Baker Hotel of Dallas, Inc.

524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD portion of the secondary employers' business which is affected by the alleged boycott .7 If the figures which are most favorable to the exercise of jurisdiction are taken, they still fall short of meeting the $50,000 indirect inflow standard . The General Counsel contends that Jevne expended in the construction on Meadow Lane $23,598.12 on goods and materials originating outside the State of Wisconsin , and that Tetzlafl expended in the construction on Marathon Drive $13,226.93 on goods and materials originating outside the State of Wisconsin . Counsel for the Respondent contends that the figure for Jevne's expenditures should be only $17,796.09. However, even if the General Counsels figures are accepted, the total would be only $36 ,825.05, which is $13,274.95 less than the indirect inflow standard of $50,000 requires. The reason for this disagreement of counsel is that the figures for the material purchases by each of the builders are for the most part not exact. They reflect estimates by the builders made on the basis of general experience, supplemented by conversations which they had with suppliers of the materials . Actually, it is doubtful whether the indirect inflow into all three of the jobsites involved in the present proceeding would equal at least $50,000. Upon the basis of the above findings, and upon the entire record in the case, I hereby make the following: CONCLUSIONS OF LAW 1. Local 111, Local 204, and the Council are labor organizations within the meaning of Section 2(5) of the Act. 2. Local 204, and Robert Cleveland, its agent, have not engaged in"unfair labor practices within the meaning of Section 8(b)(4)(ii )(A) and (B) of the Act. 3. The operations of Warren H. Tetzlaff and Byron Jevne affect commerce within the meaning of Section 2(6) and (7) of the Act. The extent to which such opera- tions affect commerce is not, however, substantial enough under existing jurisdic- tional standards to warrant the assertion of jurisdiction. [Recommendations omitted from publication.] ' See, for Instance , General Drivers, Chauffeurs and Helpers, Local Union No 886, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (James D. O'Dell and H H. Hulme, Jr., d/b/a Ada Transit Mix), 130 NLRB 788. Baker Hotel of Dallas, Inc. and Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO. Case No. 16-CA-13892. November 21, 1961 DECISION AND ORDER On January 17, 1961, Trial Examiner Arthur Leff issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- i In cross-examining Basden, a witness for the General Counsel, the Respondent was furnished a prehearing statement which Basden had given to General Counsel in which 134 NLRB No. 51. 1 BAKER HOTEL OF DALLAS, INC. 525 mediate Report, exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions,' and recommendations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Baker Hotel of Dallas, Inc., Dallas, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : - (a) Discouraging membership in Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization, by discharging or refusing to reinstate employees, or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. she had said that the kitchen attached to the coffee shop was part of the "floor." There- after, the Trial Examiner, on the offer of the General Counsel, admitted Basden's state- went into evidence for the purpose of showing in context that the word "floor" was sometimes used to refer only to the area where waitresses served their customers. The Respondent contends that its right to take advantage of the statement for cross- examination did not confer on the General Counsel the right thereafter to have the state- ment admitted into evidence, and that the Trial Examiner's ruling was erroneous and arbitrary and in itself requires that the case be remanded for further hearing We agree with the Trial Examiner that Basden's prehearing statement was admissible under these circumstances since her credibility, which had been placed in doubt by Respondent's cross- examination, could be properly evaluated only in the light of her complete statement In any event, we are satisfied that Respondent has not been prejudiced by whatever use the Trial Examiner has made of Basden's statement 2 The Respondent contends that the jurisdictional standard for the hotel industry, promulgated in Floridan Hotel of Tampa, Inc, 124 NLRB 261, is invalid This conten- tion is grounded on (1) supposed deficiencies in the Board's interpretation of Hotel Employees Local No 255, Hotel Restaurant Employees and Bartenders International Union, and Hotel and Restaurant Employees and Bartenders International Union, AFL- CIO (Miami Beach Hotel Assn ) v. Leedom, 358 U S. 99; (2) on the absence of evidentiary facts for the standard adopted by the Board ; (3) on the lack of, notice in the Federal Register, as required by the Administrative Procedure Act, for the proposed rulemaking involved in setting the standard; and (4) on the allegation that the Board is not in fact giving consideration to whether the data in a particular case establishes the existence of legal jurisdiction We see no reason to treat these contentions at length here, since items (1), (2), and (4) have been fully considered and disposed of in the majority and concurring opinions of the Floridan Hotel case and in Southwest Hotels, Inc. (Grady Manning Hotel), 126 NLRB 1151. As for item (3), congressional approval for the adop- tion of jurisdictional standards, through the rule of decision rather than through formal rulemaking, is indicated by the adoption of Section 14(c) (1) of the 1959 amendments to the Act. 8 The Respondent has vigorously attacked the conduct of the Trial Examiner at the hearing as biased, prejudiced, arbitrary, and capricious, and his Intermediate Report as inaccurate, misleading, and based on conclusions and inferences unsupported by the record The crucial issue in this case was whether Respondent discharged Vivian Hampton because she favored union organization The conclusion of the Trial Examiner that her prounion sympathy was in fact the motivating force for her discharge is fully supported by the weight of the evidence. We therefore deny the Respondent's request that the case be set for further hearing, or that it be assigned to another Trial Examiner for prepara- tion of a new Intermediate Report, or that the Respondent be granted permission to argue the matter orally before the Board. Upon examination of the record, we are satisfied that the Respondent's allegations of bias and prejudice are wholly witliout warrant. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) ' In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form labor organizations, to join or assist the above- named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to Vivian Hampton immediate and full reinstatement to her former or substantially equivalent position, without prejudice to' her seniority or other rights or privileges, and make her whole for any loss of earnings by reason of the discrimination against her` in the, manner set forth in the section of the Intermediate Report entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social secu- rity payment records, timecards, personnel records and reports, and all' other records necessary to analyze the amount of backpay due and the, right to reinstatement under the terms of this Order. (c) Post at its hotel in Dallas, Texas, copies of the notice attached hereto marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being signed by a representative of the Respondent, be posted by the Re- spondent immediately upon receipt thereof, and be maintained by it- for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps it has, taken to comply herewith. 4In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 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 Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, ' or in any other labor organization, by discharging or refusing to. BAKER HOTEL OF DALLAS, INC. 527 reinstate any of our employees, or in any other manner discrimi- nating against them in regard to their hire or tenure of employ- ment, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization,'to form labor organizations, to join or assist the above-named or any other labor organization, to bargain -collec- tively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Vivian Hampton immediate and full reinstate- ment to' her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of pay suffered as a result of the discrimination against her. All-our employees are free to become, remain, or refrain from be- coming or remaining members of Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. BAKER HOTEL OF DALLAS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed by Hotel & Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, herein called the Union, against Baker Hotel of Dallas, Inc., herein called the Respondent , the General Counsel issued a complaint alleging that the Respondent had engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and ( 3) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The Respondent filed an an- swer denying the commission of the alleged unfair labor practices and denying also the complaint's allegations that it is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. A hearing, at which all parties were represented by counsel, was held before the duly designated Trial Examiner at Dallas, Texas, on October 3, 4, and 5, 1960. At the close of the hearing all parties argued the issues orally on the record. Thereafter, the General Counsel and the Respondent filed briefs with the Trial Examiner. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Texas corporation , operates a hotel , known as The Baker, at Dallas, Texas. The Baker has about 585 guestrooms. Less than 75 percent of its guests stay at the hotel for a month or longer. During the year preceding the date of the issuance of the complaint, a representative annual period , the Respondent's 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gross revenues exceeded $500,000 . During that same annual period , the Respondent purchased and had shipped to its hotel from sources outside the State of Texas goods, equipment, and supplies having a value in excess of $10,000 . In line with established Board authority, and contrary to the contention of the Respondent, it is found that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. See, e.g., Floridan Hotel of Tampa, Inc., 124 NLRB 261. II. THE LABOR ORGANIZATION INVOLVED Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background This case is concerned solely with the Respondent's alleged discriminatory dis- charge-on July 13, 1960-of Vivian Hampton, a waitress employed in the coffee shop of its hotel.' Hampton was employed in 1947, and, except for a 7-month- period in 1957 or 1958 when she was in California, worked for the Respondent continuously until the time of her discharge . The allegation in the Respondent's answer that Hampton was "inefficient" is belied by the testimony of the Respondent's own witnesses show- ing that management had always held her in the highest regard as a waitress. When Fenton Baker, the Respondent's general manager, ate at the coffee shop, Hampton was generally selected as the waitress to serve him. Baker, while testifying, readily conceded that Hampton had always been one of his "favorites" in the coffee shop, and characterized her as an "excellent" waitress. Ida Kirk, the coffee shop manager, referred to Hampton in her testimony as the "mainstay" in the coffee shop. The employees of The Baker have never been represented by a labor organization. On May 30, 1960, the Union launched a campaign to organize the hotel's em- ployees. The Union's campaign quickly came to the notice of management. Be- tween June 1 and 4, 1960, different groups of hotel employees were summoned to General Manager Baker's office to hear an address by him on the subject of the union campaign. The waitress group of which Hampton was part met with Baker on the morning of June 1. Baker informed the employees that he had called them together "to explain how management feels about your joining a union." Reading from a prepared script, Baker stated that there was no truth to "rumors" that the Union had succeeded in organizing employees in other Texas hotels, or that em- ployees who did not sign up in the early stages of organization might find them- selves at a disadvantage later in holding their jobs. Baker assured the employees that as a matter of hotel policy no employee would, and as a matter of law no employee could, be given preferential treatment because he belonged to a union. He particularly underscored that "belonging to a union will never help you hold your job." Baker then went on to emphasize that "Unions can cause strikes, and when they do, wages disappear." He suggested that the employees ask themselves why "total strangers" had suddenly become so interested in their welfare, who they wet e, and what they had done. In conclusion, he stressed that in the past the em- ployees had been free to discuss their problems with management and asked whether the employees wanted "to create a condition whereby you will not have the right to take any of your problems up with anybody in the hotel, but will have to let some paid employee of the Union speak for you." 1 The complaint alleges that Hampton was discharged "for the reason that she joined or assisted -the Union or engaged in other concerted activities for the purpose of collective bargaining or other mutual aid or protection " The answer denies that Hampton was discharged for that reason, and alleges affirmatively. The employee Vivian Hampton was discharged because of ( a) improper performance of her duties, (b) inefficient performance of her duties, (c) Interfering with other employees in the hotel in the proper performance of her duties , (d) creating dis- turbances at her place of employment affecting not only other employees but the guests of the hotel, (e) refusing to accept proper and reasonable discipline, (f) being insubordinate to her supervisors in connection with the carrying out of her duties, (g) failing properly to serve guests of the hotel in her capacity as a waitress of the hotel, and (h) using time during which she was supposed to be carrying on the work of the hotel in carrying on work other than the performance of her proper duties. This employee was discharged for cause for the reasons above named and was in no manner discharged because of any connection she may have had with a Union BAKER HOTEL OF DALLAS, INC. 529 Baker's meetings with the employees disclose, to some degree at least , that the Respondent was opposed to unionization . There was of course , nothing improper in what Baker said or did . The law does not require an employer to be receptive to union organization, and mere opposition to it, though expressed , does not spell out an unfair labor practice. But an employer's attitude toward union organization, while by no means alone conclusive on the issue, is nevertheless a factor not to be ignored in assessing motivation , where, as in this case, motivation is material to a determination of whether or not discharge action has been induced by antiunion considerations. It is for that reason only that reference has been made here to Baker's meetings with the employees. Vivian Hampton had been a member of the Union while employed at another job in California during the period of her absence from The Baker hotel in 1957 or 1958. Soon after the Union made its appearance at the hotel, Hampton rejoined the Union and became an active supporter of its organizational drive. On June 3, 1960, Hampton attended a union meeting at which she obtained designation cards and union literature . Thereafter, during the remaining period of her employment, she distributed cards to coffee shop employees , soliciting their membership.2 She also in other ways openly espoused the cause of the Union, on one occasion at least during working hours, as will hereinafter more fully appear. The Respondent has never had a specific rule prohibiting union or other solicita- tion during working time, at least none that it has published or otherwise communi- cated to its employees generally . The Respondent in its coffee shop does have a rule-not formalized but generally understood-that employees while on duty are to give their full time and attention to their work and are not to engage in unrelated conversations or activities . But that is a rule that has been as much honored by its breach as by its observance . Particularly during periods when work is slow, waitresses commonly pass time by talking to each other or to kitchen employees about miscellaneous subjects having no connection with the performance of their work. The record shows without dispute that members of supervision have not only been aware of this, but have themselves frequently participated during duty time in social conversations with waitresses and other employees . That is not to suggest that the Respondent's coffee shop is loosely managed or inefficiently run; it is not. Supervision has invoked the rule against talking on those occasions where the talk- ing has become unduly noisy or has otherwise tended to become disturbing to guests or disruptive of efficient service. Such occasions , the record shows, have been by no means infrequent . But even where the rule has been invoked , its enforcement has been limited to admonishing the offending employees to quiet down or get on with their work ; the mere violation of the rule, without more, has never been re- garded as an offense so serious as to require the imposition of disciplinary sanctions. With the appearance of the Union , the organizational campaign , as might be ex- pected, became a matter of -general interest and a topic of discussion among em- ployees in the hotel. Uncontradicted and credited testimony shows that the Union was talked about openly by waitresses and other employees in the coffe shop, both on and off the floor. Only one employee, however, was specifically ordered not to talk about the Union-and that employee was Vivian Hampton . But that is a subject which fits more appropriately within the next subsection of this report. B. Events leading to the discharge of Hampton On or about June 3, 1960, Hampton had a discussion about the Union with several other waitresses in the dressing - lounge of the coffee shop. Ida Kirk, the coffee shop manager, was present at the time. Hampton mentioned that she had been a union member while in California and also disclosed that she was 100 percent for the Union. Kirk indicated her opposition to Hampton 's views, declaring that she did not believe in unions. Later, as they left the restroom to return to duty on the floor, Kirk-as appears from her account-told Hampton privately, while patting her affectionately, "Now Vivian , you can think what you want and do as you want, but please do not discuss unions on the floor." Kirk admittedly did not similarly instruct any other employee under her super- vision not to discuss the Union . Asked at the hearing why she had singled out Hampton, Kirk testified it was: because Vivian and I were talking that day and , as I told you, Vivian was the mainstay of the Coffee Shop . I felt like if-Vivian was the leader, if she didn't talk we had it pretty well down. Hampton testified that she distributed cards only in the waitresses ' dressing room and while off duty, and there is no credible evidence to the contrary. 630849-62-vol. 134-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later, in further elaboration of the same point, Kirk testified as follows: TRIAL EXAMINER: I ,am not quite clear why did you ask Vivian and not .the other girls? The WITNESS: Because I think I explained, she was more or less the leader in the Coffee Shop. I felt like if Vivian didn't discuss it, the others wouldn't and that she could help me a lot in holding the Coffee Shop together. We had depended on Vivian. TRIAL EXAMINER: What do you mean by holding the Coffee Shop together? The WITNESS: Well, it certainly wasn't together right then. TRIAL EXAMINER: What way was it apart? The WITNESS: You can't work half union girls and half other girls and everybody doing things they are not supposed to do. TRIAL EXAMINER: Were you anxious to keep the Coffee Shop nonunion? The WITNESS: No, I was just anxious to keep the Coffee Shop cooperative and running like we have always run it with everyone doing their job. TRIAL EXAMINER: Up to that time, was there any evidence of a division among the employees prounion or antiunion? The WITNESS: What do you mean? TRIAL EXAMINER: Were the girls divided on the union question? • The WITNESS: No, up until the 8th [of June] I didn't know a lot of girls had joined. The specific events which, according to the Respondent, gave rise to its decision to discharge Hampton occurred on Sunday, June 5, 1960. That day, Hampton reported for work about 8:30 a.m. Business in the coffee shop was rather slow, as is normal on Sundays in the summer months. As is also normal, work was particularly slow between breakfast and the luncheon business, which on Sundays usually begins about 1 p.m. Before Hampton's arrival that morning, the Union had been a topic of discussion in the coffee shop kitchen. The discussion was promoted principally by Ralph Landin, the head cook, who was urging other employees to stay out of the Union 3 After Hampton began work, Landin continued from time to time to engage in antiunion remarks, addressing himself generally to other kitchen employees as well as to waitresses whose work frequently carried them into the kitchen. Hampton, when in the kitchen, at times sought to counter Landin's antiunion remarks by mentioning benefits employees might expect to gain through unionization. Hampton and Landin continued to exchange comments about the Union off and on throughout the morning. At one point, Hampton exhibited a union booklet to Isaac Pina, the broiler cook, who was not occupied with work at the time, and asked Pina to read one page of the booklet, stating that she would more fully discuss with him after work the benefits the Union had to offer. Later in the day, about 12 or 12:30, Hampton took particular exception to certain remarks Landin had addressed to Negro kitchen employees to the effect that the Union would practice racial segrega- tion, do them no good, and only cause them to lose their bonuses and possibly their jobs. This gave rise to a heated discussion between Hampton and Landin on the subject at issue, described by Hampton as a "fast and furious" exchange of words In the course of the argument, Hampton at one point characterized Landin as "yellow" and a "coward" for espousing the position he took. The argument lasted several minutes. The findings made up to this point concerning the nature of the argument between Hampton and Landin, and what led to it, are based upon uncontradicted and credited testimony of Hampton, as supplemented and in part corroborated by testimony of waitresses Zora Basden (still employed by the Respondent) and Carrie B. Trent, both of whom, Basden particularly, impressed me as credible witnesses. The Respondent called but one witness on this phase of the case-Nina Cobb, the assistant manager of the coffee shop, who, in the absence of Kirk, had been in charge that Sunday. Cobb did not profess to have more than hearsay knowledge of the origin or nature of the argument which the General Counsel's witnesses conceded had occurred that day. She was called to support the Respondent's contention that Hampton by her conduct that day had "created a disturbance" in the coffee shop for which Hampton was later discharged. Cobb testified that about 9:30 or 10 a.m. that Sunday morning, while temporarily stationed at the cashier's desk in the coffee shop, she heard "several" loud voices 3 Counsel for the Union sought at the hearing to establish that Landin was a super- visory employee within the meaning of the Act The evidence adduced falls short, how- ever, of sustaining a finding to that effect. BAKER HOTEL OF DALLAS, INC. 531 emanating from the kitchen, Hampton's among them. Occurrences of that kind were not unusual. She left the cashier's desk to go to the kitchen to stop the noise, just as she had frequently had occasion to do in the past under similar circumstances. In the kitchen, she found Hampton. and several others simultaneously talking with raised voices. She held up her hand and said "Shhh," addressing herself to every- one. But Hampton did not heed her. Neither did Landin, who continued "shouting" at Hampton telling Hampton to get out and "quit talking about it " Cobb asked, "What is the matter?" Hampton said, "I can't talk any more to those sons-of- bitches," and walked toward the end of the coffee shop. Landin, in response to Hampton's remark, declared, "Lady, nobody is going to talk to me like that." Cobb then told the waitresses to return to their stations. Hampton defiantly exclaimed she would do as she pleased, but nevertheless returned to her station along with the other waitresses as directed. It is noted that Cobb stated this occurred about 9:30 or 10 a.m , whereas the Gen- eral Counsel's witnesses fixed the time of Hampton's intense argument with Landin that day about 12:30 p.m. When asked on cross-examination whether she heard a commotion in the kitchen about 12:30 p in., Cobb testified that she did not herself hear it, or go to the kitchen at that time, but was told by others that it was going on. Hampton conceded that both she and Landin were talking in voices louder than usual during their argument about noon. But she denied that there was any shouting or yelling or that their voices were so loud as to carry into the dining area of the coffee shop. Other witnesses for the General Counsel gave corroborating testimony. Hampton further testified that this was the only occasion during the day when there was any loud exchange between her and Landin Hampton had no recollection of seeing Cobb in the kitchen at all that day; she flatly denied that Cobb at any time told her to hush, and was positive, moreover, that she did not speak to Cobb, or Cobb to her, as Cobb testified Although readily conceding that she called Landin "yellow" and a "coward" in the course of their argument, Hampton denied that she had at any time used profanity as testified to by Cobb. None of the General Coun- sel's other witnesses had any recollection of any incident such as Cobb described in her testimony. Cobb's testimony is not corroborated by any other witness. Although Cobb testified generally that others besides Hampton, Landin, and herself were present in the kitchen at the time, she was unable, when requested on cross-examination, to identify by name any of them who might be in a position to support her testimony. Landin, at least, was available to the Respondent as a witness. But the Respondent neither called him nor explained its failure to do so.4 I regard it as significant that at one point of her cross-examination, when her mind was focused on something else, Cobb testified, "Ralph [Landin] wasn't aware I was in the Coffee Shop [kitchen] at the time, but [later] told me he was sorry it happened." I regard it as significant, too, that in a statement later given to the Respondent, Landin makes no reference to the specific events testified to by Cobb.5 Cobb herself did not impress me as a reliable witness. Her overall testimony is replete with inconsistencies and evasions, and in a number of details is at variance with a statement she later gave the Respondent. Hampton impressed me by and large as a more straightforward witness. For all the reasons stated above, I reject Cobb's testimony as not credible, to the extent that it is inconsistent with that of the General Counsel's witnesses. At the same time, however, I consider it entirely likely that Hampton's and Landin's raised voices during the course of their argument were loud enough to have carried over to at least portions of the coffee shop dining area, notwithstanding Hampton's testimony to the contrary. As the record shows, the coffee shop's kitchen immediately adjoins the coffee shop dining area; there are two openings with no doors between the kitchen and the dining area; and there is only a partial wall separation between the two. It is not necessary for one to shout in the kitchen in order to be heard at least in the near sections of the dining area. To continue with the account of what occurred: Ida Kirk, the coffee shop man- ager, did not work on Sunday, June 5. The next day Cobb reported to her that 4 Landin was still employed by the Respondent at the time of the hearing As the record shows, he was present in the hearing room, seated among the Respondent's wit- nesses, at least on the opening day of the hearing. I In that connection, it is also noteworthy that although Landin does make reference in his statement to having been called "yellow" by Hampton, he makes no mention of the more scurrilous epithet which Cobb testified Hampton uttered, an epithet that I do not think lie would have readily forgotten, while remembering the other, if in fact it had been spoken 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during her absence Hampton and Landin had had an argument in the kitchen. Kirk at that time apparently did not regard the reported occurrence as a matter serious enough to require investigation, let alone disciplinary action. So far as appears, she did not so much as reprimand Hampton. Nor did she report the matter to higher management. Nothing further of consequence occurred until Wednesday, June 8. The waitresses noticed that day that Kirk was visibly disturbed, close to tears, and unusually cool toward some of them, including Hampton. Kirk agreed while testifying that she was "real upset." Her reason: She felt the "girls had sold [her] short" by going "behind her back" to join the Union. Until that morning, further testified Kirk, she had not known that a lot of girls in the coffee shop had joined. She knew the girls had been talking about it, but had thought they would tell her before they did anything. The true situation, according to Kirk, first came to her notice that morning when a waitress "accidentally" told her what was going on; she had then begun listening and had also made inquiries of a couple of older girls who had confirmed their own membership in the Union. Worried about Kirk, Hampton and two other waitresses-Zora Basden and Peggy Vanlandingham-approached Kirk that morning to inquire what was wrong. Kirk told them she felt friendless, and expressed her hurt and disappointment that -the girls in the coffee shop whom she had theretofore mistakenly supposed to be her friends had joined the Union. Kirk charged Hampton with being primarily responsible for organizing the waitresses. When Hampton disclaimed such responsi- bility, Kirk took issue with her, pointing as proof to the argument about the Union Hampton had had with Landin the previous Sunday, after Kirk had asked her not to discuss the Union on the floor. Kirk went on to declare in effect that the action of the girls in joining the Union was a reflection on her managerial ability, stating that it would not have happened if the former manager was still there .6 She said that General Manager Baker had told her that hers was the only department in the hotel that had gone union and that this had put her in a "stupid" position, making it appear that she could not control the girls. Kirk stated, too, that Baker also was very disappointed in Hampton. Hampton and the others sought to persuade Kirk they were still her friends. They assured her that the union organization at the coffee shop had nothing to do with her management and would have happened just the same no matter who the manager had been. As evidence of their sincerity, Hampton and Basden volunteered to see Baker to help clear Kirk of any blame Baker might have placed on her. Kirk asked both of them to wait in the dressing room after work until they heard from her. Later, Kirk called the dressing room and told Basden to have Hampton come up to Baker's office at once. When Basden asked if Baker also wanted to see her, Kirk said not then, but that he might later. Kirk was already in Baker's office when Hampton arrived. Baker asked Hampton why she wanted to see him. Hampton said that Kirk appeared to be upset about the Union, and that she wanted to speak to him on Kirk's behalf. She told Baker that Kirk should not be blamed for what was going on in the coffee shop. Hampton then told Baker that Kirk had instructed her not to talk about the Union on the floor She had nevertheless done so, she added, on one occasion only, when she had an argument in the kitchen with Landin who had made her mad by saying certain things about the Union which were not true and which she therefore felt impelled to correct. Hampton then started to tell Baker that she had worked under union conditions in California and believed in unions, but Baker cut her off, saying he did not want to discuss unions with her. Baker at that time expressed no criticism of Hampton for having engaged in an argument with Landin. He simply told Hampton that he was not blaming Kirk for anything, and amiably ended the interview by thanking Hampton for coming to see him. Baker testified that he was not aware of Hampton's union activities, or of her argument with Landin, until Hampton's visit to his office on June 8. Kirk, as appears from her testimony, informed Baker sometime that same day after she had gone "upstairs" to Baker's office, what she had learned that morning about the extent of union organization in the coffee shop. Whether this was before or after Hamp- ton's visit to Baker does not clearly appear. As Baker's testimony reveals, Kirk did not then at at any other time tell him that Hampton, was causing disturbances or not performing her work as she should; nor did Baker question her on that subject. e Kirk had been promoted to the manager's position on April 29, 1960. She had previ- ously been the assistant manager for many years BAKER HOTEL OF DALLAS, INC. 533 Not long after Hampton's visit to Baker's office on June 8, probably the same day, Baker consulted his attorney as to what should be done about Hampton.? Thereafter, Baker started an "investigation" concerning Hampton's activities. As one step in his "investigation," seemingly the first, Baker,on June 10, 1960, summoned Hampton to his office. Present there besides Baker and his secretary (Dorothy Peoples) were Kirk and Raymond Hall, the hotel's resident manager. The meeting was arranged, Baker testified, at the suggestion of his attorney for the pur- pose of making a record of what Hampton had told him when at his office on June 8. Before Hampton's arrival, Baker had prepared a typewritten statement setting out his version of how his earlier meeting with Hampton and Kirk had come about and what had been said on that occasion. Baker showed the statement to Hampton and asked her to sign it if she found it correct. Hampton, after reading the statement, questioned its accuracy in several respects. Baker then had his secretary rewrite the statement with deletions or revisions of the questioned portions. As rewritten, the statement was substantially in accord with the findings of fact made above concerning what was said at the meeting of June 8. When shown the rewritten statement, Hamp- ton admitted that the facts stated therein were now true, but still refused to sign it .8 During the meeting, Hampton tried to tell Baker in detail her version of her dispute with Landin on Sunday, June 5. But Baker refused to listen, explaining that he wanted only to obtain a record of her conversation with him on June 8; that he did not want to hear anything not said that day. After Hampton left, Baker added to the revised typewritten statement a postscript stating that Hampton had acknowledged the truth of the facts therein set out, but had nevertheless refused to affix her signature thereto. The revised statement was then signed by Baker, Hall, Peoples, and Kirk. In addition to the statement referred to above, Baker obtained written statements from a number of others. Three of them were produced-signed by Kirk, Cobb, and Landin, respectively .9 Baker was unable to fix the time when they were requested or obtained more definitely than sometime between June 8 and 13. Kirk's statement simply recites that she told Hampton on June 2 not to discuss the Union on the floor. Cobb's states in substance that (1) on June 3, Hampton approached Cobb while both were on duty and asked her to attend a union meeting that evening; 10 (2) on Sunday, June 5, Hampton had (a) become "vehement" in talking to other waitresses and busboys on the floor, (b) started a discussion with the kitchen staff, which led to loud conversations audible from the coffee shop, prompting Cobb to go to the kitchen where she found Landin "trying to quieten" Hampton, while Hampton kept shouting and directing profanity at Landin, and (c) stated to Cobb, after Cobb had told her to hush and get out of the kitchen, that she would do as she pleased; 11 (3) on June 6, Cobb had observed Hampton while on duty giving out union cards to the girls; 12 and (4) on June 9 a waitress (Helen Gullat) had told Cobb that Hampton had "bawled" her out several days earlier for speaking to Kirk about a matter related to union organization.13 Landin's statement alone is confined to events on June 5. It sets Baker testified that be spoke to his attorney before doing anything himself because be wanted to "lean over backwards" to avoid an unfair labor practice. 8 Hampton testified that she had no recollection of stating that the revised statement was correct However, Baker, Hall, Peoples, and Kirk all so testified, and I credit their testimony in that respect O These statements were admitted in evidence with the understanding that they were not to be considered for the purpose of establishing the truth of their contents. 30 At the hearing, Cobb testified to the same effect, without specific denial by Hampton 11 Cobb's testimony at the hearing concerning the June 5 occurrence has been con- sidered and discredited above. In addition the following is noted- (1) Cobb in her testimony made no reference at all to any "vehement" talking by Hampton to busboys and waitresses, nor did the Respondent otherwise attempt to establish that as a fact. (2) Though Cobb stated that Hampton had "started" the discussion, she conceded at the hearing that she had no personal knowledge of this. Her testimony as to the source of her information was both evasive and contradictory. (3) Cobb's statement that Landin was simply "trying to quieten" Hampton is inconsistent with her testimony at the hearing, as reported above. Moreover, Cobb testified that she reported to Kirk that Landin was yelling at Hampton and that she told Baker orally (after her statement was submitted) how angry Landin was at the time 22 Cobb's testimony at the hearing reveals that this was simply surmise on Cobb's part. Hampton denied that she did, and Bea Trent's credited testimony supports Hampton's denial i3 At the hearing the Respondent attempted to establish the "bawling out" incident through Cobb, but her testimony was excluded as hearsay. ,534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -forth that Hampton that day had discussed union activities on and off while she was in the kitchen ; that on one occasion after observing Hampton speaking to some Negro employees, he had told the employees not to believe anything Hampton said, that the Union would only take their money and do nothing for them; that Hampton had said he was "yellow"; and that an argument had ensued between the two, with loud talking that could be heard in the coffee shop.14 Baker testified that he was prompted to start his investigation because Hampton had told him she had had an argument with Landin. His original purpose, he would have it believed, was simply to find out what "went on down there" on June 5. On all the evidence, I do not believe that to be so. Baker's own testimony shows that before starting his investigation, he consulted his attorney as to what might be done about Hampton. Baker was aware when he started his investigation that Landin was a party to whatever occurred on June 5. Yet he admitted that he did not ask anyone to give him a statement concerning Landin's conduct; his investigation was restricted to Hampton's activities. Nor was Baker interested in obtaining any information from Hampton beyond what she had admitted to him on June 8. This is evidenced in part by his refusal on June 10 to hear what she wanted to add about the occurrence; in part by his failure to confront her with, and give her an opportunity to contradict or explain, the accusations that had been made against her by others. Moreover, from the contents of the statements which Baker obtained and which are in evidence, it is quite clear that his primary objective was broader than he was willing to concede. Thus, the statement he obtained from Kirk made no reference at all to the kitchen incident.15 Cobb's statement covers it only in part, referring also to union activities which in her statement she asserts Hampton engaged in during duty hours on June 3, 6, and 9.16 All of this reflects that Baker was primarily guided by a purpose other than a bona fide desire to ascertain what occurred on June 5. Rather, it reflects that before the investigation was even begun, Baker had already determined, at least ten- tatively, to get rid of Hampton and that the investigation was conducted with the fixed purpose of obtaining and recording evidence which might be used, if later needed in an unfair labor practice proceeding, to support and justify the contemplated discharge of Hampton. Indeed, Baker's response to one question by the Trial Exam- iner appears to suggest as much.17 It would appear from the contents of the state- ments obtained, as well as from other evidence to be adverted to below, that the primary ground on which the Respondent then hoped to support the discharge was that Hampton, in disobedience of Kirk's instructions, had carried on union activities on company time, a ground which, I believe, the Respondent then sincerely thought would provide a lawful basis for such action, although, as will appear below, the Respondent now rests its defense primarily on another ground. As stated, Hampton was discharged on June 13, 1960, more than a week after her argument with Landin in the kitchen. The discharge was effected by Coffee Shop Manager Kirk. Reading from a written statement that had been previously dictated to her by Baker, Kirk told Hampton: I am letting you go, Vivian, first because you have disobeyed orders about carrying on union business while on duty. Second-for creating disturbances while on duty. Third-interfering with other employees in the performance of their work while on duty. Fourth-and in general failed to do the job as you are supposed to do it. Although the statement Kirk read professes otherwise, it is now conceded that Kirk had nothing to do with the discharge decision. Both Baker and Kirk testified that the decision was made solely by Baker and without any recommendation by Kirk, the department head. The Respondent has 600 employees at its hotel. Baker, 14 As noted above, the Respondent did not call Landin as a witness, nor did it other- wise attempt to substantiate the truth of Landin's statement to the extent that it is inconsistent with record evidence. "Kirk testified that in preparing her statement she wrote down what Baker asked her to. 10I find implausible, and do not credit, Cobb's testimony that Baker asked her only for a statement of what happened on June 5 and indicated no interest in anything else, but that she nevertheless voluntarily threw in reference to the other matters referied to in her statement. 17 Testimony is as follows: Q. What were you trying to do 9 Were you trying to determine at that time whether Vivian [Hampton] had committed a dischargeable offense? A Yes, sir. BAKER HOTEL OF DALLAS, INC. 535 as general manager, normally does not concern himself directly with decisions as to personnel action, but leaves such decisions to his department heads who do all the hiring and firing within their respective departments , and have full responsibility to make and execute such decisions . Baker testified, however, that on June 1, 1960, immediately after his general meeting with the waitresses that day, he instructed Kirk not to discharge any employee without first taking up the matter with him. He did so, he testified, because the Respondent was "leaning over backwards" not to get itself involved in unfair labor practice charges. As appears from Baker's testi- mony, other department heads were not given similar instructions until June 20, 1960. Baker's testimony as to why Kirk alone among the department heads was singled out for special instructions on June 1 was not entirely convincing .18 In any event, accept- ing Baker's testimony that Kirk was required to clear discharge action with him, this does not alone explain why he bypassed her completely in the case of Hampton's discharge. Baker's own testimony shows that even under his instructions , Kirk not only retained full power to take disciplinary measures short of discharge, but was still'expected to report and consult with him even on those employee infractions that might involve discharge sanctions . Moreover, the record shows that in the case of another employee discharged later that month, who was apparently not involved in union activities , Baker, although consulted , left the ultimate discharge decision to Kirk in accordance with usual practice. C. Consideration of the Respondent's defenses; analysis; and concluding findings To clarify precisely what is here involved, it is perhaps best to begin by clearing away some of the underbrush. The Respondent's answer alleges affirmatively some seven reasons for Hampton's discharge. 19 Included among them , for example, is an allegation that Hampton was an inefficient employee, an allegation directly at odds with Baker's own characterization of her at the hearing as an "excellent waitress." All the reasons alleged in the answer need not be here considered. To the extent that such reasons exceed the ones stated in Hampton 's notice of discharge, they may fairly be viewed as afterthoughts that had no significant bearing on the Respondent's actual discharge decision . With this the Respondent appears to concur, for the argument it makes in its brief does not go outside the reasons given Hampton at the time of her discharge. Of the four grounds stated to Hampton, the first-disobedience of "orders about carrying on union business while on duty"-does have factual support in the record, though perhaps not precisely in the terms stated . The record shows clearly enough that Hampton was instructed by Kirk not to discuss the Union while on duty, but nevertheless did so in her conversations with Landin and others in the kitchen on June 5 .20 But that of course does not dispose of the case . Whether Hampton's violation of Kirk's instruction was a controlling reason for the discharge , and, if so, whether in the particular circumstances of this case it provided a legitimate basis for such action, are separate questions to which I shall come later. As for the second stated ground-"creating disturbances while on duty"-the record shows only that Hampton , on one occasion, had a somewhat heated argument about the Union with Landin in the kitchen, an argument for which Landin, even if he did not by his prior conduct provoke it, must at least share blame. Whether that incident may properly be characterized as a "disturbance" is of course a matter of definition. The incident must be appraised not by the label assigned to it, but in terms of what actually occurred. As to that, the facts, as found, have been set out Is Baker testified at one point that he could think of no particular reason for singling out Kirk, except that he had had a meeting with the waitresses that day But, as his own testimony shows, he also had similar meetings at that time with employees of all other departments. At another point he gave as his reason, "We had more [ union] activity, I think, in the Coffee Shop situation " But from other evidence it appears that the coffee shop activity did not develop until sometime subsequent to June 1. 19 See footnote 1, above. 10 Counsel for the Union argues that Hampton did not actually contravene Kirk's In- struction He points to the fact that the precise instruction was not to discuss the Union "on the floor," and that instruction, he says, may not be construed as extending to the kitchen There is evidence that the term "floor" is sometimes referred to by coffee shop employees to distinguish the dining area from its kitchen But there is also evi- dence that in other contexts the term "floor" is used to designate the entire working area. Contrary to the Union's argument, it is apparent that Hampton understood "floor," in the context used by Kirk, to include the kitchen Hampton's statement to Baker on June 8 is the clearest proof of this. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above. It need only be noted here that the "disturbance," if such it was, did not nearly approach the magnitude the Respondent would assign to it, Cobb's testimony (which has been discredited) to the contrary. The basic question of course is whether the kitchen incident was the real reason for the discharge, as the Respondent urges, or was simply used as a pretext, as a cover for action in truth motivated by other and unlawful considerations, as the General Counsel contends. That also is a question to which I shall come later. As for the third stated ground-interfering with the work of other employees- there is no record evidence other than the uncontradicted testimony of the General Counsel's witnesses that there was no such interference. The Respondent, as appears from its brief, would have me infer interference from the fact that Hampton engaged in "bickering" with Landin in the kitchen on Sunday, June 5. But if, contrary to the testimony adduced by the General Counsel, this actually resulted in work interference, the Respondent had the means at its disposal to prove it through witnesses avail- able to it-Landin, for example. Having nevertheless failed to avail itself of that opportunity, the Respondent is scarcely in a position to ask for -a finding based on inference opposed to uncontradicted testimony. At any rate, the Respondent's third ground, even if the Respondent's suggested inference were accepted, would add little, if anything, to what the Respondent has already covered by its second ground, and its validity must be assessed by the same considerations. As for the fourth stated ground-failure "in general-to do the job as you are supposed to do it"-it need only be noted that Baker conceded while testifying that he had no information when he decided to fire Hampton that she was an unsatisfactory worker; indeed, he expressly admitted that she was an "excellent" waitress. The Respondent in its brief suggests that the fourth reason relates to Hampton's activities in "carrying on union activities" in the coffee shop on June 5. If so, this would be no more than a recapitulation of the first and second aeasons assigned in the dis- charge notification?' The issues are further narrowed by another consideration. Although Hampton's union activities while on duty was cited in her discharge notification as the first zeason for her discharge, the Respondent has now relegated that ground to a position of subordinate importance, if, indeed, it has not abandoned it altogether. Baker testified that if all Hampton had done was to solicit employees to join the Union, though such solicitation had been conducted on company time, and if "there had been no disturbance or anything of that kind," she would still be working at the hotel. He would not, he said, have discharged Hampton simply for soliciting on company time unless "she had continued it after she had been warned the second time, at least." "The main thing in [his] mind" when he effected the discharge, Baker added, was that "Hampton had created this disturbance." The Respondent in its brief stresses Baker's testimony in the respects just noted, and, on the basis of it, empha- sizes that its basic position in this case is, in the words of its brief, "That the primary and controlling reason for the discharge of Mrs. Hampton was the disturbance which she created on June 5." as a The Respondent in its brief also adverts to testimony in the record, based on an analysis of customers checks, showing that on the morning of June 5 Hampton served fewer guests than most of the other waitresses working that day The record also shows, however, that Hampton came in late that morning and worked 2 hours less than most of the other waitresses. Moreover, it is conceded that the analysis of the relative number of guests served was not prepared or made known to Baker until shortly prior to the commencement of the hearing. It is evident therefore that the information contained in the analysis could not have influenced Baker's discharge decision. 22 The Respondent contends that, in determining the validity of its discharge action, the "disturbance" should be assessed in the light of the information which it then had-as reflected primarily by the written statements in its possession rather than on the basis of the facts as they may now be found established by the record I do not agree The Respondent does not dispute, indeed it asserts, that the "disturbance" was related to and an outgrowth of union activities in which Hampton was then engaged, of which it was aware at the time of the discharge, and for which-it now says-Hampton would not have been discharged were it not also for the "disturbance " The law is clear that under such circumstances an employer is not immunized from liability for an otherwise unlawful discharge merely because he may have acted, though in good faith, on the strength of erroneous information or a mistaken belief as to what actually occurred See, e g., Cusano d/b/a American Shuffleboard Co v N L R B , 190 F 2d 898, 902 (C A. 3) ; Troy C. Friend, d/b/a Friend Lumber Company, 121 NLRB 62, 63; Jackson Tile Manufacturing Company, 124 NLRB 218, 235, and cases there cited. However, even if I were to accept the Respondent's contention, it would not alter the conclusion I reach BAKER HOTEL OF DALLAS, INC. 537 The critical factual issue, then, boils down to this: Absent Hampton's advocacy and support of the Union, would the Respondent have discharged her because of her involvement in the kitchen incident? Stated differently: Was the asserted "disturb- ance" on June 5, as found above to have occurred that day, merely a pretext for a discharge in fact bottomed on antiunion or other unlawful considerations? On all the record, I am persuaded that it was-and this largely for the reasons that follow: First: As found above, commotions in the coffee shop kitchen of one kind or an- other are not uncommon. Though violative of a company rule, infractions of the rule have been met in the past only by admonitions to cease. The Respondent at the hearing was unable to point to any other instance where a coffee shop employee was fired or otherwise disciplined solely for causing a disturbance or engaging in an argument 23 Kirk testified that as a rule waitresses were not discharged for infrac- tions "unless they really do something that's real bad, and usually, sometimes, if its not too bad, why we give them a chance to come back." It is quite clear that at the time of the occurrence in question the coffee shop management did not consider Hampton's argument with Landin as a disturbance so serious in nature as to require disciplinary action; for Hampton was not so much as reprimanded for it, either by Cobb who was in charge that day, or by Kirk when she learned of it the following morning. It was not until several days later, after the Respondent had learned that the coffee shop was a center of union organization, that Hampton's (but not Landin's) participation in the kitchen argument became a matter of special interest,to the Respondent. Hampton, until her leadership role in union organiza- tion of the coffee shop had become known or suspected, had been considered not only an excellent waitress, but the "mainstay" of the coffee shop. So far as appears, she had never been involved in any other incident that might even be loosely char- acterized as a disturbance. In the light of all the foregoing considerations, among others, I am unable to believe that under normal circumstances, and absent hostility toward Hampton because of her union activities, the Respondent would have dis- charged so highly regarded a waitress, after 13 years' service, simply on the basis of a single incident such as occurred on June 5. Second: ' On the basis of evidence and for reasons earlier adverted to, I am per- suaded that Baker, when he first consulted his attorney as to what might be done about Hampton, had already at least tentatively determined to get rid of Hampton. At that time Baker had recently become aware that (1) Hampton was actively in- terested in union organization ; (2) union organization had achieved substantial suc- cess in the coffee shop, more so than in any other department of the hotel; and (3) Hampton by her own admission, in contravention of Kirk's instruction not to discuss the Union on the floor, had taken the Union's side in an argument with Landin while both were on duty. Up to that time, however, Baker had not been told by anyone that the Sunday kitchen argument was of such a character as to amount to a serious disturbance. If Baker inferred the possibility of such a dis- turbance from Hampton's admission to him that there had been an argument, he gave no indication of it. Surely, that aspect of the occurrence could not then have been the significant object of his concern. For he did not so much as question Kirk about any possible disturbance, much less solicit her recommendation as to what ought be done, though Kirk was the department head in whom Baker normally reposed re- sponsibility for making judgments as to the need of disciplinary action within her department. As has been found above, the evident purpose of the "investigation" was to document a case against Hampton that would stand up in a possible unfair labor practice proceeding. I do not suggest that this was wrong in itself. The point I make on the basis of what has been said above is simply this: Since Baker, when he consulted his attorney and started his "investigation," had no specific information that Hampton had "created a disturbance," his initial determination to get rid of Hampton must have been prompted by some other consideration. And I think it fair to infer that that determination could only have been motivated by concern over one or more of the items of information, outlined above, which were then already in below, for the reason to he stated, that the Respondent's hostility to Hampton' s union activities and not the asserted disturbance, was the real motivating reason for the discharge 23 On the other hand, the record shows that on one occasion, the night manager slapped the cashier on the coffee shoe floor in full view of the guests Both were sent to Baker's office But neither was discharged There is also evidence that on another occasion-in late June 1960-a waitress, Kav Stewart, had a loud argument in the kitchen with a cook. Kirk came in and told them to stop the argument, but neither employee was disciplined for it. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Baker's possession, not by information he acquired later. Moreover, as found above, the nature of the "investigation" thereafter conducted belies the Respondent's present claim that it was primarily concerned about the disturbance, and not about Hampton's union activities, not even those on duty time. Third: The record shows clearly enough that the Respondent was opposed to union organization of its employees, disturbed over the progress the Union was making in the coffee shop, and resentful of Hampton whom it believed to be principally re- sponsible for the organization of the coffee shop employees. This is evidenced by (a) the speeches Baker made at the outset of the Union' s campaign to various em- ployee groups; (b) Kirk's disturbed reaction when she learned on June 8 of the progress the Union had made in her department, a reaction which I infer from all the circumstances of this case also reflected the attitude of higher management; (c) Kirk's statement that same day to Hampton and other waitresses that Baker had told her the coffe shop was the only department in the hotel that had gone union, and her evident concern about it, a concern which I also infer and find reflected the attitude of higher mangagement ; and (d) Kirk's accusation directed to Hampton that Hampton was primarily responsible for organizing the waitresses, as well as her further comment to the effect that both she and Baker were disappointed in Hampton. Fourth: The record shows that Landin if he did not provoke it, was at least equally to blame for the occurrence of June 5. Certainly, Baker had no reason to suppose otherwise from the information he had at the time he first consulted his attorney about Hampton and instituted his investigation of Hampton's, but not Landin's, activities with a view toward discharge. The disparate treatment accorded the two provides the most cogent evidence that the Respondent was more concerned about Hampton's support and advocacy of the Union than about any disturbance that might have resulted from Hampton' s argument with Landin. On all the evidence, I am convinced and find that Hampton's union activities weighed more heavily in the Respondent's decision to discharge her than did the asserted disturbance, and, but for such union activities, she would not have been discharged. The first reason stated to Hampton for her discharge confirms that at least some of Hampton's union activities-those carried on by her while on duty-figured sub- stantially in the Respondent's discharge decision. For reasons earler stated, I am convinced that it was the Respondent's original intent to justify its discharge action, if justificaton became necessary, primarily on the ground that Hampton in violation of instructions had engaged in union activities while on duty, the reason first given, in the belief that this would be viewed as a legally valid and sufficient one, and that the other assigned reasons were later added as makeweight. As noted above, how- ever, the Respondent now takes the position that the first stated ground was not a controlling reason for the discharge, stating that Hampton would not have been fired for that reason alone, that is, not until "after she had been warned for the second time at least." If what the Respondent now says is accepted at face value and taken as a concession that Hampton was not really discharged for the first given reason, it is unnecessary to go further. Such a concession, superimposed upon the findings already made that Hampton was not discharged for any of the other reasons, can, on this record, lead to but one conclusion-that Hampton's discharge was motivated by general antiunion considerations. However, even if what the Respond- ent now says is not taken as such a concession , and it is assumed that the Respondent was led to discharge Hampton because, though told not to, she engaged in union activities on working time, rather than because she engaged in other union activities as well, this would not alter the conclusion of unlawful discrimination I reach in this case; indeed, it would fortify it. Under the law, absent a valid prohibitory rule, union activities do not lose the protection of the Act solely because they occur during working time. New Orleans Furniture Manufacturing Company, 129 NLRB 244. The Board recognizes that an employer may properly insist that working time be devoted to work, and may there- fore, by rule, prohibit union solicitation or other activities while employees are on duty. Such a rule, the Board holds, is "presumptively valid as to fits] promulgation, in the absence of evidence that the rule was adopted for a discriminatory purpose, and [is] presumptively valid in [its] enforcement, in the absence of evidence that the rule was unfairly applied." Walton Manufacturing Company. 126 NLRB 697. In the instant case, the Respondent admittedly had never published or otherwise an- nounced a rule of general application prohibiting union talk or other activities during working time. Hampton alone among the coffee shop employees was instructed not to engage in such activities during duty time. I do not hold here that such an in- struction is unlawful per se, or may not carry the force of a rule, simply because a like instruction was not published or communicated to all other employees. Cf. BAKER HOTEL OF DALLAS, INC. 539 Star-Brite Industries, Inc., 127 NLRB 1008. I do hold, however, that in assessing the validity of the rule to which Hampton was instructed to adhere, and the legality of its enforcement, the same standards must be used as those applicable to no- solicitation rules generally. If the rule had a discriminatory purpose in its origin, or even if not, if it was unfairly or discriminatorily applied in its enforcement against Hampton, the Respondent may not seize upon Hampton's noncompliance with the rule to justify its invasion of her statutory rights. In this case, the Respondent makes no claim that Hampton was singled out for special instruction to refrain from union discussion on the floor because she, and not others, had theretofore engaged in such conduct. The instruction given Hampton followed closely on the heels of Hampton's disclosure to Kirk of her support of the Union, to which Kirk and higher management were opposed. Kirk was then aware that Hampton was regarded as a leader by other coffee shop waitresses. Although on the whole ambiguous, Kirk's testimony, quoted above, appears, in part at least, to indicate that Kirk's instruction was motivated by concern over the in- fluence Hampton might exert over other waitresses. Whether the foregoing consid- erations are of sufficient probative weight to establish that the rule imposed on Hampton had a discriminatory purpose in its origin need not be here decided, however. For when coupled with what followed-in particular the disparate treat- ment accorded Hampton and Landin-it is clear in any event that the rule was unfairly and discriminatorily applied as to Hampton. Surely, it is both unfair and discriminatory to invoke and enforce a rule against union discussion in the case of an employee who argues in favor of a union , but not to do so, under circumstances otherwise identical, in the case of an employee who argues in opposition to the union. That precisely is the situation in the instant case. Though Hampton was no more to blame than Landin for the argument in which both were involved, Hampton was discharged, Landin not so much as reprimanded. Yet the only difference between the two was that stated above. But one inference can be drawn from this-that the Respondent's real concern was not over the maintenance of shop discipline and efficiency (the presumed purpose of a valid ban on union activities during working time) but rather over Hampton's support and advocacy of the Union; in other words, that the violation of the rule was but a pretext for a discharge really motivated by antiunion considerations. It is so found. I conclude that, by discharging Hampton on June 13, 1960, and thereafter failing to reinstate her, the Respondent discriminated in regard to her hire and tenure of employment, thereby discouraging membership in the Union and, by such conduct, also interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its 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 Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated with regard to the hire and tenure of employment of Vivian Hampton, I shall recommend that the Respondent offer her immediate and full reinstatement to her former or a substantially equivalent position, without prejudice to her seniority or other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the Respond- ent's discrimination against her, by payment to her of a sum of money equal to that which she normally would have earned from the date of her discharge to the date of the Respondent's offer of reinstatement, less her net earnings during said period. Backpay shall be computed on a quarterly basis in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. -540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. By discriminating in regard to the hire and tenure of employment of Vivian Hampton, thereby discouraging membership in the above-named Union, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing conduct , the Respondent has interfered with, restrained, and coerced employees in the exercise of their statutory rights within the meaning of Section 8 (a)( I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Ewell Engineering & Contracting Co., Inc. and Claude Laverne O'Neal and James C. Jameson Ewell Prestressed Concrete Co., Ewell Concrete Pipe Co. and Travis Jolley, John C. Jolley, Jr., and George W. Dyess. Cases Nos. 12-CA-1641-1, 12-CA-1739, 12-CA--1746-1, 12--CA-1736-2, and 12-CA-1736-3. November 21, 1961 DECISION AND ORDER On June 14, 1961, Trial Examiner Henry S. Salim issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Re- port attached hereto. The Trial Examiner also found that the Re- spondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Respondent 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 case to a three- member panel [Members Rodgers, Fanning, and Brown]. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications. 1. The complaint alleged, inter alia, that the Respondent, by reason of threats made to employees by Foreman Jim Edwards, had violated Section 8 (a) (1) of the Act. The Trial Examiner found that the General Counsel had failed to establish by a preponderance of the evidence that Edwards is a supervisor within the meaning of the Act, and, accordingly, recommended that these allegations be dis- missed. The General Counsel excepts, contending that the preponder- 134 NLRB No. 56.