewis. This meeting had the posted approval of General
Manager D'Adamo.
Although Respondent denies the supervisory status of
Gay Carter, the record reflects that about 3 or 4 weeks
after D'Adamo's arrival as general manager he told the
kitchen employees that Carter would be their manager
and that they were to do as she instructed. Thereafter,
she gave them instructions on what work to do and they
followed her instructions. Moreover, Carter evaluated
the work performance of the kitchen employees and, as
Lewis described, attended meetings of only supervisory
personnel. She told employees she would have them laid
off if they did not follow her instructions. I find that
Carter is a supervisor within the meaning of the Act.
In any event, it is clear that Respondent vested Carter
with the status of its agent when D'Adamo informed the
kitchen employees that she was to be their supervisor
and that they were to follow her instructions. As counsel
for the General Counsel argues in her brief, employees
could reasonably believe thereafter that Carter spoke for
and acted on behalf of Respondent and she may be
deemed its agent under the law. Dennis C. Ehrhardt
d/b/a Americraft Manufacturing Company, 242 NLRB
1312, fn. 1 (1979); Helena Laboratories Corporation, 225
NLRB 257, 258 (1956), enfd. in relevant part 557 F.2d
1183 (5th Cir. 1977). As the Board has held, an employer
"s In her brief. counsel for the General Counsel argues that, since Re-
spondent made no attempt whatsoever to procure D'Adamo's attendance
at the hearing, the hearsay exception provided for in Rule 804(a)(5) of
the Federal Rules of Evidence was not available as a basis for receiving
hearsay testimony regarding D'Adamo's statements. However, the Board
has decided that it is not bound to apply strictly the Federal Rules of
Evidence concerning hearsay. United Rubber, Cork. Linoleum and Plastic
Workers. Local 878 (Goodyear Tire & Rubber Company), 255 NLRB 251,
fn. 1 (1981); Alvin J. Ban and Co., Inc., 236 NLRB 242 (1978), enforce-
ment denied without passing on this point 598 F.2d 1267 (2d Cir. 1979).
For further treatment of this question, see 3 Davis, Administrative Law
Treatiie, §16:13 (2d ed. 1980).
722
MIDWEST MOTEL MANAGEMENT CORP.
violates Section 8(a)(1) of the Act when one of its super-
visors or agents attends a union meeting. Porta Systems
Corporation, 238 NLRB 192 (1978), enfd. 625 F.2d 399
(2d Cir. 1980). Accordingly, I find that Respondent, by
its surveillance through Carter, violated Section 8(a)(l)
of the Act as alleged in complaint paragraph 16.
c. D'Adamo's speech of April 21
By complaint paragraphs 11, 13, 14, and 15, the Gen-
eral Counsel alleges that, on or about May 5, General
Manager D'Adamo threatened employees with more
strict enforcement of work rules if they supported the
Union; solicited employees concerning their grievances,
contrary to past practice; and promised to remedy such
grievances for the purpose of causing the employees to
reject the Union.
As the record reflects, D'Adamo made a speech to
employees on April 21-the day following the approved
meeting Lewis held with employees after which Lewis
reported the unfavorable results to D'Adamo. When
Counsel for the General Counsel announced that she was
seeking to add a new date to complaint paragraph 11 to
cover the April 21 speech, Respondent objected on the
basis of late notice. I sustained the objection, but permit-
ted counsel for the General Counsel to adduce the evi-
dence as an offer of proof. I thereafter rejected the offer
of proof and denied the motion to amend the complaint.
In footnote 2 of her brief, counsel for General Counsel
contends that the evidence regarding the speech should
be considered inasmuch as the matter was fully litigated
with Respondent even adducing evidence concerning the
meeting from its own witnesses. I agree that the matter
was fully litigated, and I shall consider the evidence for
all purposes as if the complaint allegations had alleged
April 21 in addition to May 5.
Lewis testified that about 40 percent of the employees
were present when D'Adamo gave his speech in a meet-
ing room of the motel. Kitchen Supervisor Gay Carter
was also present. In addition to referring to the cost of
union dues, D'Adamo told employees that he was going
to get stricter with the rules and regulations and enforce
the motel's rules to the letter. For example, D'Adamo
said that an employee would receive a verbal warning
the first time he came in late; the second time he would
receive a written warning; and the third time D'Adamo
would lay him off or fire him.
Former Maintenance Supervisor Robert N. Coates tes-
tified on direct examination that he attended part of a
meeting in which D'Adamo explained the way the motel
rules and regulations would be with the motel unionized.
Although he denied that D'Adamo said he would en-
force the rules more strictly against employees if they
voted in the Union, he testified that D'Adamo said he
would enforce the rules and regulations as written. On
cross-examination Coates stated that on the occasion of
this meeting D'Adamo read the rules and that to his
knowledge D'Adamo had never done that before. 4
'4 Neither party offered a copy of the rules and regulations in evi-
dence even though Coates testified that employees receive a copy of the
work rules when they are employed and sign for such a copy. Sales Di-
rector Smith also testified that employees sign copies of the rules
Coates conceded that D'Adamo said that the motel rules
would be adhered to by the letter if the Union came in.
General Counsel's witness Martha Robinson, a cook
for Respondent, testified that at a meeting in April
D'Adamo told employees that he was going to start en-
forcing everything to the letter, that he had not been
doing that in the past, and that he said he was going to
get stricter with (enforcing) the rules.
Kitchen employee Ronald D. Gaston testified that he
attended a meeting of mostly kitchen and dining room
employees at which D'Adamo spoke. According to
Gaston, D'Adamo told employees that, if they went
through with the Union, he was going to have to tighten
up. For example, he said that, if he told them to pick up
something off the floor, he wanted it done then and not
an hour later. D'Adamo also told employees that, if they
had any problems, they could come and discuss them
with him and he would attempt to help them.
Gaston testified that D'Adamo told them that he did
not like people going behind his back and talking about
such things as the Union, and that, if Lewis had come to
him and talked with him about the Union, he probably
would have agreed with him, but, since Lewis did it
behind his back, he did not appreciate that.
Gaston had difficulty placing the date of this speech
by D'Adamo, first saying that it was 2 or 3 weeks after
the election, which would place the event in late May or
early June, but then testifying that it could have been
before the election. In any event, it appears that Gaston
was describing a speech which occurred before the elec-
tion, apparently in May. It seems that this speech is the
subject matter of complaint paragraphs 11, 13, 14, and 15
which set forth a speech by D'Adamo "on or about May
5, 1981."
The bare reference by D'Adamo quoted by Gaston,
referring to employees coming to him with their prob-
lems, is insufficient support for the complaint allegations
that such was contrary to past practice. Thus, even
though I credit Gaston, I shall dismiss complaint para-
graphs 13, 14, and 15 which allege solicitation of griev-
ances and a promise to remedy them.
Sales Director Carol Smith, when asked about the
D'Adamo meeting Lewis had described, testified that
D'Adamo explained the Union's dues structure at the
meeting, and said whether the employees supported the
Union was their choice and the employees could discuss
it freely among themselves, but that he wanted the
matter to be over with and to get on to the business of
running the motel. She was there for the entire meeting
and did not recall any threats that he made. She testified
that D'Adamo read the rules and regulations and said
that the motel would enforce the rules that everyone had
signed. She testified that D'Adamo wanted to make ev-
eryone aware that, while the Union has its own rules, so
does the motel. On redirect examination Smith stated
that D'Adamo stated that there were rumors going
around the motel that the motel rules would not be in
effect because the Union would come in with its own
rules and regulations which would govern. D'Adamo
said that, although there would be union rules, the motel
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also had its own rules which would still be in effect and
adhered to.
Executive Housekeeper Ida Belle Davis testified that
she was present at the April 21 meeting, and that
D'Adamo tried to explain both sides of the union situa-
tion and did not threaten anyone. Davis explained that
this meeting was held a couple of weeks before another
meeting was held with her housekeeping personnel.
Conclusions
There is little dispute in the description of the several
witnesses concerning the substance of the remarks made
by D'Adamo on April 21. While some of Respondent's
witnesses testified in conclusionary fashion that no
threats were made, such opinion testimony, while per-
missible under the Federal Rules of Evidence, is not
binding upon the fact finder. While I find that D'Adamo
did discuss enforcement of the rules in a context of ex-
plaining that there were rumors going around the motel
that the Union's rules would be controlling once the
Union was voted in, I also find that he described exam-
ples of how the motel would depart from past practice in
enforcing the motel rules to the letter if the Union were
voted in. Accordingly, I find that the preponderance of
the credible evidence supports a finding, which I make,
that on April 21, and again on May 5, Respondent,
through General Manager D'Adamo, threatened its em-
ployees with more strict enforcement of work rules if
they supported the Union as alleged in complaint para-
graph 11.
D. The Termination of Lewis
I. Coates' evaluation
When asked about Lewis' job performance following
March 1, former Maintenance Supervisor Robert N.
Coates testified:
Q. From that time on until the time Mr. Lewis
was terminated from his employment at the motel in
June of 1981, would you relate to the Court the
manner in which he performed his assigned tasks?
A. Well, I think Mr. Lewis really tried to do his
best, but in certain areas he just lacked in some of
the more expertise, general knowledge of air-condi-
tioning, refrigeration and electronics, which is a
basic requirement for that type of maintenance.
Q. Did you ever have occasion to assign him jobs
to do that he did not do?
A. I think he tried to do some of the jobs. Some
of the jobs that I asked him to do were not com-
pleted to my satisfaction, but I think he really tried.
It is undisputed that Lewis injured his foot on the job
while installing a kitchen vent fan. While Coates general-
ized that Lewis was off work for about 2 weeks in June,
I credit the more specific testimony of Lewis that the
injury occurred around May 1 and that he returned to
work on June 8. Thus, Lewis was off work some 5
weeks, and was terminated 4 days after returning to
work.
According to Coates, Lewis returned to work with an
unfavorable change in attitude. The testimony of Coates
on this crucial point is extremely vague. Thus:
Q. Did you make any recommendation to Mr.
D'Adamo with regard to his continued employment
or his termination?
A. We discussed his attitude after his return from
some time off, and it did take a turn, and it got to
the point where it wasn't working out, and I did
suggest to Mr. D'Adamo that possibly some
changes should be made, and it would be up to him
to make the decision.
Q. And do I understand you to say that follow-
ing his return from that time off he had a change in
attitude?
A. Yes, I think there was a noticeable change
that just wasn't working out.
And on cross-examination:
Q. Now, you stated earlier that when Mr. Lewis
returned from his workers comp injury that his atti-
tude changed. What do you mean by that?
A. Well, it's been some time, but to the best of
my recollection, I would assign him tasks or jobs to
do and I would have difficulty in locating him; he
would be doing something else other than what I
had given him directions to do
Q. But he would be doing his work?
A. He would be doing some work.
Q. What specific kinds of tasks did you ask him
to do?
A. I don't recall all the details, but I do recall a
couple of instances where I gave him a specific job
to perform and I couldn't find him, and then he
didn't do the ones I asked him to do; he was doing
some others.
Q. But you don't recall any specific tasks that
you asked him to do?
A. I'd have to think for a moment. No, really, at
this point in time it's difficult to remember all the
details there were so many at that time.
Coates continued to testify in vague terms and in gen-
eralities. Although, as I find, Lewis returned to work for
only 4 days before being fired, Coates generalized that
he assigned many different tasks to Lewis over a period
of time which does not coincide with the short 4-day
period. Thus:
Q. So you are saying that over a period of almost
two weeks you were observing this change in Mr.
Lewis' attitude?
A. As I said before, I talked to Mr. D'Adamo
and I did express that, yes.
Q. And over this almost two-week period, about
how many occasions would you say that you as-
signed tasks to Mr. Lewis that he did not perform?
A. I do not recall the exact number, but it was
several.
Q. Could you give us an estimate? Twenty,
thirty?
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MIDWEST MOTEL MANAGEMENT CORP.
A. At least ten or fifteen.
Q. Now, were these all major tasks that might
have required, say, a full day's work to complete?
A. No.
Q. About how long would these take for him to
have completed, if he had done them?
A. It would depend on the particular job. There
was room repairs. There were minor jobs that
would take small amounts of time. There were
major jobs that would take a whole day.
Q. How many of them would you estimate
would have been major tasks that would have taken
a whole day?
A. During that time frame?
Q. During this almost two-week period when
you were observing the change in his attitude.
A. Probably two, at the most.
Q. Now, during this almost two-week period
were you reporting any of these incidents to Mr.
D'Adamo as they were occurring?
A. No, that was my job to make note of, and I
did not report it during that time until I felt I had
an adequate record to submit to Mr. D'Adamo.
Q. I'm sorry; I didn't hear the last?
A. I said it was my job to compile the record,
and I did not submit it until I thought I had an ade-
quate file that would justify my position.' 5
And:
Q. Prior to Mr. Lewis being off on Workmen's
Compensation you didn't have any difficulty with
his attitude then, did you?
A. Well, no. We had a pretty good working rela-
tionship. He took direction well, and I think he was
learning.
Q. So he did make a conscientious effort to do
his work, didn't he?
A. I think he did for awhile, yes.
Q. And, in fact, didn't he thank you on occasion
for helping impart knowledge to him?
A. Yes, he did.
On rebuttal, Lewis credibly denied that either his per-
formance or attitude changed after his return to work on
June 8. He credibly testified that Coates did not discuss
his performance with him after his return either. On only
one occasion did Coates ask Lewis where he had been.
Lewis testified that he explained to Coates that he left
his assigned task of repairing a toilet seat upon receiving
an emergency call from the front desk on his beeper to
restore the air-conditioning in a room. After Lewis ex-
plained where he had been, Coates simply asked if Lewis
had corrected the (air-conditioning) problem, and said,
"Okay, then."
Neither D'Adamo nor Coates saw fit to discuss with
Lewis his sudden change to an unfavorable attitude.
Such failure was a departure from Respondent's past
practice. I credit Lewis, who testified persuasively on
this point in contrast to the vague and undocumented
testimony of Coates. In contrast to Coates' vagueness on
16 Respondent did not offer in evidence any such file, or even a single
note described here by Coates.
Lewis' attitude, I note that Coates was quite specific in
his testimony on most other matters.
2. Lewis is fired
Lewis testified that, around 3:30 in the afternoon on
June 12, he was summoned to the office of General Man-
ager D'Adamo, who told him that he had just finished
talking with (part owner) Charles Trout. Owner Trout
told D'Adamo, according to the latter, that he had to cut
back in all departments of the motel, including mainte-
nance, because of budgetary considerations. D'Adamo
told Lewis that he was laying him off but would call him
back within 2 weeks when things picked up. D'Adamo
gave Lewis an unspecified sum of money in cash after
D'Adamo cashed a check.'6
Three days later when Lewis visited the motel to pick
up some of his belongings, he had a conversation with
Executive Housekeeper Davis in which she made refer-
ence to Coates' having a new maintenance helper. Davis
did not deny this testimony when she subsequently took
the witness stand. Following this conversation with
Davis, Lewis spoke with Maintenance Supervisor Coates
by the swimming pool. No others were present. Lewis
told him that he had come by to pick up the rest of his
belongings and to ask Coates if he knew anything that
had happened. According to Lewis, Coates said that he
did not, that he had gone out to take care of some busi-
ness for D'Adamo at the manager's pizza restaurant, and
that, when he returned, D'Adamo told Coates that he
had let Lewis go. Lewis asked him if he knew why, and
Coates allegedly said, "[I]t was because of that damn
union stuff." Coates continued by saying that if Lewis
had done what D'Adamo had wanted him to do, con-
cerning talking to the employees and dissuading them
from supporting the Union, then everything would have
been all right and Lewis would still be working at the
motel. According to Lewis, Coates added, "You see, he
already had messed over you one time before when he
brought me in here to work, and now he is doing it to
you again. I think it would be best for you to go ahead
on and try to find somewhere else to work. And if you
get a job, if you need me to recommend you, I will do
that."
In his testimony Coates denied Lewis' description of
the swimming pool conversation. On cross-examination
he had first denied having a conversation with Lewis on
June 15 by the swimming pool, and said that he thought
that, if there had been such a conversation as that, he
would recall it but that he does not. In answer to an ad-
ditional question, Coates replied that it was true that he
could have had a conversation with Lewis which he did
not recall at the moment. However, this must be taken in
the context that Coates had just testified that he and
Lewis were constantly in contact with each other, were
16 The testimony of Sales Director Smith that Lewis was given sever-
ance pay on June 12 in the form of a check, even if true, is not necessar-
ily inconsistent with the testimony of Lewis. Thus, Smith conceded that
she was not present at the termination interview and did not know if the
check had a notation as to the purpose. Moreover, it is conceivable that.
while a check may have issued, D'Adamo had Lewis endorse it and
D'Adamo cashed it for him on the spot. In any event, Respondent did
not see fit to introduce the canceled check in evidence.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friendly, had a very likable relationship, and had many
conversations with each other on various topics.'
7
Lewis is black. Coates is white, and D'Adamo appar-
ently is white. The first charge Lewis filed was with the
Equal Employment Opportunity Commission on the
basis of race and in retaliation for having spoken out on
behalf of other blacks. Lewis alleged that his replace-
ment is white. The EEOC charge was filed on June 16
(Resp. Exh. I). Two days later, he filed the charge
herein. The theories of the two charges are not mutually
contradictory.
Conclusion
I find that Respondent was motivated to fire Lewis be-
cause of his strong support for the Union. It matters not
that General Manager D'Adamo told several employees
that they had a free choice on whether they wanted the
Union. Respondent simply wanted to eliminate the em-
ployees' leader as a source of future problems as well as
to punish him for his support of the Union. D'Adamo
wasted no time in getting rid of Lewis once the latter re-
turned to work after the election.' 8 D'Adamo falsely
told Lewis he was just laying him off, when in fact he
terminated Lewis and quickly hired a replacement
helper. 9
Respondent contends that it terminated Lewis because
he was incompetent. Its chief evidence on this point re-
lates to the period when Lewis was the maintenance su-
pervisor. That is, it predates Coates' arrival and Lewis'
demotion to helper on March 1. Respondent's post-
March I evidence is the extremely nebulous testimony of
Coates which, I find, covers a 4-day period-and that re-
lated to "attitude," not competency. 20 Surely Respond-
ent, had it been in good faith, would have counseled
Lewis, or even reprimanded him, in accordance with the
motel's written rules and D'Adamo's own policy. Re-
spondent did neither.21
In short, I find that the General Counsel established a
strong case that Respondent discharged Lewis because
of his union activities, and that Respondent's various
contentions as to the reasons for the discharge are noth-
ing but pretextual grounds. Accordingly, I shall order
1i On the other hand, it was not developed whether these conversa-
tions continued after the termination of Lewis.
iB Lewis served as the Union's observer at the election of May 15
while he apparently was in an off-duty status because of an on-the-job
injury to one of his feet. He was fired 4 days after he returned to work.
19 Respondent's budgetary argument is therefore misplaced. Indeed,
owner Schmalfeldt testified that normally a 120-room motel utilizes a
maintenance complement of one "strong" (experienced) man and one
"weak" man. At the time of the hearing in December, Respondent had
only one maintenance employee. While budgetary considerations may
have been a factor for that number at the time of the hearing, it is clear
from Schmalfeldt's testimony that a prime reason was the winter
season-no need for someone to perform yard work. In contrast, the out-
side, or yard work, is at its greatest need in June when Lewis was termi-
nated.
20 Such shifting of grounds is an indicium that an unlawful motive is
the real reason for the discharge.
21 The fact that Coates was admittedly on good terms with Lewis, yet
did not counsel Lewis regarding his supposed change in attitude, is a
strong indication that "change of attitude" was advanced as a pretext to
cover the true, and unlawful, reason for discharging Lewis. Respondent's
defense has an extraordinary number of contradictions in both logic and
common experience.
that Respondent offer Lewis reinstatement and make him
whole, with interest.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Retail, Wholesale and Department Store Union is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by unlawfully interrogating employees about their pro-
tected activities, promising them benefits if they re-
frained from supporting the Union, threatening employ-
ees with discharge if they support the Union, soliciting
employees to solicit other employees to withdraw their
support of the Union, threatening employees with more
strict enforcement of work rules if they support the
Union, and surveilling employees during a union meet-
ing.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by discharging and failing to reinstate Curtis L.
Lewis, Jr.
5. The foregoing unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. Respondent did not violate Section 8(a)(l) of the
Act by soliciting employee grievances or promising to
remedy them on or about May 5, 1981.
THE REMEDY
In view of the foregoing, I shall recommend that Re-
spondent be ordered to cease and desist its illegal con-
duct, to post an appropriate notice, and to offer immedi-
ate and full reinstatement to Curtis L. Lewis, Jr., and
make him whole, with interest. Backpay shall be comput-
ed in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest com-
puted in the manner prescribed in Florida Steel Corpora-
tion, 231 NLRB 651 (1977). See, generally, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10O(c)
of the Act, I hereby issue the following recommended:
ORDER 22
The Respondent, Midwest Motel Management Corp.
of Birmingham, Birmingham, Alabama, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating employees concerning
their union activities and those of other employees.
(b) Promising employees money if they refrain from
supporting a union and if they dissuade other employees
from supporting a union.
22 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
726
MIDWEST MOTEL MANAGEMENT CORP.
(c) Threatening employees with discharge if they sup-
port a union.
(d) Asking employees to solicit other employees to
withdraw their support from a union.
(e) Threatening employees with more strict enforce-
ment of work rules if they support a union.
(f) Surveilling employees while they are attending a
union meeting.
(g) Discharging employees because they are active on
behalf of a union.
(h) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights to self-organization, to form, join, or assist
Retail, Wholesale and Department Store Union, or any
other labor organization, to bargain collectively through
representatives of their own choosing, to act together for
the purposes of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activi-
ties.
2. Take the following affirmative action which will ef-
fectuate the purposes of the Act:
(a) Offer Curtis L. Lewis, Jr., immediate and full rein-
statement to his former position of employment or, if
such position no longer exists, to a substantially equiva-
lent position, without prejudice to his seniority or other
rights and privileges previously enjoyed.
(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 analyze the amount of backpay due
under the term of this Order.
(c) Post at its Birmingham, Alabama, motel signed and
dated copies of the attached notice marked "Appen-
dix."2 3 Copies of said notice, on forms provided by the
Regional Director for Region 10, after being duly signed
by Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations not specifically found
herein, including paragraphs 13, 14, and 15.
2s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
727