Thunderbird Motel, Inc.

National Labor Relations Board - Board Decisions

Jan 12, 1970

180 N.L.R.B. 656 (N.L.R.B. 1970)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thunderbird Motel , Inc. and Local Joint Board of
Culinary Crafts, Hotel & Restaurant Employees &
Bartenders International Union , AFL-CIO. Case
36-CA- 1859
January 12, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 22, 1969, Trial Examiner Maurice
Alexandre issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Thunderbird Motel, Inc.,
Portland, Oregon, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
MAURICE ALEXANDRE, Trial Examiner- This case was
heard in Portland, Oregon, on July 17 and 18, 1969, upon
a complaint issued on May 7, 1969,' and amended at the
hearing, alleging that Respondent had violated Sections
8(a)(I) and (3) of the National Labor Relations Act, as
amended, by unlawful interrogation, threats, promises of
benefit, and discrimination. In its answer, Respondent
denied the commission of the alleged unfair labor
practices.
'Based upon an original and an amended charge filed respectively on
March 10 and April 16, 1969
180 NLRB No. 104
Upon the entire record, my observation of the
witnesses, and the briefs filed by the General Counsel and
the Respondent, I make the following
FINDINGS AND CONCLUSIONS'
1. THE UNFAIR LABOR PRACTICES
Respondent is an Oregon corporation with its principal
office and place of business situated in Portland, Oregon,
where it is engaged in the operation of a motel, bar and
restaurant. The motel, one of the older establishments in
the area, contains 218 or 220 rooms, and its work force,
apart from supervisory employees, consists of from 25 to
30 maids and several maintenance men.
A. Discrimination
1. The five maids
a. The evidence
On March 7, 1969,' Respondent discharged five of its
maids Charlene Brown, Bekish, Brunette, Morrison and
Humes. The evidence relating to the discharges and
surrounding circumstances is as follows.
In late 1968 and early 1969, two of Respondent's
owners, McCloskey and Pietz, began to express concern
to Kennedy, the manager of the motel, regarding an
increase in labor costs over what was considered to be a
norm. In addition, Kennedy became concerned over a
deterioration in servicing of the rooms by the maids.
Kennedy felt that the head housekeeper was not
sufficiently strict in her supervision of hours worked and
room cleanliness, and frequently discussed these matters
with her, particularly the matter of labor costs Because
the situation did not improve, McCloskey, Pietz and
Kennedy decided to replace the housekeeper, discharged
her in late January 1969, and hired Barbara Sischo in her
place at the beginning of February. Sischo reported for
duty on February 3. At a meeting of the maids held that
day, Kennedy introduced Sischo, told those present that
maid costs were too high and that the rooms must be kept
up, and left. Sischo then made a few remarks, including a
statement that she wanted clean rooms.
It was the practice at the motel to assign certain rooms
to each maid. Under the former head housekeeper, it
appears that the maid usually worked 7 hours a day, from
8.00 a.m. to 3:00 p.m., except on Monday, which was a
slow day. After Sischo took over on February 3, maids
who completed cleaning their assigned rooms before 3.00
p.m. were sent to help those who were not finished This
practice resulted in earlier completion of the room
cleaning, a decrease in the number of hours worked by
individual maids, and a concomitant reduction in their
earnings. Several weeks later, because of dissatisfaction
with that result and possibly other working conditions,,
the maids asked Sischo for a meeting. At the meeting,
'No issue of commerce is presented . The complaint alleged and the
answer admitted facts which, I find, establish that Respondent is an
employer engaged in commerce within the meaning of the Act I further
find that Local Joint Board of Culinary Crafts, Hotel & Restaurant
Employees & Bartenders International Union, AFL-CIO (hereafter
called the Union), is a labor organization within the meaning of the Act
'All dates referred to hereafter relate to 1969 unless otherwise indicated
'Employee Foster testified that the maids felt that those with seniority
should be permitted to work 7 hours a day and that the reduction in work
THUNDERBIRD MOTEL, INC. 657
Employee Brunette and other maids asked Sischo a
number of questions regarding the amount of working
time that would be permitted, seniority and working
conditions. Sischo stated that she could not answer the
questions and that she would arrange a meeting with
Kennedy. A few days later, on February 28, Kennedy and
Sischo met with the maids. It is uncontradicted that
Sischo arrived before Kennedy and told the maids that she
had reported to Kennedy that "The rooms looked good,
as far as she could tell," that some of the sinks and toilets
had not been cleaned properly, but that she had a
chemical that would take care of that problem. It is also
uncontradicted that she further stated that no one would
be permitted to work beyond 2:30 p.m. When Kennedy
arrived, he stated that the maids could work a 7-hour day
only when justified by the existence of sufficient work due
to full room occupancy, and that seniority would continue
to govern vacations and days off. Kennedy testified that
when one of the maids inquired what should be done if a
room was particularly dirty, he replied that it should be
cleaned and that the maid would be paid for it. He further
testified that he also told the maids that the condition of
the motel was better, that it was "shaping up," and that
they were "doing better."
On Thursday, March 6, a number of maids met on the
motel premises during their afternoon coffeebreak. Among
those present were Bekish, Brunette , Morrison, Charlene
Brown, Bernice Faye Adams, Mary Johnson, and a
painter identified as Jerry, and it was agreed that
Charlene Brown would communicate with the Union.
That night she obtained authorization cards from Union
Representative Stan Brown, so informed Brunette and
Bekish, and advised them that she would arrive at the
motel with the cards before 8:00 a.m. the following
morning.
Charlene Brown arrived at the motel at 7:35 a.m. on
Friday, March 7, and went to a small lunchroom in the
South Building where she worked. There she met
Brunette , Bekish and Morrison, who also worked in that
building. All three maids signed union authorization cards
while seated at a table. Charlene Brown also signed a
card; but although her card is dated March 7, she testified
that she had signed it the preceding evening , and her card
indicates that it was witnessed by Union Representative
Stan Brown, who was not present at the lunchroom on
March 7. The card signed by Bekish shows that it was
witnessed by Charlene Brown , In addition, other maids
arrived at the lunchroom from time to time and were
given cards. Some signed, but others took the cards with
them. Maria Humes did not go to the lunchroom that
morning. At about 10:00 a.m., while in the laundry room,
Charlene Brown met Employee Ruby Spangler who told
her that she had been given a card by Employee May
Johnson, that Spangler would adhere to the majority wish
regarding the Union, but that the maids should talk to
Kennedy before unionizing.
Kennedy and Sischo testified that sometime between
10:00 and 11:00 a.m. that day, she recommended to him
that several maids be discharged. According to their
testimony, she stated that the maids had not been
cooperative but did not disclose the identity of the
proposed dischargees. According to Kennedy, he
authorized the discharges without asking her for names
because she had told him "that she had had trouble with
,time should be confined to newly hired maids . She further testified that the
maids were also dissatisfied with the decrease in the quantity of the free
lunches given them.
numerous maids over this monthly period " since she was
hired , and he relied on her judgment . He further testified
that Sischo told him that the maids were not scheduled to
work on Saturday and Sunday , March 8 and 9, that
Monday was a slow day , and that replacements could be
obtained by Tuesday.' Sischo then went to the accounting
office and requested that final checks be prepared for
Bekish , Brunette , Charlene Brown , Morrison , and Humes.
According to Kennedy , Sischo told him the names of the
proposed dischargees later in the afternoon , and he signed
their checks when they were brought to him Later, Sischo
went to the accounting department and obtained the
signed checks.
When the five maids went to sign out at or about 3:00
p.m., Sischo gave each a check and informed her that she
was discharged .' Humes testified that when Sischo
delivered her check , the latter told her that she talked too
much and took too much time . Brunette and Bekish
testified that Sischo told them they would not cooperate.
According to Sischo , she gave the maids the following
reasons for their discharges : to Humes -- not following
orders and taking too long; to Morrison not following
orders, not competent and wasting too much time, to
Brunette and Bekish incompetent and not following
orders, to Charlene Brown - no comment . Charlene
Brown and Morrison testified that Sischo handed them
their checks without comment.
Following their discharges , the five maids went to find
Kennedy, but were told by Pietz that he was taking a nap.
When they informed Pietz that they had been discharged,
he replied that there was nothing he could do, but that
they would be given the best of recommendations.
b. Analysis and conclusions
The General Counsel contends that four of the maids
were discharged because of their union activity, and that
the fifth maid, Humes, was discharged because
Respondent believed she engaged in such activity.
Recognizing in his brief that the record does not contain
direct evidence of Respondent's knowledge of such
activities, the General Counsel contends that knowledge of
such activities, as well as Respondent's unlawful motive,
may be inferred from circumstantial evidence in the
record. Respondent asserts that it did not learn of the
Union activity at the motel until after the discharges, and
that the five maids were discharged because of payroll
padding, loafing, and failure to perform their duties
properly. For the reasons noted below, I agree with the
General Counsel.
On the issue of knowledge, Respondent contends in its
brief that a memorandum prepared by counsel for the
General Counsel,' following interviews with the
dischargees and others, establishes that there "was no
evidence that the housekeeper or any other supervisor
knew that the Union talk and the card signing were going
on at the time." Respondent's brief does not accurately
quote the content of the memorandum, which states only
that the employees had no direct evidence that
'Kennedy testified that he hired no maids that weekend. Employee Cabe
(or Cave ) testified that she was hired on March 7 and reported for duty on
March 8. Sischo testified that she began to hire new maids on March 7,
but before she had decided to recommend the discharges to Kennedy.
,it is undisputed that payday was the preceding day, Thursday , March 6,
and that the maids had received their regular paychecks on that day
'The memorandum , identified as Resp Exh. 5, was received in evidence
without objection.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's supervisors possessed such knowledge.'
Accordingly, even if such a memorandum possessed
affirmative weight, a matter which I need not decide, it
would not support Respondent's position. At the hearing,
the General Counsel stipulated that at the time he talked
to them, none of his witnesses possessed concrete evidence
of such knowledge by Respondent's supervisors. I find
that the stipulation does not negate the existence of such
knowledge.
Respondent also points out that Kennedy and Sischo
both testified that they first learned of the union activity
when they saw a copy of the unfair labor practice charge.
With respect to the reasons for the discharges, the
record contains the following evidence. Kennedy and
Sischo sought to reduce costs by attempting to reduce the
number of hours worked by the maids, and the latter
objected. Kennedy testified that he had been informed by
Sischo prior to March 7 that some of the maids were not
checking out when they completed their work, and she
had named two of them, i.e., Charlene Brown and
"Helen," presumably Bekish. Sischo testified that on at
least three occasions during the week before March 7,
when Charlene Brown, Bekish, Brunette, and Morrison
had checked out as of 3:00 p.m., Sischo had found, on
investigation at 2:30 p.m., that their work carts were
stocked and ready for the following day, a fact indicating
that they had finished their work for the day, but she was
unable to locate the four maids. Sischo further testified
that the four maids nearly always obtained 7 hours' pay
irrespective of how many rooms they had to do; that on
several occasions, she had encountered several of the
dischargees gathered in a corner engaged in conversation;
that Morrison wasted time by herself going for supplies
instead of requisitioning them; that Humes took longer
than needed in her work' and that she failed to perform
the extra cleaning which she claimed was necessary and
had been done. Sischo also testified that each of the five
maids was careless in her work, e.g., failed to vacuum
under the beds, to dust drawers and window sills, to dry
shower doors, and to remove spots from toilets. When
asked by counsel for Respondent to summarize the reason
for discharging the five maids, Sischo testified:
Well, they were just taking too long in the rooms
and it was just running my wage cost up; and they were
not trying to cooperate and they weren't cleaning the
rooms good enough for the length of time that they
were taking to clean them.
Sischo testified that she had repeatedly told Morrison
not to waste time, had told the five maids to be sure to
perform certain tasks, and had "made comments"
concerning their work. On one occasion, Sischo criticized
Humes for taking too long to do her work. However,
when Humes complained to Kennedy about the
reprimand, he in effect overruled the reprimand and told
her he would talk to Sischo. Sischo further testified that
when Kennedy complained of rising costs, she informed
him that she was not receiving cooperation and was
running up against a stone wall; that she finally advised
him that she "was going to have to dispense with a few of
these girls who are wasting so much time and see what
would happen"; and that Kennedy consented.
'The memorandum states . "As far as the employees know neither the
housekeeper nor any of the supervisors knew the union talk and the card
signing was going on at the time "
'Sischo admitted that laundry employees created "a little bit of a mess"
around Humes' cart by scattering tablecloths and other linens, but testified
that Humes used that fact as an excuse.
Respondent also introduced in evidence a report made
by an inspector employed by a motel association to which
Respondent belongs. The inspection was made on March
12 and, according to Kennedy, was not only a "bad"
report, but the worst he could recall. The report assigned
a "B" grade ("Almost Top") to a number of items, such
as cleanliness, carpets, drapes, bedspreads. However it
assigned a "C" rating ("needs some attention") to several
items: furniture and mirrors; walls, woodwork and ceiling;
decor, including pictures; coat hangers; wastebaskets; and
cleaning routine. Kennedy testified that the report meant
that the furniture and mirrors had not been dusted or
properly cleaned; that it referred to dusting of the pictures
and fingerprints on the glass ; that all wire coat hangers
had not been replaced by wooden ones; that wastebaskets
contained ashes or were damp; and that the "C" rating
for cleaning routine represented a consolidation of all the
things that were improperly done. Kennedy further
testified that failure to dust, clean toilets and showers, and
vacuum under beds "builds up"; and that considering the
size and condition of Respondent's motel, it would take
about 30 days or possibly less to correct the deficiencies.
Sischo testified that it would take at least 6 weeks. By
letter dated April 10, the motel association informed
Respondent that it had "a beautiful installation, very well
managed and operated [and] spotlessly clean." Kennedy
testified that the maid cost per room decreased in March
and again in April, when it reached what he considered to
be the norm.
It is settled that an employer's knowledge of employee
union activity and his unlawful motive for their discharge
may properly be inferred. Here, a number of factors made
it reasonable to infer such knowledge and motive. Except
for Humes, who was hired on May 27, 1968, the
dischargees had been employed by Respondent for a
number of years. Yet the record shows that none had been
warned of possible discharge, and, in fact, that they had
not been individually reprimanded in any serious manner
regarding any of the shortcomings for which they were
assertedly discharged. On the contrary, Humes had been
complimented on her work by Sischo as well as by motel
guests. Moreover, following the discharges, Pietz, one of
the motel owners, promised to give the dischargees
excellent recommendations, and Kennedy subsequently
agreed to give Brunette a good reference. In addition,
during the meeting with the maids a week prior to the
discharges, Kennedy told them that the condition of the
rooms had improved.
The unconvincing nature of the alleged reasons for
discharge is further shown by the admissions made by
Kennedy and Sischo at the hearing. Kennedy testified that
he construed Sischo's report regarding the dischargees'
lack of cooperation to mean not only failure to follow
orders and to do their work properly, but also
"Complaining about the hours" of work, i.e., their
dissatisfaction with his announced policy regarding hours
of work. Sischo admitted that when asked by a Board
agent, in the presence of an attorney for Respondent
during the prehearing investigation, why she had
discharged the five maids the day after payday, she had
replied: "I don't know. I just came to work that Friday
morning and decided to discharge them"; and that she
further told the agent that "there wasn't anything [she]
could put [her] finger on in the last few days that caused
[her] to discharge those maids." In addition, Employee
Rising testified credibly that Kennedy told her that the
discharges were not Sischo's fault and that "The orders
came from higher up." In the light of this evidence, there
THUNDERBIRD MOTEL, INC.
is a hollow ring to the testimony that it was Sischo who
selected the five maids for discharge, that Kennedy did
not know who they were until informed by Sischo, and
that neither knew of the union activity until they saw the
charge filed against Respondent.
Respondent' s union animus constitutes a further link in
the chain. Such animus is shown by the following
evidence. Employees Rising and McNelly credibly testified
that following the discharges, Sischo interrogated them
and other employees regarding union activities, and
quoted McCloskey, one of the motel owners, as having
stated that he would close the motel before permitting it
to become unionized and that any employee engaging in
union activities would be discharged. Employee Anderson
testified credibly that several weeks alter the discharges,
Sischo told her that she would have to discharge
Employee Ogden and an employee identified as Dolly if
they did not stop talking about the Union on motel
property with Charlene Brown . Employee Biddle testified
credibly that about April 21, Sischo stated to her and two
other individuals that anyone joining the Union would be
automatically discharged. Employee Cabe testified
credibly that a week or two after she was hired on March
7, Sischo asked her whether any of the discharged maids
had sought her signature on union cards during her
working time, and that when Cabe answered affirmatively,
Sischo told her not to sign any cards. Sischo admitted
that following the discharges, she had interrogated several
employees as to whether union cards had been circulated,
but denied that she attributed any threats to McCloskey
and that she herself threatened any employee. Based on
the evasive nature of some of her testimony as well as her
demeanor, I do not credit her denials.
Other significant circumstances are the fact that the
union activity on March 6 and 7 took place openly on the
motel premises; the small size of the employee
complement;10 the evidence that Sischo had a "pretty good
grapevine" of information and that maids frequently made
reports to her regarding other maids;" and the timing of
the discharges which took place within a matter of hours
after the Union activity on March 7, the day after payday.
The unsatisfactory report of the motel inspection made
5 days after the discharges does not support Respondent's
position. If anything, it indicates that other maids,
including the largely inexperienced maids hired to replace
the dischargees, were responsible for the report. Sischo
testified that some of the items criticized in the report
should be performed daily, e .g., cleaning mirrors,
wastebaskets and dusting corners ; and that other, more
major tasks, are performed two or three times a week,
e.g., cleaning toilet bowls and moving the beds in order to
vacuum the carpeting under them. She then admitted that
during the five-day period between the discharges and the
inspection, some of the maids did not perform their work
properly, that they had failed to perform some of their
daily tasks, that they had had one or two opportunities to
perform the more major tasks, and that "their sections
were the worst" at the time of the inspection.
Because of the foregoing considerations , I reject the
reasons advanced by Respondent for the five discharges.
Instead , I find that it had knowledge of the union activity
"Century Lumber Co„ Inc ., 168 NLRB No. 36.
"Sischo so admitted . I also credit Employee Anderson 's testimony that
she overheard Employee Bernice Faye Adams tell Sischo that a
Government agent had visited her home to interview her, but that Sischo
should not worry because Adams had not told him anything . Although
Sischo first denied the entire conversation , she then admitted being told by
Anderson that a Government agent had been to see her.
659
of four of the maids prior to discharging them , that the
asserted reasons for the discharges of the four maids are
unconvincing and constitute a pretext ; and that the
discharges of the four were motivated by such union
activity ." I accordingly find that the four discharges
constituted discrimination violative of Section 8(a)(3) and
(1) of the Act. I further find that although Humes was not
present at the employee meetings on March 6 and 7,
Sischo mistakenly regarded her as being closely associated
with the activities of the other four dischargees," and
discharged her for that reason rather than for the
pretextual reasons asserted by Respondent. Such a
discharge violated Sections 8(a)(3) and ( 1) of the Act.
System Analyzer Corp ., 171 NLRB No. 11; Fremont
Hotel , Inc., 162 NLRB 820; Ridge Tool Co, 102 NLRB
512."
2. Leonard J. Brown
a. The evidence
Brown, the husband of dischargee Charlene Brown,
worked as a maintenance employee at the motel at
various times during the period from January 2 until April
5. He worked fulltime when he was on layoff status from
his regular job, and on weekends and holidays at other
times. One of his fulltime periods was from February 10
to 25. Kennedy testified that sometime in February, he
asked Chuck Tallman, who possessed certain supervisory
authority over Respondent's maintenance employees, "if
he could hire" Brown on a permanent basis because he
was an excellent worker. Brown testified that Tallman
offered him a permanent fulltime job on February 12, but
that he declined because he was earning more money in
his regular employment. On February 15, Pietz informed
Brown that he could work at the motel on Saturdays,
Sundays or any other day that he was free, that he had
"plenty of work" for him, and that he could work at the
motel "all summer." Brown accepted the offer and,
following his return to his regular job on February 26,
worked weekends at the motel.
On Saturday, March 8, the day after his wife was
discharged, Brown asked Tallman whether he still had a
job, and Tallman replied that his wife had nothing to do
with his job. Employee Ogden testified without
contradiction that on April 1 or 2, Tallman told her, in
the presence of another employee, that Charlene Brown
had caused him "to have to get rid of her husband."
Brown was notified of his discharge by Tallman on April
5. According to the uncontradicted testimony of Brown,
he was told by Tallman that he had orders from Kennedy
to discharge Brown because of his wife, that Kennedy was
very angry, and could and intended to have his wife
"In Shattuck Denn Mining Corp . v. N L R B. 362 F.2d 466, 470 (C A
9), the court said " if he [the Trial Examiner] finds that the stated motive
for a discharge is false , he certainly can infer that there is another motive.
More than that, he can infer that the motive is one that the employer
desires to conceal - an unlawful motive at least where, as in this case,
the surrounding facts tend to reinforce that inference "
"Kennedy and Sischo admitted that the latter had told a Board agent
prior to the hearing that the five dischargees "were always together, never
mingled with the rest of the girls."
"Respondent seeks to make much of the fact that other employees who
signed union authorization cards were not discharged. But that fact does
not disprove discriminatory motivation N L R.B. v. Puerto Rico
Telephone Co , 357 F.2d 919 (C A. 1), and cases cited therein, N L R B v
Howell Chevrolet Co. 204 F.2d 79, 85 (CA 9), affd as to other matters
346 U S 482 As the court pointed out in the Puerto Rico case, "A
violation of the Act does not need to be wholesale to be a violation "
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrested for "handing out union cards," that she had not
done so in the motel rooms but that Respondent "owns
the streets and all around here"; and that when Brown
informed him that he had been told by Pietz that he could
work part-time at the motel all summer, Tallman repeated
that he was under orders from Kennedy to discharge him
and stated- "I don't know why in the hell they can't do
their own damn dirty work around here instead of letting
me do it."' S Brown further testified without contradiction
that Tallman left to get his check and stated upon his
return that Kennedy had told him that the reason for the
discharge was because Employee Del Kitt "is here
steady."
Kennedy testified that in the spring of 1968, a third
fulltime maintenance had been added to the motel staff
because of additional work, but was discharged in the fall
because outside work could not be performed during the
rainy season; that Brown had been offered a permanent
job because of the anticipated need for a third
maintenance employee in the spring, but had rejected the
offer; and that since Del Kitt was thereupon hired as a
full-time maintenance employee on April 1, Brown was
told on April 5 that he was no longer needed. Kennedy
further testified that Del Kitt "left" the motel after about
6 weeks, but did not disclose the reason for his leaving.
Kitt was then replaced by one Don Lauer. Employee
Ogden testified without contradiction that on April 16,
i.e., before Del Kitt left, Tallman told her and another
employee that he was "going to have to let Del go," and
asked them if they knew anyone who wanted a job; and
that when asked why he did not rehire Leonard Brown,
Tallman replied- "Well, I would, damn it, but they won't
let me."
b. Analysis and conclusions
The General Counsel contends that Respondent
discharged Leonard Brown because of his wife's union
activity, and that such discharge was unlawful.
Respondent contends that he was discharged for a
legitimate reason -- his services were no longer needed. I
agree with the General Counsel.
At the time it offered part-time work to Brown because
it had ample work to keep him busy all summer,
Respondent expected to hire another permanent, full-time
maintenance man. Indeed, it had offered the job to Brown
who rejected it. Nothing in the record shows that the
situation had changed in the ensuing 3 weeks. The
full-time employment of Kitt thus does not satisfactorily
explain why Brown's part-time services were no longer
necessary. In addition, the uncontradicted testimony of
Brown and Ogden regarding the statements made by
Tallman, who was the agent used by Respondent to
discharge Brown and who did not testify, clearly establish,
and I find, that the union activity of Brown's wife was the
reason for his discharge. Such a discharge constitutes an
unfair labor practice within the meaning of Section 8(a)(3)
and (1) of the Act. Dalton Company, Inc, 109 NLRB
1228, 1231, and cases cited therein.
B. Interference, Restraint, and Coercion
1. By Sischo
I find that Respondent, in violation of Section 8(a)(1)
of the Act, interfered with, restrained, and coerced its
"Kennedy testified that he made the decision to let Brown go
employees by the following conduct, referred to above:
a. Sischo's interrogation of Rising, McNelly, and other
employees regarding union activity.
b. Sischo's disclosure to them of McCloskey's threats
to close the motel before permitting unionization and to
discharge any employee engaging in union activity.
c. Sischo's threat to Employee Biddle that anyone
joining the Union would be automatically discharged.
d. Sischo's admonition to Employee Cabe not to sign
any union cards.
e. Sischo's threat, disclosed to Employee Anderson, to
discharge two employees if they did not stop discussing
the Union with Charlene Brown on the motel premises.
Since the prohibition was not confined to working time, it
was unlawful.
2. By Tallman
The record contains uncontradicted evidence that
sometime between the discharges of the five maids and a
Board election held on June 16, Respondent's employees
were addressed during their lunch period by Chuck
Tallman; that his initial remarks were, "What in the hell
is all this union talk about? I want to know what it's
about and who's behind it. Let's give me the names of
who started it." It is also uncontradicted that Tallman
warned those present that if they unionized, they "will
lose a lot of things," such as their paid lunch hour,
coffeebreaks, unusually favorable medical insurance
benefits, and the privilege of purchasing goods at reduced
prices from Respondent. Such interrogation and threats, if
attributable to Respondent, were clear violations of
Section 8(a)(1).
In its brief, Respondent does not question the unlawful
character of Tallman' s interrogation and does not appear
seriously to question the unlawful character of his remarks
concerning loss of benefits." Its principal defense is that
he was not a supervisor within the meaning of the Act,
that Respondent had no knowledge of his intention to
voice his objections to the Union and at no time ratified
his statements, and hence that it is not responsible
therefor. I disagree. Whether or not Tallman had
sufficient authority to endow him with the supervisory
status contemplated by the Act," the fact remains that his
status with Respondent was different from that of the
other maintenance employees, and Respondent's
employees knew it. Tallman was observed directing the
work of maintenance men by Respondent's employees.
They knew that he enjoyed the special privilege of
utilizing for his own personal use a company truck which
bore his name and the accompanying title of "Engineer."
"Respondent merely contends that Tallman correctly told the maids that
certain benefits then enjoyed by them were not included in the area
contract to which the Union was a party. I find that this contention does
not accurately paraphrase either the content or purport of Tallman's
remarks, which constituted a warning of economic reprisal.
Following the hearing Respondent , pursuant to leave received at the
hearing , offered in evidence copies of the area contract (marked Resp.
Exh. 9 for identification ), and of the medical insurance program provided
for therein (marked Resp . Exh. 10 for identification ). Conceding the
authenticity of these documents , the General Counsel attacks their
relevance and materiality Since the documents would be material to
Respondent 's defense if it should desire to pursue it, it is ordered that
Resp . Exh. 9 and 10 be, and they are hereby , received in evidence and
made a part of the record herein.
"Based on the evidence relating to Tallman ' s exercise of authority over
the maintenance men, and the fact that Kennedy , his superior , at no time
during his lengthy testimony denied Tallman ' s supervisory status, it is
probable that Tallman was a supervisor within the meaning of the Act. In
THUNDERBIRD MOTEL, INC. 661
When informed that they would be addressed by Tallman,
during their lunch period, employees who usually ate
elsewhere went to the lunchroom where Tallman was
scheduled to speak. Respondent's employees thus "could
and did regard him as a management spokesman." Betts
Baking Co , 155 NLRB 1313, 1316. Moreover, if Tallman
did not have the power to hire and fire, he was at least
used by Respondent as the conduit for that purpose in the
case of Leonard Brown. Finally, there is nothing to show
that Respondent, which could not have avoided knowing
about the meeting, ever disavowed Tallman's interrogation
or threats. I find that in these circumstances, Respondent
is responsible for Tallman's unlawful conduct.
announcement was to influence the maids to vote against
the Union.
Respondent asserts that there is no evidence that any of
the maids attached any special significance to such timing.
The issue, however , is not whether the announcement
succeeded in influencing any maid , but whether it was
made for the unlawful purpose of inducing the maids to
vote against the Union . Tonkawa Refining Co., 175
NLRB No. 102. Since I find that it was made for that
purpose, the announcement constitutes an unfair labor
practice within the meaning of Section 8 (a)(1) of the Act.
11. THE REMEDY
3. The wage increase
It is undisputed that two or three weeks before the
Board election held on June 16, Kennedy told Employee
Foster that beginning on July 16, the maids would receive
a pay increase of 10 cents an hour which would raise their
wage rate to $1.80. The General Counsel contends that
such promise of a wage increase was unlawful because it
was made to influence the employees to abandon the
Union. Respondent asserts that the decision to grant the
wage increase was made long before the commencement
of Union activities, and that it was made effective on July
16 in order to coincide with the timing of a pay increase
provided in the area collective-bargaining agreement.
Kennedy testified that Respondent gave its maids wage
increases each year during the "last several years" ending
with July 16, but "not at a specified time." Employee
Foster testified that in October 1968, the maids petitioned
Kennedy for a wage raise, and it is undisputed that they
received a raise in November 1968. Kennedy testified that
there was no "Union increase at that time." He further
testified that in the fall of 1968, during a discussion
between union and nonunion managers of members of the
Portland Hotel Association, he advised the group that he
would give Respondent's employees a wage raise on the
date that the wage raise became effective under the area
contract;" that in November 1968, he discussed the matter
with Respondent's auditors and owners, who authorized
such an increase; and that the wage increase was put into
effect July 16.
The difficulty with Respondent's defense is that it seeks
to justify the timing of its decision regarding and
implementation of the wage raise, but not the timing of
Kennedy's announcement of the wage increase to
Employee Foster. Respondent has failed to explain why it
did not make the announcement soon after it assertedly
decided upon the wage increase in November 1968, or
why it did not wait until after the election. Since
Respondent did not have a fixed policy of raising its
maids' wages coincidentally with wage raises provided in
the area contract, the announcement by Respondent
shortly before the election cannot be regarded as mere
notification of its intention to implement such a policy.
The unexplained timing of Respondent's announcement
creates at least a suspicion that its decision to raise wages
was not made until after the commencement of Union
activity by the maids. In any event, I find that such
timing, when considered in the light of Respondent's other
unfair labor practices, establishes that the purpose of the
view of my finding herein , however, it is unnecessary to make a
determination on that issue.
''The contract provided for an increase in the wages of motel maids on
I recommend that Respondent cease and desist from its
unfair labor practices, and that it take certain affirmative
action designed to effectuate the policies of the Act More
specifically, I recommend that Respondent offer to
Charlene Brown, Bekish, Brunette, Morrison, and Humes
immediate and full reinstatement to the positions which
they held at the time of the discrimination against them or
to substantially equivalent positions, without prejudice to
their seniority and other rights and privileges. Since
Leonard J Brown was a temporary, part-time employee
at the time of the discrimination against him, I
recommend that Respondent offer him employment in
available jobs on the same nondiscriminatory basis as that
enjoyed by him prior to Respondent's discrimination
against him. I further recommend that Respondent make
the said six discriminatees whole for any loss of earnings
each may have suffered by reason of the discrimination
against each, by payment to each a sum of money equal
to that which he or she would have been paid by
Respondent absent such discrimination, less net earnings
during the said period."
CONCLUSIONS OF LAW
1. By unlawfully interrogating and threatening
employees, instructing them not to sign a union card, and
announcing a wage increase in order to induce them to
vote against the Union, Respondent engaged in unfair
labor practices within the meaning of Section 8(a)(l) of
the Act.
2. By unlawfully discharging Employees Charlene
Brown, Bekish, Brunette, Morrison, Humes, and Leonard
J. Brown, Respondent engaged in unfair labor practices
within the meaning of Sections 8(a)(1) and (3) of the Act.
RECOMMENDED ORDER
Respondent, its agents, successors, and assigns, shall-
1. Cease and desist from:
(a) Unlawfully interrogating or threatening its
employees, directing them not to sign union cards, or
promising them benefits in order to induce them to vote
against unionization.
(b) Unlawfully discriminating against employees in
regard to their hire, tenure of employment, or any term or
condition of employment.
(c) In any other manner interfering with, restraining, or
coercing their employees in the exercise of the rights
guaranteed by Section 7 of the Act.
July I from $1402 to $14 58, presumably a day, i e., an increase of seven
cents an hour based on the 8-hour day specified in the contract
"The loss of earnings shall be computed in the manner set forth in F
W Woolworth Company. 90 NLRB 289, and /sts Plumbing & Heating
Co. 138 NLRB 716
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action:
(a) Offer to Charlene Brown, Helen Bekish, Leona
Brunette , Barbara Morrison, and Maria Humes
immediate and full reinstatement to their former or
substantially equivalent positions, and make each whole
for any loss of earnings she may have suffered by reason
of Respondent's discrimination against her, in the manner
set forth in the section herein entitled "The Remedy."
(b) Offer to Leonard J. Brown employment in available
jobs on the same nondiscriminatory basis as that enjoyed
by him prior to the unlawful discrimination against him,
and make him whole for any loss of earnings he may have
suffered by reason of such discrimination, in the manner
set forth in the section herein entitled "The Remedy."
(c) Notify the above-named employees if 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, as amended, after discharge
from the Armed Forces.
(d) Preserve and make available to the Board or its
agents, on request, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and the right of reinstatement under the terms of this
Recommended Order.
(e) Post at its place of business in Portland, Oregon,
copies of the attached notice marked "Appendix."20
Copies of said notice, on forms provided by the Regional
Director for Region 19 shall, after being signed by
Respondent's representatives, be posted by the
Respondent immediately upon receipt thereof and
maintained by them for 60 consecutive days thereafter in
conspicuous 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.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of the receipt of this
Decision and Recommended Order, what steps have been
taken to comply herewith.21
"in the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
Posted by order of the National Labor Relations Board
an agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self- organization;
To form, join, or help unions;
To bargain collectively through a representative of
their own choosing;
To act together for collective bargaining or other
aid or protection; and
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT discharge employees or otherwise
discriminate against them because of their union
activities.
WE WILL NOT unlawfully question or threaten our
employees.
WE WILL NOT tell them to refuse to sign union cards,
or promise them benefits in order to induce them to
vote against unionization.
WE WILL offer to take back Charlene Brown, Helen
Bekish , Leona Brunette , Barbara Morrison, and Maria
Humes at their old jobs and pay them for all the wages
they lost because of their discharge.
WE WILL offer to Leonard J. Brown employment on
the same nondiscriminatory basis that he enjoyed
before our discrimination against him, and pay him for
all the wages he lost because of his discharge.
THUNDERBIRD MOTEL,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
612 Lincoln Building , 208 S.W. Fifth Avenue, Portland,
Oregon 97204, Telephone 226-3431.