Statler Hilton Hotel

National Labor Relations Board - Board Decisions

Sep 17, 1971

193 N.L.R.B. 197 (N.L.R.B. 1971)

HILTON HOTELS CORP. 197
Hilton Hotels Corporation d/b/a Statler Hilton Hotel
and Carpenters ' District Council of Washington,
D.C. & Vicinity, United Brotherhood of Carpenters
and Joiners of America, AFL-CIO. Case
5-CA-4984
the statement "Keder produced a copy of the Board's Regulations and
referred to Section 103," should be corrected to read "Section 102 "
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
September 17, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 26, 1971, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed with respect to these allegations. Thereaft-
er, the General Counsel filed exceptions to the Trial
Examiner's Decision with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Hilton Hotels Corporation d/b/a
Statler Hilton Hotel, Washington, D.C., its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not
specifically found herein.
I We hereby correct the following inadvertent errors in the Trial
Examiner's Decision Under sec If, C. Francisco's Layoff, the statement
"The layoff [of Francisco 1 was made abruptly, with no advance notice, 2
days before the scheduled election," should be corrected to read "2 days
before the representation case hearing"; and under sec 11, D , 1. The Facts,
JOSEPHINE H. KLEIN, Trial Examiner: This case was tried
in Washington, D.C., on February 5 and March 2 and 3,
1971, on a complaint issued against Hilton Hotels
Corporation d/b/a Statler Hilton Hotel, Respondent, on
December 18, 1970, pursuant to a charge filed by the
Carpenters District Council of Washington, D.C. &
Vicinity, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO (the Union) on November 27, 1970.
The charge and the original complaint alleged principally
that an employee had been discriminatorily terminated in
violation of Section 8(a)(3) and (1) of the Act' on
November 23, 1970. The original complaint also alleged
one incident of unlawful interrogation violative of Section
8(a)(1) in November 1970. Another such allegation was
added by amendment at the hearing. At the opening of the
hearing, on February 5, 1971, the complaint was amended
to add allegations of further violations of Section 8(a)(1) by
conduct of Respondent's counsel and a supervisor on
February 1 and 3, 1971, allegedly designed to interfere with
the present proceeding.
All parties were afforded full opportunity to be heard, to
present oral and written evidence, and to examine and
cross-examine witnesses. The parties waived oral argument
and after the hearing the General Counsel and Respondent
filed briefs.
Upon the entire record, observation of the witnesses, and
consideration of the briefs, the Trial Examiner makes the
following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
A. The complaint alleges, the answer admits, and the
Trial Examiner finds that Respondent, a Delaware
corporation, operates a hotel enterprise in Washington,
D.C. In the course and conduct of its business, Respondent
received in excess of $500,000 in gross revenues in the
preceding 12 months, a representative period. Respondent
is, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
B. The Union is, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
Wellington J. S. Francisco was hired by Respondent as
an apprentice carpenter at $2.75 per hour around the
t National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519,
29 U.S C Sec 151 et seq )
193 NLRB No, 31
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
beginning of October 1970. At that time, there were two
carpenters employed at the hotel- Giuseppe (Joe) Rotella2
and Farris Rafeedie.
The carpenters are in Respondent's Rehabilitation
Department, which includes other categories of workers,
such as painters and paperhangers, wallwashers, carpet
men and a seamstress.3 Mr. Tommie Izumi is rehabilitation
manager
In a letter dated October 16, 1970, addressed to
Respondent's building superintendent, Mr. William Dar-
lington, Local 99 of the International Union of Operating
Engineers stated that unless Rotella paid that Union's
initiation fee and dues by November 10 the Engineers
Union would demand his discharge under the union-
security provision of its collective-bargaining agreement.
Darlington gave the letter to Rotella. Rotella belonged to
the Carpenters Union and did not want to join or be
represented by the Operating Engineers. He felt that as a
carpenter not qualified as an engineer he could not secure
any significant assistance from the Engineers Union should
he ever be in need of ajob
Rotella consulted Izumi and was assured that he had
nothing to worry about. Izumi said that Darlington, not
being Rotella's supervisor, could not discharge him; that if
Darlington did undertake to discharge Rotella, Izumi
would immediately have him reinstated. Izumi said he
would look into the matter and speak to Rotella again
shortly.
A few days later, having received no further word,
Rotella informed Izumi that he intended to seek the advice
of Mr. Charles E. Menges, organizer for the Carpenters
Union. Rotella testified that Izumi asked Rotella if he was
the only carpenter who wanted the Carpenters' Union, to
which Rotella replied that Rafeedie and Francisco would
also sign for that Union. When Izumi said that he believed
Rafeedie belonged to the Operating Engineers Union,
Rotella replied, that Rafeedie, after thinking the matter
over, had decided he preferred the Carpenters Union and
was withdrawing from the Engineers. Izumi denied that
either Rafeedie or Francisco was mentioned.
Rotella then consulted Menges, who visited the hotel
several times.4 He filed a representation petition with the
Board on November 9, 1970. The petition was supported by
authorization cards executed in November. The Union
made no bargaining demand.
About a week later, Rotella and Izumi discussed the
matter again. Izumi asked Rotella what wages the
carpenters would get under a Carpenters Union contract.
Rotella replied that wages would be a matter for
negotiation, but "probably it will be about $4.50 an hour."
At that time Rotella was getting $4 an hour,5 Rafeedie,
$3.71, and Francisco $2.75. Izumi then asked if Rotella was
furthering the Carpenters Union solely because of the
higher wages, to which Rotella answered that he wanted to
be represented by the Union for both higher wages and
better working conditions.
2 It is unnecessary at this point to resolve the dispute among the parties
as to whether Rotella was a supervisor within the meaning of the Act
3 Although apparently under the supervision of the rehabilitation
manager, some of these employees are in the housekeeping department for
payroll purposes
4 There was some evidence that Menges had also visited the hotel in
On November 20 a notice was issued of a representation
hearing to be held on Wednesday, November 25. At the end
of business on Monday, November 23, Francisco was laid
off. The reason assigned for the layoff was a decline in
business. The representation hearing was indefinitely
postponed and on November 27 the Union filed the present
charge alleging Francisco's layoff as violative of the Act.6
On December 18, the Regional Director issued the present
complaint and notice of a hearing to commence on
February 5.
Shortly after the complaint was issued, Francisco
received backpay forms from the Board. At Rotella's
suggestion, Francisco, armed with unexecuted forms,
visited Izumi and, for at least the third time, requested
reinstatement. Francisco volunteered to refrain from
returning the backpay forms to the Board if he was
reinstated. Izumi consulted Mr. Richard C. Nelson,
Respondent's General Manager, and Francisco was
reinstated, returning to work on or about January 11, 1971.
On Monday and Wednesday, February 1 and 3, 1971,
Francisco was interviewed by Joel I. Keiler, Esquire,
Respondent's counsel, in Izumi's office, with Izumi present
and participating to some extent. The amendment of the
complaint made on February 5 alleges that certain conduct
by Keiler and Izumi in these meetings violated Section
8(a)(1), in tending to interfere with the present proceeding.
B. Interrogation of Rotella
The amended complaint alleges that on November 5
Izumi questioned Rotella "concerning the Union sympa-
thies, affiliations and activities of other employees" and on
November 18 "concerning the Union and his membership
in, activities on behalf of, and adherence to the Union."
Izumi denied having questioned Rotella. Further, Respon-
dent maintains that Rotella was a supervisor and therefore
could lawfully be questioned. In the Examiner's opinion, it
is unnecessary at this point to resolve the conflict between
Rotella and Izumi or to determine Rotella's supervisory
status, since the General Counsel's evidence fails to
establish coercive interrogation.
As shown above, the conversations in November were
initiated by Rotella because of his displeasure at the
attempt of the Operating Engineers Union to bring him
within the union-secunty provision of its collective-bar-
gaining agreement. Rotella volunteered that he was a
member of the Carpenters Union and did not want to join
the Engineers. In the conversation on November 18,
Rotella also volunteered that he was going to consult
Menges, the Carpenters organizer.
On November 5 when Rotella first consulted him, Izumi
reacted by assuring Rotella, in effect, that he would not be
forced into the Engineers against his will. But Izumi could
not so readily support Rotella's wishes if Rafeedie and
Francisco, the other two carpenters, wanted to be
represented by the Operating Engineers. It appears that
July when the Engineers Union had also attempted to bnng Rotella under
its contract
5 Respondent's payroll records show Rotella's rate as $3 9983 The
testimony was that he received $3 71 per hour plus $50 per month
6 Francisco's discharge was the only conduct specified. However, the
charge also contained the catchall phrase "by other acts and conduct."
HILTON HOTELS CORP. 199
Rafeedie was a member of the Engineers Union and Izumi
was aware of that fact at least by November 18. Thus,
Izumi, faced with the Engineers claim to jurisdiction over
the carpenters and Rotella's resistance thereto, had a
reasonable and legitimate interest in knowing the desires of
the two other employees potentially affected.
The atmosphere of the conversations was friendly, with
Izumi trying to help Rotella maintain his preference for the
Carpenters over the Operating Engineers Union. There is
not a scintilla of evidence that Izumi suggested any hostility
to the Carpenters Union. Indeed, Izumi, who apparently
had been in the United States only a relatively short time,
was manifestly unknowledgeable as to labor matters. So far
as appears, he has no role in Respondent's labor relations
matters, which are conducted through a hotel association.
Although it may literally be said that Izumi's asking if
Rotella was the only carpenter who wanted the Carpenters
Union was "designed to permit ascertainment of the
identity of the employees and their support of the union," 7
Izumi had a reasonable, noncoercive purpose in seeking the
information. Under the circumstances, it cannot be said
that the questions attributed to Izumi by Rotella would
tend to interfere with, restrain, or coerce employees in the
exercise of their rights under Section 7 of the Act.
According to Rotella, in one of the conversations in
November, Izumi asked Rotella what carpenters' wages
would be under a Carpenters Union contract and thereafter
asked whether Rotella s preference for the Carpenters
Union was based solely on the prospect of obtaining higher
wage increases through that Union. Rotella answered,
presumably truthfully, that he was interested in both higher
wages and improved working conditions. The matter ended
there, with the two men apparently as friendly as ever.
Rotella had previously disclosed his membership in the
Carpenters Union and his feeling of identification as a
carpenter and lack of community of interest with engineers.
On the facts here presented, including the absence of any
evidence of prior animus against the Carpenters' or any
other union, it cannot be found that Izumi coercively
interrogated Rotella in November 1970. Accordingly, it will
be recommended that the complaint be dismissed so far as
it alleges such interrogations as violative of the Act.
C. Francisco 's Layoff
Francisco started to work as an apprentice carpenter for
Respondent on October 6, 1970. At or about 3:40 p.m. on
November 23, Rehabilitation Manager Izumi, after a
meeting with General Manager Nelson, informed Francis-
co that "management" had decided to lay Francisco off,
effective immediately, because of a decline in business. At
the time, a hearing was scheduled for November 25 on the
representation petition which the Union had filed on
November 9.
At the present hearing, the General Counsel attempted to
establish that Respondent sought to abort the representa-
tion proceeding by reducing to one the number of
carpenters eligible to vote. The General Counsel's apparent
theory was that Respondent discharged Francisco so as to
leave only Rafeedie and Rotella, who Respondent claimed
was ineligible as a supervisor.
The evidence at the hearing, however, established without
doubt that Francisco was not discharged but rather was
only laid off. According to both Francisco and Izumi, at the
time, Izumi "guaranteed" Francisco's recall as a carpenter
at the earliest opportunity. Thus, Francisco would presum-
ably have been eligible to vote in a carpenters' election on
November 25, despite the layoff action of November 23.
Filler Products, Inc., 159 NLRB 1536, 1554, enfd. in part,
376 F.2d 369 (C.A. 4). But, while Respondent maintains
that Francisco was laid off, not discharged, it does not refer
to his continued employee status in refutation of the
General Counsel's theory. On cross-examination, after
considerable fencing and equivocation, General Manager
Nelson admitted that he had been "vaguely" briefed by
counsel and that "perhaps [counsel ] may have mentioned"
that the Board would not conduct an election for a one-
member bargaining unit. That Respondent's counsel
considered the Board's policy concerning one-employee
bargaining units sufficiently relevant to discuss with Nelson
certainly suggests that Respondent believed Francisco's
layoff on November 23 would render him ineligible to vote
in a carpenters' election. But in his brief, the General
Counsel does not expressly contend that Respondent's
specific motivation was a desire to avert an election by
disenfranchising Francisco. He concludes his argument on
this phase of the case by saying that "Francisco's sudden
termination was due either wholly or in substantial part to
his union activity and Respondent's desire to destroy or
severely undermine the Union's strength."
Respondent contends that no finding of discriminatory
layoff can be made because the General Counsel has failed
to establish that Respondent knew of Francisco's Union
sympathies or activities and there is an absence of any
evidence that Respondent harbored any union animus.
Affirmatively, Respondent maintains that the layoff was
purely economic, based on a decline in business.
Despite Izumi's denial, the Examiner credits Rotella's
testimony that in November he told Izumi that the three
carpenters all favored the Carpenters' Union. Basically, in
view of the circumstances leading Rotella to consult Izumi,
it would appear natural, if not inevitable, that the wishes of
the other carpenters would be discussed. Further, observa-
tion of the witnesses and analysis of their testimony leads
the Examiner to discredit Izumi wherever his testimony
conflicts with Rotella's. There were significant inconsisten-
cies and equivocation in Izumi's testimony. For example he
testified that it was he, in consultation with Nelson, who
selected Francisco for layoff. However, at the time, he told
Francisco and Rotella that the decision had been made by
"management" and, in effect, that Izumi was carrying out
orders which he was powerless to influence. In attempted
explanation of the inconsistency, he testified that he "is
management." But throughout the rest of his testimony he
used the word "management" to refer to high-echelon
personnel, whom he once identified as General Manager
Nelson and Resident Manager Dalani. Although, as a
native of Japan, Izumi has some difficulty with the English
7 See Cannon Electric Co, 151 NLRB 1465, 1470, citing Bourne v
N L R B, 332 F 2d 47,48 (C A 2)
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
language , he engaged in somewhat sophisticated semantics
before finally conceding that counsel had told him not to
allow union organizer Menges to meet the employees on
Respondent's premises. On the other hand, there are no
substantial deficiencies in the testimony of Rotella, to
whom English is also a second language . Additionally, as
contended by the General Counsel, the smallness of the
group involved supports an inference of employer knowl-
edge of the status of union activity. N.L.R.B. v. Pembeck
Oil Corp., 404 F.2d 105, 110 (C.A. 2), remanded 395 U.S.
828; N.L.R.B. v. Mid State Sportswear, Inc., 412 F.2d 537,
539 (C.A. 5); Big Town Super Mart, Inc., 148 NLRB 595,
606-607.
To be sure, as Respondent argues, there is no evidence of
a history of union animus on the part of Respondent, which
maintains collective-bargaining relationships with several
other unions. However, the absence of such general union
animus is not itself conclusive. For example, it is
conceivable that Respondent specifically opposed the
Carpenters Union to avoid potential difficulty with the
Operating Engineers, which had claimed jurisdiction over
the carpenters. While not necessarily improper Keiler's
advice to Izumi concerning Menges' visits to the hotel
suggests some hostility to the Carpenters Union.8
The layoff was made abruptly, with no advance notice, 2
days before the scheduled election. It came at the end of
business on Monday, although, in testifying concerning
Francisco's reinstatement Izumi indicated that personnel
actions are generally made effective at the beginning of a
week. Francisco testified similarly concerning his original
employment. In addition, Rotella credibly testified that in
1967 an employee was given 2 weeks' notice of a proposed
layoff and he knows of no subsequent layoff without notice.
In view of Nelson's testimony that decisions to have layoffs
are usually made on the basis of projections, it would
appear reasonable that some advance notice would be
feasible.
Indeed, Nelson's testimony suggests that advance notice
is frequently given. He testified that because the hotel
business is seasonal , economic layoffs are frequent. When
an economic layoff is proposed, he speaks to his
department heads and asks each of them to cut his staff by
any possible means , including requests that employees
"take voluntary leave of absence over a holiday period."
Nelson does not generally impose departmental quotas or
participate in the selection of persons or positions to be
eliminated. In the present case , however, he actively
participated in the selection of Francisco for layoff.
Nobody was asked to take a "voluntary leave of absence."
Respondent offered no explanation of the departure from
Nelson's usual practice.
Presumably to establish the necessity for layoffs, Nelson
testified that the hotel' s gross revenues in November 1970
were $631,586, as against $818 ,505 in November 1969.
Whatever probative value these figures might have standing
alone, (without comparison of other months and trends and
without gross profit and similar data), they are essentially
6 "Q Did Mr Keller instruct you to do anything if Mr Menges
appeared at the hotel again9 A He's not my instructor, he don't tell me
nothing You 're asking me, he instructed No. Q Did he tell you
anything9 A No. . Oh, I see Mr Keller said , 'This is hotel's property'
immaterial in view of Nelson's further testimony that the
layoff "resulted from a phone call [Nelson] received from
[his] senior vice president, who had a call from the West
Coast, indicating that all the hotels were experiencing
adverse business and to look at each department carefully
and make any cutbacks that he possibly could."
Nelson testified that there were layoffs in other
departments, but he provided no details as to the number or
identity of the persons laid off or as to the savings realized.
Although he testified that he had received his telephonic
instruction "about in the middle of November," he made
no attempt to show the temporal relationship between the
call and any of the layoffs.
Nelson also testified that the layoffs were dictated in part
by the fact that the hotel's "convention forecast" showed "a
slow December coming up." Yet he also testified that he
"assumed" the banquet department hired employees in
December "if they had an attrition of personnel." He did
not apparently make any effort to arrange temporary
transfers of employees from other departments to the
banquet department. Francisco, on his own initiative,
secured employment in the banquet department, where he
had worked sometime before on a part-time basis.
If, as Respondent maintains, Rotella was required to
spend a large part of his time on supervisory and
administrative work, Francisco's layoff left Respondent
with only one full-time operating carpenter while retaining
three painters and two paperhangers.
According to Nelson, a carpenter was chosen for layoff
rather than a painter or paperhanger because decoration
must continue despite vacancies and guest rooms could be
painted while vacant during the anticipated December lull.
When later confronted with the fact that the Washington
Hilton had laid off a painter and a wall washer, retaining
three carpenters, Izumi attributed the disparate conduct to
the relative age of the two buildings, the Statler being some
30 years old, the Washington Hilton being only about 6.
However, the explanation is not entirely convincing since
paint and wall covering generally seem to deteriorate at the
same rate in old and new structures, while one might expect
that the amount of necessary carpentry repairs would
increase with advancing age. Nelson also testified that the
painters were needed to work on some remodelling work
which was done by outside carpenters under contract in
November and December. No details were given as to the
amount of such painting. It does appear that Respondent's
own carpenters did about 40 to 50 hours of work on this
remodelling in December.
According to Francisco and Rotella, when Francisco was
laid off there was a considerable backlog of carpentry work,
caused in part by Rotella's absence from June 4 to August
17 because of an injury. Rotella credibly estimated the
backlog on November 23 at between 100 and 150 orders.
Payroll records for the weeks ending October 3, 1970,
through January 16, 1971, submitted by Respondent, do
not establish any decline in carpentry work as compared
with painting and paperhanging.
And he say if he wants to meet the carpenters, he should see them outside,
not on the working hours, not on the premises . That's the only thing he
told me He didn't instruct me, no."
HILTON HOTELS CORP 201
Nelson also testified that there had been layoffs in July
1970 because of declining business. Nonetheless, Izumi was
then actively looking for an apprentice carpenter to hire.
His search was unsuccessful until Francisco appeared on
the scene late in September. At that time Izumi assured
Francisco of steady work. Izumi had at all times been
extremely pleased with Francisco's work. It appears
unlikely that, with carpenters so difficult to find, Respon-
dent would risk permanently losing Francisco's satisfactory
services because of a seasonal decline in business,
particularly where, as the evidence establishes, Respondent
retained a wall washer who Rotella and Izumi agreed was
unsatisfactory and whom Rotella had recommended
discharging on several occasions.
The abruptness and timing of Francisco's layoff "are
persuasive evidence as to the motivation." N.L.R.B. v.
Montgomery Ward & Co., 272 F.2d 497, 502 (C.A. 2), cert.
denied, 355 U.S. 829) and establish a prima facie case of
discriminatory discharge, placing on Respondent "the
burden to come forward with an adequate explanation."
N. L. R. B. v. Standard Container Co., 428 F.2d 793, (C.A. 5)
Respondent's evidence is insufficient to meet this burden.
On all the evidence, the Examiner concludes that
Francisco's layoff was motivated by Respondent's desire to
prevent the Union's becoming the collective-bargaining
representative of the carpenters. The layoff therefore
violated Section 8(a)(3) and (1) of the Act.
D. Respondent 's Trial Preparation
1. The facts
Laid off by Respondent's Rehabilitation Department on
November 23, Francisco went to work for Respondent's
Banquet Department on December 10. After working there
a while on a full-time basis on the day shift, he transferred
to part-time work on the night shift while working days as
an apprentice carpenter with a construction company.
When the construction company job ended, he reverted to
full-time work on the day shift with Respondent's banquet
department, where he worked a few days until his return to
the rehabilitation department in January 1971.
Around December 3, Francisco asked Izumi for rein-
statement and Izumi replied that business was still down.
Francisco applied again around December 10 and, after
consulting Nelson, Izumi gave Francisco the same answer.
Sometime around the end of December, Francisco
obtained backpay forms from the Board's Regional Office.
At Rotella's suggestion, Francisco thereafter visited Izumi
and volunteered to refrain from returning the backpay
forms to the Board if Izumi would reinstate him. Francisco,
Izumi, and Rotella all believed, mistakenly, that the
backpay forms constituted a charge or "backpay claim."
After speaking with Nelson, Izumi informed Francisco that
he was being reinstated as of the next Monday, January 11.
Francisco went back to work in the rehabilitation
department at that time, with his hourly wage rate
increased from $2.75 to $3.
On Monday, February 1, Francisco was called to the
rehabilitation office, where in the presence of Izumi, he was
interviewed by Joel I. Keiler, Esquire, Respondent's
counsel. Keiler testified that he had Francisco called for the
interview because Izumi said that Francisco was in favor of
Respondent's position and would probably be a coopera-
tive witness.
At the outset of the meeting, Keiler said that he was
preparing for the hearing scheduled for February 5 and
would like to question Francisco. Keiler clearly stated that
Francisco's answering questions was voluntary and there
would be no rewards for cooperation or reprisals for refusal
to talk. Francisco said that he was willing to answer any
questions because he was not afraid of the truth. Keiler said
he would like to have a written statement and assured
Francisco that his signing a written statement, like his
orally answering questions, would be voluntary, with
neither rewards nor punishments for signing or refusing to
sign. Keiler wrote Francisco's statement; Francisco read it,
noted corrections, initialed changes, and signed. There is no
question that Francisco was advised and fully understood
that his participation and cooperation in this interview were
entirely voluntary.
Keiler and Izumi testified that Francisco said that he did
not want to attend the hearing and that, after being
reinstated to hisjob, he had asked the Union and the Board
to drop the case. Although Francisco was recalled as a
rebuttal witness after Keiler and Izunu had testified, he did
not deny having made the statements so attributed to him.
The Examiner finds that Francisco expressed his personal
preference not to appear at the hearing in support of a
backpay order, the only affirmative remedy possible under
the complaint.
Izumi then asked Francisco why he planned to attend the
hearing in view of his prior promise to Izumi not to pursue
the backpay claim. Francisco replied that he had kept his
promise by refraining from executing and returning to the
Board the backpay forms he had previously shown Izumi.
Francisco indicated that the pending case was "the
Union's" and beyond his control. Francisco further
indicated that he was going to attend the hearing in effect
because he was required to. Keiler confirmed Francisco's
statement that the proceeding had been initiated by the
Union rather than Francisco.
Keiler then asked if Francisco had received a subpoena.
When Francisco replied in the negative Keiler stated that
Francisco need not appear at the hearing because it was
then too late for valid service of a subpoena, the Board
Regulations providing for service at least 5 days before the
required appearance. Keiler and Izumi told Francisco
several times that it was up to him whether to attend and
testify at the hearing and that nothing could happen to him
because he chose to appear or not to appear.
At the meeting on February 1, Keiler asked Francisco
about his Union activities. Francisco disclosed that he,
together with Rotella and Rafeedie, had spoken with a
Board agent at the Union hall. According to Francisco,
Keiler then asked "what it was all about" and Francisco
replied that the Board's lawyer had asked the three
employees for the same information Keiler was seeking.
Keiler denied having asked more than "what government
attorneys were doing at the union hall talking to him."
Whatever his precise words, their effect was a general
question concerning the meeting of the employees with
Board representatives at the Union hall. He did not pursue
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the matter with inquiries as to specific questions asked by
the Board agents or as to the employees' answers. When
Francisco said that the Board agents inquired about the
same questions that Keller was asking, Keller said he hoped
the employees had told the Board agents the truth.
Francisco volunteered the information that in one or two
matters, relevant to Rotella's supervisory status, Francis-
co's and Rotella's expressed views were somewhat different.
Francisco also disclosed that he was scheduled to talk to
a Board agent that evening, February 1. Keiler advised him
that he was not legally required to meet with Board
representatives and that whether he chose to or not was
entirely up to him.
The evidence establishes that Francisco did then confer
with a Board representative. He informed the Board
attorney of his interview with Keller, including Keller's
statement that Francisco could not now be subpoenaed for
the hearing because he was entitled to at least 5 days'
notice. The Board attorney said that Francisco would be
required to honor a subpoena even if served as late as an
hour before the commencement of the heanng and that if
he failed to honor it he could be forcibly brought to the
hearing by a United States Marshal.
Francisco was served with a subpoena, apparently at the
meeting on the evening of February 1, although there is no
direct evidence to this effect.
Francisco met with Izumi and Keller in Izumi's office
again on February 3. Izumi testified that Francisco asked
for an interview with Keeler and Keller testified that he saw
Francisco in response to Izumi's statement to that effect.
Francisco, however, denied that he had asked to see Keiler.
Francisco testified that he was summoned to the February
3 meeting by Izumi. The Examiner finds Francisco to be a
conscientious, accurate, and credible witness. Crediting
Francisco over Izumi, the Examiner finds that Francisco
did not request the second interview with Keeler. However,
it does appear that Francisco informed Izumi of the receipt
of the subpoena. It is reasonable to assume that Francisco
also told Izumi of the Board attorney's forceful statements
concerning the compulsory nature of the subpoena and
expressed his "confusion" over the conflicting advice of the
two attorneys. Izumi apparently freely and wishfully
translated Francisco's bewilderment into a request for
further enlightment by Keeler.
At the meeting on February 3, Keiler asked to see the
subpoena Francisco had received. Upon examining it,
Keeler first noted that it misstated the courtroom in which
the hearing was to be held.9 When Keeler repeated his
previous advice that Francisco need not honor the
subpoena because served less than 5 days before the
hearing, Francisco told him of the contrary advice he had
received from the Board's attorney. To support his
statement that the Board attorney was wrong, Keiler
produced a copy of the Board's Regulations and referred to
9 Apparently the subpoena called for appearance at the United States
Tax Court Courtroom No I (Room 2132 of the Internal Revenue Service
Building), whereas the hearing was held in Courtroom No 2 (Room 2142
of the I R S Building ) The notice of heanng had specified Courtroom No
I and it does not appear when or how Keller learned of the change
10 Sec 10231(b) reads in part "Any person served with a subpena,
whether ad testificandum or duces tecum, if he does not intend to comply
with the subpena, shall , within 5 days after the date of service of the
Section 103, which he both read aloud and had Francisco
read for himself.10 Francisco asked what a "revoke" was
and Keller replied that it was a paper telling the court why a
person should not be required to appear and testify.
Francisco said that he did not know what to do since he was
"confused" by the conflicting legal opinions of the Board's
and Respondent's counsel.
Keller testified that Francisco then asked Keeler if he
would prepare a petition to revoke the subpoena if
Francisco wanted him to, and Keller said he would.
Francisco indicated that Keller had taken the initiative in
offering to prepare such a petition upon Francisco's
request. Whichever man first mentioned the possibility of
Keiler's preparing the petition, the evidence is undisputed
that Francisco asked Keiler for his business card for use if
Francisco wanted to have a petition prepared. Keiler wrote
his home telephone number on the card because Francisco
said he might want to call that night, apparently after a
further meeting he was to have with a Board representative.
Izumi and Keller again said that it was up to Francisco
whether he attended the hearing or not. Francisco said that
he felt obligated to testify because he had promised the
Board's representative that he would . Izumi again remind-
ed Francisco of his earlier promise not to pursue the claim
for backpay upon reinstatement. Keiler opined that
Francisco made too many promises and said that whether
he kept his promises was purely a matter of his own
conscience.
In the course of the meeting Francisco said "that the
whole thing was a big trouble" to him and it gave him "a lot
of headaches." Keller said that Francisco's trouble was
caused by the Union' s filing the charge. Keiler also asked if
the Union had offered Francisco any inducement for
proceeding with the case and suggested that the Union
might have offered Rotella some benefits for his favorable
testimony. Francisco summarily rejected both suggestions.
Francisco said that he had thought the present case "was
to get the union in." Keller, on his part, advised Francisco
that a Union victory would not necessarily achieve a speedy
contract. He observed that the Mayflower Hotel still had no
contract 6 or 7 months after an election.
At both meetings, in response to Francisco's questions,
Keller said he was confident that Respondent would win
this case . Keeler indicated his belief that the hotel could lose
only if witnesses lied. He added that perjury was punishable
by imprisonment. Francisco asked why Respondent was so
concerned about his appearance at the hearing if Keiler was
as confident of victory as he professed to be. Keiler replied
that Respondent's concern stemmed from the cost of
defending, which was greater than the amount of backpay
involved. For his part, Francisco also expressed disinterest
in the backpay, which amounts to relatively little.
subpena upon him, petition in writing to revoke the subpena ... The trial
examiner or the Board, as the case may be, shall revoke the subpena if in
its opinion the evidence whose production is required does not relate to
any matter under investigation or in question in the proceeding or the
subpena does not describe with sufficient particularity the evidence whose
production is required , or if for any other reason sufficient in law the
subpena is otherwise invalid."
HILTON HOTELS CORP. 203
2. Discussion
a. General observations
The amended complaint contains three paragraphs
alleging misconduct by Keiler and one alleging misconduct
by Izumi in the pretrial meetings with Francisco. In his
brief, the General Counsel argues that the February 1 and 3
meetings were generally coercive. He then proceeds to
discuss specific examples of allegedly "per se" coercive
interrogation and concludes with a contention that through
these meetings Respondent interfered with Board processes
by attempting to induce Francisco not to appear and testify
at the hearing. Basically, the General Counsel attempts to
evaluate Respondent's conduct against the ground rules set
forth in the Johnnie's Poultry Co, 146 NLRB 770, 774-775,
enfd. denied on the grounds, 344 F.2d 617 (C.A. 8), as
follows:
Despite the inherent danger of coercion therein, the
Board and courts have held that where an employer has
a legitimate cause to inquire, he may exercise the
privilege of interrogating employees on matters involv-
ing their Section 7 rights without incurring Section
8(a)(1) liability The purposes which the Board and
courts have held legitimate are of two types: the
verification of a union's claimed majority status to
determine whether recognition should be extended .. .
and the investigation of facts concerning issues raised in
a complaint where such interrogation is necessary in
preparing the employer's defense for trial of the case.
... the Board and courts have established specific
safeguards designed to minimize the coercive impact of
such employer interrogation. Thus, the employer must
communicate to the employee the purpose of question-
ing, assure him that no reprisal will take place, and
obtain his participation on a voluntary basis; the
questioning must occur in a context free from employer
hostility to union organization and must not be itself
coercive in nature; and the questions must not exceed
the necessities of the legitimate purpose by prying into
other union matters, eliciting information concerning
an employee's subjective state of mind, or otherwise
interfering with the statutory rights of employees. When
an employer transgresses the boundaries of these
safeguards, he loses the benefits of the privilege.
In defining the area of permissible inquiry, the Board
has generally found coercive, and outside the ambit of
privilege, interrogation concerning statements or affi-
davits given to a Board agent. For such questions have a
pronounced inhibitory effect upon the exercise by
employees of their Section 7 rights, which includes
protection in seeking vindication of those rights free
from interference, restraint, and coercion by their
employer. Moreover, interrogation concerning employ-
ee activities directed toward enforcement of Section 7
rights also interferes with the Board's processes in
carrying out the statutory mandate to protect such
rights... .
The principles, so lucidly enunciated, are not always easy
ii Rotella's eligibility could properly be determined in the representa-
tion proceeding
i2 The Union had not demanded recognition and thus there could be no
to apply. The total context must be taken into account.
Significant in the present case is the ambivalent position in
which Francisco had been placed. He had solicited the
agreement with Izumi for reinstatement in return for a
waiver of any backpay. In utter good faith, Izumi accepted
the proposal. Neither of the men, who are not natives of this
country, had any reason to believe that their amicable
arrangement would not end the matter. Francisco himself
testified that he thought his reinstatement ended the matter
and that the continued proceeding was for the purpose of
getting the Union in as bargaining representative.
For his part, Izumi understandably believed that
continuation of the proceeding would constitute a disho-
norable breach of his word by Francisco. Thus, the
Examiner credits Izumi's and Keller's testimony indicating
that Izumi thought Francisco would be a friendly witness
for Respondent and that Francisco wanted to have the case
dropped and would prefer not appearing and testifying at
the hearing.
It would undoubtedly be out of order for the Examiner to
express any opinion as the administrative judgment of the
General Counsel in proceeding with the present case after
the parties primarily concerned had reached an amicable
agreement and, according to Francisco's own testimony,
Keeler had unequivocally acknowledged Francisco's eligi-
bility to vote in the election.ii But the salient facts are that
Francisco did not want to proceed with a Section 8(a)(3)
charge on his behalf, his only affirmative desire apparently
being to bring the Union in, a result which could not be
achieved in the present proceeding.i2
While the peculiar facts in this may not render the
Johnnie's Poultry standards inapplicable, they must be
considered in determining the ultimate question whether
Respondent's conduct was coercive or tended to interfere
with Board processes.
The General Counsel's specific contentions will now be
considered in the light of the underlying situation.
b. Izumi
As amended at the beginning of the hearing, the
complaint alleges that on February 3, Izumi "interrogated
... Francisco about his motivation for appearing and
testifying at the hearing . . . in order to persuade him not to
appear and testify."
Francisco credibly testified that Izumi asked Francisco
why he was going ahead with the matter after having
promised not to "make the charge ." The General Counsel
argues that Izumi's question impermissibly sought to elicit
information as to Francisco 's "subjective state of mind"
within the strictures enunciated by the Board. Johnnie's
Poultry Co., supra . In the Examiner's opinion, the Board's
rule cannot be so automatically invoked . There is no basis
for inferring that Izumi's question was calculated to elicit
information concerning protected activity or useful in
opposing the Union . One might be surprised if, under the
circumstances, Izumi had failed to indicate some conster-
nation or puzzlement at Francisco's apparent disregard of
the promise he had voluntarily made . With Francisco's
Section 8 (a)(5) allegation No request was ever made for a bargaining order
based on the alleged violations of Section 8(a)(i) and (3) And the present
record certainly would not support any such remedy.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having made it clear that he did not want a claim and that
the case was causing him great "headaches" any person in
Izumi's position would wonder why Francisco actually was
going ahead.
After Keller confirmed Francisco's statement that the
Union rather than Francisco was pursuing the matter,
Izumi apparently asked no further questions. At no time
did Izumi ask or advise Francisco not to appear, even
though Francisco's testifying might well cause Izumi some
loss of face. Along with Keiler, Izumi several times told
Francisco that it was entirely up to him whether to appear
or not.
Izumi did, however, refer several times to Francisco's
prior promise not to make any claim for backpay. There
can be no doubt that such reminders would tend to
dissuade Francisco from appearing. There is no doubt that,
as the General Counsel maintains, "the act of seeking to
persuade an employee to forego participation in a Board
proceeding constitutes interference, restraint or coercion
within the meaning of Section 8(a)(1) of the Act." Alterman
Transport Lines, Inc., 127 NLRB 803, 804; The Duplan
Corporation, 139 NLRB 1028, 1034-1036. But not every
attempt to influence an employee not to participate in a
Board proceeding requires a remedial order. Frontier
Homes Corp., 153 NLRB 1070, 1074, enfd. in part, 371 F.2d
974 (C.A. 8).
If Francisco felt under pressure because of Izumi's
reference to their agreement, the pressure was caused by his
conscience at furthering action which he had agreed not to
take. As an obviously honorable man, Francisco was sorely
tried by having to repudiate, in spirit if not literally, a
bargain he had initiated and which Izumi had not only
performed but even overperformed by granting a wage
increase which had not been part of the bargain.
Under the circumstances, to hold Izumi's reminding
Francisco of a promise given and accepted in good faith
was "coercive" or otherwise unlawful would be to
dehumanize the law inexcusably. On all the evidence, the
Examiner finds that the General Counsel has not
established that Respondent violated the Act by Izumi's
conduct on February 1, 1971
c. Keller
The evidence is undisputed that Keiler gave Francisco
the required assurances and that Francisco's participation
in the conferences was completely voluntary.13 Further, it
cannot be said that the interviews were conducted in a
context of employer hostility to union organization.
Francisco had already been fully reinstated and there is no
evidence of general hostility to unionization on the part of
Respondent. It is undisputed that Respondent has collec-
tive-bargaining relations with about eight other unions and,
as previously stated, from the beginning Izumi had been
sympathetic to Rotella's preference for membership in the
Carpenters' Union.
13 In a footnote in his brief, the General Counsel says "No assurances
against reprisals were given to Francisco prior to the second interview"
The record does not affirmatively so establish The second meeting
concerned Francisco 's appearance at the hearing and the subpoena he had
received There was no contradiction of Keder's testimony that on this
occasion he also said to Francisco "Whether you want to go or not, that is
Nor is there any merit to the General Counsel's
contention that Izumi's presence infused a "coercive
coloration" into the meeting. On the contrary, Francisco
and Izumi were apparently on very good terms; Izumi had
never indicated any hostility to the Union, and Izumi had
been responsible for Francisco' s reinstatement at an
increased wage rate. Although a supervisor, Izumi was, in
the labor relations situation, a subordinate, and his
presence would, if anything, tend to give comfort to
Francisco in the face of Keiler's somewhat authoritarian
position and manner. Izumi's presence might have
embarassed Francisco because of their previous gentle-
men's agreement, but this could scarcely constitute the
"coercive coloration" found significant in N.L.R.B. v.
Neuhoff Bros. Packers, Inc, 375 F.2d 372 (C.A. 5);
Automotive Warehouse Distributors, Inc., 171 NLRB No.
101; and Hickman Garment Co., 184 NLRB No. 103, cited
by the General Counsel.
On February 1, Keiler asked Francisco if he had signed a
Union card and engaged in any other Union activities. In
reply, Francisco said that he, Rotella, and Rafeedie had all
signed cards. The General Counsel contends that such
questions, even though accompanied by assurances against
rewards or punishment, were violative of the Act because
"totally irrelevant to the preparation of Respondent's
defense." The General Counsel's argument proceeds:
While it is true that in an 8(a)(3) case it is necessary to
establish that the alleged discriminatee engaged in some
union activity, the burden of proving this essential
element rests with the General Counsel and not with the
Respondent. Moreover, Respondent's potential defense
to an 8(a)(3) allegation would be lack of any knowledge
of union activity which it could easily discover from its
own supervisors.. .
In the Examiner's opinion, the General Counsel's
position has no merit. Where, as here, a complaint alleges
that an employee was terminated "because of his member-
ship in , assistance to, or activity on behalf of the Union," it
would be difficult to conceive of a question more relevant
to a defense than the alleged discriminatee's Union
activities. Respondent should not be relegated to exclusive
reliance on testimony by company representatives that they
did not know of such union activities, since, as the General
Counsel here argues, the Company witnesses are subject to
possible impeachment and disbelief and knowledge of
union activities is often found on circumstantial evidence,
including the smallness of the plant. If the Respondent's
right to interview employees is to have any meaning, it
certainly must cover at least the matters specifically alleged
in the complamt.i4
Accordingly, the Examiner finds that Respondent did not
violate Section 8(a)(1) by Keiler's asking Francisco if he
had signed a union card.
Keller also asked Francisco who had talked to him about
the Union card. Francisco replied that he had received the
card from Union Organizer Menges but had signed only
up to you "
14 Respondents cannot be restricted to the matters relevant to
"affirmative defenses," since the burden of proof is on the General Counsel
and respondents are often found to have violated Section 8(a)(3) even
when they established legitimate grounds for alleged discriminatory action
HILTON HOTELS CORP. 205
after discussing the matter with Rotella. There is no
apparent revelance of this question to the present
complaint , which alleged only Francisco's termination and
one incident of interrogation. In the absence of clearly
demonstrated relevance (Madison Brass Works, Inc., 161
NLRB 1206, 1211) questioning employees "as to the
identity of persons from whom they received union
authorization cards . . . goes beyond the permissible limits
set by the Board and is coercive in nature." Dixie Cup,
Division of American Can Co., 157 NLRB 167, 168. See,
also, Retail Clerks International Association v. N. L. R. B., 373
F.2d 655, 658 (C.A.D.C.); Sullivan Surplus Sales, Inc., 152
NLRB 132, 134; Texas Industries Inc., v. N. L. R. B., 336 F.2d
128, 133 (C.A. 5); N.L.R.B. v. Buddy Schoellkopf Products,
Inc., 410 F.2d 82, 88 (C.A. 5).
The General Counsel contends that Keller unlawfully
questioned Francisco concerning the content of interviews
conducted by a Board attorney with the three carpenters.
Francisco's version of the matter was that Keiler asked if
Francisco had attended any Union meetings , to which
Francisco replied in the negative. Francisco's testimony
continued:
And I told [Keiler] that I have been in a meeting in
the Carpenter Union Building, but there wasn't the
union people,just a lawyer from the Government.
He asked me what it was all about.
I told him that they asked me the same information
he [Keiler] was asking at the moment.
And he say who else had been there?
"Joe and Mr. Rafeedie."
And at that moment, he asked . . . what the lawyer
asked Joe and Faris
And I say, "The same questions make to me."
And I also told him that I feel-I feel that for me
somethings that Joe say is not exactly how I think,
concerning about the supervisor, concerning about he is
a supervisor or not, if he is or not a supervisor
Keiler's version was:
I asked him if he had any other union activities that
we might know about. And he said he was over at the
union hall one night talking to Government attorneys.
And I asked him what Government attorneys were
doing at the union hall talking to him, and he said it had
to do with the trial. And I said, "I hope you told the
truth." And he said, "Yes, I told the truth, but Rotella
didn't..
To the extent that these two versions differ, the Examiner
credits Francisco.
None of the evidence indicates that Keiler took the
initiative to find out about interviews with Board agents, or
pursued the matter to obtain detailed information concern-
ing the subjects covered, or attempted to advise Francisco
as to the "proper" answers to Board inquiries. Thus, the
present case is factually distinguishable from Sinclair Glass
Co., 188 NLRB No. 33, TXD; Texas Industries, Inc, 139
NLRB 365, 367, enfd . in pertinent part, supra, at 133-134,
on which the General Counsel relies.
However, "the Board has generally found coercive, and
outside the ambit of privilege, interrogation concerning
statements in affidavits given to a Board agent." Johnnies
Poultry Co., supra. It is of the utmost importance that no
conduct be sanctioned which might tend to discourage
employees from seeking the Board 's assistance in vindicat-
ing their Section 7 rights. Thus, while Keiler's conduct at
the February 1 meeting was not egregiously improper, the
Examiner concludes that he did step beyond permissible
bounds by asking Francisco questions related to the
employee interviews with Board agents.15
The General Counsel next maintains that Keiler violated
the Act on February 1 by asking Francisco if he was going
to attend the hearing. According to the General Counsel
that question was an impermissible inquiry into Francisco's
"state of mind." This argument, however, at best,
substitutes verbalism for reality. Keiler was at the time
preparing to defend against the complaint. As he testified in
answer to questions by the General Counsel, it would be
"very helpful in preparing his defense to know whether
Francisco would testify since "if he wasn't going to be at
the hearing, it is a whole different case." 16 Since, as
previously found, Francisco made clear his desire to be rid
of the matter and he had not been subpoenaed, it would be
reasonable for Keiler to ask if Francisco intended to
appear. This did not constitute delving into Francisco's
"subjective" thoughts about the Union or any of the
substantive matters involved. The Examiner holds that
Keiler's question in this regard did not amount to coercive
interrogation in violation of Section 8(a)(I).
Next the General Counsel argues that on February 3
Keiler "pried into union matters not relevant to" the case
when he asked if the union had offered Francisco anything
for appearing and suggested that the Union might have
promised Rotella "a foreman's job for testifying. Although
Keiler testified that he "didn't think anything" he said on
February 3 "was disparaging" of the Union, the Examiner
will assume that, as Francisco testified , Keiler did raise the
speculative possibility that the Union had attempted to
"buy" Francisco's and Rotella's cooperation in the present
proceeding.
Though such comments or questions may not have been
in the best of taste or very gentlemanly, they cannot be said
to be irrelevant to Respondent's defending itself against the
complaint. A virtually inevitable issue was the veracity of
Rotella and Francisco. Impeachment of them would be
perhaps Respondent' s most effective defense.
The General Counsel's major contention is that Keiler,
with Izumi, attempted to interfere with Board processes by
persuading Francisco not to appear at the hearing.
According to the General Counsel, Keiler's misconduct
consisted primarily of his "erroneously" advising Francisco
that he was not obliged to honor the subpoena and offering
to prepare a petition to revoke the subpoena if Francisco so
desired.
There can be little question that Respondent would have
preferred that Francisco not appear at the hearing. But
15 The Examiner is sympathetic to Respondent's counsel's "duty to his balance must be struck in favor of employees' uninhibited recourse to the
client to discover as best he could what evidence might be available to the Board
Union to support its charge and thus available to General Counsel to 16 In answer to Francisco's questions , Keiler had disclosed his intention
support a complaint" Walker's, 159 NLRB 1159, 1178 However, the to move for dismissal of the case if Francisco did not appear
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's preference does not establish that it improp-
erly attempted to persuade Francisco to absent himself.
There is no dispute that Keiler advised Francisco that he
did not have to appear without a subpoena issued at least 5
days before the hearing. According to the General Counsel,
this view was erroneous. N.L.R.B. v. Strickland, 220
F.Supp. 661 (W.D. Tenn.), affirmed 321 F.2d 811 (C.A. 6).
Respondent, on the other hand, maintains that "Keiler's
remarks were merely a short-hand statement of the rights
[under Section 102.3 of the Board's Regulations] of a
witness who is served with a Board subpoena." Keiler also
agreed to prepare a petition to revoke the subpoena if
Francisco wanted one.
There is no suggestion that Keiler knowingly or
intentionally misstated the law. Even if we assume that the
Strickland case is controlling and conclusive, it cannot be
said that the expression of an erroneous legal opinion is per
se an unfair labor practice.
The General Counsel appears to contend, however, that
Keiler violated the law by undertaking to give any legal
advice to Francisco. On cross-examination by the General
Counsel, Keiler was asked how many times he had told
Francisco that it was up to him whether to appear at the
hearing. The following colloquy ensued:
A. Approximately three times, each time. Because
he kept saying over and over, how he wanted to drop
the thing, how he was involved, he was caught in the
middle, how he told Mr. Menges to drop it, how he and
Rotella and Rafeedie had gone to the Board to try to get
them to drop it. And he must have said that to me at
least three times, each time, and each time, I told him
the same thing, "Whether or not you go is up to you." I
did not volunteer that to him.
Q. You don't consider this volunteering?
A. No. When somebody says he doesn't want to go,
and does he have to go, I don't consider it volunteering
to say, "If you want to go, you can go. And if you don't
want to go, you don't have to go."
Q. Why didn't you tell him to call up the Board
agents, the Board attorney, to find out if he had to go?
A. Because I worked for the Board for four and a
half years, and I know Board agents and Board
attorneys give a lot of rotten advice.
In partial defense of Keiler's acerb answer, it will be
recalled that a Board agent had threatened Francisco with
virtual arrest upon his failure to honor a subpoena.17 So far
as appears, the Board attorney did not mention the
possibility of a petition to revoke the subpoena or the need
for a court order before the authority of a federal marshal
could be invoked. 18
The inescapable fact is that Francisco was being used as a
it To his credit , Francisco , an honest and idealistic young man, testified
that the threat of a federal marshal was less important than the fact that he
had given Board agents his word that he would attend the hearing
ie The record in this case casts shadow on the footnote in the General
Counsel's brief reading "As an admitted former Board attorney, Keller
was well aware of the fact that as a witness for the General Counsel, any
inhibitions about testifying Francisco might have had, and all the legal
ramifications attendant thereto, would have upon a simple inquiry been
developed with him by qualified representatives of the Board ' s Fifth
Region "
19 The General Counsel suggests that Keiler may have been guilty of a
breach of the ABA Code of Professional Responsibility , DR 7-104, which
pawn by antagonists. Nobody apparently was prepared to
advise him in the light of his personal interests. At the
hearing, he indicated that he was interested in the case
because he thought it was the vehicle for securing Union
recognition. So far as appears, nobody attempted to correct
this misapprehension. In view of his good-faith bargain
with Izumi, initiated by Francisco himself, it was not in his
personal interest to appear in support of the present
complaint. Under the circumstances, the General Counsel,
representing the public interest, was in no better position to
advise Francisco than was Respondent's counsel.19
In the Examiner's opinion, the present case is governed
by The Babcock and Wilcox Co., 114 NLRB 1465,
1466-1467, in which the Board held nonviolative an
employee's attorney's giving a reluctant employee witness
advice on how to avoid honoring a Board subpoena. It is
not necessarily an unfair labor practice for an employer to
furnish legal advice to employees concerning Board
subpoenas. Bryant Chucking Grinder Co., 160 NLRB 1526,
1564, enfd. 389 F.2d 565 (C.A. 2); Bauer Aluminum Co., 152
NLRB 1360, 1367, enf. denied on other grounds sub nom.
Republic Aluminum Co. v. N.L.R.B., 374 F.2d 183 (C.A. 5).
The present case is factually distinguishable from Winn-
Dixie Stores, Inc., 128 NLRB 574, Smith & Wesson, 174
NLRB No. 152 , and Sunshine Art Studios, Inc., 152 NLRB
565, on which the General Counsel relies. In none of those
cases had the subpoenaed employees initially indicated any
desire not to testify. And in Winn-Dixie the supervisors
"used veil[ed] threats to intimidate [the employees] into
ignoring the subpoenas."
CONCLUSIONS OF LAW
1. By interrogating an employee concerning the source
of the Union authorization card he signed and concerning
employees' interviews with representatives of the Board,
Respondent interfered with, restrained, and coerced
employees in the exercise of their rights under Section 7,
thereby engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. By laying off employee Wellington J. S. Francisco on
November 23, 1970, and failing to reinstate him until
January 11, 1971, Respondent discriminated in regard to
hire and tenure of employment in violation of Section
8(a)(3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. The General Counsel has not established that
Respondent has engaged in any unfair labor practices other
than those specified above.
states . "During the course of his representation of a client a lawyer shall
not . . [g live advice to a person who is not represented by a lawyer, other
than the advice to secure counsel , if the interests of such person are or have
a reasonable possibility of being in conflict with the interests of his client."
The Examiner makes no finding as to the applicability of that rule to any
counsel in this case Nor does the Examiner express any opinion
concerning possible transgressions of other rules See, e g , DR 7-106(c)(3)
and (6) The Examiner's sole function was to hear and decide an unfair
labor practice complaint . Contravention of accepted standards of
professional conduct is not necessarily violative of the National Labor
Relations Act.
HILTON HOTELS CORP. 207
THE REMEDY
Having found that Wellington J. S. Francisco was
discriminatorily laid off, but that he has been fully and
properly reinstated, the Examiner will recommend that he
be made whole for the loss suffered by the layoff, backpay
to be computed in accordance with F W Woolworth Co., 90
NLRB 289, with 6 percent per annum interest, in
accordance with Isis Plumbing and Heating Co., 138 NLRB
716. Having further found that Respondent unlawfully
interrogated an employee, the Examiner will recommend
the customary cease-and-desist and notice-posting reme-
dies.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, the Trial Examiner hereby issues the following
recommended.
ORDER
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 5, in writing,
within 20 days from the receipt of this Decision, what steps
Respondent has taken to comply herewith.21
IT IS FURTHER ORDERED that the complaint herein be
dismissed insofar as it alleges violations of the Act not
specifically found herein.
20 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board
2i In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 5, in wasting, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
Respondent, Hilton Hotels Corporation d/b/a Statler
Hilton Hotel, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning the
source of Union authorization cards or concerning
employee interviews with, or statements made to, agents of
the National Labor Relations Board.
(b) Discouraging membership in Carpenters' District
Council of Washington, D.C. & Vicinity, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO;
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist Carpenters' District Council of Washington,
D.C. & Vicinity, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, or any other labor
organization, or to engage in any other concerted activity
for the purpose of collective bargaining or other mutual aid
and protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as
authorized in Section 8(a)(3) of the National Labor
Relations Act.
2 Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Make Wellington J. S. Francisco whole for any loss of
pay he may have suffered by reason of his layoff by
Respondent's rehabilitation department on November 23,
1970, in the manner set forth in "The Remedy" section of
the Trial Examiner's Decision,
(b) Preserve and upon request make available to the
National Labor Relations Board or its agents, for
examination and copying, all records necessary for the
determination of the amount of backpay due under the
Order herein;
(c) Post on its premises copies of the attached notice
marked "Appendix." 20 Copies of said notice, on forms
provided by the Regional Director for Region 5, shall, after
being signed by a representative of the Respondent, be
posted by it immediately upon receipt thereof and
maintained for a period of 60 consecutive days thereafter in
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial, in which the parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Hilton Hotels Corporation d/b/a Statler
Hilton Hotel, violated the National Labor Relations Act
and has ordered us to post this notice; and we intend to
abide by the following:
WE WILL NOT ask employees who gave them Union
authorization cards.
WE WILL NOT question employees concerning
interviews they had or statements they made to agents
or representatives of the National Labor Relations
Board.
WE WILL NOT discourage membership in Carpenters'
District Council of Washington, D.C. & Vicinity,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, or any other labor organization,
by discriminating against any of our employees in
regard to hire and tenure of employment or any term or
condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed in Section 7 of the Act (except to
the extent that such rights may be affected by an
agreement requiring membership in labor organization
as a condition of employment, as authorized in Section
8(a)(3) of the Act, as amended).
WE WILL pay Wellington J. S. Francisco for the
earnings he lost because of his layoff by our rehabilita-
tion department on November 23, 1970, plus 6 percent
interest.
HILTON HOTELS
CORPORATION D/B/A
STATLER HILTON HOTEL
(Employer)
208
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions , may be directed to the Board 's Office,
Federal Building, Room 1019 , Charles Center, Baltimore,
Maryland 21201, Telephone 301-962-2822.