New Orleans Roosevelt Corp.

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Board in reviewing the record, which necessarily includes the Trial Examiner's Intermediate Report, may sensibly be apprised of the reasons or basis for the Trial Examiner's findings and conclu- sions upon all the material issues of fact and law in the case. Furthermore, the statutory scheme of the APA and the National Labor Relations Act places direct responsibility upon the Board to see to it that parties litigant be afforded the kind of Intermediate Report to which they are entitled by law. We again remand this case to the Trial Examiner with the explicit directive that he prepare and issue an Intermediate Report in this case in compliance with the requirements of Section 102.45 of the Board's Rules and Regulations and further instruct him that he, like all other of the Board's Trial Examiners, must, in future cases in which he may issue Intermediate Reports, satisfy these requirements. Moreover, let it be explicit that We are not directing the Trial Exam- iner to make credibility resolutions in favor of one side or the other, or in favor of one Witness or against any other witness. Nor do we direct him to make findings favorable to one of the parties as opposed to the other, or as to the ultimate conclusions which he shall reach on the basis of the credibility resolutions and findings which he may make. Our direction relates only to the need for his credibility resolu- tions, findings, and conclusions and the manner in which they are to be set forth in his report. IT IS HEREBY ORDERED that the above-entitled case be, and it hereby is, remanded to the Trial Examiner for the preparation and issuance of a Second Supplemental Intermediate Report setting forth findings of fact, conclusions of law, and recommendations in conformity with the Board's remand order of October 25, 1960, and with the Board's Rules and Regulations as explicated herein. ME3IBER BROWN took no part in the consideration of the above Order Remanding Case to Trial Examiner. New Orleans Roosevelt Corporation and General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , Ind. Cases [1'os. -15-CA-1724 and 15-CA-1724-2. July 20, 1961 DECISION AND ORDER On September 15, 1960, Trial Examiner Ramey Donovan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and Was engaging in certain unfair labor 132 NLRB No. 22. NEW ORLEANS ROOSEVELT CORPORATION 249 practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recom- mended that the complaint be dismissed With respect to them. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three- melnber panel [Chairman McCulloch and Members Rodgers • and Leedom]. 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 these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the exceptions and modifi- cations 1 noted below : 1. We disagree with the Trial Examiner's finding that the economic strikers herein made a conditional offer to return to work. The Charging Union called a strike of the Respondent's employees on February 4, 1960, in the hope that the Respondent would immediately agree to a consent election. When such an agreement did not ma- terialize, Schwelm, the Charging Union's secretary-treasurer, decided to call off the strike and, on February 4, 1960, sent identical telegrams to the Respondent and to its labor relations consultant stating: . . . Please accept this as official notice that the employees on strike will return to their work at their usual reporting time on February 5. Only an election conducted by the National Labor Relations Board can finally settle this issue. In our view the Charging Union's telegram indicated that the economic strikers were returning to work unconditionally. The sec- ond sentence of the foregoing extract, far from imposing a condition, indicates merely that the Union intended to rely upon the Board's procedure for determining the question of majority representation. Further, none of the strikers who sought to return to their jobs on February 5 indicated that return was in any way conditioned upon an election or upon any action by the Respondent. Finally, the Re- 1 The Trial Examiner incorrectly referred to Odeal Riley as Eliza Vaughn's daughter and stated that Riley had testified about Vaughn However, the record indicates that Laura Toliva. who is Vaughn 's daughter , gave the testimony attributed to Riley The Intermediate Report is hereby corrected accordingly We find merit in the General Counsel's exceptions to the Trial Examiner's inadvertent omission of the names Earl Sumler and Thelma Jones from the "Recommendations" por- tion of the Intermediate Report , and of the name of Thelma Jones from the notice. We shall therefore include the above names in our Order and notice 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent neither refused reinstatement nor terminated strikers be- cause of any alleged conditional offer to return to work. Accordingly, we find that the strikers' offer to return to work was unconditional? 2. In deciding whether striking employees had applied for rein- statement before they had been replaced by the Respondent, the Trial Examiner assumed incorrectly that the burden was on the General Counsel to prove when replacements for individual strikers had been hired. The courts have held that "Proof that jobs were unavailable was an affirmative defense, and the burden of establishing it rested upon the respondent company." 3 Accordingly, it was for the Re- spondent to establish that it hired replacements before the time when the General Counsel's evidence showed the strikers had applied for reinstatement. This is also appropriate because the Respondent hired the replacements and it was therefore in a better position than the General Counsel to show when the hiring occurred.' Applying his erroneous standard of proof, the Trial Examiner concluded that the General Counsel had failed to prove that Respondent had discrimi- nated against strikers Navo, Harford, Gennaro, and Sanford because the evidence did not establish that these strikers had applied for re- instatement before their replacements had been hired. As we have indicated above, it was Respondent's burden to show that the hiring of replacements preceded the applications for reinstatement. In the case of the four above-named individuals, Respondent failed to make this showing. Accordingly, we find, contrary to the Trial Examiner, that in refusing to reinstate Navo, Harford, Gennaro, and Sanford upon their applications for reinstatement, Respondent discriminated against them in violation of Section 8(a) (3) and (1) of the Act. 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, New Orleans Roosevelt Corporation, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in and activity on behalf of General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauf- ' In making our finding we do not give probative weight to newspaper reports of the strike, the accuracy of which was not established upon the record. The circulars dis- tributed by the Charging Union on the morning of February 5 contained the text of the telegrams. Nothing contained in the circulars indicated that the employees' return to work was conditional 3 N.L R B v. Cambria Clay Products Company, 215 F 2d 48, 56 (C A 6) L R R v J G Boswell Co. 136 F 2d 585, 597 (CA 9) 1 Underwood Machinery Company, 95 NLRB 1386, 1393 NEW ORLEANS ROOSEVELT CORPORATION 251 fears, Warehousemen and Helpers of America, Ind., or any other labor organization of its employees , by discharging or refusing to reinstate employees or otherwise discriminating against them in re- gard to hire or tenure of employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization , to form, join, or assist General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or a'ny other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective, bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right maybe affected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized by Section 8(a)•(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to the following-named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them, in the manner set forth in sections III and V of the Intermediate Report : I Eugene J. Betz Wilson Aaron Willie Edwards Minnie Jones Percy Laws Ruth Williams Anthony C. Sandoz Lawrence Delas Morris Soler Edna Rousell Laura Toliva Rebecca Douglas Isodora Jenkins Eddie Blackman Earl Sumler Thelma Jones Mary Sanford Lawrence M. Menendez Ward Breaux Robert Rogan Herbert White Frank Miller Bernie Smith A. E. Hatfield Francis WV. Kollin Ernest Clay Edward Thomas Odeal Riley Emile Prats George Watts Fred Santiago Lawrence Navo Herman Harford Laurence Clark Bessie Ingram Anna Suber 5 Respondent has already offered reinstatement to former or substantially equivalent positions to some of these named discrimi na tees , as set forth in, section ITT of the Inter- mediate Report 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albert Duplesis Claratte Foxworth Bernadette Mumford Doret'ha Nealand Francis Clay Martha Jackson Katherine Lee Louis Moses Zelma Casby M. C. Rice Pearlie Bunch Frank Gennaro Pauline Neal (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and right of reinstatement due under the terms of this Order. (c) Post at its Roosevelt Hotel in New Orleans, Louisiana, copies of the notice attached hereto marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed.by an authorized representative of Respondent, be posted by Respondent, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- eluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region, in writ- ing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges violations of the Act not found herein. a 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 woi ds "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, as amended, We hereby notify our employees that: WE WILL NOT discourage membership in and activity on behalf of General Truck Drivers, Chauffeurs, Warehousemen and Help- ers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization of our employees, by dis- charging or refusing to reinstate employees, or otherwise dis- criminating against them in regard to hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- NEW ORLEANS ROOSEVELT CORPORATION 253 tion, to form, join, or assist General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE have offered or will offer to the following named employees immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and will make them whole for any loss of pay they may have suffered by reason of the discrimination against them. Eugene J. Betz Ernest Clay Wilson Aaron Edward Thomas Willie Edwards Odeal Riley Minnie Jones Emile Prats Percy Laws George Watts Ruth Williams Fred Santiago Anthony C. Sandoz Lawrence Navo Lawrence Delas Thelma Jones Morris Soler Laurence Clark Edna Rousell Bessie Ingrain Laura Toliva Anna Snber Rebecca Douglas Albert Duplesis Isadora Jenkins Bernadette Mum ford Eddie Blackman Francis Clay Earl Semler Katherine Lee Mary SanfordZelma Casby Frank Gennaro Pearlie Bunch Lawrence M. Menendez Pauline Neal Ward Breaux Claratte Foxworth Robert Rogan Doretha Nealand Herbert White Martha Jackson Frank Miller Louis Moses Bernie Smith M. C. Rice A. E. Hatfield Herman Harford Francis W. Kollin NEW ORLEANS ROOSEVELT CORPORATION, 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. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE The complaint alleged that on February 4, 1960, Respondent's employees at the Roosevelt Hotel went on strike; that on February 5, 1960, 65 named strikers un- conditionally applied for reinstatement;' that on February 5, 1960, Respondent re- fused and continues to refuse to reinstate the said employees because they had gone on strike; that on February 8, 1960, Respondent refused and continues to refuse to reinstate Guy E West, Sr., because West, on January 22, 1960, together with a group of employees had met with Seymour Weiss, Repondent's president, for the purpose of bargaining for wages and working conditions; and that the aforedescribed acts of Respondent were violative of Section 8(a) (1) and (3) of, the Act. Respondent in its answer denied the commission of unfair labor practices as alleged. A hearing with all parties represented was held in New Orleans, Louisiana, on May 16, 17, 18, 19, and 31, and June 1, 1960. Oral argument was made and briefs were filed by the General Counsel and Respondent. FINDINGS OF FACT , 1. THE BUSINESS OF RESPONDENT New Orleans Roosevelt Corporation is a Louisana corporation that owns and operates the Roosevelt Hotel in New Orleans, Louisiana . The Roosevelt Hotel, which is involved in this proceeding , is a transient type hotel located in Metro- politan New Orleans. Seventy -five percent of the hotel's guests remain less than 30 days at any one registration . During the past 12 months the hotel received in excess of $500,000 from its operation and during that same period it purchased goods and materials valued in excess of $10,000 that were shipped from sources outside the State of Louisiana. It is found that the Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Ind , herein called the Teamsters, is a labor organi- zation within Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background In March 1959, the Teamsters began organizational efforts among Respondent's employees.2 The union filed a petition for certification with the Board on April 22, 1959.3 Hotel & Restaurant Employees & Bartenders International Union , AFL-CIO, herein called Hotel Workers or Hotel Union, intervened in the proceeding. Hear- ings were held on June 25 and 30 and July 13 and 24, 1959, and February 29, 1960. Since the representation proceeding bears a direct relationship to the subsequent alleged unfair labor practices a summary of the representation proceeding is set forth as Appendix A.4 Although a variety of comments could no doubt be made regarding the roles of each of the participants in the representation case, I believe that the most pertinent and undeniable observation is that a petition for certification, by means of a Board election, filed on April 22, 1959, had progressed to the point, r The name of Donald Taylor was added at the hearing to the original 64 names in the complaint Respondent employs approximately 1,456 employees in various departments known as engineering, maintenance and repair, storeroom, kitchen, dining, guestrooms, bars, valet, paint shop and upholstery 'The unit set forth in the petition was "all employees," excluding "all professional. office clerical employees, supervisors, watchmen and/or guards as defined in the Act amended " 4 Appendix A, which is the summary, is based upon a reading of the transcript of testi- mony and record in Case No 15-RC-1976 (not published in NLRB volmes), the repre- sentation case, of which the Trial Examiner has taken official notice Appendix A is in effect an extended footnote and serves the same function in the Intermediate Report The Tinil L'mininer considers that Appendix A on page 294 should be read at this par- ticular point of the Intermediate Report NEW ORLEANS ROOSEVELT CORPORATION 255 by February 3, 1960, where the Board had felt obliged to remand the record and to reopen the hearing to receive evidence bearing on the Board 's legal jurisdiction over Respondent's operation . The matter of lack of legal jurisdiction had been ably raised by Respondent in its brief to the Board after the close of the initial hearing on July 24, 1959.5 B. The strike On February 2, 1960, Schwehm , secretary-treasurer of Teamsters Local 270, attempted to reach Logan, a labor relations consultant, who, at that time and for many years previously , represented Respondent in labor, matters 6 Logan was out of town but Schwehm spoke to him by a long-distance telephone call to New York City, on Wednesday , February 3. In substance , Schwehm told Logan that the Union was going to picket the hotel unless Logan would agree to a consent election to resolve the question of representation then pending in the proceeding instituted by the Union's petition of April 22 , 1959, described above. Logan replied that the Board had sent the representation case back for further hearing and said nothing could be done without the three parties thereto, the Teamsters , the Hotel Workers, and the Employer, agreeing and that the two unions had not been able to agree on the unit. He said that there was nothing he could do if the Union was going to picket. Schwehm said that the picketing would commence "tomorrow morning." On February 4, at 5 a in. the Union began picketing the hotel and continued to do so until 11:30 p in. on that same date . The two picket signs that were carried stated: Employees of Roosevelt Hotel & Members of Local 270 On Strike We Demand An Election To Be Conducted By The National Labor Relations Board Between 460 and 470 employees observed the picket line and did not go to work on February 4. The majority of the strikers were employees in the laundry room, the linen room, the engineering department , the fountain lounge and coffee shop, the housekeeping department , and the steward department.? According to Logan , when the strike occurred the first thing that the Employer did was to fill every job that had to be filled with employees who were at work in the hotel 8 The next move was to call employees who were on their day off or who regularly worked on the second or third shift and ask them to come as soon as possible . After thus getting the hotel operating in reasonably good shape , the Em- ployer then started to look for replacements . This was done by instructing depart- ment heads to ask the people in their departments "to call anybody they knew who was available for work and get them to come in or to see anybody that night or the next day and bring anybody in with them that they could " C. The termination of the strike As previously mentioned the strike ended the same day on which it had com- menced. Schwehm , who had made the decision to call the strike , concluded by about 9 p.m. on February 4 that he would call off the strike since in his opinion the strike had not accomplished its object . Schwehm credibly testified that the Union struck in order to get the Employer to agree to a consent election . He stated that he had believed that the strike would last a few hours and that the Employer would there- 5 The cogency of Respondent's legal position was not affected by the fact that Respond- ent had refused to furnish evidence regarding its interstate purchases O Logan and his associates represented Respondent in the representation proceeding described above and also in the instant case. 7 Apparently these departments were among the lowest paid in the hotel , e g , many laundry workers were paid 47 cents per hour for a 6-day week or $89 per month Judging from participation in the strike the Teamsters' strength apparently lay in these departments Cf the results of the election subsequently held on May 25, 1960 1,200 eligible voters , valid votes counted plus challenged ballots 1,197 , 454 votes for Team- sters , 79 votes for Hotel workers ; 592 votes against the participating unions 8 E g, the laundry was shut down and the available laundry workers were transferred to the housekeeping department to help out as maids , etc These employees remained on the laundry payroll 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon agree to a consent election. When the foregoing did not materialize Schwehm sent telegrams late on the evening of February 4 to Logan and to Weiss, president of Respondent. The telegram stated: We have demonstrated our demands for an election to be held immediately. We fully expect you to cooperate with the Labor Board at the hearing on February 1-0 in arranging for a quick election. Please accept this as official notice that the employees on strike will return to their work at their usual reporting time on February 5. Only an election conducted by the National Labor Relations Board can finally settle this issue. Employee Casby testified without contradiction that on Thursday night, February 4, she heard a television broadcast to the effect, to use her apparent paraphrase, that the Union said everybody was to go to work tomorrow. About 5 a.m, on Friday, February 5, the Union began distributing notices outside the hotel announcing the end of the strike.9 In any event, on Friday morning substantially all the strikers reported for work at their usual time and the majority were permitted to return to work without incident. The main problem arose in the engineering department but, as Logan testified, "there was no problem in other departments as to people going back . in other words those who had come back and presented themselves for work had gone to work." 10 6 The notices read : Attention All Roosevelt Hotel Employees The following telegram was sent to the Roosevelt Hotel last night "We have demonstrated our demands for an election to be held immediately We fully expect you to cooperate with the Labor Board at the hearing on Febru- ary 10th in arranging for a quick election Please accept this as official notice that the employees on strike will return to their work at their usual reporting time on February 5th Only an election conducted by the National Labor Boai d can finally settle the issue." We have been trying for 9 months to get an election so that you can decide who you want to represent you. On Wednesday the National Labor Relations Board will hold a second hearing and we will be present and demand that the Company and the New Orleans Hotel Em- ployees Trades and Craft Council, AFL-CIO cooperate in securing an immediate election We have demonstrated to the Company and the public our desire for an election We sincerely hope that we can report to you next Thursday that the Company and the other Union have joined with us in obtaining an election [Signed by Schwehm, Secretary-Treasurer of Teamsters.] Respondent introduced into evidence, without objection, newspaper reports of the strike One story, apparently written on February 4, the day of the strike, related that em- ployees of the Roosevelt failed to show up for work "today" because of "what they de- scribed as 'delaying tactics' in a proposed labor election " Inter alia, the story con- tained a direct quote from a Teamster "spokesman" that "We are protesting delaying tactics of the hotel and red tape of the National Labor Relations Board in calling for a labor election at the hotel." The story also stated, "Striking employees, Logan said. are subject to dismissal. 'This is what is called an economic strike, and under NLRB rules, workers on strike would be subject to dismissal.' " The other story, captioned "Return To Jobs, Strikers Told" stated that the secretary-treasurer of Local 270 of the Teamsters "had ordered all striking employees of the Roosevelt Hotel back to work James Schwelim said the back-to-work order is dependent on the outcome of a National Labor Relations Board hearing scheduled for next Wednesday " The telegram sent by Schwehm to Logan and Weiss was set forth in the story The only direct quotes in this story were attributed to Logan and a "spokesman" for the Teamsters "Logan said 'this is what is called an economic strike and under NLRB rules workers on strike would be subject to dismissal ' " "A spokesman for Truck Drivers Local 270 said the Union was protesting 'delaying tactics of the hotel and the National Labor Relations Board in calling for a labor election at the hotel.' " Logan testified that he read the newspaper story Friday morning, February 5 101n general, the foregoing is an accurate observation but as we shall see there were some problems in other departments regarding individual strikers NEW ORLEANS ROOSEVELT CORPORATION 257 D. The alleged illegal discriminations 1. The general situation on February 5 and thereafter Although I shall consider the case of each alleged discriminatee individually, it is noted that 53 of them were employees under the jurisdiction of Chief Engineer Bryner' and of these 53 all but a few of them had the following common experi- ence: 11 When they reported for work on Friday, February 5, at their usual starting times, in the general period of about 6:30 to 8 a.m., they followed their customary practice of first going to pick up their timecards. The timecards, however, were not available and the timekeeper informed them that the cards had been "pulled" and they were not permitted to go to work. The employees then informed Schwehm that they had not been permitted to return to work. Schwehm telephoned Logan at 8 a.m. and told him that although the strike was terminated there were employees who were not being allowed to go to work. Later in the morning Schwehm again spoke to Logan and the latter said that the timecards would be in place about 1 p.m. The employees returned to the hotel about 1 p.m., and found their timecards in the racks, with a note attached to the cards stating that they should see Bryner. They thereupon, individually and in groups, reported to Bryner's office. Bryner informed them that they had been replaced and that he had replacements coming in Monday, he advised the strikers to come back on Monday in case some of the replacements did not show up. Bryner's remarks were in general terms and he did not tell a particular individual that he or she had been replaced. The strikers reported on Monday at their usual starting time and found their cards in the rack with the nota- tion that they should see Bryner. Bryner again spoke to them and told them for the most part, in the same general language as used on Friday, that they had been replaced and that they should get their "time." The strikers then received their termination slips which gave as the reason for termination, "replaced" or "job dis- continued." 12 In Bryner's engineering department, the evidence establishes that there were 25 employees on the payroll and working immediately prior to the February 4 strike who participated in the strike. All these individuals were refused reemployment and were terminated for one of the reasons referred to above, job discontinued or replaced. No employee in the department who had been working on February 3 and did not strike was terminated and none of their jobs were discontinued.13 2. The nature of the strike and the requests for reinstatement After careful consideration I find myself unable to agree with Respondent's con- tention in its brief that the strike was illegal. The strike was for the purpose of getting Respondent to agree to a consent election.14 It was an "economic" as dis- 11 The complaint as amended lists 65 names of persons alleged to have been denied re- instatement Of these, 28 worked in the laundry and linen room and 25 In the engineer- ing department, all under Bryner 11 Of the 65 individuals named in the complaint who were denied reinstatement, 42 Who testified at the hearing were given the reason for their termination, job discontinued, 15 who testified were given the reason, replaced , 6 were given miscellaneous reasons such as "for the good of the service" , and 3 did not testify 13 Three individuals in the department, Gordon, Runnels, and Herbert, had worked prior to the strike and had their regular day off on February 4 They returned to work February 5, without any difficulty. Thirty-seven employees in the department were work- ing immediately prior to the strike, during the strike, and thereafter Blanchard, who is named in the complaint, did not testify at the hearing He worked in the engineering department and was on its payroll His record shows that lie worked the 3 days of the week of the strike, February 1-3, but did not work February 4 or thereafter Since there is no evidence that he applied for reinstatement or other evidence regarding him, the most that could be said for him is that lie probably was a striker of was so regarded when he did not report on February 4. Dismissal of his case is recommended 14 All the evidence, including Schwehm's statements to Logan before the strike, the picket signs, the telegrams, the union circulars, and Schwehin's testimony, establi li this fact In my opinion the single most important factor that piompted the Union to try to secure a consent election was the fact that this was the quickest means of securing the election which the Union had sought in filing its petition in April 1959 The Board representation hearing had been remanded and reopened and there was no prospect that an early election was in sight except via the consent route Schwehm testified at various 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tinguished from an "unfair labor practice" strike. As the term itself implies, a con- sent election is achieved through agreement of the parties. The realities of labor relations reveal that agreement is brought about either by all parties responding readily to the proposal or it may be achieved by one or the other party exerting persuasion and pressure upon the reluctant party. In some situations the pressure may be by means of publicizing among constituents or in the community that one party is unwilling to agree to have a prompt election. - Whether the reluctance of one party to agree rests on valid or on specious grounds, the bald proposition thus publicized may arouse favorable response in the community and, depending on the particular type of issue involved and the firmness of the reluctant party's conviction, a consent may sometimes be'thus achieved. Unrest among employees, arguments between pro and con factions, the attendant effect upon efficiency, all may be pointed to by a union as arguments for an employer agreeing to a prompt election. A threat of a strike and the strike itself may be potent persuaders. But lust as a union may strike for, and legally achieve thereby, recognition and a contract, it may strike to achieve a consent election which in essence is a lesser demand than recognition or a contract. Such activity, in my opinion, as not only not illegal but is protected activity under Sections 7 and 13 of the Act. But what of the fact that, as here, the question of representation is pending on a petition to the Board and the Board has held and is scheduling hearings thereon. There is nothing in the Act or in the Board's Rules and Regulations that prevents the parties from agreeing to a consent election in the course of a hearing In fact, this is not infrequently done. It is somewhat comparable to a settlement achieved by the parties in the course of litigation. Since the Board is involved, however, a consent-election agreement is subject to the approval of the Board or its appropriate agent. Although there is no guarantee of Board approval of the consent agreement, such required approval serves as a guarantee that the statutory provisions are not transgressed, and the Board in general encourages the parties to achieve agreement among themselves without the expenditure of the time and money entailed in a formal Board hearing and decision. There is, next, the question of the legality of a strike for a consent election when there are two unions in the picture and where, as here, the Unions are not in com- plete agreement as to the composition of the unit.15 Again, the experience of the Board and practitioners in the field of labor relations demonstrate that if the em- ployer and one union are in agreement for ,a consent election the other union may be under subtle but nonetheless real pressures to also agree. Ostensibly, at least, the reluctant union may not be able to afford being placed in the position where its constituents as well- as others may categorize it as being opposed to having a prompt election. Also, in such a posture each union may be willing to compromise. If 10 job categories are in dispute, each union may be willing to go along with the other's position on some of the categories in return for a reciprocal yielding on others. The attempt, therefore, by the Teamsters, who had filed the petition for certification with the Board, to achieve the Respondent's agreement to a consent election was not so demonstrably transparent and unrelated to legitimate potentiality that it can be said for this reason to have had no legal purpose. I am not persuaded by the evidence that the Teamsters in attempting to have Respondent agree to a consent election had in mind some kind of a "sweetheart" points as follows' The union members were disturbed about not getting an election and they felt that the Employer "was dragging its feet", Scliwehm felt that the employer was not cooperating fully with the Board in that "they refused to come in and give the commerce data where they could easily have done that at the front of the hearing and Schwelim stated that the Board was having trouble securing commerce information from the Employer and lie considered that this was holding up the Board Decision and Direction of Election At an earlier point in his testimony Schwelim had been asked about the representation case and the fact that the hearing had not been concluded prior to the strike He said that the delay in these hearings had nothing to do with the strike. Looking at Schwelim's testimony in its entirety and at all the other evidence, I can only conclude that the last-mentioned statement about delay in heaiings haling nothing to do with the strike means that the delay in scheduling of the hearings had not caused the strike or that Schwehm was attempting to make it clear that the stiike was caused by the desire to secure a consent election and not merely as a protest of delay 15 Attorney Michael Early, an associate of Logan and who was the attorney who tried the iepresentation case on behalf of the Respondent, testified in the instant hearing IIe stated that at the last representation hearing there was substantial agreement as to the unit, ". . for 95 percent of the jobs in the hotel both unions stipulated as we went along job for job . When that finished, we were in disagreement on a few jobs and a few job titles " NEW ORLEANS ROOSEVELT CORPORATION 259 , consent election between the Teamsters and the Respondent, with the Hotel Workers Union excluded from the ballot . For one thing, with the petition pending before the Board and with hearings thereon having been held, the status of the Hotel Workers Union as a party was unmistakably clear. Any consent agreement would require as a minimum the approval of the Board 's Regional Director and no such approval would probably have been forthcoming unless both unions as well as the employer were parties. Schwehm testified that he thought that if the petitioning Union, the Teamsters , and the Respondent agreed to a consent election "the other union would have to be on the ballot." This was correct but Schwehm , under the particular circumstances of this representation case, was probably incorrect in his idea that if the Hotel Workers did not agree to the consent stipulation , an election could be held on a two-party agreement albeit with both unions on the ballot.is In any event I am not persuaded under all the circumstances that the strike to achieve a consent-election agreement was illegal or that it was anything but activity pro- tected by the Act.17 My conclusion is not altered by,the fact that Respondent was within its legal rights in refusing to agree to a consent election and by the fact that Respondent had no obligation to so agree . An employer has no legal obligation to grant a wage increase to a union but a union's action in striking for such an objective is not thereby illegal or unprotected Respondent contends that the strikers did not make an unconditional request for reinstatement and therefore were not illegally discriminated against In sup- port of this position Respondent points to the Union 's telegram to the Respondent on February 4, the newspaper account of Schwehm's position , and rumors of further strike activity. In the usual situation where there is a conditional request for reinstatement, it is in effect a condition precedent, e.g., if you grant a wage increase we want to re- turn to work. The instant case, however, is one where the employees and the Union made it clear that they were prepared to return to work immediately although the Union had stated that such action was dependent upon the outcome of the scheduled Board hearing and immediate or quick election as a'result thereof Since the Union was a spokesman and agent for the employees on this matter, I shall con- sider the employees applied under the union aegis although ' individually the em- ployees had stated no qualifications with respect to their requests for reinstatement. The Employer therefore had been placed on notice by the Union that the ter- mination of the strike and the continuance of work by the employees was subject to, in effect, a condition subsequent. With respect to the legal effect in the present connection I made no distinction ,between a condition precedent and a condition 16 Apparently Schwehm's experience had involved cases in which a consent election was held although one union did not sign the consent agreement Such a situation exists where the intervening union has less than a 10 -percent proof of interest among the em- ployees and in such circumstances the intervenor may not block a consent election bete een the employer and petitioner although it, may have its name placed on the ballot in such election Although I have assumed that , the Hotel Workers had at least a 10-percent showing of interest in the instant case I have no information on this point It is pos- sible that they did not and that Schwehm suspected as much , Cf the results of the election on May 25, 1960 1,200 eligible voters . 3 void ballots ; 79 votes for Hotel Workers . 454 for Teamsters , 596 against unions 68 challenged ballots 1,197 total votes cast See NLRB Manual , section 11022 and 3, c and d 17 On February 4, 1960, during the afternoon of the strike . Logan testified that Schwehm asked him to enter into an agreement and "get this thing over with " It was Logan's testimony that he thought Schwehm had reference to a contract In view of all the other evidence that at no time did Schwehm ever mention a contract to Logan or Early and had made it clear in so many words that lie was striking for a consent-election agree- ment, I find . that the reference to an agreement was to a consent-election agreement I credit Schwehm 's testimony that he never asked Logan to sign a contract Further, it is difficult to conclude that if Schwehm , who admittedly had told Logan on February 3 that lie was going to strike for a consent-election agreement and had been unable to achieve his objective , not only by the threat but also by the actual strike which commenced at 5 30 a in on February 4, would have even considered that Logan , who was withstanding the strike of the Union for a limited objective , would have entered into a contract. Also the failure of Schwehm to mention the word "contract" or to produce a proposed contract is of some significance When a union such as the Teamsters desires a contract , as dis- tinguished from an election or an election agreement , the fact is usually made unmis- takably clear and customarily a printed or typed form of contract is simultaneously produced 614913-62-v of 132-18 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subsequent , both are conditions which the Employer may reject . By the same token I do not draw a legal distinction between the fact that the requests for reinstatement in themselves were unconditional and that it was the continuance at work that was subject to the outcome of future events. In effect, a position that is equivalent to stating that we are asking reinstatement but our continuance at work will be de- pendent on your action at a subsequent hearing is a conditional request for rein- statement. It is unnecessary to determine whether the interpretation to be placed on the Union 's telegram, its circulars, and the newspaper story, establishes that the termina- tion of the strike and the return to work was dependent upon the securing of a consent election at the scheduled Board hearing or was dependent upon the Re- spondent's production of commerce information at the hearing so that the Board could conclude the hearing and direct an election .18 Suffice it to say that a condi- tion was propounded by the Union that conditioned the return to work of the em- ployees. In my opinion Respondent could have rejected the requests for reinstate- ment because of such conditions. The important fact is, however, that Respondent did not refuse the requests for reinstatement or terminate the strikers because of any conditional request for re- instatement . The strikers were terminated for the reason that they had allegedly been replaced on their jobs or that their jobs had been discontinued. A few were terminated for other reasons, none of which was the conditional nature of the re- quest for reinstatement. If the strikers had been engaged in an illegal strike and had thereby been engaged in activity that was both illegal and unprotected by the Act, Respondent would have owed them no legal obligation and its failure to assign a specific reason or any reason for its action would probably be of no significance . 19 It is clear, however, based on numerous precedents, that economic strikers engaged in activity protected by the Act, as here, have a right to reinstatement unless they have been permanently replaced or have engaged in misconduct that would disqualify them for reinstate- ment.20 The employer who terminates an economic striker and denies reinstate- ment on the grounds that the striker had been replaced or that his job has been dis- continued , may not subsequently seek to assert that there was some other reason for its action when the evidence shows the contrary. In the instant case it is clear that no striker either verbally or in writing was denied reinstatement because Respondent considered the request for reinstatement to be a conditional one. Moreover, Respondent, in reinstating all the strikers except a minority, apparently attached no weight to the conditional nature of the return, although the condition was applicable to all. Also, some of the strikers who were denied reinstatement and terminated on February 5 or 8 were reinstated as early as February 17 without reference to the conditional aspect of the return to work which presumably still existed , and without the hearing having been held that supposedly would trigger the condition2i It is my opinion, therefore, that the discriminatees must be considered from the standpoint of the reasons given to them by Respondent for its failure to reinstate them as well as from the standpoint of the reasons revealed by the evidence , and not from the standpoint of some factor that played no part in Respondent 's action.22 i"As wwe have seen, the Board's remand of the record and the scheduled reopened hear- ing were principally attributable to Respondent's refusal to produce certain commerce data In retrospect, at least , since Respondent never did consent to an election when the hearing resumed but did produce the commerce data, and since the strike was never renewed, it appears that the Union was intent upon the latter aspect and had given up on hope for a consent agreement when its February 4 strike had not accomplished this objective 191n Mackay Radio it Telegraph Company, Inc, 96 NLRB 740, the Board found that the strike was illegal from its inception and in contravention of public policy. The em- ployer was therefore free to deal with the strikers as it chose The Board in the course of its decision distinguished between illegal conduct and conduct that was not illegal but was unprotected by the Act In the instant case, as previously stated, the strike was both legal and protected by the Act 20 N L R B v Mackay Radio it Telegraph Co . 304 U.S 333 21 The condition , as we have seen , was the Respondent's cooperation at the hearing in supplying commerce data or its agreement to, a consent election The healing was scheduled for February 10, postponed to February 23, and again postponed to Febru- ary 29 The parties had received notice of the postponement on February 5 22 Respondent in fact still asserts the validity of the reasons given for the terminations hut now seeks to use as a general defense a position that it has effectively waived insofar NEW ORLEANS ROOSEVELT CORPORATION 261 3. The individual strikers Sandoz, a carpenter for 17 years in the engineering department, who also repaired locks in the hotel, and a striker, reported for work on Friday, February 5, and Mon- day, February 8. He participated in the circumstances described above regarding the "pulled" cards and Bryner's statements, and received a termination marked "job discontinued." 23 He was reemployed in his former job on February 17, 1960. When Bryner spoke to him on February 17, he told Sandoz that "we" were giving him a lot of trouble and that if the men had to join a union he, Bryner, could not "see" the Teamsters. Delas, a carpenter for 14 years in the engineering department and a striker, had the same experience in seeking reinstatement as had Sandoz, above. His termina- tion on February 8 was marked "job discontinued." He was contacted to return to his job on February 17 and he returned February 20.24 Soler, a carpenter for 5 years in the engineering department and a striker, had the same experience regarding reinstatement as did Sandoz and Delas, above. His termination slip was marked "job discontinued." He was asked to return February 16 but arranged to return on February 29 because he was working elsewhere. He returned on the latter date. Menendez, a carpenter for 15 years with the engineering department and a striker, had the same experience regarding reinstatement as did the aforementioned carpenters. Reason for termination was job discontinued. He was returned to his job February 18. When he returned Bryner told him he had been surprised at "our" action. Bryner expressed the view that it had not been a legitimate strike and that by participating they were supporting the Negroes 25 Breaux, a carpenter for 21/2 years in the engineering department and a striker, had the same experience regarding reinstatement as aforedescribed. Termination was marked "job discontinued." He was reemployed February 18. Bryner told him he had done a foolish thing and said, "Do not do a foolish thing like that again." Krennerick, a carpenter for 13 years in the engineering department and a striker, had the same experience as the foregoing carpenters regarding efforts at reinstate- ment and reason given for termination. He was reemployed February 19. Prats, a carpenter for 6i/2 years in engineering and a striker , had the same experi- ence as the above carpenters regarding reinstatement and termination His termi- nation slip said "job discontinued." Franz, secretary to Bryner for over 18 years, testified that she took care of the payroll and the timebook as well as other matters. She testified that Prats had not been replaced. In May 1960, Franz called Prats, explaining that Bryner, who was ill, had just called her and told her to have all the carpenters back at work. Prats was reemployed May 10, 1960. Arsaga, a carpenter for the hotel for 6 years and a striker, sought to return to work on February 5, but his card, like the others, had been "pulled." On Monday, February 8, he and others, including Betz, an upholsterer, who was also a striker. saw Bryner. Bryner said the jobs have been filled Betz, according to Arsaga and corroborated by Betz' testimony, asked, "Does that mean that we are fired." Bryner replied, "Fired, quit, or whatever you want to call it, that is it." Arsaga's termination slip said "job discontinued." 26 Arsaga was offered reinstatement on May 9, 1960, but he declined because of other employment. Gennaro, a hotel carpenter for 4 years and a striker, had the same experience as Sandoz and others, aforedescribed, in his attempts to return to work after the strike. His termination slip said "job discontinued." 27 Gennaro was reinstated in his former job on May 11, 1960. as it applies to the strikers Even in the case of sitdown strikers whose position is far weaker from the legal standpoint than that of the instant strikers, the employee status is not automatically terminated in the absence of affirmative action by the employer foi engaginq in such conduct. Stewart Die Casting Coi poi anon v NLRB, 114 F 2d 849. 855 (C A. 7). No less is required in the case of legal strikers engaged in protected strike activity The "existence of some justifiable ground for discharge is no defense if it was not the moving cause" NLRB v. Wells, Incorporated, 162 F. 2d 457, 460 (CA 9) 23 See section D, 1, supra. "The general situation on February 5 and thereafter" -t Delas testified that prior to the strike he had heard that the hotel had been trying to block the election and that the strike was to be a show of strength 25 The majority of the strikers, at least among the alleged discriminatees , were Negroes The carpenters and the upholsterers who struck and a few others were white 28 At the 'hearing Franz testified that Arsaga had been replaced by a new employee, Brazil , who went to work February 7, 1960 22 At the hearing Franz testified that a new employee, Wood, who went to work Febru- ary 5, had replaced Gennaro 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following strikers in the engineering department had the same experience regarding efforts to return to work as the carpenters aforedescribed. Their termi- nation slips said "job discontinued": Kollin, air-conditioning mechanic for 25 years, was reinstated February 22; Rogan, helper in paint shop, 11 years; White, electrical helper, 3 weeks; Sumler, who worked as porter and also worked washing cans and on incinerator, was reinstated March 7 as porter but at lower rate; Hatfield, who did welding and general mechanical work, was reinstated February 27; Smith, a welder for 12 years in the hotel, testified that Friday, February 5, when he saw Bryner, the latter said he did not appreciate the fact that Smith had gone home on February 4 and had not come to work and that Smith would not have a lob-his. termination slip, which was given to him on Mon- day, February 8, said "job discontinued"; Miller, a laborer, 5 years. The following strikers in the laundry department and in the linen room, with employment ranging from 12 years to less, also participated in the efforts, described above, to return to work immediately after the strike. Their termination slips said "job discontinued." Both the laundry and the linen room were under Bryner's juris- diction and supervision. Moses; Douglas; Oliver; Sanford, and Lee, who was reinstated to former job on February 24; Suber, who testified that 3 weeks before the instant hearing the hotel offered her a job in the laundry which she refused because it paid less and had differ- ent hours than her former job; Mumford; Duplesis, a 12-year employee, was rehired on February 22; Ingram, who was rehired February 26; L. Clark,, rehired March 4; Toliva; Rice, rehired February 24; Nealand; Jenkins; Riley; Rousell; Neal, Black- man; Thomas, Bunch; E. Clay, F. Clay, rehired February 24; Casby, rehired Febru- ary 25; Foxworth, rehired February 17; Santiago, rehired about March 20 as night porter, and M. Jones applied on Saturday, February 6, and Monday, February 8, rehired March 4. The following strikers made application to return, to work after the strike and were given termination slips which said "replaced." Except where stated other- wise all these people worked in the engineering department. Betz, an upholsterer with 29 years' service, was rehired February 22; Navo, up- holsterer; Benoit, upholsterer helper, rehired March 14, Ludwig, kitchen mechanic, rehired February 23, Dell, plumber, rehired as helper March 7., Harford, incinerator operator, rehired Mach 7 as extra man; Taylor, housekeeping department; T Jones, night maid, housekeeping department; Aaron, incinerator operator, rehired March 3, Laws, porter, housekeeping department; Edwards, incinerator operator; Johnson, houseman, housekeeping department; Williams, housekeeping department; Wheeler, maid, housekeeping department; and Hackett, trashman. . The following strikers were terminated after the strike for the reasons shown Jackson, whose job was rolling silverware, was terminated "for the good of the service," and she was rehired in her old job on February 19; Watts, a lobby porter, did not receive a termination slip but was told on February 5, by his supervisor, that he was finished and should get off hotel property; C. Clark, a busgirl, received a termination slip dated February 6, stating "too much help, cutting crew"; Lacy, a busboy, was given a termination slip that said, "Walked out without notice"; Patrick, a busboy, received a termination slip that said, "Too much help, cutting crew"; West, Sr., who is alleged separately in the complaint and who was not a striker, re- ceived a termination slip which said, "For the good of the service"-he was rehired about February 22. 4. Analysis and conclusions Respondent introduced testimony that it had never had a labor controversy or a strike in its history; that it employed union plumbers, electricians, engineers, painters, and musicians; and that it engaged unionized contractors for its construction work. Accepting the foregoing facts, I cannot evolve therefrom a general carte blanche for Respondent which is to govern my appraisal of the instant evidence 28 1 must ap- 2 The foregoing evidence of Respondent's history to be fully appraised would hai e to show whether competent plumbers, electricians, etc , who were nonunion, were available in the locality, or whether it was feasible to use them under all the circumstances, in- eluding the economic power of these unionized crafts in the locality Quite commonly the )ui1ding trades in a metropolitan area have considerable economic power and the organi- zation of musicians, entertainers, etc _is often so pervasive that it is not uncommon to find that an establishment cannot furnish musical entertainment of any quality or repute on a nonunion basis The instant case, of course, involves the union activity of mainly semiskilled or unskilled employees in an industry where the Board's processes and pro- tections were unavailable until 1959, the date when the Board, for the first time, agreed to take jurisdiction over the hotel industry NEW ORLEANS ROOSEVELT CORPORATION 263 praise the evidence before me for what, in my opinion , it shows, bearing in mind only that Respondent has no antiunion history and a history ,_ antedating this case, from which no adverse inference can be drawn . As a matter of,fact if Respondent had no record of employing union plumbers and other union members or had been struck or picketed in the past , such a history could not substitute for concrete and specific evidence in the case before me. The right to strike is quite clearly one of the most fundamental of the Act.29 The employer may, however , in an economic strike, defeat the right of the strikers to reinstatement by 'permanently replacing the srtikers during the strike. The rationale of this right of the employer being his entitlement to carry on his business during the stnke.30 Timely and permanent replacement of strikers is a fact and is not dependent upon or affected or excused by the employer's conceptions or by his mistake or by his lack of evil intent . While an employer 's attitude may not be censurable, the employee-striker too is free from blame and, as between the victim and the perpetrator , the latter must bear the onus rather that the employee whose statutory right is being curtailed when he is refused reinstatement under circum- stances that entitle him to reinstatement.31 In accordance with the foregoing considerations , I do not find it necessary to base my findings and conclusions hereinafter on Respondent's motivation. How- ever, there is testimony in the record indicative of the attitude and state of mind of individual supervisors. This testimony is not controverted, and based upon my observations of the witnesses it is credited Since the alleged discriminatees come from only a few of the hotel's departments , the supervisors and department heads involved are correspondingly few in number . In this context the fact that the atti- tude of only some of the supervisors is revealed by their remarks does not enable us to pass over these expressions as isolated and wholly inconsequential. Calcagno, superintendent of service at the hotel , was called as a witness by Respondent. On direct examination Calcagno was asked why he had terminated striker Watts He answered: Well, he was less desirable of the men I had. And then you know we had a petition [for certification pending] in there at the time for a union so I was just going along getting set for that, too. It is difficult to avoid the conclusion , albeit Calcagno said that Watts was also less desirable , that Calcagno was "getting set" for a possible election by terminating Watts, the only striker in his department and, presumably, the only union adherent therein.32 As noted elsewhere , above, in this report, Breaux, a striker who was terminated and then rehired on February 18, was told by Bryner , on the latter occasion , that he had done a foolish thing and was advised or warned, "Do not do a foolish thing like that again " The "foolish thing" in Bryner's eyes was apparently the act of striking and there was an admonition against its repetition. Bryner told Sandoz, a terminated and rehired striker , on February 17 that he could not see why the men would have wanted to join a union like the Teamsters . Another terminated ,ind rehired striker, Menendez, testified that on February 18, Bryner told him that he had been surprised by the men 's action of going on strike and that it was not a legitimate strike and that by participating the men ( the white carpenters like Menendez) were supporting the Negroes In full context Bryner's surprise can fairly be said to have meant more than surprise in the sense of unexpected and to 29 "Congress safeguarded the exercise by employees of `concerted activities ' and ex- pressly recognized the right to strike " International Union of United Automobile, etc Workers of .4meiica, C10, et al v O'Brien ( Chrysler Corp ), 339 U S 454, 457 Sec- tions 2 ( 3), 7, and 8 ( a)(1) and ( 3) protect the right Special legislative solicitude for protecting the right to strike was expressed finally by Section 13 'ON L R B v Mact ay Radio cf Telegraph Co , 304 U S 333 n N L R B v Don Juan, Inc . 185 F. 2d 393 , 394 (C A 2 ) Regardless of motivation the vital inquiry remains whether the conduct nevertheless constituted an act of inter- ference NN ith a guaranteed right Republic Aviation Corpoi ation v N L R B , 324 U S 793 The "test of interference , restraint and coercion does not turn on the employer's motive. The test is whether the employer engaged in conduct which , it may reason- able be said , tends to interfere with the free exercise of employee rights under the Act N L R B v Illinois Tool Works , 153 F. 2d 811 , 814 (C A 7) ; N L R B v Hudson Motor Car Company, 128 F 2d 528 , 533 (C A 6) Cf. Moiisette v T7 S , 342 U S 246, 252-253 12 In the department consisting of 43 porters, doormen , etc , the payroll record shows that all worked on February 4, the day of the strike , except Watts One man in the department was evidently sick or otherwise excused since lie (lid not work at all during the entire month of February 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have carried the implication that he was surprised that they would have engaged in what he considered was an illegitimate strike that constituted support of the Negroes' union activity. Duplesis, a terminated striker, rehired February 22, was asked by Bryner on his return why he had done something like that. The "some- thing" was apparently Duplesis' engaging in the strike.33 Coming now to the strikers whom Respondent terminated for the given reason that they had been replaced there are : Betz, an upholsterer with 29 years ' service, who was replaced on February 4 by Louis Liquor, an upholsterer at the New Orleans Hotel for 15 years. Liquor reported for work and worked at the Roosevelt on February 4 and thereafter pursuant to the order of the chief engineer at the New Orleans .34 Liquor was given no indication that his transfer was permanent and temporary loans of workers between the two hotels to meet specific needs is commonplace . Liquor returned to his job at the New Orleans on February 21. No one had been hired in his place at the New Orleans during Liquor's absence and he testified that no one had done his work at the New Orleans, where he was the sole upholsterer, during the interim. Betz was rehired by the Roosevelt on February 22. On these facts it is my opinion , and I find, that Liquor was" not a permanent replacement for Betz and by failing to reinstate Betz on February 5 Respondent violated Section 8(a) (1) and (3) of the Act. It is recommended that Betz be made whole for any loss of pay between February 5, the date when he applied for rein- statement, to the date of Respondent's offer of reinstatement or his, reinstatement whichever is earlier. Navo, an upholsterer, was replaced by Stoltz who commenced working for Respondent on February 22. Stokes, an employee of 25 years' stand- ing, handles the administrative work of the laundry under Bryner and takes care of payroll, timekeeping, etc , relating thereto. She does not hire or fire employees Sometime in the afternoon of February 4, Stokes got in touch with her sister, the wife of Stoltz.35 Stoltz was not home but that night Stoltz telephoned Stokes and said "he was interested and he was going in the next morning to see Mr Bryner; he would come in the next morning to interview with Mr Bryner ." Stokes did not see Stoltz come to the hotel the next day and there is no evidence that Bryner mentioned her brother-in-law to her. Franz. who handled administrative matters for Bryner, including payroll , in the engineering department that embraced uphol- stering, testified that Stoltz came to the hotel Friday morning (time net stated). February 5, and saw Bryner . Franz was not present at the conversation Stoltz did not go to work on that date nor was he placed on the payroll. Bryner told Franz on February 5 that Stoltz was presently employed and wanted some extra time. Franz was unable to state whether Brvner spoke to her about Stoltz in the morning or in the afternoon or evening, although she stated that Stoltz had left the hotel by the time Bryner spoke to her We have previously adverted to the fact that on the day of the strike Respondent instructed its department heads to speak to the employees who were at work and to ask them if they knew anyone interested in coming in to work Stokes' contact with Stoltz was part of this pattern . Neither Stokes nor Franz , who held respon- sible positions under Bryner, had authority to hire anyone and they were not given nor did they purport to exercise such authority during the strike. The evidence is equally clear that the rank-and-file employees could hire no one . All contacts made by Stokes or by anyone else in the department with respect to potential new em- ployees were no more than solicitations serving the same purpose in more expedited form as a "Help Wanted" advertisement. All persons solicited to come to the hotel for work were in effect applicants for employment. Neither the hotel nor the "The Trial Examiner does not make any finding that the statements of Calcaroe or Bryner were illegal For one thing, most of the statements were expressions of opinion Secondly, the complaint did not allege such statements nor did it contain a general alle- gation of independent Section 8 ( a) (1) violations However, the statements do give some indication of attitude , state of mind and possible motivation regarding the strike In crediting the above witnesses concerning Brvner 's statements , I realize that flryner did not testify because of illness If he had testified lie might have denied or admitted making such statements However , the witnesses impressed inc as credible and I have therefore accepted their testimony for the limited purpose stated above 3' The same corporation that owns and operates the Roosevelt owns and operates the New Orleans in the same city The New Orleans is not a separate corporation nor is it a subsidiary. 35 Although the transcript of the instant hearing has the name of Stokes ' brother-in-law spelled as Stokes, it is evident from the spelling on the payroll record and from the fact that Stokes referred to Stoltz as her brother -in-law and not as her brother that the correct spelling is Stoltz NEW ORLEANS ROOSEVELT CORPORATION 265 applicants had any rights with respect to each other nor any legal obligations until the applicants were hired and placed on the payroll . The evidence establishes that no one was hired or could be hired in Bryner's department until Bryner interviewed the individual and hired him 36 These facts were not altered by reason of the situa- tion on the day of the strike when the hotel was hard pressed for help and no doubt was eager to hire people and would hire people with minimum or practically no selectivity. In the light of the foregoing it is apparent that the earliest date on which Stoltz could have become a replacement for Navo was February 5 when Stoltz came to the hotel and spoke to Bryner. I am satisfied by the evidence above that Bryner interviewed Stoltz on Friday morning, February 5, and that he in effect hired Stoltz on that occasion .37 Since Stoltz was at the time an upholsterer for another em- ployer, Mossi Motors, Bryner gave Stoltz additional time within which to report to work. Stoltz came to work February 22 and he was still employed at the time of the hearing. Although I regard Stoltz as a permanent replacement the more difficult question is whether he was hired before Nava applied for reinstatement. Navo was in the alley leading to the employee entrance of the hotel at 7.15 a m., February 5. His hours were 8 to 5 . Between 7:15 and 8 Navo went into the hotel and sought to secure his timecard in order to go to work. He had the experience that has previously been described in this report regarding the fact that the time- cards in the engineering department had been removed and so forth . His efforts, as did those of the other strikers, constituted , as I have found , an application for reinstatement 38 The record does not establish the exact time on February 5 when Stoltz spoke to Bryner. It is apparent that Stoltz would have had to arrive at the hotel quite early in order to have talked with Bryner before Navo made application . But I cannot say on the evidence before me that Stoltz was not the earlier arrival .39 Nor can I say that Navo was All I can conclude is that the evidence does not permit me to resolve the question. This brings us into the area of burden of proof. The burden of proving a viola- tion of the Act is, of course , placed upon the General Counsel Has he sustained that burden here by evidence that Navo had engaged in protected strike activity and applied for reinstatement on February 5, between 7:15 and 8 a .m. and was denied reinstatement? Does the burden then shift to Respondent as a matter of defense to establish that Stoltz was hired as a replacement prior to Navo 's application9 In my opinion , it is unnecessary and perhaps it is inappropriate that common law concepts of burden of proof should be applied rigidly to a proceeding such as we have here. Many such concepts apply to particular subject matters in torts, con- tracts, and so forth. However, I believe that an analogy may be drawn , with re- spect to burden of proof, between the situation here presented and a trial before a judge and jury . There are in effect two burdens of proof The first is that the proponent, here the General Counsel, initially must present evidence that is suffi- cient , nothing more appearing, to withstand a motion for nonsuit or a directed verdict addressed to the judge by the defendant or Respondent Since the Trial Examiner is both judge and jury the corresponding situation would be a motion for dismissal upon the completion of the General Counsel 's evidence regarding Navo In my opinion the General Counsel by the evidence described in the preceding paragraph has submitted sufficient evidence so that a motion for dismissal upon completion of his evidence on Navo would probably have been denied In short the General Counsel has submitted enough evidence to warrant its submission to the jury, which , here, is also the Trial Examiner. But at this stage we have the second burden of proof , namely that the proponent, the General Counsel, runs the m Tn other depaitments it was also apparently true that the department head did the hiring 3' Neither during the strike nor at anytime did Respondent hire pursuant to written applications 38 As previously found . Respondent had waived its right to reject the application, on the ground that they were conditional 39 Since Stoltz had a job at the time and slid not intend to nut that job immediately, it is not implausible that be may have come to see Bryner quite early since lie presumably would know from his conversation with Stokes on February 4 the starting time of his proposed job at the hotel ( 8 a m ) and the necessity of being interviewed by Bryner beforehand and also , in view of his present job, lie may have wished to be able to go to the hotel , see Bryner about an extension of time and report to his regular job The fore- going is, of course , a matter of speculation and is indulged in Solely to illustrate that it was not impossible for Stoltz to have been hired poor to Nave, application 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD risk that on all the evidence , including Respondent 's, the jury, the Trial Examiner, may find that it cannot resolve its doubts in a manner favorable to the proponent. The General Counsel has , it seems to me, by not establishing by substantial evidence that Navo applied before Stoltz was hired, or by affording a reasonable basis for such an inference, not sustained the burden of proof that is his. It is incumbent upon the General Counsel and not the Respondent to present evidence that will resolve the doubt that I have previously described 40 Since the evidence does not permit me to find that Navo applied for reinstatement before Stoltz was hired I shall recommend dismissal of the complaint's allegation regarding Navo. Benoit, an upholsterer's helper, was allegedly replaced by Dummet . Liquor testified that when he came to work at the Roosevelt he arranged to bring Dummet, his nephew, with him. Dummet was hired by Bryner and went to work on Feb- ruary 6. He remained until March 11 when he was sent to the New Orleans Hotel to work Dummet had had no previous experience as an upholsterer and had not been working at the New Orleans as a helper or otherwise prior to the strike.41 Benoit applied for reinstatement at his usual starting time on February 5. Since Liquor testified that when he came to work at the Roosevelt , February 4, he brought his nephew, Dummet, with him, I am prepared to accept this as evidence that Bryner interviewed Dummet on that date and hired him although Dummet did not appear on the payroll until February 6. There is no other evidence on this point. It appears reasonable that, since Dummet had apparently no qualifications other than the fact that Liquor , the New Orleans upholsterer , was his uncle , and since Dummet had had no relationship with either the Roosevelt or the New Orleans, Liquor probably brought him along, when he, Liquor, reported to the Roosevelt, and introduced Dummet to Bryner. Although Dummet was not an upholsterer he was hired as a helper and replaced a helper. The fact that he evidently was inex- perienced and less competent than the man he replaced is not determinative since, in my opinion , an employer during a strike may hire and tolerate low quality help to meet the situation brought about by the strike. It is not for the Trial Examiner to substitute his judgment for that of the employer on the caliber of the help which the employer may be willing to tolerate .42 In view of the foregoing facts, dismissal of the complaint allegation regarding Benoit is recommended. Ludwig, who described himself as a kitchen mechanic and was carried on the payroll as "machinist," was replaced , according to the credited testimony of Franz, by Hernaez, who was transferred to the Roosevelt from the New Orleans. Franz stated that Bryner contacted Hernaez on February 4 and made arrangements for him to work at the Roosevelt . Hernaez started to work at the Roosevelt on February 6 and remained at the Roosevelt until March 20. When Ludwig was rehired Feb- ruary 23, Hernaez became his helper, apparently because of Ludwig's greater ability and experience . On these facts I shall recommend dismissal of the complaint alle- gation regarding Ludwig since a replacement was hired by Bryner prior to Feb- ruary 5 , the date of Ludwig's application. ' Dell, a plumber, was replaced by Barthe, a plumber According to Franz' credited testimony, Bryner made arrangements on February 4 to secure Barthe who 40T have credited both Stokes' and Franz ' testimony that they did not know the time of clay when Stoltz spoke to Bryner on February 5 The only two other persons who could establish the time were Bryner and Stoltz Bryner was so ill at the time of hearing that the doctor would not allow Logan to even speak to him about the case The General Counsel does not dispute Bryner's unavailability Stoltz was it rank -and-file employee of the hotel at the time of the hearing In my opinion he was as available to the General Counsel as to Respondent This, therefore, is not a situation where the facts were peculiarly within Respondent 's control, it factor which might possibly lead to it different conclusion 41 Dummet was still at the Roosevelt when Betz , supra, was rehired on February 22 Shortly thereafter Betz told Bryner in effect that Dummet was no help at all and Dummet was then transferred to the New Orleans Betz testified that Dummet was inexperienced in upholstery work and could only strip chairs 42 Perhaps a different situation would exist where a craftsman , such as a registered plumber , is purportedly replaced by someone who scarcely knows a wrench from a ham- met and could not possibly be of any assistance to the employer in the capacity in which he was hired Respondent's payroll shows a man named Cook was hired as an upholsterer 's helper on February 6, worked as such , and was made a painter's helper on February 16 The only evidence about Cook is testimony that Liquor, Dummet, and Cook were working in the upholstery shop , a fact shown also by the payroll record. Perhaps Cook and Dummet together roughly approximated one experienced helper. NEW ORLEANS ROOSEVELT CORPORATION 267 went to work on February 8 Dell was subsequently rehired as a plumber's helper when the man who occupied that position died. Although the evidence is meager, such as there is indicates specific participation by Bryner in the arrangement for Barthe on February 4. For reasons previously explained it is my opinion that the burden of resolving doubts in such a context rests upon the General Counsel. It is therefore recommended that the allegation regarding Dell be dismissed Harford, Edwards, and Aaron were incinerator operators 43 Harford's shift began at 11 p.m. He did not work because at 10:20 p m., on February 4, he saw the picket sign. On February 5, Harford came to the hotel about 7 a in. for his regular pay and found that his card had been "pulled." The hotel watchman told him that Bryner did not want to talk to any of the employees Later, the same day, Harford spoke to the assistant chief engineer about his job and his "pulled" card. The latter said he could do nothing about it and suggested that Harford see Bryner the next day, Saturday. Harford came to the hotel on Saturday, February 6, and his timecard had a note that he should see Bryner. Bryner asked him why he did not work Thursday and was told that it was because of the picketing. Bryner in- structed Harford to report back Monday morning which he did. His card was not in the rack and Bryner told him he had been replaced. Franz testified that Gordon replaced Harford ,Respondent's payroll record shows that Gordon was employed as a cleaner, February 1 to 3, that February 4 was his day off, and he did not work on that day; he was transferred to incinerator operator on February 5 and worked that day and thereafter in such capacity.44 I am unable to determine whether or not Harford's inquiries about his timecard and job on February 5, which manifested his intention and desire to return to work at his regular time that night, the strike being over, was before or after Gordon's transfer to the job on the same date I conclude that the General Counsel has not sustained the burden of proof of this aspect. Dismissal of the allegation regarding Harford is recommended. Aaron sought to return to work Friday morning, February 5, and on the follow- ing Monday. He had the same general experience on these dates as the bulk of the other strikers, which has previously been described. Both Franz and the payroll record are in agreement that Lee took the place of Aaron on February 7. Edwards endeavored to return to work on February 5, Friday, and also unsuccess- fully came in on Sunday and Monday, Saturday being his day off In general he had the same experience regarding Bryner as did the others. Bryner informed him on Monday that he had been replaced. Franz testified that Campbell took the place of Edwards on February 9. The payroll record also reflects this fact 45 Franz' testimony regarding the hiring of the replacements for Aaron and Edwards was, in my opinion, of a general nature and did not reasonably establish that Bryner had hired the replacements prior to February 5 or that Franz had first hand or spe- cific knowledge regarding this aspect 46 As appears in earlier portions of this report, 43 The incinerator of the hotel operated 24 hours a day 44 The payroll record does not support the assertion of Franz that Gordon reported for work on the 4th If he reported for work on the 4th, his day off, it is highly unlikely that he would not have worked that day when the strike occurred 4s Although there is no testimony from any witness regarding such persons, the payroll records further show that Morrow was hired as an incinerator operator on February 22 and that Green was hired in a similar capacity on February 19 A man named Selden went to work as an incinerator operator on February 6 and worked that day and on February 7, the notation "left" then appears on the payroll line of his name Selden reappears on the payroll on February 13 as an incinerator operator and continues until February 19 when lie apparently was terminated 46 The testimony follows : Q [By Respondent's counsel] Do you know how Earl Campbell happened to come to work' [Campbell was Edwards' replacement ] A Only it had gotten around, the chief had spread the word around and he was looking for extra help and directly I don't know Q . Do you know when Joseph Lee [Aaron's replacement] was asked to come to work what date' Would you know, Mrs Franz' First of all without referiing to any notes, do you know the sure [specific'] circumstances surrounding Joseph Lee's employment' A No, I don't. Franz then,went on to state that Bryner had contacted a majority of the replacements on February 4 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where there is specific , credited testimony or other evidence that Bryner hired a person on a particular date, preceding the date on the payroll record when the replacement's name first appears as working , I am prepared to find that the hiring took place on the earlier occasion. I have also found that where there remained a reasonable doubt as to whether a replacement was hired before a striker , the burden of proof remained the responsibility of the General Counsel . But the Trial Exam- iner is not prepared to conclude that when the General Counsel has shown that Aaron and Edwards applied for reinstatement and were refused work on February 5 and the payroll records show that their alleged replacements first appeared on the payroll and first went to work on February 7 and 9, respectively , that Respondent, by reason of the testimony given by Franz on this aspect , should prevail In my opinion Respondent has not shown that Bryner hired Lee and Campbell on February 4 nor do I find that Respondent by Franz' generalized testimony regarding these two replacements has raised a reasonable doubt in my mind regarding the cogency of the General Counsel's proof. In short, I am prepared to accept the payroll entries as accurate reflections of the hiring dates of employees except in those instances where there is specific credited evidence that Bryner did in fact hire a particular named employee on a date prior to that shown on the payroll . Contacts by rank- and-file employees with potential replacements or testimony based on a general impression is not sufficient to support a conclusion that specific persons were hired earlier than the time shown by Respondent 's payroll record. Accordingly, it is found that Respondent , by not reinstating Aaron and Edwards when they sought to return to work on February 5 , after the strike, and by terminating them , thereby violated Section 8(a)(1) and ( 3) of the Act since these strikers' replacements were not hired until February 7 and 9, respectively , backpay to run from the date of termination to the date of the offer of reinstatement or reinstatement , whichever is earlier. Hackett, a trashman in the housekeeping department, reported for work Febru- ary 5, but his card was not in the rack . He spoke to Parker, the housekeeper, who told him she did not want him on the floor any more. Although asked , Parker did not explain the reason . Hackett's termination slip, dated February 5, shows that he was replaced by Alex London . The payroll shows that Hackett worked February 1 to 3 and then appears the word "replaced." There is nothing in the record to show the identity of any person named Alex London . Parker testified that when Hackett did not report for work on 'February 4, he was replaced . She thinks the replacement was Landow, who worked for 2 or 3 hours and then was found inebriated in the basement. That same day Ernest George was hired for the job. The payroll shows that George commenced work February 4 and he was still working at the time of the hearing. It is found that Hackett was permanently replaced on February 4 and it is recommended that the allegation regarding Hackett be dismissed. Thelma Jones, a night maid for about 51/2 years , reported for work on Friday, February 5, at her usual time She asked the timekeeper for her card but he replied that it was not in the rack. At this time Parker came in and said , "Thelma, you are no longer with us." Jones' termination slip, which she received on February 5, says "replaced," but is undated. Parker testified that Thelma Jones was replaced February 11 by Leona Jones The payroll record confirms this fact except that it shows that Leona Jones commenced work on February 10. Parker denied that she had any conversation with Thelma Jones on February 5 and stated that she had not heard from Jones for 3 days 47 In addition to testifying that Thelma Jones was replaced by Leona Jones ,48 Parker at another point had testified that , Jones was terminated for failure to report for work. '7 The payroll shown that Jones worked February 1 ; the symbol "0" appears for Febru- arv 2 • this symbol is the one used for absence which may be an excused of an un- excused absence • the svmbol " X" appears for February 3: this symbol is used to indicate the employee's regular day off : the symbol "0" appears on February 4 and then appears "disc 2-5-00 " It is apparent that no action by management regarding the February 2 absence is shown This fact, plus the following uncontroverted testimony of Jones, indi- cates that the February 2 absence was an excused one Jones testified that she was ill February 2 and she telephoned the hotel about 4 p m (her starting time was 5 pin asking to speak to the Housekeeper, i e, Parker • Jones, however , found that her call was referred to Drashner or, in any event , Drashner answered the telephone : Drashner was Jones' immediate supervisor and was the assistant housekeeper • Jones told Drashner that she was ill and would not be able to work that night: Drashner said, "All right Thelma" February 3 was Jones' regular day off. The strike was February 4 and Jones came to the hotel but did not go in to work because of the picket line +s So far as appears the Jones girls were unrelated NEW ORLEANS ROOSEVELT CORPORATION 269 After careful consideration of all the testimony and the witnesses, I credit Jones' testimony as described above Jones testified in detail regarding the incident on February 5 when she endeavored to go to work, including the absence of her time- card, the efforts of the timekeeper to find the card, the advent of Parker while the timekeeper was still looking for the card, and the conversation with Parker at the time If Jones' account was a fabrication to help her case, it is my view, based on an appraisal of Jones' general mental capacity and educational level, that she would not have attributed to Parker the rather innocuous statement, "Thelma, you are no longer with us," but would have attributed to Parker some such remark as, "You are dis- charged because you went on strike," or some remark that obviously showed the illegal nature of her termination I do not think that Jones was capable of foreseeing that Parker's remark to her, as she testified, could have been helpful to Jones or that it would add anything except confirmation to the fact that her timecard had already been removed and that she could not go to work Certainly Jones was not capable of foreseeing the instant detailed analysis of all the facts and the manner in which her testimony would be important. The Trial Examiner has also noted that there was no denial of the fact that Jones' card was missing on February 5 before she was due to go to work for the first time after the strike. Her testimony regarding all aspects, including her conversation with Drashner, which was undenied, and the details of her efforts to return to work on February 5 and the conversation with Parker, was sub- jected to eight full pages of detailed cross-examination The testimony remained unaltered and unaffected. In accordance with the above findings the Trial Examiner concludes that Jones was on an excused absence for illness on February 2, that February 3 was her regu- lar day off, and that, absent her failure to report for work on the day of the strike, there is no evidence that she would have been terminated (in fact the payroll record described above indicates the contrary) and no such action was taken until im- mediately after the strike.49 The termination took place prior to the time when Jones was due to reportfor work on February 5. In view of the time when Parker told Jones that she was terminated and the time when she received her termniation slip, as well as Parker's testimony that Jones was terminated for failure to report for work, it is found that the failure referred to was the participation in the strike of Febru- ary 4, a protected activity. Referring to Parker's testimony that Jones was replaced, it is found that the replacement admittedly did not take place until February 10 It is therefore concluded that Respondent, by failing to reinstate Jones on February 5 and by terminating her, violated Section 8(a) (l) and (3) of the Act Reinstatement and backpay are recommended Taylor worked as a mezzanine floor houseman His starting time was 7.30 am The day after the strike, a normal workday for Taylor, he did not report for work at the hotel but since that was his regular payday he came to the hotel at 2 p m and received his paycheck. He endeavored to go to work at his usual time-the following day, February 6, but his card was not there and he received a termination slip dated February 5 The termination slip said "replaced." The payroll record shows the notation for Taylor, "disch 2-5-60 " Parker was asked by Respondent's counsel why Taylor was terminated. She replied, Well, Donald ITavlorl, of course, didn't show up Thursday. Friday he came in and got his check. So Q. So he was discharged for failure to show up9 A Right Although there is the possibility of connecting Parker's specific reference to Thurs- day, the day of the strike, as the day when Taylor did not show up, and her state- ment that he was discharged for failure to show up. it is my opinion that a more reasonable and fairer construction is that it was Taylor's failure to report for work on Friday that caused his discharge This construction is consistent with Parker's reference to Taylor's having picked up his check on Friday which by reasonable im- plication meant that, although Taylor came in for his check, he did not report for work and was therefore discharged.50 Tt is recommended that the allegation regard- ing Taylor be dismissed 49 If Topes' absence on February 2 was unexcused and was the reason for the dis- charge, it is reasonable to expect that a navroll entry would have been made on Febru- ary 2 or 3. showing a discharge In other inst'inces where employees did not report for work without their absence having been excused e g , February 5, an entry was made on the navroll showing a discharge on that date "Disc 2-5-00 " 60 It is of course possible that Taylor. like Tones was terminated immediately after the strike for failure to work on the day of the strike and that lie would not have been 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson , a houseman , worked the hours of 7 a.m . to 4 p m., 6 days a week. He reported for work after the strike at 6 p .m., Friday, February 5. His card was not in the rack and the watchman told him to come in the following morning. Johnson did so report on February 6, and received a termination slip, dated Febru- ary 5, which said, "replaced ." The payroll notation for Johnson is, "disc. 2-5-60." When Parker was asked by Respondent 's counsel about Johnson, she stated: Ernest [Johnson ] last worked on the 3rd, the 4th and 5th he didn't show up. Q. And he was terminated for what reason? A. Failure to report for duty.51 In view of the fact that Johnson did not apply for work when he was supposed to, at 7 a.m. on Friday, and was discharged for failure to report for duty, it is recom- mended that the allegation regarding Johnson be dismissed. Laws worked for the hotel since 1952. He was a mezzanine floor houseman or porter. . His regular hours were 7 a.m. to 4 p in., 6 days a week, with Friday being his day off . Laws also had an evening job with a radio station that was located on the second floor of the hotel . He did not work at his hotel job on Thursday, February 4, because of the strike and Friday , as mentioned, was his regular day off. Laws worked Friday for the radio station and when he was coming off work at 6.30 p.m. Friday evening, the hotel watchman told him that his card was in the file and that he had been discharged . Laws testified without contradiction that the watchman then showed him his timecard to which a termination slip was attached. The slip was dated February 5 and gave as the reason for termination , "replaced." 52 Laws therefore did not report for work at the hotel on Saturday morning, February 6. He came in Monday, February 8, and received his termination slip. The payroll records show that Laws did not work February 4 and then bears the notation, "disc. 2-5-60." Parker testified that she discharged Laws because he "was the least desirable and he didn't show up ." This answer was in response to the question of Re- spondent's counsel , "Why was Percy Laws discharged?" After Parker answered as above described, counsel asked her, "Did you intend to reduce your number of housemen?" She replied , "Yes, we have been told repeatedly to do so." Parker went on to say that she "didn't know how long Percy would stay out. Of course I didn't need him , I let him go. . . . She testified that she now has one less mezzanine floor houseman than before the strike.53 Laws, of course , testified as a part of the General Counsel 's case and his testi- mony about seeing his termination slip attached to his payroll on Friday evening, February 5, prior to the time when he was first due to report for work after the strike, was in the record by the time Respondent put on its case, including the testimony of Parker who was the department head. Laws ' testimony was not con- troverted. - The dates on the termination slip and the date of discharge shown on the payroll are both February 5 and tend to or do corroborate Laws. I therefore permitted to work Friday as a result thereof Unlike the case of Jones I find no evidence here to support such a finding and any doubts have been resolved in accordance with my view of the evidence and against the General Counsel who had the burden of proof 51 It may be argued that if participation in the strike on February 4 had nothing to do with Johnson's termination why did Parker , in explaining the reason for termination, state that Johnson did not show up on the 4th and 5th. There was no issue or doubt that Johnson did not work on the 4th and the only significant date was the 5th, with the 3d only having some relevance to possibly show that Johnson had not been on leave and that he was an active employee immediately prior to the strike The failure to show up on the 4th had no significance unless reference thereto implies that failure to show up on the 4th and 5th were both a factor in the termination But, on all the evidence , the Trial Examiner is not prepared to regard such an approach as wholly con- vincing and he will construe Parker's testimony as tantamount to saying that it was Johnson 's failure to report on the 5th , only , that was the cause of his termination 5= Laws' termination slip, which he identified as the one he saw Friday evening, was received in evidence without objection It is dated February 5 6^1 It would appear that if a suitable complement of housemen was one less than the number employed before the strike, Respondent has since hired at least one houseman ( assuming no other turnover ), since Donald Taylor, supra , was also a mezzanine floor houseman who was discharged at the same time as Laws The payroll record in evidence is not much help on this point since it lists five mezzanine floor housemen as working before the strike Morris , referred to in the transcript as it supervisor , also appears on the payroll of this section as working 6 days in February , apparently after the strike. Parker testified that there were nine mezzanine floor housemen before the strike and eight at the time of the hearing. NEW ORLEANS ROOSEVELT CORPORATION 271 find, in accordance with Laws' credited testimony, that he was discharged after he failed to report for work on February 4, the day of the strike, and that this termina- tion was prior to the time that he was due to report for work following the strike. Contrary to the reason given on his termination slip he had not been replaced and a careful consideration of Parker's testimony and the other evidence referred to persuade me that the fact that Laws did not report for work on the day of the strike was a reason for his termination and that the decision was made when it was apparent that he was a striker.54 Laws' case bears a similarity to that of Thelma Jones, above, but has additional factors not present in Jones' case. Parker's testimony was that Laws was ter- minated for two reasons, because he was "least desirable and he didn't show up." 55 There was no explication of the characterization "least desirable" and the cogency of such an explanation for the discharge is affected thereby.56 The Trial Examiner finds it unnecessary to draw any inference unfavorable to Respondent from the cryptic phrase "least desirable." In fact I will assume, arguendo, that although Laws had worked 8 years for the hotel, he was undesirable or less desirable than others and that there was a legitimate basis, unconnected with union advocacy or activity, for such an opinion by the Employer. The Trial Examiner, however, has set forth above his conclusion and the reasons for concluding that at least one of the reasons for Laws' termination was his participation in the strike by his failure to report for work on February 4. This, in my opinion, warrants a finding that Respondent violated Section 8(a) (1) and (3) with respect to Laws and it is so found 57 Although the above conclusion has been reached on the basis of a finding that Laws was discharged for an illegal reason and also on the assumption that he was discharged because he was least desirable, in short, a combination of reasons, it is my opinion that the evidence also warrants the conclusion that Laws' alleged un- desirability would not have resulted in the termination of 8 years of employment absent his strike participation. There is nothing in the record that even intimates the contrary. Regarding Parker's interest in reducing her personnel, a careful appraisal of Parker's testimony both at the hearing and as it appears in the record convinced the Trial Examiner that when she answered Respondent' s counsel's question, "Why was Percy Laws discharged?," she gave as complete an answer as she could. She had con- cluded her answer. She did not give as a reason any policy to reduce the overall complement in her department. Nor had such a reason appeared on the termination slip. I am not persuaded that such a policy was the reason for Laws' discharge. Parker referred to such a policy after she had given a complete answer to Respond- ent's clear and obviously important question, above, and she referred to the policy to reduce personnel only in response to a leading-type question from Respondent's counsel. It is my opinion that this policy was not a proximate or material factor in Laws' discharge and to reach a different conclusion would, it seems to me, entail ignoring all the other evidence, in Laws' case Moreover, if such a policy was a factor with respect to Laws, contrary to my finding, it would still mean, at most, that there were legal and illegal reasons for the discharge. There is, in my opinion, 54 As Parker said, " . I didn't know how long Percy would stay out " 55 As previously shown, the only day Laws did not show up prior to his February 5 termination was February 4, the day of the strike, and February 5 was his regular .day off se In some situations proof that an employee was discharged right after he had engaged in protected union activity and the employer, without explanation either to the employee or at the hearing, said that the man was discharged because he was "least desirable," might warrant an inference adverse to the employer Such an inference would not be affected and would piobably find confirmation in the fact that the termination paper assigned the reason for termination as "replaced," a fact which was not true Additional -confirmation might be found-if another assigned reason , failure to report for duty, was found to refer to the fact of the man' s discharge prior to the time when he was supposed to report for duty 67" , it rested upon the tort-feasor to disentangle the consequences for which it was chargeable from those from which It was immune " N L R B v. Remington Rand, Inc. -94 F 2d 862, 872 (C.A 2), cert denied 304 U S 576; Guppies Company Manufacturers v N L R B , 106 F 2d 100, 117 (C A 8) ("It seems probable that his joining the Union was at least a contributing cause of his discharge") ; Kansas City Power d Light Co v. NLRB , 111 F 2d 340, 349 (C A 8) (" . . the purpose-at least one purpose-of the transfer was to affect and interfere with labor activities") , Butter Biotheis v X T R B , 134 F 2d 981, 985 (C A 7), cert denied 320 U S 789 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no basis in the evidence for contending that the policy of reducing personnel was the sole reason for the termination since Parker's own testimony is clearly otherwise 58 Wheeler was a maid. Although February 5 was a regular workday for her she did not report for work on that day. She did go to the hotel on Februaiy 6, but her timecard was not in the rack. Wheeler received her termination slip, dated Febru- ary 3, on that occasion and it said: "replaced. ' Parker testified that Wheeler was terminated because she failed to show up for work 59 The payroll record bears a notation showing that Wheeler was absent February 5 and is followed by the words, "disc 2-5-60." It is recommended that the Wheeler allegation be dismissed. Williams, a maid, testified that she went to the hotel Friday morning, February 5, to go to work. She asked the timekeeper for her card but he said he could not give it to her. Williams then asked the timekeeper if she could get her check 60 and he said yes. Williams took her check and left. On Monday, February 8, she returned to the hotel and received her termination slip, dated February 5, from the timekeeper The reason stated on the slip was, "replaced." Parker testified that Williams was terminated because she "failed to report for duty." 61 In answer to the question, "Did she show up on Friday?" Parker said: "She came to get her paycheck but I did not see her." The payroll record shows Williams' absence on February 5, followed by "disc. 2-5-60." It is the Trial Examiner's opinion that when a maid such as Williams, who im- pressed me as credible, tried to go to work in her usual manner on the morning of February 5, she was in effect and in actuality applying for reinstatement. When the timekeeper told her that he could not give her her timecard I do not think that a person of her general status and level could conclude otherwise than that she had been terminated or at least that she could not go to work. I am of the opinion that she had done as much as reasonably could be expected of her and that her reaction was normal. Her testimony has not been controverted and all Parker said was that she did not see Williams on Friday, a fact not inconsistent with Williams' testimony. Parker apparently prepared Williams' termination in the afternoon of February 5. It may well be that Parker was acting in good faith and had no illegal intent but, as I have stated earlier, as between the innocent employee who finds herself terminated after participating in protected activity and the Employer' who may have acted through mistake, the onus devolves upon the latter since the economic striker, guilty of no misconduct, is protected in the exercise of the rights guaranteed by the Act and runs the risk only of timely replacement or possibly an economic change in the employer's business that has eliminated her job. She does not by striking run the risk of the Employer's possible mistake, if such mistake may be the fact. Accordingly, it is found that by failing to reinstate Williams and by terminating her when she had not been replaced, Respondent violated Section 8(a)(1) and (3) of the Act. Three persons named in the complaint, Blanchard, Garnier, and Duncan, did not testify at the hearing. I have previously recommended dismissal of Blanchard's case. As far as the Trial Examiner has been able to determine there is nothing in the record to show where Garnier was employed or that he was a striker or applied for reinstatement. Dismissal of this allegation is recommended. In his brief the General Counsel states that Duncan was unable to testify because of illness and a death in her immediate family. Witness Neal testified without objection or contra- diction that on her way to the hotel on Friday, February 5, at 1 p.m., she met Duncan. Neal testified that Duncan had been to the hotel and told her that they were not allowed to go to work that day but would be hired back if needed Assum- ing, arguendo, that Duncan did apply for her job on February 5 and was not rehired, there is no evidence that she was a striker or that she was not rehired or was termi- nated for some reason such as excessive absenteeism. The payroll record simply shows that Duncan was in the laundry department and did not work February 1 through 7 or thereafter. Dismissal of this allegation is recommended. As we have seen earlier in this report, the majority of the alleged discriminatees were strikers who received termination slips stating, "job discontinued." Respondent adduced evidence that for at least 5 years prior to the strike it had been asserted that the Roosevelt Hotel was overstaffed. Logan testified that 5 years ago he and his associate, Attorney Early, recommended that the hotel reduce the number of em- 61 As is described later in this report, in the period immediately following the strike when striking employees were applying for reinstatement, the only jobs that were dis- continued were those of strikers and the alleged reduction in force was confined to strikers 19 Parker also stated that Wheeler was replaced on February 9 00 Friday was a regular payday. 61 According to Parker, Williams was replaced February 7 NEW ORLEANS ROOSEVELT CORPORATION 273 ployees by at least 400. What, if anything, was done about this recommendation does not appear. Evidence was also introduced tending to show that the hotel, on a ratio of employees to number of rooms, had more employees than other hotels. On April 6, 1959, Weiss, president of Respondent , wrote a memorandum to his de- partment ' heads. He referred therein to instructions not to replace "any employee who left our organization." Weiss stated, ". . . I do not want to fire anyone but certainly 1 do not want to replace anyone that quits . . Should you find anyone in your department using our time to organize our hotel , the matter should be dis- cussed with Mr. Logan or Mr. Early, Mr. Logan's associate." In his testimony at the hearing , Logan, in effect, affirmed that the foregoing policy as described by Weiss was the policy prevailing at the hotel. As the Trial Examiner views the foregoing evidence , it means that Respondent has been desirous of reducing the number of its employees by normal attrition, i.e , by not filling vacancies as they occurred by reason of quitting or other termination of employment. It is clear that there was also a specific pronouncement from the president that the hotel policy was not to reduce personnel by terminating employees simply because they might be superfluous or expendable. We have previously described the efforts of Respondent's nine carpenters, em- ployees in the engineering department , to return to work on Friday, February 5, and their termination on February 8, Monday. Orally, Bryner told most of them on February 5 and 8 that they had been replaced.62 Their termination slips said, in all instances , "job di `scontinued." 83 As we shall see , Respondent offered testi- mony at,the heanng that a few of the carpenters who received terminations stating, "job discontinued," had been replaced. These shiftings or conflicts in reasons for the terminations were also present in Parker's department, supra, where a number of employees, whose terminations read, "replaced," were said , at the hearing, to have been terminated for failure to report for work. The Trial Examiner has not used and is not now undertaking to use these discrepancies as determinative factors in evaluating the individual cases 64 It cannot be said , however, that variations of the foregoing type furnish strength to Respondent's position. With respect to carpenters Sandoz, Delas, Soler, Menendez, Breaux, and Prats, whose backgrounds and the circumstances of their discharges have been described supra, Respondent's defense is that their jobs were discontinued . Although car- penters Arsaga, Krennerick, and Gennaro received terminations which also said. "job discontinued ," Respondent offered testimony that they had been replaced. The evidence, in my opinion , warrants the conclusion that "job discontinued," as used by Bryner on the termination slips of the carpenters , was simply a convenient phrase for termination The important thing to Bryner was to terminate these employees. As Betz and Arsaga testified, Bryner, on February 8, said, "Most of you have been replaced." When asked whether that meant that they were fired, Bryner replied, "Fired, quit, replaced, discharged, whatever you want to call it, that is it." All the terminated carpenters whose jobs had been "discontinued" were recalled and rehired beginning on February 17.65 On February 5 and 7, as we have seen , two new carpenters were hired and continued to work when the discharged carpenters were rehired. °1 All the carpenters except the heed cal penter had gone on strike and they were all terminated. Two new carpenters were hired in the immediate poststrike period, on February 5 and 7, respectively A third new carpenter, Stoll. appears on the payroll commencing February 10 "'The termination papers were signed by Bryner and lie had given the instructions to his secretary as to what reason was to appear thereon All termination slips were apparently signed by the department head and apparently the same procedure was fol- lowed in the various departments Parker had signed the slips in her department with one exception that bore her name or initials, which was written by her assistant "Eg, an employer whose termination slip said, "replaced," and who in fact wa, not replaced , was in various instances said by Parker to have been discharged for failure to report for work The individual case was then considered by the Trial Examiner from the standpoint of the reason testified by Parker. 08 The single exception was Arsaga who, when asked to return , declined to do so be- cause lie had secured a better job. The dates of rehiring were ' Sandoz. February 17; Breaux and "Menendez , Februar} 18. Delay was asked to return February 17 and returned February 20, Solar was asked to return February 16 and returned February 29 ; Itrennerick, February 19 ; Prats, May 10 , and Gennaro, May 11 A subsequent conversation between Bryner and Logan indicates that the former had intended to recall all his carpenters and was upset that in May some had not been recalled at an earlier date 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's contention that the carpenters' jobs had been abolished by Bryner is based on Logan's testimony that Bryner was implementing hotel policy, as enun- ciated by President Weiss, to cut down personnel. The difficulty with this position is that the policy was quite clearly one of not discharging personnel but was limited to not replacing employees who had quit or had otherwise normally terminated their employment.66 It is only by equating employees' participation in a 1-day strike to a quitting of the employer-employee relationship, and by ignoring their efforts to return to work on the following day, that the aforesaid policy is relevant. Such an equation is an illegal one but even if legal, the rehirings of the old carpenters and the hiring of new carpenters are actions inconsistent with Respondent's posi- tion. 67 Respondent explains the rehiring of the carpenters by testimony of Logan that it was found that the hotel was in the process of reconditioning its rooms. When "somebody woke up" to this fact and that carpenters would be needed to put the rooms in order, the carpenters were recalled. This would indicate, in my opinion , that there was an existing condition at the time of the terminations that plainly indicated the need of carpenters. It is difficult to understand why Bryner, at least, who made the terminations and who had been the department head for a period of years, probably many years, was not aware of this fact.68 The Trial Examiner is unable to conclude that Bryner was not aware of the need for his carpenters at the time of the terminations and finds the hiring of a new carpenter, the transfer of a timekeeper to the carpentry department, and the recall of the old carpenters, to be confirmatory of the known need for carpenters during this period.69 The jobs that were discontinued by Respondent were limited to the jobs of strikers Strikers remained employees, of course, both during the strike and when they applied for reinstatement on February 5 and 8 Logan's testimony is clear that Bryner, by 10 a.m Friday morning, February 5, had made no definite decision about which jobs he was going to discontinue. There was quite apparently a relationship be- tween participation in the strike and the decision on the particular job to be dis- continued. Logan testified that Bryner, on February 4 and early on February 5, had not had an opportunity to check the timecards in his department to determine who had been on strike and who had been at work. Bryner knew on Friday morn- ing, according to Logan, that employees were returning to work "all over the hotel." Logan told Bryner on that morning that Schwehm had called him about the strikers in Bryner's departments attempting to return to work and not being able to do so because their timecards were not in the rack Bryner informed Logan ,that the cards were out of the rack because "I wanted to check on who was here and who wasn't. The final decision as to which jobs were to be discontinued was made by 66 Weiss' policy letter of April 1959 has been previously described Logan in referring to the policy testified that " it was to be done not by firing anybody He did not want anyone fired, and until this day he [Weiss] is urging a vast reduction in force and still saying he doesn't actually want anybody removed " The implementation was to be "as vacancies occurred and as people failed to be in a job " Logan stated that when the strike occurred it was decided, on February 4, that it would be a good time to reduce personnel 67 Respondent also transferred an employee, McCraney, fiom the timekeeper's office to the engineering department where he was classified as a carpenter and performed car- pentry work -McCraney continued to work in such capacity and was an addition to the carpentry complement, including the old carpenters who had been iehired and the newly hired carpenters 6s Although there is no evidence on the point it appears reasonable to conclude that room alterations, including hanging doors, building or moving partitions, framing of various types, altering or building closets, shelves, and other such natters, as well as repairs to wood furniture in the rooms, would be one of the chief tasks of carpenters in a hotel It is likely too that reconditioning bf rooms in a hotel of the size (836 rooms, excluding public rooms and rooms used for the hotel's own purposes) and the length of time in operation of the Roosevelt (Weiss took over the hotel in 1930) would proceed on a more or less regular schedule and would be known and planned for by the depart- ment heads involved Effective operation would otherwise appear almost impossible. 6e This is not the situation where, because of a strike, the employer loses customers or where during a strike there has been a change in market conditions that affects the employer's business In such circumstances the elimination of particular jobs affected is part of the employer's prerogative and undoubted right to conduct his business In this instant case the evidence is that the business of the hotel was not affected by the 1-day strike other than some inconvenience and need for improvisation on February 4 NEW ORLEANS ROOSEVELT CORPORATION 275 Monday, February 8, and after Bryner apparently had the opportunity to check the cards for the aforementioned purpose.7e For the reasons heretofore stated it is found that Sandoz, Delas, Soler, Menendez, Breaux, and Prats, were illegally terminated for their participation in the strike in violation of Section 8(a)(1) and (3) of the Act. Reimbursement for any loss of pay is recommended for the period from February 5 to the date of offer of rein- statement or reinstatement, whichever is earlier. Although carpenters Gennaro, Krennerick, and Arsaga had received terminations stating, "job discontinued," evidence was offered that they were replaced. Franz testified that Wood had replaced Gennaro. The payroll shows Wood as working on February 5 and thereafter. Since it cannot be said that Gennaro applied for re- instatement on February 5 prior to the hiring of Wood, dismissal of the allegation regarding Gennaro is recommended. Brazil, who first appeared on the payroll on February 7, was, according to Franz, the replacement for Arsaga. Franz testified that Bryner contacted and hired Brazil on February 4. Dismissal of the allegation regarding Arsaga is therefore recommended. Krennerick, according to Franz, was replaced by Stoll who appears on the payroll commencing February 10. Stoll worked 81/4 days somewhat intermittedly and was terminated February 23. On the limited evidence aforedescribed the Trial Examiner concludes that Stoll, when hired, was hired as a permanent replacement. From the short duration of his employment alone I am not prepared to find that Stoll was a temporary replace- ment71 Franz testified that Bryner contacted Stoll on February 4 on someone's recommendation. Although the evidence is of a limited nature and not entirely free from doubt, it is concluded that Bryner hired Stoll on February 4 and arranged for him to report for work on February 10. Dismissal of the allegation regarding Krennerick is therefore recommended. Rogan, a painter's helper for 11 years, in the hotel, applied for his job on Feb- ruary 5. His experience with Bryner on that date and on Monday, February 8, when he again applied was the same as that which has previously been described. Bryner, according to Rogan's credited testimony, told him on Monday that he had 70 Logan testified that when the strike • took place Respondent expected it to be a long strike. However, the next morning "we found we had moved out of it as fast as we had moved into it " Logan stated that there was still apprehension that the strike would be renewed because of Schwehm's telegram, set forth above, and the newspaper story, also set forth above. Logan was also allegedly concerned about the effect of the postponement of the hearing The telegram and the newspaper story had reference to a future con- tingency, le, what was going to happen at the representation hearing, either by way of a consent agreement or by Respondent furnishing commerce information at the hearing. The notices of postponement of the hearing were received by the parties February 5 and the strikers were still trying to return to work and the Union was protesting the fact that they were not being allowed to go back. The effort to return to work also occurred on Monday, February 8, so it was apparent that the February 5 notice of postponement had not triggered a further strike Some employees, such as West on February 18 and Betz when he was rehired, allegedly told Logan that the strike might be renewed. With one exception this all occurred after the events of February 5. Logan testified that an employee told Nick Calcagno on February 5 that the employees would strike again if things did not move as quickly as they thought they should . There was allegedly con- siderable restlessness among the cooks after they returned to work following the strike. Logan said the hotel wished to tighten up its organization to prepare for the next strike. Timely replacement of strikers would of course be proper and would insure a loyal com- plement of employees who probably would not go on strike. Discontinuance of the jobs of strikers would also insure a loyal complement . Logan never spoke to Schwehm about the possibility of a renewal of the strike although he knew Schwehm, whom be referred to as "Jimmie," well About the end of February, however, Logan asked Schwehm if there would be a strike on Mardi Gras Day, March 1 or 2. Schwehm told Logan be would know it if Schwehm was going to strike. Also sometime after the end of the strike Schwehm said to Logan-that if an employee (not named in the complaint) was not reinstated, "you know we can put the picket line up again " In any event, when asked, "Did this apprehension that-you have described about the possibility of a renewed strike, did that have anything to do with a decision to replace strikers or to discontinue certain jobs7" Logan answered, "No, sir . . ." and explained that the hotel was interested 11 in being able to have a solid organization "if we were hit again . . . ' For r all that appears, Stoll may have become dissatisfied with working conditions after he commenced work His absences may have been due to illness ' Whatever doubts are entertained have been resolved against the General Counsel. 614913-62-vol. 132-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing for him. ' His termination slip, said, "job discontinued." Franz testified that Cook replaced Rogan on February 6. The payroll shows that Cook was hired on February 6 as an upholsterer's helper and worked as such until February 15 when he was transferred and made a painter's helper. Cook worked in the latter capacity thereafter. It is found that Rogan, a painter's helper, was not replaced by Cook until February 15 and it was also found that his job was not discontinued. Accordingly, it is concluded that Respondent by failing to reinstate Rogan upon his 'February 5 application violated Section 8 (a) (1) and (3) of the Act. Reinstate- ment and backpay are recommended. White was an electrician's helper who had been hired 3 weeks prior to the strike. After the strike, according to his testimony, which I credit, he applied on Friday, February 5, and on Monday, February 8. He had the same experience with Bryner as did others, previously described. His termination said, "job discontinued." Franz testified that Serrentine replaced White on February 17. The payroll record corroborates the fact that Serrentine commenced work on February 17 as an elec- trician's helper. There is no specific evidence that Bryner contacted and hired Serrentine before February 5. Qt is found that White when he applied had not been replaced and his job had not been discontinued. The Trial Examiner concludes that White was terminated in violation of Section 8(a)(1) and (3) of the Act. Re- instatement and backpay are recommended. Miller had worked for the hotel 5, years as a cleaner. He had the same experi- ence on Friday, February 5, and on Monday, as did the others previously described. His termination was "job discontinued." Immediately prior to the strike Respondent had three cleaners, Miller, Gordon, and Sumler. Gordon transferred to incinerator operator 'on February 5, and continued thereafter in that capacity. Isaac Jenkins and McKinley.were hired as cleaners on February 7 and 8, respectively. McKinley worked February 8 only and was thereafter terminated. Jenkins worked 3 days and no further work is shown. Willes was hired as a cleaner on February 9 and worked thereafter in that capacity. Cenance was hired as a cleaner on February 16 and worked thereafter in that capacity. Franz testified that Miller was replaced by Jenkins on February 7. She had no knowledge about the contact with Jenkins: It is found that Miller had not been replaced when he applied on February 5 and that his termination was violative of Section 8(a)(1) and (3) of the Act. Rein- statement and backpay are recommended. Sumler, one of the cleaners, testified that he washed cans at the hotel. His cir- cumstances were the same as those pertaining to White, above. Franz testified that Stewart, hired as a can washer, replaced Sumler on February 8. The payroll cor- roborates this fact and shows that Stewart worked 1 day, February 8, and was there- after terminated. Brown was hired as a can washer on February 9. As in the case of White, it is found that Sumler was not replaced prior to February 5. Although Respondent at the hearing offered testimony as aforedescribed that White and Sumler had been replaced, their terminations read, "job discontinued." The Trial Examiner finds that they were neither replaced nor were their jobs discontinued.72 It is concluded that Sumler was terminated in violation of Section 8(a)(1) and (3) of the Act. He was rehired at lower pay on March 7. Reinstatement and backpay are recommended. Hatfield, a welder's helper in the engineering department, had the same experience as the others on February 5 and 8 when he sought to return to work. His termina- tion said, "job 'discontinued." Franz testified that no one was hired in his place. He was rehired February 27. It is found that there is no evidence to warrant the conclusion that his job had been discontinued. Smith was employed as a welder in the engineering department for 12 years. The two helpers were Hatfield, above, and Belas who did not work from February 1 to 14. After careful consideration I credit Smith's testimony that on February 5 at his usual starting time he attempted to go to work; he returned to the hotel again about 1 p.m., February 5, attempting to go to work; Bryner told Smith on that day that he did not appreciate the fact that Smith had not come to work on the day of the strike and that Smith would not have a job. Bryner also told Smith his job was discon- tinued.73 Smith was told to return Monday, which he did, and received his termi- nation slip stating, "job discontinued." Smith testified that he had been stunned by what Brynei_ had told him because "quite awhile" prior to the strike Bryner had called Smith to his office and asked him how he felt about the Union and how the other men stood regarding the Union. Smith had spoken for himself and told 72 As previously noted, the only jobs discontinued or allegedly discontinued in Bryner's departments were the jobs of strikers. 73 Smith's two attempts to return to work on February 5 do not indicate a desire to quit. NEW ORLEANS ROOSEVELT CORPORATION 27' Bryner he was not favorable to having a union and was satisfied ., Bryner,' on that occasion, suggested that Smith write a letter to that effect to Weiss. Smith did so: but also told Weiss that he.would appreciate a salary increase.. Smith denied having told Bryner on February 5 or 8, or at any time, that he wanted to quit his job be- cause he did not wish to get involved in the union conflict: Franz testified that on February 8, Bryner told her that Smith had said he was not interested in his job anymore because be did not want to be involved in the union' matter. Glidewell, an engineer in the hotel, testified that on Monday he saw Smith standing in the engine room. Smith was not dressed for work and, according to Glidewell, Smith. said he thought he would quit because he did not wish to be bothered with a picket line and such. Although Smith was not recalled in rebuttal with respect to Glide- well's testimony I do not find that fact to be dispositive?4 Smith's lack of enthusiasm, for the Union during the organizational period well prior to the strike may have been' known in the engineering department. In the period from April 1959, when the Union filed its petition, to February 4, 1960, it is not unlikely that fellow workers would know the attitude of each other on the union matter. But aside from such a possibility, because of some sense of pride, false or otherwise, Smith may have wished to leave the impression with Glidewell on February 8 that he was not work- ing and not dressed for work because he had chosen to quit rather than admit that he had been discharged. His discharge, as he testified, had been quite a blow, par- ticularly in view of his having expressed a hostility toward the Union to Bryner. ' In any event I credit Smith's testimony that he had not quit and I find that he was told by Bryner on February 5 that his job had been discontinued. The fact that he was told to return on Monday was entirely consistent with Bryner's pattern of conduct toward all the other strikers in his department, all of whom, like Smith, received their termination slips on Monday. Moreover, it is to be noted that Smith's termi- nation slip makes no mention of his having quit, a very obvious and untroublesome reason if such was the fact. Apparently Smith's dereliction lay in the fact that he had not come to work on February 4 because of the picket line. This may have been deemed less excusable on the part of Smith because of his prior abjuration of union sympathy to Bryner. The payroll shows that a welder's helper was hired on Febru- ary 9 and another on February 15. Belas, also a welder's helper, returned to work on February 15. Where before the strike there was Smith, a welder, and two helpers, Hatfield and Belas, there were three men classed as welder helpers after the strike, plus Hatfield who was rehired February 27. The evidence establishes that in the welding section the two jobs that were al= legedly discontinued were those of the two strikers, Smith and Hatfield. Belas, who was not working between February 1 and 14, was unaffected. In view of the evidence as a whole regarding the terminations in the engineering department which has heretofore been described, as well as Bryner's remarks to Smith on February 5''- it is my opinion and I find that Smith and Hatfield were terminated owing to their failure to come to work because of the strike and that but for their strike partici- pation they would not have been terminated. These terminations were, I find, vio- lative of Section 8(a)(1) and (3) of the Act and reinstatement with backpay is recommended.75 . Kollin was employed by the hotel for 25 years. He was the orie air-conditioning mechanic. Like the others he attempted to return to work on the morning-of Febru= ary 5 and again at 1 p.m. He was in a group that was told by Bryner that he had replacements coming in. The strikers were told to come back Monday. On Mon= day Bryner said he had men to fill all their jobs ". .'. you fellows left. I didn't know how long you were going to be gone so all your jobs is filled." ',Kollin'turned in his keys and other equipment and received a termination "slip saying "job dis- continued." He was asked to return February 19 and resumed his former job on February 22. During the period of Kollin's termination his work'was.carried on by his helper, who was not a striker, and by• one'of'the engineers helping 'out. Logan, testified that it was found that the helper could not carry the load and that the work was taking too much of the engineer's time away from his regular 'duties. The °' Smith's denial about telling Bryner'that he wanted to quit' came out in ,the course ofcross-examination and not on rebuttal ' ' ' 71 While it is true that Respondent after the strike hired no one classified as a welder, it is apparent that the terminations effected no reduction in total personnel in the weld- ing section and it is highly doubtful that the cost of four helpers was less than the cost of a welder and'two helpers . Hatfield testified that he is now doing welding work which he previously did not do. In view of the 'conclusion regarding the cause of Smith's termination, reinstatement, in my opinion, is appropriate 'Respondent is, of course, free to rearrange or reduce its welding complement on a nondiscriminatory basis. ' 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD helper, Bilak, was 72 years old and had been out sick for 3 weeks just prior to the strike. Bilak came back and took over Kollin's work about 3 days after Kollin's termination. The Trial Examiner is unable to conclude that Kollin's job had been discontinued. Kollin, the mechanic, had a great deal more seniority or service with the hotel than his helper who was advanced in age and apparently in less than good health. The selection of Kollin's job for purported discontinuance rather than that of the helper's is most reasonably explained by the fact that Kollin was a striker who was destined to suffer the fate of every striker in Bryner's department. Nor, under all the circumstances, can the Trial Examiner conclude that Kollin had been replaced or that Respondent had a reasonable expectation that such was the fact. Respond- ent had had many years' experience with the job performed by Kollin and it is diffi- cult to believe that it was not until the strike that it was found that the job was purely surplusage. The Trial Examiner finds that Kollin was illegally terminated in vio- lation of Section 8(a)(1) and (3) of the Act and that but for his participation in the strike he would not have been terminated. The laundry and linen room were both under Bryner's supervision. The strikers from these departments had the experience previously described with respect to their efforts to return to work on February 5 and 8. When the strike occurred the Roosevelt laundry ceased operating and the nonstrikers from the laundry were tempo- rarily assigned to the housekeeping department. Since the Roosevelt laundry had also been doing the laundry work for the New Orleans Hotel it also discontinued that work.76 Although the laundry soon resumed operations after the strike it did not begin doing the New Orleans work until about February 15, at which time and thereafter it gradually was resuming work on New Orleans items. Logan testified that serious consideration had been given to the idea that the Roosevelt should not resume doing New Orleans work. Apparently the discontinuance of the New Orleans Hotel work during the strike and for a short period thereafter, plus the general desire of the Roosevelt to reduce personnel, is the Respondent's explanation for the terminations in the laundry.77 It is also Respondent's explanation for the re- hiring of some of the laundry workers later in February. At the hearing Respond- ent offered testimony that some of the terminated strikers had been replaced, al- though their terminations stated "job discontinued." Stokes who handled administrative work for the laundry and linen room testified that on February 4 when the strike occurred there was a total of 81 persons on the laundry payroll. As of the time of the hearing, in May, she testified that the pay- roll total was 76. The only payroll in evidence is the February payroll. Stokes did not explain her figure of 81 and it is not too readily apparent how it was com- puted.78 A perusal of the payroll shows, however, that in February there were 76 persons in the laundry department who actually were working prior to February 4. The total in that department who worked in February after February 4 was 76. The statistical picture, which was neither analyzed nor briefed by the parties in their briefs to the Trial Examiner, leaves much to be desired and we shall there- fore turn our attention to the 26 laundry and linen department strikers who were terminated. While not all strikers in these departments were terminated, no em- ployee who was not a striker was terminated and no jobs except those of strikers were discontinued 79 78 The New Orleans Hotel work was about 15 to 25 percent of the total laundry work performed by the Roosevelt laundry. 77 The termination slips received by the strikers read "lob discontinued." 78 The total number of names on the February payroll is 94 . Some of these names are those of persons hired after the strike ; Stokes did not name all those persons hired since the strike although she did mention a numerical total of 12 newly hired persons The names on the payroll include those of terminated strikers who were not rehired as well as those of terminated strikers rehired later in the month There are also names of persons such as Hall whose work in February commenced February 10 and Hills who commenced work on February 6 Both these names on the payroll, as well as some others, are preceded by zeros under every day in February prior to the time that they actually worked . Zeros, according to Stokes . mean an excused or unexcused absence. Stokes Identified Hills as a replacement but there are others of the same type on the payroll who evidently, like Hills, were newly hired replacements or possibly excused em- ployees On the engineering payroll, some of the newly hired employees, like Barthe, Linuor, and others, who we know were not on the payroll prior to the strike have zeros next to their names for the dates February 1, 2, 3, etc . The Trial Examiner, in short, cannot state whom Stokes included in her figure and whom she excluded 7s Approximately one-half of the employees in the laundry and linen room participated in the strike NEW ORLEANS ROOSEVELT CORPORATION 279 As already observed, all the following strikers received terminations stating, "job discontinued." Prior to the strike there were five linen deliverers, Lawrence Clark, Armstead, Ernest Clay, Thomas, and Price. Clark, Clay, and Thomas were strikers. I am unable to determine from the record whether or not Price was a striker. Armstead was not a striker. Clark, Clay, and Thomas were terminated. Stokes testified that Clark's job was eliminated and he was not replaced. She stated that Modica, who appeared on the payroll on February 6, replaced Clay and that Allen, who appeared on the payroll also on February 6, replaced Thomas. Since the strikers applied for reinstatement on February 5 we again are confronted with this question of when replacements were hired. As previously described, on the day of the strike department heads asked the employees at work if they knew of persons who would like to work at the hotel. Stokes testified that Modica had been contacted by an employee on February 4. However, as previously found, the actual hiring was done by Bryner alone after interviewing the prospective employee. 1 have found that where there was no specific evidence that Bryner had spoken to and had hired the employee on a prior date, I would consider the date of hiring to be the date shown on the payroll. This position is applicable here. I am not prepared to con- clude that because Modica, for instance, was spoken 'to by some rank-and-file laundry workers about a job opening at the hotel, that on that date Modica became a replacement who would foreclose the reinstatement of an employee who had exercised his statutory right to strike. Nor do 1-believe that if a rank-and-file em- ployee mentions to management that he has contacted a prospective employee that the latter has been hired until Bryner has spoken to and hired the employee. There is no specific evidence as to when Allen was hired and I find that he, like Modica, was hired February 6, the date shown on the payroll. Accordingly, it is found that the jobs of Clay and Thomaswere not discontinued as stated on their terminations nor were they timely replaced as was asserted at the hearing. It is found. that, the terminations of Clay and Thomas were violative of Section 8(a) (1) and (3) of the Act and reinstatement and backpay are recommended. The Trial Examiner accepts the fact that a reduction in force in the laundry area was legitimately motivated by reason of the discontinuance of the Hotel New Orleans work. The selection of the employees whose jobs were to be eliminated is a further matter. With respect to linen deliverers, we know that the three known strikers were terminated. The cases of Clay and Thomas, allegedly replaced, have been discussed. The other known striker, Clark, was not replaced and his job was dis- continued. Armstead, also a linen deliverer and a nonstriker, was not terminated. Respondent offered no explanation for the choice of Clark rather than Armstead for termination. In the opinion of the Trial Examiner the reasons for the selection of one employee over another were peculiarly within Respondent's knowledge. Such a reason might be length of service, efficiency, or some other factor. But in the absence of any explanation by Respondent there remains a clear and admitted pattern on the part of Bryner that only strikers' jobs were discontinued and the occupants terminated. This pattern holds true with respect to Clark and the other known strikers among the linen deliverers. It is therefore found that the selection of Clark for termination was part of Respondent's pattern of conduct to limit its terminations to strikers when it was found advisable to reduce the job complement. Clark's termination is therefore found to be violative of Section 8(a)(1) and (3) of the Act. Reimbursement of backpay is recommended.80 The evidence with respect to Ingram, a linen assorter, is substantially the same as that with respect to Clark, above. Stokes testified that Ingram was not replaced. The reduction of a job in the section was apparently attributable to the general laundry situation aforedescribed. Before the strike the linen room payroll indicates 11 linen assorters, Ingram, Wade, A. Jones, Hollins, Howard. Holmes, Allen, E. Smith, Moore, James, and M. Jones. The only person of the foregoing group who is identified in the record as a striker is Ingram. One other linen assorter, Howard, was terminated at the same time as Ingram and the markings on the payroll with respect to Howard are identical with those of the other terminated strikers in the linen room, e.g., Clark, Clay. Thomas, Suber, and Tneram. Griffin, a linen counter is in the same category as Howard regarding payroll markings and termination 81 The remedial , action that is appropriate in. circumstances where some-reduction of personnel is found to he justified- but the choice of individuals .for reduction is found to be discriminatory is discussed below . Clark was rehired on March 3 after Armstead voluntarily quit. The complement in linen delivery remained at four whereas it was five before the strike. n Both Howard and Griffin were reinstated. February 15 and 20, respectively. Griffin was reinstated as a linen assorter. Neither Howard nor Griffin were named in the com- 280 DECISIONS _OF NATIONAL LABOR RELATIONS BOARD As ii the case of-Clark, above, Respondent offered no explanation for the choice of Ingram for termination in preference to the nonstrikers. In the absence of any explanation -we' are left with the clear pattern on, the part of Bryner that only strikers, jobs were discontinued and only strikers were terminated. The Trial Examiner finds that the selection of striker Ingram's job for discontinuance and her, consequent termination was part of an illegal pattern of discrimination. In- gram's termination is therefore.found to be violative of Section 8(a) (1) and (3) of the Act. Reimbursement of backpay is recommended 82 . - Suber was a marker in the linen room for 9, years. Excluding supervisors, there were only two women in the laundry or in the linen room who earned a higher rate than Suber. These were two salaried seamstresses, earning $133.10 per month. With the exception of Suber and the other markers, who-received 61 cents per hour, all the other women were paid 47 cents or 53 cents per hour. It is therefore my opinion that Suber's job was one of relative importance and that she was a com- petent employee of many years' service. Stokes testified that after the strike, refer- ring to the job of marker, "we had been using one of the linen assorters in that capacity, Lessie Moore, and she was put into that job permanently. .: . Moore's job as a linen assorter was not filled. The, payroll shows Lessie Moore, a linen assorter, working in that capacity from February 1 to,the end of the month at 47 cents per hour. There is no reflection of Moore's transfer to be found on the February payroll.83 Stokes testified that Moore's rate of pay was increased on March 1. Although there is same doubt in my mind regarding the time of Moore's transfer,- I credit Stokes that Moore began performing the work of a marker on February 5, after the strike.84' The other marker, Harrison, had worked regularly in the month of January. She did not work at all in February until she returned on Monday, February 8. The zeros on the Harrison payroll line for the days from February 1 to 7, inclusive, admittedly mean an excuse or unexcused absence.85 It does not appear which of the foregoing types of absences applied to Harrison but it is reasonable to conclude from her absence prior to and. after the strike that she was not a striker and not regarded as such. If Harrison was a striker there is no evidence that the hotel was aware of the fact or that it had been in touch with Harrison on February 4 or thereafter. On February 5, therefore, when Suber at her regular time sought to return to work, the two marker jobs, Suber's and Harrison's were unfilled. Moore was not at work on February 4 and there is no evidence of contact by anyone in the hotel with Moore on February 4. It is logical to assume that when Moore came to work she was reporting to her regular job as linen assorter. Moore was allowed to re- turn to work but Suber was not. This fact cannot be attributed to any decision of Respondent to abolish a marker's job because both before and after the strike Respondent had two markers. Suber and Harrison, and then Moore and Harrison. Suber was a striker and admittedly Respondent knew the identity of the,strikers. If we assume that Moore was a striker why would one striker be rehired and another refused reinstatement.. The answer is clear enough if one striker's job had been previously filled or if her job had been abolished. Neither of these factors was present as to the marker job on February 5 when Moore and Suber reported for work. As a matter of fact, it was Moore's job that Stokes testified was not filled after Moore's transfer. , In other words, the apparent overstaffing was. in the linen assorter's section and not in the marker section. In view of Respondent's general position and pattern of conduct, it is quite apparent that Moore would not have plaint but judging from the markings on the payroll and their termination and reinstate- ment they were probably strikers. There were no terminated nonstrikers Ingram was reinstated February 26. A. linen assorter, A Jones, who was not a striker, was trans- ferred to another department, housekeeping, on February 17. 82 As in other instances .where reduction in force is legitimate but the selection of per- sons is discriminatory -see infra. .. . n Other transfers, e g., Jones from linen assorter to housekeeping, are shown on the payroll of the linen room and this is also true in the engineering department payroll with respect to transfers es Moore did not work on February .41 , Stokes testified that, on February,4 in the linen room there were 11 strikers, 6 people working, and the, balance either excused„ on their regular day off, or off,. apparently, for some reason unconnected with the strike.-None of the individuals in the various categories were identified by name. se On the engineering department payroll, as mentioned , zeros often preceded the names of employees prior to the date when they, were. contacted or hired,by, the hotel for the first time. Apparently the purpose was simply to fill out the particular payroll period NEW ORLEANS ROOSEVELT CORPORATION , 281 been expected to be allowed to go to work on February 5 -if -her job ,was surplusage and had been discontinued. But, again on the assumption that Moore was a striker, why is not the explanation . for Respond 'ent's rehiring of Moore and not rehiring Suber simply attributable to 'an arbitrary selection among strikers or to the Re- 'spondent's opinion that one was a better worker 'than the other. Such an explana- tion is valid enough where the two' strikers have performed the same job but it is quite' unreasonable and illogical to say that of two applicants , one a marker and the other a linen ,assorter,- if both were known strikers , an employer would reject the regular .occupant . of the job, Suber, an employee' of 9 years' experience, and, 'instead of terminating Moore whose -job was surplusage , would transfer Moore to one of the highest paying jobs in ,the linen room and terminate Suber, the regular occupant.86 Moore's pay, according to Stokes, was also increased in conformity with her new job. The Trial Examiner is not prepared to conclude that Respondent acted without reason or logic on the matter of Suber and Moore . It is for that reason, in view of the wholly unreasonable and illogical result arrived at, in the 'preceding analysis, from the, standpoint of the employer's own self-interest,, that, I must 'reject the basic assumption and premise of the analysis . In other words, I find myself unable to, assume or to find that Moore was one. of _the,strikers , .known ,to Respondent, because such - an assumption under all the circumstances ' leads to,the conclusion; previously described, that Moore was rehired .ands Suber rejected , contrary to all reasonable standards , contrary to the employer's own interest, ,and contrary to how this employer could be expected to act in view of all the other background and the employer's interest in terminating surplus jobs'and their occupants. There are no instances of strikers whose jobs were abolished being transferred to other` jobs in order to avert their termination . I therefore am of the opinion that Moore was one of the five employees in the linen room, unnamed by Stokes, who did not work on February 4 but who -were admittedly known by Respondent to be either excused on that day or absent for some reason other than the fact that they were strikers. It is not a question of seeking an illegal motivation to explain Respondent 's hiring of Moore and its refusing to hire Suber on February 5, when both came to work after being absent on the day of the strike, but it is a question of seeking some ten- able -explanation why Suber was not rehired in her vacant job instead of Moore who had never held the job . The only tenable explanation in view of all the facts is that Moore was not a striker and Suber was. Not a single nonstriker was terminated by reason of elimination of his or her job. Respondent's policy before and after the strike was that there were to be no terminations and that reductions would be made when jobs were vacated. Although Moore's job as a linen assorter was ap- parently surplusage and -was discontinued , she was not terminated and was given Suber's job. The policy-of no terminations by reason of job elimination or no job eliminations resulting in termination had as its exception , as the record clearly shows, those instances where the job occupant was a striker. I , The conclusion regarding Moore being a nonstriker is based upon inference. In- ference is a legitimate tool in the ,process of fact finding providing that it is a rea- sonable and logical inference consistent with the known facts in the situation . Little .more can be required of an inference since if it is more 'than this it ceases to be an inference and if it is less it also ceases to be an inference and becomes surmise or suspicion .87 Although it is my opinion that the inference and conclusion arrived .at herein are compelling and the only reasonable and logical inference and conclu- sion to be drawn , it is doubtful that the factfinder 's inference depends for its validity upon the fact that his inference is the only possible one that may, be drawn. It is only where the contrary inference is patently stronger or more compelling that an ,inference loses its validity . It is submitted that here the contrary inference is not only not stronger than the 'inference, drawn but that it is not of equal validity or equally reasonable. In fact, a contrary inference leads, as has been shown, to a wholly illogical situation . As appears in this report , in those instances where doubts ,were unresolved and could not be resolved by an inference for the General Counsel's ss There is no evidence that Suber was an unsatisfactory, employee The length of her service and her pay rate indicate the contrary. 87 If employer A hands' an employee his termination 'and states; I am discharging, you because you joined the Union, the finding of illegal discrimination would no doubt have been based on the fact as found and no inference would be necessary. But if the finding of discrimination or lack of discrimination is based on reasoning , and logic -applied to all- known circumstances in, a particular case and in accordance with standards of reason- able conduct under 'all the circumstances , the conclusion: will be. the result, of inference. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD position any more valid than an inference for the Respondent's, dismissal has been recommended. Such is not the situation here. While it is quite proper for an employer to replace a striker by a nonstriker, the action must be timely taken. In Suber's case, when Suber applied on February 5, she had not been replaced by Moore who was absent on February 4 like Suber, there being no evidence that Moore was contacted or was transferred on February 4. The assigning of Moore to Suber's job on February 5, in my opinion, is attribut- able to the fact that Suber was known by Respondent to be a striker and Moore was known to be a nonstriker. Under all the circumstances, previously considered, this is the logical and compelling conclusion. But aside from whether Moore was a striker or a nonstriker, known as one or the other by Respondent, the economic striker, Suber, was engaged in the exercise of a right protected by the Act. Since there is no misconduct involved and since her job was not discontinued, she ran one risk in striking. That risk was that she might have been replaced prior to her application for reinstatement. Otherwise she was still, as she had been during the strike, an employee of Respondent and entitled to her job as marker 88 Suber's right was not dependent upon the Respondent's motivation but upon the simple fact of timely replacement. In the present case I find that Suber had not been re- placed by Moore prior to her application on February 5. The only evidence we have is that Moore after her absence on February 4 returned to work on February 5. Her job was linen assorter and presumably, in the absence of contrary evidence, she returned at her usual starting time as we know Suber did, in the same depart- ment.89 From Respondent's standpoint, and from the lack of evidence to the con- trary, the best that can be said is that Moore after punching in (her payroll record and card number showed no transfer to the marker job and presumably her time- card therefore did not) went to her regular job section and either commenced work- ing and then was assigned to the marker job or was assigned to the latter before she commenced her own work. Since February 5 was the first day after the strike and there admittedly was a great deal of confusion in the hotel, particularly in the laundry and in the linen room, the work of which was related to that of the laundry, it is unlikely that Moore's assignment was as prompt as I have depicted it.° In any event, it is found that when Suber applied for reinstatement at 7:45 a.m. on Feb- ruary 5 she had not been replaced by Moore and was therefore entitled to her job.91 There is no evidence that Moore had been in contact with Bryner or Stokes prior to 7:45 a.m., when Suber applied on February 5, or that she had been assigned to Suber's job prior to that time. Nor is the Trial Examiner able to find a reason- able basis for such an inference. The facts and any inferences are, in my opinion, to the contrary. It is found for the various reasons set forth above that by ter- minating Suber and by failing to reinstate her to her former job Respondent has violated Section 8(a)(1) and (3) of the Act. Reinstatement and backpay are recommended. Duplesis was a washman in the laundry. He applied for reinstatement on Febru- ary 5 but his card was not in the rack. On Saturday, February 6, when Duplesis came to the hotel his card was in the rack with a note that he should see Bryner. When he saw Bryner the latter told him to come in on Monday and he would see what he could do. February 6, Duplesis also saw Stokes who told him that,the laundry was going to operate Sunday. She told Duplesis to come in Sunday to see Bryner since things would not be so busy on that day. Stokes advised Duplesis that on Sunday there would not be so much confusion around Bryner and that she was sure Bryner would put him back to work. Duplesis did not return on Sunday be- cause, he testified, he overslept. On Monday when Duplesis saw Bryner the latter told him to see Stokes and get his time. Stokes gave him a termination slip which said, "job discontinued." At the hearing Stokes stated that Duplesis' job had not been been "replaced" but that Randall, general utility man in the laundry, began doing 18 Even If Moore was a striker she was simply entitled to her job as linen assorter unless she was replaced, or guilty of misconduct, or unless her job was abolished. She had no protected right that entitled her to the job of another striker. 81 Suber's timecard was not in the rack at 7 :45 when she sought to go to work. Starting time was 8 a m. 90 The laundry had been shut down on February 4 and in addition to the general con- fusion its activities and related activities were confused when it resumed on February 5. 91 When Suber received her termination slip on Monday, February 8, it said, "job dis- continued." Bryner Instructed Stokes as to the reason to be written on the terminations. While discrepancy between the reason on the termination slip and the reason asserted at the hearing is quite general in the record , Bryner was familiar with the term, "replaced," and had used it on some termination slips. NEW ORLEANS ROOSEVELT CORPORATION 283 Duplesis' work as well as his own on February 4 and thereafter. She referred to her suggestion to Duplesis on February 6 to see Bryner on Sunday, February 7. Stokes said that not only did Duplesis fail to come in Sunday but he failed to "make any further contact with me but I did try to contact him, because I knew that the job was not replaced, and I felt that we could use him because the man that was in the job [Randall] was not able to carry on the two jobs..... Stokes also stated that Randall had been performing Duplesis' job only temporarily until things settled down. Duplesis was rehired on February 22 and Randall returned to his former job. It is not entirely clear to the Trial Examiner why Duplesis was not reinstated on February 5 in view of Stokes' testimony. Further, if Stokes, as she testified, was trying to contact Duplesis because she knew that he had not been replaced and be- cause Randall could not handle two jobs, I have difficulty in understanding why Monday, February 8, was not a suitable contact. Instead, that was the date when Duplesis received his termination from Stokes at Bryner's direction. Bryner's conduct on February 5, telling Duplesis to return Monday, and then the termination on Monday, February 8, was the general pattern that we have seen in other instances. Duplesis had neither been permanently replaced nor had his job been abolished. While Stokes' testimony indicates that if she had been making the decisions on hiring she probably would have reinstated Duplesis on February 5, 6, or 7, the fact is that Bryner was the man who made the determinations. In telling Duplesis to see Bryner on Sunday when Bryner was not so busy, Stokes was en- deavoring to assist Duplesis; according to her testimony she confidently thought Bryner would or might hire Duplesis on Sunday but there is no evidence that Bryner had advised Stokes that if Duplesis came in on Sunday he would reinstate him. Bryner himself told Duplesis to see him on Monday and there is no evidence that Bryner was aware of Stokes' Sunday suggestion. The failure of Duplesis to see Bryner on Sunday was not determinative since there is no indication that Bryner was a party to or aware of this proposed arrangement or that Bryner would have reinstated Duplesis on Sunday. If anything, the circumstances indicate that Bryner would not have reinstated Duplesis anymore on Sunday than he would have done so on Friday, February 5, when he told Duplesis to see him on Monday. When Duplesis was terminated on Monday it was not for failure to report for work or for failure to see Bryner on Sunday. The termination was in the same pattern as many of the others that we have seen. Accordingly, since Duplesis had not been replaced on February 5 when he applied and since his job had not been abolished, it is found that Respondent violated Section 8(a) (1) and (3) with respect to Duplesis. Backpay from February 5 to 21, when Respondent offered reinstatement to Duplesis, is recommended. Mumford did flat work in the laundry. She had the same experience as the others on February 5 and on Monday when she came in she received her termination marked "job discontinued." Stokes testified that Mumford was replaced by Sterling, a new employee who appeared on the payroll on February 6.92 According to Stokes, Sterling had been contacted on February 4 by Eddie Jackson, a truckdriver for the hotel. There is no evidence that Sterling was seen or talked to by Bryner on Febru- ary 4 and for reasons previously set forth I do not find that an employee's contact with a prospective new employee, Sterling, on February 4, constituted a hiring. Although Bryner made the decision that Sterling was a replacement for Mumford, there is no evidence that this was done on February 4 or before Bryner had hired Sterling. In the absence of specific evidence to the contrary, the payroll record that shows Sterling's appearance on the payroll beginning February 6 is deemed con- trolling. It is found that Mumford had not been replaced when she applied on the morning of February 5 and that by failing to reinstate her Respondent violated Section 8(a)(1) and (3) of the Act. Reinstatement and backpay are recommended. Frances Clay, Lee, Casby, and Bunch were all women who did flat work in the laundry. They had the experience described previously in their efforts to return to work after the strike. Their terminations read, "job discontinued." Stokes testi- fied that these employees had not been replaced and that as the Roosevelt began resuming the New Orleans Hotel laundry work these employees were rehired 93 The job of Neal, a flatrworker,94•was discontinued, according to Stokes. Neal was neither replaced,norrehired. Stokes .testified that flat worker Minnie Jones was replaced by a new employee, Katie August, who first reported for work on February 6; the job of Foxworth, a oa Sterling quit her job on February 20 p1 Cabby and Lee were rehired February 24; Clay, February 25; and Bunch , March 4. " Approximately half of the employees in the laundry performed flatwork. 284 I DECISIONS OF NATIONAL LABOR RELATIONS BOARD flat worker, was discontinued and she was recalled on February 17 when Singleton, another employee, quit; 95 the jobs of flat workers Nealand, Rousell, Toliva, and Douglas, were discontinued, according to Stokes, and they were not reinstated; San- ford, a flat worker, was replaced by Wade and Massey; 96 Massey's name does not appear on the laundry payroll for February; in reply to a question as to when Massey replaced Sanford; Stokes never gave a. direct answer; she said that Massey before the strike had been a kitchen employee and had asked for a transfer to the laundry and that she had been told that she would be transferred when an opening arose; when the strike occurred". . . we tried to contact her but she was sick.. ."; and that Stokes or someone then spoke to Massey's mother or sister who worked in the laundry and asked when Massey would be available and left word that when Massey was able she should "come in and see us." Massey was working in the laundry at the time of the hearing. Stokes said that Lillian Wade had replaced San- ford and that Massey replaced Wade who was terminated on February 7 for being intoxicated. The payroll shows that Wade appeared thereon for the first time on February 5 and worked February 5 and 6 .97 Isadora Jenkins, a flat worker, was re- placed by Hills, whose name appears on the payroll as working for the first time on February 6. Riley, a flat worker, was replaced by Felder, whose name appears on the payroll as working for the first time on February 6. When Stokes was asked when Riley was replaced by Felder she answered: "She was requested through another employee on the 4th and reported on the 6th." Stokes gave the same type, of answer when asked when Hills replaced Jenkins. In reply to the question' as to who gave her instructions to replace Riley with Felder and Jenkins with Hills, Stokes said it was Bryner but did not fix the time thereof. In accordance with my opinion that contact with a prospective employee by another employee on February, 4 did not consittute a hiring on that date and in the absence of specific evidence that Bryner had hired an individual on some day prior to the time when the employee first appeared on the payroll; the latter date is found to be the date of hiring.98 An aspect of Riley's testimony was that her mother, Vaughn, also a laundry worker, was with her on Friday, February 5, when they attempted to go to work and found the timecards were not in the rack. Riley testified credibly that her mother had gone to the clinic on February 4 and therefore did not work that day. On Monday, when Riley again reported to the hotel, her mother was with her. Riley stated that when her mother showed her clinic card she was allowed to return to work whereas Riley was terminated. The payroll shows that Vaughn did not work February 4 through 7, inclusive, but did work on Monday, February 8, and thereafter. Stokes testified that she recalled the incident of Vaughn returning' to work after the strike and she remembered that Vaughn said her daughter was with her. Stokes said that she had known previously that Vaughn was going to the clinic on February 4-since Vaughn had so-informed her beforehand. Stokes said she had not included Vaughn asa striker, "her job was not discontinued. She was never classified as a striker." Stokes also testified to a telephone call that she had received from Vaughn, the day of which Stokes could not remember. Stokes said she told Vaughn, on the telephone, apparently in response to Vaughn's inquiry about her job, that her job was open, "you just bring me a certificate from the doctor, from the hospital, that is all I want." Neither Riley nor Vaughn had been at work on February 4. Riley was a striker and Vaughn was not but Riley's uncontroverted testimony is credited that on Friday, February 5, when Riley and Vaughn, like others, sought to return to work they found that their timecards were missing and they were not allowed to go to work. If Stokes knew that Vaughn was absent on February 4' because of a clinic appointment, it is not clear why her card was missing on February 5. Unless Stokes is disbelieved that she knew of Vaughn's excused absence, it is lkely that Vaughn's card was missing on February 5 because 66 The payroll' shows that Singleton's last 'day of work was February 8. 96 Unless otherwise indicated the' facts concerning job discontinuance or replacement were the assertions of Stokes at'the hearing ' BT Assuming that Wade was hired 'on February 5, there being no evidence of an earlier hiring by Bryner; I find' no facts upon which the question, of whether Sanford applied before Wade was hired on February 5 or whether Wade' was hired on February 5 before Sanford applied, can be resolved Dismissal of the Sanford allegation is recommended. Wade's short period of employment does' not establish that she had been, hired on a tempo- rary basis in view'of the subsequent cause of her discharge as If there was evidence that Bryner on February 4 told Stokes that Felder was re= placing Jenkins, this would indicate that he had hired Felder oil that 'date. There is no such specific evidence and' it is not'iunlikely that it was not until the new employee 'actually reported for work that Bryner'told'Stokes whom 'she was replacing. ' 1 '' NEW ORLEANS ROOSEVELT CORPORATION ' . - 285 Bryner' or someone else did not know. the. nature of the absence or because some- one • had removed the cards of practically everyone in the - laundry who did not report for work on the day of the strike. In any event, it is found that the card was not there and Vaughn was unable to go to work on that day. The most logical explanation for the telephone call which Stokes received from Vaughn was that Vaughn was inquiring about her job. That such was the subject matter of the call is apparent from what Stokes said she told Vaughn on, that occasion, i.e., your job is open, just bring in proof that you were at the clinic. The call apparently took place some time after Vaughn's unsuccessful attempt to return to work on Friday, February 5, and before she again went to the hotel on Monday, February 8. Riley testified that on February 8 when she was given her discharge slip "they was fixing to give her [Vaughn] one, but after she showed her clinic card . . . they took her back." Whether or not Respondent was "fixing" to give Vaughn a termination slip on that occasion, is not determined, since the facts upon which Riley based this statement were not developed. The fact is, however, and it is so found, that before Vaughn was returned to her job on that day, February 8, she produced her clinic card. The clinic card, presumably signed by the doctor or clinic, was proof (as asked for by Stokes when she spoke to Vaughn) that Vaughn in fact had been at the clinic on February 4 and was therefore not a striker. In the opinion of the Trial Examiner the significance, of whether an employee was absent.on' February 4 because of participation in the strike or because of some reason unrelated to the strike is evident with respect to the question, of whether,or not the employee was to be terminated. The Vaughn incident in the light of,the other evidence in the record, including the fact that only strikers' jobs were discontinued, and only strikers were terminated, cannot be ignored. As previously indicated, the reduction of work performed in the Roosevelt laun- dry as a result of the discontinuance of the Hotel New Orleans work appears.to be a legitimate reason for reducing personnel-in the laundry and it is found that a reduc- tion was made among the flat workers for that reason.99 A careful consideration of all the evidence that has been set forth in the preceding paragraphs has lead to the conclusion, and I find, that while a legitimate justification for a reduction in laundry personnel existed, the Respondent's action in confining the reduction to strikers and to no other laundry workers was discriminatory. No evidence was offered that the strikers aforenamed, who were. terminated in the laundry, were selected on some nondiscriminatory basis and in the light of all the evidence I am not persuaded that pure coincidence is the explanation.' The evidence is compelling that the reason was their strike participation and it is so found. More particularly it is found that Clay, Lee, Casby, Bunch, Neal, Foxworth, Nealand, Rousell, Toliva, and Douglas were refused reinstatement and were terminated in violation of Section 8(a)(1) and (3) of the Act. It is found that Minnie Jones, Jenkins, and Riley were not timely replaced and were refused reinstatement and were terminated in violation of Section 8(a)(1) and (3) of the Act. Reinstatement and backpay is recom- mended as to Jones, Jenkins, and Riley and backpay for the others. w The matter of a reduction in flat worker personnel because of the Hotel New Orleans laundry elimination was somewhat altered by. the resumption of the New Orleans work. Thus Respondent had discontinued the jobs of 10 flat workers (Clay, Lee, Casby, Bunch; Neal, Foxworth, Nealand, Rouse]], Toliva, and Douglas, supra) because of the fact that the Roosevelt had ceased to do the New Orleans work. Five other active flat workers (Mumford, Jones, Riley, Sanford , and Jenkins ) were . replaced, prescinding from the ques- tion of timeliness Thus there was a net elimination of 10 active jobs that were being worked at before the strike. When the-,New- Orleans work was resumed five of.those terminated were rehired , leaving an apparent loss of five jobs that were being worked- at before the strike However, the loss of active workers' was not entirely as real as it was apparent since there are five persons listed on the payroll who had not'worked in February at any time until they began work after the strike. - These persons are in addition to five persons identified as newly hired replacements . The five • nonreplacements aforedescribed are, with the dates when they first worked in February : Jones, February 5; Payne, February 8; Hall, February 9; and Freeman'and Mansor, February 16. These five' per- sons, I assume, there being no evidence about them, were employees who had' been absent in February because they were either excused or not 'excused. In any event they were allowed to resume working. While there was a, nettloss of five flat workers from the payroll there was no net loss of the number actually working and being paid. There were 15 working and being paid in - February prior to 'the'strike•and within a few weeks after the strike there were 15 working and being paid as flat; workers ( the 5 replacements ; the 5 employees who had been discharged and-later rehired ,; the 5 employees who had not worked in February prior to the strike). 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since it has been found that work in the laundry was curtailed for legitimate reasons, it appears that a certain number of flat workers, apparently 10, would have been terminated in the period during which the Respondent ceased to perform the Hotel New Orleans laundry work. When the Hotel New Orleans work was resumed Respondent legitimately determined that it could operate its laundry with five less persons on the payroll than was the case prior to the strike. It has been found that Respondent's basis for selection of employees for termination was illegal. But it is possible that some, one or more, of the employees discriminated against might have been affected in the reduction of operations absent the Respondent's unfair labor practices. The record, however, furnishes no basis for determining the crite- rion or order of, termination. Accordingly, it is recommended that Respondent offer the aforenamed employees 100 immediate and full reinstatement to their former or substantially equivalent jobs, without prejudice to any rights and privi- leges they may have had, and, in the event there is insufficient work for all such employees entitled thereto, to dismiss , if necessary, all persons newly hired after the Respondent's discrimination. If there is not then sufficient work available for the remaining employees and those to be offered reinstatement, it is recommended that all available positions shall be distributed among them without discrimination against any employee because of union activities, in accordance with the system of length of service, efficiency, attendance, or other nondiscriminatory practice here- tofore applied by Respondent in the conduct of its business.101 It is recommended that Respondent place those employees, `if any, for whom no employment is avail- able after such distribution, on a preferential list, with priority in accordance with length of service or - other nondiscriminatory practice heretofore applied by the Respondent in the conduct of its business, and thereafter offer them reinstatement as such employment becomes available and before other persons are hired for such work. Backpay is recommended to make whole those employees against whom Respond- ent has discriminated for any losses they may have suffered because of Respondent's discrimination. The period of computation to be from the date of discrimination to the date of the offer of reinstatement or reinstatement whichever is earlier, or placement on a preferential list, as the case may be.102 Oliver was employed in the laundry as a washman. He had the same experience as the otherstrikers except that on Monday, February' 8, Bryner told him, "Isaac- well, you is replaced-." [ Isaac] Oliver then received his termination slip which said, "job discontinued." Stokes testified that Oliver was replaced by Nicholas, who came to the hotel on February 4, spoke with Bryner, and was hired, with the understanding that he could finish his present job and report Sunday, February 7. The payroll shows that Nicholas, a washman, commenced work February 7. It is found that Nicholas was hired to replace Oliver on February 4, prior to Oliver's application. Nicholas was a permanent replacement. Dismissal of the allegation regarding Oliver is recommended. Prior to the strike there were in the laundry, inter alia, the following persons, with the payroll numbers and classifications as shown: Duplesis, 811, washman; Oliver, 803, washman; Santiago, 808, washman; Moses, 810, washman; and Frank, 812, extractor-washman.i03 The following were the newly hired employees in that section of the laundry after the strike, with the payroll numbers and classifications as shown: Nicholas, 805, washman; Henry, 8031/2, extractor-man; Grant, 81016 extractor-washman; and, Peters , 8121/ extractor-washman. Duplesis, whose case was previously considered, was terminated, was not replaced, and was later re- 100 Clay, Lee, -Casby, Bunch, Neal, Foxworth, Nealand, Rousell, Tollva, and Douglas. 101 Since Respondent's policy, both -before the strike and at the time of hearing, was stated by Respondent to be that it did not bring about reduction in force by terminations and that it discontinued jobs only as the occupant quit or was discharged for cause, this policy would no doubt be relevant However, apparently the discontinuance of the Hotel New Orleans work for several weeks was an unusual event that led to some modification of the policy. 102 As it is possible, as previously stated, that one or more of these employees might " have been _Aiscliarged . in''the reduction . of the work force even.if Respondent's selection", had been made on a nondiscriminatory basis, this possibility should be taken into con- sideration in determining the question or amount of backpay. 100 Frank was not named in the complaint . The payroll shows be worked February 1 through 3 and was thereafter terminated . The payroll markings , ending with a long dash, are the same in Frank's case as in the case of the terminated strikers in the depart- ment. Frank was probably a striker since none but strikers were at that point terminated. NEW ORLEANS ROOSEVELT CORPORATION 287 hired.104 In testifying that Henry replaced Moses , Stokes was asked by the Re- spondent's counsel: Q. Tell us how that came about? A. I don't know. Mr. Bryner just called me and sent him over. Told me to replace Louis Moses with this particular man. Q. When did William Henry start work? A. He started on the 6th. Henry is shown on the payroll for the first time on February 6. Since there is no evidence that Henry was hired on one day and received additional time to report later, the Trial Examiner finds that Bryner hired Henry on February 6, sent him to Stokes on that date, and Henry was placed on the payroll and commenced work- ing.105 It is found that Moses had not been replaced by Henry on February 5 when Moses applied for reinstatement. By its failure to reinstate Moses and by ter- minating him Respondent violated Section 8(a)(1) and (3) of the Act. Reinstate- ment and backpay are recommended. Stokes testified that Santiago was replaced by Grant who first went to work and appeared on the payroll on February 6. According to Stokes, a hotel employee, the mother of Grant, "contacted us and asked if she could bring him in." 106 The foregoing occurred on February 4. The Trial Examiner is of the opinion that the evidence does not establish that Grant was hired on February 4 or before February 6 when he first went to work.107 Accordingly it is found that Santiago was not re- placed prior to February 5 when"'he applied for reinstatement,aiid,that Respondent's failure to reinstate Santiago and the termination of this employee was violative of Section 8(a) (1) and (3) of the Act. Reinstatement and backpay are recommended. Rice and Blackman were linen assorters in the laundry. They had the same ex- perience as the others in their attempts to return to their jobs after the strike. Their terminations stated, "job discontinued." Stokes testified that Alexander re- placed Blackman and that Wilson replaced Rice. Alexander and Wilson first ap- peared on the payroll on February 7 and 6, respectively. Stokes stated that both these replacements had been contacted on February 4. As in other instances, the contact was pursuant to the department head's action in asking the employees who were at work if they knew of people who would,be interested,in working at the 101Franz who handled payroll matters in the engineering department , also under Bryner, testified that usually but not always a replacement was given the same payroll number as the one of the employee replaced Judging from specific names and numbers and testimony as to who replaced whom in the engineering department the replacement number was in many cases the same as the prior occupant 's with addition of "Y_." The Trial Examiner would therefore have been prone to believe that Henry replaced Oliver ; Peters replaced ' Frank ; and Grant replaced Moses. Nicholas, of course, had a number that was apparently new and It did not correspond to any former number The two num- bers that were not matched were those of Nicholas and Santiago -and it might have been supposed , nothing else appearing as to whom Nicholas replaced , that it was Santiago. I have credited Stokes' testimony that Nicholas replaced Oliver . Stokes' testimony with respect to the others is less understandable because of the matching of numbers shown on the payroll. However, since Stokes was the payroll keeper I credit her testimony that Henry replaced Moses and Grant replaced Santiago . Although not stated , Peters prob- ably replaced Frank since their numbers corresponded and Peters ' hiring is otherwise unaccounted for. 105 On February 6 Respondent had no washman at work . All the washmen had not worked on the day of the strike, none were reinstated at the time , and Respondent was in need of help. 100 Although Stokes did not so testify, presumably the answer was yes. 107 For all that appears Mrs. Grant may have simply asked Stokes or some supervisor whether she could ' bring her song to the ,hotel to work in the laundry. The son, Grant, may possibly have been working elsewhere or may not have been -working either by necessity or as a matter of choice. Perhaps it was at that stage solely his mother's idea that Grant should come to work at the hotel . The opposite may have been true. In any event, until Bryner saw Grant , hired him, and had him 'placed on the payroll, Grant was not an employee. Prior to that point the matter was inchoate on both sides. There is no evidence in my opinion that Grant was hired prior to February 6 and that date is found to be the date of hiring. It is to be noted that Stokes was asked by Respondent's counsel Q. When did that replacement [of Santiago ] take place? A. Robert Grant started on the 6th of February. 288 DECISIONS .OF -NATIONAL LABOR RELATIONS BOARD hotel: - The actual 'initial contact, except where there is evidence to the contrary, was through rank-and-file employees with the prospective recruit.108 The Trial Examiner finds that Rice nand Blackman were not replaced prior to February 5 when they sought to return to work. It is found that by failing to reinstate Rice and Blackman and by terminating them Respondent violated Section 8(a)(1) and (3) of the Act. Reinstatement and badkpay are recommended.109 Martha Jackson testified that her job at the hotel was rolling silver. It is not clear from the record in what department Jackson worked but I assume the work probably related to a dining room or coffee shop or similar place where silver was used. Jackson did not go to work on February. 4 because of the picket. line. February 5, Friday, was her regular day off so Jackson did not go to work on that day. She did go to the hotel on Friday, the regular payday, to pick up her check. When she sought-to go to work on Saturday she was given a termination slip and was told to turn in her uniform and key and to -come back for her pay. The termination slip gave as a reason, "for the good of the service." Jackson was rehired about 2 weeks later.. There is no evidence that Jackson's job was abolished or that she had been replaced. In fact as far as the Trial Examiner has been able to determine, .there is no explanation in the record by Respondent for the failure to reinstate Jackson after the strike. Since Jackson was an economic striker she was entitled to reinstatement absent other factors not shown to exist in her case. It is found that. by failing to reinstate Jackson and by terminating her Respondent violated Section 8(a) (1) and (3) of the Act. Reimbursement of backpay is recommended. Watts was a lobby porter with 6 years' service. He did not work on February 4 because of the picket line. February 5 was payday and also was Watts' regular day off; he came to the hotel on that day for his pay. After receiving his pay Watts was on the platform outside or in the vicinity of the timekeeper's office. His super- visor, Calcagno, superintendent of service, then told him he was finished and to get off the platform. Watts went home. He returned to the hotel about a week later to pick up the balance of his pay. On`this latter occasion Watts was told that he had been given a termination slip. When he replied that he had never received one he was told that he must have lost it. The payroll lists 44 persons under the caption, "Porters, Doormen, etc." Watts, as shown by the payroll record, was the only striker in the aforementioned section and opposite his name is the notation, "Layed off. Job abolished." Calcagno testified that Watts was terminated February 5; he stated that he was reducing the number of his employees pursuant to Weiss' memorandum of April 1959. Respondent's counsel asked: Q. Why did you reduce Mr. Watts, Mr. Calcagno? A.• Well, he was less desirable of the men I had. And then you know we had a petition in there at the time for a union so I was just going along getting set for that, too. Calcagno, when asked how many men he had.before the day of the strike, said, "I had 5 men and I still have 5 men." When asked, "Was there any reduction?" he replied, "There were some changes made." Calcagno mentioned Minor and Booth as being involved in the changes."° Later, Calcagno testified that he had four 'lobby porters before the strike and now has three. Logan testified that on Febru- ary 1 a street leading to the hotel had been changed to, a one-way street and this had necessitated opening a second major hotel entrance. According to Logan, the hotel now had half as many porters and twice as many doormen and one less person in the entire group. Logan stated that the lobby porter who was reduced is named in the complaint although Logan could not remember his name. The reference is 109 At a later point where Stokes was testifying about another replacement who was contacted for a particular job on February 4, the following occurred : Q. Do you know when Mr. Bryner first talked to him? A. No,.I don't. . Q. That is pretty much true of all these that you have testified to? A. That is correct. Stokes went on to say that the contact was made by a rank-and-file employee and, as far as Stokes 'knew, the first time Bryner, spoke to the applicant, was when he came in and went to work. 101 Rice was rehired February 24. 110 It is believed that the names are Minor and Boose since these are the two names mentioned by Logan as being involved in a lobby change. The name Boose appears on the payroll but there is no Booth listed in the department. NEW.ORLEANS ROOSEVELT CORPOPATION 289 evidently to Watts. Logan said that "Boos" (Boose) was taken out of ;lobby service and put on the door and Minor was also taken out of lobby service and placed, on the door,'apparently as a relief roan. While it' is true that the department had' one less man after. Watts was terminated, the following facts also appear: Minor was identified in the c_hanges,which entailed Minor being taken from lobby service and placed on the door." The changes allegedly led' to the elimination of one man, Watts, on February, 5. But the payroll record shows'that'Minor did not work at all in the department until February ,11 and his name appears on no other payroll in the record., In view of Caloagno's testimony and the other evidence set forth above, it is found that if there was a bona'fide reduction in`force the selection of Watts, the sole, striker in the department, was discriminatory and was for the purpose, as Calcagno admitted, of."getting set" for the impending election." It is found that the dis- charge of Watts was violative of Section 8(a)(1) and (3) of the Act. ,Reinstate- ment and backpay are recommended.112 Patrick and Clark were a busboy and busgirl, respectively, in the hotel. Patrick did not go to work on February 4 because of the picket line. He came to the hotel on February 5 and asked for his timecard. He was told it had been pulled and that he had to see the department head, Giordano. Patrick was told to come back later that day to see Giordano. He did not return to the, hotel on Friday. Saturday was his day off; Sunday was a workday. Patrick did not return to the hotel until Monday, February 8. On that day he was told to see Giordano. The latter was busy and told Patrick to come back. Later, -when Patrick saw Giordano on Monday, the latter told him he had cut his crew and did not need him anymore. Patrick's termination is dated February 6 and gives as a reason, "too much help, cutting my crew." The payroll shows that Patrick did not work on any day in February and bears the notation, "off 6 days inclg strike." There is also a notation; "Keep Blank.'"' Giordano testified that he kept the entry on Patrick blank so that he could put him back to work if he needed him. Giordano said that he would re- hire Patrick if the need arose.113 The payroll record and Giordano's testimony indicate that substantially all employees in the department except possibly a few on their day off were strikers and were reinstated. It is recommended that the allegation regarding Patrick be dismissed. Clark was a striker and she did not report on the following day, February 5, be- cause it was her regular day off., When she returned on February 6 her timecard had a note to the effect that she should see Giordano. When she saw Giordano he told her to go to the timekeeper and get her time. Her termination, dated Feb- ruary 6, stated, "too much help, cutting crew." The payroll record for Clark bears the notation, "Keep Blank Day Off (F) Out (4) Paid by Voucher, Layed off 2 day." Giordano testified that although he had had to keep after Clark to do. her work he would rehire her if he needed her. , He had her record kept blank for this reason. Giordano said-he had later tried to find out how he could-get in touch with Clark but had not been successful. As in the case of Patrick; `Clark was one among many strikers in her department and all the others had' been reinstated. Clark was neither the least senior in point of service nor did she have the greatest seniority. Although it is not clear why it should have been noted on the payroll that she had laid off 2 days, one being the day of the strike and the other being her regular day off, it is found that -the complaint has not been sustained with re- spect to Clark and dismissal is recommended . The Trial Examiner credits Gior- dano's testimony that-he simply reduced his force and selected Patrick and Clark when he found he could get along without them. Giordano stated that he con- sidered Patrick and Clark as the two most expendable employees. Although Friday was Clark's day off the fact is that Giordano apparently saw that'he could dispense with her services and those of Patrick when the department functioned during their absence. Lacy was a busboy.' On the day of -the strike he carried a picket'sign from' ap- proximately 4 a.m. to 7 p-m. He returned to work on Friday, February 5; and worked a full day. On Saturday he came to work at 6:30 a.m. and worked approxi- mately 2 hours. At sometime between 8:30 and 9 a.m. on Saturday, according to ssl Calcagno did not explain in what respect Watts was less desirable but,' notwith- standing the evidence of basic motivation, if it is assumed that there was a legal and illegal reason for the discharge, 'this does not obviate the illegal 'nature of'the action. See cases cited, supra. ' • 1 ' u2 See the discussion, supra,- regarding remedial action where selection for reduction has been found to be discriminatory. I ' • us Giordano-stated that he had later been unable to get'in•touch with,Patrick. 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lacy, he told Giordano that he was sick and asked permission to go'home. Gior- dano allegedly said, yes, or, okay. Lacy testified that immediately after talking to Giordano he had gone to the basement to change"his clothes ._aad, sick to his stomach again at that point. He then went home. Bruno, who had' been head busboy prior to the strike, had been a striker and he returned to work on February 5. Bruno is not named in the complaint but I credit Logan's testimony, which was uncontroverted, regarding the circumstances of Bruno's discharge, pursuant to Logan's orders, on February 5. Although it is not in issue, Bruno's discharge, I am satisfied, was unconnected with the strike or union activities. Bruno was in the hotel on Saturday, February 6, talking to Giordano and endeavoring to be reinstated. According to Bruno, he heard Lacy tell Giordano that he would like to go home and Giordano gave his approval. Lacy had testified that Bruno and another man were present when he spoke to Giordano. The latter admits that Bruno and other employees, including Lacy, spoke to him about reinstating Bruno. Giordano told the men he could do nothing about it. A group of these employees then went to the basement which Giordano construed as "It looks like they was going to frame me-and then this Fred Lacy carried this chip on his shoulder and walked out." Giordano stated that Lacy had not spoken to him about being ill. He said that he learned that Lacy had left when it was reported to him that Lacy had punched out. Giordano testified that on that Saturday morning, prior to his leaving, Lacy had been walking around "like he didn't care to work 'and I asked him to do your duties, boy, let's do your work and your duty right." Lacy's behavior continued in the described pattern and Giordano instructed Dumas, the head bus- boy who had replaced Bruno, to tell Lacy to do his work. Dumas later informed Giordano that Lacy had punched out. On the whole, Giordano impressed the Trial Examiner as a credible witness. I credit Giordano's testimony with respect to the Lacy discharge. While Bruno corroborates Lacy I find that there is a discrepancy in his testimony as compared with that of Lacy. The latter's testimony is to the effect that his illness was such that after leaving the hotel he went home, that he could not remain in bed because he was vomiting, and that he was ill until "sometime that night." Bruno testified on cross-examination that after Lacy had spoken to Giordano, Bruno and Lacy "left and went to the union hall together." Bruno, although asked several times, was unable to say approximately how long Lacy remained at the union hall. He finally said that he believed Lacy left "before lunch." Dumas testified that on the day in question Lacy had been walking around not doing his work. Dumas said he spoke to Lacy about his conduct. According to Dumas, Giordano had told him to ask Lacy to do his work. Lacy had said nothing to Dumas about "being.. ill. Dumas later learned that Lacy had punched out. Lacy testified that he attempted to go to work on Sunday but his card was missing and he learned that he had been discharged. Giordano was not at the hotel so Lacy came back on Monday, at which time he received his termination. The termination slip said, "walked out without notice." On all the evidence it is recommended that the allegation of the complaint regarding Lacy be dismissed. Guy West, Sr., worked for the hotel for 12 years. He was a cook, "number one broiler on the morning schedule." In the latter part of January 1960, West and a grout) of the hotel's cooks, 21 in number, secured a meeting with Respondent's president, Weiss. At the meeting between Weiss and the cooks, West was the spokesman for the latter. In substance, West told Weiss that the cooks desired a raise in pay and Weiss refused the request. The meeting was apparently a tem- perate and orderly one on both sides. West was not sure of the date when the meeting occurred but testified that he believed that it was January 21 or 22. Weiss did not testify. January 22 was a Friday., West testified than he, was not feeling well on the Friday when he spoke to Weiss and that he' was ill on the following day, Saturday. However, West did work on Saturday. Sunday was his day off and he was ill on that day. West's wife telephoned the hotel on Sunday and spoke to Chef Ydett telling him that West was ill and would not be at work on Monday unless he felt better. West did not feel better and called the doctor on Monday. The illness was diagnosed as pneumonia so West stayed in bed. West testified that he then, while home in bed with a high fever, "got the news, the following Friday, I think it was, that the Teamsters Union had struck." 114 A few days later West 114 The strike was Thursday, February 4; and Friday was the 5th. If the "following Friday" in the week when West became ill was February 5, it may well be that the meet- ing with Weiss had been on Friday, January 29, instead of Friday, January 22 West had not been sure of the exact date although he knew that he worked the Saturday after the meeting, that Sunday was his day off, and that the doctor saw him on Monday. In NEW ORLEANS ROOSEVELT CORPORATION 291 heard that he had been discharged.115 He-telephoned the head chef, Ludeman, and, asked if he had been discharged . Ludeman said no. Later, West telephoned Lude- m,aniand • said,he thought .he,.w'ds,,well <<enough to:come, to ,work on February 8.116 Ludeman said all right. On the morning of February 8, West's sister -in-la' 'relayed to West a telephone call that she had received about 5 or 5:30 a .m, that morning from Chef Young to the effect that Ludemnan said that West was not to report at his regular starting time but was to come in about 9 or 9 : 30 a.m. and see Logan-117 West, accordingly, went to the hotel at 9 : 30 and spoke to Ludeman . The latter told West, "You get the job back, but they seems not to have liked it about your coming up to the office with the group." When asked whether Logan wanted to see West in his office or in the kitchen , Ludeman said the kitchen and suggested that West wait there and have some breakfast. West said he waited around the kitchen about 30 minutes, and then went to the dressing room . On his way back, going to Ludeman's office, West met Felkner .118 The following conversation, according to the credited testimony of West, then ensued between West and Felkner: 116 Mr. Felkner told me, he said , "Hello, Guy," and I said , "Good morning, Mr. Felkner." Said "you been sick." And I said , "yes, sir." He says "Well, this is kind of coincidental your sickness .come about just in the time of the strike." He said, "We understand you were one of the leaders of the gang." I said I was sick when the strike wasl'and I had no part in the strike,at all. And he said, "Well, it is quite coincidental." So I asked Mr. Felkner if Mr. Logan wanted to talk to me. And he said, "Well, now let me get you straight, Guy." He says "as of now you are separated because we understood that you were one of the leaders in the gang." I said , "Well, all right." And Mr. Felkner walked on... . West testified that about that time, Cohen , the steward in the kitchen passed him and said, "West, I have had orders to separate you." West waited about 30 minutes more to see Logan and then went home. In response to word from the hotel West came to the hotel on February 18 and saw Logan. According to West, Logan asked him if he had been sick and West said yes. Logan said he had not known that. Logan then spoke about the activi- ties of the Teamsters Union and about his trip to New York just before the strike. West told Logan he still did not feel too well and that he had a doctor's statement to show that he was sick on the day of the strike . It was agreed that West would mail the doctor's statement to Logan. his testimony , infra, Logan stated that the hotel , had not heard from West since Janu- ary 25, Monday. It is not clear to the Trial Examiner whether Logan had 'an inde- pendent recollection of that exact date or whether it was based on West's testimony that he believed the date when he did not come to work was the 25th or the Monday after the January 22 meeting with Weiss. No payroll record regarding West was introduced In evidence. A doctor's certificate which West personally secured from the doctor is dated February 20. It states that West was ill from January 25 to February 8 The certificate was written in longhand by the doctor. It Is possible that a busy doctor , several weeks after the Illness, may have written the certificate without consulting his records and wrote the dates in accordance with his general recollection as confirmed by what West believed was the original date of illness . West's termination slip shows the last day worked as January 31 , a Sunday. In short, it is not entirely clear that there may not have been a mistake of 1 week in West's testimony and that the Weiss meeting may have been on Friday, January 29, instead of Friday , January 22, with West's treatment by the doctor being from February 1 to 8 instead of January 25 to February 8. The Trial Examiner, however, is not using the matter of the exact dates, aforementioned , as 'a determining factor "-s West's termination is dated February 5. The reason stated thereon Is "for the good of the service." During his illness several employees who worked with him had visited him. West's half-brother was a cook in the hotel during this period and sent the termina- tion slip to West 110 Again West was not sure of the exact date but thought it was February 8. 117 Neither Chefs Ydett nor Young testified nor did Head Chef Ludeman 112 Logan stated that Felkner was the assistant comptroller . "The comptroller is In semi- retirement, actually, and Felkner is officially designated as the assistant comptroller, but he Is performing the duties of the comptroller." 11 Felkner did not testify. 614913-62-vol. 132-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Logan testified that West was terminated on-"February 8" because-"we had-not heard from him since January 24 or 25." Logan said he went to the kitchen on February 16 and asked how he could get in touch with West. He spoke to West's half-brother who told_him West shad been ill. Logan told the half-brother to have West get in touch with Logan,and,to bring a doctor's statement to support his story. West saw Logan on February 18 and the latter said there was talk of another strike, particularly a walkout on Mardi Gras Day, March 1 or 2. West allegedly admitted hearing the same thing. Logan stated that, since West said he still did not feel -well, Logan told him to come back to work when he felt well and to secure a doc- •tor's certificate. It was agreed that West would report for work on February 22, which he did. The doctor's certificate had been mailed to Logan. The testimony of Logan and West was in general agreement as to what transpired .at their meeting on February 18. Since it is clear that West had been terminated on February 5 "for the good of the service," a fact affirmed to West by Felkner and Cohen on February 8, Logan gave no explanation why he sought to get in touch with West thereafter.120 The only incident of significance in this regard, after Feb- ruary 5, was West's unqualified assertion to Felkner on February 8 that he was not a leader of the "gang," that he had been ill, and was not a striker. It is quite likely that this was reported to Logan who then got in touch with West. At their meeting on February 18, Logan, according to West's credited testimony which was not ex- pressly controverted in this :respect by Logan, asked West if he had been sick. Logan said that he had not known this fact. West was told to come back to work but was to submit a doctor's certificate to substantiate his statement that he had been ill.121 While •it is true that West had not communicated with the hotel between January 25 or February 1 (when his wife reported his illness) and February 5, when he was terminated, the Trial Examiner is not persuaded that West was terminated for this reason. West was an employee of 12 years' service. He knew the cooks, chefs, the head chef, and other people in the kitchen department and they knew him. His half-brother was a cook who was working at the hotel in January and February. It is undenied that the last report from West, through 'his wife, was that he would not be in on Monday unless his illness disappeared. If the hotel was uncertain as to whether West was still ill or had quit, it is not easy to conclude that communica- tion with West by telephone, mail, or through other employees, was not entirely feasible and would not have been resorted to in view of West's length of service and position as "number on broiler." " Of course there was no legal obligation that Re- spondent act in the aforementioned manner and no relevant conclusion can be based on such circumstances alone. However, -these circumstances are not in isola- tion. But even if we prescind from the aforementioned circumstances, the uncon- troverted and credited evidence regarding Felkner's remarks to West on February 8 make it clear and it is found that West was terminated on February 5 because he was considered to ,be not only a striker but also a leader among this groups The only tenable explanation for Respondent attributing leadership to West was the fact that he had been spokesman for the group of cooks who asked Weiss for a wage increase on January 22 or 29. Respondent apparently regarded the demand for a wage increase by West and the cooks and the subsequent strike as part and par- cel of the same general union agitation and assumed that West's absence before and on the day of the strike was due more to his leadership "of the gang" than to any continuation of his previously reported illness. Consistent with the foregoing is the date of the termination, February 5, the day after the strike. This was also the date when many strikers, as we have seen,were refused reinstatement by Re- spondent. The subsequent rehiring of West occurred only after he had told Felkner 'that he had been ill and had not been a striker and only after he had expressly so Lo Apparently after West's termination, Weiss asked Logan "4 or 5 times" If Logan could find out where West was "and I [Logan] finally went into the kitchen on the 16th of February' . .'. and I asked how I could locate him. . . . 'ai West testified without contradiction that in his 12 years at' the hotel he had never been told that there was a hotel rule that an- employee who had been sick was obliged to produce a doctor's certificate upon his return. In the past when he had been out sick for periods of 4 or '5 days he reported only to the chef upon his return and had not pro- duced a doctor's certificate West said this was so because the chef knew he was sick and that he'would return 'when he was)well With respect to the February 1960 events, West said he got the doctor's certificate because he had been notified that he had been discharged and he felt it was necessary to'prove that he had been sick and had not been on strike. NEW ORLEANS ROOSEVELT CORPORATION 293 stated to Logan and had proved the fact by a doctor's certificate. Accordingly, it is found that the termination of West on February 5 was violative of Section 8(a)(1) and (3) of the Act. With respect to West, reinstatement and backpay are not. recommended. After his reinstatement to his job on February 22, West apparently voluntarily resigned about the middle of March. Since West felt unable to return to work until Febru- ary 22, it is apparent that even absent his termination on February 5 he would not have been employed from that date to February 22, the date of his reinstatement. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above , occurring in connec- tion with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In the course of this report it has been found that Respondent has engaged in certain unfair labor practices. Because of the large number of persons involved the Trial Examiner has indicated , in conjunction with his findings, the general nature of the remedial action recommended with respect to the persons affected , e.g., rein- statement and backpay. This method was used in order to shorten the length of the instant section since there were variations of remedy with respect to individual persons. These variations might well have entailed an additional enumeration of of names herein if the entire matter of remedy had been passed over until the instant section. The reference to backpay as recommended remedial action in the course of the report means, of course , that Respondent make whole those employees against whom it has discriminated for any losses they may have 'suffered because of Re- spondent's discrimination, by payment to each of them a sum of money equal to the amount he normally would have earned as wages from the date of such discrimi- nation to the date of the offer of reinstatement, or placement on a preferential list, as the case may be, less his net earnings during said period . The backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company.122 Upon the basis of the foregoing findings of fact and conclusionary findings, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Respondent, New Orleans Roosevelt Corporation, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. 3. By terminating the employment of employees and by failing and refusing to reinstate said employees, as found in section III , hereinabove , Respondent has dis- criminated in regard to their hire, tenure, and conditions of employment , thereby discouraging membership in a labor organization or in concerted activity, and has engaged in and is engaging in unfair labor practices within - the meaning of Section 8(a) (3) of the Act. • 4. Respondent has not engaged in unfair labor practices by its terminations of those employees concerning whom , in section III, hereinabove , a recommendation of dismissal of the particular complaint allegation has been made. 5. Respondent by its discriminatory conduct, aforedescribed , which interferes with, restrains, and coerces employees in the exercise of rights guaranteed by Section 7 of the Act,'has engaged in and is engaging in unfair labor practices within the'meaning of Section 8 (a) (I) of the Act. . . 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. • [Recommendations omitted from publication.] . - 90 NLRB 289. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A June 25, 1959, hearing: Parties stipulate that' the employer receives-annual income of $500,000 and that 75 percent of its guests are nonresident in that they are not guests for more than 30 days in any one year. Employer although stipulating as to foregoing does not agree that Board has jurisdiction and moves to dismiss the petition for lack of jurisdiction. Employer indicates agreement with the unit described in the petition. Intervenor states that part-time employees and employees under the contract with the hotel should be included in unit. Employer does not have evidence on hand regarding specific job classifications and departments in the hotel. Hearing adjourned after 1 hour and 23 pages of transcript. No witnesses called. June 30, 1959, hearing: Employer states that because of illness of corporation's president, Weiss, it has been unable to compile information regarding classifications and depart- ments in the hotel but that this matter is being worked upon and is in process of being secured. Attorneys for parties discuss on the record various phrases of the unit. Petitioner introduces exhibit listing hotel job classifications which it states is the unit'sdught. Employer 'states. that, some,classifications on exhibit do not exist at Roosevelt Hotel. Employer states that original unit in the petition is agreeable to it. Employer states that it was never approached about a possible consent election and that it is agreeable to discuss the possibility. Hearing adjourns after 1 hour and 40 minutes and 28 pages of transcript. No witnesses called. July 13, 1959, hearing: Hearing officer inquires if parties have reached agreement on a consent elec- tion during the interval since last hearing. Employer states that it was informed that the two unions had not met to discuss the matter of unit and a possible consent election and therefore the employer saw no point in meeting with just one union. Hearing officer notes that the parties have not agreed to a consent election. It appears that on July 6, 1959 the hearing officer had written to the employer requesting employer produce information regarding job classifications and departments in the hotel and also produce dollar volume figures regarding the employer's purchases from outside the State of Louisiana. In response to hearing officer's question at the hearing, whether the employer has with him the information on classifications and departments, the employer states that the information is being compiled and will be available July 24. Regarding the aforementioned commerce information the employer states that it has no obli- gation to furnish such information since it has previously stipulated the com- merce information that the Board had set forth in its jurisdictional standards. [N.B. It is apparent that the hearing officer was attempting to secure com- merce information bearing upon the Board's legal jurisdiction i e., actual inter- state commerce. Some of the Board's jurisdictional criteria are in terms of dollar volume of business and in themselves do not necessarily establish juris- diction. The Board, however, has refused to assert jurisdiction, although the necessary dollar volume of business exists, where it appears that the business is wholly intrastate or where there is no evidence of any interstate activity.] Petitioner states that if the employer will cooperate with the Board in supply- ing information a satsifactory unit for all concerned can be reached. After some discussion by counsel for the parties the hearing adjourns. There are 26 pages of:transcript . No witnesses called. July 24,1959, hearing: Employer furnishes testimony regarding classifications and departments in the hotel. Parties are in agreement on about 95 percent of the inclusions in and and exclusions from the unit but they disagree about others. Employer, when asked by hearing officer, states that it is unable to state or to stipulate regarding the out-of-State source of the hotel's guests. Following the July 24 hearing the record goes to the Board for decision. In its brief to the Board the Employer deals exclusively with its contention that the Board lacks jurisdiction and states , inter alia: The only evidence having to do with the revenue of the employer was that stipulation-that its gross annual revenue equalled $500 ,000. Whether this CARPENTERS LOCAL UNION 224, ETC. 295 amount of $500,000 was derived entirely from its-intrastate guests, or from its barber shop, or other intrastate facilities , is left to one's imagination . . . can it rightly and legally be concluded that because an employer does $500,000 of business that such business is'i"in" or "affects" intrastate commerce. We think not... . On December 2, 1959, the Board issued an order remanding the record for further hearing for the purpose of adducing evidence to establish legal jurisdiction of the Board. By notice, dated January 29, 1960, the Regional Director of the Board in New Orleans scheduled the remanded hearing for February 10, 1960. The parties received the notice of hearing on February 1, 1960. On the same date, January 29, the Regional Office of the Board issued a subpoena duces tecum to Respondent for the production of certain commerce information . The Regional Director on Febru- ary 4, 1960, rescheduled the hearing from February 10 to February 23. The parties received notice of this postponement on February 5, 1960 . The Regional Director informed Respondent that the postponement was for the purpose of affording Respondent more time to comply with the above-mentioned subpena. By telegram, dated February 23, the hearing was postponed to February 29. The hearing resumed and was concluded on February 29, 1960. At that hearing the Employer stipulated that the hotel in the last 12 months purchased supplies and materials valued in excess of $10,000 either directly or indirectly from outside Louisiana. The petitioner stated at the hearing: I would like to call attention to the Board that the petition filed . was filed April 22, 1959 and we think that we ought to have some action immediately about having a secret ballot election for these people. Board Decision and Direction of Election issued May 6, 1960. The election was held May 25, 1960. Carpenters Local Union #224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO [Peter Kiewit Sons Co.] and Gene L. Falls Ohio Valley Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Car- penters Local Union #224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Gene L. Falls and Peter Kiewit Sons Co., Party to the Contract Raymond International, Inc. and Gene L. Falls Local Union No. 224, United Brotherhood of Carpenters and Joiners of America, AFL-CIO and Gene L. Falls. Cases Nos. ,9-CB-501, 9-CB-621, 9-CA-1523, and 9-CB-515. July 20, 1961 DECISION AND ORDER On July 25, 1960, Trial Examiner James A. Shaw issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents had not engaged in, and were not engaging in any unfair labor practices and recommending that the complaints herein be dis- missed,,, as ..set -forth in the Intermediate Report attached hereto. Thereafter the General Counsel and the Respondents' filed excep- tions to the Intermediate Report and briefs in support thereof. 1 The Respondent Unions also filed a request for oral argument and a motion that the cases be severed and new, separate hearings be ordered on remand. The request for oral 132 NLRB No. 21.