Shamrock Hilton Hotel

SHAMROCK HILTON HOTEL, ETC. 701 Hilton Center, Inc., d/b/a Shamrock Hilton Hotel ; and Inter- national Club of Houston, Inc. and Hotel & Restaurant Em- ployees and Bartenders International Union. Case No. 23-CA- 985. February 24,1961 DECISION AND ORDER On September 30, 1960, Trial Examiner Sidney Lindner issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Hilton Center, Inc., d/b/a Shamrock Hilton Hotel and International Club of Houston, Inc., Houston, Texas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Discouraging membership in Hotel & Restaurant Employees and Bartenders International Union or any other labor organization of its employees by discharging any of its employees or in any other manner discriminating in regard to the hire or tenure of employment or any term or condition of employment. (b) Interrogating its employees concerning their union affiliations, activities, and sympathies in a manner constituting interference, re- straint, or coercion in violation of Section 8(a) (1) of the Act, or i With respect to Respondent's contentions relating to the sufficiency of the charge, the complaint, and the bill of particulars , see, e.g., Hudson Pulp & Paper Corporation, 121 NLRB 1446 130 NLRB No. 62. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening employees because of their union affiliations, activities, and sympathies. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Hotel & Restaurant Employees and Bartenders International Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Niami Bryan full reinstatement to her former or sub- stantially equivalent position and make her whole for any loss of earnings 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 all social security payment records, payroll records, personnel records and reports, and all other such data convenient for a computa- tion of backpay due. (c) Post at its offices in Houston, Texas, copies of the notice at- tached hereto marked "Appendix." 2 Copies of said notice, to be fur- nished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Respondent, be posted by it immedi- ately upon receipt thereof and be maintained for a period of 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2In 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." 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 National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage self-organization or concerted activi- ties among employees for their mutual aid or protection as guar- SHAMROCK HILTON HOTEL, ETC. 703 anteed in Section 7 of the Act, by discharging any of our employees. WE WILL NOT engage in interrogation of employees concerning their union membership, activities, and sympathies in a manner constituting interference, restraint, or coercion in violation of Section 8 (a) (1) of the Act, or threaten employees with reprisals because of such membership, activities, and sympathies. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of their rights to engage in union or concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL offer to Niami Bryan full reinstatement to her former or substantially equivalent position without prejudice to her sen- iority or other rights and privileges previously enjoyed. WE WILL make Niami Bryan whole for any loss of pay suffered as a result of our discrimination. All employees are free to become, remain, or refrain from becoming or remaining members of Hotel & Restaurant Employees and Bar- tenders International Union or any other labor organization. HILTON CENTER, INC., D/B/A S (-IAMROCK HILTON HOTEL; AND INTERNATIONAL CLUB OF HOUSTON, 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 AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard before the duly desig- nated Trial Examiner in Houston, Texas, on May 16, 17, and 18, 1960, on complaint ,of the General Counsel and separate answers by Shamrock Hilton Hotel and Inter- national Club of Houston , Inc. The issues litigated were (1) whether Shamrock Hilton Hotel and International Club of Houston, Inc., should be considered a single employer (the charge, amended charges, and complaint treated both as a single employer); ( 2) whether the Board has and should assert jurisdiction in this matter; (3) whether Shamrock Hilton Hotel and International Club of Houston , Inc., vio- lated Section 8 (a) (1) of the Act because of certain statements of its supervisors; and (4 ) whether Shamrock Hilton Hotel and International Club of Houston, Inc., violated Section 8(a)(3) of the Act in discharging certain named employees.' All parties were afforded full opportunity to examine and cross -examine witnesses, to introduce evidence, to present oral argument, and thereafter to file briefs. Briefs were received from all counsel. Upon the entire record and from my observation of the witnesses, I make the following: 1 At the hearing the General Counsel 's motion to amend the complaint to remove the name Augustine Lopez alleged to have been discriminatorily terminated on October 19, 1959, was granted without objection. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESSES OF HILTON CENTER, INC., D/B/A SHAMROCK HILTON HOTEL, AND INTERNATIONAL CLUB OF HOUSTON, INC. At the hearing the parties stipulated that Hilton Center, Inc., is and has been at all times material hereto, a Texas corporation, having its principal office and place of business in Houston, Texas, where it is engaged in the operation of the Shamrock Hilton Hotel, which has 1,100 rooms, a 1,000-car garage and several dining facilities. Hilton Center, Inc., rents space on the ground floor of the Shamrock Hilton Hotel to airlines which serve the city of Houston, Texas. During the year 1959, the Sham- rock Hilton Hotel received gross revenue in excess of $500,000 for rental of its rooms and allied facilities. During such year, over 75 percent of the Shamrock Hilton's guests stayed at the hotel less than 30 days of the year. The Shamrock Hilton Hotel purchased, during the year 1959, food, supplies, and other materials of a value in excess of $10,000, which originated outside the State of Texas. The parties further stipulated that the International Club of Houston, Inc., is, and has been at all times material hereto, a Texas corporation, with its principal office and place of business located in the Shamrock Hilton Hotel, Houston, Texas, where it is engaged in the operation of a private club for the purpose of providing food, drink, and entertainment for its members. The food served to its members is pur- chased, prepared, sold, and served by the Shamrock Hilton Hotel. The employees of the International Club are hired by the International Club. During the year 1959, the International Club had a gross revenue in excess of $315,000 but less than $316,000, from all sources. By the terms of a lease made on April 1, 1957, by and between Hilton Center, Inc , and International Club of Houston, Inc., the club facilities consisting of a lounge, gameroom, grillroom, El Charro Room, locker space, health room, and the Sham- rock Room occupy certain designated space on the main and second floors of the Hotel. The club offices are located in the garage building adjoining the Hotel. Club members and their guests are allowed the use of the hotel swimming pool located on the hotel premises. All services for the Club such as the preparation and serving of food and drink, utilities, janitor services, insurance, credit office facilities, and re- pairs are furnished to the Club by the Hotel. In fact, the Club has only three employees: Kenneth Smith, the manager, his secretary, and a clerk-typist. The record reveals that the clerk-typist was referred to her job with the Club by the personnel director for the Hotel. Both the Hotel and the Club use the same auditing firm, the same publicity agent, the same addressograph machine, the hotel printing plant, and the same employee for its mailings. The Club also has a reciprocal agreement with private clubs lo- cated in Hilton hotels in Fort Worth, El Paso, and San Antonio, Texas, and New Orleans, Louisiana. In return for the services set forth above, the Club, in ac- cordance with the terms of the lease, pays the Hotel 97 percent of its gross monthly profits. Robert Leroy, food and beverage manager for the Hotel, handles this function for the Club along with purchasing its beer and wine. Leroy and Smith jointly de- termine the number of employees who will serve food to the club members and their guests on any particular day or night based on figures of the volume of club business. All of the stock issued by the International Club of Houston, Inc., is owned by the Hilton Hotel Corporation, the operators of the Shamrock Hilton Hotel since November 12, 1954. Porter P. Parris, the vice president and general manager of Shamrock Hilton Hotel, was one of the original incorporators of the Club and a member of its first board of directors. He is now the club president. George Niggemyer, chief accountant for the Hotel, was also one of the original incorporators of the Club and on its first board of directors. He is presently the secretary of the Club. Rodney Morgan, resident manager of the Hotel, is presently vice president of the Club I find from the above and the entire record that the interrelationship between Shamrock Hilton Hotel and International Club of Houston, Inc., is such that they constitute a single employer within the meaning of Section 2(2) of the Act. Hot Shoppes, Inc., Case No. 10-RC-2896, issued April 13, 1955, not printed in NLRB volumes; Youngstown Tent and Awning Company, etc, 110 NLRB 835. I find fur- ther that the record reflects that the Board's jurisdictional standards for hotels has been met. Indiana Hotel Company (Claypool Hotel), 125 NLRB 629; Dinkler- St. Charles Hotel, Inc., 124 NLRB 1302; Floridan Hotel of Tampa, Inc, 124 NLRB 261. I find also that legal jurisdiction of the Board over the employer is established by the volume of direct inflow Lamar Hotel, 127 NLRB 885, Catalina Island Sight- SHAMROCK HILTON HOTEL, ETC. 705 seeing Lines, etc., 124 NLRB 813. Finally, I find that it will effectuate the purposes and policies of the Act to assert jurisdiction over the Respondent herein. II. THE LABOR ORGANIZATION INVOLVED Hotel & Restaurant Employees and Bartenders International Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The inception of union organization; interference, restraint, and coercion The record reveals that in 1954 an attempt was made to organize and represent the Hotel's employees for purposes of collective bargaining. The Union's most re- cent organizational effort among Respondent's employees commenced in or about September 1959. Frank McCarty, business representative of the Union, openly distributed union authorization cards and literature to employees outside of the Hotel, while they were on their way to and from their jobs. The Respondent lost little or no time thereafter in calling employees to Leroy's office, where they were interrogated regarding union activities and organizaiton. Leroy also called meetings of groups of employees to discuss the Union's organiza- tional efforts and the effect it would have on the employees in the event it was suc- cessful. Euesbio Hernandez, employed by Respondent and its predecessor for 9 years as a broiler cook in the main kitchen, testified that one evening late in September 1959, while he was working, Leroy stopped at his station and told him to drop by the office the next day before he reported in to work. Hernandez, following instructions, found Leroy and his assistant, Scott Sudden, in the office. Hernandez testified that Leroy asked how long he had been working at the Hotel and if he liked his job. Hernandez told Leroy he liked the job, other- wise he would not have worked there that long. Leroy wanted to know how many raises Hernandez had received. He was told, two. Leroy said there were three employees due for raises but because union organization had commenced, it was against the law to grant raises at this time. Leroy also commented about Hoffa and characterized him as affiliated with a gangsters union. Leroy mentioned that if the hotels in the city of Houston were organized by the Union and there was a city- wide contract, this might result in the lowering of the existing pay scale of Shamrock Hilton employees. The example Leroy gave Hernandez was that men working in downtown hotels received $8 per day whereas Shamrock Hilton employees were paid $10 daily, "if the Union came in, [they] would drop it down to $9 or union scale to make the men happy downtown, and the ones working at the Shamrock would suffer a dollar." Hernandez testified further that Leroy asked if he was going to behave any better Hernandez inquired what Leroy meant by that remark. Leroy then took a union membership card from his wallet and asked Hernandez if he had seen one 2 Her- nandez acknowledged that he had. Leroy said, "I understood you took part in the last campaign they had around here." Leroy told Hernandez he received an anonymous telephone call from some woman who said he (Hernandez) was on top of the list and most often mentioned, and while he did not place much stock in anonymous calls, he called Hernandez down "just in case." Leroy said he had a list of the employees who were union organizers. Before releasing Hernandez to his job, Leroy inquired how many union cards he had. Hernandez answered he did not have any. Sometime in October while Hernandez was at the chef's office, Leroy passed him and told him not to forget the union meeting on the 24th. Hernandez testified that Leroy came to his station of work about 7:30 p.m. on October 26 and inquired if he had gone to the union meeting. Leroy asked about the condition of the charcoal; Hernandez said it was fine. Leroy then asked if Hernandez had seen any more mice. Hernandez said, "No " Whereupon Leroy said, "Well, we got rid of the charcoal and we got rid of the mice. All our trouble now is to get rid of the union agitators." Joseph Yanascavage, a cook in the main kitchen of the Hotel for 2 years and a union member, testified that early in September 1959, he was called to Leroy's office. Sudden was also present. Leroy asked if Yanascavage was a union member. Leroy accused Yanascavage of being active in the Union and being one of the organizers. Yanascavage denied that he was an organizer, but told Leroy he was a unionman and would always be a unionman. Whereupon Leroy said, "Why don't 2 Hernandez signed a union membership card during the organization drive. 597254-61-vol. 130-46 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD you go where there is a union?" The conversation continued, according to Yanas- cavage, with Leroy mentioning Hoffa and the criminal element. Leroy also said that if the Houston hotels were organized by the Union, even if the downtown hotel pay rates were raised but did not reach the level paid Shamrock employees, the latter group would have to be lowered to the rates paid downtown hotel workers. Dora Padilla, a busgirl in the Pine Room at the Hotel whose husband is also a hotel employee assigned to work in the drugstore, testified that she was called to Leroy's office in September 1959. Sudden was in the office at the time. Leroy told Padilla that her husband was "pushing" other employees to join the Union. Leroy cautioned Padilla to tell her husband that if he did not know what the Union means, "to tell him to keep his mouth shut." Leroy mentioned that he had a list of the people who had signed union authorization cards and mentioned several names. Padilla protested that her husband did not know anything about the Union and was not talking to others in its behalf. Inez Brooks, a waitress in the Pine Grill for 9 years, testified that in September 1959 Leroy spoke to an assemblage of employees of the Pine Grill held at the pool bar. Leroy told the employees he did not know how many had signed union cards but that was entirely up to them. Leroy mentioned that there never had been a union representing the employees in the Hotel and that conditions might be different. He noted that some of the older girls (in point of length of service) who made higher wages would "probably" be hurt. He cautioned the employees not to discuss the Union on the floor, but to confine such discussions to their off hours. He also said that working conditions might be different. Marselino Garza, a waiter in the hotel banquet department, since it was opened, testified that in November 1959 his supervisor told him to report to Leroy's office. After some conversation about the Union's drive at the Hotel, Leroy asked Garza if he passed out any union authorization cards. Garza readily admitted giving some cards to the kitchen help, but denied that he did so in the Hotel. Leroy then told Garza, "Me and you are not going to get along too good now." Garza left the office and returned to his job. Niami Bryan, a clerk-typist in the Club from May until November 2, 1959, whose alleged discriminatory discharge will be discussed more fully hereinafter, testified that several days after she attended the October 26 union meeting, Smith told her he heard she had attended the meeting. He inquired if his information was accurate. Smith also told Bryan he "was very much shook up" since he heard she attended the union meeting and that he was disappointed in her. Bryan testified further that Smith told her unions would not work in the South, and "They had been telling the people [there] that any raise the Union would get . . . the employees, the union dues would surpass." Smith admitted interrogating Bryan regarding her attendance at the union meeting. He testified that his reason for doing so was that since the Union's membership in- cluded cooks and bartenders, he was "puzzled" why Bryan, a white-collar worker, would be interested. This, together with his curiosity, gave rise to the interrogation. Leroy admitted talking with Hernandez, Yanascavage, Padilla, and Garza in his office about the Union. In addition, he admitted calling three other employees to his office, as well as going around to assembled employees in various departments to talk about the Union. He denied asking any employee if he was a union member, and testified he told all employees to whom he spoke that they were free to join or not to join the Union as they saw fit. Leroy also denied that he at any time main- tained a list of hotel employees who were alleged to be members, organizers, or active in the Union. He explained that the payroll department gives him an up-to- date list of personnel employed under his supervision which he keeps on his desk for purposes of refreshing his memory regarding the employee's entering upon em- ployment with the Hotel, his department, and his rate of pay. Leroy denied that when he talked with Hernandez he mentioned anything about the latter being on top of the list. He admitted that reference was made in their conversation to employees entitled to increases in pay, but testified that he explained to Hernandez that he could not give them a raise while a union organization cam- paign was underway. He denied that he asked Hernandez if he was going to "be- have any better." Leroy testified that he called Yanascavage to his office to talk with him be- cause he "thought" he observed him passing out union literature at his station, and he "knew" he was conversing with the waiters about the Union. His purpose was to set Yanascavage straight on the rights of employees carrying on union activities while they were working. Leroy did not recall asking Yanascavage why he did not go where there was a union. Thereafter, in answer to a leading question, he testified he did not make such statement. SHAMROCK HILTON HOTEL, ETC. 707 Concerning Padilla's testimony, Leroy testified that he called Dora to the office, rather than her husband (the subject of their conversation) because the latter does not speak English and because he knew Dora better than her husband. His version of the conversation was that he told Dora he understood her husband was telling employees that if a union "came in" they would be paid $1.25 an hour. If her husband was saying this, he was referring to the minimum wage law and not to a union contract, and until he knew what he was talking about, Leroy felt he should not be spreading such rumors. With regard to Garza's testimony, Leroy denied the statement "me and you are not going to get along too good." Leroy testified that his only reason for calling Garza to his office was to make "clear to him that he was not allowed to pass litera- ture or organize for the Union during the Hotel's working hours, that is, the working hours that he was assigned to the floor." Finally, as to the testimony of the General Counsel's witnesses that with unioniza- tion some employees might suffer a reduction in rates of pay, Leroy testified that having at one time been a union member himself, and having come from a union city, it was his opinion, which he expressed to the employees, that if a citywide con- tract was negotiated, it would set forth a wage per category for all hotels, and since some of the downtown hotels paid far less than the Shamrock, "It was entirely pos- sible or probable, or could be, that the wage might be set somewhere between [their] wage and the downtown wage, . . . but it possibly could be within the prerogative of management to pay the union wage as opposed to the wage that might be higher than the union wage." A most difficult and trying task of a trier of fact is the resolution of credibility of witnesses. I carefully observed the demeanor of the witnesses as they testified dur- ing the hearing and I was left with the distinct impression that 'Hernandez, Yanas- cavage, Bryan, Garza, Brooks, and Padilla were testifying truthfully and should be credited by me. Leroy's versions of his conversations with the said witnesses (all but Bryan and Brooks) did not so impress me. I had the feeling that Leroy did not disclose the true facts as he knew them and was concerned primarily with giving answers which displayed his knowledge of the law, and which were most favorable to his employer. A careful reading of the transcript of testimony has not changed the conclusion I reached at the close of the hearing. I find, based on the testimony of Hernandez, Yanascavage, Bryan, Garza, Brooks, and Padilla which I credit, that Leroy and Smith engaged in the conversations as testified to by them. Accordingly, I conclude and find that Respondent violated Section 8(a)(1) of the Act by the following conduct: (1) Leroy's threat to Hernandez and Yanascavage that unioniza- tion nand a citywide hotel contract would result in a wage cut to Shamrock employees; (2) Leroy's interrogation of Hernandez as to how many union cards he had and if he had seen a union card; (3) Leroy's veiled threat to Hernandez in the statement, "Well, we got rid of the charcoal and we got rid of the mice. All our trouble now is to get rid of the union agitators"; (4) Leroy's interrogation of Yanascavage regarding his union membership; (5) Leroy's coercive statement to Padilla to tell her husband "to keep his mouth shut" if he did not know what the Union means; (6) Leroy's threat that working conditions might be different if the employees became union- ized; 9 (7) Leroy's interrogation of Garza regarding his union activities and the veiled threat contained in the statement, "Me and you are not going to get along too good now"; (8 ) Smith's interrogation of Bryan regarding her attendance at a union meeting. B. The discharges Niami Bryan was employed by the Respondent from May 25, 1959, until her termination on November 2, 1959. She answered a newspaper ad placed by the Hotel sometime in May and was interviewed by Richard Minner, personnel director for the Hotel. She did not accept the first job offered. Several days later Minner notified her of a job available at the Club. Bryan was sent to see Smith and was hired as a clerk-typist in the club office at a starting salary of $200 per month, with a promise of a raise to $225 per month after 3 months. Her duties consisted of answering the telephone, accepting reservations, answering inquiries regarding membership, filing, and general office routine. Bryan testified that in September she and Gretel Junker, secretary to Smith, left the office and were walking to Bryan's car when Frank McCarty, union business agent, handed each some union literature and a blank union authorization card. At home 'Bryan filled in the requisite information on the card and mailed it to the Union. 3 Since this statement was made in a context of interrogation and other threats, I do not en" 'der that it was merely a predicton of what might happen in the event of unionization. 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Junker admittedly brought the union literature and the blank authorization card to. the office the following day and placed it on Smith 's desk. Bryan and Junker discussed the Union on several occasions. Bryan attended the union meeting on October 26, 1959. Bryan testified that on the morning of Novem- ber 2, 1959, Junker inquired if she had been to the union meeting and what tran- spired. Bryan answered Junker's questions. Junker, called as a witness by Re- spondent, admitted that after her conversation with Bryan she reported to Smith later that day that she had heard that Bryan attended the union meeting. Bryan testified that about 4 p.m. that day 4 Smith came to her desk and told her they were cutting down the staff and eliminating her job. Smith handed her a pay- check for 1 day's work.5 After some further conversation regarding how the office would get along with only one girl , Smith told Bryan she was not being fired and he would give her a good reference. Bryan then left, and was outside the building when Smith came after her and reminded her that she walked off with the office key. As she was returning it to him Bryan said, "Mr. Smith, do you realize you are firing me for going to a union meeting when I have not admitted it to you?" Smith replied that he knew she wasthere. The record reveals that a replacement for the club office was obtained shortly after Bryan 's termination. It is also clear from the record that except for brief periods while replacements were being obtained the personnel of the club office consisted of the manager, his secretary, and a clerk-typist. Respondent contended at the hearing that Bryan was discharged for cause. In its brief it sets forth six aspects of Bryan's unsatisfactory performance which it contends made Smith realize for some time before she was discharged that he eventually would have to terminate her employment. Smith testified that Bryan's progress in her job from the inception was slow and that he was "generally unhappy" with her. He admitted, however, that when Bryan spoke to him about a raise after she had been employed for 3 months he merely said he could not grant the raise at that time and did not say anything to her about unsatisfactory performance . Indeed, Smith admitted on cross-examination that during the entire period of Bryan's employment he did not tell her he was unhappy or dissatisfied with her work, or that if she did not improve he would have to terminate her. Smith testified that Bryan was involved in two "incidents" which resulted in com- plaints by club members. The first occurred in September 1959 and the member was only "apprehensive" about whether or not he would get a table. The record reveals that the member's reservation was properly channeled by Bryan and there was no difficulty involved in the member getting his table. As,to the second incident which took place early in October, it appears that Bryan told a member over the telephone that his request was unusual. This was interpreted by the member as a "curt and rude" remark. Bryan nevertheless complied with the request. When Bryan com- plained to Smith that she would never take another reservation again from this member, she was told that as telephone receptionist she must be polite and handle all requests. No further action was taken with respect to the said "incidents." Smith testified that even though he knew he was going to employ a new person to fill Bryan's job, he wanted to let her down easy and therefore told her the force was being reduced. Bryan testified that no one in the office criticized her work. On the contrary, she received praise for her performance several times. She stated that she became aware of the complaint by member Henry King only after she wasterminated. Junker testified on direct examination that Bryan progressed slowly in her job, noting specifically that she did not know telephone technique, filing, or general office routine. She admitted, however, on cross-examination that when Bryan was taught telephone technique she did it the correct way and also did a fair job in general office routine. Smith did not impress me as a reliable witness and I do not credit his testimony regarding the deficiencies in Bryan's performance. The evidence is clear and I find in accordance with Bryan's testimony, which I credit, that Smith never expressed dissatisfaction with her work. Moreover, since Bryan was discharged several hours after Respondent learned of her interest in the Union and that she had attended a union meeting and the discharge took place with- out warning on the beginning day of a new payroll period, in fact before the end of the workday, for the alleged reason that the force was being reduced, which Smith admitted was not the truth, the only fair inference to be drawn is that she was Bryan's hours of work were 9 a.m. to 5 p in. Bryan was paid semimonthly and had received a paycheck for the previous period on October 31. SHAMROCK HILTON HOTEL, ETC. 709 discharged for her union membership and activities and I so find . In discharging Bryan, Respondent violated Section 8(a) (3) of the Act. Gabriel Saucedo was employed part time while attending school from 1954 to 1957. He worked full time from 1957 until his termination on November 13, 1959. He held various jobs such as houseman, runner in the cafeteria, sandwich man, and coffee boy. For 3 weeks immediately before his termination he was a coffee boy in the employees' cafeteria and prior thereto he worked in the main kitchen. Saucedo testified he signed a union membership card, attended union meetings in October and November, and solicited other employees to join the Union. He was successful in obtaining employees' signatures to about five union authorization cards. In fact about 4:30 a.m. on November 13 before reporting for work, Saucedo gave a card to housekeeping employee Jesse Carrion outside of the cafeteria. At the finish of Saucedo's workday on November 13, Chef Mendicina, supervisor of all kitchens in the hotel, told him there were too many coffee boys and he was being laid off. It is the General Counsel's contention raised in his brief that Saucedo's termina- tion was due to his union activities. He recites the following as arguments favoring his contention: (1) Saucedo was terminated soon after he distributed a union au- thorization card; (2) he was senior to one of the coffee boys who was retained; (3) the person in charge of the employees' cafeteria appeared to be satisfied with Sau- cedo's work; (4) working in the employees' cafeteria afforded Saucedo an excellent opportunity to solicit for the Union; and (5) even if one of the kitchens did close down Saucedo should have been given another job or a part time job rather than be terminated. Even assuming that the facts set forth above are sufficient to raise a prima facie inference of discriminatory discharge for suspected union activities, I find that Re- spondent's explanation for Saucedo's termination is sufficient to overcome this in- ference. There is no evidence in the record which would warrant drawing the conclusion that Respondent's officials particularly suspected or knew that Saucedo was a union adherent or active in promoting the interests of the Union. On the other hand the Respondent adduced testimony which is uncontroverted to support its contention that Saucedo was laid off solely for economic reasons. Thus Francis Mendicina, executive chef at the Hotel for 3 years, and associated with the Hilton chain for 30 years, testified that in November the main kitchen was closed down except at night when it serviced the nightclub. This reduced the need for regular coffee boys by one. Mendicina also testified that from his observation ,of how all of the coffee boys worked and considering, in addition, their attendance, their attitude, and their personal appearance, it was his opinion that Saucedo did not compare favorably with the other boys and he was terminated. Mendicina further testified that he had received complaints about the quality of the coffee served in the employees' cafeteria and his investigation revealed this was due to the fact that Saucedo did not keep the urns clean. He talked with Saucedo many times about his performance on the job and even though Saucedo promised to do better, his work did not improve.6 With regard to Saucedo's personal appearance, Mendicina testified he did not keep his clothes clean and he often had to be told to have his hair cut.7 Upon the foregoing and the entire record, I am convinced that the General Coun- sel has not sustained his burden of proving by a preponderance of the evidence that Saucedo was discharged for the reasons alleged in the complaint. I will hereinafter recommend that this allegation of the complaint be dismissed. Galo Mera started his employment as a room service waiter with the original Shamrock Hotel in February 1949.8 Mera testified that he signed a union authoriza- tion card in September 1959. Thereafter, he spoke to other employees in an attempt to interest them in the Union, passed out authorization cards to housekeeping de- partment employees, dishwashers, kitchen runners, and waiters, and was successful in obtaining about 15 signed union membership cards. Mera testified without contradiction that about 5:45 a.m. on November 15, 1959,9 while he was passing out union authorization cards to housekeeping department 9 Andrew Berbel , in charge of the employees' cafeteria , testifying as a witness for the General Counsel, stated he was satisfied with Saucedo's work and that Saucedo kept his area clean On cross-examination, however, he admitted that on occasion he had to caution Saucedo to keep his station clean. 7 Berbel admitted he also had to talk with Saucedo along similar lines . From my obser- vation of the witness Saucedo, I can understand why this would be necessary. 8 The Respondent assumed management of the Hotel in November 1954 1 Mera started to work at 6 a.m. 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Homer Houston, night cleaning foreman, was standing about 10 feet away observing his activities.10 Mera also testified that in December 1959 while he and other day room service employees (six full-time waiters, two part-time waiters, a busboy, and the order clerk) were attending a party at the home of the day room service captain, Larry Del Monico, a supervisor within the meaning of the Act, he made a prounion speech, which he claimed was not too well received. Del Monico denied he heard Mera's speech. On or about February 9, 1960, Mera was called into a meeting with Del Monica and Anthony Christine, Respondent's room service manager. Christine told Mera that because he had been holding back on tips," demanding tips from guests in cash and not accepting such tips as charges on the check, and further because he was not getting along with the other waiters, Christine was going to transfer him to another department. When Mera remonstrated, claiming his entire training was in room service and this would mean he would have to learn something new after 11 years, he was told to come in the next day to see Leroy and Minner. After about an hour's discussion with Leroy and Minner on February 10, Mera was told to call the per- sonnel office later that day. When Mera called Minner he was told his services were terminated. Mera testified he never received any complaints about his work from Christine or Del Monico. It is the General Counsel's contention that Respondent became dissatisfied and distrustful of Mera in the fall of 1959 when the Union was engaging in a vigorous organizing campaign and Houston had observed Mera passing out union authoriza- tion cards. He contends further that Mera was discharged because of his union membership and activities and to discourage organization among the other employees. Respondent claims that cause existed for its decision to terminate Mera. Thus Del Monico testified that in June 1959 he began receiving complaints about Mera's participation in the kitty. Del Monico and Christine in a meeting with Mera in June 1959 told the latter that the other day room service waiters were "dissatisfied with his coming up in the kitty," and he was given a month to show some improve- ment. Del Monico testified that for a period of 3 weeks Mera did very well but thereafter he reverted to low man in the kitty, with the result that he received fur- ther complaints from the waiters. In November 1959 the waiters complained that Mera turned in less money than he had signed for on the slip. In December 1959 Del Monico talked with Christine again about the dissatisfaction among his staff and suggested that something had to be done. In the meantime a check was in- stituted by Scott Sudden concerning Mera's participation in the kitty. Del Monico also testified that as in the past, the kitty was split up among the participants about December 14, 1959, and not reinstituted until after the first of the year. When it was reestablished on or about January 27, 1960, Mera was not permitted to participate "because the boys would not work with him no more." Del Monico testified that when Mera "went for himself," he commenced taking orders out of turn and taking two orders at one time. Del Monico explained that the basic idea of the kitty is that all employees get along and work in harmony. It is inevit- able that dissension among the employees will arise when some are in and some are out of the kitty. This, together with the fact that it was called to his attention that Mera ran two orders without calling the men in the backroom to take the regular turn, led Del Monico to again confer with Christine on or about February 9, 1960, and advise that the department just could not get along with Mera there and that either Mera was to be transferred out or he would ask for a transfer. Christine corroborated Del Monico's testimony regarding Mera's difficulties with his fellow workers, the several meetings that he had with Mera, and the request for Mera's transfer out of the day room service department. Christine testified that he took the problem up with Leroy and asked for Mera's transfer out of the department. Leroy testified that in November 1959 he had called to his attention the dis- satisfaction among the day room service crew regarding the gratuity situation, and 10 Richard Minner, Respondent's personnel director, testified that as night cleaning fore- man, Houston supervises, directs, and is held responsible for the work of the 17 night cleaners in the housekeeping department. Although Houston does not have the power to promote or lay off employees under his supervision , he recommends such actions and also may discipline employees. I find Houston to be a supervisory employee within the meaning of the Act. n The day room service waiters and captain had an arrangement among themselves whereby they pooled all of the tips in a kitty. At the end of each day the kitty was split up. A part of it went to the busboy, another part into a Christmas fund and the re- mainder was divided evenly among the waiters and the captain. SHAMROCK HILTON HOTEL, ETC. 711 at that time instructed his assistant to run a survey on Mera's checks in an effort to determine whether the complaints were valid or invalid. Thereafter the request to transfer Mera from the department was received. Leroy conferred with Minner and it was their joint opinion, mutually arrived at, after Minner had talked with the six day room service waiters, that it would not "be fair" to transfer Mera to another department and it was decided to terminate him. Mera was terminated on February 10, 1960. Mera did not impress me as a reliable witness. His testimony was inconsistent in several respects and untruthful with regard to his participation in the kitty. Del Monico, Christine, and Minner testified in a straightforward, consistent manner and I credit their testimony set forth above. I also credit Leroy's testimony concerning his participation in Mera's discharge. Although the General Counsel made out a strong prima facie case with regard to Mera, the ultimate finding herein must be based upon the totality of the record. Upon consideration of all the evidence, I find it insufficient to support, as required by law,12 the allegation that Mera was discharged because he joined or assisted the Union or because he engaged in other protected concerted activities, and I shall therefore recommend that the complaint be dismissed in this respect. 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 Respondent set forth 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 threatening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take cer- tain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminated in regard to the tenure and employment of Niami Bryan it will be recommended that Respondent offer her immediate and full reinstatement to her former or substantially equivalent position without prejudice to seniority and other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered by reason of the discrimination against her by payment to her of a sum of money equal to the amount she would have earned from the date of her discharge to the date of offer of reinstatement, less her net earnings during the said period. Backpay shall be computed in accordance with the Board's Wool- worth formula.13 It has also been found that the Respondent conducted an antiunion campaign by engaging in interrogation, threats, and other illegal conduct in order to interfere with and intimidate the employees from exercising their rights under the Act. By such activity the Respondent has revealed an antipathy to the objectives of the Act as to justify the inference that the commission of other unfair labor practices may be anticipated in the future. It will be recommended, therefore, that Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by 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. Hotel & Restaurant Employees and Bartenders International Union is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the terms and conditions of employment of Niami Bryan, thereby discouraging concerted activities and membership in the aforesaid Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 3. By the above unfair labor practices, and by otherwise interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 12 N.L R B. v. Glen Raven Silk Mills, Inc., 203 F. 2d 946 (C A. 4), enfg. as mod. 101 NLRB 239 11P. W. Woolworth Company, 90 NLRB 289. `712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 did not commit unfair labor practices by discharging Gabriel Saucedo and Galo Mera. [Recommendations omitted from publication.] National Furniture Manufacturing Company, Inc. and Local Union No. 215, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case No. 25- CA-1198. February 24, 1961 DECISION AND ORDER On August 16, 1960, Trial Examiner John P. von Rohr issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate 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 comlection with this case to a three-member panel [Chairman Leedom and Members Rodgers and Jenkins]. 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. 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 National Furniture Manufacturing Com- pany, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Local Union No. 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all over- the-road truckdrivers at its Evansville, Indiana, plant, excluding clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment. 130 NLRB No. 72.