The Little Rock Downtowner, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1964

145 N.L.R.B. 1286 (N.L.R.B. 1964)

1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Local Union No. 192, Sheet Metal
Workers International Association, AFL-CIO, or any other labor organization
of our employees, by discharging employees or refusing to reinstate them, or in
any other manner discriminating against them in regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL NOT question employees with respect to union activity or other
concerted activity, in a manner constituting interference with, coercion, or
restraint of employees in violation of Section 8(a)(1) of the National Labor
Relations Act, as amended.
WE WILL NOT threaten employees with loss of employment, or other reprisals,
if they engage in union activity, or other concerted activity, or select the
above Union, or any other labor organization, as their collective-bargaining
representative.
WE WILL NOT engage in, or give the appearance of engaging in, the surveil-
lance of employees' union activities, or other concerted activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of their rights to self-organization, to join or assist the
above Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities,
for the purpose of collective bargaining or other mutual aid or protection, as
guaranteed in Section 7 of the National Labor Relations Act, as amended.
WE WILL offer Jack W. Gregg immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, and make him whole for any loss of pay, including in-
terest, which he has suffered by reasons of the discrimination against him.
All our employees are free to become, remain, or refrain from becoming or
remaining members of Local Union No. 192, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organization.
DETROIT GASKET AND MANUFACTURING
COMPANY, PLANT No. 1,
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must be 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, 528
Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone
No. 876-3311, Extension 5357, if they have any questions concerning this notice
or compliance with its provisions.
The Little Rock Downtowner, Inc. and Hospital -Hotel -Motel &
Restaurant Employees Union , Local 200, affiliated with Hotel,
Restaurant & Bartenders International Union , AFL-CIO.
Cases Nos. 26-CA-1459, 26-CA-1482, 26-CA-1482-2, and 26-C <1-
1482-3. January 28, 1964
DECISION AND ORDER
On October 2, 1963, Trial Examiner Samuel M. Singer issued his
Decision in the above-mentioned 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
145 NLRB No. 132.
THE LITTLE ROCK DOWNTOWNER, INC. 1287
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the Respondent did not
engage in certain other alleged unfair labor practices and recom-
mended the dismissal of these allegations of the complaint. There-
after, the General Counsel and the Respondent filed exceptions to the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
'The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph:
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , the National Labor Relations Board hereby orders
that Respondent , The Little Rock Downtowner , Inc, its officers , agents, successors,
and assigns , shall:
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed January 25, 1963, and upon additional and amended charges
thereafter filed on various dates, by the Hospital -Hotel-Motel & Restaurant Em-
ployees Union , Local 200 , affiliated with Hotel , Restaurant & Bartenders Interna-
tional Union , AFL-CIO (herein called the Union ),' the General Counsel on April
11, 1963, issued an amended consolidated complaint alleging that The Little Rock
Downtowner , Inc. (herein called Respondent or the Company ), violated Section
8 (a) (1), (3 ), and (5) of the Act . Respondent in its answer denied the commission
of the alleged unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Samuel M . Singer
in Little Rock , Arkansas , on June 4 through 7, and June 18 through 20, 1963. The
parties, except the Charging Party, were represented by counsel , and were afforded
full opportunity to be heard , to examine and cross-examine witnesses , and to intro-
duce relevant evidence. Respondent thereafter filed a brief and the General Counsel
submitted a short "memorandum " which have been carefully considered.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Little Rock Downtowner, Inc. is an Arkansas corporation which operates
a motel in Little Rock , Arkansas , the only motel involved herein . Respondent is a
wholly owned subsidiary of The Downtowner Corporation , a Tennessee corporation,
' The name of the Union as it appears In the complaint was by stipulation of the
parties , corrected to read as set forth above.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which operates motels in Tennessee, Arkansas, and various other States. Respondent
and The Downtowner Corporation, herein referred to as the Tennessee corporation,
operate as a single integrated enterprise, having some common officers and some
common members of the board of directors. The officers and directors of the Ten-
nessee corporation formulate and administer a common labor policy for the two
corporations. During the 1-year period prior to the issuance of the complaint herein,
the Tennessee corporation had gross revenues in excess of $500,000, and purchased
and received goods valued in excess of $10,000 from points directly outside the State
of Tennessee; Respondent purchased and received goods valued in excess of $10,000
directly from points outside the State of Arkansas; and Respondent rents more than
25 percent of its rental units to transient guests who remained for less than 1 month
and received more than 25 percent of its rental income from transient guests who
remained less than 1 month, Respondent admitted, and I find that it is now, and has
been at all times material herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hospital-Hotel-Motel & Restaurant Employees Union, Local 200, affiliated with
Hotel, Restaurant & Bartenders International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A Background; the Board's findings in the prior proceeding and the issues
in the instant proceeding
The instant proceeding is a sequel to a proceeding litigated before Trial Examiner
Alba B. Martin, on November 19 through 21 and December 27 and 28, 1962.2
On April 16, 1963, Trial Examiner Martin issued his Intermediate Report finding
that Respondent had violated Section 8 (a) (1) and (3) of the Act. He also found
that Respondent did not engage in some acts and conduct alleged to have been
violative of these sections. On July 29, 1963, the Board approved and adopted Trial
Examiner Martin's findings and conclusions and his Recommended Order (143
NLRB 887). The unfair labor practices under consideration in the prior case took
place during the period from July to November 1962. The instant case deals with
unfair labor practices which, in the main, allegedly commenced in January 1963.
At the hearing in the instant case (which was concluded subsequent to the issuance
of Trial Examiner Martin's Intermediate Report but before the issuance of the Board's
Decision and Order), the parties stipulated to the admission of the record and Inter-
mediate Report in the prior case as part of the record herein. The parties further
properly stipulated to the binding effect herein of all findings and conclusions of Trial
Examiner Martin approved by the Board. Cf. E. V. Prentice Machine Works, Inc.,
120 NLRB 1691, footnote 2; Paramount Cap Manufacturing Company v. N.L.R.B.,
260 F. 2d 109, 113-114 (C.A. 8).3 The parties accordingly agreed that matters
litigated in the prior proceeding, though relevant here, should not be relitigated in
the instant case. Cf. International Longshoremen's and Warehousemen's Union,
Local 10, ILWU (Pacific Maritime Association), 102 NLRB 907.
Briefly, Trial Examiner Martin concluded-and his conclusions were adopted by
the Board-that after the Union filed its petition for representation, Respondent
through several of its officials undertook a campaign to defeat the Union in the
Board-conducted election scheduled for July 12, 1962, by threats, promises of bene-
fits, and other forms of restraint and coercion. Among the findings relevant to the
issues in this case-particularly the bargaining issue-is the finding that on July 3,
1962, Executive Vice President Kirkpatrick delivered a speech to assembled em-
ployees in which he exposed the Company's hostility toward the Union and to the
collective-bargaining process by informing the employees that the Union's only way
of getting anything for the employees was to call a strike, that management reserved
the right to make the decision as to what was best for its employees, and that the
election of the Union would have no impact upon the Company's policy in the
3 Cases Nos. 26-CA-1320-20, 26-CA-1365-2, 26-aCA-1407, 26-CA-1413
S While I do consider myself bound by those findings of Trial Examiner Martin which
have been approved by the Board, I do not deem myself bound by his credibility determina-
tions beyond the issues to which they specifically related. "A prior determination that a
witness is not to be believed is not res judicata." N.L B.B. v. Walton. Manufacturing
Company, 286 F. 2d 26, 29 (C.A 5).
THE LITTLE ROCK DOWNTOWNER, INC. 1289
future concerning wages and job changes. It was further found that Vice President
Baker on one occasion and Motel Manager Arnett on two occasions told employees
in effect that President Matthews would never sign a contract with the Union, that
Matthews would bargain on and on, and all that the Union could do would be to
pull the employees out on strike, in which event the Company would hire new em-
ployees. Trial Examiner Martin and the Board further found that Respondent
discriminatorily discharged employee Robinson on July 13, the day after the elec-
tion, and employee Barduay on September 13, because of their actual or suspected
union activities or sympathies. However, they found that Respondent's discharge
of a third employee, Christine Bryant, a maid, on November 9, was motivated by
the employee's insubordination and neglect of duties rather than by her union
activities or sympathies. Finally, they found that Respondent did not, as alleged in
the complaint, institute new working rules for the maids or enforce old ones in re-
prisal of the employees' union activities, in violation of Section 8(a)(5), (3), and
(1) of the Act.
In the instant case the complaint alleges that Respondent, in violation of Sec-
tion 8(a) (1) of the Act, interfered with, restrained, and coerced its employees by
soliciting an employee to withdraw from the Union and from the Union's bargaining
committee by promises of benefit; that, in violation of Section 8(a)(3) and (1), it
discriminatorily refused to reemploy an employee because of her union or con-
certed activity; that, in violation of the same sections, it discharged or refused to
reinstate 19 other employees because of their strike or other concerted activity;
and that Respondent in violation of Section 8(a)(5) and (1) of the Act, by certain
specified conduct, refused and failed to bargain collectively in good faith with the
Union. I shall in the succeeding sections address myself to these issues.
B. The alleged interference, ,estraint, and coercion
In support of the allegation in the complaint that Respondent solicited an em-
ployee to withdraw from the Union and from the Union's bargaining committee
with promises of benefits, the General Counsel called as a witness Laura Tackett,
who testified that Mary Lois Pinkerton 4 invited her into Manager Lawrence C.
Arnett's office on January 10, 1963-the date on which, as we shall see, the Union
and Respondent held their first bargaining conference-and Pinkerton then told
Tackett that she did not have to attend the meeting or even remain a union member
merely because she had signed a union card; and that the Company "would do
anything in the world" for her if she left the Union. Tackett further testified that
Pinkerton asked her the reasons for joining the Union and that after telling her
that she (Pinkerton) was planning to leave soon to get married, Pinkerton stated,
"You know when I leave, all the load will fall on your back . . . . You have been
there longer than anyone else and they depend on you more."
Pinkerton, a witness for Respondent, conceding that she talked to Tackett on the
day in question, stated that the things she said to her were strictly her own opinion.
Pinkerton and Tackett had worked in the front office and, according to Pinkerton,
were "pretty good friends." Pinkerton testified that Tackett appeared "upset" that
day and not knowing whether this was due to her marriage problems or to the
Union, she reassured her that if it was the Union, "the whole Company would back
her" and that the Company would welcome her back on its side. Tackett replied
that she was happy with the Union.
I do not find it necessary to resolve the conflicts in the details of the incident
testified to by Tackett and Pinkerton, since I find, as Respondent urges, that
Pinkerton was not a supervisory employee and agent of the Company and that
Respondent is not responsible for her conduct .5
Pinkerton was hired by Respondent on May 15, 1961, and, like Tackett, had been
a front desk clerk until about November 26, 1962, when she was transferred to
Arnett's office which was situated near the front desk. As a clerk, Pinkerton checked
the guests in and out of the motel, made reservations, answered the switchboard,
and performed other incidental functions. About the time of the transfer, Manager
Arnett hired a new front desk employee because Pinkerton was planning to get
married at the beginning of the new year. When the transfer took place, Arnett gave
Pinkerton a wage raise from $230 to $250 per month and told her that she would
J
4 Also referred to in the record as "Pinky" and "Mary Lois Beutow," Pinkerton's present
married name.
5 My findings as to Pinkerton's employment status are based primarily on the testimony
of Pinkerton who impressed me as a credible and trustworthy witness. Pinkerton was
not in the employ of Respondent at the time of the hearing.
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work in the office except when needed at the front desk as, for example, during
lunch time or rest periods. Pinkerton's new duties included making out cash reports
and the daily operations report, and working on the city ledger (billing guests), but
she continued to perform some of her former duties such as making reservations,
replying to requests for rates, and answering the telephone for Arnett. Pinkerton in
effect acted as a sort of bookkeeper and secretary to Arnett.
It is undisputed that Pinkerton had no power to hire or fire employees and had
no employees under her supervision. She had no authority to transfer employees,
to schedule hours,6 or to grant wage increases. While she took applications from
job applicants, she did not interview them nor make recommendations respecting
their hire, but merely handed the applications to Arnett. Pinkerton took her direc-
tions from Arnett and, in his absence, from Virgil Atkins, the restaurant manager.
Like the front desk clerks, such as Tackett, Pinkerton could approve checks for
guests but could not sign checks; she could give special rates for particular groups,
such as high school students; and she would train new employees, and assist and try
to correct clerks who did their work improperly.7 While Pinkerton would from
time to time discuss problems put to her by the housekeeper in charge of the maids,
so did almost all of the front desk clerks, including Tackett.8 And while Pinkerton
would sometimes ask a desk clerk, such as Tackett, to do a particular job when she
was too busy to perform the job herself, this was not unusual, as "the entire front
office would tell each other different type of jobs to do," and she, too, had been
asked to help the others.
Pinkerton left the Company to get married at the end of January. As Arnett testi-
fied, no one had precisely performed the same duties as Pinkerton and Pinkerton was
never actually replaced. Rockwell now performs Pinkerton's bookkeeping functions
and another employee performs her secretarial duties. During the time Pinkerton
worked on her new job, Charles Wallace was training to be an assistant manager
and Wallace remained in Respondent's employ when Pinkerton left. In Arnett's
absence, Pinkerton would frequently refer guests' complaints to Wallace. Wallace's
monthly salary during the payroll period ending November 25, 1962, was $275,
while Pinkerton's and Tackett's was $230. In the period ending December 10, 1962
(which first reflects Pinkerton's "promotion"), Wallace received $325 and Pinkerton
$250. In the period ending January 25, 1963 (covering Pinkerton's last payroll
period), Wallace received $400, Pinkerton $250, Tackett $230, and Rockwell $250.
Based on the foregoing, I find that Pinkerton was not a supervisor within the
meaning of Section 2(11) of the Act, since she did not possess the indicia of super-
visory status enumerated in that section, including the right to hire, fire, transfer,
reward, discipline, responsibly direct other employees, or effectively to recommend
any such action .9 Nor could Pinkerton, by reason of her duties and relationship to
the Company, be reasonably regarded as a management spokesman or representa-
tive. Certainly, she was not in a "strategic position to translate [to the employees]
the policies and desires of the management." (International Association of Machin-
ists, Tool and Die Makers Lodge No. 35 (Serrick Corporation) v. N.L.R.B., 311
U.S. 72, 78-80.) Cf. N.L.R.B. v. Solo Cup Company, 237 F. 2d 521, 523-524
(C.A. 8). The fact that she identified her interests with those of management in-
sofar as the Union was concerned and acted in the interest of Respondent-but
9 Although Pinkerton on a single occasion took up with the front desk clerks the hours
to be worked on Christmas, she did this pursuant to Arnett's suggestion that the girls
work out the schedule among themselves. It is clear that Pinkerton was not authorized
to fix the hours on her own authority.
4 Thus, both Pinkerton and Tackett often complained about the work of Patricia Stapp,
a desk clerk, and both at times attempted to correct her shortcomings. Both complained
to Arnett about Stapp's poor attitude. Tackett in her testimony conceded that she had
given instructions to Stapp, but she testified that she ultimately gave up and took the
matter up with Pinkerton
8 As Pinkerton testified, the housekeeper, Vergie Peters, "went to anyone with her prob-
lems," frequently complaining about the work of the maids. Pinkerton usually referred
Peters to Arnett. Peters testified that Arnett told her that if any "problems" came vp
while he was out of town, she could discuss them with Pinkerton, but indicated that
Pinkerton never gave her any directions and the decisions she made were her own. Peters
testified that an one occasion when she complained about Ed Taylor (the head porter),
Pinkerton remarked, "Maybe Mr. Arnett can straighten him out." While Tackett testified
that she heard Pinkerton give instructions to Peters and others, Tackett could not support
this conclusion with specific facts.
e Cf. Cabinets. Inc, Subsidiary of Air Control Products, Inc., 130 NLRB 1378, 1379;
Superior Tool & Die Co., 132 NLRB 1373, 1385-1386.
THE LITTLE ROCK DOWNTOWNER, INC. 1291
insofar as it appears without Respondent 's knowledge or consent-did not make her
an agent of Respondent so as to render Respondent responsible for her conduct.
Superior Tool & Die Co., supra. The fact is that she was no more than a highly
qualified and trusted employee and not a supervisor vested with genuine management
prerogatives. See Poultry Enterprises, Inc. v. N.L.R.B., 216 F. 2d 798, 801-802
(C.A. 5). See also, N.L.R.B. v. Southern Bleachery & Print Works, Inc., 257 F. 2d
235, 239 (C.A. 4), cert. denied 359 U.S. 911.
Accordingly, I conclude that Respondent is not responsible for Pinkerton's alleged
attempts to secure the withdrawal of Tackett from the Union and the Union's bar-
gaining committee.
C. Respondent's refusal to reemploy Jessie L. Moseley
1. Sequence of events
The complaint alleges that Respondent since on or about January 4, 1963, has
discriminatorily refused to reemploy its former employee, Jessie L. Moseley, because
of her union activities or sympathies. Moseley had worked for Respondent as a
maid from August 23 until November 24, 1962. On Saturday, November 24, 1962,
Moseley left a message for Vergie Peters, the housekeeper in charge of maids, that
her mother fell and broke her ankle and that she would have to be off until she
could see bow her mother's recovery would be. On the following Monday, Moseley
talked to Peters personally on the telephone and told her what had happened,
explaining that her mother would have to be in a cast 6 to 8 weeks. Moseley asked
if she could have a "leave of absence" so that she could take care of her mother
and younger sisters and brothers. Peters stated that she did not know about a leave
of absence as she "hadn't heard of it" 10 and she asked Moseley to talk to Manager
Arnett. Moseley apparently could not reach Arnett.
Sometime in the early part of January 1963, Moseley talked to Arnett on the
telephone and informed Arnett that her mother had recovered sufficiently so that she
could return to work. Arnett replied that she was a "good maid" but that there
were no openings at that time. Several days later Moseley called Peters to talk
about her return to work. Moseley told Peters that she was ready to return shortly
as her mother was expected to be out of the hospital on January 18. When Peters
asked Moseley if she had talked to Arnett, Moseley answered that she did and that
he told her she could return to work. Peters then checked with Arnett but the latter
denied that he had approved Moseley's return. Arnett asked Peters, "Wasn't she
the one that came from the Holiday Inn with Christine [Bryant]?" 11 Peters answered
that she was and Arnett then asked "if she was mixed up in the union with her."
Peters replied, "I don't know, I suppose she is," and Arnett thereupon directed
Peters "not to take her back." 12 Peters did not rehire Moseley.
Later, on or about January 25, 1963, Moseley came to the motel and asked Peters
for her former job. Peters told Moseley that she did not need anyone that day.
When Peters later informed Arnett about Moseley's visit, Arnett said , "You didn't
take her back, did you?" Peters said that she did not.
Respondent did not hire any new maids on January 25 when Moseley made per-
sonal application with Peters. According to the records of the Company, Re-
spondent hired four new maids in January 1963-on January 18, 20, 26, and 28,
respectively. Five additional maids were hired in February, four in March, one in
April, and nine in May.13 Peters credibly testified that Respondent customarily hires
10 Peters took over supervision of the maids as recently as October 11, 1962 ( see Trial
Examiner Martin's Intermediate Report, p. 899). There is credible evidence in this
record that Respondent has granted leaves of absence in the past.
11 Christine Bryant was the 'Union's observer in the second election held October 30.
1962 As already noted, supra, Trial Examiner Martin in the prior case found that the
record before him established that Bryant was discharged for cause and not for her union
activities.
n The foregoing findings-and the findings hereafter recited relating to Arnett's union
animus and direction not to rehire Moseley-are based upon Peters' credited testimony
My reasons for accepting Peters' testimony are detailed at length, infra. The findings
relating to Moseley's application for employment are also based mainly on Peters' testi-
mony. I relied upon Moseley's testimony only to the extent that it was consistent with
that of Peters' or the inherent probabilities of the situation because I considered Moseley
a partisan witness and her testimony as to some of the details was self-contradictory
13 Peters indicated that Moseley visited the motel January 25 or 26, and that two maids
were hired on January 27 and 28 In view of the fact that Respondent' s records establish
the date of hires as January 26 and 28 , 1 find that Moseley personally applied on January 25.
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maids as they come in and apply for jobs, or by directly contacting applicants leaving
their names with her. Peters further testified that she had in her possession Moseley's
name and telephone number but that she did not call her back and hire her because
Arnett had told her not to. Moseley never made further application to return to
work and Respondent never contacted her to offer her employment.
2. Resolution of the conflicting testimony
As already noted, the findings set forth above are based primarily on the testimony
of Peters, Respondent's housekeeper. Manager Arnett categorically denied Peters'
testimony tending to show that he had knowledge of Moseley's union associations and
sympathies and that because of them he had directed Peters not to hire Moseley.
Arnett conceded that he had talked to Moseley once or twice on the telephone, but
stated that he only told her that they had no opening for her at the time. At one
point Arnett testified that he had referred Moseley to Peters. Arnett testified, "We
did not have any particular reason for not hiring her. If she had been there when
we needed somebody and hired somebody, we probably would have hired her . . .
We hire on sight." Explaining his testimony that he never directed Peters to deny
employment to Moseley, Arnett testified, "I told Mrs. Peters that it was entirely up
to her; that she was in charge of the maids and she knew what she needed and
wanted, and if she wanted to hire Jessie Moseley back, it was fine with me. The
only thing I cautioned her on if she hired her was about her absenteeism." Arnett
flatly denied asking Peters whether or not Moseley had come with Christine Bryant
from the Holiday Inn.14
Based on the entire record, including the demeanor of the witnesses, their self-
interest, and the inherent probabilities of the situation, I must resolve the conflict
in testimony between Arnett and Peters in favor of the latter. Arnett impressed me
as a less than candid and forthright witness. He was personally involved in the
case and, indeed, the propriety of his conduct with respect to Moseley was in issue.
On cross-examination he was evasive and betrayed a tone of hostility.15 Peters, on
the other hand, testified as a disinterested witness. She was not shown to be sym-
pathetic to the Union's position, and had no personal interest in the outcome of the
proceeding. Peters is still in the employ of Respondent and appeared to take her
oath most seriously.is Moreover, I was particularly impressed by Peters' unequivocal,
14 Some of Arnett's testimony recited above (as well as some of his other testimony relat-
ing to other issues in this case) was given by Arnett on direct examination as a witness
for General Counsel. Contrary to Respondent's contention, however, General Counsel is
not bound by Arnett's testimony merely because he called him as a witness. A party may
always contradict the testimony of his "own" witness by independent facts showing in-
accuracy or falsity ; the more so in a case like this, where the witness is an official of the
adverse party. See Plumbers and Steamfitters Union Local 100, affiliated with the United
Association of Journeymen & Apprentices of the Plumbing and Pipefittsng Industry of the
U S. and Canada, AFL-CIO, et al. (Beard Plumbing Company), 128 NLRB 398, 399, enfd.
291 F. 2d 927 (C.A. 5) ; Northern Pacific Paclway Co. v. Everett, 232 F 2d 488, 491
(CA 9) , 3 Wigmore, Evidence (3d ed ), §§ 907-908
15 As noted supra, the Board in the prior proceeding found that Arnett, before the first
election (July 12, 1962), communicated to employees the futility of self-organization and
the dire consequences if a strike resulted The Board also found that Arnett had ques-
tioned two employees about their attendance at union meetings.
is As noted supra, in discussing the issue of Pinkerton's supervisory status, Peters' testi-
mony on that issue was not unfavorable to Respondent's position. In addition it was on
the basis of Peters' testimony (which Trial Examiner Martin credited in the prior pro-
ceeding) that Respondent established that Christine Bryant was discharged for cause and
not for union activity Respondent vouched for her veracity in the prior proceeding and
at one stage in this proceeding it even expressed the intention to call her as its own wit-
ness (Respondent later decided not to call her and Peters was put on the stand as
General Counsel's witness.) It is true that during cross-examination Peters referred to
incidents in which she was personally involved (but which had nothing to do with the
issues in the case) that appeared unduly exaggerated and left the impression that she
was disappointed at Arnett's failure to back her authority over the maids. (Peters testified
THE LITTLE ROCK DOWNTOWNER, INC. 1293
convincing testimony on the stand , which I credit, that Arnett had sought to dissuade
her from testifying at the hearing in the case . According to Peters , Arnett asked her
"several times" to return to work when Peters, in answer to the subpena served upon
by her General Counsel , attempted to leave the motel for the hearing. When
Peters protested that she "would be in trouble" if she did not respond to the subpena,
Arnett replied , "If you don 't feel like working, just go home." Arnett also told
Peters, "You know what I want you to say" if called to testify . 17 Peters did go home
but then came to the hearing.
3. Conclusions with respect to Respondent 's refusal to reemploy Moseley
Based on the foregoing and the entire record , I find that Respondent refused to
reemploy Jessie Moseley because it suspected her of union sympathy and activity.
The credited testimony of Respondent 's supervisor, Peters, that Manager Arnett
directed her not to rehire her because he suspected that she was "mixed up in the
union" with Christine Bryant, who was the Union 's observer in the election , permits
no other conclusion . The instant case is one of those "rare" cases which contains
"direct evidence of a purpose to violate the statute ." Hartsell Mills Company v.
N L.R.B., 111 F. 2d 291, 293 (C.A. 4).
The evidence , which I credited , does not establish whether Moseley was in fact a
union member . is It is immaterial , however, whether the discrimination was for
known or suspected union activities or sympathies . N.L.R.B . v. Clay M. Bishop and
Robert E. White, d/b/a New Hyden Coal Co., 228 F. 2d 68, 70 (C.A. 6). It is well
settled that even the "discharge of a nonunion employee because of a mistaken
belief that he was sympathetic to, or active in, a union violates" the Act. N.L.R.B.
v. J. G. Boswell Co., 136 F. 2d 585, 589 (C.A. 9).
Nor is it material that Respondent was not in need of a maid , and hired none, on
the day of Moseley's application on January 25. The record shows , as I have found,
that Respondent hires employees by calling applicants who have left their names and
telephone numbers with Respondent-which Moseley did-as well as applicants on
the spot. It is not disputed that Respondent hired a new maid within a day or two
of Moseley 's personal application , and many more thereafter . The record is clear
that Peters failed to call and hire Moseley, whom she characterized as "a good maid,"
only because Arnett directed her not to do so . Under these circumstances , it would
have been futile for Moseley to apply for a job even on a day when a job was avail-
able. See N.L .R.B. v. Local 369 , International Hod Carriers ' Building and Common
Laborers ' Union of America , AFL (A. C. Frommeyer Co.) , 240 F. 2d 539, 544
(C A. 3); Piasecki Aircraft Corporation v. N.L.R.B., 280 F. 2d 575 (C.A. 3), cert.
denied 364 U.S. 933; N.L.R .B. v. The Lummus Company, 210 F . 2d 377, 381
(C A. 5).
Accordingly, I find that Respondent discriminatorily refused to reemploy Jessie
L. Moseley on and after January 25 because it suspected her of union sympathy or
activity in violation of Section 8 (a) (3) and ( 1) of the Act.
that several employees had threatened her-even her life-when she complained about
their performance and lack of cooperation .) I cannot , in the circumstances of this case,
however, conclude that Peters' "paranoic" manifestations and possible resentment against
Arnett are indicative of a compulsion for fabrication.
17 Arnett admitted talking to Peters about responding to the subpena, but stated that he
merely told her that "it was her prerogative " to comply or not comply with it It was
apparent to me that Arnett was holding back material facts . When asked whether he told
the General Counsel's messenger who came to fetch Peters not to "bother her," Arnett re-
plied , "I don ' t know if I made that statement or not ." Arnett admitted telling counsel
for the General Counsel when the latter asked to see Peters , that Peters was sick and
left work.
is Mosley did testify that on and about the time of the second election ( October 30,
1962 ), Peters asked her if she talked to Christine Bryant about the Union . Moseley also
quoted Peters as saying that she heard that Moseley and Bryant brought in the Union at
the motel-an accusation which Moseley disputed . Peters was not questioned about this
incident when testifying and I need not, and do not, make any finding as to whether this
incident took place.
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The refusal to bargain in good faith 19
1. Introduction
The Union filed its petition for representation on May 31, 1962, and the Board
thereafter conducted two elections on July 12 and October 30, 1962, respectively.20
On November 7, 1962, the Union was certified as the bargaining representative of
Respondent's employees in an appropriate unit.21 By a letter dated November 9,
1962, Yeargan requested a bargaining conference on November 15, 1962. The
first bargaining session, however, was not held until January 10, 1963. Altogether
the parties held 10 meetings, the last on May 2, 1963. Proposed contracts were
exchanged, the Union presenting its original draft (patterned after its then contract
with the Coachman's Inn at Little Rock) on November 9, and Respondent mailing
its draft on November 28. A composite of the two drafts, incorporating proposals
agreed upon and those still in dispute, was prepared and submitted by Respondent on
April 4, 1963. All conferences up to the time of the strike which the Union called
on March 13, 1963, took place at Respondent's motel, and those thereafter elsewhere
in Little Rock. Representing the Company were Newell N. Fowler, Respondent's
attorney who attended all meetings, Company Vice President Don T. Baker who
attended all but the first meeting, and Motel Manager Arnett and Assistant Manager
Atkins who attended some of the meetings. The Union was represented by Interna-
tional Representative Yeargan and an employee committee whose regular members
were Laura Tackett, Yvonne Baxter, and Exye Glenn 22
The complaint alleges that Respondent has refused to bargain in good faith with
the Union by engaging in dilatory tactics and surface bargaining without intention
to reach agreement; by unilaterally granting wage increases to employees without
prior notice to, and consultation with, the Union; by unilaterally changing the
existing terms and conditions of employment of its waitresses; by failing to present
to the Union, as promised, a summary of bargaining progress; and by refusing to
provide the Union with a list of striker replacements. Respondent denies these
allegations.
2. The initial bargaining meeting on January 10
As already noted, by a letter dated November 9, 1962, International Representa-
tive Yeargan requested that Respondent commence contract negotiations on Novem-
ber 15, 1962. At the same time, the Union mailed its original contract proposals.
On November 16, Company Attorney Fowler replied that the Company could not
meet with the Union for some time because the hearing before Trial Examiner
19 The findings in this section are in part based on documentary and uncontradicted evi-
dence. In those instances involving a conflict of testimony, I resolved the conflict not only
on the basis of the comparative demeanor of the witnesses as observed by me, but also on
the basis of what appeared to me, considering the record as a whole, to be more consistent
with the inherent probabilities of the situation Company Attorney Newell N. Fowler and
Vice President Don T. Baker were Respondent's chief witnesses and International Repre-
sentative Earl Yeargan was General Counsel's chief witness in litigating the refusal to bar-
gain issue Fowler testified with candor and conviction and, as hereafter noted. I usually
accepted his version of the incidents where his version conflicted with that of Yeargan
and Baker. Both Baker and Yeargan frequently colored their testimony in an apparent
effort to conform their versions to what appeared to them to be the best interests of the
Company and Union, respectively. As hereafter noted, more often than not, I accepted
Baker's, rather than Yeargan's, version of the incidents, since Baker usually testified
from notes made contemporaneously with the bargaining.
21 The record in the representation proceeding (Case No. 26-RC-1789). of which I take
official notice, shows that the Union lost the first election by a vote of 22 to 19, with
2 additional ballots challenged. The Board thereafter set aside the election on the ground
that some of Respondent's preelection conduct prevented a free election choice. In the
second election that followed on October 30, the Union won by a vote of 31 to 12, with
3 ballots challenged.
21 The unit found appropriate consists of the following: All regular full-time and part-
time employees of Respondent employed at its Little Rock, Arkansas, place of business,
including front office employees, porters, cleanup men, maids, waitresses, cooks, cashiers,
dishwashers, potwashers, and room service employees, but exclusive of office clerical em-
ployees, professional employees, watchmen and guards, and supervisors as defined in
the Act.
22 Messrs. Fowler and Yeargan were the chief spokesmen for the Company and the
Union, respectively. Fowler has specialized in labor law for more than 20 years.
THE LITTLE ROCK DOWNTOWNER, INC. 1295
Martin (supra) was scheduled to begin on November 19, and the Company needed
additional time to prepare counterproposals. Fowler promised to contact the Union
during the week of November 26 to set a meeting date. On November 28, Fowler
informed Yeargan that he was looking into the question of availability of a company
representative for a meeting. At the same time he forwarded to the Union the
Company's counterproposals. Yeargan replied on November 30, expressing the
"hope" that the parties would commence negotiations "in the very near future." In
a letter dated December 13, 1962, the Union complained to Fowler that it still had
not heard from Fowler or any company representative and it "urgently" requested
a meeting the following week. On January 5, 1963,23 Yeargan wrote to Fowler,
pointing out that the Union "has made request after request" for a meeting but to
date no bargaining session had been set. The parties finally agreed to meet and
met for the first time on January 10, 1963. Fowler explained at the hearing that he
could not meet with the Union earlier because he was "too busy" and was "swamped"
with other business. In addition, he stated that Company Vice President Baker "was
unavailable . . . just about as much as I."
At the January 10 meeting, the parties discussed various provisions contained
in the Union's and the Company's draft contracts, both of which were on the bar-
gaining table. Agreement was reached on some minor items and also on some
important parts of the seniority clause. At the same meeting Yeargan brought up
the question of the Company's refusal to rehire Moseley (supra), stating that Moseley
was ready to return to work and the Union "wanted the Company to take her back";
Fowler replied that he would investigate the matter 24 The Union also requested a
list of the Company's employees and their wages which the Company subsequently
furnished on January 16.25 This meeting consisted of a morning and afternoon
session.26
3. The next three meetings held on January 21 and 24 and February 3; the Union's
protest against the unilateral change in the waitresses' working conditions
At the meeting held on January 21,27 the parties again took up various provisions
in the union and company drafts, including the grievance and arbitration provisions,
and the no-strike and no-lockout clause. Agreement was reached on a job steward
clause, bulletin boards, grievance procedure, and miscellaneous items. It was mu-
tually agreed to pass on and restudy some matters, such as the procedure for select-
ing an arbitrator. In the course of the meeting Yeargan complained about a rule
which Company Supervisor Lillian D. (Vicki) Ventress, recently put into effect
under which waitresses were required to remain standing at their stations while not
waiting on customers, unless they were on their regular relief period.28 The Union
23 All dates hereafter refer to 1963, unless otherwise indicated.
24 The foregoing finding is based on the uncontradicted testimony of Yeargan and em-
ployee Tackett.
25 The list in question (General Counsel's Exhibit No. 14) enumerates the names of the
employees and their job classifications and wages-all on the left half side of each page.
The right half of each page contains the wage counteroffers made by the Union at a later
stage in the negotiations
20 On the basis of Fowler's letter to Yeargan dated March 14, 1963-Respondent's sum-
mary of the status of the negotiations as of that date-I find that "dual sessions" were
also held on January 24 and February 4 and 26. I do not credit Vice President Baker's
testimony that the January 21 meeting-the first he attended-consisted of two sessions
Nor do I credit Yeargan's testimony that dual sessions were held only two times. There
is a sharp conflict in testimony as to the length of the meetings, Yeargan testifying that
the bargaining sessions both before and after the strike, on any particular day, lasted
11/2 "to maybe" 2 hours, and Baker testifying that they lasted longer Fowler testified
that be usually limited meetings to 2% hours because lie felt that "after that length of
time you are not getting anywhere and you are just rehashing the whole thing." In view
of the findings hereafter made regarding the nature of Respondent's alleged dilatory
tactics, I do not find it necessary to resolve the conflict of testimony on this point. Nor
do I find it necessary to resolve the conflict between the testimony of Yeargan and Baker
as to whether, as Yeargan claimed, the Company was usually late at meetings.
n The January 21 meeting was an "unscheduled" meeting. Fowler happened to be in
Little Rock and called up Yeargan to meet with him.
28 Employees had one 20-minute break period in an 8-hour shift. Before the promulga-
tion of the rule, employees were permitted to sit when unoccupied with customers or
otherwise.
1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received no notice of, and was not consulted about, this rule prior to its promulga-
tion. When Yeargan pointed out that the Company's action was in violation of
Arkansas law providing that seats must be made available to female employees not
actively engaged in work, Fowler stated that he would investigate and correct the
situation.29 Ventress, when testifying on this point, admitted that she put into
effect and strictly enforced the "rule" that the waitresses "had to stand at their sta-
tions." She also directed the waitresses to cease "unnecessary conversations."
Ventress explained that she promulgated the rule because the waitresses had been
ignoring their customers. The rule in question remained in effect at the time of the
instant hearing.
Also during the course of the January 21 meeting Yeargan protested the Com-
pany's failure to release Earnestine Kelly, a maid, to attend the bargaining meeting 30
At the meeting of January 24 the chief subject under discussion was wages. Vice
President Baker presented the Company's wage proposal, which was the "existing
wage structure." Baker pointed out that considering the Company's rate of return
on its investment and other factors, it could not agree to any wage increases at this
time. When Yeargan asked if the Company was pleading "inability to pay,"
Fowler "emphatically" stated that it was not. Other subjects discussed included vaca-
tions and insurance. The Company proposed to continue its existing plan of 1 week's
vacation after 1 year of continuous service and 2 weeks' vacation after at least
2 years' service. However, it refused to go along with Yeargan's proposal that in
computing vacation pay, the waitresses be allowed a $3 or $4 per day allowance to
make up for tips earned while on duty. In their discussions on insurance, Baker
pointed out that the Company was but "a young company, scarcely a little over two
years in operation" and it did not yet have an insurance plan but that one such plan
for employees at all its operations was under study. Agreement was reached on the
selection of an arbitrator-a subject left open at the last meeting-and on other
items such as leaves of absence, reporting time, a no-discrimination hiring clause,
and the right of employees to wear union buttons while on duty31
At the February 4 meeting, the parties again discussed the subject of wages. The
Company offered to increase the starting rate of maids from $85 to $90 per month,
with progressive increases to $95, 3 months later, and to $100, 6 months thereafter.
Yeargan asked what the Company could offer for the rest of the employees. Baker
replied that the wages of its employees were comparable to those of similar estab-
lishments in the Little Rock area. Yeargan remarked that Baker was "cheap," but
stated that he would submit the entire wage proposal "to his people." As to vaca-
tions and insurance, the Company stated that it would adhere to its previous vacation
policy but would continue to give further study to an insurance program. Among
other things, agreement was reached on the no-strike and no-lockout clause, includ-
ing binding arbitration.
4. The February 12 and 26 meetings; Respondent's agreement to
prepare a revised draft
A major portion of the February 12 meeting was devoted to a review of the provi-
sions in the Union's draft and in the Company's draft which the parties had previ-
ously agreed to or discussed. As Yeargan testified, the two drafts had been used at
the bargaining table since January 10, and they contained "many notations and
amendments and languages" and, indeed, the drafts were "a little scarred up."
29 Some employees testified that under the rule, as promulgated and enforced by Ventress,
the supervisor in charge of the waitresses, the waitresses were also forbidden to talk to
one another.
30 The complaint does not allege that Respondent's conduct respecting Kelly (who, accord-
ing to Yeargan had been designated to represent the maids on the employee bargaining
committee) was illegal and Respondent did not litigate the issue Accordingly, I make no
finding respecting this matter. Kelly was apparently discharged shortly after the Febru-
ary 4 meeting which she attended.
a Baker testified that it was at this meeting, after the Company presented its existing
wage proposal, that Yeargan "made the blunt statement that he was going to put us out
of business . . . if that was the way we wanted to work." Yeargan testified that he
merely told the Company that if it "was going to try to put us out of business that we
would be in there trying to accommodate him." I do not deem it necessary to resolve
the conflict on this point, as this remark is an isolated incident in what on the whole
appeared to be amicable dealings by both parties while at the bargaining table
THE LITTLE ROCK DOWNTOWNER, INC. 1297
Fowler therefore offered to prepare a composite of the two and incorporate the pro-
visions already agreed to and those still in dispute, and to "try" to submit the new
draft-or, as often referred to at the hearing, the "summary"-by the next meeting,
which was to be held on February 26 32
At the February 26 meeting, Fowler stated that his heavy schedule of work
prevented his completion of the revised draft or summary in time for the meeting.
The draft was only halfway or partially completed and required further revision
in view of additional changes that had to be made by reason of the negotiations
and agreements made at this February 26 meeting. Yeargan protested Fowler's
failure to produce the draft and demanded that it be prepared by March 1. Fowler
asked Yeargan not to pin him down to any specific date, but promised to try to have
it ready by the next meeting.33 The parties discussed various proposals at this
meeting, including hours of work and wages. When Yeargan remarked that the
Company was not paying the prevailing wage rates in the area and that they were
entitled to more money, Virgil Atkins, the restaurant manager, stated that the
employees "were getting raises all along" when merited. Yeargan then asked for
the names of the employees who received the wage increases since the time the
Union was certified, and the dates and types of raises involved. Fowler answered.
"I want to get the record straight now; there has not been any wage increases to these
employees since the Union has been certified." 34 The meeting was adjourned with-
out setting any new date, Fowler explaining that he had trips to make to Atlanta
and Florida and that he needed time to prepare the promised composite draft.35
5. Respondent's unilateral wage increases prior to the strike
The record shows, and I find, that Respondent had from time to time since
November 7, 1962 (the date of the Union's certification) given wage increases
to employees without prior notice to the Union. Restaurant Manager Atkins testified
that he gave a 10-cent an hour increase to Jessie McClain, a cook, from 76 cents to
86 cents for the pay period ending November 25, 1962. Atkins explained that he
gave her the increase because "her work was real satisfactory" and the other cooks
earned the higher rate. Atkins further testified that he gave a 3-cent per hour increase
(from 52 cents to 55 cents) to Clarence Watson, a dishwasher for the period ending
a3 The foregoing finding as to the preparation and submission of the composite draft is
based on the testimony of Fowler, whose testimony was corroborated by Baker Yeargan
testified that when Fowler offered to prepare the new draft, lie "suggested to him that
lie submit to us a package contract" and agreed to put off the next meeting until Febru-
ary 26, and that "Mr Fowler said that that was all right, and lie said that lie would
take the contract and draft all the language that was formerly agreed on " At a later
point and on cross-examination Yeargan indicated that the "package contract" which
Fowler was to prepare was to include new proposals, including a new wage offer Two
employee witnesses also testified that Fowler promised to bring in "a package deal."
Fowler denied that the draft he offered to prepare was to contain any new substantive
proposals, stating that it was to be "nothing more than a mechanical stenographic job "
On the basis of the whole record, I find that Yeargan misconstrued the scope of the
matters which Fowler volunteered to include in the new revised draft. I credit Fowler's
testimony that he promised to do nothing more than to prepare a clean, up-to-date draft-
which was no more than a clerical job-from which the parties could more readily work
at future bargaining sessions. I note that the complaint itself alleges no more than that
Respondent had "promised . . . a summation of bargaining progress and proposed con-
tractual language on items heretofore not agreed to."
as The foregoing finding is based on the testimony of Fowler which was corroborated by
Baker. I do not credit Yeargan's testimony that Fowler "absolutely" promised to produce
the document by March 1.
34 The foregoing finding is based on the testimony of Yeargan. Fowler acknowledged
that the wage matter was raised at the hearing. He stated that he had instructed the
Company "not to make any wage increases or any wage adjustments at all" unless they
cleared it with him, and as far as he knew no increases were given. Apparently, as here-
after shown, the Company did not follow Fowler's instructions,
35 In a subsequent letter to Yeargan dated March 14, 1963, Fowler reminded Yeargan
that he could not on February 26, set a fixed date for a meeting in the near future because,
as Baker told Yeargan at the February 26 meeting, Baker "would be occupied with critical
business problems in several Texas cities." Fowler further reminded Yeargan that he
(Fowler) himself "also indicated that my schedule would be full for 10 days or 2 weeks
and that I was scheduled to be in Miami during the first week in March .. . .
734-070-64-vol. 145-83
1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 10, 1962, explaining that "it was just an increase on his ability to operate
a machine and keep from breaking so many dishes ." Atkins gave Mary Lorenzo,
a hostess , a 5-cent increase ( from $1 to $1 05 ) for the pay period ending March 31,
1963, explaining that, like the other hostesses , she was in charge of the waitresses and
the kitchen when he was not around and because of her length of service "she
deserved a raise " Atkins also gave Helen Patterson , another hostess, a 5-cent
increase ( from $1.05 to $ 1.10) during the pay period ending January 25 , 1963, for
"practically " the same reason as Lorenzo , another 5 -cent increase ( from $1.10 to
$1.15) for the pay period ending February 25, "for extra paperwork " she was
instructed to do, and still another 5 -cent increase for the pay period ending March 10,
for performing still more paperwork.
Respondent 's payroll records show wage increases for other employees , including
maintenance men or porters and front desk clerks . Thus, Claude Kennedy, a
cleanup or maintenance man, was raised from $115 to $ 125 per month during the
payroll period ending March 15, 1963 . Laurence Banks, a parking lot attendant,
received an increase from $115 to $ 150 per month in the payroll period ending
April 15. Nancy Pinkerton, a front desk clerk , received an increase from $215 to
$230 per month in the period ending April 30. Mary Lois Pinkerton was increased
from $230 to $250 per month in the pay period ending December 10, 1962 36
Barbara Ann Goin, another clerk who was hired during the payroll period ending
March 15, at $175 per month , was increased to $200 during the period ending
April 15.37 As to the increases for the desk clerks, Motel Manager Arnett testified
that they were not an "automatic set up It is a merit raise , and I do not have
any particular policy. How I raised them was after they had been with me a year,
and I saw fit to raise them, I raised them , unless I saw fit to change them to some-
thing else . I raised them according to the way I wanted to." 38
International Representative Yeargan credibly testified that no representative of
the Company had notified the Union or consulted with it as to any of the wage
increases given by the Company . Yeargan learned of the wage increases to
Patterson , Lorenzo, and McClain through conversations with employees prior to
March 11, 1963.
6. The Union 's strike against Respondent
On March 11, International Representative Yeargan called a meeting of the
Union's executive board at which he reviewed what he considered to be the Com-
pany's unlawful actions at and away from the bargaining table. Yeargan pointed
out that the Company "had granted some wage increases to some of the hostess
people," that there had been "a series of discharges at The Downtowner Motor Inn," 39
that the Company had unilaterally changed the working conditions of the waitresses,
that it had sought to entice "some of the committee people out of the Union," 40
36 As already noted supra, Pinkerton 's duties also changed substantially then
37 Respondent ' s payroll records also show periodic increases for other personnel, as for
example for Robeit Bea , from $200 to $225 per month in May , but some of these in-
dividuals may well be supervisory employees . There is evidence in the record that Bea
was a supervisor , in charge of other porters It is clear fiom the record , and I find, that
Kennedy, Nancy Pinkerton , Banks, and Coin are iank -and-file employees Respondent
identified the first two as employees in the unit in supplying wage information to the
Union on January 16, 1963. The other two employees were hired as replacements for
strikers . And I have already found supra, in accordance with Respondent 's contention,
that Mary Lois Pinkerton was a nonsupervisory employee.
38 The General Counsel adduced some testimony purporting to show that Respondent had
also increased the overtime payments from time and one-half to $1 per hour The credible
evidence does not support General Counsel ' s contention Restaurant Manager Atkins
credibly testified that overtime payment has remained the same at time and one -half and
this is distinguishable from "double -back tine" payments for which a waitress has always
been paid a dollar an hour for returning to work after regular hours , to service a special
event such as a banquet.
3iYeargan identified the dischargees as Jessie Moseley ( sepia), the three employees
(Eddy Robinson , Erma Baruday , and Christine Bryant ) who were the subject of litigation
in the proceeding before Trial Examiner Martin ( supra ), and Earnestine Kelly (as to
whom the General Counsel dismissed the charge ) Yeargan also mentioned Yvonne Baxter
as to whom a charge that she had been discuminatorily suspended from work on March 8
was subsequently dismissed and withdrawn
46 Yeargan obviously had in mind the alleged attempt of Mary Lois Pinkerton to prevail
upon employee Tackett to withdraw from the bargaining committee-an action for which,
as I already found supra, the Company was not responsible
THE LITTLE ROCK DOWNTOWNER, INC . 1299
that it had not furnished the Union the revised draft or summary promised it by
February 26 (supra ), and that it had not met with the Union again on March 9
as promised . Yeargan testified : "With all of this history , I told them . . . I felt,
upon recommendation of our legal counsel, that if we were going to get a contract
for this company , if we were going to stop this harassment of the union people,
that we would be forced to strike." The Union's executive board then voted to call
a meeting of the membership the next day , March 12, "for the purpose of discussing
a strike."
At the March 12 union meeting , Yeargan reported to the membership "basically
the same thing" he told the executive board. The members unanimously voted to
strike. At 11:36 that evening , the Union sent Respondent a telegram informing it
that the Union would officially be on strike at 5:30 a.m., March 13, "against unfair
labor practices committed by the employer ." The telegram went on to say that the
"Union charges that the employer has discharged known union supporters, has re-
fused to meet and bargain in good faith and has made unilateral changes of working
conditions and wages."
The next day , Wednesday, March 13, many of Respondent 's employees , including
porters and maintenance men, waitresses, and desk clerks , went on strike and re-
mained away from work . Some picketed with signs stating that The Downtowner
Motor Inn was "unfair to their employees " and that "charges" have been filed "with
the Labor Board," and asking the public not to patronize Respondent . 41 A leaflet
distributed that day also advertised the Union 's claim that The Downtowner was
"unfair to its employees ," stating that the Company "has refused to meet and bargain
in good faith ," and that it "has discharged known union supporters " in violation of
law. The leaflet further stated that the Company "is now paying many of its em-
ployees less than 500 an hour " and appealed to the public not to patronize the
Company.
As hereinafter more fully stated , the Union abandoned the strike at the end of the
first day and the employees attempted to return to work the next day . While several
strikers were thereafter reemployed the bulk of them were not , allegedly because
they had been replaced by new employees.
On Sunday , March 17, the employees conducted another meeting at which they
voted to resume the picketing the next day because of the Company 's failure to re-
instate all strikers . The handbill distributed that day again publicized the Union's
charges that the Company was unfair to its employees , that it discharged union
supporters , changed working conditions , and bargained in bad faith . The handbill
devoted conspicuous space to the Company's wage rates for various classifications of
employees and concluded with the question , "Could you live on these wages?" An-
other leaflet distributed during the strike listed, among other things, the unfair labor
practices found by "Federal investigators " and informed the public that charges and
complaints had been issued against Respondent.
The strike and picketing have continued to the time of the instant hearing.
7. The resumption of negotiations during the strike; the March 15 meeting
Pursuant to arrangements made by telephone on March 13 ( to which further
reference is made infra ), the parties agreed to meet on Friday, March 15.42 The
meeting was short-only a half hour-and charged with emotion due to the outbreak
of the strike and Respondent 's replacement of the strikers . At the outset , Company
Attorney Fowler handed Yeargan a letter "outlining what our [the Company's]
minutes show as to the status of contract negotiations to date." When Fowler asked
Yeargan if he agreed with the Company 's appraisal , Yeargan replied that he would
have to consult his own minutes. Yeargan then gave Fowler a list of the strikers,
and asked for the names of the replacements . Fowler declined to supply this. When
Yeargan inquired about the Company's position regarding the reemployment of the
strikers, Fowler replied that the strikers were replaced as of 3 p.m., March 13, and
that they would be given consideration like any other person seeking new employ-
ment. Yeargan asked if Fowler had the revised draft or summary that was supposed
u The Union had, prior to the strike , filed several charges alleging that Respondent had
discriminated against Moseley and other employees and that it had violated its statutory
duty to bargain The General Counsel, prior to the strike ( March 7, 1963 ), issued the
original complaint herein alleging , among other things , that Respondent discriminatorily
refused to reemploy Moseley and that it unlawfully refused to bargain with the Union by
unilaterally changing the waitresses ' terms and conditions of employment.
^ The meeting was scheduled for 10 a.m. but was not opened until 12.45 p in. Company
Vice President Baker testified that his plane was delayed by inclement weather.
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to have been submitted on February 26. Fowler replied, "If you hadn't pulled this
strike, you would have already had it on your desk." There followed a cool, rapid
exchange between Yeargan and Fowler in which Fowler curtly answered "No" to
almost each one of Yeargan 's requests to discuss the subjects (e.g., wages, insurance,
etc.) brought up by Yeargan. Yeargan then moved to adjourn the meeting, to which
Fowler rapidly acquiesced.43
8. The April 4 meeting; the composite draft presented by Respondent;
the position of the parties on the bargaining issues
By letter dated March 16 Yeargan notified Fowler that the Union was "anxious" to
meet with the Company "at any time" to discuss the question of the discharged em-
ployees and other issues. On March 23 Yeargan again wrote to Fowler, complain-
ing that he had still not heard from him, and again asked for a meeting. On
March 29, Yeargan wrote a third letter to Fowler, again reminding Fowler that he
had requested a meeting on two prior occasions and "at the date of this writing we
have heard nothing from you." The parties finally met on April 444
At the April 4 meeting Fowler presented to the Union the revised draft or sum-
mary which Fowler originally intended to submit by February 26. The new draft
(General Counsel's Exhibit No. 13) is a composite of the Union's and the Com-
pany's original drafts, incorporating therein the provisions agreed to and those still
in dispute on February 26, the last bargaining meeting between the parties prior to
the strike.45 Thus, the new article on seniority, for example, sets forth the com-
promise reached by the parties at the January 10 session under which new employees
were to be employed on a trial basis for 45 days instead of 90 days as originally
proposed by the Company (article 5, section A). This article also provides that
seniority shall terminate, among other things, when an employee is not recalled within
6 months after layoff as proposed by the Union, instead of 120 days as originally
proposed by the Company (article 5, section D(e) ). The article on hours and
working conditions omits a clause (paragraph (c) ), which was previously with-
drawn by the Company and incorporates other language to which the parties had
agreed in the negotiations. Article 8, dealing with vacations, embodies the Com-
pany's proposal made at one of the early sessions to maintain the existing vacation
plan, a provision which did not appear in the Company's original draft. Article 11
contains a new provision dealing with promotion of employees to supervisory posi-
tions, as revised by the parties in the Union's draft on January 10. Other articles,
such as those dealing with the right of employees to wear union buttons while on
duty-which never appeared in the Company's draft but which were agreed to prior
to the strike-are incorporated verbatim from the Union's draft.46
43 The findings in this section are based on the composite testimony of employees Glenn
and Tackett, as well as of Yeargan and Baker. Fowler admitted telling Yeargan that if
it had not been for the strike be would have had the promised summary earlier, explaining
that he spent a good deal of time researching the question as to whether the strike was
an economic or unfair labor practice strike.
44 Yeargan testified that the company negotiators were 11/ hours late in arriving at this
meeting, but Baker claimed he was only 55 minutes late because of "plane trouble "
45 As indicated above, the parties made no progress in the negotiations at the brief
March 15 meeting
48 Yeargan's testimony that the revised draft contained "many items that [were] never
agreed upon before" and that it "was a brand new thing" and embodied "brand new
ideas" is not supported by the record. Yeargan mentioned that the new draft contained
new provisions on grievances, meals, and transfers of employees from one classification to
another, but the draft as submitted on April 4 did not contain any new offers on these
matters A new provision providing for free meals for employees in the food depart-
ments-which appears as an insert to section A, article 7, in the revised draft-was not
incorporated until after submission of the draft and was not agreed to until May 2 accord-
ing to Yeargan's own notation in the margin of the insert and also his testimony at the
hearing. Other inserts (e.g, article 2, section A(7) and E; article 15, section G;
article 7, sections E, G, H , article 9, sections C-E) and changes in the typewritten draft
were likewise made only after the submission of the new draft on April 4 As noted below,
Respondent did present a new wage offer at the April 4 meeting, but this appears to have
been done separate and apart from Fowler' s undertaking to prepare the new draft, and
the proposal was later incorporated into the draft as an insert I find that, except for
minor deviations, the revised draft included basically no more than the provisions appear-
ing in the original company and union drafts and revisions and modifications thereof
agreed to during the negotiations.
THE LITTLE ROCK DOWNTOWNER, INC. 1301
The April 4 session was largely devoted to a review of the revised contract in order
to verify whether it was in fact a complete draft, incorporating the items previously
agreed upon and still in dispute. The parties found that they were in substantial
agreement-as they had been on February 26, prior to the strike-on the bulk of
the substantive issues, the significant exceptions being money matters such as wages,
paid holidays, overtime, and insurance. As to some of the agreed items, details and
language remained to be worked out. Major items as to which agreement existed
included seniority, grievance procedure, binding arbitration, discharges and reinstate-
ment, and leaves of absence, most of the hours and working conditions, the no-strike
and no-lockout clause, promotions to supervisory positions, and use of union buttons.
There was also agreement on vacations, except that the Union insisted on a wage allow-
ance of $3 or $4 per day for waitresses to compensate for tips earned while at work.
Some items, although agreed to prior to the strike, continued to be the subject of
discussion after the strike and the parties later "reagreed" thereon. As to wages,
the Company still insisted that its wages were comparable to those of similar estab-
lishments and it continued to resist the Union's demands for increases. As to over-
time, the Company insisted on continued enjoyment of the exemption which Federal
law accorded the restaurant industry. The Company opposed the inauguration of
any insurance program after the strike, although prior thereto it had taken the
position that the subject was under study. Finally, the Company iesisted the Union's
paid holiday demand because, like the other provisions it opposed, this entailed
additional cost.47
As already noted, Respondent did present a written page proposal at the April 4
meeting, but this proposal, like the one it verbally made at the February meeting,
merely incorporated Respondent's existing wage structure with an increase in the
starting wages for new maids from $85 to $90 per month and additional periodic
increases to $95 and $100. Baker testified that the wage proposal was "our present
wage structure" as to all job classifications. The wage proposal offered on April 4,
as it applied to maids, differed from the verbal February 4 offer, however, in that
the waiting period for the first increase to $95 was reduced from 3 months to 45 days,
and for the second increase to $100 from 6 months to 90 days. In addition to
discussing wages, Yeargan raised at this meeting (as he did at all others held after
the strike) the question of the return of the strikers Yeargan continued to insist
that the Company provide him with a list of strike replacements and of individuals
hired to replace the replacements who vacated the jobs. The Company refused to
supply the list because the Union had filed charges with the Board.48 When Yeargan
requested that the Company take back the strikers, the Company replied that the
strikers had been replaced and would be considered for employment only as new
applicants.49
9. Respondent's unilateral wage increases to its maids in April and May
The record shows, and I find, that during the 2-week period ending April 30,
Respondent put into effect the increased starting rates for new maids which it had
proposed in writing at the April 4 meeting. Respondent's payroll record for the
period ending April 30 (Respondent's Exhibit No. 10(m)) shows that Lee Dora
Hays, a new maid hired during this period, was started at $90 instead of the $85
per month rate theretofore in effect. The same payroll record shows that three
other maids (Handley, Taylor, and Daugherty) who were hired on March 13
(General Counsel's Exhibit No. 4) were given increases from $85 to $90, although
under Respondent's wage structure previously in effect they would have had a 3-
month waiting period before they would have qualified for the increase. Other
maids hired in May (e.g, Opal Lee Gray and Lizzie Mae Taylor, hired May 7) were
47 The foregoing findings are based on the testimony of Baker and Fowler Their testi-
mony as to the items agreed upon accords with Fowler's enumeration of the agreed items
in his letter of March 14 which he handed to Yeargan at the Maich 15 meeting (siipia).
When pinned down to desciibe the status of the negotiations prior to the strike, Yeargan
himself conceded that the items herein found to be agreed items had in fact been agreed
to prior to the strike
48 Subsequent to the commencement of the strike the Union filed charges averring that
the Company had unlawfully dischaiged and refused to reemploy strikers involved in this
proceeding
49 The foregoing findings are based on the uncontradicted testimony of employees Glenn
and Tackett, as well as that of Yeargan
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
likewise started at the $90 rate. The records show, and I find, that these wage
increases were put into effect without prior notice to or consultation with the Union 50
10. The final meetings on April 19 and May 2; Respondent's failure to meet
further with the Union
At the next meeting, held on April 19, the parties reviewed several issues which
still kept them apart, including the Union's demands for four paid holidays, wages,
and an insurance program.51 The Company acceded to the Union's request to place
three bulletin boards strategically throughout the building so as to make them
accessible to all employees. The parties also "reagreed" on such provisions as the
workweek and job stewards. It was further agreed to study the Union's request
for visiting rights. The Company again denied the Union's request for the strike
replacement list because "a charge had been filed." Yeargan again inquired about
reinstatement of the strikers and the Company replied that "our position was as it
always has been, that they would be given due consideration and their applications
would be taken and given the same consideration as any other employee."
The final bargaining session between the parties took place ion May 2. The most
notable development at this meeting was the Union's offer to accept all terms of the
contract theretofore agreed upon and to sign the contract if the Company agreed to
the return of the strikers, to four paid holidays, and to a reduced wage offer
which it tendered. The Union agreed to accept the wages proposed by the Company
on April 4 with respect to maids, porters, front office clerks, the head cook, and
meatcutter, but continued to ask for rates higher than those the Company offered
with respect to the restaurant employees, including waitresses and dishwashers.
The Company's representatives agreed to take up the Union's latest proposals with
higher officials and then advise Yeargan within several days of the Company's
position.52
50 Manager Arnett testified that Baker had informed him that the Union had, at one of
the bargaining sessions, agreed to put into effect immediately the new $90 starting rate for
maids proposed by the Company but he could not identify the meeting or time in question
Baker first testified that he told Yeargan at the February 12 meeting that "we were ready
to put that into effect" and Yeargan replied, "That's a good start, now let's see what we
can get out of you for the rest of them." Later, Baker testified that he could not recall
Yeargan's "exact words" but "it was my assumption, or my understanding, the way I
interpreted the meeting, that that was accepted at that date" Yeargan categorically
denied that he had ever agreed to putting into effect the $90 starting rate "prior to the
wrap-up of the entire contract," stating that the Union had not even given tentative ap-
proval to the proposal prior to the last bargaining session on May 2 (infra). Yeargan's
version of the situation is more plausible and credible and I accept it. Baker himself
testified that Yeargan at one meeting attacked the Company's wage proposal, and he
quoted Yeargan as saying that he would submit the entire offer (including the maids'
wages) "to his people" Furthermore Baker conceded that except for the maids' wages
the Company would not even have considered putting into effect any terms agreed to in
the negotiations until the final contract was signed Finally, and most significantly, it is
strange that if, as Baker testified, the Union had agreed to putting into immediate effect
the $90 starting rate as far back as February 12, why the Company waited until the pay-
roll period ending April 30 to take such action
m Yeargan testified the Company was again late for the meeting due to an alleged plane
delay and the meeting scheduled for 10 a in did not start until about 12 noon Yeargan
further testified that the meeting lasted only about 30.minutes because be could not stay
beyond 12.30 due to a previous engagement to attend a Board hearing and the Company
rejected his request that they return at 4 p in Baker first testified that he did not
remember when they met but he then added that he was "sure" that it was approximately
10 am. Yeargan's more positive recollection of the event makes his version more credible
and I accept his testimony on this point.
e2 The foregoing findings concerning the -Company's promise to refer the matter to higher
company officials is based on Yeargan's testimony. Baker testified that the Company
agreed to study the proposals but he made no reference to any consultations with other
company officials. Baker also testified that the Company agreed to contact the Union to
set another meeting, explaining, however, that it cautioned the Union that the Company
might not be able to meet again until after the hearing in this proceeding because this
hearing was scheduled to start the first week of June and both Baker and Fowler "had a
very busy schedule for the next 30 days " Fowler in his communications to the Union,
referred to hereafter, at no time ascribed the Company's failure to meet with the Union
after May 2 to the forthcoming hearing
THE LITTLE ROCK DOWNTOWNER, INC. 1303
By letter dated May 13, 1963 Fowler informed Yeargan that "my people are
unwilling to make any further counterproposals as to wage rates on the basis of the
argument we have presented in previous discussions." Fowler enclosed a written draft
on the proposals discussed by the parties in the final meetings (including bulletin
boards, job stewards, and visitation rights) for the Union's approval. As to the issue
of reinstatement of the strikers, Fowler indicated that "there should be some area
of discussion out of which we could probably work out an agreement." Fowler
concluded with the statement that "Mr. Baker has been unexpectedly tied up in some
rather pressing problems in some other cities" and, therefore, that he could not
propose a meeting date. He indicated, however, that he expected "to do so as
speedily as possible."
In a reply letter dated May 14, Yeargan protested Fowler's failure to propose a
meeting date, stating that "we have wasted 2 weeks waiting for you to answer our
last proposals" and he requested a meeting on May 17. On May 16, Fowler replied,
again explaining that Baker was unavailable because he was "on very important com-
pany business " Fowler further stated, "I am unable to tell you at this time when
Mr. Baker will be available but I will do so at the earliest moment. You must
remember also that I have a rather large practice which also demands attention.
I cannot for this reason drop everything and rush over to Little Rock at your
command."
On May 20, Yeargan again requested a meeting during that week but the next day,
May 21, Fowler replied that he had commitments in Miami for the rest of the
week, that Baker was still out of town, and that it would be impossible for him to
contact Yeargan until the following week. The parties did not thereafter meet
for further negotiations.
11. Conclusions respecting Respondent's failure to bargain in good faith
a. Applicable principles
It is clear that the obligation to bargain "encompasses the affirmative duty to make
expeditious and prompt arrangements within reason, for meeting and conferring."
J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506. It also
presuppposes that the employer and the Union will bargain "with an open and
fair mind and a sincere purpose to find a basis for 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). This does not, however, means that the parties must necessarily reach
agreement on an entire contract or on any particular issue in the negotiations.
For, the statute specifically provides that the duty to bargain in good faith "does
not compel either party to agree to -a proposal or require the making of a concession."
(Section 8(d).) See N.L.R.B. v. American National Insurance Co., 343 U.S. 395,
402, 404 Normally "the totality of the employer's conduct" must be scrutinized
in order to determine 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. But in some cases the duty to bargain "may be violated without a general failure
of subjective good faith . . A refusal to negotiate in fact as to any subject
which is within Section 8(d), and about which the Union seeks to negotiate, violates
Section 8(a)(5), though the employer has every desire to reach agreement with
the Union upon an overall collective agreement and earnestly and in all good faith
bargains to the end." N.L.R.B. v. Benne Katz, etc. d/bla Williamsburg Steel
Products Co, 369 US. 736, 743. In such situations the employer's actions, even
though taken in good faith, may be so destructive of the bargaining process or
derogatory of the status of the employees' representative as to constitute in itself
an unfair labor practice.
Applying the foregoing principles to the facts in this case, I find, for the reasons
stated below, that the General Counsel by a preponderance of evidence established
that Respondent failed to meet its statutory duty to bargain in several respects but
that he did not establish that Respondent flouted this obligation in other respects.
b. The violations found
(1) Unilateral wage increases
In the Katz case, supra, the Supreme Court held that unilateral changes in wages
and working conditions, without prior consultation with the employees' bargaining
representative, "must of necessity obstruct bargaining, contrary to the congressional
policy" and is a violation of Section 8(a) (5) of the Act, even "without also finding
the employer guilty of overall subjective bad faith." 369 U.S. 736, 747. "It will
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rarely be justified by any reason of substance." (Ibid.) See also N.L.R B v.
Crompton-Highland Mills, Inc., 337 U.S. 217,223-225.
The record shows, as I have found , that Respondent , on at least 11 occasions since
the Union 's certification , granted individual wage increases to various employees,
including restaurant employees and desk clerks . It also put into effect a general
wage increase for one classification of employees-maids-after making the same
offer to the Union in one of the bargaining sessions but as part of a comprehensive
wage proposal covering all employees . As a result , at least six maids received higher
wages. In no case did Respondent see fit to notify or consult with the Union prior
to effectuating the wage changes . It follows that Respondent 's unilateral wage
actions were violative of Section 8 (a) (5) and ( 1) of the Act.
Contrary to Respondent 's contention , the fact that some wage increases were given
for merit or length of service 53 is immaterial . Armstrong Cork Company v.
N.L.R.B., 211 F. 2d 843, 847-848 (C.A. 5); N.L R.B. v. J. H. Allison & Company,
165 F. 2d 766 (C.A. 6), cert. denied 335 U.S. 814. "[T]he raises here in question
were in no sense automatic , but were informed by a large measure of discretion.
There simply [was] no way in such case for a union to know whether there has been
a substantial departure from past practice." Katz case, supra, 369 U.S. 736, 746.54
(2) Unilateral changes respecting the waitresses ' working conditions
Equally unlawful was Respondent 's unilateral promulgation in January 1963, and
thereafter enforcement of a rule requiring its waitresses to remain standing at their
stations unless on regular relief periods . Such action , without prior notice to and
consultation with the Union , likewise tended to subvert the position of the Union as
the employees ' statutory representative and to disparage the bargaining process. Katz
case, supra, at 744; Lloyd A. Fry Roofing Company v. N.L R.B., 216 F. 2d 273,
276 (C.A. 9).
Respondent in its brief seeks to justify its action on two grounds . First, it con-
tends that the rule in question was not in fact "a new rule," pointing out that Trial
Examiner Martin in the prior proceeding ( supra ), found that Supervisor Ventress
had "maintained such a rule " in November 1962-a finding by which I am bound.
Respondent, however, ignores Trial Examiner Martin's further finding that "this rule
broke down in a couple of days because of the hardships it imposed, and when there-
after the waitresses resumed their previous habits, Ventress overlooked it." It is clear,
therefore, that the rule adopted and in effect for 2 days in November 1962 had been
abandoned by Respondent and its revival in January 1963 constituted a new and inde-
pendent action concerning which Respondent was under an obligation to consult with
the Union . I so find.
Second, Respondent contends that, in any event , the rule was adopted to remedy
waitresses ' neglect of customers and as part of "management 's prerogative to make
rules necessary for the orderly operation of its business ." It appears to me that
Respondent 's position misconceives the nature of its rights and obligations under the
Act The statute does not freeze an employer to existing terms and conditions of
employment . It merely requires that he confer in good faith with the employees'
bargaining representative concerning changes in working conditions , on the theory
that joint participation through mutual consent may , in conformity with the overall
statutory purpose, remove possible industrial strife. As the court recently observed
in 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 (C.A.D.C.),
in condemning the unilateral changes there effected by the employer:
"The record does not support Respondent ' s claim that the so-called length of service
raises were "automatic " Insofar as appears , only maids ' wages were fixed on an auto-
matic progression basis under past policy ; when Respondent unilaterally changed maids'
wage rates, only their starting salaries were affected
ea Respondent also seeks to justify some of the wage increases on the ground that the
employees involved were assigned additional or new duties Insofar as the record shows,
only the duties of two employees-Mary Lois Pinkerton and Helen Patterson-were
changed at the time of the increases and one of the three increases to the latter was not
based on any new or changed duties . The increase to Banks may also have entailed a
change in duties as it was substantial--from $ 115 to $150 a month. ( Respondent 's records
list Banks as a parking lot attendant for all payroll periods beginning with March 15-
during which he was hired-although Arnett testified that he was originally hired as a
"clean-up" man and worked as such 1 day) In view of the findings already made regard-
ing the illegality of Respondents unilateral wage increases in other situations , I do not
find it necessary to determine whether the increases as a result of increased duties were
also violative of the Act. See Southern Coach & Body Company, Inc ., 141 NLRB 80.
THE LITTLE ROCK DOWNTOWNER, INC. 1305
The purpose of imposing legal duties upon employers 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
guaranteeing employee participation in decisions relating to wages, hours, terms
and conditions of employment, Congress made a determination that this would
create an environment conducive to industrial harmony and eliminate costly
industrial strife which interrupts commerce.55
'This is not to say that Union's consent is a sine qua non for effecting changes. Once
an impasse is reached, the employer may unilaterally institute any term and condition
of employment which the Union has rejected in the bargaining.
Accordingly, I find that Respondent's unilateral action with respect to the wait-
resses' conditions of employment, as well as its unilateral wage actions, were viola-
tive of Section 8(a)(5) and (1) of the Act.
(3) Respondent's refusals to meet at reasonable intervals and to meet
at all after May 2
Under Section 8(d) of the Act, the duty to bargain collectively includes the obli-
gation "to meet at reasonable times" and confer with a view of reaching agreement.
Section 204 of the Act provides that each party shall "arrange promptly" for con-
ferences and endeavor "expeditiously" to bring about a resolution of disputes over
contract terms. Obviously, there is no particular formula by which to test whether
any given frequency of meetings satisfies the statutory mandate "to meet at reason-
able times." However, the Board has repeatedly admonished that parties to collective
bargaining are obligated to display as great a degree of diligence and promptness in
the discharge of their bargaining obligations as they display in other business affairs
of importance.56 For "Agreement is stifled at its source if opportunity is not
accorded for discussion or so delayed as to invite or prolong unrest or suspicion."
J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506. The reason-
ableness of the intervals between meetings depends, of course, on the particular cir-
cumstances of the case. Under certain circumstances, even a short interval may be
highly prejudicial, if not fatal, to consummation of a contract where the parties are
close to agreement. In such cases, the momentuiJi for settlement of the parties'
differences may be forever dissipated if, after a long recess, they have to start afresh
and once again work themselves up to that degree of bargaining receptivity of mind
essential to the conduct of successful negotiations.
The record in this case shows that a period of 2 months elapsed between the Union's
'first request for a conference on November 9, 1962, and the first meeting held on
January 10, 1963. At the hearing, Company Attorney Fowler attempted to justify
his failure or protracted tardiness in complying with the Union's repeated requests
for a meeting on the ground that he was "swamped" with work and that he and
'Company Vice President Baker were unavailable.57 The parties met altogether
55 The desirability of consulting the Union respecting the rule for the waitresses here in
question is attested by the fact that when it was first promulgated in November 1962, it
caused such hardships that management itself abandoned it When reissued in January,
the Union immediately protested it at the very first bargaining conference, held on Janu-
ary 10. And, as we shall see, the existence of the rule was one of the causes of the
strike called on March 13. Had the parties conferred about the matter, it is not unlikely
that they might have explored alternative ways of remedying the claimed dereliction of
the waitresses . Cf. Katz case, supra, at 744
55 J. H. Rutter-Rex Manufacturing Company, Inc, 86 NLRB 470, 506-508; Radiator
Specialty Company, 143 NLRB 350; Bartlett-Collins Company, 140 NLRB 202
51 Respondent in its brief asks me to ignore the admittedly long delays prior to the first
imeeting on the ground that the complaint alleges dilatory tactics by Respondent only
since on or about January 10 I cannot agree with this position In the first place, even
if I were barred from making unfair labor practice findings on the basis of events prior to
January 10, such events are nevertheless relevant background to shed light on the char-
acter of Respondent's conduct after January 10. See Local Lodge No 1424, International
Association of Machinists , AFL-CIO; et al. (Bryan Manufacturing Co.) v N L R B ,
362 US 411 Secondly, Respondent litigated the issue of its dilatory conduct prior, as
well as subsequent, to January 10. Indeed, it stipulated with the General Counsel to the
admission of documents (General Counsel Exhibits Nos 2(c), (d), (f), (g), and (h))
bearing on this very point. See N.L.R.B. v. Mackay Radio & Telegraph Co., 304 U.S 333,
350; Carpinteria Lemon Association , et al. v. N.L R.B , 240 F. 2d 554 , 558 (C.A. 9) ;
The M. H. Rstzwoller Co. v. N.L.R.B., 114 F. 2d 432, 434-435 (C.A. 7).
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10 times between January 10 and May 2, 1963-with lags of 11, 3, 11, 8, 14, 17,
20, 15, and 13 days between meetings. Respondent did not even attempt to explain
its refusal to meet with the Union in the initial strike period (March 15 to April 4)-
a 20-day interval-during which the Union on three separate occasions pleaded
for a meeting 58 In view of the long intervals between meetings it is not surprising
that the parties here frequently found it necessary to review, refresh themselves on,
and rehash issues previously settled, and to "reagree" to them. After the last
meeting on May 2, the Union again repeatedly requested a further meeting, but the
Company on each occasion informed the Union that Baker, Fowler, or both were
busy with other matters or were out-of-town or about to go out of town. The May 2
meeting was a most crucial one in the negotiations since the parties at that meeting
came closer to agreement on a contract than at any prior stage in the negotiations.59
Respondent thereafter never set a date for bargaining, although it stated it would let
the Union know of the Company's availability to meet ".as speedily as possible."
Based on the entire record, and particularly on Respondent's good-faith bargaining
at the times it did meet with the Union (discussed infra), I am persuaded that
Fowler's failure to meet with the Union at closer i ntervals-and even his failure at
times to respond to the Union's bargaining requests-may, as Respondent urges,
well have been due to his and Baker's preoccupation with business matters rather
than a studied attempt to avoid ultimate consummation of a collective-bargaining
contract. Fowler is a busy labor attorney, upon whose time clients are constantly
making demands. Company Vice President Baker also appears to be a busy executive
upon whose services Respondent heavily relies. But, if this is so , or to the extent that
it is so, it is no answer to Respondent's legal obligation to furnish a representative
to meet with the Union at reasonable intervals.60 The Act does not permit a party
to hide behind the crowded calendar of the negotiator whom he selects, whether he
be a busy labor attorney or an overworked company officer. Radiator Specialty
Company, 143 NLRB 350. Whether or not Respondent's action amounted to
deliberate procrastination , the result was the same, namely, it generated unrest and
suspicion , obstructed and delayed the conclusion of a bargaining contract, and
disparaged the Union's status as bargaining representative. Applicable here is the
observation made in "M" System, Inc., Mobile Home Division Mid-States Corpora-
tion, 129 NLRB 527, 549:
The record here quite clearly supports a finding that the Respondent, in
arranging meetings with- the Union failed to display the degree of diligence
that proper performance of its bargaining obligations required. This is so
whether or not the delays were inspired by a deliberate scheme to engage of the
dilatory tactics. One may sympathize with the problems of the Respondent's
negotiator in fitting the negotiating meetings into the schedule of his busy law
practice, but this provides the Respondent with no legal excuse for the con-
sequent inordinately long delays tending to impair employee statutory rights.
Labor relations are urgent matters too. If [counsel's] other activities made
it impossible for him to devote adequate time to reasonably prompt and
continuous negotiations , it was the Respondent's obligation to furnish a rep-
representative who could. The duty to bargain in good faith includes the duty
to be available for negotiations at reasonable times as the statute requires.
That duty is not discharged by turning over the conduct of negotiations to one
whose other activities make him not so available See, Cummei-Graham Com-
pany, 122 NLRB 1044; Derenson's, 104 NLRB 273.
es The "need for carrying out [the] obligation [to bargain] when a strike is in progress
is all the greater in order that a peaceful settlement of the dispute may be reached "
1V L R.R v. Pecheur Lozenge Co., Inc., 209 F. 2d 393, 403 (CA 2), cert denied 347
U S 953.
"It was at this meeting that the Union significantly reduced its wage demands and
offered to accept all terms agreed upon if the Company would agree to some wage con-
cessions, four paid holidays, and return of strikers The Company's representatives them-
selves apparently viewed this development as a critical step in breaking the deadlock, for
they agreed to take up the Union's offer with the highest company officials. Fowler later
informed the Union that Its new proposal was not acceptable to the Company, but indi-
cated that with respect to at least one important issue-reinstatement of strikers-"there
should be some area of discussion out of which we would probably work out an agreement "
"Baker testified that he had no prior bargaining experience, the negotiations in this
case being the first in which he participated
THE LITTLE ROCK DOWNTOWNER, INC. 1307
Accordingly, I find that in the circumstances of this case, the intervals between
the bargaining meetings were not reasonable; that Respondent was responsible for
the delays between meetings; 61 and that Respondent by its conduct impeded bargain-
ing discussion and negotiation and ultimate agreement on a collective-bargaining con-
tract. I further conclude that Respondent's failure to heed the Union's requests for
meetings at shorter intervals and its refusal to meet with it after May 2, like its
unilateral actions respecting wages and working conditions, manifested a disregard
of the rights of the employees' bargaining representative.
c. Violations not found
(1) Respondent's alleged "surface bargaining"
The complaint alleges that Respondent has since on or about January 10, 1963,
engaged in "surface bargaining" without any intent to reach agreement. General
Counsel in effect contends that Respondent entered into the negotiations with a
predetermined intention never to reach agreement on a contract and that it merely
went through the motions of bargaining.
It cannot be gainsaid that there is evidence in this record, particularly Respondent's
actions in delaying bargaining meetings , which would tend to support such contention.
However, on the basis of Respondent's conduct at the bargaining table-including
its readiness to make counterproposals, its willingness to compromise on important
issues, and its readiness to supply bargaining information-I must find that a pre-
ponderance of the evidence does not establish that Respondent engaged only in
superficial or specious bargaining with a mind "hermetically sealed against the thought
of entering an agreement" (N.L.R B. v. Montgomery Ward & Co., 133 F. 2d 676,
684 (C.A. 9) ). Thus, the record shows that shortly after receiving the Union's
contract proposals, Respondent expeditiously submitted its own counterproposals. In
compliance with the Union's requests, Respondent supplied the Union with job
classification information, wage data, and vacation pay data without delay. Re-
spondent studied each and every one of the Union's proposals and yielded and
compromised its position on many matters. Even before the strike there was sub-
stantial agreement between the parties as to seniority, the grievance procedure, bind-
ing arbitration, no-strike and no-lockout, promotions, and discharge and reinstate-
ment rights. Further agreement was later reached on other matters, some of which
were quite controversial and of vital concern to a labor organization, such as job
steward privileges and the wearing of union buttons while on duty. It is true that
Respondent held its ground on the major "money" matters such as wages, paid
holidays, and insurance, but Respondent in each case explained and argued its posi-
tion. Yeargan himself testified that insofar as the bargaining was concerned, the
Union prior to the strike took issue "only" with Respondent's unilateral action and,
as he put it, "we did not know, prior to March 13th, that an unfair labor practice
or refusal to bargain situation existed at the bargaining table." In my view, none
existed thereafter either.
This is, therefore, not a case where the employer "fail[s] to do little more than
reject" the union's demands (N.L R B. v. Century Cement Mfg. Co., Inc., 208 F 2d
84, 86 (C.A. 2) ), or offers merely "nominal and illusory `concessions' " (N.L R.B. v.
Marion G. Denton and Valedia W. Denton, d/b/a Marden Mfg. Co., 217 F 2d 567,
570 (C.A. 5), cert. denied 348 US. 981). While Respondent maintained a position
of firmness with respect to wages and other money matters, something more than
mere hard, or hardheaded, bargaining must be shown to justify a finding or violation.
N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229, 232 (C A 5) It is
"clear that the Board may not, either directly or indirectly, compel concessions or
otherwise sit in judgment upon the substantive terms of collective bargaining agree-
ments." N.L.R.B. v. American National Insurance Co, 343 U S. 395, 404
Accordingly, I conclude that General Counsel did not establish the allegation in
the complaint that Respondent violated Section 8(a)(5) and (1) of the Act by
81 In answer to a leading question on direct examination, Fowler appeared to imply that
International Representative Yeargan, as well as he and Baker, was responsible for the
delays. It is plain from the record that Yeargan was quite eager to meet with Respondent
at all times, and I so find Insofar as appears, Yeargan did cut short one meeting in order
to attend a Board hearing but even then he offered to make up the time Respondent
admittedly appeared late for a number of meetings due to plane trouble Be that as it
may, my findings respecting Respondent's dilatory conduct are based on the frequency
with which it was willing to meet rather than on the length of time it was willing to
devote to meetings once it met
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaging in surface bargaining or merely going through the motions of bargaining
at the bargaining table .62
2. Respondent's failure to furnish the striker replacement list
The complaint alleges that Respondent unlawfully refused to provide the
Union with the names of the striker replacements although requested to do so during
the post-strike negotiations. The credible evidence establishes that the Union did
not give the Company any reason for its request, but at the hearing Yeargan testified
that he requested the information "primarily" because he "needed to contact these
people [the replacements] for the purpose of signing them up in the Union" and,
"secondarily," because "we are the collective-bargaining agent of the employees and
we have the right to have the list." 63 The Company during the negotiations denied
the Union's request for the replacement list on the ground that the Union had filed
unfair labor practice charges with the Board.
Whether or not Respondent was under a legal duty to supply the information (see
N.L.R.B. v. E. A. Taormina, et al., d/b/a Taormina Company, 207 F. 2d 251, 254
(C.A. 5), to the effect that there is such a duty), the basic question remains as to
whether the Union was entitled to the information in the first place. The law is well
settled that an employer is under a statutory obligation to furnish the employees'
bargaining representative with such information as is essential to intelligent bargain-
ing. N.L.R.B. v. Truitt Mfg. Company, 351 U.S. 149; J. I. Case Company v.
N.L.R.B., 253 F. 2d 149, 152-153 (C.A. 7). A striker replacement list would appear
to be quite relevant in negotiating the question of return of unreplaced strikers in
an economic strike (cf. Oklahoma Rendering Company, 75 NLRB 1112, 1113), or
in determining whether the employer had accorded special or favored treatment to
replacements to the detriment of strikers. (N.L.R.B. v. Erie Resistor Corp., et al.,
373 U.S. 221). On the other hand, it would seem that an employer might well be
within his rights in refusing to supply such information where there is justifiable fear
that the information may be used for an illegitimate purpose as, for example, to
intimidate or take reprisals against "scabs" (cf. National Carbon Division, Union
Carbide and Carbon Corporation and National Carbon Company, Inc., 100 NLRB
689, 694-697).64 Nor would it appear that an employer is ordinarily required to
62 In reaching the foregoing conclusion, I have not overlooked the fact that the evidence
in the prior proceeding established, as found by Trial Examiner Martin and the Board,
that in July 1962 (before the first election and 6 months before the events in this case),
Respondent had threatened never to sign a contract with the Union and resorted to other
forms of restraint and coercion. I find that Respondent did not carry out this threat at
the bargaining table (cf. Radiator Specialty Company, 143 NLRB 350)-that is, when it
was actually meeting with the Union.
The General Counsel sought to adduce testimony in the instant proceeding that Company
Attorney Fowler, just prior to the October 1962 election, told it group of employees that
the Company would know who voted for a union; and that Fowler, after showing the
employees some newspaper clippings, led them to believe that they would lose their jobs
just as Respondent's Kansas City employees had lost their jobs after a strike at that place
Fowler denied making any coercive remarks, stating that he only explained to the em-
ployees the legal consequences of an economic strike like that in Kansas City where the
employees were replaced the first day of the strike and then lost their employee status.
I credit Fowler's version of the incident. It is hardly likely that Fowler, at attorney
of many years' experience in labor relations, would openly communicate an outright threat
such as that attributed to him, and I do not believe that he did Moreover, Fowler's
version is consistent with that of employee Bertha Foster, a General Counsel witness, who
quoted Fowler as saying no more than if the Union won the election and a strike took
place, they would be replaced
e3 Later Yeargan added, without elaboration, that he also "needed it for wage scales,"
an obvious afterthought.
64 In addition to the reason advanced by Respondent for its refusal to submit the re-
placement list during the negotiations-that the Union had filed charges--Fowler testified
at the hearing that "management" had advised him that "some of the union people" had
threatened to assault the replacements The credible evidence does not support a finding
that such threats were made by any "union people " And I do not credit the testimony
of Manager Arnett that employees had informed him of such threats
THE LITTLE ROCK DOWNTOWNER, INC. 1309
supply a union with a list of its employees solely to assist the union in signing up
members. In short, a union's entitlement to striker replacement information, like
other information, depends on "the circumstances of the particular case." N.L.R.B.
v. Truitt Mfg. Co., 351 U.S. 149, 153-154.
In the instant case there is no dispute that Respondent had furnished the Union
with all requested bargaining information. This included employee classifications,
wage data, and vacation payments Nor, as I have found, did the Union divulge
to the Company the purpose of the requested replacement list at the time of its
demands. The Union itself took the position that the strike was an unfair labor
practice strike and it so informed Respondent prior to and during the strike. As
found infra, the strike was in fact an unfair labor practice strike and, as such, the
strikers were entitled to reinstatement upon request, even if to do so required the
discharge of the replacements. As also found infra, the strikers did make a valid
and unconditional reinstatement request on March 14, even before the Union's initial
request for the replacement list on March 15. Under the circumstances, I find that
the question of replacements was neither necessary nor relevant to bargaining by
the Union. See Midwestern Instruments, Inc., 133 NLRB 1132, 1137; National
Carbon Division, etc., 100 NLRB 689, 694-697.
Accordingly, I conclude that Respondent's failure to make the replacement list
available to the Union was not violative of the Act.
3. Respondent's failure to produce a promised summation of bargaining progress
In addition, the complaint alleges that Respondent breached its statutory bar-
gaining obligation by failing to present to the Union, as promised, "a summation of
bargaining progress and proposed contractual language of items heretofore not agreed
to." As already found, at the February 12 bargaining conference, Company At-
torney Fowler volunteered to prepare a composite of the Union's and the Company's
contract drafts which, as Yeargan described it, had been marked up with "many
notations" and which were "a little scarred up" from constant use at the bargaining
table. As further found, the new draft was to embody no more than the items agreed
to from both drafts and those still in dispute-in short, it was to be a clean up-to-date
draft for use at future meetings. Although Fowler promised to try to prepare the
document by the next meeting which was held on February 26, Fowler did not in
fact produce it until the April 4 meeting-37 days late-despite the Union's request
therefor in the intervening period, because, as Fowler explained, he was busy and
occupied with other matters. The new document did not contain any significant new
proposals, although along with this document Respondent presented at that same
meeting a written wage proposal.
I find that although Respondent, as in the case of the scheduling of bargaining
sessions already discussed supra, was neglectful and dilatory in presenting the com-
posite draft, its dereliction in this instance was not of such character as to stifle or
impede the negotiations, considering the nature of the promised document. In my
view, the document which Fowler undertook to compose and produced tardily en-
tailed substantially nothing more than a mechanical clerical job and one, as Yeargan
admitted at the hearing, which he himself could readily have done. Since the docu-
ment was not intended to incorporate any significant new matter (cf. Young Manu-
facturing Company, Inc., 143 NLRB 189), and the Union could well determine the
status of the negotiations from the antecedent events, I conclude that the parties could
easily have continued meaningful bargaining without it. Cf. N.L.R.B. v. Mark R.
Clegg & Mary M. Clegg, d/b/a Clegg Machine Works, 304 F. 2d 168, 176 (C.A. 8).
Hence, Respondent's delay in producing the promised draft, although not condoned,
did not constitute a failure, or evidence of failure, to bargain in good faith.
For all of the foregoing reasons, I conclude that General Counsel did not establish
the allegations in the complaint that Respondent violated Section 8(a) (5) of the Act
by not timely producing a promised summation of bargaining progress, or by refus-
ing to produce the requested strike replacement list. Nor did Respondent violate
this section by engaging in mere surface bargaining at the bargaining table.
E. Respondent's refusal to reinstate the strikers
1. Sequence of events
As related in detail in section D, (5), supra, on March 12, 1963, the Union's
membership voted to strike after receiving reports from International Representative
Yeargan concerning what he described as the Company's unilateral wage actions, its
unilateral change in the waitresses' working conditions, the "series of discharges"
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effected by it, its action in enticing "committee people out of the Union ," its failure
to furnish a promised summary of the progress of the negotiations , and its refusal to
meet with the Union. As further noted, the next day, March 13, the employees
struck and some of them carried picket signs and distributed handbills broadcasting
the Union 's claims that the Company was "unfair " to its employees , that it had re-
fused to bargain in good faith , that it was paying its employees low wages, and that
it "has discharged known union supporters."
Sometime in the afternoon of the same day, March 13, Yeargan talked to Com-
pany Attorney Fowler on the telephone. Yeargan complained to Fowler that Arnett
was "firing some of the strikers." 65 Fowler assured Yeargan that the Company did
not and would not fire any strikers as he "certainly . [knew] better than to fire
strikers during a strike ." Yeargan then asked Fowler if he could set up a bargaining
meeting. Fowler agreed to do so and in a later conversation , at approximately
5 p.m. that day, it was agreed to meet on Friday , March 15, at 10 a.m.
After discussing the matter with the Union 's attorney, Yeargan instructed the em-
ployees to return to work the next day and Yeargan sent the following identical
telegrams to Fowler and the Company on the evening of March 13:
Re Downtowner Motel. As to our telephone conversation this P.M. This will
confirm Friday 10 AM March 15th as agreeable meeting date . Also all striking
will cease as of this date March 13th . All employees will report to work
March 14th AM 1963.
The next day, March 14, at 12:20 p.m. the Union's attorney, James E. Youngdahl,
dispatched a telegram to Respondent which in pertinent part read as follows-
This is to advise that the strike of your employees under the auspices of this
Union was terminated on March 13, 1963. Accordingly we hereby apply un-
conditionall [y] for reemployment of all the strikers to their old jobs, or, if the
old jobs are unavailable, to any jobs. Please advise me or Earl Yeargan im-
mediately of the desired reemployment procedure
At 1:30 p.m. that day Arnett informed Youngdahl that "all striking employees whose
jobs have not been filled have already been reinstated . There are no further
vacancies."
The next day, March 14, all strikers involved in this proceeding 66 reported to
work . Each was interviewed by Arnett, sometimes in the presence of another
company official . 67 Arnett told each employee that he would have to sign the
following statement which Arnett prepared on instructions from Company Attorney
Fowler, before he could even talk to the employee:
I -------------------- hereby make an unconditional offer to return to
work at the Downtowner Corporation , having either gone on strike or refused
to cross the picket line during a strike called by the Hotel Restaurant Em-
ployees Union at 5:00 a in., March 13, 1963.
I agree and understand that this offer to return to work is without reserva-
tion on my part.
Some of the employees questioned Arnett as to the meaning of the statement , explain-
ing that they did not understand the term "unconditional ," whereupon Arnett told
the employee in question to seek "legal advice." Some employees refused to sign
the document while others signed it. Among the latter were several who protested
their inability to comprehend its meaning . Arnett testified that even in those cases
in which the employee signed he told him that he had been replaced.
As already detailed in section D , ( 5), supra, at a union meeting held on March 17,
the employees voted to resume the strike the next day in protest against the
Respondent 's refusal to reinstate all strikers.
The record shows, and I find, that on and after March 13, Respondent replaced
the strikers, most-but not all-on a permanent basis. Some of the replacements
65 Three strikers ( Bankhead , Harris , and Mitchel ) had earlier reported to Yeargan that
Manager Arnett had discharged them because they refused to cross the picket line
Yeargan and one of the employees went to the offices of the Board to file charges alleging
that the three men were discriminatorily discharged
66 Gerald Armstrong, Joe Bankhead , Stanley Banks, Yvonne Baxter , Jane Bennett,
Bertha Foster , Exye Glenn , Earnest Harris, Jr, Rose Henson, Albert Jones , Birtee M.
Mitchel, Mildred Mullings, Freddie Smith , Patiicia Stapp, Laura Tackett , Loraine Thomas,
Martha Wartham, Clarence Watson, and Arcie Weaver.
67 Thus Atkins , the restaurant manager in charge of waitresses , joined in the interview
when a waitress applied to return to work. Arnett was Atkins ' superior.
THE LITTLE ROCK DOWNTOWNER, INC. 1311
later left Respondent's employ and were replaced by new employees. Respondent
also recalled several strikers.sa Assistant Manager Atkins admitted on cross-
examination that "one of the reasons" he did not recall the strikers working in the
kitchen was because they were on strike. Manager Arnett and Supervisor Ventress
testified that the reason they did not recall strikers was that they were allegedly less
qualified than the replacements 69
Conclusions Respecting Respondent's Failure To Reinstate the Strikers
Respondent does not dispute the well-established principle that if the strike called
on March 13, 1963, was an unfair labor practice strike, Respondent was under a legal
duty to reinstate the strikers upon their unconditional request, even if to do so re-
quired it to discharge the strikers' replacements. Mastro Plastics Corp. and French-
American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270, 278. Respondent's basic
contention is that the strike was economic in character designed to exert economic
pressure upon Respondent in the bargaining and, therefore, that the strikers were
not entitled to reinstatement because they had been replaced.
As Respondent aptly puts it in its brief, "All too often there is no single reason
but rather a combination of reasons for striking." The instant case is no exception.
I have no doubt that the desire to wrest economic concessions from Respondent had
entered into the employees' decision to strike, and I so find. The record further
shows that other factors-acts erroneously attributed to Respondent as unfair labor
practices, such as the discharge of certain employees and Respondent's refusal to
furnish the promised summation of bargaining progress-were likewise contributing
factors. But the record also establishes, and I find, that the strike was caused in
substantial part by Respondent's acts in discharging Jessie Moseley, in granting wage
increases without consulting and bargaining thereon with the Union, and in uni-
laterally changing the working conditions of its waitresses-all of which, as I found,
were unfair labor practices. That the Union was deeply concerned by Respondent's
actions on these matters, is attested not only by International Representative
Yeargan's reports thereon to the Union's executive board and the membership prior
'a Arcie Weaver was called back on March 17 when an employee hired as a replacement
left, she again worked March 18. Mildred Mullings was also recalled on March 17
Martha Wartham was recalled April 1
ca Respondent adduced considerable evidence as to the nature of the replacements made-
1 e , whether they were permanent or temporary-when they were first hired, and which
strikers they had replaced Respondent also offered payroll records in evidence for this
purpose. The information on replacements was relevant to Respondent's defense that the
strike was economic in character In view of the disposition hereinafter made as to the
nature of the strike-that it was an unfair labor practice rather than an economic
strike-I do not deem it necessary to pass on the nature of the replacements, although it
is quite clear from the testimony of three employees called as witnesses by the General
Counsel (waitresses Mildred Smith and June Thompson-who regularly worked and con-
tinued to work at other jobs during their brief period of employment-and busboy Joseph
Nunn, a 10-year-old schoolboy who worked on a part-time basis)-that at least these
three were temporary replacements
Prior to Respondent's attempt to introduce its evidence on replacements, General Counsel
moved to bar Respondent from adducing such evidence on the ground that it had refused
to furnish the same type of evidence to General Counsel in response to subpenas. Re-
spondent opposed the motion on the ground that, although the information was relevant
to its own defense, it was not relevant to General Counsel's case I reserved ruling on
the motion and permitted Respondent to adduce the evidence in support of its defense,
subject to a subsequent ruling on General Counsel's motion I now rule that a Trial
Examiner may in the exercise of discretion preclude a party who refuses to produce evi-
dence pursuant to subpena, from subsequently adducing such evidence in support of his
own defense, and, contrary to Respondent's contention, that the fact that the General
Counsel could have taken steps to enforce the subpena in an appropriate judicial proceed-
ing under Section 11 of the Act is immaterial. Indeed, a party who has refused to produce
evidence in his possession under these circumstances may be forbidden to use the evidence
to contradict the secondary evidence adduced by the other party on the matter in issue.
See 4 Wigmore, Evidence (3d ed 1940), § 1210, 32 Corpus Juris Secundum (1932),
Evidence, sec. 834 However, in the circumstances of this case, I exercise my discretion
to deny General Counsel's motion It is additionally observed, that even if I had granted
the motion-and excluded Respondent's evidence on replacements-my ultimate conclu-
sions in the case would in no way have been affected, in view'of my finding that the strike
was an unfair labor practice strike and the strikers are entitled to reinstatement even if
Respondent had replaced all of them.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the strike, and by its reference to these actions in its notification of the strike
action to Respondent and in the picket signs and handbills used during the strike,
but also by the fact that the Union had protested Respondent's actions concerning
Moseley and the waitresses in the bargaining sessions and, indeed, had filed charges,
based thereon immediately after the events. Yeargan likewise inquired about
Respondent's wage actions in one of the bargaining sessions and apparently dropped
the matter only when assured by the Company that no wage raises had been granted.
Later, however, upon learning otherwise directly from the employees, he filed charges
on these matters also.
In view of all of the foregoing, the "strike, which in fact did take place, was .
an unfair labor practice strike, even though other reasons were also present, since
one of the reasons for it was to protest an unfair labor practice [ citing cases]."
N.L R.B. v. West Coast Casket Company, Inc., 205 F. 2d 902, 907 (C.A. 9). See
also N.L.R.B. v. Fitzgerald Mills Corporation, 313 F. 2d 260, 269 (C.A. 2), and
cases cited. Accordingly, Respondent was legally obligated to reinstate the strikers
when they applied for reinstatement on March 14, irrespective of the question
whether they had been replaced prior thereto.
In its brief Respondent does not question the validity of the employees' reinstate-
ment request. I find that all strikers applied for unconditional reinstatement when
they appeared ready to work at the motel on March 14. Although there is no evi-
dence that all of the strikers requested unconditional reinstatement at that time in
haec verbae, it is clear from the Union's telegram dispatched on the evening of
March 13 and from the employees' appearance at the motel the next morning that
the employees had made known their readiness to work and that Respondent so
understood. In any event, Manager Arnett testified that he would not even speak to
any employee unless he first signed the written request for unconditional reinstate-
ment prepared by Respondent, and the employees were thus precluded from making
the unconditional application in their own words?o Finally, the Union's attorney
later the same day, March 14, made a clear and unequivocal request for reinstate-
ment for all strikers in haec verbae?r
I further find that after Respondent failed to reinstate all strikers, the employees
resumed the strike on March 18, primarily because of Respondent's unlawful refusal
to reinstate the strikers and, hence, that the strike thenceforth continued as an unfair
labor practice strike.
In view of all of the foregoing, I find that Respondent, by rejecting the strikers'
application for reinstatement on March 14, violated Section 8(a)(3) 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. More specifically, I shall
recommend that Respondent be ordered to bargain collectively with the Union, upon
request, concerning changes in terms and conditions of employment prior to effecting
such changes, including the change heretofore made regarding its waitresses' working
conditions which has aroused considerable employee dissatisfaction; to meet with
and bargain collectively with the Union, upon request, with reasonable frequency
and promptness; to offer Jessie L. Moseley immediate employment at the same or
substantially equivalent position at which she would have been employed absent the
discrimination against her, without prejudice to her seniority or other rights and
privileges, and make her whole for any loss of earnings she may have suffered by
reason of the discrimination against her, by payment to her of the sum of money
she would have earned as wages, absent the discrimination, from the date of the
70 Neither Arnett, nor Fowler, testified why the Company insisted upon the execution of
the statement I find that there was no legal requirement on the part of the strikers to
sign this document because (1) the employees had already made proper application, and
(2) the document was composed by a party in an adverse position which could, and did,
arouse suspicion among the employees, and as to at least some employees-untutored in
the verbiage of labor relations-the document was not even meaningful Furthermore,
I find that the execution of the document would have been a futile gesture, for even those
who signed it were summarily denied reinstatement.
71 In view of my findings with respect to the employees' right to reinstatement as un-
fair labor practice strikers after making unconditional request for reinstatement on
March 14, I do not find it necessary to pass upon the allegation in the complaint that
respondent on March 13 or 14, discharged employees Joe Bankhead, Birteo Mitchel,
Earnest Harris, and Martha Wartham because they engaged in the strike. It is clear, as
the employees testified, that even if not discharged they would not have crossed the picket
line to enter the motol.
THE LITTLE ROCK DOWNTOWNER, INC. 1313
discrimination to the date of recall, less net earnings during said period; to offer to
all the strikers named in the complaint and also in Appendix A attached to this
Decision, who have not already been reinstated, immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging, if necessary, any replacements
in order to provide work for the strikers; and to make whole all strikers named in
Appendix A for any loss of earnings they may have suffered by reason of the dis-
crimination against them, by payment to each of a sum of money equal to that
which each normally would have earned as wages from 5 days after the strikers'
unconditional request for reinstatement on March 14, 1963, to the date of their re-
instatement or Respondent's offer of reinstatement, less the net earnings of each
during such period. The backpay provided herein shall be computed in accordance
with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Interest shall
be added at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138
NLRB 716.
In view of the fact that the unfair labor practices committed are of a character
striking at the roots of employee rights safeguarded by the Act, I shall also recom-
mend that Respondent cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Little Rock Downtowner, Inc., of Little Rock, Arkansas, is an employer
engaged in commerce within the meaning of the Act.
2. Hospital-Hotel-Motel & Restaurant Employees Union, Local 200, affiliated with
Hotel, Restaurant & Bartenders International Union, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
3. The above-named Union on November 7, 1962, and at all times since, has been
the exclusive representative within the meaning of Section 9(a) of the Act, of the
employees of Respondent in an appropriate unit.
4. Respondent, in violation of Section 8(a)(5) of the Act, failed and refused to
bargain collectively with the Union by unilaterally granting wage increases to its
employees; by unilaterally changing the terms and working conditions of its wait-
resses; and by failing and refusing to meet with the Union at reasonable intervals.
5. Respondent did not violate Section 8(a)(5) of the Act by engaging in surface
bargaining or merely going through the motions of bargaining at the bargaining
table; by failing to make a strike replacement list available to the Union; or by fail-
ing to supply to the Union a promised summation of bargaining progress.
6. Respondent, in violation of Section 8(a)(3) of the Act, discriminatorily re-
fused to reemploy Jessie L. Moseley because of her suspected union sympathies or
activities.
7. The strike, which commenced on March 13, 1963, and after its abandonment
resumed on March 18, 1963, was caused in substantial part by Respondent's unfair
labor practices, and hence was an unfair labor practice strike.
8. Respondent, in violation of Section 8(a)(3) of the Act, has failed and refused
to reinstate unfair labor practice strikers, upon their unconditional request, thereby
discriminating in regard to their hire and tenure of employment and discouraging
membership in the labor organization hereinbefore mentioned.
9. Respondent, by the conduct described above in paragraphs 4, 6, and 8, also
interfered with, restrained, and coerced its employees in the exercise of rights guaran-
teed by Section 7 of the Act, thereby violating Section 8(a) (1) of the Act
10. Respondent did not violate Section 8(a)(1) of the Act by the alleged conduct
of one of its supervisors or agents in attempting to secure the withdrawal of an em-
ployee from the Union and from the Union's bargaining committee with promises
of benefits.
11. The unfair labor practices described above in paragraphs 4, 6, 8, and 9 are
unfair labor practices affecting commerce within the meaning of Section 2(6) and (7)
of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that Respondent, The Little Rock
Downtowner, Inc., of Little Rock, Arkansas, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Instituting changes in the terms or conditions of employment in the appro-
priate unit without first notifying, consulting, and bargaining with Hospital-Hotel-
734-070-64-vol. 145-84
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Motel & Restaurant Employees Union, Local 200, affiliated with Hotel, Restaurant &
Bartenders International Union, AFL-CIO, as the exclusive representative of its em-
ployees in the appropriate unit described below:
All regular full-time and part-time employees of Little Rock Downtowner,
Inc., Little Rock, Arkansas, including front office employees, porters, cleanup
men, maids, waitresses, cooks, cashiers, dishwashers, potwashers, and room
service employees, but exclusive of office clerical employees, professional em-
ployees, watchmen and guards, and supervisors as defined in the Act.
(b) Refusing or failing to bargain collectively with the above-named Union by
not meeting for contract negotiations at reasonable frequency and with reasonable
promptness.
(c) Discouraging membership in the above-named Union, or any other labor
organization of its employees, by refusing to hire employees because of their union
or suspected union membership and activities, or refusing to reinstate unfair labor
practice strikers upon their unconditional request, or by discriminating against em-
ployees or applicants for employment in regard to their hire or tenure of employment
or any term or condition of their employment.
(d) In any other manner interfering with, restraining, or coercing employees in
the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for .the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive bargaining representative of its employees in the above-described appro-
priate unit with respect to the change heretofore made regarding the working
conditions of its waitresses
(b) Upon request, meet with and bargain collectively with the Union with reason-
able frequency and promptness concerning the negotiation of a contract
(c) Offer Jessie L. Moseley immediate employment at the same or to a substan-
tially equivalent position at which she would have been employed had she not been
discriminated against, and make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her, in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Offer to all strikers whose names are listed in the attached Appendix A, im-
mediate and full reinstatement to their former or substantially equivalent positions,
and make them whole for any loss of pay each may have suffered because of the
discrimination against him, or her, in the manner set forth in the section of this
Decision entitled "The Remedy."
(e) 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 ascertain
the amount of backpay due under the terms of this Recommended Order.
(f) Post at its motel in Little Rock, Arkansas, copies of the attached notice
marked "Appendix B " 72 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 to insure that said notices are not altered, defaced, or covered
by any other material.
(g) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the receipt of this Decision, what steps the Respondent has taken to
comply therewith.73
79 In the event that the 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"
41 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."
THE LITTLE ROCK DO`VNTOWNER, INC. 1315
It is further recommended that the complaint be dismissed in all other respects.
APPENDIX A
Gerald Armstrong Exye Glenn Patricia Stapp
Joe Bankhead Earnest Harris , Jr. Laura Tackett
Stanley Banks Rose Henson Loraine Thomas
Yvonne Baxter Albert Jones Martha Wartham
Jane Bennett Birtee M. Mitchel Clarence Watson
Bertha Foster Mildred Mullings Arcie Weaver
Freddie Smith
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that:
WE WILL NOT change any terms or conditions of employment in the ap-
propriate bargaining unit without first consulting and bargaining with Hospital-
Hotel-Motel & Restaurant Employees Union, Local 200, affiliated with Hotel,
Restaurant & Bartenders International Union , AFL-CIO, concerning the pro-
posed changes . The bargaining unit is:
All regular full-time and part -time employees of the Little Rock Down-
towner, Inc., Little Rock , Arkansas , including front office employees,
porters, cleanup men, maids, waitresses , cooks, cashiers , dishwashers, pot-
washers, and room service employees , but exclusive of office clerical em-
ployees, professional employees , watchmen and guards, and supervisors
as defined in the Act.
WE WILL, upon request, bargain with the above Union with respect to the
changes we heretofore made regarding the working conditions for waitresses.
WE WILL, upon request, meet and bargain with the above Union with reason-
able frequency and promptness concerning the negotiation of a contract.
WE WILL NOT refuse to reemploy or reinstate , and we will not in any other
manner discriminate against, employees or applicants for employment because
of union or suspected union membership and activities , or because they en-
gaged in a lawful strike.
WE WILL NOT in any other manner interfere with, restrain , or coerce em-
ployees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer Jessie L. Moseley immediate employment at the same or
substantially equivalent position she would have been employed had she not
been discriminated against, with backpay for any wages she lost as a result
of the discrimination against her.
WE WILL offer all unfair labor practice strikers whose names are listed in
Appendix A attached to the Trial Examiner's Decision, immediate rein-
statement to their former or substantially equivalent positions and make them
whole for any loss of pay each may have suffered as a result of the discrimination
against them.
All our employees are free to become or refrain from becoming members of the
above-named labor organization.
THE LITTLE ROCK DOWNTOWNERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify Jessie L. Moseley and all employees named in Appendix A
to the Trial Examiner 's Decision, if any are presently serving in the Armed Forces
of the United States, of their right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended , after discharge from the Armed Forces.
1316 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, Seventh
Floor, Falls Building , 22 North Front Street, Memphis, Tennessee , Telephone
No. 527-5451 , if they have any question concerning this notice or if they have
information that its provisions are being violated.
Baldwin County Electric Membership Corporation and Inter-
national Brotherhood of Electrical Workers, Local No. 505,
AFL-CIO. Case No. 15-CA-2208. January 29, 196.E
DECISION AND ORDER
On July 12, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report 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 Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and 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 Members
Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report , the Respondent 's exceptions and brief , and the en-
tire record in this case , and finds merit in some of the exceptions of
the Respondent.' Accordingly, the Board adopts the findings, con-
clusions, and recommendations of the Trial Examiner only to the
extent consistent with this Decision and Order.
The facts, as found by the Trial Examiner, are set forth in the Inter-
mediate Report. In brief, the Union was certified as representative
of the Respondent's employees on May 24, 1961, and thereafter en,
tered into a 1-year contract with the Respondent, effective from Octo-
ber 1, 1961, to September 30, 1962. Negotiations for a new contract
began in early September 1962 and there were a number of bargaining
sessions. On November 8, 1962, 12 of Respondent's 17 employees went
on strike. On the day of the strike and on the following day, officials
of the Respondent visited employee Wiggins, who had not participated
i The Respondent 's exceptions to the Intermediate Report and supporting brief are in
large measure directed to the credibility resolutions of the Trial Examiner . The Board has
held that it will not overrule the Trial Examiner 's credibility resolutions unless a clear
preponderance of all the relevant evidence establishes that these resolutions were incorrect.
Upon the entire record, we find that such conclusion is not warranted here. Standard
Dry Wall Products , 91 NLRB 544 , enfd. 188 F . 2d 362 (C.A. 3).
145 NLRB No. 125.