The Coachman's Inn

National Labor Relations Board - Board Decisions

Jun 5, 1964

147 N.L.R.B. 278 (N.L.R.B. 1964)

278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, 327 Logan
Building, 500 Union Street, Seattle, Washington Telephone No. Mutual 2-3300,
Extension 553, if they have any questions concerning this notice or compliance with
its provisions.
The Coachman's Inn and Hotel-Motel , Restaurant Employees
Union, Local 200, Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO. Case No. 26-CA-1555.
June 5, 1964
DECISION AND ORDER
On February 13, 1964, Trial Examiner Stanley N. Ohlbaum issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent 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 Decision.
He further found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recom-
mended that such allegations be dismissed. Thereafter, the Respond-
ent filed exceptions to the Decision with a. supporting 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 [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was conunitted. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
1 The Respondent's request for oral argument is hereby denied as, in our opinion, the
record including the exceptions and brief, adequately presents the issues and the position
of the parties.
2 These findings and conclusions were largely based upon credibility determinations of
the Trial Examiner, to which the Respondent excepted. As it is the Board's established
policy not to overrule the Trial Examiner's credibility findings unless the clear pre-
ponderance of all the relevant evidence convinces us that they were incorrect, we find no
basis for disturbing the Trial Examiner's credibility findings in this case. Standard Dry
Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
we find it unnecessary to pass on the Trial Examiner's second basis for finding the
8(a) (5) violation, in view of our agreement with his finding that the Respondent violated
its statutory duty to bargain in good faith by President Thompson's intrusion in a nego-
tiating meeting of May 1, 1963, and breaking it up by his threatening and intimidatory
remarks. In any event, we agree with the provision of the Trial Examiner's Recommended
Order that the Respondent bargain collectively with the Union on request, as an appro-
priate remedy in the circumstances.
147 NLRB No. 40.
THE COACHMAN'S INN 279
ORDER
Pursuant; to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, The
Coachman's Inn, Little Rock, Arkansas, its officers, agents, successors;
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed June 12 as amended July 18 , 1963, by Hotel -Motel , Restaurant
Employees Union , Local 200, Hotel and Restaurant Employees and Bartenders Inter-
national Union , AFL-CIO, herein called the Union , General Counsel of the National
Labor Relations Board , by the Regional Director for the Twenty-sixth Region, on
July 31 , 1963, issued a complaint against The Coachman 's Inn , herein called Re-
spondent , Employer, Company , or motel , alleging violations of Section 8(a) (1), (3),
and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended,
herein called the Act, through certain acts of interference , restraint , and coercion;
through discharging and refusing to reinstate certain employees for union member-
ship or activities ; and through refusing to bargain collectively with the Union. Re-
spondent 's denial of these allegations raised issues fully litigated before Trial Exam-
iner Stanley N. Ohlbaum at a hearing, throughout which all parties and persons in
interest participated in person or through counsel or other representative , at Little
Rock, Arkansas , on August 14 through 16, 1963 . Subsequent to the hearing, General
Counsel and Respondent 's counsel submitted briefs, extension of time for submission
thereof having been granted at request of counsel , and these have been carefully
considered.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
At all material times, Respondent has been an Arkansas corporation engaged in
operating a motel-restaurant serving transient guests in Little Rock , Arkansas. Dur-
ing the representative 12-month period immediately preceding issuance of the com-
plaint, the motel realized gross revenues exceeding $500,000, received direct inter-
state purchases of goods valued in excess of $5,000 , and rented more than 25 percent
of its rental units to transients remaining less than 1 month , realizing more than
25 percent of its rental income from such transients . I find that at all such times
Respondent has been and is an employer engaged in commerce within the meaning
of Section 2(6) and ( 7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
At all material times, the Union has been and now is a labor organization within
the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
Background .
Respondent operates a motel and associated restaurant in Little Rock, Arkansas,
known as The Coachman 's Inn . Its principal personnel figuring in the events to be
detailed were: Vance Thompson , president and stockholder ; W. R. (Whit) Stevens,
an "owner"; Jack Stevens, an `owner"; ' Harold G . Davis, manager; Mrs. Beth Davis,
wife of manager, "sort of an assistant manager," according to her testimony; Mary
Davis, confidential secretary to H. G . Davis (unrelated to him ); Wayne Barrentine,
auditor and assistant manager ; Dorothy Davidson , payroll clerk in Barrentine's
office; Ray Thornton, attorney- labor relations adviser ; Bryant Sinuns, agent, acted in
.financial matters and in Thornton 's stead in labor grievances ; Thelma Blessing,
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hostess and cashier, hereafter found to be a supervisor; Mrs. McCoy, housekeeper
and supervisor; James Williams, headwaiter and supervisor; Reed Lloyd, chef and
supervisor; Colley Bynum (Bryant), bell captain; Solomon G. Hopes, assistant bell
captain, and president and bargaining representative of the Union; and Jesse Stuart,
Vasser (Vassey) Belcher, and Fred Albright, bellmen.
On March 18, 1960, a majority of Respondent's employees in an appropriate unit,
at a Board-conducted secret balloting, elected and designated the Union as their
representative for collective bargaining with Respondent, and thereafter the Board
duly certified the Union as such 'representative. On May 25, 1960, Respondent and
the Union entered into a 3-year collective agreement expiring May 31, 1963. Shortly
before expiration of this collective agreement, a "decertification" petition was filed
with the Board by Dorothy Davidson, assistant to Wayne Barrentine, Respondent's
auditor-assistant manager. The election date was set by the Board for May 31,
1963. According to the complaint, commencing in April and continuing throughout
May, until (and even after) the Board-conducted election, Respondent engaged in a
course of unfair labor practice, including interrogations, promises, threats, refusals
to bargain, and the discharge of employees, including the president of the Union
(Hopes), in order to undermine the Union and destroy its majority.
A. Interference, restraint, and coercion
As amended at the hearing, the complaint specifically alleges that, in violation of
section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the Act, on various occa-
sions in May and on June 1, 1963, Respondent through Davis, Barrentine, and
Blessing interrogated employees concerning their union membership, activities, and
desires; 1 in April and May 2 through Davis, Barrentine, and Williams promised
employees economic benefits for refraining from union membership, assistance, or
support; in May through Vance Thompson and Davis threatened employees with
economic and other reprisals for union membership, assistance, or support; in April
and May discharged and has since failed to reinstate employees Perry Johnson,3
Belcher,4 and Hopes because of union membership or activities; since April 30, 1963,
has refused to bargain collectively with the Union;- and has engaged in the foregoing
conduct in order to undermine the Union and destroy its majority.
Respondent's employees Lucile Carter, Frances Weeks, Daniel Frazier, Jimmy
Polite, Lawrence Tippen, George Brown, and Hopes, and International Union Field
Representative Earl Yeargan testified in support of the allegations other than the
discharge of Johnson and Hopes.
The testimony of Carter and Weeks was essentially limited to facts bearing upon
the status and authority of Thelma Blessing, Respondent's hostess-cashier, who
figures only in relation to the testimony of Lawrence Tippen (infra). Lucile Carter,
employed by Respondent for 3 years as a waitress, testified that she knew Blessing
as her supervisor; that employees went to Blessing "for any trouble that we have.
If we are short of help or anything she will change our station, or whatever we need
to be done. If we want time off we ask for that and she gives us permission. She
has given warning slips and controls bus help and waitresses." Carter testified that
although she does not know who makes out the "warning slips," Blessing's name as.
well as that of Motel Manager Davis is signed thereto. Frances Weeks, also one of
Respondent's waitresses for 3 years, indicated that she also knew Hostess-Cashier
Blessing as a supervisor; that Blessing changed the waitresses' stations whenever
necessary and provided relief for overloaded girls; that she checked the food that the
girls ate; that "She manages the bus help, she supervises them, sees that their work
is done and sees that our work is done and done in a proper way," and that if it is.
not she takes corrective action or reports them (to Davis or Mrs. Davis); and that
she gives the girls time off. Blessing was not called as a witness, and the testimony
of Carter and Weeks was uncontradicted. I was favorably impressed by Carter and
Weeks and fully credit their testimony. I 'find, as alleged in the complaint, that
Blessing was a supervisor under the Act .5
i Paragraph.9 of the complaint, also in part dealing with alleged unlawful interrogation,
as well as promises of economic benefits, was withdrawn by General Counsel at the hearing.
3 The year 1963 is intended throughout where no other year is expressed.
3 The case of Johnson involves his allegedly discriminatory. reinstatement to a position
different from that held by him prior to his discharge.
' Belcher was amended out of the complaint by General Counsel at the hearing, and
therefore. does'not'figure herein. .
8 N.L.R.B. v. Edward G. Budd Manufacturing Co., 169 F. 2d 571 (C.A. 6), cert. denied
335 U.S. 908.
THE COACHMAN'S INN 281,
1. Daniel Frazier, Respondent's porter for 3 years, testified that on or about
April 4, 1963, Wayne Barrentine (motel auditor and assistant manager) in the pres-
ence of Dorothy Davidson (motel payroll clerk and Barrentine's assistant) asked
him if he had made up his mind "which side I was going to vote for" in the upcoming
election; and that when he told Barrentine he had not yet made up his mind and
would have to think it over, Barrentine said, "Well, you know that if we vote the
union out we get a raise and we get a bonus." According to Frazier, about a week
later Barrentine again asked him, in his office in the presence of Headwaiter James
Williams, if he had decided which way he was going to vote, and when Frazier again
replied that he had not made up his mind, Barrentine responded, "Well, I think you
all ought to stick with the company. The company gives you a job and was paying
your salary, I think you ought to stick with it. We'll get a salary increase and get a
bonus, too." Frazier further testified that about a week before the election of
May 31, in or near the motel lobby in the presence of Davis and his secretary Mary
Davis, "Miss Billie" (Billie Ann Baker, agent for an airline having an office there)
'told him, "You know we're having an election here May 31st. It's whether you
want the union, whether you want to vote it out. You vote against the union, vote it
out. I've got several jobs for you to do, I'm not going to tell you about them until
:after the election"; whereupon Mary Davis added, "If they vote the union out, we
all get a bonus and get a raise, too," indicating that the bonus would be forthcoming
in June if the Union was voted out in the election of May 31. Frazier testified
additionally that on May 31, election day, Mary Davis came out of Motel Manager
Davis' office and asked Frazier if he had been to vote, and that he said he had not.
Thereupon (according to Frazier) she returned to Davis' office, but came out again
and accused him of having lied to her and that he not only had voted but "I can
tell you the way you voted-you voted for that durn old union. Mr. Yeargan 6
had you thinking that we wouldn't know how you voted, which we did"; and she
then began "storming and screaming" at him until Davis came out of his office and,
'after she told Davis that Frazier had voted for the Union, Davis said, "Dan did you
do that" and "Well, you're no more friend of mine." Later that day, while Frazier
was at work cleaning , Davis asked him if he had cleaned the airline office; when
Frazier replied that he had not, Davis directed him to accompany him there, since
he had received complaints. When they arrived there, Davis indicated something
in the wastebasket. Frazier pointed out that it must have been thrown in there after
he had cleaned up. Thereupon Davis responded, "Well, if you can't master the
job, we'll get somebody else." Previous to this occasion, there had never been any
complaints or alleged complaints about Frazier's work.
Many facts testified to by Frazier were denied by Respondent's witnesses Barren-
tine, Davidson, Williams, Mary Davis, and Motel Manager Davis; Billie Ann Baker
was not called as a witness. While in broad general terms denying that he had ever
made any statement to anybody, including Frazier, at any time, as testified by
Frazier, in response to a question by the Triad Examiner, Barrentine conceded that
a few weeks before the election of May 31 he "asked Dan [Frazier] to vote for the
company in the election. I told him if he did it would be appreciated." Davidson,
payroll clerk in Barrentine 's office, in Respondent's employ for 4 years, and the per-
son who filed the "decertification" petition necessitating the election of May 31,
testified that she did not "recall" any incident of the type testified to by Frazier; and
also, that perhaps 3 weeks before the election she heard Barrentine tell Frazier that
"the company would appreciate his. vote." In questioning Williams, Respondent's
headwaiter and supervisor, Respondent's counsel characterized Frazier as having
testified that Barrentine's inquiries and statements .to him (Frazier) occurred about 1
week before the election,7 •and then elicited from Williams a denial that he had ever
overheard such a con'versation.8 Williams' testimony indicated that, in addition to
6 I.e.. Earl Yeargan, field representative for the International of the Union, who had
serviced Local 200 for about 3 years and who signed the-charges on behalf of the Union
herein.
7 Frazier had testified that Barrentine's questioning and promissory statements in
'Williams' presence occurred about a week after the Barrentine episode of April 4, which
would have made the second Barrentine inquiry (i.e., the one in the presence of Williams)
on or about April 11; approximately 3 weeks before the election.
8 While it is not believed that the inaccurate reference to 1 rather than 3 weeks by coun-
sel was other than inadvertent, and while it is neither suggested nor assumed' that the
witness misunderstood the question, the possibility remains that in the form asked the
.question may have been somewhat misleading and may have evoked a response not ex-
plicitly at variance with Frazier's testimony. In resolving issues of credibility, however,
I have not in any way relied thereon.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being headwaiter at the motel , he appears to be a close , favored personal servitor
or trusty of Respondent 's principal Stevens, at the latter's home, private panties, and
hunting and fishing trips . Mary Davis , ineligible to vote in the union election of
May 31 because of her capacity as confidential secretary to Motel Manager Davis,
flatly denied any conversation with Frazier as testified by him, but conceded that
although she was certain she had a conversation with him on the day in question
(i.e., election day, May 31 ) she could not remember what it was. Davis testified
that he was unable to "remember" any incident such as described by Frazier involv-
ing airline employee Billie Ann Baker , had never heard Baker speak to any motel
employee about unions or elections, and had never authorized or instigated Baker
to make such comments . Other than to deny generally that he had ever overheard
Mary Davis say anything to any employee concerning unions or elections, he did
not expressly dispute Frazier 's testimony with regard to Mary Davis' remarks to
Frazier in Davis' presence about a week before the election of May 31, regarding
a forthcoming June bonus and raise if the Union was voted out on May 31. Davis
further indicated that Mary Davis had not told him in the lobby of the motel that
Frazier had voted for the Union and that he ( Davis ) had never told Frazier or any
other employee that he knew how he had voted ,9 but did not otherwise dispute the
May 31 "storming and screaming" episode in the motel lobby; nor did he dispute
Frazier's testimony regarding the wastebasket episode of later that day.
Resolution of the contradictions in the testimony of these witnesses obviously de-
pends upon assessment of their comparative credibility . I was very favorably im-
pressed with Frazier's deportment and demeanor as a witness . Bearing in mind
that he is still employed by Respondent and therefore in a sense exposed himself to
economic peril in the form of job retaliation of various varieties, his testimony was in
that sense contrary to his own best interest , so to speak . His testimony was forth-
right and straightforward , stood up well under skillful cross-examination, and car-
ried the ring of truth . I believe his versions of the episodes involving Barrentine,
in preference to the denials of Barrentine and the absent recollection of his assistant
Davidson , both loyal members of Respondent 's management hierarchy ; and, in David-
son's case, the employee who filed the "decertification" petition seeking to pry the
Union out of the motel, an avowed policy objective of Respondent . Also to be con-
sidered, in the total texture of the entire case, as hereinafter unfolded, is the admission
by Barrentine-confirmed by Davidson-that shortly before the election he "asked
Dan [Frazier ] to vote for the company in the election . I told him if he did it would
be appreciated ." Such a statement , coming when it did and as it did, from a com-
pany official in so exalted a position as Barrentine , to so lowly an employee as porter
Frazier, could hardly be construed by the latter as other than an attempt to buy his
vote against the Union through the lure of expectation of economic benefit. In
assessing the weight to be accorded to the testimony of Williams , also a loyal mem-
ber of Respondent 's supervisory staff , I was impressed by what appears to be his
close relationship to Respondent's principals as a sort of favored personal servitor or
retainer , catering to or attending upon them at private banquets, receptions , parties,
and sporting trips, indicating the existence of interest through a bond of fealty toward
Respondent ; again , comparably counterweighing the fact that Frazier had potentially
much to lose , rather than ( in the case of Williams ) to gain , by testifying. In weigh-
ing Williams ' testimony , I have further taken into consideration the fact that he.also
attempted to give the lie to the testimony of Respondent's cook, Brown, whom I
found to be a thoroughly credible witness . In evaluating the testimony of Mary
Davis, I have taken into consideration the fact that she is an important member of
Respondent 's "inner circle" as the confidential secretary of its chief -of-staff, so to
speak; that although she flatly denied any conversation with Frazier as indicated by
him, she conceded that she did have a conversation with him on election day but
could not remember what it was about ; her closely observed demeanor while testify-
ing; and the improbability that Frazier fabricated the "storming and screaming" scene
on election day as so vividly and convincingly narrated by him. Insofar as Davis is
concerned , I believe his testimony that he did not authorize or instigate Billie Ann
Baker, the airline agent , to discuss unions or elections with Respondent 's employees,
and that she was without authority to make promises or threats on Respondent's
behalf on that subject . Although Baker was not produced as a witness , the burden
was upon General Counsel to establish her authority to speak for Respondent. This
he failed to do. It is at least highly questionable that Davis was under legal obliga-
e Frazier had. not so testified . Frazier testified that Mary Davis made this statement.
THE COACHMAN'S INN 283
tion to disavow any statements of the type ascribed to Baker 10 who lacked official
connection with Respondent and who was not clothed with any apparent authority
to speak on its behalf. In crediting Davis' uncontradicted denials of lack of authority
on Baker's part, in the absence of countervailing evidence of indicia of authority on
her part (and Frazier's presumed knowledge thereof), I find that no unlawful conduct
by Respondent based upon statements alleged to have been made by Baker to
Frazier has been established. The same is not true, however, of the statements
attributed to Mary Davis on that occasion. I credit Frazier's testimony regarding
the statements made to him by Mary Davis, involving a June bonus and raise in the
event of union defeat in the May 31 election, spoken by her in the immediate presence
and hearing of Davis, who in no way qualified, disavowed, or denied them, either
then or at the hearing, although it would have been easy for him to do so and he
should have done so if he meant to do so. I also-credit Frazier's testimony with
regard to the May 31 motel lobby episode involving Mary Davis for reasons already
in part explicated in my assay of her testimony; additionally, in Davis' case, because,
as it impressed me, Davis' testimonial contribution on this subject appeared to be,
cautiously circumscribed and not explicitly inconsistent with that of Frazier, and
also my preference, based on demeanor comparisons involving the usual standards,
for the testimony of Frazier in this aspect. For the same reason, I credit Frazier's
account of the May 31 wastebasket incident, which was undisputed, and which, in
the total context of the case, may fairly be regarded as a thinly veiled threat of
reprisal or discharge to an efficient employee because of employer displeasure at the
way the employee had voted or supposedly voted in the election that day.
2. Jimmy Polite, in Respondent's employ for 4 years and currently a saladman,
testified that about 2 weeks prior to the May 31 election, Motel Manager Davis said
to him in the kitchen area, "Jimmy, you know the election is coming up, and if the
company Lose[s], well, they'll make us have Perry Johnson back and we'll have to
bump you and put you back in salads," and that about a week later Davis told him
essentially the same thing.
Davis provided a different cast to this by testifying to a conversation he had with
Polite around May 23, when he told Polite that if the Union won its case (i.e., the
instant proceeding) as respects Johnson, Polite would have to be shifted back to his
former job as a saladman, since if Johnson were reinstated or rehired as a room
serviceman there would be no need for Polite as a room serviceman."
Although I am convinced Polite was telling the truth as he thought it to_ be, I be-
lieve and find that Davis provided the more accurate version of the conversation;
namely, that if the motel had to take Johnson back as a room serviceman because of
this case (and not as a result of "losing" the, election, which could not have required
the company to reinstate Johnson), Polite would have to be shifted back from the
room serviceman job which he then held, to his former job as saladman in order
to-make room- for Johnson as a room serviceman. This was a perfectly proper re-
mark for Davis to make to Polite, since it merely apprised him accurately of the
consequences to Polite if Johnson were reinstated. As appears below under the dis-
cussion of the Johnson discharge, Respondent voluntarily reinstated or reemployed
Johnson as a room serviceman (even prior to issuance of the complaint herein),12
necessitating, as predicted by Davis, Polite's transfer back to the saladman job.
Based upon my adoption of the Davis version of this incident, I find that no unlaw-
ful conduct on Respondent's part was involved in Davis' conversation or conversa-
tions with Polite.
3. Lawrence Tippen, employed by Respondent for a year as a busboy, testified
that on the day before the May 31 election, Dining Room Hostess Blessing, who
was sitting in the dining room with Davis, called him over to the table and asked
him how he was going to vote, to which he replied that it was a secret and he could
not tell her, but would do so after he had voted and "it was over." Davis, sitting
right there, said nothing.
10 It will have been noted that, according to Frazier, Baker said, "I've got several jobs
for you to do, I'm not going to tell you about them until after the election." (Emphasis
supplied.] There is no basis for concluding that any promise (if such it was ) by her of
airline, motel , or other jobs would commit Respondent , or that there existed any reason-
able _bassis .for such,a view.
11 According to Polite, although the room serviceman's salary, is only $42 and the
saladman 's is $70, every 2 weeks, the room serviceman , job is ,better because the salary
is substantially augmented by tips.
22 Although it is true that Johnson's reinstatement or reemployment took effect after
the May 31 election ,. It was preceded by discussion and bargaining prior thereto.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Tippen was not cross-examined, Blessing was not produced as a witness,
and Davis did not contradict his testimony, the incident as recounted by Tippen
is undisputed. Tippen impressed me extremely favorably as a simple, honest, and
truthful witness. I fully credit his testimony. In urging dismissal of allegations
based upon the statements made by Blessing, Respondent limits itself to the legal
contention that since General Counsel did not establish Blessing to have been a
"supervisor" within the meaning of the Act, Respondent is not bound by her words
or actions. I disagree. Although, as shown above, the uncontradicted credited
testimony of Respondent's long-term employees Carter and Weeks established indicia
of supervisory status on the part of Blessing sufficient to justify regarding her as a
"supervisor" under the Act, even apart from that a person need not be a "supervisor"
to, bind an employer. An employer (or union) may be held accountable for the
actions and words of any person expressly or impliedly authorized to act or speak
for him, on well-understood agency principles, even if the person does not have
supervisory status as defined in the Act. Under classical principles an agency to act
or speak on behalf of another may arise not only by express authority openly
bestowed, but by implication, circumstantially, by operation of law, or by failure
of the principal to disavow acts or words when the circumstances call for disavowal.13
The Act itself explicitly provides that "In determining whether any person is acting
as an `agent' of another person so as to make such other person responsible for his
acts, the question of whether the specific acts performed were actually authorized
or subsequently ratified shall not be controlling." 14 When Dining Room Hostess
Blessing called busboy Tippen to the dining room table and made the statement to
him which she made, Davis was seated with her at the table; perhaps it would be
more correct to say that she was seated at Davis' table with him. If Davis did not
tell or suggest that Blessing call Tippen over to the table and tell him what she did,
it would have been an easy matter for him to have told her not to do so or not to
say that; and, if he disagreed with or disapproved what she was saying, he could
easily have stopped or interrupted or corrected her, or indicated she was doing some-
thing-wrong, unauthorized, or not meeting with his approval; and he could readily
have disavowed and repudiated what she said or her authority to speak for Re-
spondent on this occasion, even though she normally spoke with authority for Re-
spondent toward the bus help and waitresses. It is apparent that Blessing, thus in
the immediate company of Davis in what might fairly be regarded as a friendly
supervisory conclave at lunch, and who had previously regularly acted as Re-
spondent's spokesman and agent toward employees of Tippen's category, occupied
considerably more than a casual and unofficial status with Davis and Respondent;
and that in this situation Tippen was eminently justified in regarding her as an arm,
instrumentality, and agent of Respondent, which she undoubtedly was, and in regard-
ing her words-clearly in furtherance of Respondent's interests-as those of Davis
and Respondent, which they undoubtedly were. Under all of the circumstances,
regardless of whether Blessing was a "supervisor" of Respondent within the meaning
of the Act, I find that her described actions and words were (authorized and that
Respondent should be held accountable therefor,15
Is Restatement. (Second) Agency, sees. 26-27, 34-37, 43, 82, 94 (incl. reporter's notes
in appendix), 9'8-99, 103. "It is true of a union as of an employer that it may be re-
sponsible for acts which it has not expressly authorized or which might not be attribut-
able to it on strict application of the rules of respondeat superior. International Asso-
ciation of Machinists v. Labor Board, 311 U.S. 72, 80, 61 S. Ct. 83, 85 L. Ed. 50 ; Heinz
Co. v. Labor Board, 311 U.S. 514, 61 S. Ct. 320, 85 L. Ed. 309." Milk Wagon Drivers
Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 295.
x4Act, Section 2(13).
15 Cf. International Association of Machinists, Tool and Die Makers Lodge No. •45
(Serrick Corp.) v. N.L.R.B., 311 U.S. 72, 79-80, affg. 110 F. 2d 29, 44-45 (C.A.D.C.) :
N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 523-524 (C.A. 8). On the same prin-
ciple, unions have regularly been held responsible for "unauthorized" actions 'and words
not only of rank-and-file members, but even of outsiders and strangers, when in further-
ance of union' interests and in the presence of a union official failing to disavow or dis-
associate the union therefrom., See:. United Mine Workers v. Meadow Creek Coal Co.,
263 F. 2d 52, 63 (C.A. 6) ; Selby-Battersby and Company and Associated Builders and
Contractors of Maryland, Inc. v. N.L.R.B., 259 F. 2d 151, 157-158 (C.A. 4) ; Local 5881,
United Mine Workers of America (Grundy Mining. Company), 130 NLRB 1181, 1182. Such
liability may even extend to acts in pursuance of the principal's interests even though
expressly. forbidden by him. Restatement (Second)' Agency, sees., 228-230, 233-235:
N.L.R.B. v. United Mine Workers of America, District, 31 (Bitner Fuel Co.), 190 F. 2d, 251,
252 (C.A.' 4) ; N.L.R.B. v. Acme Mattress Co., Inc., 192 F. 2d 524, 527 (C.A. 7).
THE COACHMAN'S INN 285
4. -George T. Brown, a cook at the motel for 31h years and also a union com-
mitteeman, testified that on May 27 (4 days before the "decertification" election)
Davis and Barrentine asked him how he liked the broiler (kitchen equipment).
When he indicated satisfaction with it, Davis said that they were "trying to make
everything convenient for the employees" and that he wanted to have a talk with
Brown the following week (i.e., the week after the election). When Brown said
he would be away on vacation then, Barrentine said, "George [Brown] is just about
as hard to keep pleased with getting raises as Hopes 16 is to keep dead." A few
days later (it would seem a day before the election or on election day), Respondent's
headwaiter and supervisor, Williams, engaged Brown in discussion on the subject of
another job and Brown's ability to "handle" the kitchen employees and elicited from
Brown a desire fora raise, which Williams indicated to him .the next day he could
have (but which has not been forthcoming).
Neither Davis nor Barrentine (both of whom testified) in any way disputed the
incident or conversation as described by Brown. However, Williams was called
as a witness by Respondent, and was asked whether he ever discussed with Brown
the possibility of Brown's getting the chef's, job, it being indicated to Williams that
Brown had so testified; Williams thereupon denied that he had ever discussed that
with Brown. The fact is that Brown did not testify he had such a discussion with
Williams.17 Nor did Williams in his testimony deny that he had promised Brown
a raise as testified to by Brown. The net effect of the slippage, so to speak, between
Brown's actual testimony on the one hand, and Williams' answers to the questions
inaccurately characterizing Brown's testimony on the other hand, was to leave Brown's
testimony for practical purposes undisputed. Inasmuch as I was highly impressed
with Brown's caliber as a witness, and need not repeat the reservations which I
have already verbalized on the subject of Williams, and in view of the failure of
Davis or Barrentine in any way to dispute what Brown said, I have no hesitancy
in fully crediting Brown's testimony.
5. Earl Yeargan, field 'representative of the Union's parent body, and the latter's
servicing agent to the Union for some 3 years, testified concerning a meeting be-
tween the Union and Respondent on May 1, called for the purpose of negotiating
a new or renewed collective agreement (the existing one being due to expire
May 31). Respondent's employees Hopes, Brown, and Carter also were present and
testified on that subject, the testimony of all of these witnesses being consistent
and in no way disputed by Respondent. In addition to its bearing on the allegations
of threats and failure to bargain, that is to say to bargain in good faith and rea-
sonably in accordance with national industrial relations policy as declared by the
Act, the description of that "bargaining" session furnishes insight into the prevailing
climate of Respondent's attitude toward the Union shortly before the election, and
shows the tone set by Respondent's chief executive, Vance Thompson, toward the
Union, toward Respondent's employees' bargaining representatives who were em-
ployed at the motel, and toward statutorily guaranteed organizational rights and
efforts of those employees. Yeargan testified:
We were about halfway along as far as time was concerned in negotiation, and
Mr. Vance, Mr. Vance Thompson came in and took his hat off. He had some
papers, I believe, in his hand and laid them down on the table and walked up
to the head of the negotiating table and held up his hand and • said, "I'd like
to have the floor for a couple of minutes." 18 Nobody said anything. I nodded
agreement in respect, and Mr. Vance started with the first person. I believe
it was John Webb. He asked John if he was happy with his job, and John Webb
says, "Yes." He says, "What are you doing up here?" Webb says, "I'm just
up here." He then came to S. D. Hopes, who was president of the union, and
said, "Hopes, are you happy with your job?" and be said, "Yes, sir." He said,
"Have you got your insurance paid up?" and Hopes said, "Yes, sir," and then
he came to the next person, and generally the conversation or the questions
ran about like that; are you happy with your job, or what are you doing up here,
18 Le., Solomon D. Hopes, the union president, whose 3-year employment with Re-
spondent was summarily terminated 2 weeks before the election under circumstances de-
tailed below.
17In this connection, see footnotes 7 and 8, supre, regarding similar questions and an-
swers involving this same witness, Williams.
19 In describing this meeting Hopes added that when Thompson calve in he said, "'I'm
part owner here and I believe I should have something to say.'' He said something about
he don't see why we should listen to outsiders coming in and telling us what to do."
I believe this was said.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are you happy with your money, and that type of thing until he had covered
the entire negotiating committee of the union . When he got through he said,
"That's all I've got to say," 19 and started out the door. I asked-Mr. Thornton,
I said , "Now, we won't have any more of this." I said, "This is wrong," ... and
then something was said by me that led Mr.. Thornton to say, "Well, you can
go ahead and file charges." I said , "No, we are not at that point by a long
ways." . . . I told him at this time, I said , "We are not at that point yet. We can
all do a better job than this, but I don't want him up here doing this any more."
Well, everything was pretty well shook up and we adjourned, and that ended
the negotiation session.
Further insight into Respondent' s attitudes during the critical preelection period
may be gleaned from another episode credibly recounted by Yeargan, also involving
Respondent's chief executive , Vance Thompson, which occurred on May 31, the
day of the election. This, too, is wholly undisputed. Yeargan was seated with
Union President Hopes in a parked car near Respondent's motel , when, in Yeargan's
words:
Mr. Vance Thompson came out of the laundry of Coachman's Inn . He walked
up to the side of the car where Mr. Hopes was seated. Hopes was on the
driver's side, and he told Hopes that he ought to get away from there because he
was violating the law. Hopes asked him how and he said, "Well, you ought not
to be around here." Hopes said something about this is a public street, and so
on and so forth, and then Mr. Thompson, because of the heavy traffic on the
street, came around in front of the car, came up on my side, and he said, "You
all ought to get plumb away from here. You have got no business here, and
you are violating the law, and I'm violating the law, too, by standing here talk-
ing to you." I told him that I didn't feel we were violating the law; that we were
going to sit there. He said, "Well, as long as Hopes sits here you know exactly
how the people are going to vote as long as they see Hopes out here. You know
how they are going to vote." At this point we were talking to each other, but
at this point he says, "Now, I am going to make a speech and I want you to hear
me out." Hopes and I agreed that we would hear him out. Well, he was still
on my side of the car, and he said to Hopes, "Hopes, I am going to send you to
the pea patch." . . That's the State Farm.... Mr. Thompson said, "I'm go-
ing to send you to the pea patch for getting mixed up with this scoundrel up
here," and he pointed to me, and he said, "You're the scoundrel of the earth."
He said, "You closed Morrison's Cafeteria down. You have almost put Franke's
out of business , and now you're going to put us out of business," and he said, "I
always said Hopes was the best bellman we ever had until he got mixed up
with you," and he said , "I'm telling you now I 'm going to send him to the pea
patch." He then went around on Hopes' side of the car and said, "Hopes, do
you believe I can send you to the pea patch," and he said, "Yes, sir, with your
money Mr. Vance you can send me to the pea patch," and . he kept telling
Hopes that, "Hopes, you was a good bellman, but you got mixed up with that
scoundrel there and you're just going to get yourself into a lot of trouble, and
I'm going to send you to the pea patch." That's about what he kept saying to
Hopes.... Well, Hopes kept saying, "Well, I think Mr. Yeargan's a pretty
nice fellow," and he would say, "Well, he put Morrison's out of business. He
put Franke's out of business, and now he's going to put us out of business.
Hopes, I'm telling you you had better stay away from this fellow." At that
point he said something about he knew he had some trouble inside The Coach-
man's Inn unit , but they was going to take care of it.
Since Respondent did not exercise its right to cross-examine Yeargan, and since
Vance Thompson was not produced as a witness at the hearing, the foregoing ac-
counts of these episodes, as narrated by Yeargan and corroborated by other witnesses,
were wholly undisputed. I fully 'credit Yeargan's testimony regarding these two
episodes involving Vance Thompson. In the totality of the record these.episodes
reflect a union animus and a basic spirit of resistance if not hostility to congressionally
enunciated national industrial relations policy and to employee rights which Congress
has seen fit to guarantee in the Act 2a The conduct of Vance Thompson, Respond-
19 Carter, in describing the meeting, testified, that-Thompson added as he left, "I think
I've made my point."" I believe this statement was made.
"Respondent's, total exclusion of Hopes, president of the Union and bargaining repre-
sentative of the employees, from access, to Respondent's premises at any and all times for
any and all purposes, the week prior to the election, after its designed procurement of his
"resignation," is discussed below.
THE COACHMAN'S INN 287
ent's chief executive , may properly be considered as "background against which to
measure statements , conduct, and the like made by other management spokesmen,
especially in terms of the interpretation which the employees reasonably could put on
such actions. More specifically , this would bear on the question whether, from the
listeners ' point of view, these statements by subordinate management constitute for-
bidden coercion , threats, or intimidation ." Hendrix Manufacturing Company, Inc. v.
N.L.R.B., 321 F. 2d 100 , 103-104 (C.A. 5).
Conclusions
In view of the foregoing, I find and conclude that Respondent in violation of Sec-
tion 8(a) (1) of the Act interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act, by the following actions:
a. Interrogation of Frazier on or about April 4 by Respondent acting through
Barrentine, as to how Frazier intended to vote in the union election of May 31 21
b. Interrogation of Frazier on or about April 11 by Respondent acting through
Barrentine, as to how Frazier intended to vote in the union election of May 31.
c. Interrogation, coercion, and interference with organizational rights of Frazier
on May 31 by Respondent acting through Mary Davis with the knowledge, acqui-
escence, and approbation, express or implied authority, and ratification of Davis, as
to how Frazier had voted in the union election of May 31 22
d. Interrogation of Tippen on May 30 by Respondent acting through Blessing, and
also with the knowledge, acquiescence, and approbation, express or implied authority,
and ratification of Davis, as to how Tippen intended to vote in the union election of
May 31.
e. Promise or holding out of economic benefits to Frazier for withholding or
withdrawing his support from the Union in the election of May 31, by Respondent
acting through Barrentine on or about April 4 .23
f. Promise or holding out of economic benefits to Frazier for withholding or with-
drawing his support from the Union in the election of May 31, by Respondent acting
through Barrentine on or about April 11.
g. Promise or holding out of economic benefits to Frazier for withholding or with-
drawing his support from the Union in the election of May 31, by Respondent acting
through Mary Davis with the knowledge, acquiescence, and approbation, express or
implied authority, and ratification of Davis, on or about May 24.
h. Promise or holding out of economic benefits to Brown for withholding or with-
drawing his support from the Union in the election of May 31, by Respondent acting
through Davis and Barrentine on May 27.
i. Promise or holding out of economic benefits to Brown for withholding or with-
drawing his support from the Union in the election of May 31, by Respondent acting
through Williams.
j. Threats of reprisal in the event of union success in the election of May 31, to
Frazier by Respondent acting through Barrentine on or about April 11.24
21 Cf. The Great Atlantic & Pacific Tea Company, Inc., 144 NLRB 1571. "Regardless of
a respondent's motive, interrogation is generally deemed unlawful unless it is isolated."
Thompson Ramo Wooldridge, Inc. (Doge Television Division), 132 NLRB 993, 996, enfd.
as modified .305 F. 2d 807 (C.A. 7). It is not necessary that interrogation be accom-
panied by promise of benefit or threat of reprisal to be unlawful. Charlotte Union Bus
Station, Inc., et al., 135 NLRB 228, 229.
22 Respondent also exercised restraint and coercion on Frazier on May 31 through Mary
Davis with the knowledge, acquiescence, and 'approbation, express or implied authority,
and ratification of Davis, and through Davis, in indicating to Frazier that they knew how
Frazier had voted in the secret Board-conducted election held that day. 'Cf. N.L.R.B. v.
Bonham Manufacturing Company, Inc., 325 F. 2d 508 (C.A. 5), enfg. 140 NLRE 1135.
Although not. explicitly alleged in the complaint, since this matter was litigated by both
sides at the hearing it may justifiably provide the basis for a finding and .gon1clusion.
Cf. N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F. 2d 941, 947-948 (C.A. 1) ; Rocky
Mountain Natural Gas Company, Inc., 140 NLRB 1191, 1192; New England Web, Inc.,
et al., 135 NLRB 1019, 1023-1024; Fred H. Johnson, etc., doing business as Atlas Linen
and Industrial Supply, 134 NLRB 1230, 1231-1232; Federal Rules of Civil Procedure,
Rule 15(b). I have, however, given this particular finding and conclusion, and the
proof underlying it, no weight in connection with any other finding or conclusion, or the
decision and recommended order herein.
23 Cf. N.L.R.B. v. Exchange Parts Company, 375 U.S. 405.
24 This finding is made in specific relation to the total record in the case, including Re-
spondent 's union animus.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
k. Threats of reprisal.for the alleged way in which he had voted in the union elec-
tion of May 31, to Frazier by Respondent acting through Mary Davis on May 31 with
the knowledge, acquiescence, and approbation, express or implied authority, and
ratification of Davis.
1. Threats of reprisal for the alleged way in which he had voted in the union elec-
tion of May 31, to Frazier by Respondent acting through Davis on May 31.
m. Restraint, coercion, and intimidation of employee committeemen attending a
collective-bargaining session on or about May 1, by Respondent acting through Vance
Thompson on or about May 1.
n. Restraint, coercion, intimidation, and threats 'of reprisals for continued union
activity to Hopes by Respondent acting through Vance Thompson on May 31 25
I further find and conclude that Respondent did not violate the Act by (a) the
statements allegedly made to Frazier by airline agent Billie Ann Baker on or about
May 24; and (b) the statements made by Davis to Polite in May.
B. Discharges and reprisals
1. Perry Johnson
As amended at the hearing, the complaint alleges that on or about April 30
Respondent discriminatorily discharged Perry Johnson and thereafter discriminatorily
failed and refused to reinstate him to the terms and conditions of his employment
prior to his discharge, in violation of Section 8(a)(3) and (1) of the Act. The
allegations, totally denied by Respondent, were extensively litigated at the hearing.
Johnson testified that he entered Respondent's employ as a bellman around Novem-
ber or December 1962, and was laid off about 5 weeks later when Hopes was reinstated
to that position (from which Hopes had been discharged, but ordered to be reinstated,
as discussed below) and Johnson declined the offer of a job as a dishwasher. Around
January or February Johnson returned to Respondent's employ, this time as a -room
serviceman, with hours from 2:30 to 10:30 p.m. for about 2 weeks, and thereafter
from 6:30 a.m. to 2:30 p.m. until April 30, when he was discharged.26 His account
of the circumstances attending his discharge is as follows. About 7 a.m. on April 29
he told his supervisor, Chef Lloyd, that he had to visit the doctor and would be gone
about 2 hours. He then visited his physician, Dr. Jackson, for treatment of a painful
leg incurred during a beating which he claimed he received in jail 'in connection with
15 That a discriminatorily discharged employee (i.e., Hopes, as hereinafter found) is
within the ambit and protection of Section 8(a) (1) of the Act, see, e.g.. N.L.R.B. v.
Hunter Engineering Company, 215 F.' 2d 916, 921 (C.A. 8). "If an employer could dis-
charge men who are trying to organize a union because of such endeavors, he might succeed
in preventing organization. It is not possible that an employer by violating the Act,
which prohibits such discharges, can defeat the underlying basic purpose of the Act,
which expressly sanctions labor organizations." Accordingly. discriminatorily discharged
employees were held entitled to vote in a representation election . Id.; N.L.R.B. v. Cape
County 11'illing Company, 140 F. 2d 543, 546 (C.A. 8). "As the named employees were
ousted from their.jobs because of an unfair labor practice, they remain employees for the
purposes of the Act." Accordingly, the employer was required to bargain collectively
with regard to the discriminatorily discharged employees . Id.; N.L.R.B. v. Earl I. Sifers,
d/b/a Sifers Candy Company, 171 F. 2d 63, 66 (C.A. 10). N.L.R.B. v. Tcxas Natural
Gasoline Corporation, 253 F. 2d 322 (C.A. 5), cited by Respondent, is not to the contrary,
since in that case the employee had concededly been properly discharged for cause (253 F.
2d at 324). The threats might also well be regarded as unlawful within Section 8(a) (1)
because made to Hopes as president of the Union and duly designated bargaining repre-
sentative and agent of the employees, to whom it is reasonable to assume the threats and
antiunion statements were communicated, constituting interference, restraint, and coercion
upon the employees (his principals) as well ; and this would be true even if Hopes had not
been an employee or himself entitled. to protection under the Act. Cf. Local No. 207,
International Association of Bridge, Structural and' Ornamental Iron Workers, et al.
(William B. Pollock Co.) v. Jacob Perko, 373 U.S. 701, 707; N.L.R.B. v. Better Monkey
Grip Company, 243 F. 2d 836, 837 (C.A. 5) ; N.L.R.B. v. Talladega Cotton Factory, Inc.,
213 F. 2d 208, 215-217 (C.A. 5).
° On cross-examination he appeared to vary this by testifying that he returned to the
bellman job again from the room serviceman job, and that.it was subsequent to his re-
sumption of the bellman job that he obtained the room serviceman job. This, however,'is
of no importance other than as possibly bearing on his testimonial accuracy and veracity.
THE COACHMAN'S INN 289
his arrest on April 19 for drunkenness and resisting arrest 27 In fact, when, on
April 29, he sought and received permission from his supervisor to visit his doctor, he
was also scheduled to appear in court at 8:30 in connection with the foregoing
criminal charges, but he did not disclose this to his supervisor. After seeing his doc-
tor, he went to court, where he was convicted and sentenced. Since he apparently
received an alternative fine in excess of what he was -able to pay, he sent his bonds-
man to his father-in-law for the needed cash, pending which he was jailed overnight.
He was unable to communicate with Respondent to indicate he could not return that
morning, because he was not permitted to make a telephone call. Upon his release
from jail the following morning, that is April 30, he reported to work and was met by
Mrs. Davis, who fired him without listening to or accepting his explanations. How-
ever, according to Johnson's testimony, Respondent had found out elsewhere about
his having been jailed for drunkenness and resisting arrest.
In order to obtain a comprehensible, chronological understanding of ensuing events,.
it is necessary to interrupt Johnson's narrative at this point and to take up Yeargan's
related testimony. According to Yeargan, when Johnson reported to him that he had
been discharged, Yeargan immediately discusesd the matter with Thornton, Respond-
ent's attorney-industrial relations adviser, with whom Yeargan customarily dealt on
matters of this sort. Yeargan told Thornton what had happened, from Johnson's.
point of view, and that since this was Johnson's first offense he could not be dis-
charged under the terms of the then existing collective agreement and should be,
reinstated. Soon afterward Thornton informed Yeargan that Respondent's manage-
ment took the position that Johnson had left his job without permission, and that
further investigation by Yeargan was indicated. Later that day (April 30), when.
Yeargan advised Thornton that be had ascertained from Respondent's supervisory per-
sonnel that Johnson had obtained permission to leave temporarily, Thornton indicated
(according to Yeargan) that he would advise that Johnson be restored to work (ap-
parently without specification of job particulars or date). Further, according to,
Yeargan, after some delays ascribed by Thornton to other legal engagements, Johnson
was told on May 28 to report back to work on June 1; and, when Yeargan protested'
this delay, according to Yeargan the explanation or remark was thereupon made by
Thornton: "Well, it's obvious they don't want him in the unit until after the elec-.
tion," 28 and Thornton promised to take care of it.
According to Johnson's testimony, he went to the motel "on [his] own" on May 28,
to inquire of his former supervisor whether there was an "opening," and was told'
to return on June 1. When he did so on June 1, he was told to report for work on
June 3, which he did. That afternoon (June 3) he was told by Davis that he was;
being taken back on a probationary or provisional basis, the same as a new em-
ployee, for 30 days, and was apparently asked to sign a paper to that effect. When,
the following day, on Yeargan's instructions, he refused to sign what he called a
"new [employee] application" form, he was terminated. After more discussions and
negotiations between Yeargan and Respondent, on June 17 Respondent offered to
take Johnson on as a dishwasher, with a week's backpay, which Yeargan testified he
turned down. According to Johnson's testimony, when he returned to the motel
around June 18, 19, or 20, and spoke again to Bell Captain Bynum and Manager
Davis, he was offered reinstatement with a week's backpay if be signed "new em-
ployee" papers; and, after speaking with Yeargan on the telephone and obtaining
his advice and apparently his approbation, Johnson returned to room serviceman
work at the motel that day, accepting the backpay, but not signing the papers,25
17 There is no contention that the activities resulting in these criminal charges were
job related.
25Even though Thornton did not testify as a witness (it was explained that he was away-
on vacation), I cannot believe that as Respondent's attorney and industrial relations-
adviser he would volunteer so damaging and uncalled-for an admission under the circum-
stances. I do not credit Yeargan's testimony in this aspect.
29 Except for the week's backpay (about $21), the reason for which is equivocal, John-
son's testimony suggests that he may have been reemployed rather than reinstated, since,
as he himself testified, he "went down on [my] own" to seek work at Respondent's motel,
on one occasion (May 28) inquiring of his former supervisor whether there was an
"opening" for him, and perhaps at the suggestion of a former fellow employee who "told
me to check by there. I might get myself a job, get my old job." It is common
knowledge that transitory workers of this variety are not uncommon in the urban hotel-
motel industry. Johnson's own prior personal experience at this motel is an example.
756-236-65-vol. 147-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a split-shift employment initially 6:30 to 10:30 a.m. and 2:30 to 6:30 p.m., but
after a few days revised to 8 a.m. to 12 noon and 6 to 10 p.m. on weekdays and
2:30 to 10:30 p.m. regular shift on weekends 30
In attack on Johnson's veracity, Respondent produced Iberia Mack, Dr. Jackson's
secretary-receptionist, who, with two assistants, keeps his records. While allegedly
unable to find any record of a visit by Perry Johnson on April 29, she admitted there
were so many Johnsons she did not look under any first name other than Perry;
that no office diary of patients is maintained; that it is unnecessary for Dr. Jackson's
patients to make appointments; that an early morning visit without her knowledge
was a possibility; and that her employer collected cash from patients without
:reporting to her (potentially. accounting for the absence of complete records). She
could not deny that the prescription pad receipt produced by Johnson for medical
services from Dr. Jackson on April 29 was in Dr. Jackson's handwriting.
Mrs. Beth Davis testified without equivocation that she discharged Johnson on
April 30 because, according to her, he was gone from his job for an entire day
without having received permission to absent himself that long. As a result of his
.absence the motel operations were impeded by its being without a room serviceman
that day. She was uncertain whether, when Johnson returned to work the morning
.after his absence, he first told her his having been in jail was the reason he could
not return to work the day prior, before she fired him for his absence.
On this subject, Davis testified that after Johnson was discharged he was replaced
and changes in shift assignments made; that on June 15, Johnson was rehired on
a 30-day probationary basis, given a week's backpay without loss of seniority, and
placed on room service on a new split shift servicing the motel swimming pool area,
:an economically choice assignment; and that there were other split shifts at the
motel, although Johnson's was apparently the initial regularly assigned split shift
for a room serviceman.
The testimony of the witnesses who testified on .the subject of Johnson's discharge
and reinstatement or reemployment did not involve serious conflict. The basic
question of the legality of Johnson's discharge under the Act turns, simply expressed,
on whether he was discharged for discriminatory, that is to say antiunion, reasons.
We are not here concerned with whether or not his discharge constituted a breach
of contract or was for any other reason improper, so long as it was not discrimina-
torily motivated within the ambit of the Act.
I believe that Johnson went to see his doctor on the morning of April 29 after ob-
taining permission from Supervisor Lloyd for a brief absence; and I also believe that,
for understandable reasons and also because he mistakenly or through poor judgment
thought he could be back on time, he did not tell his supervisor that he also had to go
to court that morning to answer for a recent arrest for drunkenness and resisting
arrest. I'believe that Johnson visited Dr. Jackson as he claimed; and that he was
unable to telephone his Employer as he claimed. Since, according to Johnson's own
testimony, his'Employer had elsewhere learned of Johnson's arrest and jailing, I also
believe that Johnson was discharged for that reason or because he stayed away from
work all day, or for both of those reasons 3r Whether or not the reason advanced
by the Employer was justifiable is here beside the point, since I am convinced upon
30 Prior to his April 30 discharge, be had not worked a split shift. It is contended by
'General Counsel that assignment of the split shift upon Johnson's return was in violation
of the collective agreement and a discriminatory reinstatement. Even assuming that vio-
lation of the collective agreement occurred under the circumstances, this would not give
rise to an unfair labor practice. Nor can the terms of the rehiring be considered as dis-
criminatory, since the discharge was nondiscriminatory. In any event, the conditions of
the rehiring were fully and fairly bargained. Johnson conceded that he at no time com-
plained to Respondent about the split-shift assignment, but only mentioned it to Yeargan.
Since Yeargan engaged in protracted discussions with Thornton on the subject of Johnson's
return to employment at the motel, it is reasonable to assume that if the split-shift
arrangement was not discussed (as Davis indicated), it was only because Yeargan did not
see fit to bring it up. In any event, Johnson with Yeargan's knowledge reentered em-
ployment at the motel on that arrangement and a week's backpay after extensive negotia-
tions dealing with `his return.
31 In making this finding, I am aware of and have carefully considered surface incon-
sistencies and what may or may not in total context be qualified admissions possibly to
the contrary on the subject of the jailing, in the testimony of Mrs. Davis, whose assess-
ment as a witness in this aspect of the case necessarily involved great selectivity, careful
winnowing, and painstaking reconciliation with related testimony, including that of
Johnson, who also, from his point of view, made damaging possible admissions perhaps
unintended as such.
THE COACHMAN'S INN 291
the record as a whole that in this instance antiunion discrimination was not the real
reason for the discharge. There is no evidence, nor persuasive basis for inference,
that Johnson's discharge on April 30 occurred other than for one or both of the de-
scribed reasons, honestly and reasonably deemed sufficient by the Employer, or at
worst, in consequence of legal or factual error of the Employer unrelated to activities
protected by the Act 32 In the absence of evidence that Johnson's discharge was be-
-cause of organizational or other activity protected under the Act, even if it was illegal
so as to create civil liability, it did not constitute a violation of Section 8 (a) (3) . It
cannot be gainsaid that upon the evidence presented, the Employer had ample basis-
whether or not if adhered to procedural steps allegedly applicable under an allegedly
subsisting collective agreement-unrelated to activities protected under the Act, for
,terminating Johnson when and as it did.33 The same may be said of his reinstatement
on June 3 on a 30-day probationary basis, and his subsequent further reinstatement
,or reemployment on the new split shift. Since his discharge was not discriminatory,
his rehiring could properly be on different terms without necessarily constituting a dis-
,criminatory reinstatement, inasmuch as the Employer was not obligated to reinstate
him to a like position based upon a discriminatory discharge 34
Conclusions
In view of the foregoing, I find and conclude that Respondent's discharge of Perry
Johnson on April 30 was unrelated to any activities on his part protected under the
Act; that his reinstatement or reemployment by Respondent on terms and conditions
,of employment other than those in effect prior to his said discharge, was likewise un-
related to any activities on his part protected under the Act; and that Respondent did
not violate Section 8 (a) (3) of the Act by said discharge or reinstatement 35
33 Upon the total record presented, I would be unjustified in inferring from the mere
fact that Johnson was a union member and also that he possibly attended a bargaining
session on April 26-not in any way corroborated (or contradicted), by any other witness,
and not accepted by me in view of the vagueness of the testimony and questionable de-
meanor accompanying its testimonial utterance-that he (alone of all employees also
allegedly at that bargaining session ) was therefore discharged, or upon his subsequent
reinstatement assigned to an allegedly undesirable and unprecedented split shift for. that
reason. On the evidence presented, such inference could be the product only of sheer
speculation.
as Certainly a well-ordered public motel is not under obligation to retain in its employ
a room serviceman who absents himself from work all day and who has been convicted of
drunkenness and resisting arrest. Indeed, whether or not the discharge was for a good or
poor or no reason, no violation of Section 8(a) (3) would be entailed unless the discharge
was at least in part the result of invasion by Respondent of organizational or other rights
guaranteed to employees under the Act.
34 In any event the reinstatement or rehiring terms appear to have been fully bargained
and accepted , constituting an executed accord.. While there is evidence that on the occa-
sion of his reinstatement or reemployment on or about June 18, 19, or 20, Johnson was
asked to sign a "new employee" application-which, if insisted upon, it might be argued,
was unfair in the total context of the case-the fact is that this request was dropped by
the Employer upon Yeargan's objection, Johnson was reinstated or rehired without such
requirement, and he voluntarily commenced and has continued working at the motel with-
out further reference thereto. Under these circumstances, any issue as to whether em-
ployer exaction of such a requirement as a precondition to reinstatement would be dis-
criminatory. Is moot herein. Even as to Respondent's earlier call upon Johnson, on the
occasion of its June '3 reinstatement of Johnson which 'Johnson relinquished, to sign such
a paper, there is no evidence that it was induced by or bore any relationship to any pro-
tected activity on Johnson's part under the Act. Any inference to the contrary would be
purely speculative. It might be speculated with greater justification that Respondent's
call on Johnson to execute such a paper was induced by its desire (corroborated by
Johnson himself as having been conveyed to him that day by'Davis) to readmit him to
its employ only on its usual 30-day probationary basis because of Johnson's arrest and
conviction for drunkenness and resisting' arrest-criminal offenses which, even . though
committed on off-duty time and not growing out of his employment with Respondent,
cannot be said to be unwarrantably related in the mind of an employer to the question of
employee suitability, particularly in a job requiring constant contact with the public.
38 Insofar as the Act is concerned,, so long as the discharge is not discriminatorily
motivated, "Management can discharge for good cause, or bad cause, or no cause at all."
N.L.R.B. v. T. A. McGahey, et al ., d/b/a Columbus Marble •Worka, 233'F. 2d 406; 413
-(C.A. 5) .
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Solomon D. Hopes
The complaint further alleges that Respondent discriminatorily discharged or con-
structively discharged, and has failed and refused to reinstate, Solomon D. Hopes, in
violation of Section 8(a)(3) and (1) of the Act. These allegations, also denied
by Respondent, were litigated exhaustively at the hearing.
a. Hopes' version
Until his termination on May 16, 1963, Hopes was employed at Respondent's motel
as a bellman since July 1960. He became union steward around August 1960, vice
president in January 1961, and in January 1963 was elected union president, an office
he continued to hold thereafter during and since the events resulting in his ternnina-
tion. During his employment with Respondent, he also acted as the Union's repre-
sentative in the handling and adjustment of labor problems, including employee
grievances and contract negotiations, and generally in union and employee collective
affairs and interests at the motel. He has been deacon of St. Johns Church for over
20 years, and has never been arrested, charged, or questioned by the police in any
connection.
In or about October 1962, in his capacity as union representative, Hopes handled
an employee disagreement with management involving Georgia Hardwick. Shortly
thereafter, in October 1962, Hopes, together with another bellman, Bynum, was,
accused by Respondent of procuring a female for a guest, and was summarily dis-
charged, resulting in a formal grievance and arbitration proceeding under the then
existing collective agreement, in which in December 1962 he and Bynum were
exonerated and held to have been unjustifiably discharged and were reinstated with.
full backpay. Thereafter Hopes continued to work as bellman and assistant bell
captain at the motel until his termination on May 16 .
According to Hopes (whose testimony I believe in this as well as other respects
as indicated), on April 3, during a critical campaign period for the Union about
2 months before the "decertification" attempt which necessitated a formal Board-
conducted election to determine whether or not the Union should be continued as .
the bargaining representative of Respondent's employees, Respondent's Manager
Davis, in the presence of Bynum (then head bellman), chided Hopes: "'Hopes,
I don't think you're treating us right. You have a petition going around and telling
the employees that if the union lose the election, that they are going to be fired, a
lot of them.' 36 He said, `Now, I wish you would just work as hard for the company
as you do for the union,' and I [Hopes] said to him, I said, `I works hard for the
company. I tries to make the guests happy. I tries to be a good bellman,' and he
said, `Yes, you're a pretty good bellman.' He said, `I wish you would work a little
harder,' I says, `Well, I'll go back, I'll go out and go to work and I'll work just as
hard.' And he says, `Harder,' and then we left, and that was about the end of that
conversation." 37
Hopes detailed the circumstances attending his termination by Respondent on
May 16 as- follows. A collective-bargaining session, which he attended on behalf
of the Union and the employees, had been held with Respondent that day (May 16),
it being mentioned there that the union representation (decertification) election
would be held on May 31. Hopes and bellman Jesse Stuart shared the 3 to 11 p.m.
shift that day. During the evening he roomed a guest (identified to him as Jones),
who asked him what kind of town it was and to bring a pint of Old Crow whisky
and some ice, which he did. Shortly afterwards, Jones came to the lobby, and
approached and asked Hopes about a place "to go and have some fun" or "a good
time." Hopes mentioned the Brown Jug as a place where guests had said they had
enjoyed themselves. Jones asked Hopes if they served drinks or food there, and
asked Hopes to bring him a Coca-Cola in his room, which Hopes did. Then, in
his room (No. 37), Jones asked Hopes if there were any women around, to which
Hopes replied that he saw them around all of the time. Jones asked if it was safe to
bring one up. Hopes told him that he did not know, it was up to Jones, but that
3a There is no evidence that any such document was in fact circulated.
37 Bynum was not produced as a witness, Davis did not dispute the conversation, and I
credit it. There is no evidence that Hopes' services as a bellman were anything other
than satisfactory and that they were so regarded by Respondent ; indeed, the evidence,
including his long tenure at the motel, bespeaks the contrary. Davis himself testified that
on the occasion of Hopes' termination he (Davis) agreed to give him a favorable recom-
mendation as a "good bellman."
THE COACHMAN'S INN 293
:so far as Hopes knew it was "because I see some there [i.e., at the motel] 38 all of
.the time." Apparently Jones kept asking ",the question . . . over and over."
When Hopes had completed his shift and was changing into street clothes, shortly
after 11 p.m., he was told by Davis to go to room 37. When he arrived there,
.he saw Davis, Reed Thompson,39 another man, Jones, and two women, all fully
-dressed. Thompson accused Hopes of rooming a guest, bringing him "Cokes" and
whiskey, and making a telephone call; and stated that shortly after the telephone
,call, two women and a man showed up and said they had been called by "bellman
No. 1." 40 Although Hopes denied any connection with or knowledge of the incident
or of any of the visitors to the room, Thompson said, "I think we've got an open
and shut case against him." When Thompson asked the women whether Hopes had
called them, they replied, "No, we don't know this fellow. We only know the one
that they call Vassy.41 He's not on duty now." When Thompson asked the room
guest (Jones), "Is this the bellman that made the call for you," the room guest
first said, "I don't know, sir. I was pretty full." After some prompting by Thomp-
son, who said, "Oh, you know it was No. 1. Why don't you say it," the room guest
responded, "Well, it was No. 1 then." Thereupon Thompson said to Davis, "We
can take them all down and book them. It will bring publicity for the motel, bring
publicity for Hopes, the president of the union, and bring publicity for Hopes,
deacon of the church." Davis questioned what could be gained by publicity and
spoke privately with Thompson. Thereupon Thompson took photographs of Hopes,
the room "guest," sand the two women. On the way to Davis' office, when Hopes
inquired, "Why are you all doing this to me," Thompson said, "Mr. W. R. Stevens 43
wants this cleared up; we've got to get somebody." In Davis' office, Thompson
said to Davis, "I think this whole thing can be cleared up if Hopes sign[s] a resign
slip temporarily." When Hopes asked Davis how long "temporary" would be, Davis
replied he would not know until he talked to Simms, his coexecutive. A statement
typed by Townsend on Respondent's letterhead, dated May 16, 1963, was then given
to Hopes for signature. It reads:
1, Solomon Hopes, do hereby officially tender my resignation as an employee of
the Coachman,s [sic] Inn to Mr. Harold G. Davis and it is no longer my
desire to work as Bell Man 43 at this place of business and I will seek em-
ployment elsewhere.
Hopes signed it and Davis, Thompson, and Townsend witnessed his signature.
Regarding his signing of the statement, Hopes, who is a Negro, testified: "Well, I'll
tell you; being in this part of the country it is sometimes a little bit difficult to get.
away without signing some things. Sometimes you are pressured into signing things."
He denied that he voluntarily tendered a resignation or that he said he no longer
desired to work at the motel, as set forth in the statement. He also testified that
although he filed a grievance against Respondent based upon his discharge of May 16,
Respondent would not even discuss it.
Hopes was adamantly firm in his denials that he called or procured a woman for
Jones or had any involvement therein. He denied familiarity with the telephone
number allegedly called. He testified without contradiction that he had been a bell-
man in Little Rock for 18 years; of these 18 years, for 7 years at the Hotel Sam Peck,
then 8 years at the Hotel Lafayette, and then 3 years at Respondent's motel. He also
swore without contradiction that he had at no time been arrested or questioned by the
police for soliciting or for any other reason.
. Subsequent to his termination on May 16, Hopes visited the motel to ascertain how
long his "temporary" discharge would be, and also, in his capacity as union president
88 According to Hopes' undisputed testimony, which I credit, Hopes 'had previously ad-
vised Davis from time to time of the common presence of women visitors.in male guests'
rooms-"sometimes before we get a guest roomed and get his bags down 'he's on the tele-
phone calling someone. I told him [Davis] all of that. . . . He [Davis] said he knows
they gets. in there. He,says, 'We can't stop it.' He says, `There's nothing, we can do
about it.' "
39 Hopes had mistakenly first referred to Reed Thompson as Townsend. Reed Thompson
and Townsend are in business tokether locally as private investigators.
40 It is undisputed that at no time, then or, thereafter, was Hopes' name mentioned.
Hopes wore a number "1" insignia at the time.
u I.e., Vasser Belcher, Respondent's night bellman on the 11 P.M. to ' a.m^ shift.
43 One of the principals of Respondent, referred to as an investment -broker. and.also in
.connection with Jack Stevens; described as an owner of the motel and of the Union Life
,Building.
4 The typed word "Captain" was changed in handprinting tq "Nlgq.`" Davis testified
that he did this at the "suggestion" of Hopes.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and employees' representative, on union business to'collect union dues: He was
telephoned at home by Bynum and told that Davis did not want him coming to the
motel. An exchange of telegrams followed (the. last on May 28, 3 days before the
election), barring Hopes from Respondent's premises at all times for all purposes.
b. Respondent's version
Reed W. Thompson 44 testified on Respondent's behalf that his private investigating
firm had handled a number of matters for Respondent over the years. He indicated,
somewhat vaguely, that the problem of prostitution at the motel had been discussed,
with Davis and Sims "several different times," including "probably late February or
early March" 45 with a decision to defer any investigation until around the first week
of April at the end of the Hot Springs horserace season, but that-for some un-
explained reason-he was unable to work on it until May 16,46 the day Hopes was ter-
minated. Thompson testified that he handled the case with the assistance of his as-
sociate Townsend and Earl Poe, whom he characterized as an "undercover agent."
By prearrangement, Poe registered at the motel as "Darrell Jones" and took the role
of a decoy guest in action resulting in Hopes' entrapment and loss of job 47 While
Poe thus acted the part of a motel guest, Thompson and Townsend each established
an automobile observation post on different sides of the motel, with radio intercom-
munication. Thompson, while thus observing, was at times 150 feet distant from the
field or subject of observation.48 Thus observing, he saw Jones register around 7 p.m.
and Hopes take his bags,49 room him in room 37 and leave, shortly to return
with a package which he had seen Hopes obtain in the lobby liquor store. Shortly
after 9 o'clock,50 he saw Hopes enter the lobby, followed by Jones who, according to
u He Identified himself as director, vice president, and stockholder of Special Agent
Investigators, Inc., of Little Rock, practicing attorney, and former FBI agent.
45 On cross-examination he testified that he discussed this matter with Davis prior to
February. Davis testified that although he discussed the procurement situation at the
motel with Thompson in February, the latter's firm was not engaged to look into the
problem until May, with the investigation to begin on "May 16. 1963."
'e As brought out by General Counsel on cross-examination, Hot Springs is '50 to 55a
miles from Little Rock. All things considered, I cannot credit this witness' account or
explanation of the alleged postponement and delay In accomplishing the described "in-
vestigation," which was supposedly so important to Respondent, and which, for reasons
detailed below, I believe was deliberately aimed'at Hopes and deliberately timed for maxi-
mum Impact on the election of May 31. As has been indicated, contrary to Thompson's:
testimony, Davis explicitly testified that it was expressly agreed that the investigation.
was to begin on "May 16, 1963."
41 On cross-examination, Thompson testified that his instructions to Poe (Jones) were
merely to "be on the alert, to obtain the number of the bellboy that roomed him, whoever
he may be, and to more or less just make general conversation with him, see if he would
make any propositions or overtures, to order some whiskey, order some Cokes, order ice,
and see if any of the boys that came to that room made any overtures, and that is what
Mr. Poe did." The final phrase of Thompson's quoted testimony is not untypical of other
efforts by this witness to "deliver" a well-rounded testimonial product. Thompson, who
admittedly was not there and who does not know what Poe did, and who (as analogously
elsewhere in his testimony ) in stating "that is what Mr . Poe did ," was expressing his
own point of view as distinguished from testifying to farts, was definitely wrong in
characterizing Poe's actions as carrying out Thompson's quoted instructions. As shown
below, Poe, who was there and whose actions were being characterized by Thompson, ex-
pressly conceded that it was he (Poe), and not Hopes, who kept bringing up the subject
of obtaining women.
48 On cross-examination he volunteered that he employed binoculars.
11 It would seem that either Thompson's powers of observation were deficient, his instru-
ments of observation inefficient, his recollection inaccurate, or Poe's testimony impure,
since, although Thompson explicitly swore that he saw Hopes take Poe's "bags," Poe just
as explicitly swore (a number of times) that Hopes took his "bag." Ordinarily much
would not be made of discrepancy of this type, but perhaps it Is not unjustifiable to expect
a higher standard of accuracy and consistency in the sworn testimony of paid professional
observers, particularly when another man's job and reputation are at stake.
60 Cross-examination elicited the further testimony from Thompson that soon after Poe
was roomed he left the motel and had dinner with his associates ( Thompson and Towns-
end), and was again Instructed to "see if any porter or bellboy made any passes or over-
tures to him" and to light a cigarette in front of his room "if this thing developed, if a
bellboy should send a woman to his room."
THE COACHMAN'S INN 295•
Thompson, was engaged in conversation by Hopes; 51 and soon thereafter Thompson.
and Townsend observed Jones return to his room, followed shortly by Hopes carry-
ing what appeared to be a Coke bottle. According to Townsend, Hopes left in 10'
minutes. Neither Thompson nor Townsend saw Hopes again until after 11 o'clock;.
when Hopes came to room 37 at the direction of Davis as indicated below.
Meanwhile, however, shortly after Hopes left room 37 around 9:15, according;
to Townsend, Poe came out and lit a cigarette, and soon thereafter Townsend saw
an automobile with a man and two women arrive and park, and one of the women-
identified by him as Beverly Wilkerson-entered room 37. Thereupon, after signal-
ing Thompson, Townsend was admitted by Poe to room 37, where he found Beverly-
Wilkerson standing in the center of the room with only a towel around her. Thomp-
son was admitted to the room 5 minutes later, and, according to his testimony, he
found Beverly Wilkerson and Poe clothed. According to Thompson, the parked
vehicle then left but almost immediately returned to the parking lot, and bellman
Jesse Stuart (i.e., the other bellman on duty with Hopes that evening) was seen by
Thompson talking to the vehicle's occupants (Clarence Wilkerson and Mary Jane
Fisher); whereupon Thompson went to the car, identified himself as an investigator,
and asked the occupants of the car, but not bellman Jesse Stuart, to accompany him
to room 37. They readily complied. There ensued approximately 11/z hours of
discussion among these persons (i.e., Thompson, Townsend, Poe, Wilkerson, Beverly
Wilkerson, and Fisher). According to Thompson's testimony, these discussions took.
place in room 37, but according to Townsend's testimony some of the discussion
took place in the car outside.52 Around 11 o'clock, Thompson telephoned Davis
(who lives at the motel with Mrs. Davis) and told him to come. to the room with,
Hopes. Hopes arrived in his street (off-duty) clothes. Thompson asked Hopes if
he knew the women and Wilkerson. Hopes said he did not. Hopes denied solicit-
ing or procuring the women. Hopes admitted rooming Jones. According to
Thompson, Hopes denied bringing whisky 53 and Cokes. According to Thompson's
testimony, Townsend took photographs of the Wilkersons, Mary Jane Fisher, and
Hopes; according to Townsend's testimony, he also took Poe's photograph, and,
although Poe supposedly testified to all details of what took place in the room that
night. he only mentioned photographs of Beverly Wilkerson and of Hopes.
Neither of the Wilkersons or Fisher, or Poe, was asked to go to Davis' office; on-
the contrary, according to Thompson, the Wilkersons and Fisher were expressly in-
structed to "go on and go home." When, on the way to Davis' office, Hopes asked,
"Why are you trying to do this to me," Thompson testified that he merely replied,
"Hopes, I'm not trying to do anything. Whatever has happened you have done it-
to yourself." 54 In Davis' office, Hopes continued to protest his innocence. After
reviewing the events of the evening, Thompson said to Davis that Hopes could be-
charged with soliciting a female or pandering, and that the woman could be charged;
whereupon, Hopes asked, "What must I do" or "What can I do?" 55 Thompson
said it seemed to him that Hopes had about three alternatives-to resign, to "face a
charge in court and be tried," or to be fired. Then Hopes said that since he did not
want publicity for himself, the motel, or Jones, the "best thing" would be to resign.55'
51 Poe's version of this was that after Hopes merely greeted him, "Hello, Sir." it was-
he (Poe) who engaged Hopes in conversation, which he (Poe) again steered around to the
subject of "entertainment," "dancing," and, finally, a "private party in my room."
51 This is another instance of inconsistent testimony betwen two paid professional ob-
servers. Although Thompson testified that Mary Jane Fisher and Beverly W ilkerson-
were interrogated and signed statements obtained from them in room 37, according to.
Townsend's testimony he (Townsend) took Clarence and Beverly Wilkerson outside to the
car and took the statement from her in the car and not in the room. By way of further-
discrepancy between the testimony of these paid professional observers, Townsend's testi-
mony indicates that he, too, went out to invite Wilkerson and Fisher to room 37.
sz Thompson impressed me as later equivocating on this. Although at first Thompson
volunteered with positive assurance that he had asked Hopes if he got whisky for Jones,
Thompson almost immediately, on his own direct examination, appeared to become evasive
and unresponsive on this, finally indicating that as he "recall [ ed]" he asked Hopes
whether he brought whisky.
64 Thompson later testified that he did not "remember" whether J. R. Stevens ' name was
mentioned. '
55 It is to be noted that such a remark by Hopes. would have been fully consistent ^with
his undisputed continued protestations of innocence.
56 See footnote 55, supra.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Thompson, Hopes then asked Davis whether he could keep his job or
whether Davis would help him get a job if he resigned, and Davis replied that
although he could not keep his job because "We've had this before with you and
we just can't tolerate that any longer," 57 he would nevertheless "be glad to tell any-
body that you're a good bellman." Townsend then walked in and was told by
Thompson that "Solomon has decided that he wants to tender a resignation." Town-
send thereupon drafted and typed up a resignation document for Hopes to sign 58
At no time, according to Respondent's witnesses, was the word "temporary"' men-
tioned in Davis' office. Hopes signed the document, stating that "that was the best
thing for him to do, or the only thing he could do, and that was the best way out." 59
Thompson , Townsend , and Davis witnessed Hopes' signature . It was consistently
testified by Respondent's witnesses that at no time did Hopes in any way admit any
connection with or knowledge of any of the persons in room 37 except guest Jones.
Thompson also testified that he could not recall whether, during the scene in Davis'
office, mention was made of discharging Jesse Stuart; the bellman he saw talking
to the Wilkersons and who was not questioned; and Respondent conceded he had:
not been discharged. Thompson further testified that he had observed and reported
to Davis acts of procurement involving other bellboys at the motel prior to May 16;
that to his knowledge the "investigation" of prostitution at the motel was limited to
the evening and incident of May 16, except possibly 2 or 3 days prior to the hearing
herein. He testified that although it is the usual practice for himself and his associ-
ates to dictate statements as to their surveillance observations in an investigation,
this practice was omitted in this case.60 Thompson at first insistently denied that his
attention had in any way been focused on Hopes by Respondent in their discussions
prior to May 16; or, indeed, that Hopes' name had even been mentioned by
Respondents'
Earl A. Poe, who enacted the role of decoy guest Jones in the described episode
of May 16, testified that he has been a part-time employee of the Thompson-Townsend
firm for 4 years. He said that after Hopes had roomed him and at his request
brought him whisky and appurtenances, he had dinner with his investigative associ-
ates or employers, returning to the motel around 8:45. He then loitered around the
lobby and, when Hopes appeared and said hello, Poe engaged Hopes in conversation,
67 There is no credible evidence of any prior experience of this type by Respondent with
Hopes, other than the October 1962 episode described above, In which Hopes was vin-
dicated and restored to his job.
58 According to Townsend ' s testimony , before he typed up the resignation he said to
Hopes, "Mr. Hopes , is it true that you want to resign?" He later changed this to,
"Solomon, do you want to resign?" According to him , Hopes said , "Yes, I do, " where-
upon Townsend further inquired , "Well, shall I draw up the resignation ," whereupon
Hopes replied ( in what for him, as observed by me, may have been uncharacteristic
idiom ), "If you will."
69 See footnote 55, supra.
0 In an unrelated connection , Respondent attempted to introduce into evidence a gen-
eral report of investigation dated May 20, 1963, of Thompson's agency 'to Respondent.
General Counsel 's objection to the admission in evidence thereof was sustained by the
Trial Examiner . Among other things, the contents of that document are purely hearsay,
self -serving , and conclusionary . Although Respondent ' s counsel indicated it was being
offered to establish that the employer acted upon the basis thereof , and not through union
animus , in discharging Hopes, it would in any event not be the document , but proof
from Respondent which would establish such a contention if material ; and, furthermore,
since the document is dated May 20, 4 days after Hopes was discharged , it is difficult to
perceive how Respondent ' s discharge of Hopes could have been based on that report. If,
on the other hand , Respondent ' s discharge of Hopes was based on what the investigators
told Respondent , that was provable through the investigators ' own testimony , subject to
the usual safeguards and tests of oral testimony.
61 This appeared to me to be most unlikely , and I did not credit it , particularly in view
of Respondent ' s alleged prior experience with Hopes , resulting in his discharge and the
then recent arbitration award against Respondent in December 1962. ( My disbelief was
enhanced by Mrs. Davis ' testimony on this subject , detailed below .) Since it was In-
conceivable to me that Respondent would not have discussed this with an investigator It
was hiring for this purpose , I pursued the subject with Thompson who, after some equivo-
cation and irresponsiveness , wound up by swearing he did not "recall" whether Davis
mentioned it to him. I do not believe Thompson did not recall this, and have taken this,
among other things , into consideration in assessing the weight of his testimony in other
respects.
THE COACHMAN'S INN 297
gradually working his way around to the subject of "what would be possible, what
did Little Rock have to offer in the way of entertainment." When Hopes asked,.
"What kind of entertainment," Poe said, "Well, possibly a mixed drink over the bar
and some dancing." Poe's testimony continued: "He [Hopes] mentioned the Brown,
Jug, and also, I believe, the Officers Club on Main Street. I then advised him that I
was without a car and it would take quite a while to walk that distance and I was.
rather tired. I asked him would it be possible to have my own private party in my
room. He looked at me and said, `That might be arranged.' I said, `Are you sure,'
and he said, `Yes.' I then asked him if a working man could afford it, and he said,
`Yes, I don't think it's too steep.' I said, `Well, I have to return to my room, make
a phone call, and I'll call you in about 10 minutes.' I then left him and returned to,
my room." After completing his telephone call from his room, he called for Hopes.
to bring hirrn a Coke, and, when Hopes arrived, according to Poe: "He gave me the
Coke. I sat down on the bed. I then asked him-I told him, I said, `Let's go•
ahead and finish the discussion and get the show on the road.' I said, `Approximately
how long will this take,' and he said, `Not long.' I said, `15 minutes?' He said,
`15 minutes probably.' I said, `Fine.' " According to Poe, in response to a question
by him, Hopes indicated the price would be between Poe and the girl, but mentioned
$20, and Hopes then dialed several numbers from the telephone instrument in Poe's
room, finally speaking on that instrument briefly but inaudibly, indicating "15 min-
utes" while shaking his head at Poe (who nodded), hanging up the' instrument and
leaving after indicating to Poe that he (Hopes) would "see the girl afterwards. Have
fun." 62 According to Poe, about 20 or 25 minutes later there was a knock on the
door and he admitted Beverly Wilkerson; and, after preliminary financial negotiations
had resulted in a meeting of the minds, the woman began to undress in the bathroom,
and while she was still in the bathroom Townsend knocked on the door and Poe
opened it, permitting him to enter, and the woman then returned to the bathroom and
got dressed.63 Poe did not testify with regard to what happened thereafter, other
than to indicate that just before Hopes left at the end of the quesioning after 11
o'clock, he and Hopes were alone momentarily, and that he said to Hopes, "What
else could I do. There's no use lying about it," at which Hopes shrugged, smiled,
and said, "Don't worry. They can't prove a thing." 64
The. following colloquy occurred during the testimony of Poe:
TRIAL. EXAMINER: Would it be correct to say that it was you rather than Hopes
who was the one who kept bringing up or coming back to the matter pertaining
to women? Did you 'ask him, or was he the one to volunteer the information to
you about women being available?
The WITNESS [Poe] : I did not use the term "Women." I said would it be
possible to have a private party in my own room, and I let it rest. I let him
draw his own inference.'
TRIAL. EXAMINER: When you used the expression, "Private party," did you
mean a party attended by yourself?
The WITNESS: I wanted him to know that I wanted a party. It was up to
him to decide just what that party might be. A-'
TRIAL. EXAMINER: Since you used the expression, what is the meaning you
were prepared to have him accept, shall we say? Did you mean a party of
yourself, a party with a man or men or did you mean a party with a woman?
The WITNESS: I say again, when I made that statement lassumed he knew
what I was talking about.
68 Hopes categorically denied the incident, including the telephone call or calls. He ad-
mitted bringing Poe the soft drink.
'3 It will be recalled that Townsend testified that when he entered the room the woman,
was standing in the center of the room with only a towel around her. Why, under the
circumstances , with the security of a bathroom , an illicit visitor would want to come out
into the center of the main room to permit viewing and access by an Intruder, is not
apparent.
84 Hopes denied saying this . Although I credit Hopes , even the making of such a state--
ment would be consistent with assurance based upon innocence of wrongdoing . Poe fur-
ther testified that before he took the witness stand at the hearing he was accosted by
Yeargan , who told him In essence that he regretted Poe's involvement and that the testi-
mony would show he was drunk at the time and signed a statement 'because he was told
he would be booked at the police station.
d
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER: Well, what were you talking about?
The WITNESS: I was thinking women, but I didn't talk about women.65
Thompson additionally testified that in April 1963, while he was in the motel
lobby on other business, Hopes approached him and asked "if there was anything
he could do for me. I told him no . . . . He asked me if I wanted any female
company .... I told him no." 66 He said he reported this to Davis, who asked
to be kept informed.
Davis had little to add to the foregoing testimony, insofar as he figured in the in-
cidents described. He did, however, testify that early in April, at his usual monthly
meeting in his office with the motel bellmen (i.e., Bell Captain Bynum, Hopes,
Stuart, Albright, and Gilliard), the subject of bellmen calling women in for guests
was mentioned by him, as it had been before; that he had heard rumors ,for 3 or
more years that bellmen were "doing it periodically; not bad"; that it is a well-known
(but undesirable) practice in the hotel-motel industry for bellmen to accommodate
male guests seeking female companionship; and that between 1960 and 1963, other
than for the October 1962 discharge of Hopes and Bynum resulting in .the arbitra-
tion determination that the discharge was unjustified, no employee had been dis-
charged for participating in this practice 67 He confirmed the fact that Hopes has
at all times consistently denied involvement of any kind in the described incident of
May 16 for which he was discharged, or knowledge of the visitors to the room,
whom Davis said Thompson described as "known prostitute[s]" and (of Clarence
Wilkerson, the man who accompanied the women) "just out of the penitentiary."
He testified that Thompson stated in room 37 that night that "These girls said that
bellboy No. 1 called them," 68 Hopes' name not being mentioned. Davis provided
a slightly different cast than that given by Thompson to the events which occurred
in his office on the night of May 16 following the confrontation in room 37, at
which Hopes was neither identified nor implicated nor accused by anybody other
than Thompson. According to Davis' version, it was stated by Thompson, "Well,
we've got three alternatives, three different things we can do. We can prosecute
Hones.69 We can fire Hopes, or we can let him resign." Davis replied that they
had "no desire to prosecute him" since it would result in bad publicity for the motel
as well as "for Hopes." 70 Thereupon, Thompson said, "I suggest that Hopes resign,"
whereupon, Hopes said, "I will do that if you will help me get a job," to which
Davis responded, "Well, I'll go as far as to tell them that you are a good bellman." 71
Davis testified that notwithstanding the wording of the resignation document pre-
pared for Hopes' signature, he could not recall Hopes' saying that he did not wish
to work at The Coachman's Inn any more.
cs Since It is clear from the record, according to Poe's own testimony, as well as that
of Hopes which I credit, that it was Poe and not Hopes who kept bringing up or steering
the conversation around to the subject of women and the possibility of getting a woman
into Poe's room, I have given consideration to what I regarded as Poe's lack of candor
and forthrightnes n the quoted colloquy, in assessing the weight to be accorded to,other
portions of his to, mony in relation to his contradictions of Hopes' testimony.
ae Hopes unequivocally and categorically denied this.. All things considered, including
the serious nature of the alleged acts, the inherent improbabilities of such a story, de-
meanor comparisons, and the entire record , I do not credit so much of this portion of
Thompson's testimony as deals with female company, although I have no difficulty in be-
lieving that Hopes may well have asked him merely "if there was anything he could do for
me"-a perfectly innocent, not implausible, and natural remark for a bellman to make
(and soon forget) in the regular and efficient discharge of his duties, to a lobby loiterer.
07 He said two were discharged in 1960 for this reason.
681t Is observed that according to Davis even this statement came from Thompson and
not from either of the women. Hopes categorically swore, and I believe him, that at no
time in his presence did either of the women state. that he had called them to the motel.
Although the women were present at the hearing pursuant to subpenas issued to Respond-
ent at request of its counsel, they were not called to testify.
"Davis first testified that Thompson said , "We can prosecute them," but he at once
corrected this to "prosecute Hopes."
701 have difficulty in believing Respondent was concerned about publicity "for Hopes."
71 The rhetorical query might be appropriate whether, if Davis considered Hopes' alleged
act to be so serio".s as to merit summary discharge after 3,years off service, and therefore
apparently inconsistent with satisfactory performance of the job of bellman, how then
could Davis be willing to recommend him as a "good bellman"?
THE COACHMAN'S INN 299
Mrs. Beth Davis,. wife of Motel Manager Davis and employed at the motel as
"sort of an assistant manager," testified that around 8 p.m. on May 16, she and
.Davis retired to their apartment in the motel; that as a rule they watch television,
but on this evening, although she knew of nothing unusual going on in the motel,
she commenced "monitoring" each "station" ( i.e., linen room, kitchen, bellstand,
etc.) in the motel, continuing this activity from about 8 or 8 :30 to 10 or 10:30,
by means of a bedside "monitoring" device maintained by them in their bedroom,
-enabling them to overhear what is spoken on the telephone at the particular motel
"station" being monitored. She testified that Davis also "monitored" that night.72
.She later revised her testimony in important respects. Contrary to her earlier testi-
mony, she later swore that Davis did not "monitor" that night, but only she. She
:also said, later, that she (as well as Davis) spent many evenings eavesdropping via
.the "monitor" system, and that she ordinarily did this every evening. It will be
:recalled that Poe (Jones), the decoy guest, had indicated that Hopes made the
:alleged assignation arrangements from the telephone instrument in Poe's room 37.
Mrs. Davis indicated in her testimony that while she was in bed "monitoring," she
overheard 73 assumed assignation arrangements being made by Hopes over the
telephone from the motel bellstand.74 Although according to her testimony she
"monitored" 2 or 2V2 hours that evening, she insisted she could not recall anything
else she overheard. Although Mrs. Davis swore unequivocally on direct examina-
tion that she knew of nothing unusual going on at the motel that evening, on cross-
,examination her testimony on this subject was nothing less than a mass of inconsist-
encies and evasions, until at length she flatly contradicted her testimony on direct
examination and testified that at the time she started to "monitor" that evening she
knew there were investigators at the motel; that these investigators were there for
-the purpose of "catch[ing] whatever bellboy that was on duty that was calling the
girls"; that she was "sure" that the names of Hopes and Stuart had been given to
the investigators as the persons Respondent suspected; and that her husband, Motel
Manager Davis, had directed the attention of the investigators toward Stuart or
Hopes or both of them 75 Mrs. Davis also testified that she and Davis had known
72 This was contradicted by Davis, who testified he did not "monitor" that night.
78 General Counsel's motion, upon which decision was reserved at the hearing, to strike
-out all of Mrs. Davis' testimony relating to this telephone call, upon the specified, limited
ground of lack of proper foundation therefor by reason of insufficient voice identification,
is denied.
In his brief submitted subsequent to the hearing, General Counsel for the first time raised
the contention that Mrs. Davis' testimony relative to what she allegedly overheard via the
"'monitoring" device was inadmissible under the provisions of the Communications Act.
Although some question may exist as to whether the mode; manner, and circumstances of
Mrs. Davis' actions constituted activity proscribed by the Commun+,"tions Act of 1934
(48 Stat. 1103, 47 U.S.C. sec. 605), even if it did proper objection was not voiced by
'General Counsel at any time during her testimony or during the hearing, and no motion
was made for its suppression. Since for reasons of veracity I do not credit Mrs. Davis'
testimony dealing with her alleged "monitoring" of what was at best egfilvocal and ambigu-
ous telephone language involving questionable identification of one voice (Hopes) and a
.wholly unidentified other voice, it is unnecessary to reach or pass upon the question of
whether her activity was or was not in violation of the Communications Act of 1934; nor
- upon the question of whether, if it was in violation of that statute, the failure of counsel
-to object, upon that ground, to the admission of testimony based thereon, or to move to
-suppress, was or was not fatal to his raising of the issue of the possible statutory bar
-for the first time subsequent to the hearing.
7* Inasmuch as Mrs. Davis swore she kept switching her "monitoring" activities from
-station to station that evening, and her account of the assumed assignation arrangements
-she says she overheard being made by a voice she thought was that of Hopes involved
only about three tense sentences ("I have something working. I will have to call you
`back," followed by an unidentified female voice saying she would be at or come to The
'Coachman's), Mrs. Davis' testimony that she overheard these brief words at just exactly
the "right" time, in the course of listening to all of the other stations and switching
.around, appears to be dependent upon assumption of an extraordinarily high degree of
coincidence. Hopes denied making such a call, and I believe him.
71 As thus revised by her, -Mrs. Davis' testimony was not only, inconsistent with her
earlier testimony, but contradicted that of Thompson and Davis. I credit Mrs. Davis'
revised testimony that Hopes' name was furnished to the investigators as a prime suspect
and that -he was at least a prime target of the events planned for that evening.
300 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
since at least November 1962 when the "monitoring" system was installed, that
women were being procured for motel guests; that they had overheard Stuart as
well as Hopes make calls from the bellstand for that purpose ; 76 that at no time
was anything done with regard to Stuart , other than to speak to him about it, and
that he was never fired and is still employed at the motel ; and that bellman Vasser
Belcher ( the "Vassy" allegedly identified by the women in room 37 as the bellman
they knew ) is likewise still working there.
Also called as a witness by Respondent was Jesse Stuart , bellman on duty with
Hopes , on the night of May 16, who after some memory jogging testified that after
ascertaining from him that night that "the No . 1 bellman" was occupied , the driver
of a car asked to be directed to room 37 and to see if anyone or "No. 1" was
around there . By the time Stuart looked and saw that there were several men in that
room, the driver had moved the vehicle ; and, while Stuart was talking to the driver,
two men emerged from room 37 and approached them, one displaying a badge and
starting to talk to the driver , the other merely asking Stuart his name and nothing
else and then turning away , Stuart thereupon returning to the bellstand.77
Fred Albright was also called as Respondent 's witness . Fired by Davis a day or
two prior to his appearance to testify at the hearing , Albright , formerly a bellman at
the motel, and a somewhat itinerant worker with many jobs, many children, and
residing at his in -laws, testified that at some unremembered time between Christmas
and Easter Hopes gave him the telephone number of a woman, whom Albright char-
acterized as a "call girl," but that he never called the number . 78 He also said that
on a distant and unremembered date he received $4 from Hopes in connection with
prostitution . He testified that he was summarily fired by Davis, in the presence of
Respondent 's counsel herein , for soliciting girls in violation of the motel 's rules and
regulations , and that he executed a written statement ,79 after being told that "if [he]
would explain that [he] was guilty of it [he] would be helping [himself]," this ex-
planation having been made to him by Townsend , whom he characterized as "one of
the arresting officers ." He freely admitted that he solicited prostitutes at the motel,
but allegedly could not remember the name of even one; and stated that in his con-
fessed procurement activities he considered he was doing "both ... right and wrong,"
later qualifying this so as to admit that his actions were not consistent with honest,
upright, moral conduct. Hopes unequivocally denied furnishing any telephone num-
ber or giving money to Albright as testified by the latter. After closely observing
Albright's appearance , deportment , and demeanor while he testified, and comparing
it with that of Hopes, I find it impossible for me to credit Albright , who impressed
me poorly, in preference to Hopes, and I therefore reject Albright 's testimony in
relation to Hopes.
Except for the private investigators , none of the visitors (Clarence and Beverly
Wilkerson and Mary Jane Fisher ) to room 37 on the evening of May 16 was pro-
duced as a witness at the hearing , although apparently all were present throughout the
hearing pursuant to subpenas served upon them at the instance of Respondent's
counsel . In view of returns on these subpenas issued at Respondent 's request, di-
rected to Beverly and Clarence Wilkerson and Mary Jane Fisher, the Trial Examiner
inquired of Respondent 's counsel , upon his announcement that Respondent rested,
whether Respondent intended to call these subpenaed witnesses. Respondent's,
counsel replied , "They were so unreliable we could not afford to produce them."
79 Mrs. Davis testified that in connection with her husband ' s knowledge of this practice
since November 1962 , they both knew from the "monitoring" that "Hopes would be calling
for hours until he could find a girl ." I do not credit this grave general accusation, made
with such sweeping facility and lacking any factual detail or support.
77 Since Stuart was unable to identify Wilkerson , General Counsel moved to strike out
all of his testimony , and the Trial Examiner reserved decision thereon . The motion is
now denied , with an automatic exception to General Counsel . Although Stuart 's testi-
mony is to a degree corroborative of undisputed , though perhaps not material or particu-
larly significant , portions of that of Thompson and Townsend , it is not inconsistent with
that of Hopes.
78 Afterward, he said he never obtained any answer when he dialed it . The alleged
"call girl ," referred to by him as "Zella," was neither of the women involved in the
May 16 episode nor is the telephone number theirs.
79 It is observed that Respondent did not avail itself of this effective type of discharge
procedure in the case of Hopes, whom it now pictures as having conducted open and
notorious procurement operations at its motel , to the extent even of approaching and
soliciting a lobby loiterer ( Thompson in April ) ; but, instead , elected or was constrained
to concot an artificial entrapment situation in order to produce "proof " against Hopes to
bring about his discharge.
THE COACHMAN'S INN 301
I have already indicated my rejection of the testimony of Albright, with my
reasons therefor, and the fact that Stuart's testimony contributed little if anything
of value in the resolution of the issues presented. I have also made passing com-
ments on the testimonial qualities of other witnesses in relation to the Hopes' dis-
charge; and these will be supplemented with my general observations and overall
evaluation of demeanor.
I found Thompson to be a witness who appeared eager to testify against Hopes
in assistance of contentions which would support the validity of his discharge. His
general pattern of testimony was punctuated by unresponsiveness, hedging, anticipat-
ing, or turning and expanding the direction of Respondent's counsel's questioning on
direct examination, adroitly "curing" objectionable questions, and answering ques-
tions before objections could be ruled upon or interposed (although he is himself
an attorney). At one point he concerned himself about what the Trial Examiner
had in his "notes." Attempts to have him state what he said and heard, rather than
continually to characterize statements and draw his own conclusions based upon his
own opinions and assumptions, were well nigh futile. My evaluation of this witness'
testimony is of necessity made within this basic frame of reference which he himself
provided. Within that frame, I have also taken into consideration, as I always
must, alleged lapses of recollections, inconsistencies, and contradictions between
his testimony and that of his associates, Townsend and Poe, considering in the
scales, as I have already mentioned, the fact that they present themselves to be
judged as paid expert professional observers. Insofar as Mrs. Davis is concerned,
the fluctuating nature of her testimonial productions and her serious self-contradic-
tions set the timbre of the basic note characterizing her testimony. Davis' contribu-
tions in the way of testimony were slight, and have been and will hereafter be com-
mented upon. In my assessment of his testimony, as that of Hopes, I have of course
given careful consideration to the factor of interest arising from identification or
identity with parties.
I observed Hopes with meticulous care throughout the hearing. In addition to
weighing such undisputed facts as his unblemished record, his stable employments, his
church activity, his standing with his fellow-employees, the efficiency of his job per-
formance with Respondent as attested to by Davis and Vance Thompson, the serious-
ness of the offense of which he was charged, and the manner in which the alleged
evidence thereof was obtained, I listened to and watched him with unflagging atten-
tion as he testified. I was left persuaded that he was testifying essentially truthfully.
In resolving credibility issues in Hopes' favor, I have also endeavored to weigh
in the scales of my mind's eye the manifold factors and elements present in this case
in unusual degree and confusing array. It may be appropriate to mention some of
these, so as to provide greater dimension to the basis for the fact-finding I have
made with regard to the Hopes episode. I have, for example, taken into account the
fact that Respondent was dedicated to the objective of dislodging the Union from its
motel; the fact that a "decertification" petition had been filed by the assistant to its
auditor-assistant motel manager; the fact that the motel management and its satel-
lite personnel were openly and avowedly campaigning to defeat the Union in the
election of May 31; the background of violations of the organizational rights of its
employees, as herein detailed and found; the previous attempt to fire Hopes on the
same ground, which did not succeed but backfired at Respondent, and Respondent's
riposte thereto; the fact that Respondent was fully aware of the alleged practice
complained of, allegedly on the part of Hopes as well as other bellmen, but, although
it insists on the seriousness thereof, withheld action to stop it until May 16, 2 weeks
before the critical election; 80 the fact that although Respondent admittedly knew
and had and has evidence of such alleged activity on the part of bellmen other than
Hopes, it was Hopes, president of the Union, who was singled out as a target for
discharge; 81 the fact that Hopes has concededly at all times denied any and all
involvement in the episode of May 16; the fact that none of the active participants
in that episode has ever identified Hopes or indicated that he was involved, although
they did not hesitate to name another bellman ("Vassy") who has never been ques-
tioned but, on the contrary, is still working at the motel; the fact that bellman Stuart,
notwithstanding the evidence presented, has not been questioned and is still work-
ing at the motel; the fact that Hopes, in effect accused of serious crime, has never
been formally charged, tried, or convicted by due process of any court of law, and
has been given no opportunity to defend himself against such accusation in accordance
80 Cf. N.L.R.B. v. Arcade-Sunshine Co., Inc., 118 F. 2d 49 (C.A.D.C.), cert. denied 313
U.S. 567.
ei Cf. N.L.R.B. v. Monumental Life Insurance Company, 162 F. 2d 340 (C.A. 6) ; N.L.R.B.
v. Continental Pipe Line Co., 161 F. 2d 302 (C.A. 5).
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with accepted legal standards and safeguards, but instead has only been accused and
pronounced "guilty" by a paid private investigator based upon his own alleged con-
clusions; the unlikelihood, particularly in view of his recent experience of having,
been discharged by Respondent for the same alleged reason, that Hopes would make
telephone calls over the motel's own telephone system, rather than to employ the,
obvious and simple expedient of telephoning from one of the coin telephone instru-
ments in the motel, if he really were involved as claimed; Respondent's frame of
mind on the subject of Hopes, as evidenced by its assistant manager's statement (in:
the presence of Manager Davis) to Brown, as testified to by the latter without con-
tradiction-"George [Brown] is just about as hard to keep pleased with getting raises.
as Hopes is to keep dead"; Respondent's willingness, notwithstanding the circum-
stances of Hopes' discharge, to give him a good reference as a bellman; 82 and Re-
spondent's unconditional and absolute barring of Hopes, union president and desig-
nated employees' representative, from its premises 83 for any purpose at any time 84
If in fact, as Respondent urges but has not established by credible evidence, it
was really concerned over a serious immorality situation at its motel, it would seem
that it would have taken effective, undelayed measures to stamp it out instead of
deliberately postponing any action until 2 weeks before the Board-conducted "de-
certification" election in anticipation of which it was admitted taking an active hand
in attempting to unseat the incumbent Union headed by Hopes. Furthermore, if it
was really convinced, or even only suspicious, that Hopes was involved-particu-
larly if Hopes' procurement activities were as unconcealed and notorious -as Re-
spondent would now have it believed, to the extent that (as testified by Thompson)
Hopes even accosted a lobby loiterer (Thompson) and openly offered to procure a
woman for him-it would seem that Respondent and its knowledgeable investigators
would have had no difficulty in obtaining direct, clear, and convincing evidence
thereof by establishing routine surveillance' over Hopes' movements and activities.
visa-vis actual guests and lobby occupants, instead of contriving a single alleged
instance of induced, manufactured, purchased entrapment evidence.
Hopes' testimony that he several times reported to Respondent his observations.
of the immorality situation at the motel is uncontradicted. Davis went further,
testifying that procurement by bellmen at hotels and motels is fairly common in
that industry. There is no claim .or even suggestion by Respondent that (aside
from the late 1962 episode in which Hopes was exonerated) it in any way intimated
to Hopes that it suspected he might be involved, or that implicated employees would
be dealt with summarily, severely, or indeed at all.
Even aside from my credibility resolutions in favor of Hopes, it is impossible to
escape the purpose of the retainer and precise timing for May 16 of the work of
the investigators, to have been not discovery but entrapment. Poe's testimony estab-
lishes that it was he and not Hopes who kept steering the conversation around to
the subject of arrangements for women. Acceptance of the product resulting from
an entrapment scheme may justifiably be tempered by commonsense caution before
treating as established fact that which a person has already made up his mind to
before the event which he himself brings about.
ez Cf. N.L.R.B. v. Abrasive Salvage Company, Inc., 285 F. 2d 552, 555 (C.A. 7).
es "In view of the active and energetic anti-union campaign conducted by management,
the Board properly found that the discharges were but part of a design to eliminate the
union, made because the employees were members of a union and active therein. As
previously stated, the entire course of conduct must be taken into consideration when
studying the propriety of the discharges, and therefore the contention that events sub-
sequent to some discharges cannot be considered In connection therewith must be over-
ruled." N.L.R.B. v. Vail Manufacturing Company, 158 P. 2d 664, 660 (C.A. 7), cert.
denied 331 U.S. 835
8' Respondent argues that to resolve credibility in Hopes' favor would require rejection
of the testimony of six of Respondent's witnesses, including two lawyers. This is not
really so. Although Respondent outnumbered Hopes in witnesses, careful analysis of the
testimony of Respondent's witnesses yield surprisingly few solid material facts as dis-
tinguished from a good deal of immaterial, tangential, inconsistent, equivocal, or con-
clusionary Interlarding. And, if cases were to be determined by the number of witnesses
on each side, human triers of fact could be dispensed with in favor of mechanical count-
ing devices. Since "none of the rejected evidence had this quality of inherent veracity
and none of the credited evidence carried the mark of obvious falsehood" (Sardis
Luggage Company v. N.L.R.B., 234 F. 2d 190, 193 (C.A. 5)), the result is unaffected by
the circumstance that the discriminatee's testimony was "flatly contradicted by the testi-
mony of [company] witnesses in the ratio of nearly four to one ." (N.L.R.B. v. Poultry
Enterprises, Inc., 207 F. 2d 522, 524 (C.A. 5).)
THE COACHMA1 'S INN 303
In Federal courts and other jurisdiction 85 entrapment is an absolute defense to
crime (on the theory that, absent the entrapment there is no proof of the crime;
nor, indeed, that the crime would have been committed at all 86 ). And in civil
matters, it could, for example, hardly be urged that a person who induces another
party to a contract to breach it or who persuades another to commit a tort, can
then make the other respond in damages to him flowing therefrom. But apart and
aside from this and even if it be that entrapment does not mandate casting aside
its end product in a proceeding such as this, entrapment evidence simply is not of
the same calibre as other evidence and is therefore not entitled to the same weight 87
The Supreme Court has characterized entrapment as the "manufacturing of crime." 88
Entrapment evidence is thus created evidence of something which might never have
happened, as distinguished from obtained evidence of something which happened.
Entrapment evidence pervades and infects the rubric and contaminates the case.
Perhaps particularly in labor relations cases, evidence obtained through the manu-
facturing technique of entrapment should be viewed with a high degree of suspicion,
since it is a technique singularly suited to accomplishment of unfair discriminatory
practices in the discharge of employees in violation of the Act under the color of
apparent, but actually perpetrated, justification. This may be especially true when
active participants in the entrapment scheme are persons, like prostitutes or other
criminals, of easy virtue and accessibility for monetary considerations. Even in
those instances where actual crime or misdeed has occurred among several employees
and the employer is unable to determine who is the culprit, it does not follow that the
particular employee who has been induced into committing such an offense by a
persuasive decoy and thus entrapped, is the employee who was the perpetrator of
the actual (as distinguished from the manufactured) misdeed which occurred prior
to the employer's utilization of the aggressive decoy. Suspect evidence gained
through entrapment does not become free from suspicion merely because of the
fact that offenses were in fact committed in the past by one or more of several
unidentified employees, without evidence linking the entrapped employee with the
previous offenses. Herein there was no such evidence, except a prior discharge of
the employee upon the same basis. Since, however, that prior discharge resulted
in a formal determination in which the discharge was found to be unjustified and
the employee ordered to be reinstated with backpay, the evidence of the prior dis-
charge is no evidence at all.
Respondent makes much of Hopes' "resignation," treating the document he signed
as in the nature of a formal surrender or release of his rights. It is no such thing.
The circumstances of his signature thereto have been described, including my belief of
the truth of his explanations. Far from being a surrender of his rights, execution of
such a document, or "resignation," under pressure and scare may itself be evidence
of coercion in violation of the Act.89 "Resignation" so induced is treated for legal
purposes the same as an actual discharge, although it is sometimes referred to as a
85 "In Sorrells v. United States, 287 U.S. 435, this Court firmly 'recognized the defense
of entrapment in the federal courts. The intervening years have in no way detracted
from the principles underlying that decision." Warren, C.J., in Sherman v. United States,
356 U.S. 369, 372. See also Neill v. United States, 225 F. 2d 174, 177 (C.A. 8) ; Butts v.
United States , 273 F. 2d 35, 38 (8th Cir.) ; Riddle v. State , 373 P. 2d 832, 841 (Okla.)
Jones v. State, 101 Ga. App. 851, 115 S.P. 2d 576, 584-585.
sa "Human nature is frail enough at best, and requires no encouragement in wrong-
doing. If we cannot assist another, and prevent him from committing crime, we should
at least abstain from any active efforts in the way of leading him into temptation."
Saunders v. People, 38 Mich. 218, 222.
81 "The fact that a detective thus employed [by a party] seeks to establish by his own
evidence facts upon which a decree of divorce is sought prompts the courts to look upon
such evidence with suspicion, and calls for the exercise of the judicial conscience as to
the weight to be given to the same . . . this court has justified justices and jurors in
looking with suspicion upon the evidence of prostitutes and detectives on different occa-
sions . . Yates v. Yates, 211 N.Y. 163, 171, 172, 105 N.E. 195. See also Meisner v.
Meisner, 29 N.Y.S. 2d 342, 345, affd. 264 App. Div. 758, 35 N.Y.S. 2d 712, leave to appeal
denied 264 App. Div. 853, 36 N.Y.S. 2d 185.
88 Sherman v. United States , 356 U.S. 369, 372.
89 Cf. N.L.R.B. v. Morrison Cafeteria Company of Little Rock, Inc., 311 F. 2d 534
(CA. 8) ; N.L.R.B. v. Same-Glassman Shoe Corporation, 201 F` 2d 238, 242-243 (C.A. 1)
N.L.R.B. v. East Texas Motor Freight Lines, 140 F. 2d 404, 405 (C.A. 5).
:304 DECISIONS OF NATIOI^_AL LABOR RELATIONS BOARD
"constructive discharge." 90 Hopes had only recently been reinstated to his job
following an unsuccessful attempt by Respondent to discharge him for the same
reason, which arbitrators had found to be unjustifiable. As union president and
spearhead of the legally protected organizational activities of the employees in the
motel, he was a prime target for Respondent's animosity and hostility, particularly
during the rising tempo of its campaign to dislodge the Union in the upcoming elec-
tion of May 31.91 Hopes, who did not impress me as naive but rather as a mature
and seasoned veteran of the hotel-motel trade, undoubtedly realized this. Under
these circumstances, it is not likely that he would have compromised the Union's elec-
tion chances and jeopardized his own personal security by committing crime care-
lessly, openly, and notoriously, and even placing evidence thereof in the hands of a
stranger by telephoning in the stranger's presence from a potentially monitored or
eavesdropped motel room telephone, instead of utilizing the privacy of a coin instru-
ment. Based upon the closest scrutiny of his testimonial behaviorisms at the hearing,
I am fully convinced and credit his explanation that his written "resignation" formally
witnessed by three persons was indeed coerced as he described, and that he put his
signature to it only out of pressure and fear of intolerable alternative consequences
to him, his family, and his church. Hopes convincingly explained his motivation
leading to his action, in testifying that, when faced with being "book[ed] ... on a
felony charge," "You have never been a colored fellow, have you, down in jail?"
and "I've never been down there. I've always tried to obey the law and stay out
of the way of the law, but I've heard how they treat people down there in jail, and
that is why after they kept telling me that they would carry me to jail or make
publicity-I didn't want either one of those things," and "You understand how it
is with a poor colored fellow and a man that's got a million dollars. Maybe you
can understand what I was afraid of." I believe that Hopes' account of the circum-
stances attending the preparation and signing of the "resignation" is the more in-
herently probable. Particularly after observing Hopes with care during his lengthy
testimony (on direct and cross-examination and rebuttal), I have no hesitancy in
believing and finding, as I do, that his signing of the "resignation" was coerced and
of no legal effect.
I also cannot escape the impression that Respondent's argument that it preferred
Hopes' resignation (which it, not Hopes, suggested) to the alternative of publicity
for the motel, is being overplayed. Davis' subsequent report of the incident to
the. Federal authorities, as testified to by him, appears to negate Respondent's con-
tention that it desired Hopes' resignation and not his prosecution, and there is no
indication that it was attended with any publicity at all. I believe it far more likely
that Respondent's true interest and motive was not, as it claims, to avoid publicity, but
rather to obtain in hand a written "resignation" by Hopes which would rid Respond-
ent of Hopes as president of the Union at an auspicious time just before the Board-
conducted "decertification" election.92
In view of all of the foregoing, I am persuaded that Hopes did not commit the
alleged offense, and that Respondent did not believe that he did so.93 In any event,
90 Cf. N.L.R.B. v. Berg-Airlectro Products Co., 302 F. 2d 474, 476 (C.A. 7) ; N.L.R.B. v.
Economy Furniture, 284 F. 2d 339 (C.A. 5) ; N.L.R.B. v. Alice B. Hazen, et al., d/b/a
Hazen & Jaeger Funeral Home, 203 F. 2d 807, 808 (C.A. 9) ; N.L.R.B. v. Saxe-Glassman
Shoe Corporation, supra, footnote 89; N.L.R.B. v. Stowe Spinning Company, et al., 165
F. 2d 609, 615 (C.A. 4), reversed on other grounds 336 U.S. 226.
01 That Respondent regarded Hopes' position, reputation, and influence among its em-
ployees as substantial is attested by the observation of Respondent's President Vance
Thompson when he espied and demanded that Hopes move away from a vehicle in which
lie was seated near the motel on the day of the election: "Well, as long as Hopes sits here
you know exactly how . . . they are going to vote." It is recognized that "where the
discharge in question involves the `key' employee in an organizational drive,, it may supply
shape and substance to otherwise equivocal circumstances." N.L.R.B. v. Davidson Rubber
Co., 305 F. 2d 166, 169 (C.A. 1). See also N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors
Company, 196 F. 2d 272, 275 (C.A. 5), cert. denied 344 U.S. 865.
°- The "publicity" argument, as others advanced by Respondent, affords yet another di-
mension of indication that "the entire episode was engineered in order to provide an excuse
for [Hopes'] discharge." N.L.R.B. v. Condensor Corporation of America, 128 F. 2d
67, 76 (C.A. 3).
93 Although, based on the total circumstances herein, I have found that Respondent did
not in fact believe that Hopes committed the alleged offense for which he was discharged
on May 16, this is not to say that Respondent would be entitled to rest a claim that the
discharge was necessarily nondiscriminatory upon its own ipse dixit that it believed
what someone else (i.e., the private detective) concluded and told it. If such a conten-
THE COACHMAN'S INN 305
even if Respondent had established that Hopes did commit the alleged offense, or
that Respondent did in fact believe that he did, the record considered as a whole.
compels the inference (and I so find) that Respondent did not discharge him for that
reason, but rather for discriminatory reasons based upon his union standing and
activities, in violation of Section 8(a) (3) of the Act 94 I am fully convinced that
the timing and arrangements for Hopes' entrapment took place within the matrix of
Respondent's plain union animus and the general pattern of unfair labor practices
already described. The discharge of Hopes by forced resignation was in no sense a
routine discharge or resignation of an employee for reasons relating to his job per--
formance, but was a deliberately engineered "resignation" based upon a manufactured
situation arising out of a diversified background of unfair labor practice. Although
tion were valid, then indeed discriminatory discharge would be easy and wholesale evasion
of the Act invited, since an employer who had discharged an employee discriminatorily
could readily assert he did so in reliance upon information furnished to the employer,
regardless of how egregious the canard foisted upon him and regardless of whether re-
liance was Justified, reasonable, or defensible. See: N.L.R.B. v. Adkins Transfer Company,
Inc., 226 F. 2d 324, 328 (C.A. 6) ; N.L.R.B. v. Cambria Clay Products. Company, 215 F.
2d 48, 53-54 (C.A. 6) ; N.L.R.B. v. Industrial Cotton Mills (Division of J. P. Stevens
Co.), 208 F. 2d 87, 89-93 (C.A. 4), cert. denied 347 U.S. 935 (cited with approval,
N.L.R.B. v. Erie Resistor Corp., at at ., 373 U.S. 221, 229, footnote 8; Local 357, Inter-
national Brotherhood of Teamsters, etc. (Los Angeles-Seattle Motor Express) v. N.L.R.B.,
365 U.S. 667, 680; The Radio Officers' Union of the Commercial Telegraphers Union, AFL
(A. H. Bull Steamship Company) v. N.L.R.B., 347 U.S. 17, 45, footnote 53) ; Salt River
Valley Water Users' Association,v. N.L.R.B., 206 F. 2d 325, 329 (C.A. 9) ; Cusano d/b/a.
American Shuffleboard Co. v. N.L.R.B., 190 F. 2d 898, 902-903 (C.A. 3). But cf. X.L.R.B.
v. Burnup and Sinus, Inc., 322 F. 2d 57 (C.A. 5), denying enforcement in part of 137
NLRB 766, cert. granted 375 U.S. 983; Rubin Bros. Footwear Inc., et at. v. N.L.R.B.,
203 F. 2d 486 (C.A. 5), denying enforcement of 99 NLRB 610. Where "good faith be-
lief" is material to the issue of the true motive for a discharge, the basis thereof may be
searchingly explored. It must be remembered that "good faith belief" is a legalism, at
the very least connoting that it is the trier's province-to determine its existence. This in
turn presupposes inquiry by the trier into the asserted basis for the belief and whether it
was or was not sufficient to result in "good faith belief" of what was assertedly believed.
(Cf. Venus Pen and Pencil Corporation, 144 NLRB 115; Allure Shoe' Corporation, 138
NLRB 395.) Beyond that is the question, as herein, of whether even if a "good faith
belief" existed on the part of the employer, it was the motivating cause of the discharge.
The thrust of my findings herein is that (1) Hopes did not in fact commit the alleged
offense, (2) Respondent did not in fact believe that Hopes committed the alleged offense,
(3) Respondent did not in fact have basis for a "good faith belief" that Hopes committed
the alleged offense, and (4) Respondent did not, in any event-whether or not Hopes
committed the alleged offense, and whether or not Respondent believed and had basis for
believing in good faith that he committed the alleged offense-discharge Hopes for that
reason , but, instead, discharged.him for discriminatory reasons because of his union stand-
ing and activities.
94 ". . . the company contends that it acted in the honest belief that Thompson engaged
is misconduct justifying his discharge. We agree with the ruling of the Board that it is
unnecessary to consider this asserted defense because of the finding that the alleged dis-
charge for cause was a pretext and that the real reason for the discharge was on account
of union activities" Metal Blast, Inc. v. N.L.R.B., 324 F. 2d 602, 604 (C.A. 6). See,
generally: N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 524-525 (C.A. 8) ; N.L.R.B. v.
0. & J. Camp, Inc., et al . d/b/a Kibler-Camp Phosphate Enterprise, 210 F. 2d 113, 115
(C.A. 5), enfg. 107 NLRB 1068; N.L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726
(C.A. 2) ; N.L.R.B. v. Whitin Machine Works, 204 F. 2d 883 (C.A. 1) ; N.L.R.B. v. Fisher
Governor Company, 163 F. 2d .913, 916 (C.A. 8) ; Wells, Incorporated v. N.L.R.B., 162
F. 2d 457, 459-460 (C.A. 9) ; N.L.R.B. v. Harbison-Walker Refractories Company, 135 F.
2d 837, 839 (C.A. 8); N.L.R.B. v. Arcade-Sunshine Co., Inc., 118 F. 2d 49 (C.A.D.C.),
cert. denied 313 U.S. 567. Even where two grounds for discharge exist, one lawful and
the other unlawful (i.e., discriminatory) under the Act, the discharge will be viewed as
unlawful, since it was at least in part discriminatory. Cf. Bituminous Material f Supply
Co. v. N.L.R.B., 281 F. 2d 365, 367 (C.A. 8) ; N.L.R.B. v. Solo Cup Company/, supra;
N.L.R.B. v. C. & J. Camp, Inc., et at. d/b/a Kibler-Camp Phosphate Enterprise, supra;
N.L.R.B. v. Jamestown Sterling Corp., supra; N.L.R.B. v. lVhitin Machine Works, supra;
N.L.R.B. v. Minnesota Mining & Manufacturing Company,;, 179 F. 2d 323, 327 (C.A. 8) ;
Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F. 2d 86, 90-91 (C.A. 3), cert.
denied 321 U.S. 773; Southwest Hotels, Inc., 127 NLRB 1240.
756-236--65-vol. 147-21
0
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the background of antiunion hostility here sufficiently indicates the existence of dis-
criminatory intention,95 considering Hopes' identity as union president, the timing of
his discharge on the eve of a hotly contested election, and the background of other
unfair labor practices by the Employer, I find that Hopes' discharge was intended to
discourage and had the effect of discouraging membership in the Union; and further
that, since his discharge was based upon his union membership and standing, his dis-
criminatory discharge had the inherent effect of discouraging membership in the
Union 96, 97
95 Cf. Pennsylvania Greyhound Lines, Inc., 1 NLRB 1; Federal Bearings Co., Inc.,
4 NLRB 467.
w Mention should also be made of Respondent's contention that, in effect, the Board's-
powers may not be invoked, or should not be exercised, in this case because of the existence
of a provision in an allegedly subsisting collective agreement authorizing arbitration in
the event of employee grievances, including discharges. The existence of a grievance pro-
cedure in a collective agreement does not oust the Board of its power, nor relieve it of its
public duty, to act to inhibit unfair labor practice. Section 10(a) of the Act explicitly
provides that the power of the Board with respect to unfair labor practice "shall not be
affected by any other means of adjustment or prevention that has been or may be estab-
lished by agreement, law or otherwise. . . To say that private parties may not by. 11
agreement bestow, enlarge, or detract from the Board's jurisdiction or free it from per-
formance of its statutorily assigned responsibilities, is to state the obvious. However, in
one form or another this truism has repeatedly been emphasized. See, e.g., Amalgamated
Utility Workers, etc. v. Consolidated Edison Company of New York, Inc., 309 U.S. 261,
264-265, 267-270;• National Licorice Company v. N.L.R.B., 309 U.S. 350, 365; N.r,.R.B. v.
Pacific Intermountain Express Company, 228 F. 2d 170, 176 (C.A. 8), cert. denied 351
U.S. 952; N.L.R.B. v. Wagner Iron Works, 220 F. 2d 126, 137 (C.A. 7), cert. denied
350 U.S. 981; N.L.R.B. v. Bell Aircraft Corporation, 206 F. 2d 235, 237.(C.A. 2) ; N.L.R.B.
v. Monsanto Chemical Company, 205 F. 2d 763, 764-765 (C.A. 8), enfg. 97 NLRB 517,
520; N.L.R.B. v. International Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, CIO, Local 291 (Wisconsin Axle Division, Timken-Detroit Axle
Co.), 194 F. 2d 698, 702 (C.A. 7) ; N.L.R.B. v. Walt Disney Productions, 146 F. 2d 44, 48
(C.A. 9), cert. denied 324 U.S. 877; N.L.R.B. v. Newark Morning Ledger Co., 120 F. 2d
262, 268 (C.A. 3, en bane), cert. denied 314 U.S. 693; Pontiac Motors Division, General
Motors Corporation, 132 NLRB 413, 414-415. Notwithstanding the foregoing, for reasons
of policy, presumably not unrelated to "hospitable acceptance to the arbitral process"
(International Harvester Company (Indianapolis Works), 138 NLRB 923, 927); the Board
has seen fit under appropriate circumstances to withhold or limit the jurisdictionally per-
missible scope of its powers in cases where a prior arbitration award has been made
(Spielberg Manufacturing Company, 112 NLRB 1080), while at the same time closely re-
serving to itself power to oversee compliance with announced standards even in that area
(Spielberg Manufacturing Company, supra. at 1082; cf. Ford Motor Company (Sterling
Plant, Chassis Parts Division), 131 NLRB 1462; and see Max . Oscherwitz, et al., Co-
Partners doing business as I. Oscherwitz & Sons, 130 NLRB 1078, and Denver-Chicago
Trucking Company, Inc., 132 NLRB 1416, with which ef. Monsanto Chemical Company,
130 NLRB 1097). The Board has also under certain circumstances withheld its action
and ultimate scrutiny where parties have made initial formal resort to arbitration as their
affirmatively elected forum, even though no actual award has as yet been forthcoming.
(Cf. Sinclair Refining Company, 145 NLRB 732.) However, it is to be noted that in the
proceeding at bar no, arbitration has occurred or been initiated, nor did the parties or
either of them invoke and proceed via the grievance-arbitration route which might (or
might not) have been available to them under a collective agreement. It comes late in
the day for Respondent, after conclusion of a lengthy unfair labor practice proceeding' in
which it fully participated on the merits, to raise the contention for the first time in its
posthearing brief, that the Board is without jurisdiction or should have withheld its
exercise because of the existence of a grievance-arbitration provision in an allegedly sub-
sisting and applicable collective agreement to which it paid no attention. (It will addi-
tionally be recalled, that testimony presented by General Counsel to the effect that a re-
quest upon Respondent to process a grievance arising out of Hopes' discharge was totally
ignored, was undisputed.)
'•9 Finally, it is noted that in its posthearing brief Respondent states that it therein
renews a "motion" made by it at the hearing that with regard to an amendment by
General Counsel of paragraph 12(b) of the complaint Respondent has not been afforded
an adequate opportunity to prepare a defense ; and Respondent then proceeds, in its brief,
to discuss its defense with regard to this charge involving testimony adduced by General
Counsel through Respondent's employee Jimmy Polite. Treating the present "motion" as
n
THE COACHMAN'S INN 307
Accordingly, I find and conclude that Respondent's discharge or constructive
discharge and failure and refusal to reinstate Hopes were motivated by and resulted
from his position in and activities on behalf of the Union, and not by reason of
any offense, dereliction, or action on his part on May 16 or at any other. time. It
follows that Respondent by its discharge or constructive discharge of and failure
and refusal to reinstate Hopes violated Section 8(a)(3) and (1) of the Act.
C. Refusal to bargain
The complaint further alleges that since 'about April 30 Respondent has refused
to bargain collectively with the Union as required, by (a) its discharge of Perry
Johnson (as already described) "in violation of the collective bargaining agree-
ment"; (b) the actions of Vance Thompson toward the Union's bargaining com-
mitteemen at the bargaining session of May 1 (as described); and (c) its unilateral
change of the terms and conditions of Perry Johnson's employment, by assigning
him to a split shift (also as already described).
Inasmuch as the circumstances underlying each of these allegations have already
been detailed, it is unnecessary to repeat them.
With regard to the allegation that Respondent has failed to bargain collectively 98
concerning the discharge of Johnson, sufficient has been shown to indicate that. a
course of bargaining did in fact take place between Respondent and the Union
following and on the subject of Johnson's discharge. It is accordingly found that
not only has this allegation not been established, but, on the contrary, the evidence
establishes the allegation to be contrary to the facts. I therefore find and conclude
that Respondent did not fail to bargain collectively in violation of Section 8(a)(5)
and (1) of the Actin connection with its April 30 discharge of Perry Johnson.
With regard to the allegation that the described actions of Vance Thompson at
the bargaining session of May 1 violated Respondent's bargaining responsibilities
under the Act, I find that those actions in effect constituting intimidating conduct
by him, as the chief executive officer of Respondent, toward the bargaining com-
mitteemen of the Union of loss of employment or other reprisals because of union
membership and activities, including their mere participation in collective bargain-
ing which it was not only their right but their duty to carry out, in legal effect,
considering the entire background of the case and the other unfair labor practices on
the part of Respondent, violated Respondent's obligation to conduct good-faith
bargaining within the letter and. spirit of the Act. Respondent now contends that
Vance Thompson was not its labor negotiator and not a member of its bargaining
committee, and that his actions at that bargaining session were therefore in effect
a renewal of its objection to General - Counsel's application to amend paragraph 12(b) of
the complaint, I adhere to my ruling at the hearing overruling the objection and allow-
ing the amendment , for reasons set forth in the record. In view of other contents of the
complaint , Davis' presence at the hearing, the perfunctory and formalistic nature of the
amendment in the total context of related allegations of the complaint, the fact that ade-
quate notice was given, the fact that the Issues ensuing from the amendment were fully
litigated with Respondent's participation at the hearing, the absence of prejudice at the
hearing to Respondent, Respondent's having rested without claim or indication of prejudice
or application for a continuance based thereon, and the failure to show even now any
prejudice, it Is apparent that the "renewed motion" is without merit. Cf. N.L.R.B. v.
Fant Milling Company, 360 U.S. 301; Plumbers and Steamfitters Union Local. 100, eta
(Beard Plumbing Company), 128 NLRB 398, 399-400, enfd. 291 F. 2d 927 (C.A. 5) ;
N.L.R.B. v. Raymond Pearson, Inc., 243 F. 2d 456 (C.A. 5) ; N.L.R.B. v. Gala-Mo Arts,
Inc., 232 F. 2d 102, 106 (C.A. 8) ; Lloyd A. Fry Roofing Company, et at. v. N.L.R.B.,
222 F. 2d 938, 940 (C.A. 1) ; N.L.R.B. v. S. W. Evans and Son, 181 F. 2d 427, 431 (C.A. 3) ;
N.L.R.B. v. Sunbeam Electric Manufacturing Co., 133 F. 2d 856, 858 (C.A. 7) ; N.L.R.B. v.
Pacific Gas and Electric Company, 118 F. 2d 780, 788 (C.A. 9). See also: N.L.R.B. v.
Puerto Rico Rayon Mills, Inc., 293 F. 2d 941, 947-948 ('C.A. 1) ; Rocky Mountain Natural
Gas Company, Inc., 140 NLRB 1191, 1192; New England Web, Inc., et at. , 135 NLRB
1019, 1023-1024; Fred H. Johnson, etc., doing business as Atlas Linen and Industrial
Supply, 134 NLRB 1230, 1231-1232; Federal Rules of Civil Procedure, Rule 15(b).
Furthermore,. since I have recommend dismissal of the allegations concerned with Davis'
statements to Polite to the effect that Polite would be reassigned to his former job as
saladman in the event Perry Johnson were rehired-i.e., the only matter with which Re-
spondent is concerned in connection with its "renewed motion," as set forth in its
brief-the "renewed motion" appears to be moot in any event.
88. Since the power of the Board over unfair labor practice is neither bestowed nor re-
moved by language in a collective agreement, the reference to the collective agreement in
paragraph 20(a) of the complaint may be regarded as surplusage.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those of a volunteer for which Respondent cannot be held responsible. I cannot
agree. When the chief executive (president) and principal in interest of a corpora-
tion comes into a bargaining session and demands the floor, it is not incumbent on
the union negotiators to require him to submit his credentials of authority or to
establish his membership on his own bargaining committee. It may. reasonably be
assumed that he speaks with authority on behalf of his company, and that when he
talks it is the company talking 99
I find and conclude that, considering the background of other unfair labor prac-
tices and upon the entire record, the described actions of Respondent's president
and principal, Vance Thompson, at the bargaining session of May 1, constituted a
failure to bargain as required by Section 8(a)(5) and were in violation of Section
8(a)(5) and (1) of theAct.ioo
With regard to the allegation that Respondent failed to bargain collectively in rela-
tion to Perry Johnson's assignment to a split shift, as already stated and found
Johnson's discharge by Respondent was not discriminatory or in violation of the
Act. He was discharged for absenting himself from work or for drunkenness and
resisting arrest, or both, and Respondent was not under statutory duty 101 to bargain
concerning the terms of his rehiring. It elected to do so, however, and the parties
arrived at an accord and thereafter Johnson reentered Respondent's employ, accept-
ing, among other things, some backpay. I find and conclude that under these cir-
cumstances Respondent did not violate Section 8 (a) (5) or (1) of the Act.
D. Deliberate undermining of Union
The complaint also alleges that Respondent engaged in the acts and conduct de-
scribed in order to undermine the Union and destroy its majority among Respond-
ent's employees. Treating the course of conduct pursued by Respondent as a totality,
I have no difficulty in being persuaded that Respondent's acts were not without pur-
pose, but directed toward the end alleged. Against a background of Respondent's
antiunion hostility,102 the total picture here presented is one of employer interference,
99 Furthermore, it will be recalled, there were other officials of Respondent present, in-
cluding its.principai.labor negotiator, Thornton, who, far from disavowing Vance Thomp-
son's actions or remarks, invited Yeargan, when he complained, to file unfair labor p"rctice
charges if he did not like it.
100 The duty to bargain presupposes that each party will approach and remain at the
bargaining table, not with a mind "hermetically sealed against the thought of entering
into an agreement" (N.L.R.B v. Boss Manufacturing. Company, 118 F. 2d 187, 189
(C.A. 7)), but "with an open and fair mind, and a sincere purpose to find a basis of
agreement touching wages and hours and conditions of labor" (Globe Cotton Mills v.
N.L.R:B., 103 F. 2d 91, 94 (C.A. 5)). It is appropriate to scrutinize "the totality of
the employer's conduct" in determining whether he has bargained in good faith N.L.R.B.
v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134 (C.A. 1), cert. denied 346
U.S. 887. The attitude, actions, and words of Respondent's chief executive toward the
members of the union bargaining committee, individually and collectively, exemplifying
among other things patronizing condescension and denigration of their bargaining role,
as well as repugnance toward their bargaining efforts, were hardly such as to encourage
a climate in which collective bargaining could succeed and produce the industrial harmony
which the Act was purposed to achieve. "The purpose of imposing legal duties upon em-.
players to meet and bargain with the representatives of employees is to create a structure
of industrial self-government for a particular plant arrived at by consensual agreement
between management and employees within the framework of the statute . . . . By guar-
anteeing employee participation in decisions relating to wages, hours, terms and condi-
tions of employment,. Congress made a determination that this would create an en-
vironment conducive to industrial harmony and eliminate costly industrial, strife which
interrupts commerce." East Bay Union of Machinists, Local 1304, United Steelworkers
of America, AFL-CIO, etc. (Fibreboard Paper Products Corp.) v. N.L.R.B., 322 F. 2d
411, 414 (C.A.D.C.), cert. granted 375 U.S. 963.
101 No opinion is expressed on the subject of Johnson's rights or Respondent's duties if
any under a collective agreement.
102 Such hostility may properly be considered as material on the question of discrimina-
tory intent. " . . anti-union bias and demonstrated unlawful hostility are proper and
highly significant factors for Board evaluation in determining motive." N.L.R.B. v. Dan
River Mills, Incorporated, Alabama Division, 274 F. 2d 381, 384 (C.A. 5). See also
N.L.R.B. v. Jackson Tile Manufacturing Co., 282 F. 2d 90, 93 (C.A. 5) ; Sunshine Biscuits,
Inc. v. N.L.R.B., 274 F. 2d 738, 741, 742 (C.A. 7). . . the record is replete with evi-
THE COACHMAN'S INN 309
restraint, and coercion, through interrogations, promises of economic benefits, threats
of economic and other reprisals including threats to send the Union's president to the
"pea patch" or jail, discriminatory discharge of the Union's president, absolute and
unconditional exile of the designated employees' representative from its premises,
and contempt for the dignity of the collective-bargaining process proclaimed by
Congress as a lodestar of national labor relations policy in the interest of achievement
and maintenance of a high degree of industrial peace throughout the country.
Upon the record as a whole, I find and conclude that Respondent's described con-
duct was designed to undermine the Union and destroy its majority in violation of
Section 8 (a) (5) and (1) of the Act.
IV. THE REMEDY
I shall recommend the customary cease-and-desist order and the affirmative relief
which is conventionally ordered in cases of this nature, involving interference, re-
straint, and coercion, discriminatory discharge, and failure to bargain collectively,
in violation of Section 8(a)(1), (3), and (5) of the Act. My Recommended Order
will include the usual provisions requiring Respondent to cease and, desist from the
unfair labor practices found; to offer the discriminatorily discharged employee im-
mediate and full reinstatement to his former or substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges, and to make him whole
for any loss of earnings he. may have suffered as a result of his lawful termination,
by payment to him of a sum of money equal to that which he normally would have
earned as wages and tips from May 16, 1963, the date of his discharge, to the date
of Respondent's offer to reinstate him, less his net earnings during such period, with
backpay and interest to be computed in the manner prescribed by the Board in
F. W.'Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716; to make available necessary records for computation of the backpay;
upon request, to require Respondent to bargain collectively with the majority repre-
sentative of its employees; and to post an appropriate notice.
CONCLUSIONS OF LAW
1. The Coachman's Inn is an employer engaged in commerce within the meaning
of the Act.
2. Hotel-Motel, Restaurant Employees Union, Local 200, Hotel and Restaurant
Employees and Bartenders International Union, AFL-CIO, is a labor organization
within the meaning of the Act.
3. At all times since March 18, 1960, the Union has been-and is the exclusive repre-
sentative , within the meaning of Section 9(a) of the Act, of Respondent's employees
in an appropriate unit for purposes of collective bargaining.
4. Respondent has violated Section 8 (a) (1) of the Act by interfering with, restrain-
ing, and coercing its employees in the exercise of rights guaranteed to them in
Section 7 of the Act, by unlawful interrogations, promises, or holding out of
economic benefits, threats of reprisals, and actions to undermine and destroy the
union majority as hereinabove specifically found and set forth.
5. Respondent has not violated Section 8 (a) (1) of the Act through any, statements
made by airline agent Billie Ann Baker to Respondent's employee -Frazier on May 24,
1963.
6. Respondent has not violated Section'8(a)(1) of the Act through statements
made by Manager Davis to employee Polite in May 1963.
7. Respondent has not violated Section 8 (a) (3) and. (1) of the Act by or in con-
nection with its discharge of Perry Johnson on April 30, 1963.
8. Respondent has not violated Section 8(a) (3) and (1) of the Act by or in con-
nection with its reinstatement or reemployment of Perry Johnson in June 1963. .
9. Respondent has violated Section 8(a)(3) and (1) of the Act by its discharge
or constructive discharge of Solomon D. Hopes on May 16, 1963, and its failure and
refusal to reinstate Hopes, because of his union sympathies and activities, thereby
discriminating in regard to the hire and tenure of his employment.
deuce that the respondents were aware of union activity, and that their conduct, includ-
ing the discharges, was designed to smother the Union campaign for membership. As we
have stated above, many of the employees were warned by their superiors that the re-
spondents did not favor the advent of the Union. These warnings were buttressed by a
display of force which could only have the effect of instilling in their employees the fear
that their organizational activities would meet with violent opposition." Federal Bear-
ings Co., Inc., 4 NLRB 467, 479-480.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. Respondent has not violated Section 8(a)(5) and (1) of the Act by or in
connection with its discharge of Perry Johnson on April 30, 1963.
11. Respondent has not violated Section 8(a) (5) and (1) of the Act by the assign-
ment of Perry Johnson to a split shift in June 1963.
12. Respondent has violated Section 8(a) (5) and (1) of the Act by the intimidating
and coercive conduct of its president Vance Thompson at a bargaining session held
between Respondent and the Union on May 1, 1963, hereinabove more specifically
set forth.
13. Respondent has violated Section 8 (a) (5) and (1) of the Act by its actions,
as hereinabove specifically found and set forth, to undermine the Union and destroy
its majority.
14. The unfair labor practices described in paragraphs 4, 9, 12, and 13 are unfair
labor practices affecting commerce within the meaning of Section 2(6) and (7) of
the Act. 103
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that Respondent, The Coachman's
Inn, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees with respect to their union activities
or sympathies.
(b) Interrogating its employees as to how they intend to vote or as to how they
voted in any National Labor Relations Board balloting or election.
(c) Indicating it has knowledge or information of, or access to information con-
cerning , the way any of its employees voted or will vote in any National Labor
Relations Board balloting or election.
(d) Making or carrying out ay promises, threats, or reprisals, or engaging in any
coercive or intimidating conduct toward its employees by reason of their vote or
participation in any National Labor Relations Board balloting or election.
(e) Promising or holding out to its employees any economic or other benefit or
expectation of value for refraining from exercising their right to self-organization,
to form, join, or -assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining, or other mutual aid or protection, or to refrain from any
and all such activities.
(f) Making or carrying out any threat, reprisal, or threat of reprisal to its em-
ployees for exercising their right to self-organization, to form, join, or assist labor
organizations , to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
(g) Discouraging membership in Hotel-Motel, Restaurant Employees Union,
Local 200, Hotel and Restaurant Employees and Bartenders International Union,
AFL-CIO, or any other labor organization, by discharging or threatening to dis-
charge, or failing or refusing to reinstate, or otherwise engaging or threatening to
engage in any discriminatory action against any employee in regard to his hire or
tenure of employment or any term or condition of employment.
(h) Failing or refusing to bargain collectively with Hotel-Motel, Restaurant
Employees Union, Local 200, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, as the exclusive bargaining representative of Re-
spondent's employees in the appropriate unit, without engaging in coercive or in-
timidating conduct during or in connection with such bargaining.
(i) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights under Section 7 of the Act.
2. Take the following affirmative Faction which is necessary to effectuate the
policies of the Act:
(a) Offer Solomon D. Hopes immediate ,and full reinstatement to his former or
a substantially equivalent position, without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of pay and tips in the manner set
forth in the section of this Decision entitled "The Remedy."
103 Respondent's motion to dismiss the complaint is denied, and its motions to dismiss
various portions of the complaint are hereby granted and denied. in accordance with find-
ings and conclusions herein made.
THE COACHMAN'S INN 311
(b) Upon request, bargain collectively with Hotel-Motel, Restaurant Employees
Union, Local 200, Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, as the exclusive bargaining representative of Respondent's em-
ployees in the appropriate unit , without engaging in coercive or intimidating conduct
during or in connection with such bargaining.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Decision.
(d) Post at The Coachman's Inn, in Little Rock, Arkansas, copies of the attached
notice marked "Appendix." 104 Copies of said notice, to be furnished by the
Regional Director for the Twenty-sixth Region , shall, after being duly signed by
Respondent's authorized representative, be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of
this Decision and Recommended Order, what steps have been taken to comply
therewith.los
104 In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
106 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, as amended, we hereby notify you that:
WE WILL NOT coercively interrogate our employees with respect to their union
activities or sympathies.
WE WILL NOT interrogate our employees as to how they intend to vote or as
to how they voted in any National Labor Relations Board balloting or election.
WE WILL NOT indicate that we have knowledge or information of, or access
to information concerning, the way any of our employees voted or will vote in
any National Labor Relations Board balloting or election.
WE WILL NOT promise or hold out to our employees any economic or other
benefit or expectation of value for refraining from self-organization or any other
union or concerted activity guaranteed by the Labor Management Relations Act.
WE WILL NOT make or carry out any threat, reprisal, or threat of reprisal to
our employees for exercising their right to self-organization or any other union
or concerted activity guaranteed by the Labor Management Relations Act.
WE WILL NOT discourage membership in Hotel-Motel, Restaurant Employees
Union, Local 200, Hotel and Restaurant Employees and Bartenders International
Union, AFL-CIO, or any other labor organization, by discharging or threatening
to discharge, or failing or refusing to reinstate, or otherwise engaging or threaten-
ing to engage in any discriminatory action against any employee in regard to
his hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their rights under Section 7 of the Act.
WE WILL offer Solomon D. Hopes immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his seniority
or other rights and privileges, with backpay for any wages and tips he lost as a
result of the termination of his employment on May 16, 1963.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, meet and bargain with Hotel-Motel, Restaurant Em-
ployees Union, Local 200, Hotel and Restaurant Employees and Bartenders In-
ternational Union, AFL-CIO, as the exclusive bargaining representative of our
employees, without engaging in coercive or intimidating conduct during or in
connection with such bargaining. The appropriate unit is:
All of our employees at The Coachman's Inn, Little Rock, Arkansas,
including telephone operators, office clerical employees, food checkers, reg-
ular party waiters, janitors, and nonsupervisory cashiers; but excluding
engineers, confidential secretary, auditor, extra party waiters, leased depart-
ments' personnel, watchmen, professional employees, guards, and supervi-
sors as defined in the Act.
All of our employees are free to become or remain, or to refrain from becoming
or remaining, members of Hotel-Motel, Restaurant Employees Union, Local 200,
Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO,
or any other labor organization.
THE COACHMAN'S INN,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Ertel Manufacturing Corp. and International Union , United
Automobile , Aerospace and Agricultural Implement Workers
of America, UAW, AFL-CIO. Case No. 25-C4-1757. ,Tune 5,
1964
DECISION AND ORDER
On March 9, 1964, Trial Examiner Leo F. Lightner issued his Deci-
sion 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 Deci-
sion. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended dismissal as to them. Thereafter, the Respondent filed
exceptions to .the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom 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 Ex-
aminer'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.
147 NLRB No. 39.