Arlington Hotel Co., Inc.

736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tute a clearly identifiable and homogeneous group of employees such as the Board has found to constitute an appropriate Unit .4 We there- fore find appropriate for the purposes of collective bargaining a unit of all truckdrivers and tractor-trailer drivers at the Employer's plant and warehouses at Westbury and Farmingdale, New York, excluding all other employees and all supervisors as defined in the Act. The Electrical Workers' Unit Requests (Case No. 2-RC-1043) As already stated, the Electrical Workers primarily seeks a unit of maintenance leadmen and maintenance mechanics A and B, or, alter- natively, a unit including, in addition to the above categories, utility men and porters. The Employer's maintenance leadmen and mainte- nance mechanics work in the machine and building maintenance sections of the engineering and maintenance department and in pro- duction departments. They are skilled in and do various kinds of maintenance work, such as carpentry, plumbing and heating, and elec- trical, machine, and automotive maintenance. Utility men, porters, and other employees, including secretaries, a matron, a draftsman, and a clerk-typist, also work in the engineering and maintenance department. As it does not appear that the employees in either of the units requested by the Electrical Workers constitute a homogene- ous craft group or a separate department of the Employer's opera- tions such as the Board finds appropriate for bargaining purposes, and as no other basis appears on which to find either of these units appropriate, we find that they are both inappropriate and shall there- fore dismiss the Electrical Workers' petition. [The Board dismissed the petition filed by Local 1922, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, in Case No. 2-RC-10403.] [Text of Direction of Election omitted from publication.] 4 Maas Brothers, Inc., 119 NLRB 568, 572; National Fireworks Ordnance Corporation, 104 NLRB 792, 796 s Sunshine Biscuits, Inc, 94 NLRB 770 Arlington Hotel Company, Inc. and Chauffeurs, Teamsters & Helpers Local No. 878, International Brotherhood of Team- sters, Chauffeurs , Warehousemen and Helpers of America. Case No. 26-CA-778. May 16, 1960 DECISION AND ORDER On January 19, 1960, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor 127 NLRB No. 94. ARLINGTON HOTEL COMPANY, INC. 737 practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof.' Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkinsj. 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 exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's findings,' conclusions, and recommendations.' We agree with the Trial Examiner's finding that William McBeth was discharged by the Respondent because of his activities on behalf of Teamsters Local No. 878. In so finding, we rely solely upon McBeth's solicitation of two of Respondent's supervisors to establish that Respondent had knowledge of McBeth's union activity. The knowledge obtained by these supervisors is imputable to the Respond- ent. Kollers Craft Plastic Products, Inc., 114 NLRB 990. Respondent's contention that McBeth, a watchman, was not sub- ject to the Act's protection because watchmen or guards are not in- cludable in the same collective-bargaining unit with other employees, is without merit. Watchmen or guards are deemed to be employees and, as such, may constitute a separate collective-bargaining unit. As employees, they are protected by the Act against discrimination directed at them because of their union activity. See, for example,, Austin Company, 101 NLRB 1257, 1259. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Arlington Hotel Company, 1In the absence of exceptions with respect thereto, we adopt, pro forma, the findings, conclusions , and recommendations of the Trial Examiner with respect to Respondent's. alleged surveillance of a union meeting and with respect to the discharge of employee Vera McBeth 2 Member Rodgers would find that employee Moore voluntarily left his position as broiler cook and, consequently , that he was not discriminatorily discharged 3 We find without merit the Respondent 's allegations of bias on the part of the Trial Examiner . There is no basis for finding that bias or partiality existed only because the Trial Examiner resolved important factual conflicts in favor of General Counsel's wit- nesses. As the Supreme Court has stated , . . [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact " N L R B. v. Pittsburgh S S. Company, 337 U.S. 656, 659. Moreover, as it is the board's established policy not to overrule a Trial Examiner's resolutions as to credibility except where, as is not the case here, the clear preponderance of all the relevant evidence convinces it that the resolutions were incorrect, we find , contrary to the Respondent's contention , no basis for disturbing the Trial Examiner's credibility findings. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 1). 5 60940-61-vol. 127-48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., Hot Springs, Arkansas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Discouraging membership in Chauffeurs, Teamsters & Helpers Local No. 878, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion of its employees, by discharging or laying off employees or other- wise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with discharge or other economic re- prisal if they join, retain membership in, or engage in activity on behalf of, the said Union, or any other labor organization; interro- gating employees concerning their union views, membership, and activities in a manner constituting interference, restraint, and coer- cion within the meaning of Section 8(a) (1) of the Act; and threaten- ing employees with economic reprisal if they appear as witnesses for or give testimony in favor of the said Union, or any other labor or- ganization, in any Board or other proceeding. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the aforesaid labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to William McBeth, J. C. Moore, Oza Brewer, and C. A. Rutledge immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its hotel at Hot Springs, Arkansas, copies of the notice attached hereto marked "Appendix."' Copies of such notice, to 4In the event that this order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the - words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." ARLINGTON HOTEL COMPANY, INC. 739 be furnished by the Regional Director for the Twenty-sixth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-sixth Region, in writing, within 10 days from the date of this Decision and Order, what steps the Respondent has taken to comply herewith; - IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent committed unfair labor practices by engaging in surveillance of union activities and by its discharge of Vera McBeth. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Manage- Tnent Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in Chauffeurs, Teamsters & Helpers Local No. 878, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization- by discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of our employees. IVE WILL NOT threaten employees with discharge or other eco- nomic reprisal if they join, retain membership in, or engage in activity on behalf of, the aforesaid Union, or any other labor .organization. WE WILL NOT interrogate employees concerning their union views, membership, or activities in a manner constituting inter- ference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with economic reprisal if they appear as witnesses or give testimony in favor of said Union, or any other labor organization, in any Board or other proceeding. WE WILL NOT in any other manner, interfere with, restrain, or ,coerce our employees in the exercise of their right to self-organi- zation, to form labor organizations, to join the aforesaid labor organization, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to en- 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer William McBeth, J. C. Moore, Oza Brewer, and C. A. Rutledge immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay suffered as a result of the discrimination against them. All our employees are free to become, remain, or refrain from becom- ing or remaining members of any labor organization, except as that right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. ARLINGTON HOTEL COMPANY, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Chauffeurs, Teamsters & Helpers Local No. 878, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union or the Teamsters, against Arlington Hotel Com- pany, Inc., herein called the Respondent, the General Counsel issued a complaint, thereafter at the hearing amended in certain respects, alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a) (1) and (3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent filed an answer, denying the commission of the alleged unfair labor practices and denying also the complaint's allegation that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. A hearing, at which all parties were represented by counsel, was held before the duly designated Trial Examiner at Hot Springs, Arkansas, on various dates between September 15 and October 28, 1959. At the close of the hearing, the General Counsel and the Respondent argued the issues orally on the record The General Counsel filed a brief with the Trial Examiner on December 14, 1959, and the Respondent filed a brief on December 16, 1959.1 'On December 9, 1939, the General Counsel filed a motion to correct transcript which will be ruled on in the section below dealing with interference, restraint, and coercion. ARLINGTON HOTEL COMPANY, INC. 741 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Arlington Hotel Company, Inc., an Arkansas corporation, is engaged in the busi- ness of operating a hotel, known as The Arlington Hotel, at Hot Springs, Arkansas. The Arlington Hotel has about 560 guestrooms. The Respondent's gross revenues for the calendar year 1958, a representative annual period, were in excess of $500,000. Less than 75 percent of the guests resided at the hotel for a period exceeding 1 month during 1958. During the year 1958, the Respondent, in connection with its hotel operations, purchased directly from points outside the State of Arkansas goods and supplies of a value of $10,000 or more. On the basis of the foregoing facts, it is found, in line with established Board authority, and contrary to the contention of the Respondent, that the Respondent, is engaged in business 'affecting commerce within the meaning of the Act and that its operations meet the standards fixed by the Board for the assertion of jurisdiction. See Floridan Hotel of Tampa, Inc., 124 NLRB 261. II. THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters & Helpers Local No. 878, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The unfair labor practice allegations are tied in the main to a union organizational campaign that was conducted among the Respondent's employees during the early months of 1959. In general, it is the General Counsel's position, disputed by the Respondent, that in an effort to thwart the self-organizational aspirations of its employees, the Respondent engaged in various acts of interference, restraint, and coercion, and, in addition, discriminatorily discharged five employees. As to the independent violations of Section 8(a)(1) of the Act, the complaint alleges in sub- stance, and the answer denies, that the Respondent, through various management representatives, (a) threatened employees with discharge or other reprisal measures if they joined or retained membership in the Union, or engaged in activities in its behalf; (b) interrogated employees concerning their union membership, activities, and desires; and (c) kept under surveillance the union meetings and activities of its employees. To the foregoing 8(a) (1) allegations, there was added by amendment at the hearing another, that the Respondent threatened an employee with economic reprisal if he appeared as a witness and gave testimony in support of the complaint. Lying at the heart of the complaint, however, are the allegations that the Re- spondent, in violation of Section 8(a)(1) and (3), discriminated against five em- ployees-William McBeth on January 27, 1959; J. C. Moore on March 7, 1959; Oza Brewer on March 23, 1959; C. A. Rutledge on March 30, 1959; and Vera McBeth on April 1, 1959. As will more fully appear below, William McBeth, a watchman, was the employee responsible for initiating the organizational effort; he was discharged within a few days thereafter. Moore, a cook, and Brewer, a waiter, played outstanding roles in soliciting employee designations for the Union. Rutledge, a butcher, joined the Union and attended union meetings, but was not otherwise active in the organizational campaign; he was, however, the only employee in the kitchen, other than Moore, known to the department head to be a member of the Union. Vera McBeth, a telephone operator and the wife of William McBeth, had no connection at all with the Union prior to her termination. The complaint alleges that all of the aforesaid employees, except Vera McBeth, were discharged because of their union membership and activities, and Vera McBeth, it is alleged, was dis- charged in reprisal for her husband's union activities. The Respondent denies the allegations of discrimination. In its answer, it affirmatively asserts that William McBeth was discharged for good cause. It denies that any of the others were dis- charged, and alleges affirmatively that Moore voluntarily quit the employ of the Respondent of his own accord; that Brewer and Vera McBeth were laid off in the normal course of work force reductions; and that Rutledge was replaced at his own request and by agreement with the Respondent. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Matters of general background interest , 1. The employee complement and supervisory structure The Respondent's employee complement at the Arlington Hotel varies from about 275 employees to upwards of 400, fluctuating with the number of guests stopping. at the hotel. The hotel's busiest period is during the •5-week racing season at Hot Springs, extending from the last week of February to about the end of March. During that period it is necessary to add temporary or seasonal employees to meet the hotel's servicing needs. Thereafter, business falls off, although there is still a fair amount of it during the next 3 months which coincide with the hotel's convention season. Business is at its low ebb during the summer months, and so, too, is the employee complement. The hotel's managerial hierarchy is headed by R. E McEachin, the general man- ager. Ranking immediately below him is Edgar A. May, the resident manager, who has overall supervision of the hotel's day-to-day operations. Under May are various department heads. Cecil L. Cameron, the catering manager, is one of the principal department heads. He is generally in charge of the dining room services. Sterling Smith, Jr., the headwaiter, works under Cameron and is charged with specific super- vision over waiters sand busboys, the number of whom may be as low as 35 or as high as 90, depending on the season of the year. Chef Jean Roux is in complete charge of the kitchen, occupying there a position comparable to that of Cameron in the dining room. Other supervisory employees whose names figure to some extent in the testimony are Thalma Hays, the chief telephone operator; George W. Sass, the house officer who has some supervisory authority over watchmen; Maceo Butler, the assistant bell captain; and Louise Burks, no longer employed, but formerly the head cleaner. 2. -The organizational campaign in 1959 and the Respondent's opposition thereto The Respondent's employees have never been represented by any labor organization- In the latter part of January 1959, the AFL-CIO, in response to a request by employee William McBeth, sent an organizer to Hot Springs, and a campaign was launched to organize the Respondent's employees. For some reason the record leaves obscure, the Teamsters was substituted for the AFL-CIO as the campaign's sponsor about the middle of February. Employees who had theretofore signed up with the AFL-CIO transferred their designations to the Teamsters. Under the Teamsters' direction a number of employees' meetings were held, and employee organizers, particularly Moore and Brewer, engaged actively in the solicitation of union designation cards. Apparently, the organizational efforts met with some measure of success. On March 25, 1959, the Union, claiming a majority, made a bargaining demand on the Respondent, and followed it up the next day with a peti- tion to the Board seeking certification as bargaining representative . As of the time of the hearing in this proceeding , the representation case before the Board (Case No. 32-RC-1250) was still pending undetermined (126 NLRB 400). The record makes it quite clear that the Respondent was strongly opposed to the organization of its employees , at least by the Teamsters ; indeed , the Respondent at the hearing virtually conceded as much . The Respondent made no effort to conceal, on the contrary it went out of its way to point up, its dislike of the Union. Thus, for example, Catering Manager Cameron-as appears from his testimony- acting on specific instructions from Resident Manager May, called a meeting of all dining room and kitchen employees early in the organizational campaign. In an address to the assembled employees , numbering some 100 in all, Cameron spoke disparagingly of the Union and in effect urged the employees to steer clear of it. The law, of course, does not require an employer to be receptive to union organiza- tion, and mere opposition to it, though expressed, does not spell out an unfair labor practice. An employer's attitude toward union organization is, however, a con- sideration not to be ignored in the appraisal of motivation where motivation is material to a determination of the legality or illegality of specific conduct , as it is in this case with respect to the alleged acts of discrimination . It is for that reason that the Respondent's hostility is mentioned here. In any event, the General Counsel complains that the Respondent did not stop with mere expressions of opinion, but went further, and-even apart from the alleged discriminatory discharges-engaged in conduct that was inherently coercive of employee rights safeguarded by Section 7. The respects in which the General Counsel alleges that was done have already been stated . The extent to which the record supports the complaint's allegations of independent 8(a)(1) conduct will now be considered. ARLINGTON HOTEL COMPANY, INC. 743 C. Interference, restraint, and coercion 1. Threats of reprisal (a) From the uncontradicted and credited testimony of Louise Burks, corrob- orated in part by the similarly uncontradicted and credited testimony of former employee Nora Coburn, the following appears: About the end of February 1959, General Manager McEachin had a conversation concerning the Union with Head Cleaner Louise Burks.' McEachin told Burks that the employees didn't need a union and would be better off without one. Burks, concealing from McEachin that she herself had previously signed a union card, disclaimed any personal interest in the Union. Thereupon, McEachin said, "Well, some of them are in this mess and you tell them they had better let it alone for I am going to fire every damn one that has anything to do with it." Acting on McEachin's instructions, Burks immediately thereafter spoke to the cleaners under her supervision, including Nora Coburn, and relayed to them McEachin's message It is found that by the aforesaid threat of economic reprisal made by McEachin and transmitted at his instruction to employees by Burks, herself a supervisory employee, the Respondent violated Section 8(a)( I) of the Act. (b) During March 1959, Head Waiter Sterling Smith, Jr., asked Robert Perkins, a waiter in the Respondent's employ, if he had been to the union hall. When Perkins replied that he had not, Smith said, "Whether you have or have not been, don't go, because Mr. Cameron tells me that he is going to lay off two of his old waiters and one is Oza Brewer." 2 Brewer at that time was the leading proponent among the waiters of the Union's cause, and was known as such to both Perkins and Smith Smith's remarks, it is found, clearly implied that the Respondent was either keeping the Union's meetings under surveillance or else had access to information as to who attended them; further, that those who chose to be active in the Union could elect that course only at the risk of possible job forfeiture. For that reason, and also because of Smith's interrogation of Perkins concerning his union activities, Smith's aforesaid remarks, it is found, constituted unlawful interference, restraint, and coercion within the meaning of Section 8 (a) (1). (c) On one occasion shortly before the beginning of the 1959 racing season, Sterling Smith, Jr., asked McKinley Graham, employed under him as a waiter, whether he belonged to the Union. When Graham said "Yes." Smith warned Graham to be careful, adding, "If I were you, I wouldn't go to the meetings." Because of Smith's warning, which, it is found, clearly implied that union support carried with it the risk of reprisal action by the Respondent, Graham refrained from attending further meetings thereafter.3 Smith's aforesaid remarks, it is found, constituted interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. (d) About the first or second week of March 1959, General Manager McEachin approached employee C. A Rutledge at his work station, placed his arm about Rutledge's shoulder in a friendly manner, and said, "Did you know you came pretty near being let out on account of this union activity." 4 As will more fully appear below, Rutledge, nevertheless, continued to maintain his union interest and was later terminated . McEachin's aforesaid remarks to Rutledge contained, it is found, a thinly veiled warning that union activity was considered by the Respond- ent a possible basis for discharge, and, as such, was unlawfully coercive within the meaning of Section 8 (a) (1). (e) About the first or second week of March 1959, Chief Telephone-Operator Hays told Vera McBeth that it would be best for the employees not to have anything to do with the Union, and at the same time warned Mrs. McBeth that if the employees 2As head cleaner, Burks had supervisory authority over five employees 2 The factual findings of what Smith said to Perkins are based upon Perkins' credited testimony. Smith admitted inquiring of Perkins whether he joined the Union, but denied making any mention of Brewer. Elsewhere in his testimony, however, Smith conceded that he advised Perkins not to "fool" with the Union, and on cross-examination explained that he did so because he had heard "rumors," and, as a friend of Perkins and his family, wanted Perkins to maintain "a clean slate" and not do anything that might prejudice his job or family. 3 The findings here made are based upon the testimony of Graham, who, though called by the General Counsel, was a clearly hostile witness. Graham's testimony was not substantially ;disputed , by Smith? 4 This finding is based upon Rutledge's credited and undenied testimony. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joined the Union, Mrs. McBeth would probably be the first one let out.5 Mrs. Hays' aforesaid remarks, it is found were violative of Section 8(a) (1). (f) About February 15, 1959 , Chef Roux in a conversation with employee John Moore concerning the organizational campaign, warned Moore, "John, don't you have anything to do with the organization of the hotel, you keep your nose clean." 6 In an earlier conversation with Moore some weeks earlier, before Roux was ap- parently aware that the hotel employees were being organized , Roux had expressed his personal belief that a "workingman is a damn fool if he doesn 't belong to some kind of organized labor." In the circumstances, and considering that Roux occupied a position of control over Moore's employment, Roux's February 15 statement to Moore may not fairly be viewed as an expression of a view, argument , or opinion, immune under Section 8 (c). Rather, I believe it must be considered-the record shows Moore so considered it-as a supervisory instruction containing an implicit threat that violation of the instruction might lead to employer reprisal action. I find that Roux's instruction to Moore was coercive within the meaning of Section 8(a)(1). 2. Unlawful interrogation The record discloses a number of instances during February and March 1959 of interrogation of employees by the Respondent's managerial and supervisory person- nel concerning the employees' union membership , activities, and desires . Sterling Smith's interrogation of employees Perkins and Graham has already been adverted to. In addition, as uncontradicted testimony establishes , General Manager Mc- Eachin on one occasion in effect interrogated employee Moore as to his membership in the Union, at the same time expressing his opposition to the Union; Catering Manager Cameron similarly interrogated employee Perkins and also employee McKinley Graham ; and Chief Telephone Operator Hays on a number of occasions sought to elicit information from employee Vera McBeth concerning the union meet- ings that were being held. It is found that such interrogation , when considered against the backdrop of the Respondent's other unfair labor practices as herein found, constituted unlawful interference, restraint, and coercion within the meaning of Section 8 (a)( I). 3. Coercion of witness Robert Perkins, a regular waiter of the Respondent, normally left the Respond- ent's employ in the spring to accept summer employment at a hotel in Utah, and returned about October to work for the Respondent during its fall and winter sea- son. Perkins was served with a subpena to appear as a witness for the General Counsel in this proceeding. On Saturday, September 12, 1959, 3 days before the hearing opened , Head Waiter Sterling Smith, Jr., ran into Perkins in front of the latter's home, and inquired what he was doing back in Hot Springs so early. Dur- ing the course of their ensuing conversation , Perkins volunteered the information that he had a subpena to appear as a witness in this proceeding . Smith asked on what side Perkins was appearing, and Perkins told him on the Federal side. Smith then warned Perkins, "Whatever you do, don't speak against me or Mr. Cameron because it would jeopardize your job." 7 Under Section 7 of the Act, employees are vouchsafed the right, inter alia, to assist labor organizations . To threaten an em- ployee with job reprisal if he assists a union by testifying in its favor , is to transgress that right. Fox Midwest Amusement Corporation, et al., 98 NLRB 699, 719. Smith's warning to Perkins was thus clearly violative of Section 8(a)(1). The This finding is based upon Vera McBeth 's credited and undenied testimony. The finding made as to this conversation Is based upon the testimony of Moore who impressed me as a completely forthright witness Roux's denial is not credited. 7 The findings of fact here made are based upon Perkins ' testimony , credited in this re- spect. Smith admitted having a conversation with Perkins on this occasion , but denied making any comment whatever in response to Perkins ' advice that he had a subpena. The matter interested him "not a bit ," 'testified Smith It is significant, however, that on the following day, Smith, as his own testimony discloses , reported to the Respondent's counsel that Perkins had received a subpena, and arranged to visit Perkins ' house in the company of the Respondent's counsel . Smith's account as to how he came to mention the matter to the Respondent's counsel and what occurred when the two were at Perkins' home was patently incredible in a number of respects ; for example, his testimony at one point that the Respondent's counsel did not ask Perkins a single question during the 45 minutes they were at Perkins ' home, even though the visit was admittedly 'for the express purpose of determining what Perkins would testify to at the hearing Of the two, Perkins Impressed me as the more credible and reliable witness, and I accept his assertion of what was said over Smith's denial ARLINGTON HOTEL COMPANY, INC. 745 validity of this finding is not negated by the fact that the Respondent subsequently reemployed Perkins, although he appeared and testified despite the warning. 4. Alleged surveillance Oza Brewer testified that sometime after his discharge-on the evening of April 8, 1959, to be exact-he was on his way to a union meeting accompanied by two others whose names he gave-according to the transcript-as Larry Ratford and Jessie Lee Williams. He identified Ratford as his nephew who was employed at that time by the Respondent in its laundry. Although Brewer's testimony at one or two points appears ambiguous as to this, I am satisfied from all his testimony that he did not also identify Williams as a hotel employee. As they neared the union hall-Brewer's testimony continued-he observed a car with four occupants suspiciously parked across the street from the union hall. He told the two with him to stand back in the shadows so that they could not be identified "because I didn't want them to be fired because he [Ratfordl was still working there." 8 Brewer then approached close to the car and observed that one of its occupants was Resident Manager May-the others he was unable to recognize. May denied he was present at the time and place mentioned. He also testified that a check made by him of the hotel's payroll records for the year 1959 failed to disclose the names of "Ratford" or Williams as having been employees of the hotel during that year. Neither of the two just named was called by the General Counsel as a corroborating witness for Brewer; Brewer explained while testifying that the former was then in a distant State and the latter was in jail. Resolution of the surveillance issue thus presents at its threshold a straight credi- bility conflict. As will more fully appear below, May's testimony in certain material respects unrelated to the surveillance issue was patently not credible, thus rendering also suspect his testimony on other controverted issues. Brewer, on the other hand, left a favorable impression on me while testifying. His testimony on the surveillance issue seemed to me when given to carry considerable conviction; it was marked with what I then thought was convincing detail; and he successfully withstood on the whole a vigorous and searching cross-examination by Respondent's counsel on that issue. May's testimony, that "Ratford" was not an employee, if accepted, does raise, however, a substantial doubt as to Brewer's veracity. If Brewer lied on that point, there is a proper basis for inference that he also lied on others. But the problem of credibility in this case is not that simple; it is further complicated by the following: After the hearing the General Counsel filed a motion to correct transcript, request- ing that the name Larry Ratford be changed wherever it appears in Brewer's testi- mony to Larry Raffeet. Attached to the motion is an affidavit from one, Lawrence Raffeet, who states that he is generally known as Larry, that he is a nephew of Brewer, that he worked in the Respondent's laundry at the time of the alleged sur- veillance; and that he was present with Brewer and Jessie Lee Williams as described by Brewer in his testimony. Also attached is a payroll record as of the last half of April 1959 that the Respondent had submitted to the Board's Regional Office in connection with a pending representation proceeding. The payroll record carries the name of Lawrence Raffeet as a wringer. The General Counsel's motion, however, is unsupported by any affidavit by Brewer or anyone else that Brewer in his testimony actually said "Raffeet" instead of "Ratford." By order of the Trial Examiner, the Respondent was directed to show cause why the transcript should not be corrected as requested and why the aforesaid payroll record should not be considered as an exhibit in this proceeding. In response, the Respondent submitted a statement op- posing the motion, largely upon the ground that no basis exists for correcting a record without supporting proof that the matter claimed to be erroneously tran- scribed was actually stated differently by the witness while testifying. In addition, it was contended that Brewer actually said "Ratford," not "Raffeet." To support that contention, the Respondent appended to its statement an affidavit by one of Re- spondent's counsel and a letter from the official court reporter. The affidavit states that counsel heard Brewer say "Ratford," and so entered it on his hearing notes. The letter states that the transcript accurately reflects the reporter's notes which were 8 The reference to "them" at this point creates the ambiguity referred to above. Note, however, that Brewer in the same breath referred only to Ratford as still working there Such ambiguity was cleared up on Brewer's cross-examination when Brewer was asked, "Now Oza, at the time you saw this man you say was Mr. May, was there any other employees of the hotel standing in front of the union hall?" To that, Brewer answered, "Only my nephew Larry Ratford that was with me that I told to stand back in the shadows is the only one I know of." 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken according to the sound and phonetic spelling of the name as heard by the reporter. The Trial Examiner himself has no independent recollection of the precise name uttered by Brewer , nor do his hearing notes aid him. Bearing in mind that the sound of "Raiford" and of "Raffeet" are not too dissimilar and might be con- fused if even slightly slurred and that the record shows the reporter made other errors in the transcription of names, the Trial Examiner believes it possible that Brewer may have said "Raffeet" and been misunderstood , or else might himself have mispronounced the name intended . However, on the state of the papers before me, and my own lack of recollection , I agree with the Respondent that the General Counsel's motion is in reality a motion to adduce further evidence , and does not supply a sufficient foundation for correction of the record. Perhaps the proper course would be for me to reopen the record to take further evidence relating to the points raised in the General Counsel's motion and con- troverted by the Respondent I believe that such a further hearing is essential to me if I am fairly to resolve the credibility conflict between Brewer and May. How- ever, another consideration to which I have given greater weight is that the unfair labor practices herein found are in any event more than sufficient to support a broad cease and desist order, making such reopening not worth the candle , consider- ing the added time and expense involved . Consequently, and without passing on the credibility conflict, I simply rule that on the basis of the record as it stands, I am un- able to find that the Respondent engaged in surveillance as alleged in the complaint. Solely on the basis of the reason stated, I shall recommend dismissal of the surveil- lance allegation. D. Discrimination 1. The discharge of William McBeth William McBeth was employed at the hotel continuously from Novemlier 14, 1950, to January 27, 1959, the last 6 years as a watchman. His work station at the times here relevant was at a booth near the hotel's rear door, one of numerous en- trances to the hotel. It was his duty to check employees entering and leaving the hotel as well as all incoming and outgoing packages and deliveries . McBeth's im- mediate supervisor was House Officer George W. Sass. As earlier found, McBeth requested the AFL-CIO in Dallas, Texas, to send an organizer to Hot Springs for .the purpose of organizing the Respondent's employees. In response to McBeth 's request, an organizer named Wells came to McBeth's home on January 24, 1959. McBeth, accompanied by Wells, visited numerous hotel employees that day in an effort to interest them in union organization. Among those whom McBeth solicited were two minor supervisors -Sass, his own immediate supervisor, and Maceo Butler, the Respondent's assistant bell captain , to whose supervisory status the Respondent stipulated .9 McBeth continued active organiza- tional efforts on Sunday, January 25, and on Monday, January 26. McBeth was discharged on Tuesday, January 27, 1959, a day which fell in the middle of the Respondent's pay period.10 McBeth did not work on the day preced- ing his discharge, Monday being his day off. On the day he last worked, he was given no indication that the Respondent planned to release him. The decision to discharge McBeth was apparently made early in the afternoon of January 27. On that day, Sass was not scheduled to report for work until 7 p.m. McBeth's shift hours were from 4 p.m. to midnight. Resident Manager May telephoned Sass at about 2 p m . and instructed him to come in before 4 p m. to relieve McBeth. Shortly after McBeth reported for work that afternoon, Sass came in and told McBeth to report to May's office, commenting at the same time that he thought McBeth was through. In response to McBeth's query as to what it was all about, Sass said he thought it was over the Union .li When McBeth reported at May's office, May told him he was being discharged , effective at once. May gave as his reason that McBeth was incompetent and was "letting them carry the hotel out the back door." I Both Sass and Butler admitted that McBeth asked them to sign union designation cards. They denied, however, that they reported that fact to higher management. 10 The Respondent's normal paydays are on the 5th and 20th of each month n The findings as to what Sass said to McBeth are based on McBeth 's credited testi- mony. Sass denied saying anything to MeBeth, other than that he was to report to May Sass testified that May had not previously told him why he was to relieve McBeth and that he did not then know that McBeth was slated to be discharged. In that respect, however, Sass' testimony is at variance with that of May, who admitted he told Sass when he called him earlier that afternoon that he was going to let McBeth go. ARLINGTON HOTEL COMPANY , INC. 747 As earlier noted, the Respondent contends that McBeth was fired for just cause. Amplifying that contention in his opening statement the Respondent 's counsel stated: The just cause that we will attempt to prove . . . consists in sleeping on the job and not being attentive to his job after being cautioned . That while he was at his post at the back door . . the Arlington Hotel lost certain large items of furnishings that could not have gotten out of the hotel any other way except through his exit, and that in general he had become an undesirable employee over a period of time. That he was grossly inefficient. To support its defense , the Respondent relied almost entirely upon testimony by May. Sass, whom the Respondent also called as a witness , testified he knew noth- ing about McBeth's inefficiency, except that General Manager McEachin had once ,complained to him, about 3 weeks before McBeth's discharge, that he had observed McBeth sleeping on the job. As far as he could see, testified Sass, all the watchmen working under him were all right. May testified that some time before McBeth's discharge-his testimony does not disclose the precise date-McEachin reported to him that he had observed McBeth sleeping on his job; that he himself had observed McBeth failing to inspect packages employees were carrying out of the hotel; that about 10 days before McBeth's discharge, he warned McBeth that he was not doing his job and that he would have to do better if he wanted to remain ; and that McBeth nevertheless failed to show an improvement in his work. But, according to May, the final "straw that broke the camel's back"-the words are May's-and directly prompted his discharge decision was the theft from the hotel of some wall-to-wall carpeting which a carpetlayer had been installing in a room in an upper floor of the hotel . May testified he concluded that the carpeting could have left the hotel only through the rear door McBeth was required to guard, and that McBeth must have been at fault in not detecting it. The theft occurred, May stated, after his warning to McBeth and about a week before McBeth's discharge. McBeth denied that he ever actually fell asleep on the job but conceded that on one occasion, several weeks before his discharge , Sass-not May-transmitted to him a complaint that McEachin had made to that effect, and at the same time cautioned him not to allow it to recur.12 McBeth testified that he had never other- wise been reprimanded by Sass, or warned by Sass or anyone else connected with management that he was in danger of losing his job. As for the stolen carpeting, McBeth recalled that a substantial time before his discharge-McBeth fixed the time as in the fall of 1958-Sass on one occasion had mentioned to him that a roomful of carpeting had disappeared from the hotel . 13 But he insisted-and in this respect his testimony was not disputed by May-that nothing specifically was said to him of any missing carpeting at the time of his discharge. To the extent that May's testimony collides with that of McBeth, I credit McBeth. On the basis of my appraisal of the overall testimony and demeanor of both witnesses , McBeth seemed to me the more truthful of the two. May's generalized references to McBeth's asserted failure to inspect packages , made without specifica- tion of detail , except for the alleged carpeting incident , impressed me as contrived. So, too, did his testimony as to the warning he says he personally gave McBeth about 10 days before McBeth's discharge. As for May's assertion that the stolen carpeting constituted the fracturing straw that made him decide that McBeth should be dis- charged at once, May's testimony considered in toto is so inherently implausible on its face as to bear its own death wound . For purposes of consideration here, I accept May's testimony that carpeting was stolen from the hotel about a week prior to McBeth's discharge. But I think it perfectly clear from May's own account of what happened that he could not possibly have considered McBeth at fault. To begin with, it is quite clear that the rear exit which McBeth guarded when on duty was only one of a number of exits through which the carpeting might have been 'a McEachin did not testify and there is no direct evidence in the record to refute McBeth 's denial that he was actually asleep on the occasion in question It would appear, however, 'from McBeth 's own testimony that even if McBeth was not actually asleep at the time , McEachin could reasonably have formed the impression that he was is This may have involved another incident When May's attention was called during his cross-examination to the discrepancy between his testimony and that of McBeth as to the date of the missing carpeting , May stated that other carpeting had been found missing in the fall of 1958. Sass, the only other witness who was questioned on this point, testified that he had heard of some missing carpeting during the "winter" of 1958-59, but that the matter had never been discussed specifically with him. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD removed.14 Far more important , however, May was aware, as his own testimony shows, that McBeth was not the watchman on duty at the time the carpeting disappeared. It is undisputed that McBeth 's tour of duty at that time was from 4 p.m. to midnight . And, according to May, the theft occurred between 11 : 30 a.m. and 1 p.m., while the carpetlayer was out to lunch . When this was pointed up during May's examination, May stated that he nevertheless reasoned that the carpeting must have been carried out with the trash that was taken from the hotel at about 4 p.m. when McBeth began his tour of duty. But that assertion is belied by May's own further testimony that , immediately upon discovering the loss of the carpeting at about 1:30 p .m., he caused a thorough investigation to be made throughout the hotel, including a search of all trash , but that the investigation failed to uncover the missing carpet. Moreover, May was unable plausibly to explain why, if the carpeting theft was the "straw that broke the camel 's back," he waited more than a week before dis- charging McBeth and never made any mention at all of that incident to McBeth. The only explanation he could give for the delay was that he wanted to be fair to McBeth, and therefore continued to search for the carpet throughout that week in the hope that somehow something might be discovered. But I find that unconvincing, and particularly so in the light of House Officer Sass' testimony that May never so much as mentioned to him the loss of carpeting. May's only explanation for not mentioning the missing carpeting to McBeth at the time of the discharge was that he wanted to let McBeth off easy in consideration of McBeth 's advanced age. But that explanation scarcely rings true when it is considered that May showed no such sensitivity for McBeth's feelings when he accused him to his face of inefficiency and not doing his job. To sum up: while the Respondent may have had just cause to discharge McBeth when it found him, or believed it found him , asleep on his job, it took no such action then , and in view of the hiatus in time, I do not believe that the action it did take some 3 weeks later was in truth predicated on that incident . The remaining specifications the Respondent has assigned for its discharge decision , particularly the carpeting incident which May says triggered his decision , I reject as not credible for reasons already stated . The key to the Respondent's sudden decision in the middle of a pay period to discharge McBeth after more than 8 years' service must be sought elsewhere. It is to be found-I am persuaded on all the evidence-in the Respondent's hostility to McBeth's organizational efforts and a purpose to make an example of him to discourage others from like efforts . That, in my judgment, is the only reasonable inference that may be drawn when the following considerations are cumulatively taken into account : ( 1) The significant timing of McBeth's dis- charge in relation to his initiation shortly before of a union organizational cam- paign ; (2) the Respondent's marked antipathy toward union organization of its employees and its disregard of employee protected rights, as evidenced by the record as a whole; (3) the statement by McBeth's immediate supervisor that he thought McBeth was through because of the Union ; (4) the false and unconvincing reasons advanced by the Respondent in an effort to explain the discharge on a lawful basis; and (5) the absence , so far as appears , of any other immediately precipitating reason for the action taken. In reaching my conclusion that McBeth's discharge was motivated by discrimina- tory considerations, I have been mindful of the absence in this record of any direct evidence that May had knowledge of McBeth 's union activities . May disclaimed such knowledge, and the two minor supervisors , Sass and Butler, both of whom concededly had knowledge, each denied passing it along the higher management. On the facts of this case , however, I do not consider the absence of such direct evidence fatal to the conclusion reached . The principle that knowledge of union activities , no less than discriminatory motivation , may be, and often of necessity must be, based upon reasonable inference drawn from circumstantial evidence, is one firmly rooted in Board and judicial precedent .15 The totality of the circum- stantial evidence present in this record is of more than sufficient strength, I am persuaded, to discredit May's denial and to affirmatively support a solid inference of knowledge . Thus, the record shows that during the 3 days immediately preceding his discharge, McBeth , accompanied at least for a time by an outside organizer, 14 The hotel also has a car exit , a front exit with three doors, exits from each of the fifth and sixth floors on to a common ramp leading to a mountainside , and two exits through an arcade ss See, e g., N.L R.B v . Link-Belt Co , 311 U S 584 , 602: F. W Woolworth Company v. Ni R B , 121 F. 2d 658, 660 (C A. 2 ) , Wiese Plow Welding Co , Inc., 123 NLRB 616, and cases cited, footnote 1 ARLINGTON HOTEL COMPANY, INC. 749 conducted both at employees' homes and on hotel property an open and intensive organizational drive, soliciting numerous employees, including among them two supervisors. In a closely knit and relatively small organization such as the Respond- ent's, it is reasonable to infer that news of such a campaign, as well as the name of the moving spirit behind it, was the kind of intelligence that was likely in relatively short order to percolate to the attention of management officials. 16 See, e.g., Bituminous Material & Supply Co., 124 NLRB 1007, and cases there cited. Thus, too, the record shows that Sass commented to McBeth when he sent McBeth to May's office that he thought McBeth was through because of the Union. Since, as May's testimony shows, Sass had previously been advised by May that McBeth was to be discharged, it is reasonable to infer that information simultaneously derived from May as to the reason for the discharge provided the basis for Sass' comment. Perhaps the circumstances mentioned would not be sufficient, standing alone, to offset May's denial of knowledge. But when to them are added the other circumstances outlined above that have been found to support an inference on unlawful motivation, especially the timing of the discharge and the Respondent's inability to account for McBeth's discharge at that particular time on any plausible basis unrelated to his union activity, the conclusion is inescapable that May must have possessed knowledge of McBeth's union activities and have acted on that premise. I so find. I conclude and find that the General Counsel has proved the complaint's allega- tions relating to McBeth's discriminatory discharge by a fair preponderance of credible evidence. 2. The termination of John C. Moore The precise issue is whether Moore was discriminatorily discharged on March 7, 1959, as alleged in the complaint, or whether he of his own free will quit the Respondent's employment on that date, as affirmatively pleaded in the Respondent's answer. Moore, a broiler cook, was employed in the Respondent's kitchen for a period of some 7 years prior to March 7, 1959. He worked under Chef Jean Roux who had full supervision over kitchen operations and hired and fired kitchen personnel. Broiler cooks are hard to come by, and Moore was admittedly considered a good and valuable employee. About a month or so before the end of his employment, management officials, including McEachin and May, went out of their way to induce Moore not to leave the hotel for a higher paying job he had been offered at a neighboring restaurant. Moore signed an AFL-CIO designation card about the end of January, after he had been solicited to do so by McBeth. Along with other employees who had signed such cards, he later transferred his designation to the Teamsters. Moore became very active in the organizational effort, personally obtaining during the remaining period of his employment about 50 employee signatures to union designation cards. It is not disputed that management representatives became aware of Moore's union interest and activities somewhere along the line. As has already been found, on one occasion about the middle of February, Chef Roux warned Moore, "John, don't you have anything to do with the organization of the hotel. You keep your nose clean." On a later occasion, General Manager McEachin approached Moore in the kitchen, stated that he understood Moore was engaged in organizing for the Teamsters, and asked Moore what he had to say for himself. Moore made no effort to conceal from McEachin his advocacy of union organization. McEachin at that time professed that he, too, was "in favor of a trades union," but "not in favor of organizing all these dishwashers," and certainly not in favor of a labor organization such as the Teamsters. When Moore in response charged to McEachin's face that "the Arlington Hotel would be against any union that was strong enough to do the workers any good," McEachin simply replied, "I suppose you are right," and abruptly terminated the conversation. About 2 or 3 days after his conversation with McEachin-on March 7, 1959, to be exact-Moore's employment with the Respondent came to an end. There is a substantial conflict between the testimony of Moore and that of Chef Roux as to what occurred that day. ie Indeed, the validity of such an inference is confirmed by the testimony of Chef Roux who, testifying concerning the later discharge of John Moore, stated that lie was aware of Moore's solicitation activities in part as a result of voluntary reports made to him by employees under him who had been solicited 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This is -Moore's version: When Moore came to work on the morning of March 7, he found that another cook, apparently newly hired, had been placed at his station. This was the first time in 7 years anyone had been placed at Moore's station to help him out. Roux walked over to Moore's station and-in the words of Moore-the following occurred: [Roux] said, "John, due to your union activities you certainly messed yourself up with this company. I'm sorry but I can't do anything about it." He walked off and came back very shortly and said, "John, according-due to your union activities they are going to fire you. They are going to give you about three days to get a job and 1 suggest that you be looking for one." He hesi- tated a few moments and he said, "In fact, I suggest that you call Al Gideon [the Chef at a nearby motel], he might be able to place you." I said, "Well, Chef, you do what you are supposed to and I'll do what I'm supposed to do Acting on Roux's suggestion, Moore that same day made an appointment with Gideon and arranged to begin work at Gideon's motel the following morning. Later in the day, Moore returned to the Arlington Hotel and advised the night chef that he had taken Roux at his word, had secured another job, and would not be back. Moore did not thereafter return to the hotel. This is Chef Roux's version: On the morning of March 7, he received a com- plaint that Moore was soliciting employees during working hours. He told Moore, "John, now you are getting in dutch with me. I don't want you to bother employees while they are on duty. Do whatever kind of work you have to do for the Union [on the outside]." Moore said nothing except "Yes sir" and "No sir." When Moore's shift ended at noon that day, Moore left without saying anything to Roux, and never returned to work at the hotel. Roux was later told that Moore had come in the same evening to pick up his tools. Roux made no effort to contact Moore to find out why he had left. Roux denied that any conversation occurred such as was related by Moore, and Moore denied Roux admonished him not to solicit on company time. The versions of the two are thus irreconcilable, and resolution of the conflict must turn on credibility. Moore testified with considerable conviction and convincing detail and generally impressed me as a sincere and truthful witness. He had, of course, a self-interest to serve, but his testimony did not disclose a disposition to give self-interest para- mountcy over accuracy in the recital of the facts as he recalled them. Taking into consideration the surrounding circumstances, his account of what Roux said to him appears to me quite plausible. Roux and Moore had long worked together and were personally on friendly terms. For 7 years Moore had worked his station alone, and now for the first time there had just been added a new employee, to all appearances for the purpose of training that employee to take over Moore's job.17 In these circumstances, I think it entirely likely that Roux (untrained in labor rela- tions law and not thinking of the possible legal consequences of his words) con- sidered that the situation and his friendship for Moore called for an honest disclosure to Moore of what was about to happen to him, and why, as well as assistance to Moore in obtaining another job to replace the one from which he was already slated to be discharged Roux did not similarly impress me as a witness, either by his overall testimony or by his testimony immediately at issue. His account of what he said to Moore on the morning of March 7 strikingly resembled, indeed it was virtually a paraphrase of, an earlier conversation he says he had with Moore, thus suggesting that he may have reported it out of context. Moreover, I find it difficult to believe that if Moore had simply quit of his own free will and without apparent reason, as Roux would have it believed, Roux would not at least have made some effort to communicate with him and determine why. As the record shows, Roux considered Moore a "very good" employee, broiler cooks such as Moore were hard to come by, and the Respondent was then in the midst of its busy season. Significantly, only about a month before, when Moore had received another job offer, management officials had taken special pains to dissuade him from leaving. Roux's contrasting attitude on the occasion in question can therefore scarcely be attributed to normal disin- terest. It is more reasonable to believe that Roux did not attempt to contact Moore because he already knew the precise reason for Moore's leaving-that set forth by Moore in his testimony. 11 Moore's testimony concerning the addition of the new cook at his station was not disputed. The Respondent at the hearing gave no explanation for the addition. ARLINGTON HOTEL COMPANY, INC. 751 In resolving the factual conflict, I have not failed to consider that the efforts of May and McEachin about a month before to dissuade Moore from leaving may arguably be interpreted as reflecting the absence of a discriminatory motive as to Moore. But I believe that consideration is outweighed by the others that have been mentioned, as well as by the abundant record evidence in this case showing the Respondent's hostility to the Union and those active on its behalf. Even if it be assumed that McEachin and May were already aware of Moore's union activities on the earlier occasion, their anxiety to retain his services may well have been due to their inability at that time to obtain a replacement for him-but by March 7 a replacement was at hand. It is significant, too, that the events of March 7 followed by only 2 days or so McEachin's interrogation of Moore, during which Moore defi- antly made clear his intention to continue to support the Union notwithstanding McEachin's expressed opposition to it. For the reasons stated above, I credit Moore's version of the disputed facts and make findings of fact in accordance therewith. The findings so made do not, however, answer all questions in this case. There can be no doubt, of course, that they establish a violation of Section 8(a)(1). But the question remains: Are such facts also sufficient to establish the complaint's alle- gation that Moore became the victim of a discriminatory "discharge," warranting as to him the usual reinstatement and backpay remedial order? On the particular facts of this case, that question, I am persuaded, must be answered in the affirmative. I think it quite clear that Roux's statements to Moore went far beyond a simple coercive warning to him of future discharge should he persist in his union activities. In context, Roux's statements, I am persuaded, amount to an announcement to Moore that the Respondent had already undertaken discriminatory action with regard to his tenure of employment. Roux's references to Moore's discharge were couched not in language of what might happen (e.g , "they may fire you" or "they will fire you, if . . .), but in terms of a discharge decision already made, and one, moreover, that was irrevocable as far as Roux was concerned ("I'm sorry but I can't do anything about it . . . they are going to fire you.") The finality of the discharge decision was emphasized by Roux's "suggestion" that Moore set about at once to find another job. And it was further pointed up by the assign- ment to Moore's work station that morning of a newly hired cook who Moore could reasonably infer was placed there for the purpose of having him trained as Moore's replacement. In evaluating the meaning that Roux's statements could be expected to cpnvey to Moore, it must also be remembered that Roux was the "boss" of the kitchen, the supervisor who possessed and exercised complete power to hire and fire kitchen personnel such as Moore, and the Respondent's agent through whom discharge decisions, even when not personally made by him, would normally be communicated to kitchen personnel. Considering what was said, who said it, and the setting in which it was said, Moore was reasonably warranted in concluding from Roux's advice-to-wit, that Moore was going to be given about 3 days to get another job, that there was nothing Roux could do about it, and that Moore should look for another job at once-that Roux was in effect giving him a notice of discharge, definite in all respects, with only the effective termination date postponed and perhaps still not precisely settled, but even with that imminent, possibly a matter of 3 days or so. Having thus been put on actual notice of discriminatory action against him, already irrevocably decided upon, Moore was entirely justified in seeking and accepting employment elsewhere in anticipation of his imminent discharge. Since Moore's leaving the employment of the Respondent was a direct consequence of the Re- spondent's announced decision discriminatorily to cut short his tenure of employ- ment, and would not have occurred but for it, his termination may not be viewed as a "voluntary" quitting of his employment in any sense critical to the issue here. The Respondent is scarcely in a position to assert, indeed it is estopped from asserting, that Moore "beat the gun" by not waiting until after the date his termination actually became effective, and thereby forfeited any right to claim he was "discharged" and to seek remedial relief on that basis. For Moore in doing what he did, acted at the direct instigation of the Respondent's agent, Roux, and in exact accordance with Roux's advice. Under all the circumstances, I find that the termination of Moore's employment was not voluntary, but was tantamount to a discharge, unlawfully dis- criminatory in character.18 On the basis of the findings and for the reasons set out above, it is concluded and found that the allegations of the complaint relating to Moore's discriminatory discharge have been sustained. 'B See The Federbush Co , Inc, 34 NLRB 539 , 550-553; Jos N Four , nser, Rome Lincoln- Mercury Corp ., 86 NLRB 397 , 405 Cf. Hamilton-Scheu & Walsh Shoe Co., 80 NLRB 1496. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharge of Oza Brewer Oza Brewer was one of the Respondent's "old-time" waiters. He began at the hotel in 1946 , worked some each year until 1953, and thereafter-except for 2 or 3 months in 1958, when he voluntarily laid off and then was rehired-worked con- tinuously until his final termination on March 23, 1959. Brewer was one of the first employees to join the Union, having signed a desig- nation card presented him by William McBeth in late January 1959. He later became outstandingly active in the Union's organization campaign, apparently the most active among the waiters. Between February 1, 1959, and his discharge date he obtained about 50 employee signatures to union designation cards. There is ,direct evidence that Sterling Smith, Jr ., the headwaiter and Brewer's supervisor, was aware of Brewer's union activities. Although Smith, a witness for the Respond- ent, on direct examination, denied knowledge of Brewer 's union membership, he later conceded, in response to a question by the Trial Examiner , that he had learned through "rumor" of Brewer's union activity. And to this , he later added that Brewer was the only one among the waiters whom he knew to be active . Further evidence of Smith's knowledge is to be found in the credited testimony of Robert Perkins, earlier considered , concerning Sterling Smith, Jr.'s, admonition given him in March 1959, not to go to a union meeting "because Mr. Cameron tells me he is going to lay off two of the old waiters and one is Oza Brewer." Brewer was terminated on March 23 , 1959, about a week before the end of the racing season. Catering Manager Cameron told Brewer he was letting him go as part of a reduction in force; the specific reason he gave for Brewer 's selection was that Brewer was "dissatisfied." Brewer testified that as far as he was able to determine, no other waiter was laid off at that time, although there may have been others who ,quit of their own accord. Denying that Brewer's termination had any connection with his union activities, the Respondent contends , as appears from its counsel 's opening statement, that Brewer was laid off as part of a normal reduction in force that always follows the ,end of the racing season, and that "his selection as one of the layoffs was due to his ,deficiency and ineptness as a waiter in comparison to others then on the payroll." I consider first whether the record supports the Respondent's assertion that Brewer's layoff was occasioned by a reduction in force which took place at about -that time. As earlier noted, the Respondent's peak business is during the racing season, which in 1959 ran from February 21 to March 28. During that period, the -Respondent normally enlarges its waiters' staff by adding to its crew of regular -waiters a sufficient number of temporary or part-time waiters to meet its needs. At the conclusion of the racing season, the Respondent usually cuts back on its waiter complement . As is "naturally" to be expected-in the words of one of the -Respondent's witnesses-the cutback is usually effected by the elimination of tem- porary seasonal help . There is evidence reflecting that the usual pattern was followed in 1959. Thus, it appears that in February 1959 the Respondent employed on a daily average 76 waiters ; the average number rose to 91 in March; and fell -back to 73 in April. The evidence further reflects, however, that the reduction from an average of 91 in March to an average of 73 in April was at best only partially the result of forced layoffs. The Respondent has an unusually high rate of turnover in its waiter complement resulting from voluntary quits. It is to be noted, however, that Brewer's layoff occurred at a time when the racing season still had about a week to run. In an attempt to justify an earlier than usual layoff in 1959 , the Respondent explained that business during the 1959 racing season had fallen short of expectations, with the result that the Respondent found itself saddled with an excess number of waiters in late March . Cameron testified that about 2 or 3 days before Brewer was separated, he received instructions from -Resident Manager May to effect an immediate reduction of force, and that Brewer was one of the employees affected by that layoff. The difficulty with this explana- tion is that the Respondent was unable to show that any waiter besides Brewer was laid off so early. Cameron testified at first that Brewer was neither the first nor only waiter who was laid off at about that time. And when asked who else was laid off, Cameral named two others. But thereafter, Cameron retracted his testi- mony and admitted that the two whom he named had voluntarily quit for reasons of their own. Cameron was unable to name any others, although the Respondent's records were available to him, and at one point of his testimony indicated uncer- tainty as to whether anyone besides Brewer was actually laid off before the end of ARLINGTON HOTEL COMPANY, INC. 753 the racing season.19 Records of the Respondent, later produced at the request of the Trial Examiner, reflect that only three waiters besides Brewer were separated from the Respondent's employment rolls between the time Cameron says May instructed him to effect a prompt reduction in force and March 27, 1959. Of the three, two were the employees whom Cameron had first named as laid-off employees but later conceded to be voluntary quits. As for the third, apparently a part-time employee who last worked on March 21, the Respondent made no claim that he was laid off. The Respondent's employment records do show a substantial number of separations between March 27 and 30, the period coinciding with the end of the racing season. Of those separated at that time, however, the Respondent could only identify one as a regular waiter, and it concedes that he was not forced out by layoff but left of his own accord. It is further to be noted that after Brewer, a regular waiter, was "reduced," the Respondent continued to retain in its employ at least until the end of the racing season, if not in some cases beyond it, the temporary employees then in its rolls, of whom in excess of 15 had been hired in March alone, the last as recently as March 18. Moreover, during April, as a result of turnover, the Respondent found it necessary to hire three new waiters. On the evidence presented, I am unconvinced that the separation of Brewer, a regular waiter never laid off before, was sparked by a required reduction in force and normal considerations of selection attendant thereon. Though "reduction in force" was given as the reason, I am persuaded that this was a pretext; that Brewer was not at that time "laid off" by virtue of a required reduction in force, but was in fact singled out for discharge for wholly unrelated reasons. But, while of pro- bative value, the use of a pretext does not in itself exclude the possibility that the concealed reason may have been a lawful one. And so I turn to consider next whether the only other reason now suggested by the Respondent-Brewer's alleged "deficiency and ineptness" as a waiter-was in truth the reason that impelled the Respondent to dismiss him. The Respondent makes no claim that Brewer did or failed to do anything in particular close to the time of his dismissal to trigger the action taken, but contends that Brewer had demonstrated his unsuitability as a waiter over a course of time. Cameron, who effected the discharge, testified that Brewer was an undesirable em- ployee because he was indifferent to his job, poor in his work, lacked a pleasing personality, was uncooperative in his relations with other dining room employees, and at times became so sweaty and soiled in the course of his work as to make it necessary for Cameron to admonish him to freshen up and change his uniform. Perhaps because Cameron was conscious of the need of explaining why, if that were true, he had rehired Brewer after Brewer's voluntary layoff in the summer of 1958, Cameron testified at first that prior to his rehire, Brewer had been "just an ordi- nary employee," who had done a "fair job" and had caused no trouble, but that Brewer after his rehire had sharply changed in his attitude toward his work and fellow employees, revealing the deficiencies mentioned above. In that respect, as in others, however, Cameron was not consistent in his testimony. Thus, he testified elsewhere, for example, that his complaints about Brewer's cleanliness had occurred both before and after Brewer's voluntary layoff, and that Brewer had been a "most uncooperative" employee and a source of constant complaints throughout the entire 3-year period he had been catering manager at the hotel. Cameron's testimony concerning Brewer's asserted deficiencies was given in the main in terms of broad generalizations. When pressed for details, he was often vague, indefinite, and evasive in his answers In certain respects, his testimony was self-contradictory In others, his testimony was not supported by other witnesses whom the Respondent called.20 To support its claim that Brewer was an unsuitable employee, the Respondent called, in addition to Cameron, some seven witnesses, of whom five occupied posi- 19 The testimony is as follows : TRIAL EXAMINER • Apart from Oza Brewer, did you actually lay off anyone between March 15 and the end of the race meet1 The WITNESS : I am almost sure I did. TRIAL EXAMINER • But you can't remember the names of any? The WITNESS No, sir m Thus, for example, when asked to state who had complained to him about B 'wer, Cameron named Earl Banks and Frances Bower, among others. Banks and Bower later testified that they had never spoken to Cameron about Brewer. 560940-61-vol. 127-49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions of varying degrees of supervisory authority 21 Through the supervisory em- ployees, particularly Ranurez, Sterling Smith, Jr., and Irving Smith, the Respondent sought to paint a picture of Brewer as a waiter possessing no saving grace. The testimony of each is not the same, of course, but on the basis of their cumulative testimony, the Respondent would have it believed that throughout Brewer's entire employment history, going back to 1946, Brewer was considered an inefficient waiter ("the poorest waiter we ever had," according to Ramirez), a waiter who reported lated for work practically every day, who never cooperated with other waiters, who was a source of constant complaints from other waiters and customers, who had to be admonished to change his uniform and freshen up almost every day, who was constantly insubordinate to his supervisors when asked to change, and with whom other waiters were reluctant to work. As in the case of Cameron, the testimony of these witnesses was given for the most part in terms of broad conclusionary state- ment; efforts to obtain specificity were met in the main by vague and evasive re- sponses; and where details were supplied-for example, with respect to Brewer's alleged lack of cooperation-they related almost entirely to matters occurring before Brewer was last reemployed, going back as far as 6 years In some instances, the witnesses themselves in effect repudiated their own testimony. Thus, for example, Bowers, a captain who was allowed to select his own waiters in the dining room over which he had charge, testified that Brewer had worked for him for 3 years prior to 1958 and had proved most unsatisfactory, but at the same time admitted that each year he had asked for Brewer, explaining, when the obvious inconsistency between his words and deeds was pointed out, that he did so because he hoped to make a good waiter of Brewer. Richard Smith, who is in charge of civic lunches and banquets, testified on direct that Brewer was a "very poor waiter" whom he did not want; but during cross-examination conceded that he had found no specific fault with Brewer other than that Brewer, along with a number of other waiters, was reluctant "to work the clubs" because of the late hours involved, but that so far as Brewer's work was concerned, it "wasn't expecially different" from that of other waiters. The testimony of the supervisory employees, especially Ramirez, Sterling Smith, Jr., and his brother, Irving, impressed me on the whole as being, if not wholly contrived, at least so grossly exaggerated as to be inherently implausible. I am simply unable to believe that any management, no matter how tolerant, would have retained Brewer in its employ for some 13 years if he had even a fraction of the faults the Respondent's witnesses ascribed to him. Except for Cameron, whose testimony in this respect was variable, all the Re- spondent's witnesses questioned on this subject agreed on one point-that Brewer remained the same in his work and habits throughout the course of his employment, without any significant change occurring after he returned from his voluntary layoff in the fall of 1958. Thus, Ramirez testified that Brewer was "always the same" in the 21/2 years that Ramirez was maitre d'hotel prior to Brewer's dismissal; Sterling Smith, that Brewer had maintained a "steady gait" throughout the considerable time they were both at the hotel; and Irving Smith, that Brewer was "no better and no worse" at any time since 1946 Significantly, the two witnesses without supervisory duties who were called by the Respondent did not agree with the overall appraisal of Brewer as a waiter stated by the other Respondent's witnesses. Edward Banks characterized Brewer as a "fair waiter", Robert Meteyer described him as an "average waiter." Banks further testified that he had never noticed anything unusual about Brewer's cleanliness habits. On the point last mentioned, several of the Respondent's witnesses conceded that it is not at all unusual for waiters to become overheated or for their uniforms to become soiled in the course of their work. Brewer admitted that there was one occasion, in the spring of 1958, when Cameron had sent him out of the dining room to freshen up and to change his uniform, but denied that he had ever otherwise been admonished by Cameron or Sterling Smith, Jr. The General Counsel called one rebuttal witness, Kenneth Adair, formerly a waiter at the Arlington Hotel and elsewhere, at present the publisher of a small weekly newspaper, who expressed the opinion that Brewer was as good a waiter as the Arlington had. Adair testified that when he first went to work at the Arlington, Brewer was pointed out to him as one of the older waiters after whom he should try to pattern himself; that he found Brewer most cooperative; that he never heard =Those with supervisory authority were Juan Ramirez, the maitre d'hotel and Cameron's principal assistant, Steiling Smith, Jr, the headwaiter; and three captains of waiters-Irving Smith (brother of Sterling), Richard Smith (no relation), and F. 0 Bowers. ARLINGTON HOTEL COMPANY, INC. 755 complaints about him from other waiters; and that Brewer changed his uniform once a day just as all other waiters did. On all the evidence I find credible, I do not believe the Respondent was motivated to discharge Brewer because of the manner in which he performed his work or conducted himself on the job. As already indicated, I view as patently exaggerated and do not credit much of the testimony the Respondent adduced concerning Brewer's asserted deficiencies Brewer may not have been one of the Respondent's very best waiters, as Adair testified, but I think it reasonable to conclude that he must have been regarded at least as "fair" or "average," as at least two of the Respondent's own witnesses agreed It is inconceivable to me that if Brewer were an unsatisfactory employee, the Respondent would have retained him in its employ for 13 years, the last 6 as a regular waiter; even more inconceivable that it would have rehired Brewer in the fall of 1958, after he had voluntarily left for a time the Respondent's employ. The weight of the evidence, including some of Cameron's own testimony, belies Cameron's assertion that any significant change occurred in Brewer's attitude toward his job or in his work performance after his rehire in 1958 1 am satisfied that any such deficiencies that Brewer might have had as a waiter in 1959, he also had for many years before, and to no greater degree. If notwithstanding any such deficiencies, Cameron considered Brewer a "fair" and trouble-free waiter qualified for renewed employment as late as the fall of 1958-as Cameron testified, and as I believe-what made Cameron find Brewer no longer tolerable as an employee in March 1959? The answer, I am convinced on all the evidence, is to be found in the intervening organizational campaign and the prominent part played by Brewer in it. As found above, Brewer's union activities were admittedly known to Brewer's supervisor, Sterling Smith, Jr., who in an earlier conversation with employee Perkins had pre- dicted Brewer's discharge on that account. Although Cameron, who effected the discharge, disclaimed knowledge of Brewer's union activities, I do not credit his testimony. Cameron at one place in his testimony also insisted that he was unaware of the union's campaign at the hotel until he came,to the hearing. It is quite clear, however, if only from the speech he made to the dining room employees, that Cameron was fully alive to the union campaign, as indeed he later conceded. I think it exceedingly unlikely that Cameron would know of the campaign and yet be ignorant of Brewer's identification with it, for Brewer was not just another union adherent, but one whose outstanding activity among the waiters was a topic of discussion among dining room employees. Moreover, Sterling Smith, who admittedly was aware of Brewer's union activity, was bitterly opposed to the Union, willing, as he himself testified, to "do anything he could to discourage [the Union] from coming into the hotel " The record shows that Smith was quick in another instance to communicate to higher management intelligence acquired by him affecting the Union 22 In these circumstances, I find it difficult to believe, notwithstanding Smith's denial, that Smith refrained from passing on to Cameron, who he knew shared his opposition to the Union, the information he had acquired concerning Brewer's union activities. When the considerations already mentioned are coupled with the strong circum- stantial evidence in this case pointing to unlawful motivation-such as (1) the Respondent's hostility toward union organization and those engaged in it, as re- flected by the record as a whole; (2) the outstanding part played by Brewer in the organizational campaign; (3) the timing of the discharge in relation to the state of union organization; 23 (4) the prediction earlier made by Headwaiter Smith to Perkins about Brewer's imminent discharge because of the Union; (5) the pretextuous reason given Brewer for his termination; and (6) the inability of the Respondent otherwise plausibly to account for Brewer's discharge on any basis unrelated to union activity-an inference fairly emerges, in strength sufficient to overcome the Respondent's denials, that the Respondent not only was aware of Brewer's union activities, but that its knowledge and opposition to such activities weighed more heavily than any others in its decision to fire him, and in fact impelled that decision. It is so found. It is concluded that the General Counsel has sustained the complaint's allegations relating to Brewer's discriminatory discharge by a fair preponderance of credible evidence. 22 Reference is here made to the Perkins' subpena incident discussed in an earlier section of this report 21 The discharge occurred at a time when the organizational campaign was apparently reaching its crest, as is evident from the fact that the Union made its bargaining demand and filed its representation petition some 2 (lays later I 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The discharge of C. A. Rutledge The Respondent normally employs two butchers in its kitchen. That number is enlarged to three during the busy racing season, and often decreased to one during the slow summer months. Clinton A. Rutledge, a butcher of unquestioned high com- petence, worked for the Respondent for a period of some 17 years prior to his termination on March 30, 1959. Normally, he worked the year round-as he did in 1958-although there were some years during that 17-year period.when his employ- ment was not continuous. In the years he was absent for intervals of time, the absences were due to illness or to leaves of absence taken at his own request. At no time prior to his final termination was he involuntarily laid off. In late January or early February 1959, Rutledge signed a union designation card given him by John Moore. Thereafter, prior to his discharge, Rutledge attended three or four union meetings. He was not otherwise active on behalf of the Union. The record leaves no doubt, however, that the Respondent's management was aware of Rutledge's interest in the Union. Thus, Chef Jean Roux, Rutledge's department head, admitted on cross-examination that he had heard from other employees that Rutledge was attending union meetings. Roux testified that, apart from John Moore, whose discriminatory discharge has earlier been considered, Rutledge was the only employee working under him whose name was brought to his attention as among those attending union meetings. Moreover, as has earlier been found, Rutledge about 2 or 3 weeks before his termination was in effect threatened by General Manager McEachin with the possibility of discharge because of his union activity. As appears from Rutledge's credited and undenied testimony, McEachin at that time told Rutledge, "Did you know you came close to being let out because of your union activity?" Rutledge's account of what occurred at the time of his termination on March 30, 1959, stands on this record undenied: [Roux] first handed me a check and said, "I'm going to have to let you go," and hesitated a minute, and he said, "I guess you know why." And I started to say something but he spoke first and said, "It's on account of this union activity." When Rutledge was let go, the Respondent retained in its employ two other butchers, named Dyer and Kilgore. Dyer had been in the Respondent's employ for some time, for just how long the record does not show. Kilgore, then known to Roux to be a "wino" and undependable for that reason, had been in the Respondent's employ only a short time, having been hired as the extra butcher at the start of the racing season some 5 weeks before. Kilgore worked until April 5, 1959, and was thereafter separated from the Respondent's employment rolls. On April 9, 1959, a newly hired butcher, Glidewell, began work for the Respondent. The Respondent in its answer denies that it discharged Rutledge, and affirmatively alleges, "C. A. Rutledge was replaced at his own request and by agreement with the Respondent on March 30, 1959." That same defense was substantially reiterated by the Respondent's counsel in his opening statement. And it was once again restated by the Respondent's counsel in the course of his cross-examination of Rutledge. ("Of course our position is that he was not fired period, but was laid off at his own request. ...") However, as will more fully appear below, in presenting its own evidence on this discharge case through its only witness, Roux, the Respondent shifted its position, and materially modified the aforementioned defense, if indeed it not abandon it altogether. The record does not support the Respondent's initial defense that Rutledge was laid off or replaced on March 30, 1959, at his own request and by agreement with the Respondent. It shows only this: In early 1959, Rutledge was approaching the age when he would become eligible for old age retirement benefits under the social security law-his 65th birthday was to fall on September 17, 1959. Shortly before the start of the 1959 racing season, when Roux was looking for a third man to help out during that season the two butchers then on its payroll, Roux conferred with Rutledge about whom he might hire. Rutledge told Roux that when he reached his 65th birthday in September, he planned to go on social security, and, after his birthday, wanted to discontinue full-time employment and go on a part-time basis under some arrangement where his earnings would not exceed the allowable amount for persons on retirement. At the same time, Rutledge suggested that Roux ought to hire as the extra helper then needed a person who might be suitable to replace him after September 17, and who might be trained for his position in the meantime. Rutledge recommended Kilgore as one who might be suitable, and Kilgore was later hired as the extra butcher. Rutledge's conversation with Roux was simply explora- tory in nature, and no definite commitments were made, although Roux at that time indicated that he thought an arrangement might be worked out to give Rutledge ARLINGTON HOTEL COMPANY, INC. 757 part-time employment after he became eligible for social security . Rutledge cate- gorically denied that he ever told Roux he planned to stay on only to the end of the racing season and then leave. In that respect his testimony was later con- firmed by Roux, who conceded that Rutledge had never indicated to him that he wanted to retire before September . Significantly, the Respondent makes no claim even now that it considered Kilgore a replacement for Rutledge . The Respondent's present claim is that Rutledge was replaced, not by Kilgore, but by Glidewell, whose actual employment, according to the Respondent's payroll records, began 10 days after Rutledge's employment ceased. Moreover, as will soon appear, the Respond- ent's revised position in this case in substance concedes-contrary to what the Re- spondent stated in its pleading and at the opening of the hearing -that Rutledge was not laid off or replaced at his own request or by agreement with the Respondent, but that he was in point of fact involuntarily severed. The altered basis on which the Respondent would now justify its discharge of Rutledge is far from clear, largely because Roux's testimony on which it rests is marked by considerable confusion and contradictions on important details. As nearly as I can gather, the Respondent would have me extract from Roux's variable testimony an account of what occurred substantially as follows: At the end of the racing season it became necessary for the Respondent to reduce its force of butchers by one. To effect that reduction, Roux decided to lay off Rutledge rather than Kilgore, the extra man who had recently been hired for the racing season . Although Rutledge was the better and more experienced butcher and the one who might nor- mally be expected to be retained , he instead of Kilgore was selected for reduction because he was less physically suited than Kilgore, a younger and stronger man, to perform certain heavy cleaning work that had to be done at the end of the racing season. Had not Roux just testified, however, that Kilgore was an undependable worker who shortly before then had disappeared from his job for a number of days and had turned out to be a "wino "? That was true. But shortly before Rutledge's layoff, Roux had been presented with an opportunity to hire, and in fact had ar- ranged to hire, a new butcher, Glidewell, who had worked for the Respondent briefly in 1957. Glidewell was younger and stronger than Rutledge ; he could be expected to "last out the season and work throughout the summer"; and he was therefore just the man Roux needed, since Rutledge was "ready to retire" and Kilgore was a "wino." Until Glidewell came on the job, however , it was preferable to retain Kilgore over Rutledge because Kilgore was able to do the necessary cleaning work for which Rutledge was not physically suited. Kilgore's retention thus was on a temporary basis. In fact, Roux did lay off Kilgore the following week, on April 5, 1959, to be exact. When Glidewell came on the job on April 9, 1959, he actually came as a replacement for Rutledge . Such is the explanation for Rutledge 's termination that the Respondent apparently would now have me accept , and not the one alleged in its answer. The explanation stated above does have surface plausibility , and I might have viewed it as credible , even in the face of the Respondent's shift in position, were it not that Roux also gave other testimony that substantially impeaches some of the key points on which that explanation rests. Thus, the Respondent would have it believed that on March 30 Roux selected Rutledge rather than Kilgore as the butcher to be'laid off, because Rutledge was unsuited for cleanup work. But, as Roux conceded on cross-examination , cleanup work, except for the handling of the meat itself, is not usually done by the butchers themselves, but by cleanup men, and Roux had other employees available who could do that work . Thus, too, in seeking to explain its retention of Kilgore, an admittedly undependable and undesirable em- ployee, the Respondent would have it believed that Kilgore's retention was simply on a temporary basis, as evidenced by his "layoff" the following week, and that prior to Rutledge's layoff it had already hired, or at least completed arrangements to hire, Glidewell as a replacement for Rutledge who was "about to retire." But it is apparent from other testimony of Roux, coupled with the Respondent 's payroll rec- ords, that Kilgore was not laid off in the usual sense, that is, let go because the Respondent no longer had need for him, but, rather was terminated on the Re- spondent's records as of April 5, 1959, because he failed to report for work after that date.24 Moreover, Roux's assertion-made while explaining Kilgore's retention 2' Roux testified on direct that Kilgore, after working for a relatively short time "took off for a few days and disappeared," then "came back and worked a few more days and put on that same disappearing act, but he was only gone about 3 or 4 days " On cross- examination, Roux also referred to the fact that Kilgore was twice missing , but made no mention this time about Kilgore returning after his second absence The Respondent's payroll records , later brought to the hearing at the request of the Trial Examiner, sup- 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in preference to Rutledge-that he had previously arranged to hire Glidewell in Rutledge's place, is directly contradicted, and in my view discredited, by Roux's own testimony elsewhere. Thus, earlier in his examination , Roux had stated unequivo- cally that at the time of Rutledge's layoff no other butcher had been hired. Addi- tional testimony by Roux, coupled with the sequence and relative timing of the personnel changes, appears to confirm that Roux did not actually arrange to hire Glidewell until sometime after Rutledge's release, and then only because he needed a replacement for the missing Kilgore rather than for the previously terminated Rutledge.25 In any event, it is quite clear that Roux had no basis to believe when he laid off Rutledge in March that an immediate replacement was necessary for Rutledge, since, as his own testimony shows, he knew that Rutledge was not "about to retire" until September at the earliest. On all the evidence, I have no reason to doubt that it was necessary for the Respondent to reduce its force of butchers by one. But I do not believe the explanation for Rutledge's selection which Roux gave at the hearing was in truth the motivating reason for the action taken. That explanation, I am satisfied comes as an afterthought, founded not on what actually occurred, but on a reconstructed theory of facts that might have been. For the Respondent's real motivating reason, it is unnecessary in this case to search far, or even to rely on inference. That reason, I find, was openly revealed at the time of Rutledge's termination when Roux told Rutledge that he was being let go "on account of this union activity." Rutledge, who testified to that effect, impressed me as an honest witness; his testimony was not specifically denied; and the validity of the reason Roux then gave Rutledge is confirmed by the Respond- ent's inability at the hearing to come forward with any plausible explanation to account for Rutledge's release on any other and lawful basis. In reaching the ultimate finding I make here, I have taken into account that Rutledge was not especially active in the Union. But, as appears from Roux's testimony, Rutledge was one of only two employees in Roux's department known to Roux to be active in the Union; both were discharged. And though Rutledge's union activity was slight, it had previously proved of sufficient concern to higher management to provoke General Manager McEachin to warn Rutledge in effect that continued exposure by him to such activity might endanger his job. It is of some significance, too, that Rutledge's layoff occurred shortly after the filing of the Union's repre- sentation petition. To the Respondent, anxious, as the record shows it was, to defeat union organization, the approach of a possible election undoubtedly provided an added incentive to turn a necessary reduction of force to its advantage by making union adherence a weighty criterion in the selection of who was to be let out. On the basis of the findings of fact, and for the reasons stated above, I conclude that the allegations of the complaint relating to the discriminatory discharge of C A. Rutledge have been sustained by a fair preponderance of credible evidence 5. The alleged discriminatory discharge of Vera McBeth The complaint, as amended at the hearing, alleges that Vera McBeth was dis- charged on April 1959 because of the union membership and activities of her husband, William McBeth. This is denied by the Respondent It is the Respondent's position that Vera McBeth was laid off as part of a required reduction in force, and that port Roux's testimony on cross-examination They show that Kilgore worked steadily from the time he started until March 20 , that lie was then absent through March 25 that he returned on the following day and worked continuously through April 3, as of which date lie was terminated It is quite clear, therefore, that Kilgore's second "dis- appearing act" must have occurred on April 6. At various points of his testimony, Roux stated that when Rutledge was laid off he had a "chance to contact" another butcher (Glidewell) Roux explained that several days before Rutledge's layoff, Ghdewell, who was then working at the racetrack, had called him to say that lie would be available after the end of the racing season should the Respondent ever need him. Roux also testified that he "contacted Ghdewell just about the same period that Mr Kilgore wasn't showing up" because lie "had to look for another butcher " Roux was indefinite and somewhat evasive as to exactly when he contacted Glidewell to ask him to come to work Bearing in mind that the racing season ended on March 28, that Glidewell became available for work immediately thereafter, that Rutledge was laid off on March 30, that Kilgore's first failure to show up for work after the end of the racing season occurred on April 6, and that Glidewell did not go to work for the Respondent until April 9, it is reasonable to infer that Roux contacted Glidewell and arranged to hire him as a needed replacement for Kilgore sometime between April 6 and 9. ARLINGTON HOTEL COMPANY, INC. 759 she was selected for layoff on the basis of complaints made against her and her general inefficiency. Vera McBeth is the wife of William McBeth who, as found above, was discrimina- torily discharged on January 27, 1959. Mrs. McBeth worked at the hotel as a P.B X operator for a period of 13 years prior to April 1, 1959. Except for the summer of 1957, when she voluntarily took time off, her employment was con- tinuous. The Respondent normally employs about eight P B.X operators, adds two for the busy season, and thereafter reduces its employment to the normal number. Prior to 1959, Mrs McBeth had never been laid off. At the time of her layoff, only two of the retained employees were senior to her in length of service. Mrs. McBeth did not herself sign a union designation card, nor did she partici- pate in any union activities, until after her final layoff. She did, however, have a number of conversations with her supervisor, Thelma Hays, concerning the Union. Mrs. Hays questioned her on one or more occasions as to whether the Union was having any meetings. On each such occasion, Mrs. McBeth assured Mrs. Hays that she had no interest in the Union and knew nothing about its activities. On one occasion, Mrs. Hays told Mrs McBeth that she "thought it would be best for us not to have anything to do with the Union . that probably if we joined up [Mrs. McBeth] would be the first one to be let out." Mrs. McBeth was informed of her layoff several days before its effective date. Mrs. Hays told her that Resident Manager May had issued instructions to let her go. When Mrs. McBeth inquired as to the reason, Mrs Hays said that May had given none. Mrs. McBeth then commented that she "felt it was on account of union activity and my husband." In reply, Mrs. Hays expressed the opinion that "she did too," without, however, professing actually to know. The foregoing findings are based upon Mrs. McBeth's testimony which stands on the record undenied in all material respects. To support its defense, the Respondent called but one witness-Resident Manager May. May conceded that it was his normal practice on reductions of force involving P B X operators to leave the selection of those to be laid off entirely to the dis- cretion of Mrs. Hays. He also conceded that on the occasion of the 1959 layoff he did not follow that practice strictly, in that he instructed Mrs. Hays specifically to lay off Mrs. McBeth, while leaving to Mrs. Hays' judgment the selection of the other employee who was simultaneously to be laid off. In explanation of his action, May testified that during the latter part of her employment, Mrs. McBeth had deteriorated in her efficiency as a telephone operator; that during the busy season of 1959 he had received an unusual number of complaints from guests about dis- connected calls and poor switchboard service and also had had his own telephone calls interrupted an unusual number of times; and that upon investigation he traced the cause of the trouble more often than not to Mrs. McBeth, who, when confronted by him, would admit she was at fault May stated that on the basis of such complaints and his own observation of Mrs. McBeth's work, he decided to let Mrs. McBeth go. The General Counsel did not recall Mrs. McBeth as a rebuttal witness, nor endeavor through any other witness to negate May's testimony as to Mrs. McBeth's inefficient work performance. May's testimony in certain respects unrelated to Mrs. McBeth's case has been discredited, and there is much about his testimony concerning Mrs. McBeth that also appears to me suspect His account of the extraordinary number of telephone complaints he says he traced to Mrs. McBeth just before her layoff impressed me as perhaps exaggerated. It is not easy for me to believe that as many guests as he says, would have come to him as the resident manager with their complaints about interrupted telephone calls instead of making'their complaints directly to the telephone operator or her supervisor. Nor is it easy for me to understand why Mrs. McBeth, a satisfactory employee for 13 years, should so suddenly have suffered such a sharp deterioration in her efficiency May's admitted deviation from. past practice by himself selecting Mrs. McBeth for layoff, while adhering to that practice in allowing Mrs. Hays to select the other operator to be let go, is in itself a highly suspicious circumstance. So, too, is May's failure to disclose to Mrs. Havs his reason for laying off Mrs. McBeth It is clear, however, that, if true, the reason May gave at the hearing provided a lawful basis for discharge, and this regardless of Mrs McBeth's past satisfactory serv- ice, her seniority vis-a-vis other operators retained, or deviations from established procedures in the manner in which the layoff was determined upon. The facts re- lating to Mrs. McBeth's work performance, and the complaints, if any, made con- cerning it, were matters lying within Mrs. McBeth's personal knowledge. If what May testified to was untrue, the General Counsel was thus in a ready position to 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come forward with countervailing evidence . The General Counsel chose, however, to allow May's testimony to stand substantially uncontradicted . Particularly in these circumstances , I am unable to say that May's testimony , skeptical though I may be of much of it, is so inherently implausible on its face as to be rejected out of hand. Perhaps if Mrs. McBeth had been recalled as a rebuttal witness, she would have successfully contradicted May's testimony . But that is speculative. I must take the record as I find it, and, on the record as made, I am obliged to conclude that the General Counsel has not carried the burden that rests on him to show that Mrs. McBeth's layoff was discriminatorily inspired. For the reasons stated, I conclude and find that the complaint's allegations relating to the discriminatory discharge of Mrs. McBeth have not been sustained, and shall recommend that such allegations be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that the Respondent be ordered to cease and desist therefrom, and take certain affirmative action in order to effectuate the policies of the Act. Having found that the Respondent discriminated with regard to the hire and tenure of employment of William McBeth, J. C. Moore, Oza Brewer, and C. A. Rutledge, I shall recommend that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and pi ivileges , and make them whole for any loss of pay suffered as a result of the discrimination against them , by payment to each of them of a sum of money equal to the amount he would have earned from the date of his discriminatory discharge to the date of the offer of reinstatement , less net earnings to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294 .26 Earnings in any one par- ticular quarter shall have no effect upon the backpay liability for any other such period. It will also be recommended that the Respondent preserve and make avail- able to the Board , upon request, payroll and other records to facilitate the checking of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the roots of employee rights safeguarded by the Act, it will also be recom- mended that the Respondent cease and desist from infringing in any manner upon the employee rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Chauffeurs, Teamsters & Helpers Local No. 878 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organi- zation within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of William McBeth, J. C. More, Oza Brewer, and C. A. Rutledge , thereby discouraging mem- bership in the Union , the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices as alleged in the complaint by reason of its discharge of Vera McBeth. [Recommendations omitted from publication.] 20 Should it appear that C A. Rutledge has already elected to claim old age insurance benefits under the Social Security Act, certain questions may come up under this order as to the computation of the backpay due him. Such questions , if any, are reserved for determination at the compliance stage of this proceeding