Texas Hotel

834 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD WE WILL NOT in any manner interfere with the efforts of National Associa- ation of Broadcast Employees and Technicians , AFL-CIO, to bargain collec- tively with us. FETZER TELEVISION, '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. Citizen's Hotel Company, d/b/a Texas Hotel and Frances John- son. Case No . 16-CA-1401. May 29, 1961 DECISION AND ORDER On March 7, 1961, Trial Examiner James F. Foley issued his Inter- mediate 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommenda- tions 3 of the Trial Examiner. i We correct certain nonmaterial inaccuracies in the Intermediate Report , none of which affects our concurrence In its ultimate findings • (1) The Union began its organizational drive at the Respondent's hotel on or about July 26, not October 26, 1960 ; ( 2)- Trial testified that he sat through the August 1 union meeting and told Catering Manager Duvall that none of Respondent's employees had been present Contrary to the Inter- mediate Report , he did not testify that he told Duvall what had gone on at the meeting; (3) Manager Slack testified that when the business outlook began to Improve, he discussed with Housekeeper Estes only the necessity of recalling more maids without referring specifically to Johnson and Williams ; (4) the statement in the Intermediate Report that Estes "would be unable to obtain maids who wished to stay nonunion" is not based on any statement attributed to Estes but is apparently a conclusion of the Trial Examiner based on the conversation between Estes and Washington ; ( 5) Williams and Johnson returned from their vacations August 15 and 22, respectively , rather than August 8 and 15, and ( 6) when Johnson returned to work she was reassigned to the 12th, not the 15th, floor. 2 The Respondent contends that Johnson and Williams were only temporarily laid off and were not discharged , as found by the Trial Examiner . We consider it unnecessary to decide whether Respondent initially Intended to separate them permanently or tempo- rarily as , in either event, we agree with the Trial Examiner that their separation from Respondent's employ was caused by Its opposition to their union activities. I In "'The Remedy" section of the Intermediate Report , the Trial Examiner recommended that the Respondent offer Johnson and Williams reinstatement to the positions of maids on the sixth floor of its hotel , or substantially equivalent work, and that they be made whole for any loss of earnings they may have suffered from the date of their separation to the date of the reinstatement offer. The record shows that Respondent asked Johnson and Williams , on September 30 and October 1, 1960, respectively, to return to work immedi- 131 NLRB No. 109. TEXAS HOTEL ORDER 835 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, Citizen's Hotel `Company, d/b/a Texas Hotel, Fort Worth, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in The Cooks, Waiters, Waitresses & Bartenders Union, Local 748, or any other labor organization of its employees, by discharging or laying off any of its employees or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Engaging in surveillance of employees' concerted activities. (c) Ordering or instructing employees to engage in surveillance of Employees' concerted activities. (d) Ordering or instructing employees to report what they observed in the surveillance of employees' concerted activities, or interrogating them as to what they observed. (e) 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 the aforesaid Union, 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 as guar- anteed 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 purposes of the Act : (a) Offer Frances Johnson and Lula Bell Williams immediate and full reinstatement to the positions of sixth floor maids, or substan- tially equivalent employment, without prejudice to seniority and other rights and privileges, and make them whole for any loss of earnings suffered by reason of the discrimination against them, in the manner set forth in the section of the Intermediate Report entitled "The Remedy," as explained in our Decision 'herein. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- ately They failed to do so until October 14 and 15, 1960, when they were, assigned to maids' work in other parts of the hotel. We affirm what we believe was the intention of the Trial Examiner-that the failure of Johnson and Williams to return promptly when requested to do so, abates their rights to backpay for the period between such offer and the date on which each actually returned. However, if the work to which they were assigned upon their return is not substantially equivalent to their previous employment, they are entitled to be reinstated to such work and to be reimbursed for any losses they may have suffered after their return. In view of the nature of the unfair labor practices committed by the Respondent which are of a nature which go to the very heart of the Act, we shall issue a broad cease-and- desist order in this case. N.L.R.B. v . Entwi tle Mfg. Co, 120 F. 2d 532 (C.A. 4). 836 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD curity payment records, timecards, personnel records and reports, and all other data necessary for a computation of backpay due. (c) Post at its office in Fort Worth, Texas, copies of the notice attached hereto marked "Appendix." a Copies of said notice, to be furnished by the Regional Director for the Sixteenth 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 Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. * In 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 activ- ities among employees for their mutual aid or protection as guaranteed in Section 7 of the Act by discharging or laying off any of our employees. WE WILL NOT engage in surveillance of our employees' concerted activities. WE WILL NOT order or instruct employees to engage in surveil- lance of employees' concerted activities. WE WILL NOT order or instruct employees to report what they see or hear at employees' concerted activities or interrogate them as to what they see or hear at such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to engage in union or other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection. WE WILL offer to Frances Johnson and Lula Bell Williams full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights hand privileges previously enjoyed. WE WILL make Frances Johnson and Lula Bell Williams whole for any loss of pay suffered as a result of our discrimination. TEXAS HOTEL 837 All our employees are free to become, remain, or refrain from becoming or remaining members of The Cooks, Waiters, Waitresses & Bartenders' Union, Local 748, or any other labor organization. CITIZEN'S HOTEL COMPANY, D/B/A TEXAS HOTEL, 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 Case No. 16-CA-1401 was brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519 ), herein called the Act, on a charge filed August 22, 1960, by Frances Johnson, an individual . On September 28, 1960, the General Counsel issued a complaint premised on the charge, and Respondent Citizen's Hotel Company, d/b/a Texas Hotel, filed an answer on October 10, 1960. A hearing on complaint and answer was held on October 27, 1960. The complaint alleges, and Respondent's answer denies, that Respondent intimi- dated, coerced, and restrained employees in violation of Section 8(a) (1) of the Act, and discharged and refused to reinstate employees Frances Johnson and Lula Bell Williams because they joined or assisted the Union, in violation of Section 8(a)(3) and (1) of the Act. Respondent and General Counsel were represented at the hearing and all parties were afforded an opportunity to be heard, to introduce evidence, to make oral argument, and to file -briefs. Counsel for General Counsel and Respondent filed briefs after the close of the hearing. Upon the entire record, and from my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation with its principal office and its place of business in Fort Worth, Texas, is engaged in the business of operating a hotel. During the 12-month period preceding September 28, 1960 , its gross revenue was in excess of $500 ,000, and 84 percent of its hotel guests were transients who remained at Respondent's hotel less than 30 days. Respondent purchased from local suppliers liquor, with a value in excess of $5,0,000, that had its origin outside the State of Texas. I find that Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act,' and that assertion of jurisdiction will effectuate the purposes of the Act .2 II. THE LABOR ORGANIZATION INVOLVED The Cooks, Waiters, Waitresses & Bartenders' Union, Local 748 (herein called the Union ), is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Evidentiary findings 1. Intimidation, restraint , and coercion It is undisputed that the Union began an organizational drive at Respondent's hotel on or about October 26, 1960. The Union held meetings in the Majestic Building on Sunday, July 31 , and Monday, August 1, 1960 . In attendance at the 'Southwest Hotels , Inc (Grady Manning Hotel ), 126 NLRB 1151 ; Dinkler-St. Charles Hotel, Inc , 124 NLRB 1302; Thomas Jefferson Hotel, 127 NLRB 202 . See Canal Street Hotel Corporation, 127 NLRB 880. a Floridan Hotel of Tampa, Inc, 124 NLRB 261. 838 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD July 31 meeting were seven to nine maids employed by Respondent, and Willie Washington, a houseman. Two of the maids were Frances Johnson, the Charging Party, and Lula Bell Williams, whom the General Counsel alleges in his complaint were discriminatorily discharged. The only employee attending the union meeting on August 1 was Bernie Trial.3 Trial was a captain of waiters, and a supervisor within the meaning of the Act. It is also undisputed that Henry Duvall, the catering manager for Respondent,, and the supervisor of Washington and Trial, had both of them in his office 2 or 3, days before the union meeting of July 31, and instructed both of them to attend that meeting. Trial later found he was to attend the August 1 meeting, not the July 31 meeting. Washington testified that Duvall said to them that the boss was anxious. to know if any of the employees were interested in the Union. Trial testified that Duvall said he was interested in knowing if any of the employees attended the meeting. Washington also testified that he had been invited to attend the union meeting on July 31. He did not testify, as Respondent contends, that he intended to be present at the meeting without the instruction from Duvall to be there. He did not disclose Duvall's instruction to anyone. Washington never signed a union card. Neither did Trial. On August 1, Washington met with Duvall in the latter's office. Duvall asked him if he had attended the meeting. When he replied that he had, Duvall asked him if any of the help were there. Washington answered that some of the maids were present. On cross-examination, Washington answered yes to Respondent coun- sel's leading question wherein he was asked if it were not true that Duvall had said to him that he was only interested in knowing whether employees attended the meeting and did not wish to know their names. Washington also answered yes to the cross-examiner's leading question wherein he was asked if it were true that Duvall had told him that he had a perfect right to join a union, and that the hotel would not interfere with his efforts in that direction. Counsel for Respondent, as well as counsel for General Counsel, interviewed Washington before the hearing. On the afternoon of August 2, Duvall conversed with Trial about the union meeting on August 1. The conversation took place in Trial's office. Trial testified that he sat in Duvall's office and went all through what occurred at the meeting. Then he said that Duvall asked him if he went to the meeting, and when he answered yes, Duvall asked him what went on. According to Trial, he said that there was a meeting, and that was all he knew. Finally, Duvall asked him if any of the employees were there, and he answered no. Trial answered yes to the cross- examiner's leading questions in which he was asked if it were true that Duvall said to him that he did not wish the names of the employees attending the meeting dis- closed to anyone, that he had a right to join the Union, and that the Respondent would not interfere with this right .4 2. The discharges Eva Estes, housekeeper for Respondent, and supervisor of the maids, approached Washington during working hours about 3 days after the July 31 union meeting. She asked him if he was at the meeting. He replied that he was, and she then asked him if any of the maids were present. He again answered yes, whereupon she asked him for the names of the maids who were present at the meeting. He refused to disclose the names of those attending, saying that he could not give her the names. Estes then said that she knew that Lula Bell Williams and Frances Johnson attended. At the time she asked for the names of the maids she said she did not intend to fire anyone, but merely wished to talk to the girls who were at the meeting. In this conversation with Washington, she also said that if any of her help were unionized they could blackball her, and asked him if any of the older maids were present. He answered no to this question.5 s Trial also spelled his first name "Bernice " * Although Duvall was present in the hearing room, he did not testify. s Estes denied that she said to Washington she knew Johnson and Williams were at the July 31 meeting or that the maids who became union members could "blackball" her Washington had been in Respondent's employ 14 years at the time of the hearing, and testified in the presence of Duvall, his supervisor. He had nothing to gain by testifying contrary to Estes. For these reasons, I have credited Washington and not Estes Estes admitted talking to Duvall regarding Washington's attendance at the July 31 meeting about 3 days after it was held, and that he told her Washington and some of the maids were at the meeting. She also admitted she had heard that Washington was at the meet- ing in accordance with Duvall' s Instructions . She could not recall the source of this information. - TEXAS HOTEL 839 Frances Johnson was first employed by Respondent in November 1958. Lula Bell Williams began her employment with Respondent in April 1959. Both signed union cards about a week before the union meeting of July 31. They were the maids who cared for the sixth floor of the hotel. When they began their vacations on August 8, 1960, Johnson was entitled to 2 weeks' vacation and Williams to 1 week's vacation. Both Johnson and Williams testified that 2 or 3 days before they left on vacation, Estes told each one of them separately to look for something else to do because work was slack at the hotel. When Williams returned on August 15, and Johnson returned on August 22, Estes said to each of them she did not have anything for her to do, that she would call her when she needed her. Johnson testified on cross-examination that Estes told her before she left on vaca- tion she was going to close down the sixth floor temporarily to renovate it. Williams, on cross-examination, testified Estes did not say anything about shutting down the sixth floor during the prevacation conversation she had with her. She further testified that she did not see the sixth floor shut down when she left. She testified, however, that Estes told her when she reported for work on August 15 that she was closing down the sixth floor. Mrs. Estes testified that she told both Johnson and Williams in her prevacation conversations with them that she was closing down the sixth floor to renovate it. It is undisputed that on August 18, 1960, Bobbie Montgomery and Emma Diggs filed applications for jobs as maids, and on August 20, 1960, Rosie Lee Jones ap- plied, that each of them began working on August 20, and at the time of the hearing had been continuously employed by Respondent since August 20 .6 Estes testified that the renovating of the sixth floor consisted of painting some of the walls in some of the rooms, and some bathroom ceilings and baths, and cleaning the floor from top to bottom. She admitted employing maids on the cleaning work during the time Respondent contends there was no work for Johnson and Williams. Estes testified that at the time of the hearing the sixth floor had been partially opened. One maid was assigned to this floor. On their return to work, Johnson was assigned to the 15th floor, and Williams was placed on the swing shift. It is undisputed that Johnson and Williams were never criticized because of the caliber of their work. It is also undisputed that Respondent kept a roster of 31 regular maids. Two were assigned to a floor, and the remainder were on the swing shift. The latter were assigned where their services were required. Most of the 31 had more seniority than Johnson or Williams. On cross-examination, Estes gave the names of three with less seniority and one with the same seniority who continued to work when Johnson and Williams were not working. In addition to the 31 maids, 15 maids were kept on an extra list. They were available for call when needed. They substituted for the regular maids when the latter were ill or absent for other reasons, and supplemented the regular staff when business was heavy. These 15 were largely experienced personnel who had formerly worked for Respondent and no longer desired steady employment. Some of these experienced extra maids worked at different times during the months of August and September 1960, when, according to Respondent, there was no work for Johnson and Williams. To explain the presence of Montgomery, Jones, and Diggs, the three new maids, Estes testified that Respondent constantly trained new maids for the time when they would be needed, except when the rush of business or other reasons made it difficult to conduct the training program. According to her, the trainees made up the end of the extra list of 15, and were called only when the experienced extras either had been put to work or were-not available. Estes testified that even maids with prior experience went through a training period. Johnson and Williams were put right to work without any training. They had had previous experience. Estes admitted on cross-examination that another maid, Alma Harrison, received no training. Each of the three new maids, Montgomery, Jones, and Diggs, had had considerable ex- perience as hotel maids before applying for jobs with Respondent. Diggs had at least 5 years, Jones 3 years, and Montgomery 1 year. In view of their prior experi- ence, their steady employment from August 20 on shows that they were on Re- spondent's payroll for more than a training course preliminary to their being placed on the lower end of the list of extra maids. 6 Johnson testified that when she went to the hotel during her vacation to pick up A. check she saw three new maids, and saw them again when she returned on August 22. Williams testified she saw them when she returned from her vacation on August 15 I credit Johnson's testimony that she saw the new maids on August 22 I do not credit Johnson's testimony that she saw them when she visited Respondent's premises for a check, as there is no evidence as to when this visit was made I do not credit Williams' testimony that she saw the maids when she returned on August 15, since the earliest date they filed applications was August 18 $40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson returned to work on October 14 and Williams returned to work on 'October 15, 1960. Estes testified she contacted Johnson on September 27, 1960, and attempted, unsuccessfully, to contact Williams on that date . Johnson admitted on cross-examination that Estes communicated with her on September 27, 1960. According to Johnson, Estes asked her to report on September 30. She also ad- mitted that when she did not report for work on September 30, Estes called her and asked her whether she was going to report for work, and she answered she could not report for work at that time , but would call her and let her know when she -could report for work, and that Estes then asked her if she was going to report for work at all, and she replied that she would let her know later. Johnson also admitted on cross-examination that she received a copy of the Re- -spondent's answer to the complaint in this proceeding on October 12, 1960, and the following day called Estes to see if she had work for her. Estes told her to report for work on October 14 . She further testified on cross-examination, that prior to .calling Estes, she read Respondent's answer, including the part which stated that .Respondent had attempted to put her back to work , but that she failed to report for work. She further stated that she did not report for work on September 30 be- cause she had filed several applications for employment elsewhere , and was waiting for answers to them, and that she called Estes on October 13 to inquire about work .because she did not have anything to do. It is Respondent's position that Williams received on or about October 1, 1960, -a letter from Estes on its stationery to the effect that she should communicate with Estes at once . The letter also stated that several requests to her to contact Estes had not been answered . The Respondent, therefore, contends that Williams was asked to return to work at least by October 1 , 1960. Williams' best recollection was that she received the letter when she returned to Forth Worth on October 12 from a fishing trip , and in response to the letter she called Estes on October 13, and was told by her to report for work on October 15. The evidence of record includes the letter , which was sent by Estes to Williams by registered mail, return receipt requested , the envelope in which it was enclosed with the words "Deliver to Addressee Only" stamped on it in two places , and the -return receipt showing that the letter was delivered on October 1, and that it was received by a person who signed the name "Lula Bell Williams" as acknowledgment of the receipt of the letter. Williams positively denied on two occasions during her testimony that she signed the receipt. The evidence of record also includes a paper containing the signature of Williams. This signature was affixed to the paper by Williams when she was on the witness stand and in full view of the Trial Examiner . From a comparison of the signature on the receipt with the signature on the paper , I find that the signature on the receipt is the signature of Williams .7 This finding is supported by Williams' testi- mony that she returned to Forth Worth from a visit on or about October 1, 1960, and remained there until departing on a fishing trip the middle of the following week, and the evidence that the stamp "Deliver to Addressee Only" was affixed to the envelope in which the letter was enclosed . In addition , Williams testified on cross-examination that Johnson called her on the evening of October 13, 1960, and told her she was reporting for work the next morning. Shortly after receiving this call, Williams called Estes I find that the impetus leading to Williams' telephone call to Estes on October 13 was the telephone call from Johnson, and not the read- ing of Respondent 's letter of September 30 .8 3 Respondent's defense of the discharges Respondent contends that the slowness in business motivated the layoff of John- son and Williams on August 15 and 22, respectively , that they were selected because the sixth floor, to which they had been assigned , was to be closed down for painting and cleaning. Lester W. Slack, manager of Respondent, testified that the break-even point in hotel operations is reached when the rate of occupancy is 52 to 55 percent. He also 7 See Alexander v White, Tex Civ. App, 115 SW 2d 1122 , 1125-1120 ; and CIT. Corporation v McLeod. Tex Civ. App , 103 S.W. 2d 387 , 387-388 See also C J S. Evidence § 614 8 Johnson applied . for unemployment compensation and gave as the reason for un- employment the reason given to her by Respondent , nnmely , a layoff because of lack of work. The Respondent raised no objection As previously stated , she filed an unfair labor practice charge on August 22, the day she was told there was no work for her The record Is silent as to whether she or Williams received unemployment compensation, or whether Williams ever applied for it TEXAS HOTEL 841 testified that the occupancy rates for May, June, July, August, September, and October, 1960, were 59.4 percent, 54.4 percent, 37.4 percent, 45.4 percent, 38.2 percent, and 57.5 percent, respectively, and that Respondent had a monthly operating profit for May and June, and a monthly operating loss for July, August, and Septem- ber. Respondent did not furnish its operating revenue for_ October since the hearing was on October 27. It can be assumed, however, it was a profit somewhat less than for October 1959, since the occupancy rate ran about 2 percent less. On a request of counsel for General Counsel, he also produced records and testi- fied therefrom with respect to the monthly occupancy rates and operating revenues for 1959. This evidence shows that for May, June, July, August, September, and- October, 1959, occupancy rates were 58.6 percent, 51.5 percent, 45.1 percent, 53.4 percent, 45.3 percent, and 59.9 percent, respectively, and operating revenues for these months were a profit for May, August, and October and losses for June, July, and September. Slack testified on cross-examination that payroll costs in July and August 1960 were $61,758, and $61,769, respectively,9 and that net sales in August were $21,000 greater than they were in July. Net sales include income from all sales of services and materials. In connection with the furnishing of the payroll costs for July and August 1960, Slack said "in our operation at the Hotel Texas, we make every attempt to maintain a steady payroll in the employment of our employees." Respondent's defense is silent as to whether there were any layoffs in July and September 1959 because of the decrease in the rate of occupancy. Slack also testified that the time for training new maids was in the slack season. He contended that the persons conducting the training program, such as the house- keeper, supervisors, and other maids, were not available during substantial occu- pancy. On direct examination, Slack testified that he discussed with Estes the neces- sity of cutting the payroll because of the drop in business. On cross-examination, he recalled that he spoke to her about it, but could not recall whether he did so in July, August, or September, 1960. It was also his testimony that when the outlook for October 1960 was an increase in business, he discussed with Estes the necessity of recalling Johnson and Williams. He also testified that they continued to receive group hospitalization and other insurance coverage during the time they were laid off, and that none of the other maids who were in attendance at the July 31 union meeting had been laid off. B. Analysis and concluding findings 1. Intimidation, restraint, and coercion I have found that employee Washington attended the union meeting on July 31, 1960, and Supervisor Trial attended the August 1, 1960, union meeting in the Majestic Building, Fort Worth, Texas, and that they attended the meetings pursuant to instructions from Duvall, their supervisor. I have found that Washington reported to Duvall on August 1 in response to the latter's questioning that seven to nine maids were present at the July 31 meeting, and that Trial reported to Duvall on August 2, in response to his questioning, what took place at the August 1 meeting, and that no employees of Respondent were present at this meeting. I have also found that at the time Duvall instructed Washington, a houseman, to attend the July 31 meeting, he instructed Trial, a captain of waiters, to attend a union meeting, which he found later to be the meeting on August 1. According to Washington, Duvall said the boss desired to know if any of the employees were interested in the Union, and, according to Trial, Duvall said he wanted to know if any of the employees attended the meeting. Slack, the manager, was Duvall's boss. I find the conduct of Respondent, initiated by Duvall and carried out by Washing- ton and Trial, to constitute the illegal act of surveillance within the meaning of Section 8(a)fl) of the Act and violative of that section of the Act.10 I also find Estes' statement to Washington on or about August 2 or 3, after he refused to dis- close the names of the maids who attended the July 31 meeting, that she knew Johnson and Williams were at the meeting, to be violative of Section 8(a) (1), as by it she fostered the impression that Respondent was engaged in surveillance 11 Inde- pendently violative of Section 8 (a) (1) were the instructions of Duvall to Washington to attend the July 31 meeting and to report to him what occurred, and Duvall's and 9 Payroll costs for other months are not in evidence "Jackson Tile Manvfactitring Company, 122 NLRB 764, enfd. 272 F 2d 181 (CA. 5) Carolina Mirror Corporation, 123 NLRB 1712; Franklin Hosiery Mills, 126 NLRB 1160; Wyatt Food Stoles (Division of Kroger Company), 127 NLRB 262. 11 Capitol Fish Company, 126 NLRB 980 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Estes' interrogations of Washington with respect to what occurred at the July 31 meeting. They interfered with the rights of Washington and other employees to embrace union membership and engage in union activity. An employee who has to comply with instructions to attend a union meeting, and give an accounting of what occurred there, and is subjected to interrogation as to what occurred at the meeting, as in the case of Washington, might well be reluctant to join the Union or participate in union activity. Washington did not sign a union card. Respondent is not pro- tected from a finding of a violation by any self-serving disclaimer given to Washing- ton or Trial by Duvall that Respondent had no intention of interfering with their rights or other employees' rights to engage in union activity or become union mem- bers. The conduct constitutes a violation irrespective of the intention behind it. In this case, however, the illegal intent is present, as disclosed by the discriminatory dis- charges which I find infra. 2. The discharges The evidence shows that Housekeeper Estes disclosed to Houseman Washington on or about August 2 or 3, 1960, a few days after his attendance at the July 31 union meeting, that she knew that maids Johnson and Williams were present at that meeting. She also said to Washington that she would be blackballed if the maids become unionized. She would be unable to obtain maids who wished to stay non- union. Just prior to Johnson and Williams departing for their vacations on August 8, she told them that business was slow and to look for work elsewhere. When Williams returned on August 8 and Johnson returned on August 15, they were told by Estes that there was nothing for them to do, and not to report for work until they were called. Estes told Johnson before she left on vacation and Williams when she returned from vacation, that the sixth floor which they serviced was being shut down for painting and cleaning. However, maids were needed on the sixth floor for the cleaning, and Estes admitted using maids for this purpose. They were taken either from other floors, the swing shift, or from the extra list of maids. Some of the extra maids worked during the period in August and September that Johnson and Williams were not permitted to work. Moreover, there were three regular maids with less seniority than Johnson and Williams who were kept on when Johnson and Williams were laid off. In addition, three new maids were put to work on August 20 as regular employees and not as trainees as Respondent contends. They began this regular work shortly after Johnson and Williams were told there was no work for them. Since Respondent had not complained about the caliber of the work of Johnson and Williams, there must have been some unusual motive behind Re- spondent's action in laying off Johnson and Williams because of lack of work, while at the same time continuing to employ three maids with less seniority than Johnson or Williams, assigning maids from other floors, the swing shift, or the extra list to do the cleaning work on the sixth floor, which was their floor, and putting three new maids on regular employment shortly after Johnson and Williams were told there was no work for them. Two of these new maids applied for jobs on August 18 and the third did not apply until August 20, the day she began work. It is more than a happenstance that Johnson and Williams who were laid off in this set of circumstances should happen to be the maids that Housekeeper Estes named in the conversation she had with Washington on or about August 2 or 3 as two of the maids who attended the union meeting on July 31. Respondent's evidence discloses that there was a drop in the rate of occupancy in July 1960 from what it had been in June and prior months of 1960. However, the rate increased in August, the month they were laid off. A comparison of the 1959 figures on occupancy and operating income with those for 1960 shows there is a seasonal drop in the rate of occupancy during June through September. Man- ager Slack testified that Respondent endeavors to maintain a steady monthly payroll cost, and disclosed that Respondent's payroll cost for August 1960 was $61,769 com- pared to the payroll cost of $61,758 for the month of July 1960. The August payroll included the wages of the three new employees, Montgomery, Jones, and Diggs. Instead of having less regular employees in August and September, Respondent had one more than it had in July. In sum, the record shows that Respondent did not customarily lay off employees during the summer season when there was a decline in the rate of occupancy, and that in August 1960, when Johnson and Williams were not working, Respondent had a higher payroll cost than it had in July 1960, when they were working. This was due to Respondent's employment of the three new maids on a regular basis, about the time it claimed it did not have work for regular maids Johnson and Williams, and laid them off. In any event, the saving Respondent would have made by laying off Johnson and Williams if it had not hired TEXAS HOTEL 843 the new maids, would have been negligible when compared with the monthly pay- roll cost. I have fully considered Respondent's defenses that the other maids who attended the July 31 meeting were not laid off; that while Johnson had been asked to return to work on September 30 and Williams had notice by October 1 she could return to work immediately, that Johnson did not return until October 14 and Williams did not return until October 15; and that both Johnson and Williams received group hospitalization and other insurance during the period in August, September, and October when they were not working. I was of the opinion I should make an evi- dentiary finding, as to when they were called back to work, for consideration with other evidentiary findings, in reaching a determination as to whether there was a discharge, in view of the short period they were out of work. I find that Johnson's and Williams' delay in reporting back to work does not negate the inference of dis- criminatory discharge which flows from the other evidence. On the other hand, it shows a reluctance on the part of Johnson and Williams to return to an employment from which they had been severed because they exercised their lawful rights under Section 7 of the Act to engage in union activity and embrace union membership. Nor does the fact that Johnson and Williams continued to receive group hospitaliza- tion and other insurance negate the inference of discriminatory treatment that flows from the other evidence. There could be many reasons, including oversight, why -this insurance coverage was continued. On the above evidence, and evidentiary findings made thereon, I find and con- clude that Respondent discriminatorily discharged Frances Johnson and Lula Bell Williams for their union activity and membership to discourage membership in the Union in violation of Section 8(a) (3) and (1) of the Act.12 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 1, 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. Specifically, I have found that Respondent, in violation of Section 8(a) (1) of the Act, engaged in acts of surveillance, ordered an employee to engage in surveillance, and interro- gated him as to what he observed in the course of his surveillance of a union meet- ing. I shall recommend that Respondent be ordered to cease and desist from en- -gaging in such conduct. I have also found that Respondent discharged employees Frances Johnson and Lula Bell Williams for engaging in union activity and em- bracing union membership in violation of Section 8 (a) (3) and (1) of the Act. I shall therefore recommend that Respondent be ordered to cease and desist from dis- -couraging membership in The Cooks, Waiters, Waitresses & Bartenders' Union, Local 748, or any other labor organization, by discharging employees, or in any other manner discriminating against them in regard to their hire and tenure of em- ployment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. As an affirmative remedy, I shall recommend that Johnson and Williams be offered immediate reinstatement to the positions of maids on the sixth floor of Respondent's hotel, or substantially equivalent work, in lieu of the positions of maid on the 15th floor and as maid on the swing shift, to which Johnson and Williams were respec- tively assigned on their return to work, if they prefer such jobs to the jobs to which they were assigned, without prejudice to seniority and -other rights and privileges. I further recommend that Respondent be ordered to make them whole for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to that which she would have earned from the date of discharge to the date of Respondent's offer of reinstatement, plus any additional amount she would have earned as a maid on the sixth floor, over what she has earned from the time of her return to work, less 12 See Talc Trak, Inc, 128 NLRB 876, and Capitol Fish Company, supra. See also Southwest Hotels, Inc., 127 NLRB 1240. 844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any earnings during the period she was not working, to be computed in accordance with the Board's policy established in F. W. Woolworth Company, 90 NLRB 289. 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. The Cooks, Waiters, Waitresses & Bartenders' Union, Local 748, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By engaging in surveillance, ordering an employee to engage in surveillance, and interrogating him as to what he observed in the course of his surveillance of a union meeting, Respondent has engaged in and is engaging in conduct interfering with, restraining, and coercing employees with respect to the exercise of rights guar- anteed them in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 3. By discharging employees Frances Johnson and Lula Bell Williams because they engaged in union activity and joined the aforesaid Union, Respondent discrim- inated against them, and is discriminating against them, in regard to their hire and tenure of employment, and the terms and conditions of their employment, thereby discouraging membership in the aforesaid Union in violation of Section 8(a)(3) and (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. [Recommendations omitted from publication.] Standard Metal Fabricating Co. and United Steelworkers of America, AFL-CIO. Case No. 17-CA-1649. May 29, 1961 DECISION AND ORDER On February 24, 1961, Trial Examiner Robert E. Mullin 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 Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 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 findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. We agree with the Trial Examiner that the Respondent knew of Thomas' union activities when it decided to discharge him the morning of July 11, and that the decision to do so was prompted by its desire to rid itself of a union adherent rather than because it was dissatisfied with his work. In reaching these conclusions, we do not adopt the Trial Examiner's finding that the Respondent violated Section 8(a) (1) through a remark of Wallace Shearon. The Trial Examiner found that Shearon was a supervisor within the meaning of the Act, and he imputed Shearon's knowledge of Thomas' union activities to 131 NLRB No. 112.