Radisson Muchlebach Hotel

National Labor Relations Board - Board Decisions

Jan 17, 1985

273 N.L.R.B. 1464 (N.L.R.B. 1985)

1464

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Radisson Muehlebach Hotel and Hotel & Restau-
rant Employees and Bartenders International
Union, AFL-CIO, Local 64. Cases 17-CA-
10704, 17-CA-10782, 17-CA-11045, and 17-
CA-11079
17 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 February 1983 Administrative Law Judge
Burton Litvak issued the attached decision. The
Respondent, the General Counsel, and the Charg-
ing Party' filed exceptions and supporting briefs.
-The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusionss as modified below and to adopt the
recommended Order.
We agree with the judge's finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by discharging Edna Hayes. However, we do not
pass on his finding that she was engaged in con-
certed activity, and we find the violation based
solely on the following analysis.4
The Charging Party withdrew its exceptions on 6 July 1983.
2 The Respondent asserts that the judge's credibility resolutions, find-
ings of fact, and conclusions of law are the result of bias. After careful
examination of the record, we are satisfied that this allegation is without
merit. There is no basis for finding that bias and partiality existed merely
because the judge resolved important factual conflicts in favor of the
General Counsel's witness. As the Supreme Court stated in NLRB v.
Pittsburgh Steamship Co., 337 U.S. 656, 659 (1949), "[T]otal rejection of
an opposed view cannot of itself impugn the integrity or competence of a
trier of fact." Furthermore, the Board's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
363 (3d Cir. 1951) We find no basis for reversing his findings.
3 The judge inadvertently referred to William C. Speidel as William E.
Speidel. He also incorrectly found that Supervisor Reggie Williams was
wearing a brass name tag Instead of a red name tag. We hereby correct
these errors.
We agree with the judge's refusal to order that discharged employee
Gnmes be reinstated and made whole because we provide only a cease-
and-desist order in situations where an employer interviews an employee
in violation of the requirements set forth in NLRB v. J. Weingarten, 420
U.S. 251 (1975), except in cases where an employee is discharged for as-
serting his Weingarten rights or where the reason for the discharge is
itself an unfair labor practice. See our recent decision in Taracorp Inc.,
273 NLRB 221 (1984).
Chairman Dotson agrees with the judge that the Respondent's refusal
to process grievances to arbitration is unlawful, but he does not rely on
the judge's citation of Dresser Industries, 264 NLRB 1088 (1982). Member
Dennis, who agrees with the judge that Dresser was prospective only and
therefore would not apply to the instant case, finds It unnecessary to inti-
mate any views regarding the issues Dresser presents.
In , agreeing with the judge's conclusion that the discharge of union
steward Gnmes was not violative of Sec. 8(a)(1) and (3) we find it unnec-
essary to rely on fn. 44 of the judge's decision.
4 Member Hunter finds that Hayes' conduct in telling two supervisors
about a newspaper article which reported that the Respondent had not
remitted dues to the Union for several months constituted protected con-
certed activity. See Atlanta Newspapers, 264 NLRB 878, 879 (1982).
Hayes worked for the Respondent as a maid for
32 years. She had not openly indicated herself to
be a union supporter prior to the events surround-
ing her discharge. On 4 June 1982 she entered the
linen room and interrupted a conversation between
Supervisors Grimes and Morrow in which both
were criticizing the Union. Hayes indicated her dis-
agreement with such criticism and asked them if
they had seen "the article" in the previous night's
newspaper which said that the Respondent had not
remitted any money to the Union since February.
Both Grimes and Morrow expressed disbelief. The
Respondent suspended Hayes that afternoon and
later discharged her for telling "numerous employ-
ees that the hotel had not paid dues or other
money to the Union since January." The Respond-
ent told Hayes this information was not true and
that her conduct was violative of employee con-
duct rule 11. Rule 11 proscribes "making or pub-
lishing false, vicious, or malicious statements con-
cerning any employee, supervisor, the Company,
the Hotel or any other service establishment or in-
dividual directly or indirectly related to the con-
duct of Company or Hotel business."
A decertification election had been held about 10
months before Hayes' discharge and objections to
the election were pending. The Respondent clearly
demonstrated animus toward the Union by the
unfair labor practices committed in the months
after the election. In this context, Hayes, by her
comments to the two supervisors, identified herself
for the first time as a union supporter. We find that
the Respondent discharged Hayes because of her
support of the Union and that the discharge there-
fore violates Section 8(a)(3) and (1) of the Act.
We also agree with the judge's rejection of the
Respondent's contention that Hayes was lawfully
discharged because she violated employee rule 11.
The judge correctly found that merely false utter-
ances and writings constitute union or protected
concerted activity within the meaning of Section 7
of the Act and the maintenance and enforcement of
a rule prohibiting them is a violation of Section
8(a)(1). 5 While it is true that false statements that
are knowingly false and therefore malicious are un-
protected, the burden is on an employer who main-
tains such a rule to show that the employee in
question intended to circulate knowingly false in-
formation. The Respondent has not satisfied that
burden.
5 Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357 (4th Cir.
1969), American Cast Iron Pipe Co., 234 NLRB 1126, 1131(1978); Walls
Mfg., 137 NLRB 1317, 1319 (1962).
273 NLRB No. 183
RADISSON MUEHLEBACH HOTEL 1465
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Radisson
Muehlebach Hotel, Kansas Cil y, Missouri, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge These
matters were tried before me on September 14, 15, and
16, 1982, in Kansas City, Kansas On August 24, 1982,
the Regional Director for Region 17 of the National
Labor Relations Board (the Board), issued a consolidated
complaint, based on unfair labor practice allegations in
Case 17-CA-10704 filed by Hotel & Restaurant Employ-
ees and Bartenders International Union, AFL-CIO,
Local 64 (the Charging Party) on November 5, 1981,
and amended on December 11, 1981, in Case 17-CA-
10782 filed by the Charging Party on January 11, 1982,
in Case 17-CA-11045 filed by the Charging Party on
June 17, 1982, and in Case 17-CA-11079 filed by the
Charging Party on July 8, 1982, alleging that Radisson
Muehlebach Hotel (Respondent) engaged in acts and
conduct violative of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act. Respondent filed an
answer, denying the commission of any unfair labor
practices At the hearing all parties were permitted to
offer into the record any relevant evidence, to examine
and cross-examine witnesses, to argue their positions
orally, and to file postheanng briefs. Based on the entire
record, including the postheanng briefs, which have
been carefully considered, and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is an employer engaged in the operation
of a hotel, restaurant, and lounge at 12th and Baltimore
Streets, Kansas City, Missouri. The parties stipulated that
Respondent, in the course and conduct of its business op-
erations described above, annually derives gross revenues
in excess of $500,000 and annually purchases goods ands
services valued in excess of $50,000 directly from sources
located outside of the State of Missouri. The parties fur-
ther stipulated that Respondent is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. LABOR ORGANIZATION
Edward L. Miller, who is employed by Hotel & Res-
taurant and Bartenders International Union as an Interna-
tional representative, testified that he is currently the
International trustee of the Charging Party and in overall
charge of its affairs. To this end, he further testified that
he negotiates collective-bargaining agreements with vari-
ous employers, files and processes employee grievances,
and conducts membership meetings and that employee-
members participate in collective bargaining, grievance
processing, and membership meetings. Therefore, it ap-
pears that the Charging Party is an organization in
which employee-members participate and which exists
for the purpose, wholly or in part, of collective bargain-
ing. Accordingly, I find that the Charging Party is a
labor organization within the meaning of Section 2(5) of
the Act Memphis Furniture Mfg. Co., 259 NLRB 401,
402 (1982)
III ISSUES
1. At all times material herein, has Respondent main-
tained a rule concerning the publication of "false, vi-
cious, or malicious statements" in violation of Section
8(a)(1) of the Act?
2. About December 16, 1981, did Respondent violate
Section 8(a)(1) of the Act by threatening employees with
discipline if they continued to engage in activity on
behalf of the Charging Party?
3 About September 15, 1981, did Respondent violate
Section 8(a)(1) and (3) of the Act by reprimanding em-
ployee James Grimes?
4 About September 25, 1981, did Respondent violate
Section 8(a)(1) and (3) of the Act by reprimanding em-
ployee Beatrice Edwards?
5. About October 6, 1981, did Respondent violate Sec-
tion 8(a)(1) of the Act by conducting an interview with
employee James Grimes after denying his request for
union representation and notwithstanding the fact that
Grimes had reasonable cause to believe that interview
would result in disciplinary action?
6. About October 6 and 9, 1981, did Respondent vio-
late Section 8(a)(1) and (3 of the Act by initially sus-
pending and subsequently terminating employee Grimes?
7. About June 4 and 8, 1982, did Respondent violate
Section 8(a)(1) and (3) of the Act by initially suspending
and subsequently terminating employee Edna Hayes?
8 Since about January 8, 1982, and continuing to date,
has Respondent violated Section 8(a)(1) and (5) of the
Act by refusing to process certain grievances, filed by
the Charging Party, through the applicable arbitration
procedures of an existing collective-bargaining agree-
ment?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1 Background
Respondent operates a hotel in Kansas City, Missouri;
encompassed within it are various facilities including a
coffee shop known as the Greenery. William E. Speidel
is the managing director of the hotel and in charge of its
entire operations, and Ronald C Juneman is the director
of personnel Respondent has had a longstanding collec-
tive-bargaining relationship with the Charging Party-
until 1980 as an employer-member of the Kansas City
Hotel Association and, since withdrawing from the
aforementioned multiemployer bargaining association in
1980, on a single employer basis Both as a member of
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the association and as a single employer, Respondent's
current collective-bargaining agreement with the Charg-
ing Party as the collective-bargaining representative of
certain of its employees' is for a term of 5 years, effec-
tive from June 16, 1978, through June 16, 1983. Pursuant
to the terms of article XXXI thereof, either Respondent
or the Charging Party was permitted to request negotia-
tions on changes in the wages and health and welfare
provisions of the contract in the spring of 1981. By a
letter dated April 7, 1981, the secretary-treasurer of the
Charging Party, Clarence Owens, made such a request
and, as a result, negotiations on such changes and other
matters 2 between Respondent and the Charging Party
occurred from May 18 through July 14, 1981. In the
midst of these discussions, the event which is alleged to
be the catalyst behind Respondent's conduct herein oc-
curred—the filing of a decertification petition, in Case
17-RD-824, on June 18, 1981, by Beulah A. Bass, a
waitress in the Greenery coffee shop The preelection
campaign continued throughout the summer of 19813
and culminated with the holding of a decertification elec-
tion on September 11, 1981. The Charging Party pre-
vailed, receiving a majority of the ballots cast 4
2. The Beatrice Edward reprimand
The record establishes that the Greenery coffee shop
is open from 6 a m. until 8 p.m. every day and that in
September 1981 Douglas Brown was the manager. Bea-
trice Edwards, who worked as a waitress at Respond-
1 The bargaining unit Includes all employees employed by Respondent
at its hotel, excluding executives, superintendents, department heads
having the authority to hire and fire, supervisory employees having the
authority to hire and fire and having an executive status, supervisory em-
ployees having an executive status with the right to effectively recom-
mend hiring and firing, accounting or control employees, timekeepers, se-
curity officers, office employees, sales personnel, desk and mail clerks,
checkers, cashiers, typists, stenographers, secretaries, supervisory stew-
ards, storeroom and wineroom personnel, and all extra employees who
have not worked at least an average of two functions (6 hours) per week
for the period January 1, 1981, to July 24, 1981
2 Edward L Miller, who attended the negotiations on behalf of the
Charging Party, testified that the only matters discussed were wages and
fringe benefits and denied that the contract provisions relating to Individ-
uals, known as extra banquet personnel, were discussed As to the latter,
Miller identified R Exh 18 as an unfair labor practice charge which he
filed on behalf of the Charging Party on June 30, 1981, alleging that Re-
spondent was bargaining in bad faith in violation of Sec 8(a)(1) and (5)
by attempting to force the Charging Party to bargain over matters other
than wages and fringe benefits The charge was dismissed and Miller
identified R Exh 19 as the letter he received from the Board's General
Counsel in which the latter's representative sustained the dismissal, writ-
ing that Respondent had made proposals as to extra banquet personnel
and the Charging Party had engaged in "meaningful" bargaining on the
subject In addition, Respondent offered into evidence Juneman's notes,
which he recorded at each bargaining session These indicate substantial
discussions regarding the matter of extra banquet waiters and waitresses
No rebuttal evidence was offered as to this
3 There is scant record evidence as to the conduct of the preelection
campaign However, the record does disclose that Speidel and Juneman
held a series of meetings with employees on or about September 9 and
that supporters of the Charging Party, including another waitress in the
Greenery, Beatrice Edwards, formed a campaign committee known as
the Save-Our-Contract committee
4 Respondent filed timely objections to the conduct of the election,
these were heard by a hearing officer of the Board who found merit in
two of the objections, on December 6, 1982, the Board reversed the deci-
sion of the hearing officer and certified the results of the election This
decision of the Board is reported at 265 NLRB 634 (1982)
ent's hotel for 25 years and who was an overt advocate
for the Charging Party during the election campaign, tes-
tified that, at approximately 9 a.m. on September 25, 2
weeks after the election, while waiting on the tables in
her assigned area, 6 she passed by a table in Beulah Bass'
work station, and two gentlemen, whom she recognized
as union officials Harold Hamilton and James Meyers,
beckoned to her, asking for coffee. "I had a pot of coffee
in my hand so I stopped and poured some. A few min-
utes later they asked me if I would give them some
cream and I did." Thereupon, she went back to the
kitchen in order to refill her coffeepots and observed
Reggie Williams, who was the agri-business club manag-
er for Respondent and acting as the Greenery manager
that morning, 6 and Bass "standing by the timeclock
smoking and talking." Noticing Edwards in the kitchen,
Williams spoke and "told me not to work Beulah's sta-
tion." When she attempted to explain what occurred,
Williams said, "Shut up. I don't want to hear it." Ap-
proximately an hour later, Edwards received a repri-
mand from Williams for the incident in the form of a
notice called "communication to employee."' The docu-
ment accused Edwards of "working another waitress'
station" without being instructed to do so and of "being
insubordinate to manager"
Harold Hamilton, an official of the national AFL-
CIO, testified that he was in Kansas City on September
25 in order to attend a Missouri manpower conference
and that he had an appointment to meet James E.
Meyers, an official of the Missouri AFL-CIO, in the
Greenery that morning for breakfast. According to Ham-
ilton, he arrived at the coffee shop a few minutes after 8
a.m. and observed Meyers already seated at a booth near
the kitchen door. There was no waiting line, and Hamil-
ton walked over to the booth and sat down. 8 Approxi-
mately 6 minutes passed until a black man who was
wearing a suit and a brass name tag 3 approached their
tables. Meyers said that they desired breakfast, and the
individual gave each a menu. Another 4 or 5 minutes
passed without any further service whereupon Meyers
beckoned to a passing waitress, who was Beatrice Ed-
wards, and requested coffee; the latter brought a coffee-
pot to the table and poured coffee for the two men. Ed-
wards left the table; however, 5 minutes later Meyers
stopped her and requested cream; Edwards placed cream
5 In September 1981, according to Edwards, the Greenery waitresses
were assigned to permanent areas, or stations, whereby each was re-
quired to wait on specified tables and no others Under this system,
which was designed to ensure the waitresses their tips, they were not
permitted to actually wait on customers in other work stations However,
Edwards testified, it was permissible for waitresses to pour coffee or
water for such diners
6 Respondent admits that Williams was a supervisor within the mean-
ing of Sec 2(11) of the Act
7 These disciplinary notices are placed in employee personnel files and
are utilized in assessing the necessity for harsher discipline if such is war-
ranted in the future
8 Hamilton testified that his identity and affiliation was known to Re-
spondent's employees as he had previously been in the hotel and at em-
ployee meetings in connection with the election campaign
9 There is no dispute that the black individual was Reggie Williams
and that he, indeed, took the food orders of Hamilton and Meyers that
morning There is a dispute as to the type of name tag he wore but I
deem this of little significance given the aforementioned
RADISSON MUEHLEBACH HOTEL 1467
on the table. Hamilton testified that another 4 or 5 min-
utes elapsed before the black individual returned and
took their breakfast orders. Thereafter, Beulah Bass
brought their meals from the kitchen. According to
Hamilton, he was acquainted with Bass and, after asking
how she was doing, introduced her to Meyers.
Beulah Bass, who filed the petition for the decertifica-
tion petition and who, according to Douglas Brown, was
constantly being harassed by other employees because of
her actions, testified, "Mr. Hamilton and two more union
[people] come in and sat down in my booth And so I
took them their coffee and was going to take their order
and went ahead and asked the host to take the orders be-
cause I didn't know if they were going to ask me some
questions or not." After the meals were prepared, she
served them to the union officials What upset Bass that
morning and allegedly caused her to complain to Reggie
Williams was that Beatrice Edwards "was at that table
four different times. . . . she refilled their coffee or
picked up their plates, and each time that she would go
over there, they would have a little conversation. What
they said, I don't know." The significance of Edwards'
conduct, according to Bass, was that "you keep going
over to somebody's table and doing things for them, it
cuts down on your tips." As stated above, she ultimately
complained to Acting Manager Williams, I told him they
were in my station and [Edwards] was not suppose[d] to
be. And he called her aside and talked to her. Usually
we've suppose[d] to ask if we need help, we'll go to the
host. . . I hadn't gone to him . She really did not
have any business over there " 10 During cross-examina-
tion, Bass' testimony became contradictory Thus, while
initially testifying, "I took them their coffee and water
and menus," she later stated that Williams poured coffee
for the union officials and that when she first observed
them in a booth, the men already had coffee, water, sil-
verware, and menus on the table. Further, as to the
number of times she observed Edwards at the union offi-
cials' table, Bass initially testified four or five times, with
the former serving coffee and bringing cream to the table
prior to Bass serving their food; later contradicting her-
self, Bass stated that Edwards was at the union officials'
table four or five times after she served the food. Re-
spondent offered no further evidence as to this inci-
dent." Finally, Hamilton testified that during the ap-
proximately 25 minutes which elapsed until Bass served
food to Meyers and him, he observed Bass on several oc-
casions walking to and from the kitchen, never carrying
anything.
3. James Grimes
The record reveals that James Grimes worked for Re-
spondent from 1966 until about October 9, 1981, as a
regular banquet waiter and that during this time period
10 Bass admitted that it was common for another waitress to pour
coffee or water if a customer so requests as that waitress passes by—
"They're naturally going to pour it"
" There is no record evidence as to what, if anything, constituted Ed-
wards' alleged insubordination to Williams that morning The latter did
not testify, and Respondent offered no reason foi not calling him as a
witness
he served as a union steward for the Charging Party."
At all times material herein, he was supervised by Mary
Moore, the banquet manager for Respondent." With
regard to the performance of his duties as a union stew-
ard, Grimes testified that he conferred with other em-
ployees concerning work-related problems "most times
in the dressing rooms or at lunch time . . . in the lunch
hall." Aware that the union stewards were prohibited
from discussing union business with employees in public
areas of the hotel or while working," Grimes consistent-
ly maintained that his practice, whenever confronted by
an employee with a problem in such an area or during
work, was to refuse to discuss the matter. 15 According
to Grimes' uncontroverted testimony, he was constantly
"right on [Juneman's] back" about employee-related mat-
ters, and in early August 1981 as he passed by Juneman
in a hotel hallway, the latter, with a smile, said "It
seemed like you're running the place." At approximately
the same time, Grimes was called to Juneman's office
and informed by the latter that the two restaurants, the
Greenery and La Carrousel, were "off limits" to him
from that day on and that in order to report to his work
station, he was required to utilize the rear stairway.
Grimes testified that Juneman gave him no reason for
this restriction and that prior to this conversation,
Grimes had always taken a short cut (through the
Greenery kitchen and up an elevator) to his reporting
area. During his testimony, Juneman said nothing about,
nor gave any Justification for, Grimes' area restriction.
Mary Moore testified that he never had any valid reason
for being in the Greenery kitchen as the catering depart-
ment possessed its own kitchen equipment and that the
restriction was related to the sexual harassment of
Beulah Bass by Grimes, a point not corroborated by
Bass. 1 6
12 As union steward, Grimes was responsible for representing the
hotel's kitchen help, waiters, and waitresses There was only one other
steward, Thelma Glover, who was responsible for all other employees
Grimes testified that in Glover's absence he discussed work problems
with employees within her Jurisdiction
13 It was admitted that Moore is a supervisor within the meaning of
Sec 2(11) of the Act
14 Art XIV of the current collective-bargaining agreement states that
the Charging Party's business agents "shall not transact union business in
public rooms, and shall not Interfere with work betng performed" While
not specifically concerned with the Charging Party's shop stewards,
Grimes testified that he understood that the same restrictions applied to
his conduct of union business, and no contrary evidence was offered by
the General Counsel or the Charging Party as to the conduct of union
business by the stewards
15 During cross-examination, Grimes testified that he never violated
the contractual provisions—"I was a busy man at all times and I could
not stop my work to perform no business" While unable to recall being
warned in March 1981 about conducting union business while working,
Grimes admitted receiving and executing R Exh 6, a memorandum to
Grimes from Ronald Juneman, dated March 13, 1981 This document,
after quoting from the above-quoted art XIV of the existing contract, re-
minds Grimes, "You are not to conduct union business while on duty
We have recently received several complaints from your membership re-
garding harassment from union officials We request you follow the col-
lective bargaining contract as written" There is no evidence that Grimes
ever filed a grievance over receiving this document or that the Charging
Party ever challenged its accuracy
16 Grimes admitted that the restriction did not inconvenience him and
that it did not prevent him from having access to Greenery employees in
either the employee locker room or cafeteria
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Two days before the decertification election, on Sep-
tember 9, 1981, Grimes was called into Mary Moore's
office and met with the latter and Gordon Bell, Re-
spondent's catering manager. 17 According to Grimes,
Bell "asked me how I was going to vote and I told him
for the union. And when I told him that he replied to
me, 'I hope you do this in the future of your family and
yourself.' I . . . said, 'I've been in this union for many—I
worked in this hotel for many years and I've taken care
of my own business for 40 years. I didn't need you to
help me take care of my family' That's all I said And
walked out." Gordon Bell testified that he was instructed
to meet with employees prior to the election "to make
sure they had all the facts" and to answer their questions
and that he requested that Grimes speak to him in
Moore's office with the latter being present "What I
said to James was that if he had any questions or any-
thing that was on his mind or that he was not sure of, I
was there to try and clarify the matters And James
didn't say anything, so I just said, 'well, just vote the
way you really feel inside would be the best for you and
your family " Moore said nothing about this meeting
during her testimony. The election took place on Sep-
tember 11, and Grimes was the Charging Party's observ-
er during it
There is no dispute that, despite his aforementioned
work restriction, Grimes was in the Greenery kitchen
between 5:30 and 6:30 a.m. on September 15 and that,
while there, he walked past past Beulah Bass, who was
standing near the coffee shop timeclock, and greeted her
According to the testimony of Grimes during the Gener-
al Counsel's case-in-chief, he was in the kitchen that
morning, preparing for a buffet breakfast in the La Car-
rousel restaurant, which is located in close proximity to
the Greenery. Mary Moore, who, as previously stated,
testified that there was no need for Grimes ever to be in
the Greenery kitchen as the banquet department pos-
sessed its own kitchen equipment, further testified that
on September 15 just a few individuals were scheduled
to work the buffet breakfast in La Carrousel and Grimes
was not one of them and that he was assigned to other
functions that day. As support, Moore identified a series
of documents (R. Exh. 22) as Grimes' work vouchers's
for September 15; these show him working five separate
functions during that day—two in the Imperial Ballroom,
two in the Grand Ballroom, and one in Room 1111. Fur-
ther, Moore was certain that Grimes was not in the La
Carrousel restaurant that morning for, as the supervisor
in charge of that facility, she was in the area "off and
on" that morning and did not see Grimes—"I know Mr
Grimes was not scheduled for that room and he was not
in that area or come up and have anything to do with La
Carrousel." 1 ° Moore also denied pulling Grimes off a
37 The parties stipulated that Bell is a supervisor within the meaning of
Sec 2(11) of the Act
18 According to Moore, a banquet waiter must receive a voucher in
order to be paid for working a particular meal, and there would be no
occasion when a waiter would not receive one after working a meal
Contrary to Moore. Grimes testified that It was not unusual for him not
to receive a voucher after a meal because he was a leadman, was hourly
paid, and did not expect a voucher for everything
19 Moore testified that she could recall the events of September 15
with particular clarity because of the Beulah Bass incident and because it
function in La Carrousel that morning, asserting she
would never do that. Testifying during rebuttal, Grimes
contradicted Moore, stating that, as scheduled, he report-
ed for work at 6 a.m. in the Imperial Ballroom but that
the captain, Alex Naliviko, ordered him to report, in-
stead, to the La Carrousel "because everybody was late"
to help set up. Accordingly he accompanied Naliviko to
the La Carrousel, which was open because a steward
had previously opened the room, 2 ° and assisted in pre-
paring the buffet table, rearranging and setting up the
guest tables, and serving the food. Grimes testified that
Moore arrived at 7.30 am, noticed him working that
meal, and after stating that he had no business there, or-
dered Grimes to return to the Imperial Ballroom."
With regard to his greeting to Bass, Grimes testified
that "I said 'Good morning, Beulah baby" and that Bass
returned his greeting, did not appear to be angry, upset,
or irritated and did not complain about his manner of
speaking. He further testified that he greeted "every-
body" in that manner and that he used the same greeting
to Bass prior to that morning and, also, subsequent to
September 15. Beulah Bass, on the other hand, testified
that Grimes "usually did not speak to me," that he said,
sarcastically, "Well, good morning, Beulah baby," and
that she neither smiled nor responded in any way. Ac-
cording to Bass, Grimes, in the past, "might" have greet-
ed her with a hello but never in such a manner or in the
same tone of voice as that morning. Inasmuch as "it just
upset me the way he talked to me is all," Bass immedi-
ately went to the Greenery manager, Douglas Brown,
and requested permission to complain directly to the per-
sonnel office regarding Grimes' conduct. 22 Douglas
Brown corroborated Bass in this regard—"Beulah ap-
proached me and stated James Grimes concerned her
and said 'Hi Beulah, baby,' or words to that effect She
was very livid, she was very upset. She asked if she
could go to personnel and talk to Ron Juneman I said
'Of course "233
was Grimes' first day back at work after being off for a while—"I know
exactly where he worked on the 15th I kinda picture myself—pic-
ture things back in my mind, and I can kinda remember that"—while de-
nying that her memory of Grimes' schedule for September 15 was based
on his vouchers for that day, she had no recollection as to where Grimes
worked on September 14 or 16 because she did not have Grimes' work
vouchers for those dates
20 Moore asserted that only she was authorized to open the La Car-
rousel restaurant for banquet employees to work there, however, she ad-
mitted that a steward could open the room for employees of another de-
partment to work
Ii Grimes acknowledged that he did not receive a voucher for work-
ing the buffet breakfast in La Carrousel
22 Asked why a was so Important that she report the incident to the
personnel office, Bass answered, "I don't know why I did " She asserted
that she complained to personnel in the past about similar incidents but
could give no examples and later admitted this was the first such occa-
sion Bass denied that Respondent Personnel Director Juneman asked her
to report any incidents involving union supporters
23 Brown testified that although he normally accompanies employees
to the personnel department, he did not do so on this occasion as Bass
"was so upset and so livid, in fact incoherent to the point she was in tears
almost " Brown further testified that he was not surprised how
Grimes' greeting affected Bass "because she was taking a lot of verbal
harassment from fellow employees around that hotel, before and
after the election" He continued, "It was probably a day where she Just
finally broke "
RADISSON MUEHLEBACH HOTEL 1469
As a result of this incident, Grimes was given a "com-
munication to employee" notice dated September 15,
1981. The disciplinary notice was authorized by Juneman
and signed by Gordon Bell, and two 1 easons for the
action are set forth therein: "You were observed in an
unauthorized area of the hotel [Greenery kitchen]. You
have been previously warned"" and "Sexual harrass-
ment — Beulah Bass (called her Beulah Baby in a vulgar
way)." The notice was given to Grimes by Gordon Bell;
the former denied the contents of the document and re-
fused to sign it. Ronald Juneman testified that Grimes'
greeting to Bass was considered as constituting sexual
harassment and, as such, violative of Respondent's per-
sistent" campaign against such conduct."
On Sunday evening, October 4, 1981, Grimes was
scheduled and worked three dinners, two on the mezza-
nine level and the last, a group of Catholic priests, in a
room on the Trianon leve1, 27 which is located one level
above the hotel lobby. Grimes testified that he served
the latter dinner and cleared the dishes from the tables
onto carts between 7:30 and 8:30 p.m. and that he was
resting in the employee hallway when William French, a
houseman, came through the swinging doors and ap-
proached him French began scooping uneaten food off
the dinner dishes, which were stacked on the carts, and
eating it." French turned to Grimes and, according to
the latter, said, "When are you folks going to get—you
people going to get our back time and raise ? ' And I
looked at him and I said, 'As soon as we can get this
back to the table, French.' And after that I replied to
him, 'I'm sure the union ain't never did nothing for you.'
And then this was the end of the conversation. He
turned and went back into the Triano n area." Grimes
further testified that he was not scheduled for work on
October 5 (Monday) and that when he reported for
work on Tuesday, October 6, he was ordered to report
to Personnel Director Juneman's office where he found
Mary Moore and Juneman waiting for him. According
24 with regard to the restnction from entering the Greenery kitchen,
Mary Moore stated that it was based on Grimes doing union business
there at unauthorized times and upon previous harassment of Beulah
Bass The latter, of course, stated that Grimes hardly spoke to her prior
to September 15 and not as he did that day
25 Juneman testified that Respondent terminated two employees, one
of whom was a managerial employee, for sexual harassment of female
employees prior to the Bass incident
26 Lisa Helvey, the assistant personnel director, testified that Respond-
ent's parent corporation, the Radisson Hotel Corporation, instructed Re-
spondent to post notices throughout the hotel, informing employees of
the corporation's policy against any form of sexual harassment Upon re-
ceipt of these notices, R Exh 12, Juneman instructed her to post copies
on employee bulletin boards, and Helve!, did so in February 1981 Beulah
Bass testified that copies of the notice were posted on the Greenery
kitchen bulletin board and by the back door James Grimes admitted that
he was aware of said notices but asserted that he first observed one sub-
sequent to receiving his reprimand for 'greeting" ]Beulah Bass As to Re-
spondent's campaign against sexual harassment, Grimes admitted knowl-
edge of the policy from the employee newspaper and from the holding of
employee seminars regarding sexual disc rimination
" On this level, there is a public hallway, off which are some banquet
rooms An employee hallway is located to the rear of the banquet rooms
and is reached from the public areas through two swinging doors
28 Such was a violation of Respondent's work i tiles, however, accord-
ing to Grimes, he always "looked the other way" when employees did
this
to Grimes, he had no idea why he was ordered to report
to the personnel office
William French" testified that he reported for work
at approximately 7 p.m. on Sunday and that after clean-
ing the lobby and the public restrooms on that level, he
moved up to the Trianon level. According to French, he
had finished cleaning the ladies' restroom, which is locat-
ed off the public hallway on said level, and was emerg-
ing from it when James Grimes, who was standing next
to the swinging doors which lead to the employee hall-
way, beckoned for French to come over to where he
was standing. French did so, and Grimes "said he
wanted to see me because that was the only time he had
to talk to me. . . . he said he wanted to know if I was
one of the guys, the people who was against the union."
French did not reply, and Grimes said that the "only
thing I wanted to talk to you so I'd know who was
against the union so I can put it in the union report."
French further testified that another, unidentified waiter
was standing nearby and that Grimes had been "sitting"
by the double doors As to the time of the incident,
French placed it as occurring at approximately 8 p.m.,
shortly before his lunchbreak in the "middle" of his shift
that night. The next day, 3 ° according to French, he by-
passed his immediate supervisor and reported on what
had occurred the night before directly to Ronald June-
man as "I figured he would need to know what hap-
pened." French added that Mary Moore was present and
that neither Juneman nor Moore asked him any questions
about his account
Contradicting French, Juneman testified that Execu-
tive Housekeeper Kay Sullivan, French's supervisor,
telephoned him during the morning of October 5 and
said that French wished to speak to him. Having request-
ed that Mary Moore be present, Juneman and the former
thereupon listened to French's version of the incident of
the previous night. According to Juneman, French said
that he had been cleaning the men's bathroom in the
public area of the Trianon level and that "he was cor-
nered by Mr. Grimes and he was threatened to be put on
a list with the union, and he was Just basically intimidat-
ed by the whole thing." 31 Again contradicting French,
Juneman testified that he thereupon questioned French
regarding the incident and asked him to return to work.
After French departed, Juneman asked Moore to have
Grimes report to his office.
James Grimes testified that when he arrived in June-
man's office, the latter immediately handed him a two-
page document dated October 5, 1981 (G.C. Exh. 18),
29 Grimes denied knowledge of French's attitude toward the Charging
Party, while Juneman asserted that not only did he assume French was
against the Charging Party but also French's sympathies were well
known to other employees
So French exhibited utter confusion as to when he reported the inci-
dent to Juneman Initially, he testified that he spoke to Juneman on
Monday at 8 am Later, he testified that the time was 630 p m —Just
before he commenced work Under intensive questioning on this point,
French admitted, "I don't know what time it was" Finally, French
placed the timing of his report to Juneman between 6 and 6 30 p m "I
reported it the next day at the time when I came in"
Si During cross-examination, Juneman asserted that the "conversation
took place in two areas, outside the public restrooms where Mr French
was about to clean and then back in the service corridor"
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and ordered Grimes to read it. It reads, inter aim, as fol-
lows:
VIOLATION OF STANDARDS AND CON-
DUCT NUMBERS SEVEN (7) AND SEVEN-
TEEN (17). VIOLATIONS OF THE UNION
CONTRACT: ARTICLE XIV VISITATION
PRIVILEGES
Ron Juneman
James Grimes
On Sunday, October 4, 1981, during the late
afternoon you stopped William French as he was
coming down the escalator to the Trianon bath-
rooms. You were standing in the hallway and you
took him to the back corridor to discuss union busi-
ness on company time.
You asked Mr. French what the union has ever
done for him. You told him that you realized that
he (William French) was one of the people against
the union. You also stated that you were going to
place Mr. French on report (LIST) with the union
because of his (Mr French's) opinions about the
union. You have been previously warned regarding
your behavior as a union representative and your
intimidation of fellow employees.
Your activities of Sunday were in violation of the
following rules:
1 ARTICLE XIV: VISITATION PRIVI-
LEGES of the Local 64 Collective Bargaining
Agreement, which reads in part
shall not transact union business in public
rooms, and shall not interfere with work being
performed . . . ."
At the time you stopped Mr. French he was:
a. In a public area.
b Trying to perform his duties, as assigned on
company time.
In addition, ARTICLE XIV reads:
. It is agreed that before contacting em-
ployees in any establishment, the union represent-
ative shall first report to the management of his
intention to do so"
You contacted Mr. French without first notify-
ing management of your intent to do so.
2. You were in violation of the Hotel's Stand-
ards and Conduct rules, Number Seven (7),
which reads, in part.
"Disrespectful conduct . coercion, intimida-
tion, or threats of any kind against . fellow
employees . . ."
You told Mr French that you were going to
put him on "THE LIST" because of his opinions
about the union.
3 Leaving your department or work area
without permission from your supervisor is in
violation of the Standards and Conduct rule
Number Seventeen (17)
As the result of your conduct you are hereby sus-
pended pending investigation. You are to call your
supervisor, Mary Moore, on Wednesday, October 7,
1981 We hope to have our investigation concluded
by that date. If not, we will notify you of same.32
According to Grimes, after reading and returning the
document to Juneman, he said that "it was just pure har-
assment" Thereupon, believing he needed a representa-
tive from the Charging Party present, Grimes said "that
I would need a representative" and specified Edward
Miller. Juneman responded that Grimes did not need the
presence of a representative of the union as he was a
union steward. Thereafter, Juneman "went on through to
ask me my side of the story of this particular paper," and
Grimes related his version of what occurred on the pre-
vious Sunday evening. During cross-examination, Grimes
denied admitting to either Juneman or Moore that he ac-
costed French in a public area of the hotel.
Ronald Juneman testified that after Grimes arrived at
his office, "we asked [Grimes] about the different facts in
the case as relayed to us, and James confirmed the fact
that he did stop and talk with Mr. French the day before
and he had talked to him about various union matters,
and he did talk to him in the public area as was de-
scribed by Mr. French." Next, according to Juneman, he
told Grimes what hotel rules had been violated by the
latter and he would be suspended while Juneman investi-
gated the facts more thoroughly Grimes responded,
yeah, I did those things but I didn't think I was
doing wrong." Juneman continued, "James said that Mr.
French approached him and he didn't approach Mr.
French. Everything else pretty well agreed verbatim."
Juneman asserted that Grimes admitted threatening to
place French's name on a union list but said, "I didn't
mean any harm by it or anything like that." Juneman fur-
ther testified that he and Moore discussed the suspension
immediately after Grimes left his office; that as a result
of the meeting with Grimes, Respondent's Exhibit 14,
which is identical to General Counsel's Exhibit 18, was
passed around for the signatures of the meeting partici-
pants, including Grimes; and that Grimes signed the doc-
ument Finally during cross-examination, Juneman
averred that a major reason underlying his reaction to
the incident of October 4 was that French appeared to
be "honestly visibly shaken. He was scared He feared
for his physical well-being."
Mary Moore, whose recollection of the events of Oc-
tober 6 was hardly a model of clarity, testified that she
had no idea why she was asked by Juneman to come to
his office that day but that she met with Juneman,
Grimes, and French She said that the latter spoke first
and said that "James Grimes approached him and kind of
like on some threatening remarks about something that
happened to the union. . . Frenchy said he was clean-
32 Beneath the last lines are spaces for the date of the conversation
with Grimes and the signatures of Moore, Juneman, and Grimes G C
Exh 18 contains no date for the conversation but does contain the pur-
ported signatures of Juneman and Moore in the spaces reserved for same
Grimes asserted that he refused to execute the document Respondent of-
fered into evidence as its Exh 14 the identical document except that it
contains the date "10/6/81" for the discussion with Grimes and purport-
ed signatures of Grimes, Juneman, and Moore Grimes asserted that his
signature on this document was forged, while Moore would not identify
the signature on G C Exh 18 as hers
RADISSON MUEHLEBACH HOTEL 1471
ing the halls. . And James Grimes was down there a
little earlier, he was to work a function, but he was there
earlier than he should have been . . And he said some-
thing about James, they were talking about the union.
. . They had some words about it. . . And Frenchy
said that Mr. Grimes said . somebody was going to
get him . and they would get him one way or an-
other" After French related his version of the October 4
incident, Grimes spoke, and, according to Moore, he ad-
mitted speaking to French that night "Mr. Grimes
said—well, something that they both had said something
to that effect, that someone was out to get him . . . And
Mr Grimes said that . . . both of them was talking
about the incident, about the union." Moore further testi-
fied that, at this point in the interview, French left June-
man's office. Grimes remained and continued talking
about the incident, "saying something, that he was a man
and felt like a man had his opinion to say what he
wanted to say. And, you know, he just went on and on."
As to the document (marked as G C. Exh 18 or R. Exh.
14), Moore says it was given to Grimes "on a different
occasion" most likely on October 7 and that at this meet-
ing, which she, Grimes, and Juneman attended, Juneman
asked if Grimes desired having a representative there;
the latter "stated that he was a steward and he did not
need anyone to represent him, he was his own represent-
ative because he was a steward at the hotel." Grimes
was suspended after this meeting. Later, during direct
examination, Moore recalled that the meeting during
which Grimes and French spoke occurred on Monday,
October 5, and that the meeting at which Grimes was
suspended occurred the next day.33
There is no dispute that Grimes was terminated on Oc-
tober 9. According to Moore, "We kind of like investi-
gated some other things in the past that had happened,
including past write-ups against Grimes such as the
Beulah Bass incident and being in unauthorized areas of
the hotel, interfering with other employees doing their
jobs. It was just a series of things. . t can't remember
all of them, improper service . . . if you gave him one
way of doing it, he had his own way he wanted to do
it" Moore testified that she had observed Grimes' work,
and "he had gotten very sloppy" Also, she mentioned
two arguments which Grimes had with Respondent's su-
pervisors- a fight with an individual named Bennie Bar-
rera in 1968 and an incident involving Respondent's sous
chef on August 4, 1981. 34 During cross-examination,
Moore asserted having written up Grimes "several
times" for sloppy work incluchng the dropping of trays
(she could recall neither the dates or dispositions) and
the serving of food, wrapped in cellophane, during a
33 Moore testified that the suspension was "based on being in unau-
thorized areas There are a series of things, not Just one"
34 Grimes readily admitted almost having an altercation, during which
he was prepared to utilize a knife in apparent self-defense, with the sous
chef, Martin Dickey, involving Grimes eating food which the sous chef
had prepared and which Grimes should not have eaten A fight between
the two was narrowly averted, however, both men received disciplinary
notices giving each a 1-week suspension without pay Also, both were
warned that for any further violation of hotel policy, " you will be
immediately terminated
dinner in June 1981. 35 Finally, Moore recalled an alter-
cation between Grimes and an unidentified Greenery
manager but could not recall when it occurred or what
happened.
Ronald Juneman testified that he, Moore, and Helvey
jointly made the decision to terminate Grimes during the
period of his suspension "We investigated . to deter-
mine all the facts regarding James Grimes' service
record at that point and time . in an effort to deter-
mine whether or not he had been notified on previous
occasions about various violations of company policy.
We had to find out how we handled other individuals in
like situations. . And based on gathering all our infor-
mation . . we made the determination to terminate"
According to Juneman, who denied that Grimes' posi-
tion as shop steward was a factor in his decision, the
entire contents" of Grimes' personnel file, including
35 With regard to the cellophane incident, Grimes admitted its occur-
rence but asserted that a hotel steward brought the cellophane-wrapped
dishes into the room and that the cellophane should have been removed
in the kitchen As a result, Grimes received from Moore a reminder
notice that he was not to serve food in such a manner again Grimes as-
serted that Moore was also disciplined for the incident Moore denied
this, saying her involvement concerned correcting his conduct
36 There is no dispute that 2 days before the decertification election,
on September 9, William Speidel held a series of meetings with employ-
ees during which he made a show of ripping up documents which were
to be expunged from employees' files In this regard, Grimes quoted Spei--
del as saying "that all reprimands in your file, regardless which way
the voting went he would discontinue And he took one up and tore
it up" Thelma Glover, who was the other shop steward and who also
attended such a meeting, testified that Speidel discussed documents in the
personnel files, "and he said that anybody had a clean record as of now,
and he had a piece of paper in his hand and he Just ripped it loose" Ap-
proximately 2 weeks later, in a letter to all employees dated September
25, Speldel wrote the following "Have you checked your personnel file"
Many employees have and were pleased to learn that WE KEEP OUR
PROMISES All of those old communications were removed Let's make
sure we keep our files clean" Two questions arise from the foregoing—
to what documents did Speldel refer on September 9 and in the Septem-
ber 25 letter and should all disciplinary notices have been removed from
Grimes' personnel file prior to October 1981 As to the first question,
Speidel testified that during the week of September 9, he Instructed Lisa
Helvey to remove all existing employee communication notices from em-
ployees' files, that all these documents were placed in a box, and that in
his speeches to employees it was to these that he referred "I announced
to the employees at each of those meetings [that] we were going to tear
up, destroy the communications notices I took the forms and ripped
a few of them up and we ultimately destroyed them all" Speidel further
testified that he did not direct that anything else be removed from em-
ployees files and that G C Exh 10 is the type of document which was
removed Corroborating Speidel, Helvey testified that in the first week of
September 1981 she was instructed to remove all "communications to
employees" from the personnel files She did so, removing all pink,
yellow, or white copies of such With regard to the effective date of the
removal of these notices, Speidel gave it as September 11, all communica-
tions after this date would remain in the files Finall y, as to the Septem-
ber 25 letter, Speidel says it was sent "to confirm t..at we live by our
promises
Regarding the pre-September II, 1981 disciplinary documents in James
Grimes' personnel file, Speidel testified that neither R Exh 6 (the March
memo from Juneman to Grimes warning him about conducting union
business during work hours) or R Exh 10 (the memo from Moore to
Grimes concerning the cellophane-wrapped food) should have been ex-
punged from Grimes' file as neither is on a "communication to employ-
ees" type form However, Speidel conceded that the latter's content is
such that it should have been removed
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
communication notices, were considered in arriving at
the aforementioned decision. Among the documents ex-
amined, as to Grimes' past behavior, were the March
memorandum from Juneman (R. Exh. 6) concerning the
unauthorized conduct of union business," the July
memo concerning the cellophane-wrapped food, and the
August 1-week suspension letter over the sous chef inci-
dent. Helvey, whom Juneman identified as participating
in the discharge decision, said nothing about this during
her testimony.
4. The Thelma Glover letter
The record establishes that Thelma Glover works for
Respondent as a "linen runner," is supervised by George
Mills, and, as stated above, is a union steward for the
Charging Party. She testified that on December 15, 1981,
employee Jim Barber approached her and said that he
was sick, that he had seen a doctor, and that he was re-
quired to go to a hospital. Glover produced a hospital
card and showed it to Barber, saying that most of the
older employees had them. Barber said that he did not
have one, and Glover told him to go to the personnel
office and inquire about the card during his break period.
Later, Barber informed Glover that he had gone to the
personnel office and had spoken to Ronald Juneman,
who told Barber that Respondent had nothing to do with
insurance matters and said that Barber should not ask the
hotel about such problems. Shortly after this second con-
versation with Barber, Glover's supervisor Mills told her
to report to Juneman's office at approximately 2:15 p.m.,
Glover did so. ". . . Mr. Juneman . says, 'Thelma, I
don't want you telling anybody else about this insurance
because it's no good and you know it.' And so I say,
'Well, Mr. Juneman, I can't say it about the insurance be-
cause I went in the hospital . . and was in there for six
days. . . . It paid my hospital bill' And he said, 'Well,
we got a better insurance to offer, the insurance is no
good." At this point, according to Glover, Juneman
raised the subject of employee Katherine Relms and said
the employees' health insurance did not cover her entire
hospital bill, and she had trouble paying the difference.
Glover responded that she had nothing to do with it and
that the insurance company paid her bills Juneman
raised the matter of the hospitalization cards and said
Respondent did not "give them anymore." He continued,
saying he would write her up over the matter of the
cards. Glover replied, "Well, I been doing it, I've been
coming down her seeing if you all had the little hospital
card." A day or two later, Glover received in the mail a
copy of a letter, dated December 16, from Juneman to
Clarence Owens, the Charging Party's secretary-treasur-
er. This letter concerns a meeting the previous day be-
tween Glover and Juneman during which, according to
Juneman, they initially discussed a problem with an
unpaid doctor's bill owed by Glover since December 17,
1980. The letter continues:
In addition we informed Ms. Glover that we, the
personnel office, is [sic] victim to the Union's faulty
" Juneman considered it highly significant as it Involved Grimes' con-
duct as union steward
insurance handling practices. Further, Ms. Glover
was under the impression that we are suppose [sic]
to pass out hospitalization cards and other union
materials.
We do not have such cards and therefore we are
not responsible for handling your administrative de-
ficiencies
Lastly, we informed Ms. Glover in our meeting
that she is misinforming our employees as to what
the union benefits (or lack of) are.
We respectfully request that the union, through
its officers, officials, and agents stop misinforming
our staff in the Health and Welfare benefits. Please
meet with Thelma to inform her as to what your
benefits include
Future information distribution by Thelma
Glover either verbally or in writing which misrep-
resents our hotel or operating practices will be con-
sidered misconduct. Misconduct of this nature will
be subject to our standard disciplinary proce-
dures. 3 8
Glover testified during cross-examination that she
received no disciplinary notices concerning this
matter.
Director of Personnel Juneman testified that in De-
cember 1981 he learned from his assistant that Glover
was encountering difficulties in processing health claims
through the Charging Party's insurance carrier. Accord-
ing to Juneman, he spoke to Glover and informed her
that Respondent handled only the preliminary paper-
work and that, if the problems continued, she should
have representatives of the Charging Party speak to its
insurance agents Thereafter, Glover appeared back in
Juneman's office with similar questions, and, after speak-
ing to her, Juneman wrote a letter (G.C. Exh. 13) to
Clarence Owens, advising him to speak to Glover on the
matter. He further testified that no discipline was given
to Glover, and nothing was placed in her personnel
folder.
5 The discharge of Edna Hayes
The record reveals that Edna Hays had been em-
ployed by Respondent as a maid for 32 years until her
discharge on June 8, 1982. She worked in the housekeep-
ing department wherein Kay Sullivan is the executive
housekeeper, Lena Grimes, the wife of alleged discrimin-
atee James Grimes, is the assistant to Sullivan, and John
Monroe is the head houseman. 39 Hayes, who admitted
that she was not an active supporter of the Charging
Party during the 1981 election campaign, testified that
she reported for work at 8-30 a.m. on Friday, June 4,
that she commenced working on her assigned rooms on
the 1 1 th floor, and that at approximately 9:15 she went
28 Juneman continued, writing that Glover's statements were violative
of, among others, Rule 11 of Respondent's "Standards And Conduct"
Said rule proscribes "Making or publishing false, vicious, or malicious
statements concerning any employee, supervisor, the Company, the Hotel
or any other service establishment or individual directly or indirectly re-
lated to the conduct of Company or Hotel business"
" It was admitted that Grimes, Morrow, and Sullivan are supervisors
within the meaning of the Act
RADISSON MUEHLEBACH HOTEL 1473
down to the "linen room," a combination office and
supply area for the housekeeping staff, wherein she en-
countered Grimes and Morrow. The former was sitting
on a desk near the edge and Morrow was seated behind
it, and they were in the midst of a conversation Grimes
was relating to Morrow how the Charging Party had
mistreated her husband, saying that she advised him to
stay away from it as "they didn't do nothing for you
when you needed help." Morrow said that he agreed
with everything Grimes said. Closing the room door
behind her, Hayes walked over to the desk and interrupt-
ed the conversation, asking Grimes why she would talk
like that. After Grimes repeated that the Charging Party
was no good, Hayes asked if Grimes had seen "the arti-
cle" in the previous night's newspaper regarding rela-
tions between Respondent and the Charging Party
Grimes responded, "What articles?" and Hayes an-
nounced that Clarence Owens ("Squeaky" to Hayes) and
another had been fired and that "a statement was there
where they said they had not received tax money or the
money for the taxes since February." Both Morrow and
Grimes professed disbelief; Hayes said the story was in
the newspaper and on television, gathered her supplies,
and returned to work.4°
Hayes reported back to the linen room after lunch and
discovered that the newspaper article to which she had
referred "was plastered up beside the trmeclock. . It
wasn't the original. It was a certified copy but it was out
there." Morrow approached and asked Hayes to go into
Sullivan's office. Hayes knocked on the door and en-
tered. Sullivan said, "Why, Edna, I am just surprised at
you. I am just shocked. I am just shocked." Hayes asked
what was wrong, and Sullivan replied, "It was brought
to me by four different people that you put it out on the
hotel that we hadn't paid the union money." Hayes an-
nounced surprise, asked Sullivan to identify the four indi-
viduals, and said she should not speak for unidentified
witnesses. Sullivan replied that she was "furious" at
Hayes, that Speidel was "just spitting fire," and that Jun-
eman -was "so upset." Thereupon, Sullivan said that
Hayes was suspended and should report to Juneman on
the following Tuesday, her next scheduled day. Moments
later, Grimes entered with a suspension notice for Hayes
The document stated "today you were making comments
to numerous employees that the hotel had not paid dues
or other money to the union since January This is not
true information" and alleged that such conduct was vio-
lative of, among others, Respondent's aforementioned
employee conduct rule 11.
Lena Grimes testified that at 7:45 that morning she
and John Morrow were working on the maids' schedules
in the linen room when Hayes entered and asked if either
had seen the morning paper. Both said no, "and she said
they had an article that read in there, stating the hotel
had not sent the union any money since February 5th I
said I don't believe that. So she went around and got her
40 According to Hayes, at approximately ii 35 that morning, her floor
supervisor, Lilly Ramey, passed by the room in which she was working,
and said, "Hey, baby What is all this about the union I'm hearing?"
Hayes replied, asking if Ramey read the newspaper the previous night
Ramey said no, and Hayes told her to purchase a copy and read it her-
self
supplies and I started talking to her about a conversation
that had happened at home over the telephone between
my husband and the guy they work over to Local 64"
Thereupon, Hayes left the room. 41 According to
Grimes, she assumed, 42 without any proof, that other
maids had overheard what Hayes reported inasmuch as
maids normally congregate outside the linen room and as
Hayes speaks in a loud voice. Thereafter, Grimes report-
ed the incident to Sullivan and, approximately an hour
and a half later, Grimes further testified, maid Elizabeth
Santos entered Sullivan's office and said she wanted her
union dues returned Neither Grimes nor Sullivan re-
plied, and Santos departed. Almost immediately, Sullivan
telephoned Juneman who instructed Sullivan to prepare
a communication to employee notice for Hayes because
the latter seemed to be repeating the same story to other
employees and had gotten Santos disturbed enough to
demand the return of her dues money
On Tuesday, June 8, 1982, Hayes reported to Ronald
Juneman's office as directed and was informed by Lisa
Helvey that because she had acted in violation of Re-
spondent's rules she was terminated Other than to Lena
Grimes and John Morrow, Hayes denied discussing the
contents of the newspaper article with any hotel employ-
ee on June 4 Finally, no evidence was offered as to
whether Hayes' report of the contents of the newspaper
article was false.
6 The refusal-to-arbitrate grievances
The record reveals that the existing collective-bargain-
ing agreement between Respondent and the Charging
Party contains a provision, article XXVII, entitled "Defi-
nition of Employees" Within this article, paragraph 28.4
states, "An extra employee is an individual who works at
an Employer Hotel from time to time, who is not an em-
ployee of any particular hotel and who is not a full-time
employee, part-time employee or a banquet extra em-
ployee" The agreement gives as examples of such indi-
viduals. extra bartenders, extra housemen, and cash bar
cashiers. The record further reveals that, with regard to
extra banquet personnel, paragraph 10 of Exhibit A to
the collective-bargaining agreement provides that none
shall be employed except as provided by the Charging
Party—unless the latter is unable to furnish a sufficient
number. The paragraph also provides that the Charging
Party must submit the names of prospective banquet em-
ployees to employers regardless of their union member-
ship or lack thereof; that the employer may accept or
reject such applicants; and that the Charging Party must
give 24 hours' notice to the employer of the names of
said individuals if the employer's request is made 48
hours in advance There is no dispute herein that Re-
spondent utilized, at all times material herein, extra ban-
quet waitresses in order to supplement its regular em-
ployees at the numerous functions held at the hotel
The collective-bargaining agreement also contains a
grievance and arbitration provision, article V As set
41 During cross-examination, Grimes admitted that the door was
closed, that Hayes merely reported what was written in the newspaper
article and was not giving her own opinion
42 "If she told me, she had told someone else"
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth therein, the grievance procedure consists of succes-
sive steps, the last being arbitration if grievances cannot
be "satisfactorily" settled earlier The article further pro-
vides that either party can request arbitration merely by
giving the other notice of same within predetermined
time restrictions. During the time period, November 12,
1981, through May 24, 1982, six individuals (Maurine
Donnelly, Marguerite C Stimac, Clara Walker, Tony
Poke, Evelyn Anderson, and Rachael Dominguez), who
work as extra banquet waitresses, filed individual griev-
ances against Respondent, the underlying reasons and
merits of which are not pertinent to this decision. Each
grievance was filed on the Charging Party's standard
grievance form and, in all respects, seems 43 to have
complied with the contractual requirements. Moreover,
it appears that Respondent processed each grievance
through the various steps of the grievance procedure up
to, but not including, arbitration. With regard to this last
stage, the record establishes that the Charging Party's at-
torney requested arbitration of each grievance; that he
notified Respondent of such; that the attorney sent letters
to counsel for Respondent, requesting that he join taking
steps to "strike" the arbitration panels and stating that, if
the counsel did not respond, he (the Charging Party's at-
torney) would assume that Respondent would refuse to
arbitrate; and that Respondent's counsel did not respond
The foregoing was uncontroverted.
B. Analysis
1. The Beatrice Edwards reprimand
The consolidated complaint alleges that the reprimand,
in the form of a communication to employee notice,
given to Beatrice Edwards by the acting manager of the
Greenery restaurant, Reggie Williams, on September 25,
1981, was violative of Section 8(a)(1) and (3) of the Act.
In support, counsel for the General Counsel argues that
such was "nothing but a pretext to cover . Respond-
ent's harassment of a known Union supporter." On the
other hand, counsel for Respondent contends that the
discipline was justified inasmuch as Edwards had violat-
ed restaurant policy by, on at least four occasions, serv-
ing customers at a table in Beulah Bass' service area and,
thereby, depriving her of an opportunity to wait on said
table
At the outset, I note that Edwards had been an overt
and known supporter of the Charging Party during the
decertification election campaign, which had culminated
in the NLRB-conducted election 2 weeks earlier; that
the individuals who were seated at the table in Bass' sta-
tion were union officials; that Bass was the employee
who filed the decertification election petition and was
aware of the identities of the two aforementioned indi-
viduals; that Bass admittedly refused to take their break-
fast orders; that the two union officials waited in excess
of 20 minutes for Bass to finally bring their meals; and
that while it was contrary to established policy for a
waitress to wait upon tables in another's station, it was a
43 Respondent's attorney argues in his posthearing brief that these
grievances were not in compliance with art V but is not specific as to
how I can find no facts to substantiate noncompliance
common practice, as Bass admitted, for a passing wait-
ress to pour coffee or cream or water for a customer in
another waitress' area. While there is no dispute that Ed-
wards did wait upon the union officials that morning,
Edwards and Harold Hamilton, both of whom testified
candidly and forthrightly and are credited herein, insist-
ed that the former did so only to the extent of pouring
coffee on one occasion and cream on another In con-
trast, Bass testified that she observed Edwards at the
union officials' table at least four times; however, I found
her account replete with inconsistencies and therefore
not credible. In particular, I note that while initially as-
serting she took the officials their coffee, water, and
menus, Bass later testified that when she first noticed
them, they already had coffee, water, silverware, and
menus in front of them and that after initially asserting
that Edwards was at the union officials' table four or five
times before she served them, Bass later testified that Ed-
wards was at that table four or five times after she
served the food
While it seems obvious that Bass did, indeed, register
with Williams, a complaint, regarding Edwards' conduct,
I believe it likely that, based on the foregoing, such was
greatly embellished to imbue the occurrence with more
significance than it deserved. That Acting Manager Wil-
liams recognized the inherent triviality of the conduct is
clear from the fact that he sought to justify the resulting
discipline with what appears to be an entirely spurious
allegation—that Edwards was "insubordinate" to him.
Not a scintilla of evidence exists in the record in support
thereof, and Respondent offered no explanation for the
failure to utilize Williams as a witness in order to explain
the basis for this allegation. In sum, the extent of what-
ever insubordination Edwards may have engaged—and I
am not prepared, and do not, find that she engaged in
any—appears to have been grossly and unjustifiably ex-
aggerated to the point that such seems to be utterly pre-
textual Thus, I believe Respondent, through Williams,
acted to punish a known supporter of the Charging
Party for said support and, perhaps, to protect Beulah
Bass, an individual who was an antagonist of the Charg-
ing Party—in violation of Section 8(a)(1) and (3) of the
Act.
2 James Grimes
The consolidated complaint alleges that both the repri-
mand, in the form of a communication to employee
notice, given to Grimes on September 15, and his subse-
quent suspension and ultimate discharge on October 9,
1981, were violative of Section 8(a)(1) and (3) of the
Act. In support, counsel for the General Counsel asserts
that these actions were in retaliation for Grimes' activi-
ties as a union steward 44 and for his support for the
44 It is well established that an employer violates Sec 8(a)(1) and (3)
of the Act when he disciplines employees solely because of their status as
shop stewards (Precision Castings Ca, 233 NLRB 183, 184 (1977), United
Aircraft Corp. 188 NLRB 633 (1971)), or as a result of their conduct as
union stewards in processing grievances, policing collective-bargaining
agreements, or engaging in other such activities (NLRB v Clayton Con-
struction Corp, 652 F 2d 6 (8th Cu' 1981), Boston Mutual Life Ins Co.
259 NLRB 1270 (1982), Postal Service, 252 NLRB 624 (1980), General
Continued
RADISSON MUEHLEBACH HOTEL 1475
Charging Party. Also, it is alleged that the interview
which was conducted with Grimes by Juneman and
Moore subsequent to the October 4, 1981 incident with
William French was contrary to the rules set forth in
NLRB v. J. Weingarten, 420 U.S. 251 (1975), and, there-
by, violative of Section 8(a)(1) of the Act With regard
to his discharge, counsel for Respondent argues that
Grimes had a long history of misconduct; therefore, his
discharge was warranted and not motivated by unlawful
concerns
Initially, I note that resolution of the foregoing issues
depends, to a great extent, upon a determination of the
credibility of the various witnesses, most particularly
Grimes, Moore, and Juneman While finding that none of
the three testified entirely candidly concerning the in-
stant matters, I was least impressed with the demeanor
and memory of Mary Moore. I found her recollection of
the events of September and Oci ober 1981 to be clearly
deficient and believe that, based on the aforementioned
contradictions, both internally with other points in her
testimony and externally with the testimony of other wit-
nesses, she attempted to fill the gaps in her memory with
fabrications. I credit Moore not at all herein James
Grimes also impressed me as being an inherently incredi-
ble witness and believe that, in most areas, he testified in
a manner calculated to support his allegations. Except
when in conflict with Mary Moore or where uncontro-
verted, I do not rely on Grimes' testimony. Evaluation
of his testimony convinces me that Ronald Juneman en-
gaged in the odious practice, which seemed to be endem-
ic to several of Respondent's witnesses, of embellishing
significant aspects of his testimony in order to bolster
Respondent's case. Nevertheless, while testifying, he im-
pressed me as being more candid than either Moore or
Grimes. Accordingly, while I recognize the obvious
problems with, and deficiencies in, his testimony, and do
not rely on what I consider to be greatly exaggerated
portions, Juneman will be credited herein
The critical issue, of course, in determining the legality
of the disciplinary actions taken against Grimes is wheth-
er the September 15 reprimand and the suspension and
subsequent termination were motivated by his support
for the Charging Party and by his activities as union
steward. In cases such as herein, where motivation is the
determining factor, the Board requires "that the General
Counsel make a prima facie showing sufficient to support
the inference that protected activity was a 'motivating
factor' . [then] the burden will shift to the employer
to demonstrate that the same action would have taken
Motors Corp, 233 NLRB 47 (1977)) However, a union steward may
remove himself from the protection of the Act if his conduct as steward
exceeds acceptable bounds of conduct such as forming a strike in viola-
tion of a contractual no-strike clause (J P Wetherby Construction Corp,
182 NLRB 690 (1970)), instructing employees not to follow work orders
(Stop & Shop, Inc , 161 NLRB 75 (1966)), refusing to follow instructions
and influencing other employees to so ad i (Riviera Mfg Co • 167 NLRB
772 (1967)), and deliberately violating established grievance-handling pro-
cedures (Rickel Home Centers, 262 NLRB 731 (1982)) Further, as any
employee in a collective-bargaining or labor relations context, stewards
may lose the protection of the Act if they engage in clearly opprobrious,
disruptive behavior Container Corp 255 NLRB 1404 (1981), Chrysler
Corp, 249 NLRB 1102 (1980), Consohdated Freightways Corp 242 NLRB
770 (1979)
place even in the absence of the protected conduct."
Wright Line, 251 NLRB 1083, 1089 (1980). 45 As to
whether there exists evidence in the record of unlawful
motivation, I initially note that the restriction prohibiting
Grimes from being in the area of the Greenery kitchen
was given to him in August 1981—in the midst of the de-
certification election campaign. In this regard, Grimes
consistently denied speaking to employees about union
business while passing through that area; Juneman, who
issued the restriction, failed to offer any explanation for
it during his testimony; and Mary Moore's assertion that
one reason for the restriction was Grimes' harassment of
Beulah Bass was not corroborated by the latter (Bass, in
fact, said that Grimes rarely spoke to her and that such
was one reason Grimes' September 15 "greeting" so
upset her). These factors certainly support the inference
that the area restriction was related to Grimes' status as a
union steward and intended to somehow keep him away
from, or at least inhibit his ability to meet, the Greenery
employees during the decertification election cam-
paign." As further support for the existence of required
unlawful motivation is the fact that Juneman failed to
controvert Grimes' testimony regarding a meeting be-
tween the two in a hotel hallway also in early August
during which Juneman accused the union steward of
"running the place." The fact that Juneman smiled while
he spoke does not detract from the impact of his
words. 4 7
Bearing in mind the foregoing, I turn to a consider-
ation of whether the reprimand given to Grimes over his
"greeting" to Beulah Bass on September 15 was violative
of Section 8(a)(1) and (3) of the Act What immediately
strikes me with regard to this discipline is its similarity,
in terms of cause and reaction, to that given Beatrice Ed-
wards 10 days later Thus, as with Edwards' conduct in
serving the two union officials coffee and cream, Grimes'
"Good morning, Beulah baby" comment appears to have
been of a trivial nature and, notwithstanding his undoubt-
edly caustic tone of voice, not particularly menacing or
abusive. That Respondent seems to have embellished the
necessity for its reaction to Grimes' conduct is clear
from Douglas Brown's characterization of Bass after the
incident—incoherent to the point of tears. Bass herself
did not corroborate this, describing herself merely as
upset. Further illustrative of Respondent's effort to exag-
gerate the seriousness of Grimes' action is the rationale
for the discipline, alleging him to have been in an unau-
46 In concluding that a prima facie violation of the Act has been estab-
lished, the Board will not "quantitatively analyze" the effect of the un-
lawful motive The existence of such is sufficient to make a discharge a
violation of the Act Wright Line, supra at 1089, fn 14
46 As such, of course, it failed, for Grimes did have access to the
Greenery employees during nonwork hours
47 Counsel for the General Counsel contends that Gordon Bell's al-
leged comments to Grimes dunng their short conversation in Moore's
office-2 days before the decertification election—likewise exhibited Re-
spondent's animus towards Grimes However, between the two, I credit
Bell as to this conversation and find no evidence of animus Bell's de-
meanor was that of a truthful witness, and I find it odd that apparently
the only reported instance of such alleged remarks would be to a union
steward, who would certainly be a union supporter and who would be
more knowledgeable about employer-employee relations than the average
employee
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thorized area that morning. Assuming arguendo the va-
lidity of the restriction, I do not believe Grimes was not
supposed to be in the Greenery area at that time. Thus,
crediting Grimes over Mary Moore as I have, I believe
he had been instructed to work a buffet breakfast in the
La Carrousel restaurant by the catering captain and it
was not until after the incident, when Moore arrived at
work, that Grimes was ordered away from the area In
short, I conclude that Respondent justified the communi-
cation to employee notice with a blatant fabrication and
that the other asserted reason for the discipline (sexual
harassment) 48 was merely a pretext to disguise Respond-
ent's real motivation—Grimes' union activities as stew-
ard The reprimand was, therefore, violative of Section
8(a)(1) and (3) of the Act.
With regard to the suspension and eventual discharge
of Grimes on October 9, it is initially necessary to exam-
ine the precipitating cause—the William French incident
on Sunday evening, October 4 Initially, counsel for the
General Counsel does not dispute the fact that French
did, in fact, complain to Ronald Juneman the next day
about what had occurred the previous evening. Close
scrutiny of the record 49 convinces me that not only did
French truthfully testify as to his version of the incident
but also he truthfully reported the event to Juneman.
Thus, if one were to credit Grimes' account of his meet-
ing with French, there simply would have been no
reason for the latter to have complained to Juneman.
Moreover, he would have admitted a violation of a
strictly enforced work rule prohibiting the eating of ban-
quet food by employees. Further, I did not believe
Grimes' statement, disclaiming knowledge of French's
union sympathies. To the contrary, illustrated by his sar-
casm to the antiunion Beulah Bass, Grimes, I believe,
was undoubtedly quite capable of intimidating another
union foe, French, in the manner alleged. However,
while I find, as French testified, that at approximately 8
p m. on October 4 Grimes beckoned to French to speak
to him in the public hallway near the swinging doors on
the Trianon level and that Grimes, after inquiring if
French was one of those against the Union, said he
would place said information "in the union report" and
that French accurately reported the facts to Juneman,
the record justifies the inference, as with the previously
discussed reprimands to Edwards and Grimes over the
Beulah Bass incidents, that Respondent embellished the
facts in order to inflate the seriousness of alleged miscon-
48 / accept as accurate the seriousness of Respondent's policy prohibit-
ing the sexual harassment of employees and do not mean to disparage it
herein However, I agree with counsel for the General Counsel that the
surrounding circumstances support the conclusion that such was a pretext
for the disciplining of Grimes, an act which was occasioned by Bass' con-
venient complaint about Grimes' rather innocuous comment to her In
this regard, it appears that his comment was not unlike that common in a
restaurant environment and that previous incidents of punishment for
sexual harassment were for far more serious conduct, such as proposition-
ing a female employee
Finally, that Respondent was not above harassing the Charging Party's
stewards is further demonstrated by its conduct toward Thelma Glover,
as described infra
48 I have previously discussed the lack of credibility exhibited by
Grimes during his testimony Likewise, French was not a particularly im-
pressive witness, exhibiting inconsistencies and contradicting other wit-
nesses
duct toward an antiunion employee. Thus, while French
testified that he reported the incident to Juneman merely
because "I figured he would need to know what hap-
pened" the latter characterized French as being "honest-
ly visibly shaken. He was scared He feared for his phys-
ical well-being" and asserted that such was an important
consideration in his decision to discipline Grimes Fur-
ther, Respondent's account of the facts in the suspension
notice (G C. Exh. 18), implies that Grimes accosted
French clearly in a public area (on an escalator) and co-
erced and intimidated him during their conversation In
light of the foregoing, and of the evidence of unlawful
animus in the record, counsel for the General Counsel
contends that the suspension and discharge of Grimes for
the French incident was pretextual and that the real
reason was his status as union steward. I believe that a
prima facie case has been established in this regard.
The burden of proof, thus, shifted to Respondent to
demonstrate that it would have reached the same deci-
sion and taken the identical actions notwithstanding
Grimes' activities and status as a union steward In estab-
lishing its defense, Respondent relies on the testimony of
Moore and Juneman As discussed above, I place no reli-
ance on that of the former, however, I do rely on and
credit the testimony of Juneman concerning the reasons
for the discharge of Grimes as, I believe, such is cor-
roborated by the record as a whole. I do so cognizant of
the fact that, while testifying and in documents, Juneman
utterly exaggerated the seriousness of the French inci-
dent. Two factors are crucial to my conclusion. Initially,
notwithstanding Respondent's embellishment, it does
appear that Grimes, in fact, did engage in misconduct on
the evening of October 4. Thus, Grimes violated a work
rule by, without permission, speaking to French about
ostensible union business during worktime in a public
area. While counsel for the General Counsel argues that
article XIV of the parties' collective-bargaining agree-
ment applies only to outside business agents, Grimes ad-
mitted that he understood said rule or an identical rule
applied to his conduct as a union steward. Further, while
one may dispute the level of coercion, certainly the only
logical purpose behind Grimes' conduct was to intimi-
date a fellow employee who had not supported the
Charging Party during the recently concluded decertifi-
cation election campaign. Next, Grimes' previous record
of misconduct, which record, Juneman testified, was cru-
cial to the decision to terminate the union steward, sup-
ports Juneman's credibility In particular, I note the
March 13 "reminder" to Grimes and his August 10 1-
week suspension letter. As to the former, it was issued to
Grimes as a result of complaints from employees regard-
ing his penchant for discussing union business while on
duty. Grimes admitted the factual basis for the document
and his receipt of it As to the latter, what is significant
is Respondent's admonition that another violation of Re-
spondent's employee rules and regulations would result
in immediate termination. Further, there is no record evi-
dence that either disciplinary action was unlawfully mo-
tivated or that Respondent's reliance on them was in bad
RADISSON MUEHLEBACH HOTEL 1477
faith. 5 ° In these circumstances, given the similarity be-
tween the French incident and the March and August
1981 conduct, it would appear that Respondent has es-
tablished that Grimes would have been terminated not-
withstanding Respondent's demonstrated unlawful
animus.5'
Taking the position that disciplining a steward for
speaking to other employees concerning their union sym-
pathies chills communications between stewards and em-
ployees and discourages employees from becoming stew-
ards, counsel for the General Counsel asserts that "while
an employer who has problems resulting from a stew-
ard's conversation with other employees may discuss this
matter with the steward or the Union, the Employer
may not lawfully suspend or discharge the steward for
this reason " No case support is cited foi this assertion of
steward immunity and to suggest that a steward, who
violates an employer's rules and regulations, may not be
disciplined by suspension and/or termination is a missta-
tement of Board law. Thus, in Rickel Home Centers, 262
NLRB 731, a steward, in attempting to resolve a work
problem, engaged in conduct violative of a collective-
bargaining agreement and the employer's work rules.
Concluding that the steward's discharge was for "legiti-
mate cause" and not motivated by his status or other
union animus, the Board noted that the steward was in-
subordinate and violated established procedures and
stated such conduct was "unpi otected by the Act and
for which his status as union steward provided no immu-
nity." Id. Likewise, in Jos. Schlitz Brewing Co, 240
NLRB 710 (1978), a steward engaged in insubordinate
conduct—refusing to work scheduled hours. The Board
concluded that "[MB status as shop steward should not
furnish the basis for immunity from his acts of insubordi-
nation" Id. at 713 Herein, Grimes, who 2 months earlier
had been warned that another act of insubordination
would result in his discharge, violated both contractual
and employee work rules when he spoke to William
French on October 4, 1981. His status as union steward
can offer no immunity for this misconduct. Finally, it
makes no difference that Junemian may have been desir-
ous of being rid "of a thorn in his side" For, "if an em-
ployee provides an employer with a sufficient cause for
his dismissal by engaging in conduct for which he would
have been terminated in any event, and the employer ter-
minates him for that reason, the circumstances that the
employer welcomed the opportunity to discharge does
not make it discriminatory and therefore unlawful."
Klate Holt Co., 161 NLRB 1606, 1612 (1966) Based on
the foregoing, I shall recommend that the consolidated
complaint paragraphs pertaining to the discharge of
James Grimes be dismissed. Rickel Home Centers, supra.
It is next alleged that the October 6 interview of
James Grimes by Juneman and Moore was conducted in
5 ° Counsel for the General Counsel does not contend that either
should have been expunged subsequent to September 9, 1981, and I do
not so find, bearing in mind that neither was the subject of a communica-
tion to employee notice
5 ' In this regard, I agree with Respondent's counsel that, given the
fact that his wife was a managerial employee, It is highly unlikely that
Respondent would have unlawfully terminated Grimes, thereby risking
the potential loss of his wife
violation of the Supreme Court's Weingarten decision. As
to this, Grimes testified that immediately upon entering
Juneman's office that day, he was given a copy of his
suspension letter and that, after reading it, he requested
the presence of the Charging Party's official Edward
Miller According to Grimes, Juneman denied the re-
quest because Grimes was a union steward. Grimes fur-
ther testified that he was then asked for, and he related,
his version of the meeting with French, never admitting
the latter's version. Contrary to Grimes, Moore asserted
that Juneman inquired as to whether Grimes desired the
presence of a representative and the latter refused, saying
he was a steward; that Grimes admitted that French's
version of the Sunday night incident was correct; and
that the suspension notice was given to Grimes on an-
other occasion, after she and Juneman decided upon the
discipline. During his testimony, Juneman said nothing
about whether Grimes requested or he offered the pres-
ence of a union representative but did corroborate
Moore that, while seeking to assuage the potential disci-
pline, Grimes essentially corroborated French's version
of the incident and that, afterward, he and Moore dis-
cussed the situation and decided to suspend Grimes,
giving him, at that point, the suspension letter With
regard to the presence of a union representative, I credit
the testimony of Grimes that he requested that Edward
Miller be present during the interview but that Juneman
denied the request. In this regard, while Moore testified
that it was Juneman who made the offer of union repre-
sentation to Grimes and that Grimes refused it, Juneman
failed to corroborate the assertion. Essentially then, only
a credibility resolution between Moore and Grimes re-
mains and, as set forth above, I credit the latter in such
instances. Further, while the suspension letter may have
been drafted prior to the interview with Grimes (I credit
him on this point), I credit the admissions of both Moore
and Juneman that the final decision to suspend him was
reached subsequent to his confirmation or corroboration
of the facts, as previously related by French.52
In Weingarten, supra, the Supreme Court affirmed the
determination of the Board that an employer violated
Section 8(a)(1) of the Act by denying an employee's re-
quest that her union representative be present during an
investigatory interview which, the employee reasonably
believed, might result in disciplinary action. The Court
noted that "the right arises only where the employee re-
quests representation" and that the "employee may forgo
his guaranteed right and, if he prefers and at his own in-
stigation, participate in an interview unaccompanied by
his union representative" Further, it makes no difference
whether the employee interview be labeled investigatory
or disciplinary. The Weingarten rules apply to both, save
only those conducted for the exclusive purpose of notify-
ing an employee of previously determined disciplinary
action. Baton Rouge Water Works, 246 NLRB 995, 997-
998 (1979). I have credited the testimony of Grimes that
he requested the presence of Union Representative
Miller upon reading of his suspension and that Juneman
52 I do not credit Grimes' denial that he admitted the conduct as al-
leged by French
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied his request and proceeded to interview Grimes as
to the French incident. Further, as the meeting was not
merely for the purpose of informing Grimes of his sus-
pension, 53 I find Respondent's conduct violative of Sec-
tion 8(a)(1) of the Act. Houston Coca-Cola Bottling Co,
265 NLRB 1488 (1982).
3. The Thelma Glover letter
The consolidated amended complaint alleges that the
letter from Juneman to Clarence Owens, dated Decem-
ber 16, 1981, wherein Juneman warned that future mis-
representation of Respondent's business practices by
Glover would be considered "misconduct," was in viola-
tion of Section 8(a)(1) of the Act. In support, counsel for
the General Counsel argues that even if Glover misrep-
resented Respondent's policies, the warning related di-
rectly to her performance as a steward, that such a
warning would "chill" communications between stew-
ards and employees; and that employees would be dis-
couraged from acting in such a capacity for fear mistakes
would adversely affect their status as employees. Finally,
while no actual discipline attached, the warning is al-
leged as coercive inasmuch as Respondent offered no le-
gitimate business purpose for issuing the warning. In de-
fense, Respondent essentially argues that as no actual dis-
cipline was given to Glover, there was no violation of
the Act.
I find merit in the position of counsel for the General
Counsel. Initially, the law is settled that a shop steward,
who, on behalf of fellow employees, makes assertions re-
garding matters pertaining to work, may not be lawfully
disciplined for such by an employer notwithstanding the
fact that said assertions are incorrect. NLRB v. Clayton
Construction Corp., supra. Moreover, the Board has long
held that an individual engages in protected concerted
activities when he, in good faith, complains pursuant to a
collective-bargaining agreement, notwithstanding that
the complaints are without merit or in error. Delta Elec-
tric, 236 NLRB 1108, 1112 (1978); United Parcel Service,
234 NLRB 483, 491 (1978). There is no record evidence
to suggest that Glover acted in anything but good faith
when she sent an employee to Juneman with regard to a
hospitalization card, an act clearly within her duties as a
union steward That she may have been in error is, of
course, no justification for Respondent's resulting con-
duct. Further, I find no merit in Respondent's defense
that no actual discipline attached. There is no doubt that
Juneman's statement in the December 16 letter would
have a chilling effect on stewards' activities at the hotel,
causing the spectre of discipline to haunt Glover should
she ever be mistaken in her advice to employees in the
future. No business justification for such was offered and,
indeed, I cannot perceive the existence of such. In these
circumstances, I must conclude that Juneman's threat of
discipline to Glover was in violation of Section 8(a)(1) of
the Act.
5 3 Moore vaguely alluded to such a possibility, I discount It as not
credible testimony
4. The discharge of Edna Hayes
The consolidated complaint alleges that Edna Hayes
was discharged by Respondent in violation of Section
8(a)(1) and (3) of the Act In support, counsel for the
General Counsel urges three separate theories. that
Hayes engaged in protected concerted activities when
she made her comments to Lena Grimes and John
Morrow behind the closed door of the linen room on the
morning of June 4, 1982, and that her resultant discharge
was violative of the Act; that by maintaining and enforc-
ing rule 11 of its employee rules, Respondent violated
Section 8(a)(1) of the Act, causing any discharge for vio-
lation thereof likewise to be violative of the Act; and
that if Respondent believed Hayes transmitted her com-
ments to other employees and fired her for that reason,
such is also violative of the Act Taking a contrary posi-
tion, counsel for Respondent asserts that Hayes engaged
in no protected concerted activities and that rule 11 is
not violative of the Act.
At the outset, the surrounding facts pertaining to
Hayes' termination are not in dispute. Thus, in the morn-
ing of October 4, Hayes entered the linen room; closed
the door; interrupted a conversation between Lena
Grimes and John Morrow, both of whom were criticiz-
ing the Charging Party; and, calling their attention to an
article in the previous afternoon newspaper, said that it
was written therein that the hotel had not remitted any
money to the Charging Party since February 5, 1982.
Both Grimes and Morrow expressed their disbelief at
Hayes' account of the newspaper article. There is no
record evidence that any employee overheard Hayes'
comments or that she repeated them to any other em-
ployee Further, there is no evidence that she falsely or
mistakenly reported the contents of the story. Finally,
Hayes was suspended and subsequently terminated for
telling "numerous" employees that Respondent had
failed to remit dues moneys to the Charging Party—in
violation of Respondent's aforementioned rule 11, among
others.
I am convinced that, utilizing the asserted reason for
her discharge, Hayes was terminated in violation of Sec-
tion 8(a)(1) of the Act. As to the fact that Hayes alleged-
ly related the contents of the newspaper article to nu-
merous employees, if, as alleged, she engaged in such
conduct, Hayes engaged in union and protected concert-
ed activities within the meaning of Section 7 of the Act
Thus, as pointed out by counsel for the General Counsel
and the Charging Party's attorney, in Datapoint Corp.,
246 NLRB 234, 235 (1979), the Board held that a con-
versation may constitute protected concerted activity,
notwithstanding that only a speaker and a listener are in-
volved, when such relates to "matters of mutual concern
to the affected employees." Here, the alleged conversa-
tions clearly concerned employees' terms and conditions
of employment as portions of their wages were being
withheld by Respondent for the payment of dues to the
Charging Party The fact that the moneys may not have
been remitted to the Charging Party was obviously a
matter of vital and common concern. Further, there is no
record evidence that Hayes' report of the contents of the
newspaper report was false, and I am not prepared to
RADISSON MUEHLEBACH HOTEL 1479
find such. However, even if actually false, her alleged
comments about Respondent and the Charging Party
would nevertheless remain protected concerted activity.
American Cast Iron Pipe Co., 234 NLRB 1126, 1131
(1978). Finally, whether or not Hayes actually engaged
in the alleged conduct is an irrelevant consideration;
rather, the only pertinent inquiry concerns whether Re-
spondent believed that she did. Riverfront Restaurant, 235
NLRB 319, 320 (1978). In this regard, Sullivan's accusa-
tion that four unidentified employees said Hayes had
been repeating her comments concerning the article and
the contents of the suspension letter establish that Re-
spondent did, in fact, believe Hayes had so acted. Inas-
much as this is an admitted reason for the discharge, I
find the discharge to be violative of Section 8(a)(1) and
(3) of the Act.
With regard to whether Hayes' discharge for violating
rule 11 alone constitutes a violation of the Act, I must
initially determine whether said rule is itself per se viola-
tive of the Act. This rule proscribes the making of false,
vicious, or malicious statements regarding, among others,
Respondent or its business operations. In American Cast
Iron Pipe Co., supra, the Board had occasion to consider
the validity of virtually identical employer rules. There-
in, • two rules, respectively prohibiting the making of
"false, vicious or malicious verbal statements" and the
distribution of "false, vicious or malicious written state-
ments," were posted on the employee bulletin board.
Noting that merely false utterances and writings consti-
tute protected concerted activity, within the meaning of
Section 7 of the Act, so long as they are not malicious,
the Board concluded that each rule was per se violative
of Section 8(a)(1) of the Act as it prohibited and pun-
ished the merely false as opposed to the vicious and ma-
licious. Id. at 1131. I perceive no material difference be-
tween the two employee rules therein and rule 11 herein.
As the latter draws a clear distinction, by use of the dis-
junctive, between false and vicious and malicious state-
ments, I find it to be per se violative of Section 8(a)(1) of
the Act. 54 In analogous situations, such as when employ-
ees are terminated for violating an invalid no-solicitation
or no-distribution rule, the Board finds such discharges
to be violative of the Act. Newport News Shipbuilding
Co., 233 NLRB 1433, 1451 (1977); Keystone Resources,
230 NLRB 247 (1977). Inasmuch as Hayes was terminat-
ed for violating, among others, rule 11, I find such to be
violative of Section 8(a)(1) of the Act.55
54 Counsel for Respondent seeks to distinguish between the instant
case and the facts of American Cast Iron Pipe Co.; however, although
they may be factually distinguishable, the rules were found to be per se
unlawful. Accordingly, factual differences are irrelevant to consideration
of the facial validity of the rules.
55 Respondent contends that Lena Gnmes and Kay Sullivan consid-
ered Hayes' comments to be false, vicious, and malicious—quoting from
the suspension letter. In this regard, counsel asserts that use of the con-
junctive makes the rationale lawful as the Board considers false and mali-
cious communications to be outside the protection of Sec. 7 of the Act.
However, while it is true that the suspension leiter reads as stated above,
it is also true that reference was made to employee rule 11 and that the
above words were obviously meant to track the rule's prohibition. In
these circumstances, I believe the governing language is that of rule 11
itself and not what is set forth in the suspension letter. Accordingly, I
reject the argument of Respondent's counsel
5. The refusal to arbitrate
The consoldiated complaint alleges that by refusing to
arbitrate the grievances which were filed by the extra
banquet waitresses, Respondent violated Section 8(a)(1)
and (5) of the Act. Respondent offers several defenses to
this allegation: that no valid contract exists between the
parties; that inasmuch as the question of the certification
of the results of the decertification was pending before
the Board at the time, there was no duty to arbitrate; and
that the extra banquet employees are not employees of
Respondent and, therefore, Respondent was under no
duty to process their grievances.
There exists no factual dispute herein that the collec-
tive-bargaining agreement between Respondent and the
Charging Party is effective from June 16, 1978, until
June 16, 1983; that the contract contains a grievance and
arbitration provision and, at least, two paragraphs which
refer to individuals known as extra banquet personnel;
that Respondent utilizes extra banquet waiters and wait-
resses to augment its staff at banquet functions in the
hotel; that between November 12, 1981, and May 24,
1982, six extra banquet waitresses filed individual griev-
ances against Respondent; that Respondent processed
these up to, but not including, arbitration; that the
Charging Party's attorney sent letters to Respondent's
counsel, requesting that the latter comply with the griev-
ance and arbitration procedure by joining in striking ar-
bitration panels and stating that failure to respond would
be taken as a refusal to arbitrate; and that Respondent
failed to respond. In agreement with counsel for the
General Counsel and the Charging Party's attorney, I be-
lieve that Respondent's conduct indicates a refusal to ar-
bitrate these grievances. Further, the Board has held that
an employer acts in violation of Section 8(a)(1) and (5) of
the Act by refusing to comply with a contractual arbitra-
tion clause and by refusing to arbitrate grievances. Para-
mount Potato chip co., 252 NLRB 794, 797 (1980); Inde-
pendent Stave Co., 248 NLRB 219, 227-228 (1980).
With regard to the defenses raised by Respondent, al-
though not well articulated, its initial defense, that no
current collective-bargaining agreement exists, appears to
be based on the Board's contract-bar rule that "an exist-
ing collective bargaining agreement not exceeding three
years will bar a petition for redetermination of represen-
tation in most instances." NLRB v. Circle A & W Prod-
ucts Co., 647 F.2d 924, 926 (9th Cir. 1981); Vanity Fair
Mills, 256 NLRB 1104, 1105 (1981). However, nothing in
the rule invalidates collective-bargaining agreements
whose terms are for periods longer than 3 years in dura-
tion, and the Board has, in fact, found violations of Sec-
tion 8(a)(1) and (5) of the Act when employers make uni-
lateral changes in the terms of such contracts. Keystone
Consolidated Industries, 237 NLRB 763 (1978). Further,
the fact that midterm bargaining occurs does not invali-
date the provisions of an entire collective-bargaining
agreement for the remainder of its term. Thus, if impasse
results in said negotiations, the contract provisions
remain in effect, and an employer is not free to make
unilateral changes. Keystone Consolidated Industries, supra
at 767.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Next, Respondent argues that the filing of the decerti-
fication petition in June 1981 and the fact that the matter
of the certification of the results of the September 1981
decertification election was pending before the Board at
the time of the refusal to process the six grievances
through to arbitration relieve Respondent from its obli-
gation to bargain, including the arbitration of grievances,
with the Charging Party as the latter may no longer be
the majority representative of its employees. Thus, in
Telautograph Corp., 199 NLRB 892 (1972), the Board
ruled that whenever a decertification election petition
was filed, such permitted an employer to no longer bar-
gain with the incumbent union until the matter was set-
tled by the Board. While the Board overruled that deci-
sion in Dresser Industries, 264 NLRB 1088 (1982), it de-
clined to make its ruling retroactive to pending cases. Id.
at 1089. Houston Coca-Cola Bottling Co., 265 NLRB 766.
However, notwithstanding the aforementioned general
proposition of law, the Board, in Telautograph, supra,
specifically held that "the incumbent union may still con-
tinue to administer its contract and process grievances."
Thus, it appears, and I find, that, despite the pendency of
the unresolved decertification petition proceedings, the
Charging Party retained its right to administer the par-
ties' existing collective-bargaining agreement, including
enforcement of the arbitration provision, and Respondent
remained obligated to honor said agreement. 56 Finally,
as to Respondent's argument that the extra banquet wait-
resses are not its employees and, thus, may not file griev-
ances against it, I agree with the Charging Party's attor-
ney that said issue involves one of the proper interpreta-
tions of the contract and is best resolved before an arbi-
trator. In sum, I find no merit to Respondent's defenses
and conclude that by failing to process the grievances
herein to arbitration, it engaged in conduct violative of
Section 8(a)(1) and (5) of the Act
REMEDY
Having concluded that Respondent has violated the
Act by its acts and conduct described above, it is recom-
mended that Respondent be required to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the purposes of the Act.
With regard to the respective communication to em-
ployee reprimands given to Beatrice Edwards about Sep-
tember 25, 1981, and James Grimes about September 15,
1981, having concluded that Respondent violated Section
8(a)(1) and (3) of the Act by such conduct, I shall rec-
ommend that Respondent be ordered to expunge these
notices from the respective personnel files of Edwards
56 I note that in Houston Coca-Cola, supra, the respondent argued that
while a decertification petition was pending, an employer is free to make
unilateral changes in working conditions The Board sought to distin-
guish unilateral changes affecting a union's dealings with employees,
whom the union represents, from those relating to wages and benefits and
concluded that the former would be unlawful while a decertification peti-
tion remained pending, as the union remains the employees' bargaining
representative Id at 766 fn 2
The Board's holding is not particularly clear, and it may well be
argued that failures to adhere to arbitration procedures fall within the
former rather than the latter type of unilateral change Hence, while not
free from doubt, I do not believe Houston Coca-Cola, supra, is adverse to
my decision herein
and Grimes. Having concluded that rule 11 of Respond-
ent's "Standards and Conduct" is per se violative of Sec-
tion 8(a)(1) of the Act, I shall recommend that Respond-
ent be ordered to cease and desist from maintaining and
enforcing the rule. Having concluded that Respondent
violated Section 8(a)(1) and (5) of the Act by failing to
process through arbitration the grievances which were
filed by Maurine Donnelly, Marguerite C. Stimac, Clara
Waller, Tony Poke, Evelyn Anderson, and Rachael Do-
minguez, I shall recommend that Respondent be ordered
to bargain in good faith with the Charging Party by
complying with the terms of the arbitration provisions of
the existing collective-bargaining agreement. Having
concluded that Respondent terminated Edna Hayes in
violation of Section 8(a)(1) and (3) of the Act, I shall
recommend that Respondent be ordered to offer her re-
instatement to her former position or to a substantially
equivalent position if such no longer exists, without any
prejudice to her seniority or any other rights or privi-
leges previously enjoyed; to make her whole for any loss
of earnings she may have suffered as a result of her dis-
criminatory discharge on June 8, 1982, with backpay to
be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest as described in
Isis Plumbing Co., 138 NLRB 716 (1962), and Florida
Steel Corp., 231 NLRB 651 (1977), and to expunge all
references to her suspension and discharge from her per-
sonnel file.
Finally, I have concluded that Respondent violated
Section 8(a)(1) of the Act by conducting its interview
with James Grimes without granting him his rights as set
forth in NLRB v. Weingarten, supra. Counsel for the
General Counsel contends that the remedy for such, in
addition to the standard cease-and-desist language,
should include a reinstatement and make-whole provi-
sion. In Kraft Foods, 251 NLRB 598 (1980), the Board
established such a remedy for Weingarten violations.
Therein, the Board stated that the General Counsel
makes a prima facie showing that this is warranted by
proving that the respondent conducted an interview in
violation of Weingarten, supra, and that the employee
was disciplined for conduct which was the subject of the
unlawful interview. In order to negate this prima facie
showing and establish that a cease-and-desist order is a
sufficient remedy, the respondent must "demonstrate that
its decision to discipline the employee in question was
not based on information obtained at the unlawful inter-
view." Applying the Kraft Foods analysis to the instant
case, the General Counsel has established that an unlaw-
ful interview occurred, that the subject matter of this
interview was the William French incident on October 4,
1981, and that the decision to suspend and, ultimately,
terminate James Grimes was based, in large part, on the
incident. Moreover, the record establishes, based on the
admissions of Respondent's witnesses, that during his
interview Grimes corroborated French's version of what
occurred but denied his intent was to coerce French.
While the foregoing establishes that the General Counsel
made a prima facie showing that a reinstatement and
make-whole remedy could be appropriate herein, I do
not believe such is warranted. Thus, "the mere fact that
RADISSON MUEHLEBACH HOTEL 1481
discipline is imposed for misconduct which was the sub-
ject of a Weingarten violative interview does not irrefuta-
bly establish the required causal link between the inter-
view and the discipline" Houston Coca-Cola Bottling Co.,
265 NLRB 766 Herein, Respondent was aware of what
occurred during the October 4 incident from the state-
ment of French, Grimes, other than corroborating the
facts and denying a bad intent, added nothing to Re-
spondent's knowledge In Houston Coca-Cola Bottling
Co., supra, the respondent had previously learned that
the employee involved had been in a restricted area of a
plant without permission, and, during his unlawful inter-
view, the employee merely corroborated the facts but
denied knowledge that the area was restricted. Conclud-
ing that "no additional damaging information was ob-
tained" from the employee's corroboration or admission,
the Board refused to issue a Kraft Foods remedy and, in-
stead, issued only a cease-and-desist order as "the unlaw-
ful interview produced no information other than that
which [the respondent] already possessed" Id. Likewise,
Respondent learned nothing it did not already know
from its unlawful interview of Grimes on October 6
Therefore, the appropriate and proper remedy is the
standard cease-and-desist order, which I shall recom-
mend.
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. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. All employees employed by Respondent at its hotel;
excluding executives, superintendents, department heads
having the authority to hire and fire, supervisory em-
ployees having the authority to hire and fire and having
an executive status, supervisory employees having an ex-
ecutive status with the right to effectively recommend
hiring and firing, accounting or control employees, time-
keepers, security officers, office employees, sales person-
nel, desk and mail clerks, checkers, cashiers, typists, ste-
nographers, secretaries, supervisory stewards, storeroom
and wineroom personnel, and all extra employees who
have not worked at least an average of two functions (6
hours) per week for the period January 1, 1981, to July
24, 1981, constitute an appropriate bargaining unit within
the meaning of Section 9(b) of the Act.
4. The Charging Party, at all times material herein, has
been, and is now, the exclusive representative of all em-
ployees in the aforesaid appropriate unit within the
meaning of Section 9(a) of the Act.
5. By refusing to abide by the provisions of its existing
collective-bargaining agreement with the Charging Party
and process through arbitration the grievances of Mau-
rine Donnelly, Marguerite C Stimac, Clara Waller,
Tony Poke, Evelyn Anderson, and Rachael Dominguez,
Respondent engaged in conduct violative of Section
8(a)(1) and (5) of the Act
6. By issuing communication-to-employee reprimand
notices respectively to Beatrice Edwards on September
25, 1981, and to James Grimes on September 15, 1981,
because of their activities on behalf of the Charging
Party, Respondent engaged in conduct violative of Sec-
tion 8(a)(1) and (3) of the Act.
7. By suspending and, ultimately, terminating employ-
ee Edna Hayes on June 8, 1982, because of her activities
in support of the Charging Party, Respondent engaged in
conduct violative of Section 8(a)(1) and (3) of the Act
8 By maintaining and enforcing rule 11 of its "Stand-
ards and Conduct," Respondent interfered with, coerced,
and restrained employees in the exercise of the rights
guaranteed by Section 7 of the Act in violation of Sec-
tion 8(a)(1) of the Act.
9. By threatening employee Thelma Glover with disci-
pline because she engaged in protected concerted activi-
ties as union steward, Respondent engaged in conduct
violative of Section 8(a)(1) of the Act.
10. By denying the request of James Grimes to have a
union representative at an interview, which he reason-
ably believed might result in discipline, Respondent en-
gaged in conduct violative of Section 8(a)(1) of the Act
11 Respondent committed no unfair labor practices
not specifically set forth above.
12 The unfair labor practices specifically found above
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed57
ORDER
The Respondent, Radisson Muehlebach Hotel, Kansas
City, Missouri, its officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Refusing to bargain in good faith with the Charg-
ing Party, as the exclusive bargaining representative of
the employees in the following appropriate unit:
All employees employed by Respondent at its hotel;
excluding executives, superintendents, department
heads having the authority to hire and fire, supervi-
sory employees having the authority to hire and fire
and having an executive status, supervisory employ-
ees having an executive status with the right to ef-
fectively recommend hiring and firing, accounting
or control employees, timekeepers, security officers,
office employees, sales personnel, desk and mail
clerks, checkers, cashiers, typists, stenographers,
secretaries, supervisory stewards, storeroom and
wmeroom personnel, and all extra employees who
have not worked at least an average of two func-
tions (6 hours) per week for the period January 1,
1981, to July 24, 1981.
(b) Issuing communication to employee reprimands to
employees because of their activities in support of the
Charging Party.
5 7 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Suspending and, ultimately terminating employees
because of their activities in support of the Charging
Party.
(d) Maintaining and enforcing Standards and Conduct
Rule 11, relating to the making of false, vicious, or mali-
cious statements against Respondent.
(e)_ Threatening employees with discipline because
they engage in protected concerted activities within their
duties as union stewards.
(f) Refusing to permit employees to have union repre-
sentatives present at interviews, which they reasonably
believe might result in discipline against them
(g) In any like or related matter interfering with, co-
ercing, or restraining employees in the exercise of rights
guaranteed by Section 7 of the Act.
2 Take the following affirmative action necessary to
effectuate the purposes of the Act.
' (a) 'Offer to Edna Hayes immediate and full reinstate-
ment t6 her former position or, if such no longer exists,
to a substantially equivalent position, without prejudice
to her seniority or any other rights and privileges previ-
ously enjoyed, and make her whole for any loss of earn-
ings as a result of Respondent's discrimination against
her in the manner set forth'in the "Remedy."
(b) Preserve, and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Expunge from its records and files any and all ref-
erences to the unlawful suspension and discharge of em-
ployee Edna Hayes and notify the employee, in writing,
that this has been done and that evidence of the unlawful
discharge will not be used as a basis for future personnel
actions against her. .
(d) Expunge from its records and files any and all ref-
erences to,,the communication to employee notices, and
the notices themselves, issued respectively to employee
JamesGrimes on September 15, 1981, and to employee
Beatrice Edwards on September 25, 1981.
(e) Abide by the arbitration provisions of its current
collective-bargaining agreement with the Charging Party
and process through arbitration, on request, the griev-
ances of employees Maurine Donnelly, Marguerite C.
Stimac,,Clara Waller, Tony Poke, Ev,elyn Anderson, and
Rachael.Dominquez.
(f) Post at its Kansas City, Missouri facility copies of
the attached notice marked "Appendix." 58 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by Respondent's authorized
representative, shall be posted by Respondent immediate-
ly upon receipt and maintained for 60 consecutive days
in conspicuous' places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that' the notice's
5 8 If 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 Na-
tional,Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
are not altered, defaced, or covered by any other materi-
al
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply. ,
IT IS FURTHER ORDERED that, insofar as the ConsOlidat-
ed complaint alleges that Respondent violated Section
8(à)(1) and (3) of the Act by stgpending and terminating
James Grimes, it be dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
'NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith with
Hotel & Restaurant Employees and Bartenders , Interna-
tional Union, AFL-CIO, Local 64, as the exclusive bar-
gaining representative of our 'employees in the following
appropriate unit'
All employees employed by Respondent at its hotel;
excluding executives, superintendents, departinent
heads having the authority to hire . and fire, supervi-
sory employees having the authority to hire and fire
and having an executive status, supervisory employ-
ees having an executive status with the right to ef-
fectively recommend hiring and firing, accounting
or control employees, timekeepers, security officers,
office employees, sales personnel, desk and mail
clerks, checkers, cashiers, typists, stenographers,
secretaries, supervisory stewards; t storeroom and
wineroom personnel, and all extra employees who
have not worked at least an average of two func-
tions (6 hours) per week for the period January 1,
1981, to July 24, 1981.
WE WILL NOT issue "communication to employee"
reprimands to our employees because of their activities
on behalf of the Union.
WE WILL NOT suspend and/or terminate employees
because of their activities in support of the Union •
WE WILL NOT enforce any work rules against employ-
ees, relating to , the making of false, vicious, lor; malicious
statements against this company or our 'business prac-
tices , _
WE WILL NOT threaten employees with discipline be-
cause they engage in protected concerted activities
within their duties as union stewards:
WE WILL NOT refuse to permit employees to have
union representatives present at interviews which, our
employees reasonably 'believe, might result in discipline
against them ..
,. .WE WILL NOT in any like or related manner interfere
with, coerce, , or restrain our employees in the exercise.of
rights guaranteed by Section 7 of the Act. .
- WE WILL offer to Edna Hayes immediate and full rein-
statement to her former , position or, if the position no
longer exists, to, a substantially equivalent one without
prejudice to her seniority or any other rights and pnvi-
RADISSON MUEHLEBACH HOTEL 1483
leges previously enjoyed, and make her whole for any
loss of earnings she may have suffered as a result of our
discrimination against her, with interest.
WE WILL expunge from our records any and all refer-
ences to the unlawful suspension and discharge of Edna
Hayes and notify her, in writing, that this has been done
and that evidence of the unlawful discharge will not be
used as a basis for future personnel actions against her.
WE WILL expunge from our records any and all refer-
ences to the "communication to employee" notices, in-
cluding copies of the notices, issued respectively to
James Grimes on September 15, 1981, and to Beatrice
Edwards on September 25, 1981.
WE WILL abide by the arbitration provisions of our
current collective-bargaining agreement with the Union
and arbitrate, on request, the grievances of extra banquet
employees Maurine Donnelly, Marguerite C. Stimac,
Clara Waller, Tony Poke, Evelyn Anderson, and Ra-
chael Dominguez.
RADISSON MUEHLEBACH HOTEL