Hilton Credit Corp.

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hilton Credit Corporation and Office Employees International Union, Local No. 30, AFL-CIO and Employees Council and Susan O'Kane. Cases Nos. 21-CA-4474-1 and 21-CA-4474-2. May 3, 1962 DECISION AND ORDER On February 5, 1962, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the General Counsel and the Respond- ent filed exceptions to the Intermediate Report together with support- ing 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 made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations 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 1 The Board agrees that Respondent violated Section 8(a) (1) by (1) Supervisor Cutler's August 1 statement that those employees who gave statements to Board agents, who were then investigating a charge of unfair labor practices against Respondent, had to give a copy of such statement to Respondent; and (2) Overton's demand of O'Kane that she reveal to him the substance of the testimony that she expected to give in this case. Whether or not such demands constituted an interrogation of the employees involved concerning their union activities, as found by the Trial Examiner, they did constitute a serious interference with Board processes , and thus interfered with employees' exercise of their statutory rights. "Clearly inherent in employees statutory rights is the right to seek their vindication in Board proceedings." Better Monkey Grip Company, 115 NLRB 1170. It is quite obvious that the Board's ability to secure such vindication depends in large measure upon the ability of its agents to conduct effective investigations of matters alleged to be unfair labor practices, and to obtain relevant information and supporting statements from employees Such statements are, and must be, treated as confidential matters until, and unless, the employees involved testify in subsequent proceedings, at which time, and upon proper demand, the pretrial statements of witnesses become avail- able to respondent. Employer demands of employees that their statements be disclosed to it before trial, and without the safeguards afforded by trial procedure, necessarily exerts an inhibitory effect on employees' willingness to make such statements and to other- wise cooperate with Board agents. Such demands therefore interfere with the Board's efforts to secure vindication of employees' statutory rights and thus interfere with the enjoyment of such rights in violation of Section 8(a) (1) 137 NLRB No. 5. HILTON CREDIT CORPORATION 57 Relations Board hereby orders that the Respondent, Hilton Credit Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in Office Employees International Union, Local No. 30, AFL-CIO, or in any other labor organization of its employees, by discriminatorily discharging any of its employees or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment. (b) Interrogating employees concerning their union membership, activities, or desires in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a) (1) of the Act. (c) Threatening or harassing employees because of their interest in or activity on behalf of the above-mentioned or any other labor organization. (d) Assisting, contributing support to, or interfering with the formation of the Employees Council, or any other labor organization. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted 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 rights may be affected by an agreement requiring membership 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. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withhold all recognition from the Employees Council, or any successor thereto, as the representative of any of its employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms or conditions of employment, unless and until such labor organization shall have been certified by the Board as the exclusive bargaining representative of such employees. (b) Offer Susan O'Kane immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed, and make her whole for any loss of earnings she may have suffered because of the discrimination against her, in the manner set forth in that section of the Intermediate Report entitled "The Remedy." (c) 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, 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and all other records necessary or useful to analyze the amount of backpay due under the terms of this Decision and Order. (d) Post at its offices in Sunset and La Brea, California, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent has violated the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in and activity on behalf of Office Employees International Union, Local No. 30, AFL- CIO, or any other labor organization, by means of discharge or other discrimination in regard to hire or tenure of employment, or any term or condition of employment. WE WILL NOT interrogate employees concerning their union membership, activities, or desires in a manner constituting inter- ference, restraint, or coercion in violation of Section 8 (a) (1) of the Act. WE WILL NOT threaten or harass our employees because of their interest in, knowledge about, or activity on behalf of the above- named labor organization, or any other labor organization. WE WILL NOT interfere with the formation of, assist, or con- tribute to the support of the Employees Council, or any other labor organization of our employees. WE WILL NOT recognize the Employees Council, or any successor thereto, as the exclusive bargaining representative of our em- HILTON CREDIT CORPORATION 59 ployees for the purpose of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other terms and conditions of employment, unless and until such labor organizations shall have certified by the Board as the exclusive representative of such employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self -organiza- tion, to form, join, or assist the above-named labor organization, or any 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 engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. WE WILL offer Susan O'Kane immediate and full reinstatement to her former or substantially equivalent position, without prej- udice to her seniority or other rights and privileges previously enjoyed, and will make her whole for any loss of pay she may have suffered by reason of our discrimination against her. All our employees are free to become, remain, or refrain from be- coming or remaining members of Office Employees International Union, Local No. 30, AFL-CIO, or any other labor organization, ex- cept to the extent that this right may be affected by lawful agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a) (3) of the Act, as amended. HILTON CREDIT 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. Employees may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California, Telephone Num- ber, Richmond 9-4711, Extension 1031, if they have any question con- cerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Wallace E. Royster , the duly designated Trial Examiner, in Los Angeles, California, on October 23, 24, and 25 , 1961. The amended complaint 1 of the General Counsel of the National Labor Relations Board ' Issued October 5 , 1961 , upon charges filed July 24 and September 25, 1961. 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD alleges that Hilton Credit Corporation, herein called the Respondent, had dominated and interfered with the formation and administration of a labor organization, had by instructions and threats coerced employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, herein called the Act; had upon dis- criminatory motivations provided less employment for its employee , Susan O'Kane, for a period of time and upon the same motivations discharged her. It is alleged that the conduct of the Respondent in these particulars violated Section 8(a), (1), (2), ( 3). and (4) of the Act. Upon the basis of the entire record in the case, from my observation of the wit- nesses, and in consideration of the briefs filed by counsel , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a corporation operating a credit card business with accounts and associates in various of the States of the United States and with its principal office in Los Angeles, California. Respondent's annual receipts exceed $500,000 and such receipts received at Los Angeles directly from points outside the State of California exceed $50,000 annually. The Respondent concedes, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and ,(7) of the Act. II. THE ORGANIZATIONS INVOLVED Office Employees International Union, Local No. 30, AFL-CIO, herein called the Union, is conceded to be, and I find is, a labor organization within the meaning of Section 2(5) of the Act. Upon the basis of the evidence set forth later in this report, I find that "Your Organizing Committee" was not such an organization. Also upon the basis of evidence yet to be recited, I find that Employees Council, herein called Council, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES In late April or early May 1961, Valton Dicksion, a tabulating machine operator in Respondent's employ at the Sunset office,2 visited the offices of the Union and thereafter actively sought members for the Union among Respondent's employees. In early June, according to Dicksion , he asked Joseph Murphy, head of the department in which Dicksion worked, if there was a chance to get a wage increase Murphy answered that Benno Bechhold, Respondent's president, and Melvin Spitz, Bechhold's assistant, were aware that Dicksion had been in communication with the Union and that Dicksion should be careful or he would lose his job. Murphy said that there was no likelihood that he would ever get a pay raise. About 2 weeks later, still according to Dicksion, Murphy said that Spitz was curious to learn if Dicksion would quit voluntarily or if Murphy was going to fire him. In mid-July, Murphy told Dicksion that Spitz had again made the same inquiry. The next day Dicksion told Murphy that Murphy had been "fair and honest" and that Dicksion did not want Murphy to get into any difficulty with the Respondent because of Dicksion 's union activity. Therefore, said Dicksion, he would quit on July 21. Murphy answered that Dicksion had been a good employee and went on to say that Spitz had that morning for the third time made the same inquiry about Dicksion's tenure. Murphy said that he had told Spitz that discharging Dicksion would only serve to make him a martyr in the eyes of the other employees. Murphy permitted Dicksion to take time off from his job without loss of pay to look for other work. Following a period of organizing, the Union filed a petition with the Los Angeles office of the National Labor Relations Board for an election. The election was conducted on July 19 and the Union was defeated. As he promised, Dicksion quit on July 21, and at the time of the hearing was working for another employer. There is testimony in behalf of the Respondent that some time in late June, or early July, authority to hire and discharge was taken away from Murphy. He re- mained, however, as head of his department and concededly could recommend changes in employee status and could assign overtime . Murphy, himself, was never informed by the Respondent prior to the hearing that his authority in respect to hire and discharge had been curtailed . Obviously he was, in the eyes of employees, the effective and operating head of the department to which he was assigned and repre- sented to them their employer. I find that at all times Murphy was and is a super- 2 The Respondent's operations in Los Angeles are conducted from two locations, herein- after referred to as the Sunset office and the La Brea office HILTON CREDIT CORPORATION 61 visor within the meaning of Section 2(3) of the Act. Melvin Spitz, who in July was Bechhold's assistant but at the time of the hearing was a vice president of the Respond- ent, denied that he ever spoke to Murphy concerning the termination of Dicksion and asserted that he was unaware of Dicksion's name until he appeared as a witness at the hearing. Murphy, too, denied that he had ever relayed to Dicksion any re- marks attributable to Spitz and denied that he had spoken with Dicksion about a pay raise. Murphy was not questioned about permitting Dicksion to hunt for another job on paid time, and such testimony by Dicksion stands undenied. Considering the circumstantial detail given by Dicksion concerning his conversations with Murphy, his undenied assertion that he received permission to hunt for other work on Re- spondent's time, and the fact that he quit on July 21, I became convinced during the hearing, as I am now, that the testimony of Dicksion should be credited. To the extent that the testimony of Murphy and Spitz is inconsistent with it, I do not credit them. I find that Murphy told Dicksion that his job was in jeopardy because he was known as one who had visited the Union's office; that he told Dicksion, in effect, that Spitz was eager for Dicksion to leave his job; that Dicksion was thus advised that his opportunity for a pay raise did not exist; and that all of these coercive remarks were made because of Dicksion's activity in behalf of the Union. I find that the Re- spondent thereby violated Section 8(a) (1) of the Act. In late June or early July, two employees, George Zarrett and Ted Ross, met with President Bechhold. Telling Bechhold that they did not favor the Union and that they thought it better that the employees form a committee to deal with management, they asked Bechhold if he would deal with such a committee. Bechhold answered as he testified, that if the Union lost the election he would be happy to deal with such a committee if it was properly constituted. At some time prior to the election on July 19, Ross showed Bechhold the draft of a leaflet which Ross and Zarrett had composed. The leaflet set forth arguments against the selection of the Union as bargaining representative and suggested the possibility of forming an employee com- mittee for bargaining purposes. Ross asked Bechhold what he thought of the draft. Bechhold answered that employees would not give it serious consideration unless it was signed by its authors. Ross and Zarrett took the draft to Joseph Murphy and told Murphy they were going to have it typed and duplicated. Murphy's secretary cut the stencil and the leaflet was then run off in Respondent's mimeograph room using Respondent's equipment and paper. It was distributed to employees about July 12. A few days later, but before July 19, a second leaflet of similar character was stenciled, mimeographed, and distributed in the same fashion. On neither occa- sion did Murphy object to in any fashion the use of Respondent's personnel, equip- ment, and material for this purpose. The second leaflet asserted that Bechhold had agreed to recognize an employee committee for purposes of bargaining. The first ,leaflet purported to be published by "Your Organizing Committee." The second bore the names of Ross, Zarrett, and Anthony DeMarco, as representing that committee. In late June and early July a number of employees asked Bechhold, in writing, to meet with them for a discussion of the question of representation. In response, Bechhold went to the La Brea office on July 14. Zarrett accompanied Bechhold as did Spitz. After the employees were assembled, about 3 p.m., Bechhold answered questions that were posed to him and introduced Zarrett. Zarrett told the employees of his view that a union would not benefit them and that they would be better off with an employee committee. Ross who attended the meeting said much the same thing. Zarrett, whose work place was at the Sunset office, was paid for the time that he spent at the La Brea meeting. A similar meeting was held at the Sunset office on July 17. Bechhold again answered questions and Zarrett spoke in the same vein as at La Brea. Some of the employees gave expression to views favoring the Union. The expressions of pro- union sentiment, however, seemed to arouse such antipathy that the meeting quickly ended in an uproar. Bechhold testified that at the July 14 meeting in the La Brea office he urged the employees to vote and reminded them that the Russian Revolu- tion "was won by 50,000 determined Bolsheviks who knew what they wanted, who fought for it while 120 million disinterested, half-hearted, or I-can't-be-bothered Russians were subverted." He told them, he testified, that he did not care how they voted, but they should not neglect to do so. Referring to Ross and Zarrett, Bech- hold said that they had once been supporters of the Union who had become disen- chanted and he thought that the employees would like to hear from them. Bech- hold testified that at one of the meetings, and his testimony does not clearly identify which, he said that if he could deal directly with his own employees it was reasonable to assume that, because both he and they had the welfare of the Respondent at heart, the dealings would take place in an atmosphere of trust and cooperation . Bechhold 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD went on to say that unions basically seek to sow discord between employer and employee and that therefore bargaining with a union could not be done in an atmos- phere of mutual trust but is rather in a "very hard and tough" atmosphere. Bech- hold concluded by saying that it was conceivable that he would be easier in making concessions to his own employees than he would be if he were dealing with the Union. "I think the union would have to bargain very hard with me." On July 20, the morning following the election, Bechhold appeared at both the Sunset and the La Brea offices and spoke to the gathered employees. He first con- gratulated them on their wise decision in rejecting the Union. Then stating it was his understanding that many employees desired to form a committee to deal with management, he said it was not for him to say how they should bring this about Nonetheless, he continued, that if he were an employee he would have each unit of about 15 to 20 employees designate one as a delegate. The approximately 30 delegates thus chosen should then meet and elect from among them a committee of not less than 5 and not more than 10 which would meet with management. That afternoon and evening delegates were selected and a committee formed for purposes of meeting with management. The committee took the name of Employees Council. During the evening in one of the departments the employees were told by their supervisor,3 Marianne Cutler, to vote for Mary Jo Moreno. Moreno turned out to be the choice of the employees so instructed. All of the voting for delegates was held on paid time and was to some extent monitored by Respondent's supervisors, among them Murphy. Among those selected as delegates was Susan O'Kane, who in the past had been known to her coworkers as a supporter of the Union. On July 21, O'Kane informed Bechhold that the Council had been formed and asked if it could hold its meetings on Respondent's premises. Bechhold answered that he would permit such meetings but said that he wanted assurance attested by the individual signature of each em- ployee to the effect that the delegate was actually the choice of the employees. Signatures in conformance with Bechhold's suggestion were obtained. The Council first met on Monday, July 24, in one of Respondent's offices after working hours. O'Kane was elected temporary chairman. O'Kane and others met with Bechhold on the following day. Bechhold said that he could not recognize the Council because of certain litigation .4 After the litigation was resolved, said Bechhold, the Respondent could extend recognition. O'Kane asked that permission be granted to meet on paid time. Bechhold said that would be all right if the Council members did not cause a disruption in work or require others to do their work. Two or three further meetings of the Council took place on Respondent's premises. On August 1, Spitz told the Council that the Respondent could not supply it with stationery, equipment, or permit it to meet on Respondent's premises on paid time. Spitz went on to say that the Respondent could not recognize the Council until the litigation was ended Spitz suggested that recognition was not essential, that a group of employees still could bring their problems to Bechhold without the necessity of explicating that they were acting in a representative capacity. The next day, Spitz came to O'Kane and asked her to explain to the Council why the Respondent could not extend recognition in the circumstances. On this occasion he told O'Kane that meetings on Respondent's premises would be permitted Sometime prior to August 3, O'Kane was invited to participate in a television taping. She recruited three other employees of the Respondent to appear with her. On August 3, the day on which the taping was to take place for later exhibition, Bechhold learned of it and called O'Kane to his office. O'Kane explained that she had cleared her participation, and that of the other employees, in the program with 3 Spitz described Cutler as a "lead person" in a segment of the credit and collection department According to Spitz, Cutler made routine work assignments to 15 or 20 em- ployees Cutler is no longer in Respondent's employ and was not called as a witness Spitz conceded that Cutler's authority was the same as that of other lead personnel and testified that leadmen sometimes interviewed applicants for employment Although such employees had no authority to hire or fire, they might recommend such action In August or September, according to the undenled and credited testimony of Dolores Gaynor, she typed a recommendation for discharge at Cutler's direction and for Cutler's signature The employee concerning whom this recommendation was made was discharged I find that Cutler was regarded by the employees in her section as a representative of manage- ment and that she exercised such authority in behalf of the Respondent as to constitute her a supervisor within the meaning of the Act 4 An obvious reference, I find, to the fact that the Union had filed objections to the conduct of the election and the Union's assertions in that respect were then the subject of investigation by personnel in the Regional Office of the Board HILTON CREDIT CORPORATION 63 other officials of the Respondent. Bechhold said that he would not permit the Respondent's employees to appear. O'Kane and the other employees then with- drew from the project. After a somewhat heated discussion, concerning his action in the matter, Bechhold said, speaking to O'Kane, that she was insincere, disloyal, and not to be trusted. Bechhold went on to say that he had seen O'Kane speaking with representatives of the Union in the parking lot and that when O'Kane became aware of his gaze she furtively walked away. Continuing this diatribe, Bechhold said that O'Kane was an evil person out to destroy the Respondent and that nothing she could tell him or do would ever convince him of her loyalty and honesty. After an interruption during which O'Kane left Bechhold's office, Bechhold said upon her return, "This is fantastic. Now I have put the pieces together . . This program is all organized by the Union, as background of the Union sponsoring them for the purpose of agitating and continuing and for the purpose of continuing turmoil here in the company." In his testimony, Bechhold said that O'Kane's recount of his remarks on that occasion was given with substantial accuracy. On August 5, Ted Atencio, the department head under whom O'Kane worked, told her that Bechhold had reported her to have been in the "executive quarters" of the building and that Bechhold had instructed Atencio to tell O'Kane not to go there except on Respondent's business. On August 7, O'Kane went to the "executive quarters" to speak to Joseph Tilem, Respondent's attorney, in connection with affairs of the Council. On August 8 or 9, Atencio showed her a memorandum which read in substance that despite his direction she had been to the "executive quarters"; that the memo constituted a first warning to her in that connection; and were she to offend again in that respect, more severe action would be taken. O'Kane reminded Atencio that she had gone to Tilem's office with his approval. Atencio seemed to accept this explanation but went on to say, according to O'Kane, that she still seemed to be creating much agitation, that reports had reached him that she was still talking about the Union, and suggested to her that she should realize that the election was all over. Atencio said that her responsibility now was to the Council and that she should forget the Union. About August 10 or 11, O'Kane was called to the office of H. R. Overton, an assistant to Bechhold, primarily concerned with matters of security. Overton opened the conversation by saying that O'Kane was a "controversial figure." He asked her how she had become involved in the television show O'Kane said that she would like to forget the matter. Overton then asked why she had gone to Barcelona, why she was still keeping an apartment in New York, and what her communistic affiliations or associations had been. Overton said that Bechhold was highly irritated with her and that he didn't want O'Kane to do anything to exacerbate him further. At a meeting of the Council, about August 9, the delegates decided that their initial aims would be to obtain a ,change in Respondent's policy on insurance cover- age, to bring about changes in job classifications and wage scales, and to investigate the advisability of establishing a credit union. On August 14, the Council appears to have decided that it could not exist except as a labor organization and that it was best to disband. It has not met since. Particularly in the members service department where O'Kane worked, em- ployees were permitted to work overtime almost at will. O'Kane testified, and her testimony on this point is not disputed, that from the time of her employment in March she worked some overtime hours each week. While working overtime in early September, Atencio told her that he had been watching her and that she was talking unnecessarily to others. He said that she would be given no more overtime without specific authorization from him. O'Kane answered that others were not criticized for doing so. In the next few weeks, O'Kane asked her leadman, William Curran, and Atencio for overtime work but was refused. According to O'Kane, others were not treated in this fashion. On September 113 or 14, Curran told O'Kane that he had spoken to her twice that day about talking too much and threatened that if he saw her talking once more, he would terminate her.5 On September 15, O'Kane asked Curran for permission to work overtime. Curran said that he would take the matter up with Atencio. Hearing nothing from Curran she approached Atencio later in the day in the matter and was told that Atencio would speak to Curran about it. At the end of the day, a Friday, Curran said that 5 This constitutes, of course, further evidence that Respondent's lead personnel held themselves out to have authority to discharge I am not convinced, however, that there may not have been some reason to be critical of O'Kane in this particular Considering that the Respondent was in September attempting to cut its overtime costs I am unsure that O'Kane was deprived of overtime work upon discriminatory considerations and will not find that she was. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD O'Kane could work the next morning for the period of time that Curran would be there. O'Kane did not accept this opportunity On September 20, about 15 minutes before her shift was scheduled to begin, O'Kane telephoned Respondent's office and left word that she was ill and would be un- able to come to work. She obtained the name of the person to whom she spoke. The next day, Curran asked whom she had notified of her intended absence, and O'Kane told him. Curran said that the information did not reach him until al- most an hour past starting time and asked if she did not know that in notifying her employer about an intended absence it was necessary that she speak to her supervisor.6 O'Kane said that she did not know this and explained that she had never been absent or tardy before At a later time in the morning , O'Kane was called to Overton's office. Overton told her, she testified credibly and without contradiction, that Bechhold had noticed her absence the previous day and had asked Overton to find out where she was. Overton said that when he tried to locate her at her listed address, he learned that she was unknown there. In Overton 's presence and hearing O'Kane telephoned the hotel which she had listed as her residence at the time of her employment and satisfied Overton that she had , in fact, once lived there . Pursuant to Overton's questioning, O'Kane then gave him the several addresses at which she had lived since the beginning of her employment . Overton told her that it was her duty to notify the Respondent at the time such changes were made. When Overton asked the name of her roommate at the current address, O'Kane rebelled and, in effect, told Overton that it was not his affair . Overton explained that the Respondent had in the past experienced much difficulty with dishonest employees and with em- ployees who associated with persons of questionable repute. He said that the Respondent must, in self-protection, know as much about the private lives of its em- ployees as it was practicable to learn. O'Kane then gave the name of the woman with whom she shared quarters . Overton, not yet satisfied , insisted that O'Kane in- form him of the occupation of her roommate . O'Kane adamantly refused to do so. Overton said that she was most uncooperative and could not understand why she stayed on a job where she was obviously unhappy. O'Kane took this occasion to tell Overton that she would be absent on September 26 because she was to appear as a witness in this proceeding? Overton asked her what her testimony would be, saying that he had been advised that he was within his rights in making that inquiry. O'Kane refused to tell him. Overton asked her if she did not realize her responsibili- ties to her employer and asserted that she was disloyal. He again asked her to tell him the substance of her testimony . O'Kane answered that she was going to tell the truth. Overton said, "This is rank insubordination," and warned he was going to make "a decision" about her. That noon she and another employee, Margo Kennedy, noticed a device dangling from the ceiling in the women's restroom . They discussed it and decided that it might be a microphone designed to pick up conversations there. Both agreed to say nothing about it. Kennedy, brooded about the matter, however, and told Atencio what she and O 'Kane had seen and what their conclusion had been. Atencio expressed amaze- ment at their suspicions and successfully persuaded Kennedy that no such device had been installed. That evening O'Kane told another employee about what she had seen, and 'the next morning told Kennedy that she was sure that it was a microphone. On September 22, she was called to Overton's office and discharged. Overton told her that the discharge was made because she had failed to advise the Respondent of her changes of address, because she had not phoned her supervisor on the occasion when she was absent because of illness, and because she had spread "vicious rumors" about the Respondent. The last reason, of course, has reference to the microphone. Thereafter O'Kane filed a charge with the Regional Office of the Board , and the hearing set for September 26 was postponed pending investigation. Douglas Lazarus, an employee at the Sunset office, testified that on September 26 he spoke to his leadman, Arnold Clements, saying that he was tired of "being the pawn between a union and the management ." In the discussion which ensued, Lazarus testified, Clements said that O'Kane was an "agitator" who was being used by the Union and that it was such people that the Respondent had discharged. Refer- ring to O'Kane's departure, Clements said that it was ridiculous to suppose that it was caused by her failure to notify the Respondent of a change of address and said that O'Kane was fired for "many, many serious reasons." d Respondent's "Employee Handbook " in this connection reads, "In the event of illness which makes it impossible for you to come to work, please notify your supervisor by telephone immediately " 7 A complaint against the Respondent and a notice of hearing had issued for Septem- her 26 . Because of the developments about to be related the hearing was postponed HILTON CREDIT CORPORATION 65 Clements denied that he made any mention of O'Kane in his talk with Lazarus and asserted that he had no knowledge of the reasons for O'Kane's discharge. I credit Lazarus in this matter. He testified that he had always opposed the Union because he did not believe that having a bargaining representative would be of value to him in his relations with the Respondent . There is no reason to supose that he would fabricate the substance of his conversation with Clements for he has no discernible personal interest in this case. The testimony of Lazarus was offered by the General Counsel to buttress his assertion that the discharge of O"Kane was discriminatory. I think that it does not aid him. I am certain that Clements had no hand in the discharge and there is no evidence that he was privy to the reasons motivating it. However, the substance of Clements' remarks is that O'Kane was an "agitator," a tool of the Union, and that she was discharged because of those cir- cumstances . The effect of such an assertion is coercive and gave reason to Lazarus or any other employee to believe that activity for a union was displeasing to the Respondent and might be, at least, penalized by discharge . By the remarks of Clements, who as a leadman was a supervisor,8 I find that the Respondent violated Section 8 (a) (1) of the Act. It is clear enough that the thought of having such an organization as the Council as bargaining representative for the employees was first expressed by Zarrett, Ross, and other employees. But when the matter was first broached to Bechhold he encouraged it. Thereafter, by permitting Zarrett and Ross to use its facilities and supplies, the Respondent gave assistance to Your Organizing Committee , which gave birth to the Council. The most potent assistance on the part of the Respondent came from the remarks made by Bechhold to the employees prior to the election. By inviting Zarrett to accompany him from the Sunset to the La Brea office and by introducing Zarrett on the occasion of the meeting with employees there, Bechhold placed his stamp of approval upon Zarrett 's remarks. By telling the employees that it was reasonable to assume that in dealing with an organization of Respond- ent's employees it was conceivable that he would be easier in making concessions than if he were dealing with the Union , Bechhold held out to the employees a strong suggestion that their welfare would best be promoted by rejecting the Union and by representation through the, as yet unborn, Council. Permission granted to the Council to use Respondent's premises for meetings and, to some extent, to conduct such meetings on paid time is further evidence , I find, of Respondent's benevolent assistance to that organization . The complaint alleges that the Council was domi- nated by the Respondent. It is the fact that in one working group a delegate to the Council, Mary Jo Moreno, was selected after the leadman in that group , Cutler, instructed the employees to vote for Moreno . To this extent it may be said that the Respondent dictated to its employees who their representative should be. This is an isolated instance , however, and there is no evidence that it was repeated in other work areas. After the Council was formed and began to function, I find nothing in the conduct of the Respondent which is fairly to be characterized as dominance. Upon the evidence recited , I find that the Respondent interfered with the forma- tion of the Council and contributed support to it . The Respondent thereby violated Section 8 (a)(2) of the Act.9 By interfering with the formation of the Council and by contributing support to it, the Respondent interfered with the right of employees freely to chose a bargaining representative and thereby violated Section 8 (a) (1) of the Act. The complaint does not allege that the Respondent at any time extended recog- nition to the Council . I think that in a strictly formal sense it did not do so. It might well be argued that by giving permission to meet on Respondent's premises on paid time and by Spitz' advice to the Council that recognition must be withheld because of "litigation," a sort of covert recognition was granted. Because of the posture of the pleadings I find that this question is not presented to me for decision. About August 1, Supervisor Cutler told some of the employees working under her direction that any of them who gave a written statement to an agent of the s Atencio testified that 'Clements was 1 of 4 leadmen in his department and that with a complement of 70 employees he had to depend upon the leadmen to provide supervision. In consequence Atencio delegated to the leadmen authority to decide when overtime work was to be performed and to approve requests for such work opportunity. Obviously overtime work provides additional income to the employees performing it and thus the leadmen could and did decide who should earn more money and when. e See Guard Services, Inc., etc, 134 NLRB 1753 649856-63-vol 137-6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Labor Relations Board must prepare a copy of it for Respondent's inspec- tion. Agents of the Board from the Los Angeles Regional Office were at that time investigating a charge alleging that the Respondent had acted unlawfully in respect to the formation of the Council and in connection with the election. The require- ment that the employee furnish the Respondent with a copy of any statement made to such an agent constituted an interrogation of that employee concerning his knowledge or lack of it in respect to happenings respecting union activity. No necessity has been shown which might serve to justify such interrogation and I find therefore that it constitutes an interference, restraint, and coercion and a violation of Section 8 (a)( 1 ) of the Act. The several exchanges between Murphy and Dicksion concerning the tenure of the latter plainly indicated to Dicksion that the Respondent desired no longer to keep him as an employee because of his identification with the Union and constituted a threat that if he did not leave voluntarily, his discharge might be accomplished. In this fashion I find the statutory rights of Dicksion were invaded and the Respondent thereby violated Section 8 (a) (1) of the Act. Although some criticism of O'Kane was voiced in the testimony of Atencio, based upon her alleged practice of talking excessively to other employees, it is not contended that this was a factor leading to her discharge. I find it to be so clearly established as not to require great elaboration or discussion that O'Kane was discharged because of a firmly held opinion on the part of Bechhold that she was a union agent. The harassment which began when Bechhold discussed with her the TV program on which she was to appear was continued and intensified by Overton. Although O'Kane did not follow the literal instruction of the employee handbook in telephoning Respondent's office concerning her absence on September 20, there is no evidence that any employee had, in the past, even been reprimanded for failure directly to notify a supervisor concerning an absence. There is testimony which is uncontro- verted, and is believed, that other employees in similar situations have done just as O'Kane did-telephoned Respondent's office and left word with whomever answered of the necessity for absence. There is another aspect of the conduct of Overton on the day of her absence which is odd and which suggests that O'Kane was being treated in a different fashion than another employee similarly situated would have been. There is Overton's testimony that Bechhold noticed her absence and directed that it be investigated. O'Kane was not a particularly important employee and, as absence is not a really extraordinary occurrence, one wonders why Bechhold would take such particular note of it. When O'Kane returned to work she was then subjected to extensive questioning by Overton concerning her personal life. Again I believe that she would not have been submitted to such an ordeal had it not been for Bechhold's extreme distrust and suspicion about her. He believed her to be a sort of spy for the Union and was determined, I find, to harass her until she no longer would desire to remain in her employment.iO The incident which the Respondent seemingly thought might provide it with a plausible pretext for terminating her does not withstand examination. All of the credible evidence is to the effect that Kennedy and O'Kane came to the conclusion that a microphone had been installed in the restroom. The evidence does not establish or even suggest that O'Kane persuaded Kennedy that this was the fact. Both were suspicious of what they saw and both concluded after discussion that it probably was what it seemed to them to be. At the time of the discharge the Respondent knew no more about O'Kane's involvement in the matter than this. To characterize this discussion between O'Kane and Kennedy as the spreading of "vicious rumors" is to indicate that the Respondent was searching persistently for some excuse to bring about the discharge. So far as Overton knew at the time he discharged her, O'Kane had spoken to no one about the microphone but Kennedy. O'Kane had been a supporter of the Union before the election. Bechhold, by adopting the accounting given by O'Kane concerning the remarks he made to her on August 3, conceded that he knew her to be one who engaged in conversations with union representatives in the parking lot. By accusing her of being a conspirator in league with the Union, somehow to promote the Union's plans and schemes through the medium of a television program, Bechhold further demonstrated his belief that O'Kane was acting in the interest of the Union and to that extent was, in his eyes, an enemy of the Respondent. I find that the Respondent discharged O'Kane on 10 Overton's observation to her on September 21 to the effect that she was unhappy in her employment and his expressed wonderment that she did not leave, is consistent with such a purpose. HILTON CREDIT CORPORATION 67 September 22 because of this belief and that the Respondent thereby violated Section 8(a)(3) of the Act. By the discharge and by the harassment of O'Kane following August 3, the Re- spondent interfered with, restrained, and coerced her in the exercise of the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. On September 21, Overton insisted that O'Kane reveal to him the substance of the testimony which she expected to give in this case. When O'Kane refused to make this disclosure, Overton said that she was being insubordinate and that he was going to make "a decision" about her. Here again the Respondent was attempting, by means of interrogation, to discover what an employee knew about union activities or union affairs and thus necessarily to learn of the employee's activity or, lack of it, in that connection. Overton's threat made on this occasion suggested at least that O'Kane's refusal jeopardized her employment. I find that by this interference, re- straint, and coercion the Respondent further violated Section 8(a)1(1) of the Act. The allegation that O'Kane was discharged for filing charges or for giving testimony under the Act is not supported in this record. On September 22, the date of her discharge, she had done neither. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent described in section I, above, occurring in con- nection with the unfair labor practices described in section III, 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 violated the Act in certain particulars, it will be recommended that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that the Respondent has discriminatorily discharged Susan O'Kane, it will be recommended that it offer to her full and immediate reinstatement to her former or substantially equivalent position and that she be made whole for any loss of pay resulting from her discharge to the date of offer of reinstatement, less her net earnings during that period.ii Having found that the Respondent interfered with the formation and contributed support to Employees Council, it will be recommended that it be required to cease and desist from such conduct and to withhold recognition from the Council or its successor until it is certified by the Board as the exclusive representative of Respond- ent's employees. 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. Office Employees International Union, Local No. 30, AFL-CIO, and Employees Council is each a labor organization within the meaning of Section 2(5) of the Act. 2. By interfering with the formation of and contributing support to Employees Council, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (2) of the Act. 3. By discharging Susan O'Kane on September 22, the Respondent has discouraged membership in a labor organization and has thereby engaged in unfair labor prac- tices within the meaning of Section 8(a) (3) of the Act. 4. By interfering with the formation of and by contributing support to the Council; by discharging Susan O'Kane; and by threatening, harassing, and questioning employ- ees in connection with their disposition toward the Union or any other labor organi- zation, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The record does not establish a violation of Section 8(a) (4) of the Act. [Recommendations omitted from publication.] u Backpay shall be computed on a quarterly basis in the manner established by the Board in F. W Woolworth Company, 90 NLRB 289.