Schimmel Hotel Co.

National Labor Relations Board - Board Decisions

Apr 16, 1964

146 N.L.R.B. 878 (N.L.R.B. 1964)

878 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
The record shows that of the 4 hoppers, 2 were hired in September
1963; 1 in March 1963; and the fourth_in August 1962; and that since
1958 some 32 individuals, have occupied these positions. As to the 2
shortage haulers currently employed, 1 was hired' in March 1959, and,
the other in May 1963, and since 1958 some 10 individuals have been
employed in the Company's normal, complement of 3,shortage haulers.
The Employer, relying upon its turnover, experience with respect
to these jobs and the fact that shortage haulers .and hoppers are not
granted fringe benefits, contends that, these positions bear such an
inconsequential relationship to the unit as to; require their exclusion.
We disagree. Employees' are hired in ,these classifications for. in-,
definite periods and their work is both functionally related to, and
a regular and continuous .part of, the operations of the circulation,
department. Accordingly, and as the evidence of turnover is incon-
clusive and does not impair the fact that those presently occupying
the disputed positions of hoppers and shortage haulers have a sub-
stantial and continuing interest in terms and conditions of employ-
ment in the circulation department, we shall include them in- the ap-
propriate' unit.'2 '
Accordingly, we find that the following employees constitute a unit
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All employees, including regularly employed part-time employees,
of the Employer who are employed in the distribution and circula-
tion of the newspaper constituting the outside circulation department,
excluding all persons who deliver newspapers to homes, office clericals,
and all other employees of the Employer, and all guards, professional
employees, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
' See Lewis & Coker Super Markets, Inc., 145 NLRB 970.
Walter Schimmel , A. Q. Schimmel , Edward Schimmel, and
Bernard Schimmel , d/b/a Schimmel Hotel Company and Hotel,
Motel , Restaurant Employees and Bartenders Local Union
No. 747, affiliated with Hotel and Restaurant Employees 'and
Bartenders International Union, AFL-CIO. Case No. 17-CA-
2155. April 16, 1964
DECISION AND ORDER
On January 24, 1964, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the, Re-
spondent had engaged in and was engaging in certain unfair labor
146 NLRB No. 108.
SCHIMMEL HOTEL COMPANY 879.
practices within the meaning of the Act; and-recommending that it
cease and desist therefrom and(take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. Thereafter, the Re-
spondent filed exceptions to the Trial Examiner's Decision and a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members, Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings,- conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
1 The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , its officers , agents, successors , and assigns , shall:
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On August 8 and 9 , 1963 ,1 a hearing was held before Trial Examiner Benjamin B.
Lipton in Wichita, Kansas, involving allegations by the General Counsel that the
Respondent engaged in various acts of interference , restraint , and coercion and dis-
criminatorily terminated three employees , in violation of Section 8(a)(1) and (3)
of the Act .2 All parties were represented and participated in the hearing , and at the
close thereof waived oral argument on the record . The General Counsel and the
Respondent filed briefs , which have been duly considered.
Upon the entire record in the case, and from my observation of the witnesses,3
I make the following: _
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is engaged in hotel operations in various States, including Illinois;
Nebraska , and Kansas . Only the Lassen Terrace Motor Hotel in Wichita , Kansas,
is involved herein . The hotel has a gross annual revenue in excess of $500 ,000, of
which more than 75 percent is derived from transient guests, and it has a direct
inflow of purchased materials in interstate commerce valued in excess of $1,000.
Respondent admits, and I find, that it is engaged in commerce within the meaning
of the Act.
1 Unless otherwise specified , all dates herein are in the year 1963.
8 The original charge was filed and served on April 8 , and the General Counsel's com-
plaint issued on May 27.
3 All credibility findings are based in whole or part upon the demeanor of the witnesses
on the stand.
744-670-65-vol. 116-57
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
Respondent, in its answer, took the position that it has no knowledge on the sub-
ject and therefore neither admits nor denies that the Charging Party, Hotel, Motel,
Restaurant Employees and Bartenders Local Union No. 747, affiliated with'Hotel
and Restaurant Employees and Bartenders International Union, AFL-CIO,4 herein
called Local 747 or the Union, is a labor organization. Its motion made at the
hearing and in its brief, to dismiss the complaint on the ground that this essential
element in the case had not been established is patently without merit. The record
shows, inter alia, that as of January 7 a charter from the indicated AFL-CIO in-
ternational union was issued to Local 747, after application was submitted and a
fee was paid by certain employee applicants for membership in the Union; that be-
ginning about March 17 frequent meetings of the Union were held and attended by
Respondent's employees, during which they signed authorization cards to be repre-
sented by the Union; that on March 29 the Union demanded recognition of Respond-
ent, on April 5 filed, a petition,5 and on July 7 participated in a Board-directed elec-
tion,6 as a result of which it was certified as bargaining representative of Respondent's
employees? Respondent's contentions that the Union was not a labor organization
were specifically rejected in the representation proceeding.8 As it is clearly evident
in the record that the Union exists for the purpose of dealing with employers- con-
cerning terms and conditions of employment, and that employees are admitted to
membership and otherwise participate therein, I find that at all times material the
Union was a labor organization within the meaning of Section 2(5) of tht Act .9
111. THE UNFAIR LABOR PRACTICES
A. Supervisors '
Respondent admits, and I find, that the following individuals are supervisors under
the Act: Walter Schimmel, Sr., co-owner; Walter Schimmel, Jr., co-owner and man-
ager of food and beverages; W. O. Stacik, general manager; Melvin Clark, assistant
manager in charge of personnel; James Kosec, chef; Herbert C. Lewis, steward;
Michael Herman, laundry foreman; and Clarence Daniels, maintenance foreman.
B. Interference, restraint, and coercion
Beginning on March 17, initial organizational meetings for various shifts of Re-
spondent's employees were held at the home of the Union's business representative,
James E. Summers. On March 29, at 9 a.m., a general union meeting was scheduled
at the Labor Temple. That morning, sometime before 9 a.m., General Manager
Stacik had a conversation with Steward Lewis and Chef Kosec "about the time
the union tried to get here in 1958 . . . and about a few violences that went
on." Both Stacik and Kosec, discussing the effects of the Union coming into the
hotel, stated that it would be "bad business" because customers for banquets would
then be hard to get, and that different scales would be set up for the employees,
some of whom would benefit and some not.10 Later that morning, Lewis, a
supervisor of 18 employees, asked his immediate superior, Kosec, for permission
to go to the union meeting on company time. Kosec said he would find out, and
subsequently gave his approval. Lewis attended the meeting on company time.
4 On the Trial Examiner's own motion, the name of the Charging Party Is amended
accurately to reflect Its affiliation with the AFL-CIO.
5 The petition was signed by Business Representative James E. Summers In the name of
the International Union.
8 The election, with 110 employees eligible to participate, resulted In a vote of 72 to 28
In favor of the Union.
4 On October 25, the Board denied Respondent's request for review of the Regional
Director's Supplemental Decision and Certification, In which Respondent's objections to
the election were overruled.
8 Such decisions are binding upon a Trial Examiner. Meijer Supermarkets, 142
NLRB 513.
9 E.g., Coca-Cola Bottling Company, Indianapolis, Indiana, Incorporated, 142 NLRB
1030; Paul E. Merrill d/b/a Merrill Transport Co, 141 NLRB 1089; and see, The Cin-
cinnati Transit Company, 121 NLRB 765, footnote 1.
10 There is no allegation nor finding that this discussion among supervisors is In viola-
tion of the Act. The evidence is set forth as background and corroborative material con-
cerning similar statements made to employees, infra.
SCHIMMEL HOTEL COMPANY 881
At the Labor Temple, following the meeting, Lewis was involved in a group dis-
cussion with Business Agent Summers and six or seven employees . He told them
that "he could give Mr. Summers any sort of information he wanted because he had
access to the record and things and that the company had sent him to the meeting
to see what was going on so he could come back and report ." An hour or two
after his return to the hotel, he was summoned to an executive office where he re-
ported on the union meeting to Schimmel , Senior , Schimmel , Junior , Assistant Man-
ager Clark, and Kosec . 11 Lewis testified that he told them about the complaints
of the employees at the union meeting. Later in the day, Schimmel , Junior, 'ques-
tioned Lewis more closely as to his personal opinion of the employees , how they
felt about conditions at the hotel, "and so forth." 12
Lewis had' also told Otho Mast, an employee under his charge , that he was going
to this union meeting, and spoke to Mast about the meeting after his return. Among
other things, Lewis said , "I am in between the two. I can go to this meeting and
get your side and I am getting our side."
Steward Lewis attended further meetings of the Union . At the first meeting,
he received one of the circulars handed out by Business Representative Summers
inviting employees to the next scheduled meeting. Lewis said that Summers knew
who he was and "several times" had personally extended an invitation to him to
come again.
Michael Herman , laundry foreman , • attended the union meeting at the Labor
Temple held at 8 p .m. on March 29.
Robert Wolf, a maintenance carpenter,, evidently was the most active and out-
spoken of the hotel employees in the union campaign . He made the initial contact
with Business Agent Summers ; participated in the early organizational meetings;
personally informed four supervisors 13 at different times between March 24 and 27
that the Union was in the process of organizing ; and prominently displayed on
his person while at work various insignia of the Union . About March 27, Wolf
and his foreman , Daniels, were encountered in a hotel corridor by Manager Stacik
and Chef Kosec. Stacik looked at Kosec while pointing to Wolf and said, " That's
the one, he's the one ." Stacik then called , "Hey,.Wolf, what is this I hear about
this union ?" He proceeded to put further queries about "this union meeting,"
where the meeting was going to be, and what was going on about passing out union
cards. Daniels testified that after this incident he heard "quite a bit" from Stacik
and Chief Engineer Lorens about Wolf talking to employees while on active duty,
and that Lorens told him "to keep close surveillance on [Wolf] and confine his
work to where [Daniels] would control him and keep him from going all over the
hotel ." 14 Daniels thereupon restricted Wolf to the engineroom and told him not
to ride the service elevator. After a period of time, these instructions were rescinded
when the carpenter maintenance work began to pile up. In mid -April, Daniels
angrily told Wolf, "Listen , Bob, you can get fired for talking about this damn union."
On another occasion , Daniels wrote Wolf a note complimenting his work and also
stating in effect that "he had word from the big boys" that he should watch
Wolf, who was "nothing but a damn troublemaker ," and "to fire him at the first
opportunity." 15
On April 1 , after attending an afternoon meeting of employees in the hotel
arranged by management to discuss the union question , several employees 16 re-
turned to their workplace in the kitchen and there engaged in a conversation with
Kosec, the chef . Kosec related what would "probably" happen if the Union came
in, e.g.: (a) there would be a limited amount of employee meals a day, whereas at
present they could eat as much and as frequently as they wanted ; (b) there would
be advantages for some employees , and disadvantages for others ; (c) they would
not come to him, Kosec , for anything , but would have to go to the Union if they
wanted anything . If they wanted to request any days off, they would have to go to
the Union . If they were late to work more than a certain - number of times, Kosec
could do nothing if the Union fired them ; ( d) an employee who became "swamped"
with work would have to do the job himself and could get no help from anyone.
11 Kosec was not called to testify ; the other officials were not questioned on this subject.
12 On April 1 , Lewis received a monthly salary increase.
11 Maintenance Foreman Daniels, Laundry Foreman Herman, Housekeeper Alice Alsdorf,
and Banquet Hostess Mate Horswell.
11 Wolf's regular functions required him to perform maintenance repairs at various loca-
tions on the hotel premises.
15 At the time of the hearing, Daniels was not in Respondent 's employ, having been dis-
charged on June 15.
1e Joyce Williams , Clifford Hamilton , and an employee called Pat.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 29, Foreman Herman asked Norvel Thompson if he was going to a
union meeting which was scheduled, and-said he thought Thompson ought to go.
Thompson replied that he was going.
C. Concluding findings on Section 8(a)(1)
The allegations that Supervisors Lewis and Herman engaged in unlawful sur-
veillance by their attendance at union meetings are fully supported in the evidence.
Their very presence at these meetings had a natural tendency to restrain and dis-
courage employees from pursuing their organizational rights. That Respondent is
fully responsible under the Act for the conduct of these supervisors is beyond
question. Nor does it furnish Respondent with justification that Herman sought to
satisfy his "curiosity more than anything else." As to Lewis, the evidence is indeed
quite direct. He was specifically given leave to attend on company time, was sum-
moned upon his return to report on his observations to a waiting group of top man-
agement officials, and was later closely questioned by Schimmel, Junior. It is
evident that Lewis was attempting to engage in a kind of double-dealing. At the
union meeting he offered to obtain information from company records and in other
ways sought to implant himself in the employees' confidence, while at the hotel he
apparently pursued an opposite course in discussing the subject of the Union with
his superiors. In the circumstances, the fact that Lewis may have received an invita-
tion to return to further union meetings would scarcely relieve Respondent of liability
for the surveillance.
Concerning employee Wolf, Respondent was fully cognizant of his open and
militant espousal of the Union during the organizational campaign prior to the
Board election. The threats conveyed to him by his supervisor, Daniels, that he
was a "troublemaker" and Respondent was preparing to fire him "at the first oppor-
tunity" because he was talking about "this damn union" were plainly violations.
Similarly, I find that Stacik's interrogation of Wolf in the presence of Kosec and
Daniels was of a coercive character.
As to the remainder of the evidence described above, I find further Section
8(a)(1) violations-in Kosec's ' talk to the employees on April 1 indicating the
probability of various detrimental changes in their employment conditions "if the
Union came in," and Herman's interrogating Thompson whether he was going to
the union meeting.17
D. The alleged discriminatory discharges
1. Larry Lewis was hired on January 24, 1963, as a room service trainee. His
immediate supervisor was Schimmel, Junior. Operating from a station in the kitchen,
he carried orders of food to the guests in their rooms and also helped to remove the
dishes. He had attended one of the earlier organizational conferences at Business
Agent Summers' home, signed an authorization card, and circulated such cards to
some 25 to 30 employees.
In the morning on April 1, after making a delivery nearby, Lewis had stopped to
chat with employee Wolf who was at work in a room on the 10th floor, when
Manager Stacik walked in. Stacik told them they were loafing on company time and
he had a "pretty good idea what they were talking about." Shortly thereafter, Lewis
saw Stacik and Schimmel, Junior, looking for him as he was about to make the
customary daily delivery of a large order of food to the bank. He testified that he
did not want them to find him and proceeded to make the delivery, which took about
20 minutes. Upon his return, he was called to an office and spoken to by Schimmel,
Junior, in the presence of Stacik and Assistant Manager Clark. He was admonished
for not being available when needed, and he admitted that he was "goofing off." He
was told that he had been making good progress during his training, but was now
falling down on his job; however, he was advised that if he did well, there was a
"place in the hotel" for him. Lewis agreed that he would "try to watch his station
much better and do the best job possible."
Schimmel, Junior, testified that on previous occasions Lewis had been hard to find,
or would be found outside his direct area of work, when telephone orders for room
service had to be filled immediately. Only one room service waiter was on duty for
each shift, although additional waiters were used when room service was busy.
17 The General Counsel also relies on Clifford Hamilton 's testimony that Rosec asked
him whether he thought the people would vote for the Union. However, I find his testi-
mony was vague and confused as to time of occurrence and otherwise Insufficient to support
the allegation.
SCHIMMEL HOTEL COMPANY 883
Lewis was expected to stay on duty during his entire shift from 6 a.m. until -2 p.m.
However, there was a practice, of which Schimmel, Junior, was aware, of room
service waiters checking out when their relief arrived early for the next shift.
On the same day, April 1, that he was criticized for his.unavailability, Lewis was
discharged. Lewis himself gave the following account: His shift regularly ended at
2 p.m., but he customarily clocked out when the boy on the next shift, Ted Watson,
arrived, which was usually 10 to 15 minutes early, or sometimes that much late.
That day, Watson checked in early (1:20 p.m. on his timecard); then Lewis and
Watson clocked out together at 1:35 p.m. and proceeded to walk around the block,
"just messing around." At 2:50 p.m. both returned to the hotel to attend a com-
pany meeting of employees scheduled for 3 p.m. relating to the union campaign.
At this time Lewis was again summoned to see Schimmel, Junior, Stacik, and Clark.
Asked why he had left his post, Lewis gave the reason that Watson had arrived,
and added that "they were both real disgusted with the hotel." Schimmel, Junior,
inquired of Lewis what he thought should be done with him, and the response was,
"You will probably can me." Whereupon Schimmel, Junior, said, "You are right.
You are fired."
Schimmel, Junior, testified that about 1:30 p.m. there were orders to be filled by
the room service waiter and again Lewis could not be found. A search was made
and it was discovered that Lewis had checked out early. Later, at the interview,
when requested to explain his absence, Lewis did not say very much but was "very
lackadaisical and indifferent."
The General Counsel maintains that Lewis was effectively relieved from duty,
consistent with custom, upon Watson's arrival at 1:20 p.m., and stressed the fact
that Watson was not discharged although he was absent from duty from 1:35 p.m.
until 2:50 p.m. Watson's timecard shows that he finally punched out for the day
at 10:16 p.m. and was 'credited with 8 hours of work. Watson was not called to
testify. In attempting to explain Watson's timecard, Assistant Manager Clark testi-
fied (without objection) merely that Watson "could have" joined Lewis for the
"walk around the block" only between 1:20 p.m. and 1:35 p.m., i.e., before his duty
commenced. Consideration of the obscurity with which Respondent left the ques-
tions relating to Watson, and of all the pertinent evidence, raises serious suspicions
that Respondent was singling out Lewis for discharge because of his sponsorship
activities on behalf of the Union. However, it appears that a legitimate cause for
Lewis' discharge was shown by his own testimony. It was not at all reasonable for
Lewis to assume that he had been relieved from duty by the early arrival of Watson
while he and Watson were actually away from the hotel "messing around." More-
over, as a trainee of less than 3 months who earlier that day had promised to do his
best, Lewis' statement to Respondent that he was "real disgusted" with the hotel
displayed an attitude which was provocative of a discharge. In the circumstances,
Lewis' union activity and Respondent's animus toward the Union afford him no
immunity. Nor is the mere showing that Respondent failed to discharge Watson
enough to establish that Lewis was discriminatorily selected for union reasons. In
sum, I find that the General Counsel has not sustained his required burden of
proving the allegation in the complaint as to Lewis.
2. Fred Johnson was employed on December 18, 1962,18 to work in the laundry as
an extractor. His usual working hours were from 5 a.m. until 1 p.m. On March 29,
he attended a union meeting at the Labor Temple where he saw his foreman,
Michael Herman. On April 2, Herman,19 on his own initiative, discharged Johnson
"strictly because of his drinking." Herman testified that Johnson "had drank quite
often and many mornings he would come to work" and Herman "could smell the
drinking he had done the night before, whatever it was, it was very potent." On
two other occasions, Johnson was drunk during the time he was working: in one
instance, Herman warned Johnson about it and Johnson said he would not do it
again ; and at another time thereafter Johnson was "real drunk." 20 On April 1,
"Johnson's personnel card indicates that he was hired "on probation."
10 Herman had left Respondent's employ on June 18. He was called as General Counsel's
witness respecting the issue of Norvel Thompson's discharge, infra. Concerning John-
son, I credit and rely essentially on Herman's testimony as being more convincing and
trustworthy.
20 Johnson admitted that most of the time when be drinks, he indulges "quite a bit."
He explained the incident referred to by Herman as having occurred 3 or 4 weeks before.
He was drinking at a party until 4 a.m. and was still intoxicated when lie reported to
work at 5:15 a.m. that day.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson had completed his work about noontime and had gone with another laundry
worker, Albert Clewis, to the pool hall where both drank whisky and beer. At
3 p.m., they returned to the hotel to attend a meeting scheduled by management
concerning the union campaign. Schimmel, Senior, extended a general invitation to
employees who had any questions to come to his office after the meeting. In re-
sponse, Johnson and Clewis went to Schimmel, Senior's, office, where Assistant
Manager Clark was also present. Johnson complained about conditions and wages.
His speech appeared incoherent and he left the distinct impression that he was in-
toxicated. Finally, with some difficulty, Clewis succeeded in escorting Johnson out
of the room. There is no evidence that Herman was advised of this conduct of
Johnson, and he firmly denied that anyone from management had instructed him to
discharge Johnson. The next morning at work,21 Johnson smelled of alcohol and
Herman had difficulty understanding Johnson's speech. About noon, after most of
the work was done, Johnson was terminated. Herman testified that he tolerated
Johnson as long as he could that morning because he had no one to take Johnson's
place. I conclude that there was no violation concerning the discharge of Johnson.
3. Norvel Thompson was hired on March 4 as an extractor in the laundry. Fore-
man Herman testified that Thompson was -a very good worker, who at times did as
much work as any two men. Thompson attended meetings of the Union, at which
he observed supervisors present, and he signed an authorization card on or about
March 31. As earlier shown, Herman had asked Thompson whether he was going
to a certain union meeting, and Thompson said that he was. On April 2, Herman
informed Thompson of his discharge, and said that he wanted to keep him but was
"taking orders from topside." Herman testified that Thompson's discharge was
directed by Manager Stacik, who gave him no specific reason. Although Herman
customarily made the decisions to hire and fire in the laundry, he was not consulted
or informed of any reason concerning Thompson's discharge. On April 3, Respond-
ent ran an advertisement in the local newspaper for a "man with washer or extractor
experience" in laundry work. On April 4, Respondent hired Theodore Holt for the
laundry.22
As testified by Assistant Manager Clark, Respondent's reasons for discharging
Thompson were (1) an overstaffing in the laundry, (2) the excess was concentrated in
male employees, and (3) a confidential reason relating to Thompson's police
record.
In connection with the first reason, Respondent introduced in evidence certain
intrahotel correspondence stemming from a memo dated March 22 from Schimmel,
Senior, to Clark requesting "an accurate comparison" of laundry employment in
March 1963 with the equivalent period in 1962. (Such request, at least in this form,
was unprecedented, and it was not made as to any of the other 12 departments in
the hotel.) Clark prepared an analysis in his own writing which, in sum, purports
to show that on March 15, 1963, there were on the laundry payroll 16 persons, in-
cluding the foreman, as compared with 12 on the same date in 1962.23 Clark sent
with his analysis the following summary memo to Schimmel, Senior:
SCHIMMEL HOTELS
Dated March 23, 1963.
To: Mr . SCHIMMEL
From: CLARK
Re: YOUR MEMO OF 3-22-63 requesting accurate comparison , from my records,
of Laundry employment this Month compared with March 1962.
SUMMARY OF WORK SHEET (ATTACHED)
Increase in NUMBER of employees this March over last-4.
Increase in Wage Cost per Operating Hour, March 63 over last-$2.86.
21 Herman responded to a question, "On the day that you, the day before you discharged
him, did you ask him to leave the hotel"" The plausible construction of all the testimony
indicates that Herman actually described what took place on April 2, rather than the day
before. In any case, the result would be unaffected
re Holt was terminated on April 22, and Lester Williams was hired on April 25. In addi-
tion, payroll records for the month of April show that, after April 2 (when Johnson and
Thompson were discharged), the laundry had a turnover of three new hires and three
terminations of female employees. On various dates in March, there were three termina-
tions and two additions. Respondent indicated that, at the time of the hearing in August,
the laundry had 12 employees, plus a new foreman, who personally performed more
manual work than did his predecessor, Herman.
23 As described by Clark, there were, for example, 14 persons on the payroll for four of
the intervening months in the year reported
SCHIMMEL HOTEL COMPANY 885
With exception of Manager's increase over previous mgr., this is con-
centrated in help brought in for sick replacement and not yet all
dismissed.
This has been called to Mr. Herman's attention.
If hours worked are comparable, the above could result in a substantial op-
erating cost increase.
If longer hours were worked last year, or if Laundry Volume is up this year,
the increase might not be as great as it first appears.
I shall check- out both these factors with Mr. Wallen [auditor], and discuss
the situation with Mr. Herman, recommending work force reduction in
proportion.
On March 26, Schimmel, Senior, returned Clark's report together with a note to
Clark and Manager Stacik that "This is not satisfactory." On March 27, Clark
notified Schimmel, Senior, that two laundry employees were terminated 24 which
reduced salary costs by $1.25 per hour.
Respondent's contentions are that the four laundry workers were terminated to
correct the overstaffing situation, i.e., on March 25, two female employees, and on
April 2, Johnson and Thompson. There are many serious flaws in this defensive
evidence of Respondent, e.g.: although Clark insisted that his figures covered the
entire month of March, as was requested by Schimmel, Senior, it is quite plain from
other evidence of constant turnover that the comparison made by Clark reflects only
the employment figures on the single date of March 15 in both years. Clark's work-
sheet noted that an additional employee had been discharged since March 15,25 but
his summary note to Schimmel, Senior, quoted above, failed to account for this
decrease, so that actually there were three, and not four, employees in excess of the
figure given for March 15, 1962. Consequently, when the two female workers
(Wright and Smith) were dismissed on March 25, the employment level was equated
with that of the previous year. Clark's report also noted that, the surplus "is con-
centrated in help brought in for sick replacement and not yet all dismissed." This
reveals, at least, that the alleged overstaffing was temporary. The matter was un-
explained by Respondent. Unless Wright and Smith were in fact the temporary sick
replacements, no reason would appear to let any of the permanent help go. Indeed,
the regularly large turnover of employees in the laundry, and in the hotel generally,26
would furnish an obvious means by attrition of effecting a reduction in employment.
It is also significant that Foreman Herman, who was otherwise directly involved in
reducing the laundry staff at Respondent's behest, was not consulted regarding the
discharge of Thompson.
Schimmel, Senior, testified, somewhat at variance with Clark, that he knew what the
situation was in the laundry before he received Clark's report, but that he wanted
to "put the heat on" so that his staff would be made aware of it; and he was also dis-
satisfied with Foreman Herman's performance. Clark testified that there were fre-
quent conferences among the various officials involved about the laundry problem
after Schimmel, Senior's, note of March 22.
As to the newspaper advertisement for a laundry extractor the day after Thomp-
son's discharge, Clark explained that when Herman fired Fred Johnson, it left Her-
man alone in the department as the only man; 27 therefore, an additional man was
needed to maintain the exact distribution of help which existed the year before.
There is shown no reason for having such a fixed distribution of male and female
help. The testimony, in light of the record, is clearly unworthy of credit. Indeed,
an inconsistency is now exposed with the further ground given for Thompson's
discharge-that the excess of employment in the laundry was concentrated in male
employees. On this latter ground, it is noted that nothing was said in Clark's report
to Schimmel, Senior, nor was any supporting evidence advanced. Excepting their
admissions, I do not credit the explanations of either Clark 28 or Schimmel, Senior,
concerning the selection of Thompson as part of a reduction in force 29
24 On March 25, Foreman Herman selected Ann Wright and Ruth Smith for dismissal.
26 Hal Shields on March 19, as revealed on another exhibit.
26 Average of 32 per month.
27 This is contradicted by documentary evidence showing, e.g., that Albert Clewis in the
laundry received a raise on April 3.
28 Based upon his demeanor on the stand and his testimony, which I found at times to be
disingenuous, evasive, and incompatible with clear documentary evidence, I do not credit
Clark generally.
26 Clark indicated that Thompson's discharge was ordered by Manager Stacik, who was
said to be employed in San Francisco at the time of the hearing and did not testify.
886 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
Finally, the confidential reason for severing Thompson. relates to a police report
requested by Respondent, listing Thompson's record of arrests. Schimmel, Senior,
testified it was just a matter of a telephone call to the local police department to get
these reports. Clark stated that such reports are uniformly requested in writing for all
new hires. He also revealed that, when the information is relied on as a reason for
discharge, no entry of the fact is made in the personnel records and the employee is
not told this reason but given a pretext for his termination. The Thompson report
in evidence is undated, unsigned, without an envelope or receipt stamp, and Clark
was quite vague as to when it was requested or how and when it was received except
that it was in Respondent's possession perhaps 7 to 10 days before Thompson's dis-
charge. The report purports to show, in substance, that from 1936 to 1940, Thompson
was convicted once for petty theft, at other times for selling liquor to an Indian,
loitering, and vagrancy, and in 1953, he was fined for being drunk. As to the other
arrests for similar offenses, the last of which took place in 1959, Thompson was rei
leased with no record of any charge or trial.30 Schimmel, Senior, testified that the
hotel policy was to discharge any employee based upon the mere record of arrests,
except for such offenses as "speeding and liquor," without regard to convictions.
Neither Thompson nor Foreman Herman was told of this reason for Thompson's
discharge. Clark admitted that he could "think of" one employee then employed (of
about 195 employees in the hotel) who was known to have a police record. Although
Clark testified that employees generally have been discharged on the same basis as
Thompson, the only instance given was an individual who was at the time currently
"wanted" by the police for "three commitments."
I reject and discredit this added "confidential" reason as having motivated Thomp-
son's discharge. Respondent had the police information concerning Thompson
substantially before the time of his discharge without acting upon it. Moreover,
the character of Respondent's evidence is unpersuasive. I find this ground was seized
upon as an afterthought and was merely an artifice, as were the other grounds as-
serted, supra. A clear prima facie case was made out in view of, inter alia, the
timing of Thompson's discharge shortly after the Union's demand for recognition on
March 29, Thompson's known attendance at union meetings, and Respondent's well-
demonstrated union animus . The failure of Respondent to carry its burden of defense,
plus the pretextuous reasons it advanced, amply establish the allegation that Thomp-
son was discriminatorily discharged in violation of Section 8(a) (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities' of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I will
recommend that it cease and desist therefrom 31 and take certain affirmative action
designed to effectuate 'the policies of the Act.
It will be recommended that Respondent offer Norvel Thompson immediate and
full reinstatement to his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole for any loss of
earnings suffered by reason of the discrimination against him by payment to him of a
sum of money equal to that which he normally would have earned, absent the
dscrimination, from the date of the discrimination to the date of the offer of rein-
statement, less his net earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289. Such pay loss shall be computed with interest at the rate of 6
percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB
716. It will be further recommended that Respondent preserve and make available to
the Board upon request, all payroll records, social security payment records, time-
cards, personnel records and all other records necessary and useful to determine the
amount of backpay due and the rights of reinstatement under the terms of these
recommendations.
30 In the 27 years covered, the police report listed a total of 12 items.
ffi Upon the findings of Section 8(a) (1) and (3) violations, the broad order recommended
herein Is justified. See N.L R.B. v. Express Publishing Company, 312 U.S. 426 ; N L.R.B.
v. Entwistle Mfg. Co., -120 F. 2d 532 (C.A. 4).
SCHIMMEL HOTEL COMPANY 887.
Upon ,the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the nieaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating against Norvel Thompson in regard to his hire and tenure of
employment, thereby discouraging membership in the Union, Respondent has engaged
in and is engaging in unfair labor practices affecting commerce within the meaning
of Section 8(a)(3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Respondent, Walter Schimmel, A. Q.
Schimmel, Edward Schimmel, and Bernard Schimmel, d/b/a Schimmel Hotel Com-
pany, Wichita, Kansas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Hotel, Motel, Restaurant Employees and Bar-
tenders Local Union No. 747, affiliated-with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, or in any other labor organization, by
laying off, discharging, or refusing to reinstate employees, or in any other manner
discriminating in regard to their hire or tenure of employment or any term or con-
dition of employment.
(b) Engaging in surveillance of the union activities of its employees; interrogat-
ing employees in a coercive manner; threatening employees with discharge, with
changes in their working conditions, or with other reprisal because of their union
activities; or in any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Offer Norvel Thompson immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority or other rights or
privileges, and make him whole for any loss of earnings, in the manner set forth in
the section of the Trial Examiner's Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents all
payroll and other records, as set forth in the section of the Trial Examiner's
Decision entitled "The Remedy."
(c) Post at its Wichita, Kansas, plant copies of the attached notice marked
"Appendix." 32 Copies of said notice, to be furnished by the Regional Director for
the Seventeeth Region, shall, after being duly signed by Respondent, be posted
immediately upon receipt thereof in conspicuous places including all places where
notices to employees are customarily posted, and be maintained for a period of 60
consecutive days. Reasonable steps shall be taken to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Seventeenth Region, in writing, within
20 days from the receipt of this Trial Examiner's Decision and Recommended
Order, what steps Respondent has taken to comply herewith 33
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
12 If this Recommended Order is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial 'Examiner"
in the notice. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "A Decree of
the United States Court of Appeals, Enforcing an Order" for the words "A Decision and
Order."
= If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for the Seventeenth Region, in writing, within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in Hotel, Motel, Restaurant Employees
and Bartenders Local Union No. 747, affiliated with Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO, or in any other labor
organization, by laying off, discharging, or refusing to reinstate our employees,
or in any other manner discriminating in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT engage in surveillance of the union activities of our employees;
interrogate our employees in a coercive manner; or threaten our employees with
discharge, changes in their working conditions, or other reprisal, because of
their union activities.
WE WILL NOT in any manner interfere with, restrain, or coerce employees in
the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named, or any other, labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
any other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer Norvel Thompson immediate and full reinstatement to his
former or substantially equivalent position, and make him whole for any loss
of earnings he may have suffered by reason of the discrimination against him.
All our employees are free to become or remain, or to refrain from becoming
or remaining, members of Hotel, Motel, Restaurant Employees and Bartenders Local
Union No. 747, affiliated with Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, or of any other labor organization.
WALTER SCHIMMEL, A. Q. SCHIMMEL, EDWARD
SCHIMMEL, AND BERNARD SCHIMMEL, D/B/A
SCHIMMEL HOTEL COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if he is presently serving in
the Armed Forces of the United States of his right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti-
more 1-7000, Extension 731, if they have any question concerning this notice or com-
pliance with its provisions.
Plumbers Local Union No. 307 and Meyers Plumbing. Case No.
13-CC-375. April 16, 1964
DECISION AND ORDER
Upon charges duly filed by Meyers Plumbing, herein called Meyers,
the General Counsel of the National Labor Relations Board, by the
Regional Director for the Thirteenth Region, issued a complaint
dated August 9, 1963, against Plumbers Local Union No, 307, herein
146 NLRB No. 110.