The Little Rock Downtowner, Inc.

THE LITTLE ROCK DOWNTOWNER, INC. 887 of the prime contractor in the cooperation of the parties, serious work stoppage could have occurred. Fortunately such stoppage did not occur, within the confines of the facts as shown within the record of this case. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents and each of them as set forth in section III, above, occurring in connection with the operations of the Respondents 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 burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents and each of them have engaged in unfair labor practices in violation of Section 8(b)(4)(i) and (ii) (B) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to remedy the unfair labor practices and otherwise effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Malan Construction Corporation, Inc., The Berti Company and Ceco Steel Products Company, is each an employer engaged in commerce, and the Respondent Union and each of them are labor organizations, all within the meaning of the Act. 2. By inducing and encouraging employees of The Berti Company and other employers, to engage in strikes or refusals in the course of their employment to per- form services, with the object of forcing or requiring said employers and each of them to cease doing business with Malan, and forcing or attempting to force Berti to cease doing business with Malan, the Respondents and each of them have engaged in and are engaging in unfair labor practices affecting commerce within the mean- ing of Sections 8(b) (4) (i) and (ii) (B) and 2(6) and (7) of the Act. [Recommended Order omitted from publication.] The Little Rock Downtowner, Inc. and Hotel-Motel Restaurant Employees Union, Local No. 200, Hotel and Restaurant Em- ployees and Bartenders International Union, AFL-CIO. Ca$es Not. 26-CA-1320-.2, 26-C-4-1365-2, 26-C-4-1407, and 26-CA.- 1413. July 29, 1963 DECISION AND ORDER On April 16, 1963, Trial Examiner Alba S. Martin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent 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 Intermediate Report. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its power 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 143 NLRB No. 96. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Inter- mediate Report and the entire record in this case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This consolidated proceeding, with all parties represented , was heard before Trial Examiner Alba B. Martin,' in Little Rock, Arkansas, on November 19, 20, 21, and December 27 and 28, 1962, on complaints 2 of the General Counsel and answers of The Little Rock Downtowner , Inc., referred to herein as Respondent and the Com- pany. The issues litigated were whether Respondent unlawfully interrogated, threat- ened, made promises of benefit to employees ; requested employees not to support the Union; requested the employees to discover and report to Respondent the union sympathies and activities of other employees and to persuade other employees to vote 'against the Union; intimated to employees that it would discover how they voted in a Board-conducted election ; told employees that if the Union won the election Re- spondent would never sign a contract , that bargaining would go on and on, that the Union would have to call a strike, that the Company would then replace the strikers and the strikers would be out of a job. Litigated also were the issues of whether Re- spondent unlawfully discharged three employees and whether , immediately after the Union won an election, Respondent discriminated against employees in reprisal and unilaterally changed working rules and conditions , thereby violating Section 8 (a) (1), (3), and (5) of the Act. At the conclusion of the hearing the General Counsel and Respondent presented short oral arguments . No briefs were filed. Upon the entire record and my observation of the witnesses , I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Little Rock Downtowner, Inc., Respondent herein , is an Arkansas corporation which operates a motel in Little Rock, Arkansas, the only motel involved herein. Respondent is a wholly owned subsidiary of the Downtowner Corporation , a Tennes- see corporation, which operates motels in Tennessee, Arkansas, and various other States. Respondent and the Downtowner Corporation, herein referred to as the Tennesee Corporation, operate as a single integrated enterprise , having some common officers and some common members of the board of directors . The officers and directors of the Tennessee Corporation formulate and administer a common labor policy for the two corporations . Under these circumstances the officers and super- visors of the Downtowner Corporation who participated in the execution of this common labor policy among Respondent's employees were acting as agents of Re- spondent and Respondent was responsible for their statements and activities . During the 1 -year period prior to the issuance of the several complaints herein in October, November, and December , 1962, the Tennessee Corporation had gross revenues in excess of $500,000 and purchased and received goods valued in excess of $10,000 from points directly outside the State of Tennessee ; Respondent purchased and 1 The erroneous spelling of this name in the record is hereby corrected to read as stated herein. 2 The charge in Case No. 26-CA-1320-2 was, filed July 13, 1962 , the complaint August 17. The charge in Case No. 26-CA-1365-2 was filed September 5, 1962 The consolidated complaint in Cases Nos . 26-CA-1320-2 and 26-CA-1365-2 was issued October 26 The charge in Case No 26-CA-1407 was filed November 5, 1962 , the complaint issued and the case consolidated at the hearing herein on November 20 at pages 377-380 of the transcript of the record . The charge in Case No . 26-CA-1413 was filed November 26, the complaint issued December 14, and the case consolidated with the others on December 27 at pages 772-773 of the transcript. A...0I . THE LITTLE ROCK DOWNTOWNER, INC. 889 received goods valued in excess of $10 ,000 directly from points outside the State of Arkansas; and Respondent rented more than 25 percent of its rental units to transient guests who remained for less than 1 month and received more than 25 percent of its rental income from transient guests who remained less than 1 month . Respondent admitted, and I find that it is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Hotel-Motel Restaurant Employees Union , Local No. 200, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Upon a petition filed by the Union on May 31, 1962,3 in Case No. 26-RC-1789, of which I take official notice, on June 15 the Union and Respondent entered into a stipulation for certification upon consent election, setting the election for July 12. The earliest union meetings of employees referred to in the record occurred at Coachman's Inn in Little Rock on June 25, the first about noon, the second that afternoon. During the noontime meeting the manager of Coachman's Inn informed Lawrence C. Arnett, manager of Respondent, over the telephone, that the meeting was being held, and, according to the credited testimony of employee Laura Mae Tackett, who by her demeanor impressed me as a very credible witness, Manager Arnett described to Davis the appearance of certain people, the color of the clothes they were wearing, the color of their hair, and whether they wore glasses. Shortly after the telephone call Manager Arnett said to employee Tackett that he knew the wait- resses were going to attend the meeting but he was surprised to learn that the office help was interested. Arnett added that he understood another meeing would be held that afternoon and he asked if Tackett, an office employee, was going to attend. He also asked her where the meeting would be held, at what time, and what about. Arnett asked Tackett not to mention that he had asked her anything about the meeting. That afternoon Manager Arnett asked another office employee, Jodie Lawson, also a credible witness, how the meeting went. Lawson had attended the noon meeting. Upon the entire record considered as a whole I find that these interrogations of employees Tackett and Lawson reasonably tended to interfere with, restrain, and coerce employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1). During the week of June 25 Arnett told Tackett, a trusted employee who worked on the front desk of the motel near Arnett's office, that Mr. Matthews (president of the parent Tennessee Corporation) was against the Union, that he would never sign a contract with the Union, that he would come to Little Rock and clean house, that all he would do would be to bargain on and on and that all the Union could do would be to pull the employees out on strike, in which event the Company would hire new employees. During this week also, according to the credited testimony of Tackett, Manager Arnett said that he wanted everyone to vote for the Company, that the Company could do more for the employees than the Union could, that the Union could not do anything because the Company would never sign a contract. One time during the week of June 25, Arnett told Tackett that he had received a telegram from the Union asking him not to question the employees about the Union, Arnett adding, "See, the Union will not protect you." Arnett's threat that Matthews would clean house, which in the context was clearly a threat against employees' economic security, and his interference with Section 7 rights by the creation of an atmosphere of futility in stating that President Matthews would never sign a contract and all the Union could do for the employees was pull them out on strike, were further violations of Section 8 (a)( I) of the Act. During the 10-day period prior to the July 12 election three of the parent Tennessee Corporation's top officers and three of its field supervisors arrived at the Little Rock motel and checked in. Five, including the executive vice president in charge of operations, arrived July 2. The executive vice president, R. L. Kirkpatrick, arrived July 2 and left July 3, rearrived July 10 and left July 12. The vice president in charge of operations, Don T. Baker, arrived July 2 and left July 3, rearrived July 9 and departed July 12. The three field supervisors arrived July 2 and departed July 13. In addition, the president of the parent corporation, Matthews, arrived 'All of the events herein occurred in 1962 unless otherwise noted. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 11 and departed July 12. Respondent contended in substance that this vast official presence related primarily to the curing of certain complaints it had received from customers and not at all to the upcoming election . The entire record estab- lished, however, and I find, that an important reason was to defeat the Union at the election . On July 3 the executive vice president assembled the 40-odd employees and gave them a strong antiunion speech ; in addition, during this period several of these executives and supervisors , as well as Manager Arnett, Assistant Manager Gary Wilson, and newly hired Personnel Director Emily Garwood , interrogated and talked with individual employees in an attempt to persuade them to vote against the Union at the election. The parties stipulated the contents of Executive Vice President Kirkpatrick's July 3 speech. His remarks included the following: I told them that I thought that they were all good employees , and that I wanted them to understand the true facts , and the facts were simply that the union's only way of getting anything for the employees or to force The Down- towner Corporation to do anything was to call the employees out on a strike. If the union should call a strike, that the laws of this country gives management a right to hire people to take the employee's [sic] places that have gone out on strike. [Emphasis supplied.] I asked them if they fully understood that if they go out on a strike called by a union that we could replace them and they would be out of work, they would have no job ... . * * * * * * * I stated as a matter of fact that management felt very sure that it could do more for the employees without a union, but management reserved the right to make the decision as to what was best for its employees. * * * * * * * I further stated that even if the employees voted for the union or against the union, it made no difference as to what the company 's policy would be in the future concerning job changes and wage increases or decreases at The Little Rock Downtowner ; that the company would continue its policy of pursu- ing that of good sound business and would review each and every employee's work record and job assignment as it had done in the past. * * * * * * * Some time in the early part of the speech I stated to the best of my knowledge that The Downtowner Corporation did not now have any contracts with any unions and that our position was that we opposed the union movement. I did state that we were employing some individuals who were members of unions and that we did employ union and nonunion members in some Downtowners. I said, however, that we had not signed any union contracts. The record contained no suggestion that at this time a possible strike, economic or otherwise, was being discussed by or rumored among the employees . Thus it appears beyond a doubt that Kirkpatrick , in introducing the thought of a strike in this speech, timed as it was a few days before the first election , was intentionally threatening employees with loss of their jobs rather than merely abstractly instruct- ing them in the consequences of an economic strike. Cf. Hoffman-Taff, Inc., 135 NLRB 1319, 1321 . Further, informing the employees that the Union's only way of getting anything for the employees was to call a strike, that management reserved the right to make the decision as to what was best for its employees and that the election of the Union would have no impact upon the Company's policy in the future concerning wages and job changes , was reasonably calculated to create an atmos- phere of futility and to discourage support for the Union among employees. By such threat and message of futility Respondent interfered with, restrained, and coerced employees in the rights guaranteed in Section 7, thereby further violating Section 8 (a) (1). Cf. The Trane Company, 137 NLRB 156.4 4 Respondent contended in substance that as the Board set aside the original election because of this speech (Case No. 29-RC-1789) the matter was res judicata in the later proceeding before me. But the issue in the representation case was whether the employees had been deprived of their free choice at the balloting; the issue here was whether Re- spondent had violated the law. Further, in Its Decision, Order, and Direction of Second Election the Board specifically stated that it was not passing upon whether the Act was violated and pointed out that this was a question for the forthcoming complaint case, referring to the proceeding herein. Therefore the matter was not res judicata as to a vio- THE LITTLE ROCK DOWNTOWNER, INC. 891 On July 2 while Supervisors Burns and Parsley were engaging employee Tackett in a conversation about the Union, telling her what the Company could do for the employees and what the Union could not do, one of them asked her if she had signed a union card and if she had attended a union meeting, according to the credited testimony of Tackett. On another occasion between July 2 and 12, Super- visor Burns said to Tackett that she had been with the Company a long time and had a great influence over the other employees and he would like for her to talk to them about the Union-his communicated intention obviously being that she talk in favor of the Company and against the Union. This interrogation and inter- ference were further violations of Section 8(a) (1). The day before the election Vice President Baker summoned Tackett and talked to her about the Union. During this conversation he told her that President Matthews would never sign a contract with the Union, that Matthews would bargain on and on and all that the Union could do would be to pull the employees out onto a picket line and that the Company had 50 new employees that it would call in and put to work. By contributing further to the atmosphere of futility this was a further violation by Respondent of Section 8(a) (1). Although Baker denied this and most of the testimony attributed to him, I do not credit his denials. By his demeanor he did not impress me as a trustworthy witness on controversial matters. Also his pretrial affidavit and his testimony were in complete contradiction as to the purpose or purposes of the vast official presence in Little Rock shortly before the election. The day before the election or on election day, Assistant Manager Wilson, who was in charge of the restaurant, said to employee Tackett that since he was a super- visor and he had not talked to her about the Union he felt it was his place to say something to her. He urged her to vote for the Company. He said he had heard she was going to be a union executive. She said that she did not know anything about that. He said, "Don't be so sure that the Company will not know how you vote." Three or four days after the election, which the Union lost, Assistant Manager Wilson said to Tackett, according to her credited testimony, "I hear you are still a good friend of Mr. Yeargan's. When was the last time you have seen him?" Yeargan was the union representative whom the employees knew and with whom they were in contact. Wilson's remark about company knowledge was interference with, and his interrogation concerning Yeargan reasonably tended to interfere with, restrain, and coerce, employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby further violating Section 8(a)(1). On July 7 Manager Arnett told employee Jodie Lawson that the Company could and would sit at the bargaining table for years and years and never reach an agreement. By contributing further to the atmosphere of futility, this was a further violation by Respondent of Section 8(a) (1). Busboy Kermit Hadley credibly testified that on about the day before the first election, which would have been July 11, Supervisor Burns took him to a room where Burns and Garwood, newly employed personnel director, talked to him about his job and the Union. During the conversation Supervisor Burns asked him, ac- cording to Hadley's credited testimony, if he liked his job and if he was satisfied with his pay. Garwood asked him what a union could do for the employees that the motel could not do for them. At the end Burns asked Hadley if he had talked to any of the other employees about the Union. Although Garwood denied knowing Hadley and denied ever being in a room with Burns and a busboy, and although Burns testified that Garwood left the room just as he and Hadley entered it, )in the light of the entire record considered as a whole I believe and find that the con- versation took place substantially as testified by Hadley. By their demeanor and their testimony Burns and Garwood impressed me as willing executors of Respondent's antiunion policy. I conclude that these interrogations of Hadley by Burns and Garwood, occurring during the peak of Respondent's antiunion activities leading up to the first election, reasonably tended to interfere with, restrain, and coerce em- ployees in the rights guaranteed in Section 7, Respondent thereby further violating Section 8(a) (1) of the Act. On the day of the election but before the election Assistant Manager Wilson asked Hadley, according to the latter's credited testimony, if he knew that two of the big union men were drawing time now. This was another way of saying that union leaders were bad people, and was an expression of a view, argument, or opinion protected under Section 8(c) of the Act. lation of the Act. Respondent contended also that this speech was free speech protected by Section 8(c) of the Act. I hold that the quoted portions containing the threat and the message of futility were not protected by Section 8(c). 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 days before the July 12 election , as waitress Yvonne Baxter , who by her demeanor impressed me as a very credible witness, was standing behind the coffee urn in the restaurant picking pennies out of tips, Assistant Manager Wilson came up and laughingly took 50 cents out and said that that was his cut, that "I am going to take my cut like the Union does." He then said to a passing employee, "I have got my 50 cents . I will take mine like the Union does." Then, addressing Baxter, he said, "No kidding, how do you feel about the Union?" Baxter replied she did not think that that was a very fair question . Wilson said, "Well , how do you feel about me?" Baxter replied that he was one of the best employers 5 she had ever had. Wilson replied that if she voted for the Union she would be voting against him. He added that he hated the Union, that under the Union a cook in the kitchen could tell us to go to hell and I could not do anything about it. Under all the circumstances of this conversation and this situation Wilson 's interrogation as to how Baxter felt about the Union reasonably tended to interfere with, restrain, and coerce employees in the rights guaranteed in Section 7, Respondent thereby further violating Section 8 (a)( I) of the Act. As a potential guest approaches the small lobby of the motel from the outside he sees a sign painted on the window glass to his left saying "No Tipping Please." The door off the lobby to the left, almost just behind the sign , goes into the restaurant. The waitresses felt that the no-tipping sign unnecessarily deprived them of tips, and Cashier-Hostess Vicki Ventress spoke to Manager Arnett about removing the sign or clarifying it. Arnett showed Ventress a sketch of a new sign saying in substance "No Tipping of Bellboys and Porters." A couple of days before the July 12 election Manager Wilson told at least two and possibly more waitresses , in the restaurant, that they were going to change the "No Tipping Please" sign to "No Tipping of Bellboys and Porters." He told at least one waitress , Mildred Mullings , an honest and credible witness, that they had a sign printed up in the porter 's office but that he could not put it up at that time . In the conversation with Yvonne Baxter given just above when Wilson was joking about and interrogating Baxter about the Union , Wilson told her that he knew the no-tipping sign was hurting the girls and that they were working on that, that they were having a new sign made. In fact up to the time of the hearing herein, the sign had not been changed , but at a time not given in the record the match folders Respondent distributes in the restaurant were changed to read, "No Tipping of Bellboys and Porters." On this occasion 2 days before the election when he was talking with Mildred Mull- ings, Assistant Manager Wilson said that if they voted the Union down the girls would get a dollar a day raise. On the day of the election Wilson told three waitresses together that he wanted to remind them that they were getting a raise any time and that the no-tipping sign was going to be taken down. Upon the entire record I believe and hold that Wilson's promises to the waitresses in substance that a no-tipping sign more favorable to them would be substituted for the existing sign, and his promise of a wage increase if the Union were defeated at the polls, were promises of benefit which interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7, Respondent thereby further violating Section 8(a)(1) of the Act. As noted above, several of the General Counsel's witnesses, notably Laura Mae Tackett and Yvonne Baxter, impressed me as particularly honest and credible wit- nesses. Their testimony and that of other General Counsel witnesses, as noted above, told the story of a respondent dead set upon keeping the Union out of the Little Rock motel. This was confirmed by the executive vice president's speech to em- ployees, which exposed Respondent's complete hostility toward the collective-bargain- ing process. As high officers in the hierarchy Vice President Baker, Manager Arnett, Assistant Manager Wilson, and also Supervisor Burns and Personnel Manager Garwood, were charged with carrying out this antiunion policy. Under these circum- stances it is not improbable that they committed the violations found above, although they denied all, or most, of the violations. Manager Arnett was in the hearing room during all, or most, of the testimony, and when he testified his testimony seemed more designed for the expediency of the testimony than for the conveyance of the truth as he knew it. In addition, at times he was either evasive or his memory failed on matters it should have recalled. For these reasons Arnett did not impress me as a credible witness on controversial matters and I do not credit his denials. Assistant Manager Wilson was a young man who was no doubt grateful to Respond- ent for having the responsibility over the restaurant and the kitchen personnel. By his witness-stand demeanor he impressed me as one who would earnestly undertake 5 The word "employees" on line 18, page 120, of the transcript of the record, is hereby corrected to read "employers." THE LITTLE ROCK DOWNTOWNER, INC. 893 to execute his employer's policy. Under these circumstances, I believe he engaged in the statements and actions attributed to him above, despite his denials, which I do not credit. Jessie McClain was alleged to be an excellent breakfast cook and salad girl, but her testimony was not trustworthy enough to be helpful in resolving the issues herein. Concerning facts in the Eddie Robinson discharge case she gave contradictory ver- sions in her testimony and in a pretrial statement. As she did not impress me as a credible witness I do not rely at all upon her testimony in any of the findings and conclusions herein. B. The discriminatory discharge of Eddie Robinson Eddie Robinson began working for Respondent in July 1961. The Little Rock motel had opened only a few months before. Respondent's witnesses testified that Robinson was a good employee, that he performed well the duties that he performed, and that he had never before caused any trouble. He was discharged abruptly the day after he served as a union observer at the election, July 13, 1962, allegedly for insubordination. Until about June 1, 1962, Robinson served primarily as a dishwasher in the kitchen, but during this period he also worked some as a busboy, at serving banquets, and at room service. On about June 1, 1962, Assistant Manager Wilson told Robinson that Kermit Hadley had quit and when Robinson asked for Hadley's job Wilson said that he could have it, according to the credited testimony of Eddie Robinson, who impressed me as a very honest witness. Hadley did room service, busboy work, and served banquets, but had never done any dishwashing, so Robinson's taking Hadley's job meant that hereafter Robinson would perform no dishwashing and much more of the other three functions. Apparently Hadley remained away only 1 day and then he returned and resumed his regular work. However Robinson was allowed to stay on his new assignment and from then until his last day of employment, July 13, Robinson did no dishwashing and worked only at the other three functions. This meant a considerable raise to Robinson because he continued receiving the same 56 cents hourly wage but in addition received tips for room service and serving banquets, the latter amounting to 15 percent of everything sold in the banquet room according to the credited testimony of Robinson and Hadley. During this period he served many banquets. Several times in several days shortly before the first election Supervisor Burns asked Robinson how he was going to vote in the election. The first time Robinson replied he had not thought about it much. The next time Burns asked him if he had made up his mind, Robinson replying that he had not but he imagined he would vote "No." The third time Robinson replied, "I think I will vote, No.' " Burns said, "good." A day or so before the election Burns asked Robinson to check and see how the other dishwashers planned on voting, and later Robinson reported that they had not made up their minds. Burns would not have done this if he had not felt assured Robinson was on Respondent's side and was going to vote against the Union. One day shortly before the first election Assistant Manager Wilson asked Robinson how he planned to vote and Robinson replied he planned to vote "No." Wilson smiled. A day or two before the election Wilson told Robinson to check and see how Bertha Foster, a cook, planned to vote. Robinson later reported that Foster had not made up her mind. Although Burns and Wilson denied these interrogations, I do not credit their denials. By these interrogations and these efforts to get Robinson to inform on other em- ployees, Respondent reasonably interfered with, restrained, and coerced employees in the rights guaranteed in Section 7, Respondent thereby further violating Section 8(a)(1) of the Act. On the evening of July 11, the night before the election, Robinson nervously approached three officials, including Assistant Manager Wilson and Supervisor Burns and tentatively asked them whether it would be all right, and then told them, that he was going to serve as a union observer at the election the following day. He asked them if he would lose his job if he did and they told him he would not. He assured them that in any case he would vote for the Company. Early in the conversation Assistant Manager Wilson told Robinson that he would rather he not serve as a union observer. Nevertheless Robinson did so serve. Robinson's work schedule called for him to report for work on Fridays at 7 a.m. although on other days be reported at 6 a in. Assistant Manager Wilson unquestion- ably knew this. When Robinson reported for work a few minutes before 7 on the day after the election, Friday, July 13, Wilson asked him "Aren't you late9" Robin- son replied that he was not. According to undenied and credited testimony prior to 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Wilson had never said anything to him about being late. Then Wilson, for the first time since June 1, told Robinson he wanted him to go to washing dishes, an assignment which Robinson immediately believed to be permanent. Robinson, obviously upset, nervous, and stuttering more than usual, protested that this change of assignment was because he had served as the union observer. Wilson insisted and Robinson went to washing dishes. Respondent's explanation of this action was that some five carts of dirty dishes from the night before, as unusually large number, needed washing and so Wilson told Robinson to wash them. Wilson testified also that the waitresses were having to wash coffee cups for customers. Carthy Alexander was already washing dishes that morning, as well as pots and pans, which both functions he had also performed alone the previous Friday, although normally the dishes and pots and pans were washed by separate persons. Also, Walter Ross, a new employee who had been washing dishes mornings that week, was due in at 8:30 that morning. The record is silent as to how many carts of dirty dishes were normally left over for the morning dishwashers from the night before. Respondent did not explain why Alexander was not assigned to washing the cups and any other dishes immediately necessary for the waitresses, by hand if necessary. Robinson was a faster worker than Alexander but it was not proven that, if he had been assigned to it, Alexander could not have fairly quickly performed the necessary work that morn- ing Certainly Respondent's proof failed to convince that the state of affairs that morn- ing was much other than normal or that it required the sudden, unforewarned, and insistent change of Robinson's duties. Of significance also is the fact that although Bums and Wilson had been talking for several days, since, in fact, shortly after Burns' arrival on July 2,6 of assigning one of the morning shift dishwashers to the afternoon shift and although Wilson had the new employee Ross in mind for that assignment, he did not give the new assignment to Ross until that morning when he came in at 8:30, when he could have used him to relieve Robinson who was, to Wil- son's knowledge, running the dishwasher under great protest because of his sudden "demotion." That Ross was not put to work that morning when he reported at 8:30 was understandably taken by Robinson to mean that Robinson was permanently "de- moted" to dishwashing. No company official disabused Robinson of that notion that morning. In fact Burns testified that Wilson told Robinson that morning that he "wanted" to assign a day "boy" to the afternoon shift-which testimony strongly suggested that Wilson told Robinson that morning that he was assigning Ross to the afternoon shift. This would have further convinced Robinson that since he was put back to dishwashing on the shift Ross was now leaving, this meant that he, Robinson, was being permanently demoted to Ross' duties of dishwashing on the morning shift, a job from which he thought he had graduated some 6 weeks before. Respondent offered no convincing reason why Wilson chose that morning, the day after the Union lost the election, to "demote" the Union's only observer at the polls and the only person who signed the tally of ballots on behalf of the Union,7 or why it chose that particular morning, when it had been considering the action for some days, to transfer a morning shift dishwasher to the afternoon shift and to announce to the observer that it was doing so while concurrently transferring the observer to morning shift dishwashing. The entire record demands the conclusion, which I reach, that Respondent took these two steps at this time in reprisal against Robinson for his assistance to the Union and to provoke Robinson into some sort of action which could be held against him. By discriminatorily demoting Robinson, Respond- ent violated Section 8(a) (3) and (1) of the Act. To be further noted is that when Robinson protested this demotion Wilson did not assure him that it was but temporary and only to get the five cartloads of dirty dishes cleaned up. In fact Robinson continued washing dishes until 10:30 or so that morn- ing, when he was summarily discharged, and during that time he had presumably finished the five carts of the night before and also most of the breakfast dishes of that morning. During the course of the morning Robinson approached Wilson in the storeroom and asked him why Wilson had changed him to dishwasher. Wilson replied only that he had to have somebody to wash dishes. Further to be noted is that Robinson had been scheduled to serve three banquets that day, one at breakfast, one at lunch, and one at dinner-which Wilson, as manager of the restaurant, must have known. It was reasonably foreseeable by Wil- son that depriving Robinson of serving these scheduled banquets, thereby depriving him of his percentage of such service, would be disturbing and upsetting to Robinson. "In his pretrial affidavit Wilson admitted he decided on July 5 or 6 to make this change. 71 take official notice that Robinson was the only person who signed the tally for the Union, from the Board's records in Case No. 26-RC-1789. THE LITTLE ROCK DOWNTOWNER, INC. 895 Wilson and Robinson had had a smooth running relationship during the year that Robinson worked under Wilson, which relationship Wilson made inharmonious by his handling of Robinson the morning after the election. Through its evidence Respondent contended in substance that Robinson was not demoted on this occasion, that dishwashing had been one of Robinson's regular duties throughout his employment. But the record showed that whatever the Company considered his work category, his actual functions had been changed by Wilson about 6 weeks before and since then Wilson had not told Robinson to do any dishwashing. As during this 6-week period he had clearly served more parties and performed more room service than theretofore and had consequently received tips and percentages in addition to his regular 56-cent an hour wages, in a very real sense to Robinson he had been promoted in early June and he was being demoted on July 13. Respondent contended in substance that employees in the same classification ran the dishwashing machine, waited on banquets and parties, did room service, served as busboys, washed windows, and so Robinson was not "demoted" on July 13 but in being put to dishwashing was simply being told to perform one of his regular duties. It was not claimed that the classifications or this alleged classification were in writing. However, Kermit Hadley was a banquet server, room-service boy and busboy and he never washed dishes during the approximately 9 months that he worked for Respondent. While they worked together after June 1, Hadley and Robinson performed these three functions, and Robinson did no dishwashing. It was not shown that other employees who washed dishes, such as Stanley Banks, performed any of these other three duties. In his pretrial affidavit Wilson admitted that a busboy, Robert Stewart, did no dishwashing. On these facts and on the entire record I find that dishwashing and the other duties were in fact not the same classification, that Robinson had worked for some 11 months as a dishwasher when on June 1 he was promoted to the other functions, and that on the morning of July 13 he was demoted to dishwashing. At about 10:30 that morning, Friday, July 13, while Robinson was running the dishwasher, the cashier-hostess, Vicki Ventress, came into the kitchen and asked Robinson to bring an empty dish cart over to the other end of the kitchen at the entrance to the restaurant. Performing this service was one of the regular duties of the busboy, not the dishwasher. Robinson replied, according to his credited testi- mony, that he would do so as soon as he got caught up with the dishwashing, that Assistant Manager Wilson had told him to wash dishes, and that he had a lot of them to do. Ventress testified in substance that he acted discourteously toward her by humming while she was speaking. Ventress testified that 2 or 3 minutes later she returned to the kitchen and asked Robinson if he was going to bring a cart over and he replied that he was not. As Robinson was a very trustworthy witness I credit his denial that Ventress came out a second time or that he told her that he was not going to bring the cart over. Shortly thereafter Assistant Manager Wilson, to whom Ventress had spoken, came into the kitchen and from a distance shouted with intensity a command to Robinson to bring a "damn cart" out here right now. According to the undenied and credited testimony of Robinson this was the first time in their year-long working relation- ship that Wilson had ever "yelled at" Robinson or "cursed at" 8 him, although he had "yelled at" others. Robinson replied, according to his credited testimony, that he would as soon as he got caught up, that Wilson could go ahead and fire him because Robinson knew that Wilson was going to anyway. Although Robinson obviously displayed unwillingness to snap to and carry out Wilson's order in the instantaneous fashion that had theretofore probably been his custom, I do not credit the testimony of Ventress and Wilson that Robinson outright verbally refused to take the cart out. To reach such a conclusion would require a finding that a compliant and valued employee was provoked by the events of that morning into the sudden abandonment of his customary restraint and into open in- subordination. Although provoked he was, and justifiably under all the circum- stances, his work record of a year, his testimony, and his demeanor as a witness do not permit the conclusion that he was outright insubordinate. Even if he was in- subordinate, his actions were neither violent nor antisocial and were a natural and foreseeable consequence of Respondent's actions toward him that morning. Re- spondent had greatly provoked him by transferring him from a greater to a lesser job and had then angrily barked out orders to him to perform a duty of his former job as well. Not only provoking but confusing, the natural and foreseeable result was S Reminded on cross-examination that Wilson was his "boss," Robinson replied, "That does not make any difference. There is a right way to talk to a cat or a dog, even." 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uncertainty in Robinson's mind as to what was happening to him and as to what his duties were. It was foreseeable that Robinson would interpret this as a body blow because of his serving the Union as an observer and would react to these barked orders with understandable hesitancy, even refusal. I hold that even if he refused to move the cart, it was provoked insubordination which neither caused nor justified his discharge. Wilson reported to Manager Arnett, who had already been informed by Ventress, that Robinson had refused to take a cart out, and Arnett immediately reacted that Robinson had been insubordinate and should be discharged forthwith. Assistant Manager Wilson urged delay on the ground that he needed Robinson. The fact that Wilson urged delay is proof that Robinson had not been outright insubordinate, for in that event Wilson would doubtless have concluded that he could get no more good work out of Robinson and would have concluded with Arnett that he should be let go immediately. In any case, Arnett instructed Wilson to bring Robinson into the office and there they discharged him allegedly for insubordination in refusing to carry out Wilson's order. Upon the above facts and considerations, the timing involved, Respondent's dem- onstrated hostility to the self-organization of its employees, Respondent's demotion of Robinson intending to provoke him, and Manager Arnett's seizure upon the incident and insistence upon the immediate discharge even though Wilson wanted to postpone it-and upon the entire record considered as a whole-I believe and find that the alleged insubordination, provoked by Respondent's actions, was a pretext for the discharge of the union observer the day after the election, and that the real reason for the discharge was because of Robinson's union sympathy and activity and for the purpose of discouraging further employee activity in, sympathy for, and membership in, the Union, Respondent thereby violating Section 8(a)(3) and (1) of the Act. C. The Discriminatory discharge of Irma Baruday Irma Baruday worked for Respondent as a waitress in the restaurant of the motel for 16 days, from Sunday, August 19, to Labor Day, Monday, September 3. Although Respondent had quite a turnover of waitresses in the restaurant, and although as a waitress Baruday had shortcomings from Respondent's point of view, she was a valuable enough employee so that when she expressed her strong desire to be excused from work the last hour of work Sunday, September 2, and all of Mon- day, September 3, to prepare her children for school, Respondent would not permit it. On this Sunday occurred the incident which, upon consideration of all the evidence, I find led directly to her discharge. Early Sunday morning, as Manager Arnett was having breakfast in the restaurant, the Union's secretary-business agent, Earl Yeargan, came into the restaurant and sat facing Arnett in a booth several removed from the booth occupied by Arnett. Yeargan on behalf of the Union had earlier filed the charge against Respondent alleging the discriminatory discharge of Eddie Robinson. Arnett had just finished a turn on the night shift at the front desk of the motel and was tired, but his remarks upon seeing Yeargan expressed, as I find upon the entire record, his true sentiments. Before Yeargan arrived Arnett was in a good mood, according to the credited testimony of Tackett who worked closely with him on the front desk and knew him well, and Patsy Watts, a waitress and credible witness. After Yeargan had arrived Watts asked Arnett why he had stopped smiling and what he was looking mad about. Arnett replied that "no one could smile and be happy when a man like that was in his presence." The hostess-cashier then on duty and within hearing distance, Westbrook, expressed this quotation as "who could smile facing a thing like that." Watts asked what was wrong with Yeargan. Arnett replied that Yeargan was the lowest kind of person who made his living off of small people. At about this time Baruday went over to Yeargan's booth, had a short conversation with him and eased down onto a seat in the booth for a moment or so. Although Respondent claimed otherwise I credit Patsy Watts and Baruday that the latter did not light a cigarette. When he saw Baruday sitting at the same booth with Yeargan, Arnett said to Watts that, "he did not like this, and that he was going to put a stop to it, and that he did not like that kind of person in his place of business, and he said that Mr. Yeargan was a damn scum, and he did not see how anybody could have anything to do with him." Westbrook quoted Arnett as saying that anyone "who would go over and associate with, or sit down with something like that, was low- rating themselves." Baruday had had no relation to the organizational movement among Respondent's employees and she spoke to Yeargan because she had known him during the year that she had worked at another motel in Little Rock. However, Arnett's above re- marks indicated beyond a doubt that Arnett immediately interpreted the situation as placing Baruday in Yeargan's camp and subject to censor for having anything to THE LITTLE ROCK DOWNTOWNER, INC. 897 do with Yeargan. Arnett testified in substance that while she was with Yeargan, Baruday neglected a customer at her station until he asked for service. Baruday's testimony that she did not neglect any customers on that occasion is credited. In any case, Arnett's above remarks showed that his real concern was Baruday's con- nection with Yeargan and that her alleged delay is taking a customer's order was but a pretext. Just before the end of her shift the following day, Labor Day, Vicki Ventress, hostess-cashier and by then also a supervisor, took Baruday aside into a banquet room and, in discharging her, told her that she was sorry to have to do it but that Arnett had said there were too many complaints against Baruday at the desk. Ventress said nothing about Baruday's having broken any rules for waitresses, nothing about the incident with Yeargan the day before or any other alleged incident of this day. Laura Mae Tackett, who worked on the front desk the same shift that Baruday worked in the restaurant, from 7 a.m. to 3 p.m. credibly testified that she received no complaints about Baruday's work. Evelyn Westbrook, hostess-cashier on the day shift during the three Sundays Baruday worked the same shift, credibly testified that she received no customer complaints on Baruday and that she was a very good waitress. Baruday credibly testified that to her knowledge no customer complaints were ever turned in on her, and that Manager Arnett or Restaurant Manager Atkins had never said anything to her about customers complaining about her. Further, Atkins testified that he knew of no complaints on Baruday at the front desk of the motel and that Manager Arnett never told him of any complaints about Baruday. Supervisor Ventress had that Sunday off. On Monday morning when he came to work, according to Manager Arnett, he told Ventress about the Yeargan-Baruday incident of the previous day and also that he had had complaints on Baruday's service, and that it was up to Ventress to straighten her out or do something about it. By the latter phrase Arnett testified he meant discharge and that Ventress so under- stood him. In her testimony, Ventress corroborated that Arnett told her on Monday about the Yeargan incident. Yet in discharging Baruday, Ventress men- tioned only the alleged complaints and said nothing about the Yeargan incident- possibly because she might have deemed discharging for that reason in conflict with the law. Seven days later, on September 10, according to the credited testimony of Evelyn Westbrook, Yeargan and his wife tried to enter the restaurant just after the street door had been locked for the night. Seeing Yeargan, Manager Arnett referred to him as that union man (calling him a name ), said that he was one person who was not welcome in here, and added that he had just fired one girl for going over and sitting down with him the last time he was in here . Westbrook herself was discharged within an hour after this incident, so the incidents of that evening were likely to have impressed themselves upon her memory. As a witness Westbrook had a strong bias against the Respondent because of what she considered its unfair treatment of her. Nevertheless by her forthright manner and her demeanor, she impressed me as a credible witness. Arnett denied the statements attributed to him and denied being in the restaurant at that time. His denials are not credited. In substance Respondent claimed in defense that Baruday was discharged because she was not a satisfactory waitress, because of an incident of neglect of six customers on Sunday, because she treated a "high society lady" too informally on Monday, and because waitresses were not supposed to sit with customers as she did with Yeargan. Supervisor Ventress and Virgil Atkins, who on August 14 was hired as manager of the restaurant when Gary Wilson left, painted a dreary picture of Baruday as a sloppy, unkempt, indifferent, unrefined, hash-house waitress who smoked whenever and wherever she wanted to and failed to maintain the standards Respondent sought to maintain . If this was a true picture of Baruday it is unbelievable that Respondent would have kept her as long as 16 days even though during this period the restaurant was short of waitresses. As their description of Baruday's shortcomings was obviously greatly exaggerated, I do not credit their testimony. To be noted in this connection is that the honest and credible witness, waitress Yvonne Baxter, who was on almost the same shift with Baruday, testified that she never saw Baruday neglect or fail to give satisfactory service to a customer. Cashier-hostess Westbrook, who worked the same shift as Baruday the three Sundays Baruday worked for Respondent, testified that she was a very good waitress. If Baruday was as poor and unqualified a waitress as Ventress and Atkins pictured her, one of them, especially Ventress, would have at least once taken her aside and had a frank conversation with her about her alleged shortcomings-but they never did according to Baruday's undenied and credited testi- mony. To be noted further is that other waitresses, notably Patsy Watts and Judy Saunders and two others , from time to time sat with customers with impunity, and that a list of duties and do's and don'ts for waitresses posted on the kitchen bulletin board did not prohibit sitting with a customer for a short conversation. (The 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Waitresses' Manual" referred to was not produced in evidence. Oral evidence as to its contents was conflicting, uncertain, and unreliable.) Some of the shortcomings assigned to Baruday were shared by other waitresses, without thought of discharge by management-such as sitting down and smoking in a back booth when not on an official break period. Waitresses were given only one break period per 8-hour shift, but in practice they sat down a few moments when they were waiting for orders to come out or were not busy with their customers or when they had no customers at their stations. Once, about the middle of November, Supervisor Ventress made the waitresses stand at their stations throughout their shift whether they had customers or not; but this rule broke down in a couple of days because of the hardships it imposed, and when thereafter the waitresses resumed their previous habits, Ventress overlooked it. According to Respondent's witness Atkins, on Sunday, the day before her discharge, six customers at a table assigned to Baruday walked out complaining that they could get no service. Atkins and Ventress assigned this as a principal cause of her discharge and the following morning when Ventress came to work Atkins told her of the incident and told Ventress to discharge Baruday when she could find a replacement. Yet neither on Sunday nor Monday did either Atkins or Ventress say anything to Baruday about this alleged incident, although Ventress allegedly criticized Baruday for something almost daily. Baruday denied knowledge of any customers walking out on Sunday. Atkins admitted that Baruday may have gone to the bathroom during this alleged walkout. Nor, apparently, did Atkins or Ventress mention the alleged walkout to Arnett-not even, apparently, when Arnett told Ventress Monday about the Yeargan-Baruday incident of Sunday. It appears to me, and I find, that if this incident was really a contributory cause of the discharge, Ventress would have told Arnett about it when the latter was informing her about the Yeargan incident and telling her in substance to straighten Baruday out or discharge her. Upon the above considerations and the entire record considered as a whole I hold that the alleged walkout of the six was not a contributory cause of Baruday's discharge but was seized upon by Respondent as a pretext for the discharge. The final incident alleged by Ventress to have caused the discharge occurred about I p in. on Monday, when Baruday allegedly approached "a high society lady" and her daughter in a booth by putting her knee in the booth, resting her hand on the back of the booth, and saying, "What will you have?" Ventress told Atkins of this, referring to its as "the last straw" and together they allegedly decided to discharge Baruday immediately. Insofar as the record shows, they never mentioned the incident to Baruday. Thus Respondent assigned several alleged reasons for the discharge, none of which were conveyed to Baruday, and suggested that each of the three supervisors made the decision to let her go for three different reasons. As it appears to me that each of these reasons was but a pretext to hide the real reason for the discharge, I do not credit the defense. When Baruday telephoned Arnett around 5 p.m., Monday afternoon after her discharge, and asked him why she had been discharged, he replied that he knew nothing about it, even though as Respondent's highest local officer and the person in charge of the motel and restaurant he had that very morning given the signal to discharge her. Arnett's duplicity with Baruday is explainable only as a coverup for the real reason for her discharge, which was known to Arnett but not conveyed to Baruday. That the decision to discharge Baruday was in fact made by Arnett prior to the "high society" incident was shown by Ventress' statement to Yvonne Baxter Monday morning prior to the incident that she was going to let Baruday go; and Ventress' later statement to Westbrook that Arnett told her to let Baruday go. Upon the entire record considered as a whole I believe and find that Arnett made the decision to discharge Baruday because she appeared to be friendly with Yeargan when she talked with him and sat down with him, because he therefore suspected her of sympathy toward the Union, and in order to discourage employees' sympathy to, membership in, and activity on behalf of, the Union; Respondent thereby violating Section 8(a) (3) and (1) of the Act. D. Alleged unilateral and discriminatory changes in rules and working conditions Through his evidence the General Counsel contended in substance that the rules and working conditions of the maids were changed by Respondent unilaterally immediately after the Union won the second election on October 30, in reprisal against the employees' union activities and their having selected the Union as their bargaining agent, Respondent thereby violating Section 8(a)(5), (3), and (1) of the THE LITTLE ROCK DOWNTOWNER, INC. 899 Act. Several General Counsel witnesses, maids in the motel, testified that the day after the election the housekeeper and supervisor over the maids, Peters, said to a group of maids as they were reporting for work in the morning substantially that she was going to give them some new rules; that hereafter they would have to report for work on time at 8:30 in the morning, could have only one-half hour off for lunch, were to remain on the job until just before 5 p.m., could no longer watch television or congregate in the guestrooms; that the maids, who were assigned each to a certain floor and each to some 13 or 14 rooms, could no longer go from floor to floor to visit with other maids but would have to remain on their own floor. Peters allegedly made the point that even the union officials, now that the Union had won the election, would tell them and expect them to obey the company rules. Respondent's evidence was in substance that no new rules were instituted after the election, that the attempt to enforce the old rules was begun before the election and at least as early as the beginning of Peters' employment which was Octo- ber 11, 1963, some 19 days before the election; in fact was begun even before the first election in July. Prior to the hiring of Vergie Peters as housekeeper and super- visor over the maids, the latter had been under the head porter, whose supervision was very lax. The result of the laxness which Peters inherited was the wholesale ignoring of the rules by the maids and the development of very poor work habits which the General Counsel equated with working privileges. The maids came in late, took long lunch periods, spent time watching TV in the guestrooms, congregated in the rooms, and talked and smoked and neglected their work. Upon her arrival Peters, who by her demeanor and her testimony impressed me as a very honest and credible witness, found the rooms in dirty condition, dusty, needing vacuuming; the bedspreads and mirrors were dirty, the bathrooms were dirty, the shower curtains were dirty; the bathrooms were without soap, towels, and Kleenex. According to Peters' credible and credited testimony she undertook immediately to correct this situation-and, indeed, to do so was one of the main reasons why Respondent hired her. She tried to get the maids to work harder, do a better job of cleaning the rooms and preparing them and leaving them properly and properly supplied for the guests. She also undertook to see that the maids were better supplied than they had been with equipment, with carts fully equipped. The "Maid's Manual," which was published and distributed long before the elec- tion,9 contained four single-spaced pages of detailed instructions on how a maid should perform her job, including instructions that she should never be late to work, that she should learn to do her work competently and thoroughly, that the bathrooms should be spotless. The proper way to make beds was described. The "Employees' Handbook" 10 which also set forth employee rules, provided, among other things, that employees should report to work on time and work a full shift; provided that deliberately loafing on job assignments would result in immediate discharge. It appears highly improbable to me that Respondent would have hired Peters on October i l to try to get the maids to do their work and do it properly, and then have deferred the beginning of her efforts until the day after the election. Rather it is to be presumed that she instituted her program immediately and carried it forward, as testified by Peters, as diligently and effectively as she knew how. In the face of the above facts and considerations the General Counsel's testimony that the rules were changed immediately after the election and that the effort to get the maids to do their work instead of wasting time in various ways began immediately after the election, was unconvincing, indeed. The effort had been going on for at least 2 or 3 weeks before the election. The General Counsel's pleading and evidence suggested that he might be con- tending that Respondent condoned the sloppy work habits of the maids and their wholesale disregard of the rules, thereby converting these sloppy work habits into vested privileges. The credible and credited testimony did not support this view and this theory. In the first place, condoning such practices would not comport with the high standards of motel service Respondent sought to maintain. In the second place, the believable testimony was that Manager Arnett made efforts with the help of the head porter to maintain supervision over the maids, and he employed Peters because he knew he was losing the battle. He did not condone the bad prac- tices, he simply found himself powerless to prevent them. Certainly, the record is 6 Vice President Baker testified it was published and sent to the motels for distribution, about the middle of 1961. 11 Vice President Baker testified the "Employees' Handbook" was prepared in spring of 1962 and distributed to all the Downtowner motels. 717-672-64-vol. 143-58 goo DECISIONS OF NATIONAL LABOR RELATIONS BOARD devoid of testimony that Respondent told or implied to the maids that they could come to work late and leave early, spend their time talking, laughing, and listening to TV, rather than cleaning the rooms, toilets, bathrooms, rugs, etc. In the light of these considerations the General Counsel's testimony that upon occasion Arnett knew a TV set was on and did not turn it off when a maid was cleaning a room is not convincing that the Respondent condoned the practice. The General Counsel might be contending that the very hiring of Peters as supervisor over the maids had an antiunion motivation. The record did not support this view. Peters' credited testimony was that in her hiring interview with Arnett, the latter told her that he needed a housekeeper very badly, that she might have a hard time getting the motel cleaned up, that he could not keep the maids on the job. Concerning the Union he told her that there had been an election, and there would be another, but "he did not speak against it [the Union] or for it." Respondent had just opened up a new wing and had 13 maids with almost no super- vision. The entire record, including what appeared between the lines of much of the General Counsel's testimony by several of the maids, established that Respondent had a problem in getting the maids to do their work, a problem probably accentuated by the between-elections organizing effort and the liberating feelings some of the maids were feeling and expressing during it. As Peters credibly testified, when she tried to get the maids to do their work some of them openly sassed her. Peters credibly denied these statements attributed to her the day after the election, while freely, easily, and readily answering all questions put to her. Her testimony is credited. I do not credit the testimony of the General Counsel's witnesses 11 concerning the alleged events of the day after the second election and generally because neither individually nor collectively did they by their demeanor and their testimony impress me as sufficiently trustworthy to uphold against the honest and credible denials of Peters, and because their testimony runs counter to the plausible conclusions set forth above. Upon the above facts and considerations, and the entire record, I find that before and after the second election Respondent did not institute new rules or enforce old rules for reprisal and did not thereby violate Section 8 (a) (5), (3), and (1) of the Act. Through the testimony of several witnesses the General Counsel contended in substance that the day after the second election, in reprisal against employees for voting the Union in, Respondent changed working conditions of the maids by there- after issuing them a clean uniform only every second day instead of every day as theretofore. As clarified by the credited testimony of Peters the facts were that on October 28, 29, or 30, a bundle of Respondent's uniforms was lost at the laundry, as a result of which, since Respondent's supply of uniforms was limited, it was neces- sary to make the present clean ones last longer than 1 day. This condition prevailed for only 2 or 3 days and it was not motivated by reprisal against employees for selecting the Union. In substance the General Counsel contended that in reprisal the rotation of days off by some of the maids was prohibited by Peters about 2 days after the election. Peters' denial of any such change is credited. The absence of any change in practice was corroborated by Manager Arnett. In substance the General Counsel contended that in reprisal shortly after the election Respondent imposed a new rule requiring the maids to give a 24-hour notice before leaving because of illness. Because of the improbability of any such rule I credit Manager Arnett's denial of it. E. The alleged discriminatory discharge of Christine Bryant Christine Bryant worked for Respondent as a maid in the motel from the middle of August 1962 until November 5, 1962, when she was discharged allegedly for insubordination, neglect of her duties, and failure to follow instructions. Bryant worked for Respondent some 11 weeks, during which she was never a satisfactory maid. After Peters took over on October 11, Bryant never acknowl- edged her as a supervisor and did not follow her instructions. Asked on direct exam- ination why Bryant was discharged Peters testified it was because-"She did not clean her rooms properly, and she did not follow instructions." Peters added, "She just never would clean; she just would not work, and she would talk sarcastic to me when I would ask her to do her work. She was very sarcastic to me." At another "These witnesses were Eulalia Sanders, Toni Marie Clark, Earnestine Kelly, and Christine Bryant. THE LITTLE ROCK DOWNTOWNER, INC. 901 point in her direct examination Peters stated that every day she had to tell Bryant that her rooms were not clean. Peters continued, .. I checked the rooms after the maids finished them, and her bathrooms would be left dirty; she would not put the proper supplies in the rooms and a lot of the rooms would not have bath towels nor hand towels. If I talked to her about it, she would get real sarcastic and ugly with me .... She sassed me and different things like that .... A lot of times she would tell me, "Why don't you check the other rooms? I think you will find as much dirt in them as in mine," and I would tell her that I checked them all. She would keep on talking back to me and I had to have Mr. Arnett up there .... Asked what else if anything Bryant said that Peters considered offensive Peters replied, . in her manner and in her tone. She was just real nasty with to me. For instance, if I told her, "Christine, you will have to make the beds nicer, and get the spreads straight and not leave any creases around the pillow cases," she would say, "I know as much about making a bed as you do." This is the way she took her corrections all of the time ... everything we would do, she would say, "You don't do things like we did at the Holiday Inn. Why don't you do things like we did there?" I told her, "We are not running the Holiday Inn. We are running the Downtowner." According to the credited testimony of Peters, several times she called Arnett up and Arnett and Peters together talked to Bryant about her work after Peters had had Arnett look at Bryant's rooms and the conditions she had left them in. Several times, according to Arnett, corroborated as to once at least by Peters, Arnett asked Bryant to remove the manufacturers' labels and stickers and glue from the furniture in her rooms, but she never did it. She worked in the new addition Respondent had just opened up and some labels, and the glue left when other labels had been removed, were still on the new furniture. One day shortly before the October 30 election-Arnett placing it as a week before and Bryant as the day before-when Arnett and Peters talked to Bryant, Arnett (in his version) accused Bryant of not cooperating with Peters, of not being able to get along with her, and suggested that if Bryant didn't like to work here she should go out and get another job. He added that if she remained she would have to cooperate with Peters. Bryant's testimony attributed to Arnett on this occasion the statement that Peters had said that it seemed as though Bryant was "trying to take over the maids." Peters did not specifically include this conversation in her testimony. All of the above was Bryant's work record and her attitude prior to any proven union activity on her part. Insofar as the record showed, Bryant's sole union activity consisted in serving as the union observer at the second election on October 30. Although two other maids testified for the General Counsel, neither they nor Bryant testified that Bryant was in any way active in the process of getting other employees to sign up for the Union. Had she been thusly active it seems probable to me that this fact would have been brought out in the testimony. Under all the circumstances it appears quite possible to me that Bryant, knowing her job was vulnerable, became an observer in order to put a foundation under an 8(a)(3) charge against the Com- pany in the event she was discharged. Bryant testified that on the morning of election day, October 30, but before the election, Peters told Bryant that she had heard Bryant was telling the maids how to vote and that Bryant was voting for the Union. Bryant allegedly replied that she did not know anything about this Union and that there was no union at the Down- towner when Bryant came there. According to Bryant, Peters then started crying and hugged Bryant and said that she was going right down and tell Arnett. Bryant then allegedly asked Peters if the warning she had received the day before from Arnett about not cooperating with Peters was because of the Union and Peters allegedly replied in the affirmative. Peters was not asked specifically concerning much of this alleged conversation and so did not deny it-Peters was asked and denied asking Bryant prior to the election if she was going to vote for the Union. Upon the entire testimony of Peters and the entire testimony of Bryant and the entire record considered as a whole I believe and hold that Peters did not speak and behave just before the election as claimed by Bryant. There is no proof Peters had any knowledge as to how the employees would vote, and her relationship to them was not such as to make it likely she would have been told. The record does not sustain the con- clusion that Peters was emotionally involved in the outcome of the election at all and certainly not to the extent of crying and hugging Bryant and of rushing down to tell Arnett how one employee would vote. Peters was a new employee, was not instructed, insofar as the record disclosed, to interfere with the employees' union 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities and did not, as I believe, do so. In view of her unsuccessful efforts to get Bryant to do her work it is extremely unlikely that Peters told Bryant in effect that Arnett's recent warning concerning Bryant's failure to cooperate with Peters did not really mean that at all but was somehow related to the Union. Among the 13 maids some were for the Union and some were against it and Peters was in the middle. Peters was a widow with five sons, all members of unions where they worked, and two daughters. Her husband had been president of a local union. Peters herself had been a member of a union -for a short time. During the strikes the families of some of her sons came home and stayed with their mother. At a meeting of maids at which one of Respondent's attorneys was present a few days before the election, Peters stated that when her sons were on strike they lost their automobiles. This was a true statement of fact and was, at worst, an argument protected under Section 8(c) of the Act. Shortly before the opening of the polls on election day Peters told Bryant a union man wanted to see her downstairs and allegedly added "You know that you are voting `no' and you go down right now and tell him that you are voting `no,' and come right back." Peters was not asked concerning and did not deny the quoted sentence above, but Peters' credited testimony as a whole does not permit a finding that Peters was so involved in the election as to give any such instruction to Bryant, with whom she was having a difficult time and in whose union activities Peters would not be apt to interfere. During the election Bryant served as an observer for the Union, in which capacity she walked around the breezeways outside the rooms with the observer of the Com- pany, informing the maids that the polls were now open and that the polling place had been changed. Bryant and the company observer (on rebuttal) testified that as they were walking around, wearing lapel buttons saying "union observer" and "company observer" they passed Peters. I credit Peters' denials that she saw Bryant wearing a union button and that the following day she told another maid, Earnestine Kelly, who did not impress me as a trustworthy witness, that Bryant was going to be fired because she wore a union button. Several days after the election as a group of maids dressed to go home assembled on the breezeway prior to 5 p.m., Arnett saw them and asked them what they were doing there so early. Then he talked to them about obeying the company rules, added that they were to respect Peters and her authority, and stated that he was not going to tolerate one group of maids, harassing the other-referring to the union group and the nonunion group. The election occurred on Tuesday. The following Sunday, November 4, Bryant was off sick, and Sunday night Respondent had reservations for a Monsanto Chemical Company convention. In preparation Arnett had Peters inspect all the rooms. Of the 14 rooms Bryant was supposed to take care of, only 2 had been occupied Saturday night, so the other 12 were in the condition Bryant had left them at the close of her day's work Saturday afternoon. Peters found Bryant's rooms in deplorable condition. As Peters described them in testifying: Well, the wastepaper baskets were dirty; they had trash in them; the ashtrays were dirty; there were cigarette butts all over the floor; there were Coke bottle- tops under the bed; the beds were made sloppy; the blankets and sheets were hanging down from under the bedspreads. Things were just in a general mess. Later that day, at Arnett's request Peters made notes of the conditions she had found in Bryant's rooms. These notes read as follows: To Whom It May Concern. Upon inspecting rooms from 318 through 327 which were supposed to have been cleaned and in order as of 5 p.m. Sat., 11-3-62 I found the following conditions : Room 318 bedspreads on crooked, blankets hanging on corners of beds from under spreads, carpets was littered with bits of paper and cigarettes, wastebaskets with waste still in them. Bath- room was dirty, floors, comode [sic] was awful. Mirror spattered with dirty water. All furniture was dusty, I could write my name in the dust Dirty bed- spreads had been put back on beds in a very sloppy manner. 319 room looked awful dusty, carpets needed sweeping, no toilet tissue, no towels, bathroom dirty, beds half made, strings, bits of paper all over floor, mirrors dirty in bedroom as well as bathroom. All furniture was dusty in all rooms on this floor from 318 through 327. All bathrooms were dirty, dirty bedspreads in three rooms, and all bedspreads one side higher at the foot-end of bed than other side. Everything was a mess. [Some punctuation supplied.] After seeing the rooms Peters reported her findings to Arnett, who looked at them and in testifying described them as follows: THE LITTLE ROCK DOWNTOWNER, INC. 903 The bathrooms were filthy; the floors had not been cleaned properly; nor the seats; there was not any toilet tissue in the bathroom in some of the rooms; towels were not placed back in the rooms; she had dirty bedspreads. We found rooms where the floors had not been vacuumed; there were bits of paper over the floor which showed that they had not been vacuumed. Her rooms were just too far below the standard. Anybody that had done their rooms just half-way would not have left them in that kind of condition. They were just too far below any condition where she might have not seen this or some of the things. It was obvious that the rooms had not been touched Saturday as far as being cleaned and put into good shape. Upon seeing Bryant's rooms Arnett instructed Peters to get as many maids as she could on to Bryant's floor and get her rooms cleaned up for the guests coming in that evening. Peters had some six maids clean them and put them in order. Respondent's official records showed that of Bryant's 14 rooms, only 2 were occupied Saturday night and all were occupied Sunday night. After seeing the rooms Sunday, Arnett told Peters that Monday morning when she came in to work, he wanted to speak to Bryant and to warn her again to do her work better. Early Monday morning, November 5, Arnett and Peters took Bryant into a room and told her what had happened the day before; that they had found her rooms that she was supposed to have cleaned Saturday in very bad condition. According to the credible and credited testimony of Peters, corroborated by Arnett, when Arnett asked Peters to tell Bryant the condition in which she had found the rooms Bryant interposed that "I don't want to hear anything you have to say"-referring to Peters. Arnett then reminded Bryant that less than a week ago he had warned her about her rooms, and now she was being insubordinate to Peters; that under the circumstances he had no alternative but to discharge her for insubordination and neglect of duties. Bryant's version of this severance interview omitted her statement to Peters, and Bryant denied that on this occasion she was insubordinate to Peters or Arnett, Bryant also denied she had ever before this been reprimanded about her work or that there had been any complaints about her work. As Bryant by her demeanor did not impress me as a credible witness I do not credit her testimony. Upon the above facts and considerations, upon the above credibility findings, and upon the entire record considered as a whole, I believe and hold that Bryant was discharged for cause, for insubordination, neglect of duties, and failure to follow instructions, and that her discharge was not a violation of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of 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 Respondent has engaged in the unfair practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having unlawfully discharged Eddie Robinson and Irma Baruday because of their actual or suspected union activities, and not having offered them reinstatement, I recommend that Respondent offer to Robinson and Baruday im- mediate and full reinstatement to their former or substantially equivalent positions 12 without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of a sum of money equal to that which he normally would have earned as wages from the date of his discharge (July 13, 1962, in the case of Robinson and September 3, 1962, in the case of Baruday), the date of the dis- crimination against him, to the date when pursuant to the recommendations herein, Respondent shall offer him reinstatement, less his net earnings during said period (Crossett Lumber Company, 8 NLRB 440, 497-498) said backpay to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- 12The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. Respondent having unlawfully demoted Robinson prior to unlawfully dis- charging him, and the differences between the two jobs having been litigated, I find that the dishwashing job is not substantially equivalent to the busboy banquet-room-service job, and I recommend that Robinson be reinstated to the busboy banquet-room-service job. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, 90 NLRB 289. The backpay obligation of Respondent shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. As provided in the Woolworth case, I recommend further that Respondent make available to the Board, on request, payroll and other records in order to facilitate the checking of the amount of backpay due. The violations of the Act committed by Respondent are persuasively related to other unfair labor practices prescribed for the Act, and the danger of their com- mission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the Order is coextensive with the threat. In order therefore to make more effective the interdependent guar- antees of Section 7, to prevent a recurrence of unfair labor practices, and threby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact , and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Little Rock Downtowner, Inc., of Little Rock, Arkansas, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating and threatening employees and making promises of benefits to them concerning their union membership , activities, and sympathies , by requesting employees to inform on other employees, by creating an atmosphere of futility to, discourage support for the Union among employees, and by other acts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Eddie Robinson and Irma Baruday, thereby discouraging membership in the labor or- ganization named in paragraph 2, above , Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case considered as a whole, I recommend that The Little Rock Downtowner, Inc., of Little Rock, Arkansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Hotel-Motel Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization of its members, by discriminating in regard to the hire and tenture of their employment or any term or condition of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Hotel-Motel, Restaurant Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes 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 I find will effectuate the policies of the Act: (a) Offer reinstatement to Eddie Robinson and Irma Baruday in accordance with the recommendations set forth in "The Remedy" herein. (b) Make whole Eddie Robinson and Irma Baruday for any loss of pay they may have suffered by reason of Respondent's discrimination against them in ac- cordance with the recommendations set forth in "The Remedy" herein. (c) Preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all records necessary to analyze the amount of backpay due and the rights of Eddie Robinson and Irma Baruday under the terms of these recommendations. THE LITTLE ROCK DOWNTOWNER, INC. 905 (d) Post at its motel in Little Rock, Arkansas, copies of the attached notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for the Board's Twenty-sixth Region (Memphis, Tennessee) shall, after being signed by the representative of Respondent, be posted by Respondent and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to all employees, including kitchen help, waitresses, and maids are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other materials. (e) Notify the Regional Director for the Twenty-sixth Region in writing, within 20 days from the day of the receipt of this Intermediate Report and Recommended Order what steps the Respondent has taken to comply herewith.14 13 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "A 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 Decision and Order." 14 In 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, we hereby notify our employees that: WE WILL NOT discourage membership in Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders Inter- national Union, AFL-CIO, or any other labor organization, by discriminating against our employees in any manner in regard to their hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT unlawfully interrogate our employees concerning their union activities, sympathies, and membership of our employees or how they intend to vote at a Board-conducted election. WE WILL NOT request our employees to discover for us and to inform us concerning the union activities, sympathies, and membership of our employees or how they intend to vote at a Board-conducted election. WE WILL NOT make our employees promises of benefit in order to influence the results of a Board-conducted election or to influence their union activity, sympathy, or membership. WE WILL NOT suggest to employees that the Company will know how they vote in a Board-conducted election. WE WILL NOT threaten our employees with discharge or other economic reprisal because of their membership in, activity on behalf of, or sympathy for, Hotel-Motel, Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT in speeches or conversation directly or indirectly give our em- ployees the impression that it is futile or ineffectual for them to join or assist Hotel-Motel, Restaurant Employees Union Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join Hotel-Motel Restaurant Employees Union, Local No. 200, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer to Eddie Robinson and Irma Baruday immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL make whole Eddie Robinson and Irma Baruday for any loss of pay suffered by them by reason of the discrimination practiced against them in ac- cordance with the recommendations of the Intermediate Report. All our employees are free to become or refrain from becoming members of the above-named labor organization. THE LITTLE ROCK DOWNTOWNER, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify either of the above -named employees , Eddie Robinson and Irma Baruday, if either is presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. 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, 22 North Front Street, Memphis, Tennessee, 38103, Telephone No. Jackson 7-5451, if they have any question concerning this notice or if they have information that its provi- sions are being violated. Comfort Springs Corporation and Upholsterers' International Union of North America, AFL-CIO. Case No. 5-CA-92101. July 30, 1963 DECISION AND ORDER On October 19,1962, Trial Examiner William F. Scharnikow 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 . Subsequent to the issuance of the Intermediate Report., the Respondent notified the Board's Regional Office that a strike, called by the Union on January 23, 1962, had been settled and a contract signed, and that, pursuant to that settlement, the Union would request withdrawal of its charge . The Union, however, there- after notified the Regional Office that the charge should not be with- drawn as the Respondent had assertedly breached its agreement by not processing certain grievances. On April 26, 1963, the General Counsel filed with the Board a mo- tion for issuance of Board order seeking an order providing for the reinstatement of unfair labor practice strikers . The Respondent filed an answer in opposition to this motion. On May 15, 1963, the Board 1 issued an order notifying the parties that it would consider the motion and answer as a request nuno pro tune, to reopen the proceeding and to permit the parties to file exceptions and briefs , and granting such I 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 Leedom and Brown]. 143 NLRB No. 95.