Skirvin Hotel and Skirvin Tower

SKIRVIN HOTEL AND SKIRVIN TOWER 761 All our employees are free to become, or remain, or refrain from becoming and remaining members of the above-named or any other labor organization. DALTON'S BEST MAID PRODUCTS, INC., Employer. Dated- ------------------ By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, 76102, Tele- phone No. Edison 5-4211 , Extension 2131 , if they have any question concerning this notice or compliance with its provisions. James Hotel Company, a Corporation d/b/a Skirvin Hotel and Skirvin Tower and Hotel & Restaurant Employees and Bar- tenders International Union, AFL-CIO, Local No. 246. Case No. 16-CA-1737. May 24, 1963 DECISION AND ORDER On February 26, 1963, Trial Examiner C. W. Whittemore 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 attached Inter- mediate Report. Thereafter, the General Counsel and the Respond- ent 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 [Chairman McCulloch and Members Leedom 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 the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations to the extent consistent herewith. 1. We find, in agreement with the Trial Examiner, that the Re- spondent violated Section 8 (a) (1) of the Act by the following con- duct: (a) On July 27, 1962, Chef Barnes warned employees that if the Union "came in" he would no longer assist them to borrow money from Respondent as he had in the past; i that the Respondent would 1 Although the Trial Examiner found that Barnes stated he would no longer lend them money, the testimony is that Barnes stated he would no longer act as intermediary be- tween them and Mr. James, the Respondent 's board chairman Member Leedom agrees with this finding of violation because, insofar as appears from the record , Barnes' threats related to loans which the Respondent itself had previously made to employees . See Hill d Hill Truck Lines, Ino., 120 NLRB 101, 110. He regards as distinguishable the Board's 142 NLRB No. 89. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no longer pay for the laundering of employees' uniforms ; and that the Respondent would abandon its custom of permitting employees to deduct money from their pay for a "Christmas fund," upon which it paid interest; (b) on July 31 Chef Barnes again told employees that if the Union came in, he would discontinue helping them to borrow money; (c) Manager Patricia Hendrickson told employees on July 31 that if the Union won the election, the employees would have to pay for their uniforms which the Respondent had previously provided; that employees would lose their transfer rights and, would be unable to work in any department other than the one in which they had been hired; and that the Respondent would not have to bargain with the Union "for years"; and (d) on July 31 Hendrickson told an employee that if the Union came in, she would no longer be allowed to do extra work to obtain added income. We likewise agree with the Trial Examiner that the Respondent further violated 8(a) (1) in its pre- election circulars and letters to employees by declaring that if the Union won the election, the Respondent could not afford to "sign" a contract, a strike would inevitably occur, and the employees would "lose their jobs." 2 2. We find, however, contrary to the Trial Examiner, that the fol- lowing conduct of the Respondent did not violate Section 8 (a) (1) : (a) The no-solicitation rule: Early in March 1962 the Respondent posted and distributed to employees a notice prohibiting employees from soliciting union memberships and discussing union matters "on working time, on company property." 3 The Trial Examiner ap- parently interpreted the Respondent's rule as prohibiting the discus- sion of union matters only on "working time"; we agree with this finding 4 and, in the absence of any evidence that the rule was promul- decision in Baltimore Binding and Waistband Corp ., 130 NLRB 1629, in which the Board found that the respondent did not violate the Act by its general manager's conduct in refusing to make personal loans to employees , not involving any of the respondent's funds. 9 Texas Industries, et al., 139 NLRB 365 . For the reason stated in Texas Industries, Inc, et al., supra, footnote 5, Member Leedom would not find that the remarks contained in the preelection circulars and letters violated Section 8 (a) (1) of the Act. The Respondent's notice reads as follows: "NOTICE TO ALL EMPLOYEES "All employees of the Skirvin Hotels are directed and instructed not to solicit Union memberships and not to discuss union matters ( either for or against the Union) while on working time , on company property "Your attention is directed to the fact that violation of this rule will necessarily interfere with both the work of the employee violating the rule and the work of other employees of the hotel; and you are , therefore, notified that any employee violating this rule will be subject to immediate discharge GEORGE W. JAMES, President" + The General Counsel contends that the words "on working time, on company property" should be construed as also prohibiting union solicitation on company property during employees' "non-working time," and hence, under Walton Manufacturing Company, 126 NTLRB 697, enfd. 289 F. 2d 177 (CA 5), the rule was presumptively invalid . We find no merit in this contention. As noted, the rule applies only to "working time , on company property." The mere fact that a comma appears between these two phrases is insufficient, in our view, to establish that the Respondent's rule prohibited Union discussion on com- SKIRVIN HOTEL AND SKIRVIN TOWER 763 gated for a discriminatory purpose, further find that the rule was presumptively valid.' However, the Trial Examiner also found that the rule was necessarily invalidated because the Respondent itself disregarded the rule and conducted several meetings during working hours on company property for the purpose of engaging in antiunion solicitations. We do not agree that this fact is sufficient in and of itself to render the rule invalid. In the Nutone decision,6 the Supreme Court expressly cautioned against the utilization of precisely this kind of per se approach to the instant problem-laden area. While pointing out that there may well be situations which justify finding an unfair labor practice where an employer is enforcing a valid no-solicitation rule while simultaneously engaging in antiunion solicitation, the Court made it clear that "there must be some basis, in the actualities of industrial relations, for such a finding."' Upon analyzing the record in this case in light of these pronouncements in Nutone, we are satisfied that there is no basis for invalidating the Employer's other- wise valid no-solicitation rule. Accordingly, we find, contrary to the Trial Examiner, that the Respondent's enforcement of its rule did not violate Section 8(a) (1) of the Act. (b) The statement of Dan James relative to loss of employee privi- lege of discussion: The Trial Examiner further found that the Re- spondent violated Section 8 (a) (1) by the statement of Dan James, board chairman, to employees that if the Union were selected as bar- gaining representative, they would lose their privilege of discussing matters with management. The record shows that James stated that if the Union came in, the employees would have to go to a union man (Mr. Ellenbarger) for adjustment of their problems, and that "Mr. Ellen- barger lives in Tulsa . . . you would have to wait for him" and "if he didn't want to come, he wouldn't have to come." In our opinion, James' statement constituted no more than a lawful prediction that if the Union were selected as the representative of the employees, the employees would have to work through their union representative in resolving their grievances.8 We therefore find, in disagreement with the Trial Examiner, that by this statement the Respondent did not violate Section 8 (a) (1) of the Act.9 pany property, although not taking place on working time This conclusion is supported by the language of the second paragraph of the rule which states that a violation thereof "will necessarily interfere with the . . . work . . of the employees " [Emphasis supplied ] 5 Walton Manufacturing Company, supra; Stoddard-Quark Manufacturing Co , 138 NLRB 615. "NLRB. v. United Steelworkers of America, CIO (Nutone, Inc, Intervenor), 357 U S 357. 7 The Court's opinion in Nutone at pp. 363-364 indicates what some, if not all, of the bases for invalidating an employer's no-solicitation rule might be. 8 See Section 9(a), second proviso. 9 See Safeway Stores, Inc., 122 NLRB 1369, 1373. Member Brown would affirm the Trial Examiner's unfair labor practice finding with re- spect to this incident. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) The statement of Chef Barnes relative to loss of privilege of discussion: The Trial Examiner also found that the Respondent violated Section 8(a) (1) by the statement of July 31 of Chef Barnes to employees that if the Union were voted in, they would be unable to "see or talk" with Mr. James except through a union representative. According to the credited testimony of employee Chancellor, Barnes told employees that when they were "in a financial need, I went and got money for you," and that "if the Union comes in, that will be stopped, because . . . you will have to go through them in order to see or talk to Mr. James." It was on the basis of this testimony that we have found, supra, in agreement with the Trial Examiner, that Barnes un- lawfully threatened that employees' borrowing privileges would be discontinued if the Union came in. Unlike the Trial Examiner, how- ever, and for the reasons stated above, we do not believe that these remarks by Barnes are a separate unlawful threat that if the Union came in, the employees would be able to see Respondent's officials only through the union representative." (d) The statement of Dan James as to "loss of lobs": The Trial Examiner further found that by the statement of James on July 27 that if employees voted for the Union and went on strike, they would "lose their jobs," the Respondent also violated Section 8(a) (1). Ac- cording to the credited testimony of employee Alice Chancellor, James told employees that if "we voted union and had a strike . . . they could replace us and hire help in our place," and that "when the strike was over we would come back and have no jobs, because the other people . . . would have our jobs." As these remarks constituted no more than a statement by the Respondent of its lawful right to hire replacements in the event of an economic strike," we find, contrary to the Trial Examiner, that such statement did not constitute inter- ference, restraint, or coercion of employees in the exercise of their rights under Section 7, in violation of Section 8 (a) (1). ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : (1) Paragraph 1(b) and paragraph 2(a) of the Recommended Order are deleted. (2) The Appendix is amended by deleting the second indented paragraph. 10 Member Brown would affirm the Trial Examiner's unfair labor practice finding with respect to this incident. 11Roy C. Hanson, Jr., Mfg., 137 NLRB 251 . There, the Board rejected the General Counsel's contention that an employer , in circumstances such as these , must make it clear to employees that he had a right to hire replacements only in the case of an economic strike and not in the event of an unfair labor practice strike. SKIRVIN HOTEL AND SKIRVIN TOWER 765 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed by the above-named labor organization on September 27, 1962, a complaint and notice of hearing thereon were issued and served on November 9, 1962, by the General Counsel of the National Labor Relations Board. The above- named Respondent filed its answer dated November 14, 1962. The complaint alleges and the answer denies that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the National Labor Relations Act, as amended. Pursuant to notice, a hearing was held on January 21, 1963, in Oklahoma City, Oklahoma, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs have been received from General Counsel and the Respondent. After the close of the hearing a motion to correct certain typographical errors in the transcript was received from General Counsel, said motion showing service upon other parties. No objection having been received, said motion is hereby granted and is made a part of the record. Upon the record thus made and from his observation of the witnesses the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is an Oklahoma corporation. It maintains its principal offices and places of business at the Skirvin Hotel and Skirvin Tower buildings in Oklahoma City, Oklahoma, where it is engaged in the business of operating hotels and services incidental thereto, including restaurant facilities. Only these two hotel facilities are herein involved. During the year preceding issuance of the complaint the Respondent provided services and sold products valued at more than $500,000. During the same period the Respondent purchased goods directly from points outside the State of Oklahoma valued at more than $2,000. And during the same period 75 percent of its hotel guests occupied its facilities for a period of less than 1 month. The Respondent concedes and it is found that it is engaged in commerce within the meaning of the Act. H. THE CHARGING UNION Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, Local No. 246, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Setting and issues All of the matters herein alleged to have been violative of the Act arose during a period when, as counsel for the Respondent conceded, the Respondent wanted to defeat the Charging Union at a representation election, which was held on August 2, 1962. General Counsel contends, and the Respondent denies, that various speeches, notices, and letters to employees contained material not privileged under the Act but which interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. B. Interference, restraint, and coercion Undisputed and credible testimony of employees and many documents admittedly posted or distributed by the Respondent to its employees establish the following facts: (1) From early March 1962, until the time of the election the Respondent both posted and distributed to employees a "Notice to Employees" which warned them of discharge if they violated the instruction "not to discuss union matters" while "on working time, on company property." No evidence was adduced by the Respondent to show why discussion of only "union matters" should be prohibited. Any possible validity to the statement contained in the same notice that "violation of this rule will necessarily interfere with the work" is negated by the undisputed facts. described more fully below that, (a) on several occasions following posting of the rule manage- 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment representatives themselves conducted meetings of many employees at which such supervisors vigorously campaigned against the Union; and (b) at least at one such meeting counsel for the Respondent, according to his own testimony , invited discussion of union matters . All such meetings were held during working hours, on company property. (2) At an assembly of employees convened by management during working hours on July 27 Chef Barnes, conceded by the Respondent to be a supervisor within the meaning of the Act, warned employees that (a ) "if the Union came in" he would no longer loan them money, as he had in the past; (b) the company would no longer pay for the laundering of uniforms , as had been the custom ; and (c) the company would abandon its custom of permitting employees to have deducted from their pay money for a "Christmas fund," upon which it had been paying them interest. (3) At another meeting of other employees held the same day, Dan W. James, chairman of the board , warned employees that if they selected the Union as their bargaining representative they would lose their present privilege of discussing matters with him or Chef Barnes . He also warned them that if they voted for the Union and went on strike they would lose their jobs. (4) At an assembly of other employees on July 31 Chef Barnes reiterated his threat to withdraw the privilege of borrowing money if they voted for the Union, and told them that they would be unable to "see or talk" with Mr. James except through a union representative. (5) At another meeting of employees on July 31 Manager Patricia Hendrickson, admitted by the Respondent to be a supervisor within the meaning of the Act, warned employees that if the Union won the election : (a) employees would have to pay for their own uniforms which the hotel then provided ; and (b ) they would be unable to work in any department except the one in which they were hired ; and that James did not have to bargain with the Union "for years." Hendrickson also told one employee, who customarily had "worked" banquets bringing her added income, that she no longer could perform such work. (6) Repeatedly in its preelection circulars and letters distributed to employees the Respondent declared, in effect, that if the Union won the election and the Company could not afford to "sign" a contract a strike would inevitably occur and employees would lose their jobs. The Trial Examiner concludes and finds that by the above -described threats of loss of jobs and privileges the Respondent has interfered with , restrained , and coerced employees in the exercise of rights guaranteed by 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 con- nection with the operations of the Respondent, 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 unfair labor practices the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO, Local No 246, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By interfering with , restraining, and coercing employees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. IIn his brief General Counsel appropriately cites , among other cases: Texas Industries, at al , 139 NLRB 365 ; Aztec Ceramics Company, 138 NLRB 1178 ; and N L R B v. Babcock d Wilcox Company, 351 U 9 105 SKIRVIN HOTEL AND SKIRVIN TOWER 767 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that James Hotel Company, a corpora- tion, d/b/a Skirvin Hotel and Skirvin Tower, its officers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals to discourage membership in or activity on behalf of Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, Local No. 246, or any other labor organization. (b) Prohibiting, by rule, or otherwise, lawful union activities on company property during employees ' nonworking time. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above -named 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 organiza- tion 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 will effectuate the policies of the Act: (a) Rescind the company rule posted since March 1962 , which prohibits employees' union discussion on company property, or, in lieu thereof, revise such rule to make it clear on the fact thereof that the prohibition against employees ' discussion is not to be interpreted as discriminatorily limited to union matters. (b) Post at its hotels in Oklahoma City, Oklahoma, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent 's authorized representative , be posted by the Respondent immediately upon receipt thereof, and 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 to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the said Regional Director in writing within 20 days from the date of the service of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.3 2In the event that this Recommended Order be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" In the notice. In the further event that the Board 's Order be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "A Deci- sion and Order." 3In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 threaten our employees if Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, Local No. 246, or any other labor organization, is designated their bargaining representative. WE WILL NOT prohibit, by rule or otherwise , lawful union activities on company property during our employees ' nonworking time. WE WILL NOT in any like or related manner interfere with, restrain, 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 collectively through representatives of their own choice, 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 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. JAMES HOTEL COMPANY, A CORPORATION D/B/A SKIRVIN HOTEL AND SKIRVIN TOWER, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Meacham Building, 110 West Fifth Street , Fort Worth, Texas, 76102 , Telephone No. Edison 5-4211, Extension 2131 , if they have any questions concerning this notice or com- pliance with its provisions. United Packinghouse, Food and Allied Workers, Local 673, AFL- CIO and Ora Mae Riley and J-M Poultry Packing Company, Inc. d/b/a Dixie Broiler Company, Inc., Party to the Contract. Case No. 15-CB-575. May 204, 1963 DECISION AND ORDER On December 21, 1962, Trial Examiner George L. Powell 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 attached Inter- mediate Report. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and the Respondent filed a brief in support thereof. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner, except as modified herein. As found by the Trial Examiner, Respondent, up to February 1962, collected $3 a month from each employee, or from the Employer on their behalf, as periodic dues under the parties' union-security agreement. Beginning with that month, the amount collected was increased to $4. In agreement with the Trial Examiner, we find 1 The Trial Examiner found that Respondent Union violated Section 8 (b) (1) (A) and (2) of the Act by maintaining and enforcing the "side agreement ," a form of union security, at a time when it was assisted by the Employer . In the absence of exceptions to these findings , we adopt them pro forma. 142 NLRB No. 84.