Schimmel Hotel Co.

878 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD The record shows that of the 4 hoppers, 2 were hired in September 1963; 1 in March 1963; and the fourth_in August 1962; and that since 1958 some 32 individuals, have occupied these positions. As to the 2 shortage haulers currently employed, 1 was hired' in March 1959, and, the other in May 1963, and since 1958 some 10 individuals have been employed in the Company's normal, complement of 3,shortage haulers. The Employer, relying upon its turnover, experience with respect to these jobs and the fact that shortage haulers .and hoppers are not granted fringe benefits, contends that, these positions bear such an inconsequential relationship to the unit as to; require their exclusion. We disagree. Employees' are hired in ,these classifications for. in-, definite periods and their work is both functionally related to, and a regular and continuous .part of, the operations of the circulation, department. Accordingly, and as the evidence of turnover is incon- clusive and does not impair the fact that those presently occupying the disputed positions of hoppers and shortage haulers have a sub- stantial and continuing interest in terms and conditions of employ- ment in the circulation department, we shall include them in- the ap- propriate' unit.'2 ' Accordingly, we find that the following employees constitute a unit appropriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act : All employees, including regularly employed part-time employees, of the Employer who are employed in the distribution and circula- tion of the newspaper constituting the outside circulation department, excluding all persons who deliver newspapers to homes, office clericals, and all other employees of the Employer, and all guards, professional employees, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] ' See Lewis & Coker Super Markets, Inc., 145 NLRB 970. Walter Schimmel, A. Q. Schimmel, Edward Schimmel, and Bernard Schimmel, d/b/a Schimmel Hotel Company and Hotel, Motel, Restaurant Employees and Bartenders Local Union No. 747, affiliated with Hotel and Restaurant Employees 'and Bartenders International Union, AFL-CIO. Case No. 17-CA- 2155. April 16, 1964 DECISION AND ORDER On January 24, 1964, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled proceeding, finding that the, Re- spondent had engaged in and was engaging in certain unfair labor 146 NLRB No. 108. SCHIMMEL HOTEL COMPANY 879. practices within the meaning of the Act; and-recommending that it cease and desist therefrom and(take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Trial Examiner's Decision and a sup- porting brief. 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 [Members, Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,- conclusions, and recom- mendations of the Trial Examiner. ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner.' 1 The Recommended Order is hereby amended by substituting for the first paragraph therein the following paragraph: Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that Respondent, its officers, agents, successors , and assigns, shall: TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On August 8 and 9 , 1963,1 a hearing was held before Trial Examiner Benjamin B. Lipton in Wichita, Kansas, involving allegations by the General Counsel that the Respondent engaged in various acts of interference, restraint, and coercion and dis- criminatorily terminated three employees , in violation of Section 8(a)(1) and (3) of the Act .2 All parties were represented and participated in the hearing , and at the close thereof waived oral argument on the record . The General Counsel and the Respondent filed briefs, which have been duly considered. Upon the entire record in the case, and from my observation of the witnesses,3 I make the following: _ FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is engaged in hotel operations in various States, including Illinois; Nebraska, and Kansas . Only the Lassen Terrace Motor Hotel in Wichita, Kansas, is involved herein. The hotel has a gross annual revenue in excess of $500,000, of which more than 75 percent is derived from transient guests, and it has a direct inflow of purchased materials in interstate commerce valued in excess of $1,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. 1 Unless otherwise specified , all dates herein are in the year 1963. 8 The original charge was filed and served on April 8 , and the General Counsel's com- plaint issued on May 27. 3 All credibility findings are based in whole or part upon the demeanor of the witnesses on the stand. 744-670-65-vol. 116-57 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED Respondent, in its answer, took the position that it has no knowledge on the sub- ject and therefore neither admits nor denies that the Charging Party, Hotel, Motel, Restaurant Employees and Bartenders Local Union No. 747, affiliated with'Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO,4 herein called Local 747 or the Union, is a labor organization. Its motion made at the hearing and in its brief, to dismiss the complaint on the ground that this essential element in the case had not been established is patently without merit. The record shows, inter alia, that as of January 7 a charter from the indicated AFL-CIO in- ternational union was issued to Local 747, after application was submitted and a fee was paid by certain employee applicants for membership in the Union; that be- ginning about March 17 frequent meetings of the Union were held and attended by Respondent's employees, during which they signed authorization cards to be repre- sented by the Union; that on March 29 the Union demanded recognition of Respond- ent, on April 5 filed, a petition,5 and on July 7 participated in a Board-directed elec- tion,6 as a result of which it was certified as bargaining representative of Respondent's employees? Respondent's contentions that the Union was not a labor organization were specifically rejected in the representation proceeding.8 As it is clearly evident in the record that the Union exists for the purpose of dealing with employers- con- cerning terms and conditions of employment, and that employees are admitted to membership and otherwise participate therein, I find that at all times material the Union was a labor organization within the meaning of Section 2(5) of tht Act .9 111. THE UNFAIR LABOR PRACTICES A. Supervisors ' Respondent admits, and I find, that the following individuals are supervisors under the Act: Walter Schimmel, Sr., co-owner; Walter Schimmel, Jr., co-owner and man- ager of food and beverages; W. O. Stacik, general manager; Melvin Clark, assistant manager in charge of personnel; James Kosec, chef; Herbert C. Lewis, steward; Michael Herman, laundry foreman; and Clarence Daniels, maintenance foreman. B. Interference, restraint, and coercion Beginning on March 17, initial organizational meetings for various shifts of Re- spondent's employees were held at the home of the Union's business representative, James E. Summers. On March 29, at 9 a.m., a general union meeting was scheduled at the Labor Temple. That morning, sometime before 9 a.m., General Manager Stacik had a conversation with Steward Lewis and Chef Kosec "about the time the union tried to get here in 1958 . . . and about a few violences that went on." Both Stacik and Kosec, discussing the effects of the Union coming into the hotel, stated that it would be "bad business" because customers for banquets would then be hard to get, and that different scales would be set up for the employees, some of whom would benefit and some not.10 Later that morning, Lewis, a supervisor of 18 employees, asked his immediate superior, Kosec, for permission to go to the union meeting on company time. Kosec said he would find out, and subsequently gave his approval. Lewis attended the meeting on company time. 4 On the Trial Examiner's own motion, the name of the Charging Party Is amended accurately to reflect Its affiliation with the AFL-CIO. 5 The petition was signed by Business Representative James E. Summers In the name of the International Union. 8 The election, with 110 employees eligible to participate, resulted In a vote of 72 to 28 In favor of the Union. 4 On October 25, the Board denied Respondent's request for review of the Regional Director's Supplemental Decision and Certification, In which Respondent's objections to the election were overruled. 8 Such decisions are binding upon a Trial Examiner. Meijer Supermarkets, 142 NLRB 513. 9 E.g., Coca-Cola Bottling Company, Indianapolis, Indiana, Incorporated, 142 NLRB 1030; Paul E. Merrill d/b/a Merrill Transport Co, 141 NLRB 1089; and see, The Cin- cinnati Transit Company, 121 NLRB 765, footnote 1. 10 There is no allegation nor finding that this discussion among supervisors is In viola- tion of the Act. The evidence is set forth as background and corroborative material con- cerning similar statements made to employees, infra. SCHIMMEL HOTEL COMPANY 881 At the Labor Temple, following the meeting, Lewis was involved in a group dis- cussion with Business Agent Summers and six or seven employees. He told them that "he could give Mr. Summers any sort of information he wanted because he had access to the record and things and that the company had sent him to the meeting to see what was going on so he could come back and report ." An hour or two after his return to the hotel, he was summoned to an executive office where he re- ported on the union meeting to Schimmel , Senior, Schimmel, Junior, Assistant Man- ager Clark, and Kosec .11 Lewis testified that he told them about the complaints of the employees at the union meeting. Later in the day, Schimmel , Junior, 'ques- tioned Lewis more closely as to his personal opinion of the employees , how they felt about conditions at the hotel, "and so forth." 12 Lewis had' also told Otho Mast, an employee under his charge , that he was going to this union meeting, and spoke to Mast about the meeting after his return. Among other things, Lewis said, "I am in between the two. I can go to this meeting and get your side and I am getting our side." Steward Lewis attended further meetings of the Union . At the first meeting, he received one of the circulars handed out by Business Representative Summers inviting employees to the next scheduled meeting. Lewis said that Summers knew who he was and "several times" had personally extended an invitation to him to come again. Michael Herman, laundry foreman , • attended the union meeting at the Labor Temple held at 8 p .m. on March 29. Robert Wolf, a maintenance carpenter,, evidently was the most active and out- spoken of the hotel employees in the union campaign . He made the initial contact with Business Agent Summers ; participated in the early organizational meetings; personally informed four supervisors 13 at different times between March 24 and 27 that the Union was in the process of organizing ; and prominently displayed on his person while at work various insignia of the Union . About March 27, Wolf and his foreman, Daniels, were encountered in a hotel corridor by Manager Stacik and Chef Kosec. Stacik looked at Kosec while pointing to Wolf and said, " That's the one, he's the one." Stacik then called , "Hey,.Wolf, what is this I hear about this union ?" He proceeded to put further queries about "this union meeting," where the meeting was going to be, and what was going on about passing out union cards. Daniels testified that after this incident he heard "quite a bit" from Stacik and Chief Engineer Lorens about Wolf talking to employees while on active duty, and that Lorens told him "to keep close surveillance on [Wolf] and confine his work to where [Daniels] would control him and keep him from going all over the hotel." 14 Daniels thereupon restricted Wolf to the engineroom and told him not to ride the service elevator. After a period of time, these instructions were rescinded when the carpenter maintenance work began to pile up. In mid -April, Daniels angrily told Wolf, "Listen, Bob, you can get fired for talking about this damn union." On another occasion, Daniels wrote Wolf a note complimenting his work and also stating in effect that "he had word from the big boys" that he should watch Wolf, who was "nothing but a damn troublemaker ," and "to fire him at the first opportunity." 15 On April 1, after attending an afternoon meeting of employees in the hotel arranged by management to discuss the union question , several employees 16 re- turned to their workplace in the kitchen and there engaged in a conversation with Kosec, the chef. Kosec related what would "probably" happen if the Union came in, e.g.: (a) there would be a limited amount of employee meals a day, whereas at present they could eat as much and as frequently as they wanted ; (b) there would be advantages for some employees, and disadvantages for others ; (c) they would not come to him, Kosec , for anything, but would have to go to the Union if they wanted anything . If they wanted to request any days off, they would have to go to the Union. If they were late to work more than a certain - number of times, Kosec could do nothing if the Union fired them ; (d) an employee who became "swamped" with work would have to do the job himself and could get no help from anyone. 11 Kosec was not called to testify ; the other officials were not questioned on this subject. 12 On April 1 , Lewis received a monthly salary increase. 11 Maintenance Foreman Daniels, Laundry Foreman Herman, Housekeeper Alice Alsdorf, and Banquet Hostess Mate Horswell. 11 Wolf's regular functions required him to perform maintenance repairs at various loca- tions on the hotel premises. 15 At the time of the hearing, Daniels was not in Respondent 's employ, having been dis- charged on June 15. 1e Joyce Williams , Clifford Hamilton , and an employee called Pat. 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 29, Foreman Herman asked Norvel Thompson if he was going to a union meeting which was scheduled, and-said he thought Thompson ought to go. Thompson replied that he was going. C. Concluding findings on Section 8(a)(1) The allegations that Supervisors Lewis and Herman engaged in unlawful sur- veillance by their attendance at union meetings are fully supported in the evidence. Their very presence at these meetings had a natural tendency to restrain and dis- courage employees from pursuing their organizational rights. That Respondent is fully responsible under the Act for the conduct of these supervisors is beyond question. Nor does it furnish Respondent with justification that Herman sought to satisfy his "curiosity more than anything else." As to Lewis, the evidence is indeed quite direct. He was specifically given leave to attend on company time, was sum- moned upon his return to report on his observations to a waiting group of top man- agement officials, and was later closely questioned by Schimmel, Junior. It is evident that Lewis was attempting to engage in a kind of double-dealing. At the union meeting he offered to obtain information from company records and in other ways sought to implant himself in the employees' confidence, while at the hotel he apparently pursued an opposite course in discussing the subject of the Union with his superiors. In the circumstances, the fact that Lewis may have received an invita- tion to return to further union meetings would scarcely relieve Respondent of liability for the surveillance. Concerning employee Wolf, Respondent was fully cognizant of his open and militant espousal of the Union during the organizational campaign prior to the Board election. The threats conveyed to him by his supervisor, Daniels, that he was a "troublemaker" and Respondent was preparing to fire him "at the first oppor- tunity" because he was talking about "this damn union" were plainly violations. Similarly, I find that Stacik's interrogation of Wolf in the presence of Kosec and Daniels was of a coercive character. As to the remainder of the evidence described above, I find further Section 8(a)(1) violations-in Kosec's ' talk to the employees on April 1 indicating the probability of various detrimental changes in their employment conditions "if the Union came in," and Herman's interrogating Thompson whether he was going to the union meeting.17 D. The alleged discriminatory discharges 1. Larry Lewis was hired on January 24, 1963, as a room service trainee. His immediate supervisor was Schimmel, Junior. Operating from a station in the kitchen, he carried orders of food to the guests in their rooms and also helped to remove the dishes. He had attended one of the earlier organizational conferences at Business Agent Summers' home, signed an authorization card, and circulated such cards to some 25 to 30 employees. In the morning on April 1, after making a delivery nearby, Lewis had stopped to chat with employee Wolf who was at work in a room on the 10th floor, when Manager Stacik walked in. Stacik told them they were loafing on company time and he had a "pretty good idea what they were talking about." Shortly thereafter, Lewis saw Stacik and Schimmel, Junior, looking for him as he was about to make the customary daily delivery of a large order of food to the bank. He testified that he did not want them to find him and proceeded to make the delivery, which took about 20 minutes. Upon his return, he was called to an office and spoken to by Schimmel, Junior, in the presence of Stacik and Assistant Manager Clark. He was admonished for not being available when needed, and he admitted that he was "goofing off." He was told that he had been making good progress during his training, but was now falling down on his job; however, he was advised that if he did well, there was a "place in the hotel" for him. Lewis agreed that he would "try to watch his station much better and do the best job possible." Schimmel, Junior, testified that on previous occasions Lewis had been hard to find, or would be found outside his direct area of work, when telephone orders for room service had to be filled immediately. Only one room service waiter was on duty for each shift, although additional waiters were used when room service was busy. 17 The General Counsel also relies on Clifford Hamilton 's testimony that Rosec asked him whether he thought the people would vote for the Union. However, I find his testi- mony was vague and confused as to time of occurrence and otherwise Insufficient to support the allegation. SCHIMMEL HOTEL COMPANY 883 Lewis was expected to stay on duty during his entire shift from 6 a.m. until -2 p.m. However, there was a practice, of which Schimmel, Junior, was aware, of room service waiters checking out when their relief arrived early for the next shift. On the same day, April 1, that he was criticized for his.unavailability, Lewis was discharged. Lewis himself gave the following account: His shift regularly ended at 2 p.m., but he customarily clocked out when the boy on the next shift, Ted Watson, arrived, which was usually 10 to 15 minutes early, or sometimes that much late. That day, Watson checked in early (1:20 p.m. on his timecard); then Lewis and Watson clocked out together at 1:35 p.m. and proceeded to walk around the block, "just messing around." At 2:50 p.m. both returned to the hotel to attend a com- pany meeting of employees scheduled for 3 p.m. relating to the union campaign. At this time Lewis was again summoned to see Schimmel, Junior, Stacik, and Clark. Asked why he had left his post, Lewis gave the reason that Watson had arrived, and added that "they were both real disgusted with the hotel." Schimmel, Junior, inquired of Lewis what he thought should be done with him, and the response was, "You will probably can me." Whereupon Schimmel, Junior, said, "You are right. You are fired." Schimmel, Junior, testified that about 1:30 p.m. there were orders to be filled by the room service waiter and again Lewis could not be found. A search was made and it was discovered that Lewis had checked out early. Later, at the interview, when requested to explain his absence, Lewis did not say very much but was "very lackadaisical and indifferent." The General Counsel maintains that Lewis was effectively relieved from duty, consistent with custom, upon Watson's arrival at 1:20 p.m., and stressed the fact that Watson was not discharged although he was absent from duty from 1:35 p.m. until 2:50 p.m. Watson's timecard shows that he finally punched out for the day at 10:16 p.m. and was 'credited with 8 hours of work. Watson was not called to testify. In attempting to explain Watson's timecard, Assistant Manager Clark testi- fied (without objection) merely that Watson "could have" joined Lewis for the "walk around the block" only between 1:20 p.m. and 1:35 p.m., i.e., before his duty commenced. Consideration of the obscurity with which Respondent left the ques- tions relating to Watson, and of all the pertinent evidence, raises serious suspicions that Respondent was singling out Lewis for discharge because of his sponsorship activities on behalf of the Union. However, it appears that a legitimate cause for Lewis' discharge was shown by his own testimony. It was not at all reasonable for Lewis to assume that he had been relieved from duty by the early arrival of Watson while he and Watson were actually away from the hotel "messing around." More- over, as a trainee of less than 3 months who earlier that day had promised to do his best, Lewis' statement to Respondent that he was "real disgusted" with the hotel displayed an attitude which was provocative of a discharge. In the circumstances, Lewis' union activity and Respondent's animus toward the Union afford him no immunity. Nor is the mere showing that Respondent failed to discharge Watson enough to establish that Lewis was discriminatorily selected for union reasons. In sum, I find that the General Counsel has not sustained his required burden of proving the allegation in the complaint as to Lewis. 2. Fred Johnson was employed on December 18, 1962,18 to work in the laundry as an extractor. His usual working hours were from 5 a.m. until 1 p.m. On March 29, he attended a union meeting at the Labor Temple where he saw his foreman, Michael Herman. On April 2, Herman,19 on his own initiative, discharged Johnson "strictly because of his drinking." Herman testified that Johnson "had drank quite often and many mornings he would come to work" and Herman "could smell the drinking he had done the night before, whatever it was, it was very potent." On two other occasions, Johnson was drunk during the time he was working: in one instance, Herman warned Johnson about it and Johnson said he would not do it again ; and at another time thereafter Johnson was "real drunk." 20 On April 1, "Johnson's personnel card indicates that he was hired "on probation." 10 Herman had left Respondent's employ on June 18. He was called as General Counsel's witness respecting the issue of Norvel Thompson's discharge, infra. Concerning John- son, I credit and rely essentially on Herman's testimony as being more convincing and trustworthy. 20 Johnson admitted that most of the time when be drinks, he indulges "quite a bit." He explained the incident referred to by Herman as having occurred 3 or 4 weeks before. He was drinking at a party until 4 a.m. and was still intoxicated when lie reported to work at 5:15 a.m. that day. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson had completed his work about noontime and had gone with another laundry worker, Albert Clewis, to the pool hall where both drank whisky and beer. At 3 p.m., they returned to the hotel to attend a meeting scheduled by management concerning the union campaign. Schimmel, Senior, extended a general invitation to employees who had any questions to come to his office after the meeting. In re- sponse, Johnson and Clewis went to Schimmel, Senior's, office, where Assistant Manager Clark was also present. Johnson complained about conditions and wages. His speech appeared incoherent and he left the distinct impression that he was in- toxicated. Finally, with some difficulty, Clewis succeeded in escorting Johnson out of the room. There is no evidence that Herman was advised of this conduct of Johnson, and he firmly denied that anyone from management had instructed him to discharge Johnson. The next morning at work,21 Johnson smelled of alcohol and Herman had difficulty understanding Johnson's speech. About noon, after most of the work was done, Johnson was terminated. Herman testified that he tolerated Johnson as long as he could that morning because he had no one to take Johnson's place. I conclude that there was no violation concerning the discharge of Johnson. 3. Norvel Thompson was hired on March 4 as an extractor in the laundry. Fore- man Herman testified that Thompson was -a very good worker, who at times did as much work as any two men. Thompson attended meetings of the Union, at which he observed supervisors present, and he signed an authorization card on or about March 31. As earlier shown, Herman had asked Thompson whether he was going to a certain union meeting, and Thompson said that he was. On April 2, Herman informed Thompson of his discharge, and said that he wanted to keep him but was "taking orders from topside." Herman testified that Thompson's discharge was directed by Manager Stacik, who gave him no specific reason. Although Herman customarily made the decisions to hire and fire in the laundry, he was not consulted or informed of any reason concerning Thompson's discharge. On April 3, Respond- ent ran an advertisement in the local newspaper for a "man with washer or extractor experience" in laundry work. On April 4, Respondent hired Theodore Holt for the laundry.22 As testified by Assistant Manager Clark, Respondent's reasons for discharging Thompson were (1) an overstaffing in the laundry, (2) the excess was concentrated in male employees, and (3) a confidential reason relating to Thompson's police record. In connection with the first reason, Respondent introduced in evidence certain intrahotel correspondence stemming from a memo dated March 22 from Schimmel, Senior, to Clark requesting "an accurate comparison" of laundry employment in March 1963 with the equivalent period in 1962. (Such request, at least in this form, was unprecedented, and it was not made as to any of the other 12 departments in the hotel.) Clark prepared an analysis in his own writing which, in sum, purports to show that on March 15, 1963, there were on the laundry payroll 16 persons, in- cluding the foreman, as compared with 12 on the same date in 1962.23 Clark sent with his analysis the following summary memo to Schimmel, Senior: SCHIMMEL HOTELS Dated March 23, 1963. To: Mr. SCHIMMEL From: CLARK Re: YOUR MEMO OF 3-22-63 requesting accurate comparison, from my records, of Laundry employment this Month compared with March 1962. SUMMARY OF WORK SHEET (ATTACHED) Increase in NUMBER of employees this March over last-4. Increase in Wage Cost per Operating Hour, March 63 over last-$2.86. 21 Herman responded to a question, "On the day that you, the day before you discharged him, did you ask him to leave the hotel"" The plausible construction of all the testimony indicates that Herman actually described what took place on April 2, rather than the day before. In any case, the result would be unaffected re Holt was terminated on April 22, and Lester Williams was hired on April 25. In addi- tion, payroll records for the month of April show that, after April 2 (when Johnson and Thompson were discharged), the laundry had a turnover of three new hires and three terminations of female employees. On various dates in March, there were three termina- tions and two additions. Respondent indicated that, at the time of the hearing in August, the laundry had 12 employees, plus a new foreman, who personally performed more manual work than did his predecessor, Herman. 23 As described by Clark, there were, for example, 14 persons on the payroll for four of the intervening months in the year reported SCHIMMEL HOTEL COMPANY 885 With exception of Manager's increase over previous mgr., this is con- centrated in help brought in for sick replacement and not yet all dismissed. This has been called to Mr. Herman's attention. If hours worked are comparable, the above could result in a substantial op- erating cost increase. If longer hours were worked last year, or if Laundry Volume is up this year, the increase might not be as great as it first appears. I shall check- out both these factors with Mr. Wallen [auditor], and discuss the situation with Mr. Herman, recommending work force reduction in proportion. On March 26, Schimmel, Senior, returned Clark's report together with a note to Clark and Manager Stacik that "This is not satisfactory." On March 27, Clark notified Schimmel, Senior, that two laundry employees were terminated 24 which reduced salary costs by $1.25 per hour. Respondent's contentions are that the four laundry workers were terminated to correct the overstaffing situation, i.e., on March 25, two female employees, and on April 2, Johnson and Thompson. There are many serious flaws in this defensive evidence of Respondent, e.g.: although Clark insisted that his figures covered the entire month of March, as was requested by Schimmel, Senior, it is quite plain from other evidence of constant turnover that the comparison made by Clark reflects only the employment figures on the single date of March 15 in both years. Clark's work- sheet noted that an additional employee had been discharged since March 15,25 but his summary note to Schimmel, Senior, quoted above, failed to account for this decrease, so that actually there were three, and not four, employees in excess of the figure given for March 15, 1962. Consequently, when the two female workers (Wright and Smith) were dismissed on March 25, the employment level was equated with that of the previous year. Clark's report also noted that, the surplus "is con- centrated in help brought in for sick replacement and not yet all dismissed." This reveals, at least, that the alleged overstaffing was temporary. The matter was un- explained by Respondent. Unless Wright and Smith were in fact the temporary sick replacements, no reason would appear to let any of the permanent help go. Indeed, the regularly large turnover of employees in the laundry, and in the hotel generally,26 would furnish an obvious means by attrition of effecting a reduction in employment. It is also significant that Foreman Herman, who was otherwise directly involved in reducing the laundry staff at Respondent's behest, was not consulted regarding the discharge of Thompson. Schimmel, Senior, testified, somewhat at variance with Clark, that he knew what the situation was in the laundry before he received Clark's report, but that he wanted to "put the heat on" so that his staff would be made aware of it; and he was also dis- satisfied with Foreman Herman's performance. Clark testified that there were fre- quent conferences among the various officials involved about the laundry problem after Schimmel, Senior's, note of March 22. As to the newspaper advertisement for a laundry extractor the day after Thomp- son's discharge, Clark explained that when Herman fired Fred Johnson, it left Her- man alone in the department as the only man; 27 therefore, an additional man was needed to maintain the exact distribution of help which existed the year before. There is shown no reason for having such a fixed distribution of male and female help. The testimony, in light of the record, is clearly unworthy of credit. Indeed, an inconsistency is now exposed with the further ground given for Thompson's discharge-that the excess of employment in the laundry was concentrated in male employees. On this latter ground, it is noted that nothing was said in Clark's report to Schimmel, Senior, nor was any supporting evidence advanced. Excepting their admissions, I do not credit the explanations of either Clark 28 or Schimmel, Senior, concerning the selection of Thompson as part of a reduction in force 29 24 On March 25, Foreman Herman selected Ann Wright and Ruth Smith for dismissal. 26 Hal Shields on March 19, as revealed on another exhibit. 26 Average of 32 per month. 27 This is contradicted by documentary evidence showing, e.g., that Albert Clewis in the laundry received a raise on April 3. 28 Based upon his demeanor on the stand and his testimony, which I found at times to be disingenuous, evasive, and incompatible with clear documentary evidence, I do not credit Clark generally. 26 Clark indicated that Thompson's discharge was ordered by Manager Stacik, who was said to be employed in San Francisco at the time of the hearing and did not testify. 886 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD Finally, the confidential reason for severing Thompson. relates to a police report requested by Respondent, listing Thompson's record of arrests. Schimmel, Senior, testified it was just a matter of a telephone call to the local police department to get these reports. Clark stated that such reports are uniformly requested in writing for all new hires. He also revealed that, when the information is relied on as a reason for discharge, no entry of the fact is made in the personnel records and the employee is not told this reason but given a pretext for his termination. The Thompson report in evidence is undated, unsigned, without an envelope or receipt stamp, and Clark was quite vague as to when it was requested or how and when it was received except that it was in Respondent's possession perhaps 7 to 10 days before Thompson's dis- charge. The report purports to show, in substance, that from 1936 to 1940, Thompson was convicted once for petty theft, at other times for selling liquor to an Indian, loitering, and vagrancy, and in 1953, he was fined for being drunk. As to the other arrests for similar offenses, the last of which took place in 1959, Thompson was rei leased with no record of any charge or trial.30 Schimmel, Senior, testified that the hotel policy was to discharge any employee based upon the mere record of arrests, except for such offenses as "speeding and liquor," without regard to convictions. Neither Thompson nor Foreman Herman was told of this reason for Thompson's discharge. Clark admitted that he could "think of" one employee then employed (of about 195 employees in the hotel) who was known to have a police record. Although Clark testified that employees generally have been discharged on the same basis as Thompson, the only instance given was an individual who was at the time currently "wanted" by the police for "three commitments." I reject and discredit this added "confidential" reason as having motivated Thomp- son's discharge. Respondent had the police information concerning Thompson substantially before the time of his discharge without acting upon it. Moreover, the character of Respondent's evidence is unpersuasive. I find this ground was seized upon as an afterthought and was merely an artifice, as were the other grounds as- serted, supra. A clear prima facie case was made out in view of, inter alia, the timing of Thompson's discharge shortly after the Union's demand for recognition on March 29, Thompson's known attendance at union meetings, and Respondent's well- demonstrated union animus. The failure of Respondent to carry its burden of defense, plus the pretextuous reasons it advanced, amply establish the allegation that Thomp- son was discriminatorily discharged in violation of Section 8(a) (3) 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 certain unfair labor practices, I will recommend that it cease and desist therefrom 31 and take certain affirmative action designed to effectuate 'the policies of the Act. It will be recommended that Respondent offer Norvel Thompson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned, absent the dscrimination, from the date of the discrimination to the date of the offer of rein- statement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Com- pany, 90 NLRB 289. Such pay loss shall be computed with interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. It will be further recommended that Respondent preserve and make available to the Board upon request, all payroll records, social security payment records, time- cards, personnel records and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of these recommendations. 30 In the 27 years covered, the police report listed a total of 12 items. ffi Upon the findings of Section 8(a) (1) and (3) violations, the broad order recommended herein Is justified. See N.L R.B. v. Express Publishing Company, 312 U.S. 426 ; N L.R.B. v. Entwistle Mfg. Co., -120 F. 2d 532 (C.A. 4). SCHIMMEL HOTEL COMPANY 887. Upon ,the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the nieaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discriminating against Norvel Thompson in regard to his hire and tenure of employment, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) of the Act. 4. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Respondent, Walter Schimmel, A. Q. Schimmel, Edward Schimmel, and Bernard Schimmel, d/b/a Schimmel Hotel Com- pany, Wichita, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Hotel, Motel, Restaurant Employees and Bar- tenders Local Union No. 747, affiliated-with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization, by laying off, discharging, or refusing to reinstate employees, or in any other manner discriminating in regard to their hire or tenure of employment or any term or con- dition of employment. (b) Engaging in surveillance of the union activities of its employees; interrogat- ing employees in a coercive manner; threatening employees with discharge, with changes in their working conditions, or with other reprisal because of their union activities; or in any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Norvel Thompson immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights or privileges, and make him whole for any loss of earnings, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (c) Post at its Wichita, Kansas, plant copies of the attached notice marked "Appendix." 32 Copies of said notice, to be furnished by the Regional Director for the Seventeeth Region, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof in conspicuous places including all places where notices to employees are customarily posted, and be maintained for a period of 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Seventeenth Region, in writing, within 20 days from the receipt of this Trial Examiner's Decision and Recommended Order, what steps Respondent has taken to comply herewith 33 It is further recommended that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. 12 If this Recommended Order is adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial 'Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." = If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Seventeenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT discourage membership in Hotel, Motel, Restaurant Employees and Bartenders Local Union No. 747, affiliated with Hotel and Restaurant Em- ployees and Bartenders International Union, AFL-CIO, or in any other labor organization, by laying off, discharging, or refusing to reinstate our employees, or in any other manner discriminating in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL NOT engage in surveillance of the union activities of our employees; interrogate our employees in a coercive manner; or threaten our employees with discharge, changes in their working conditions, or other reprisal, because of their union activities. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named, or any other, labor organization, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL offer Norvel Thompson immediate and full reinstatement to his former or substantially equivalent position, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of Hotel, Motel, Restaurant Employees and Bartenders Local Union No. 747, affiliated with Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or of any other labor organization. WALTER SCHIMMEL, A. Q. SCHIMMEL, EDWARD SCHIMMEL, AND BERNARD SCHIMMEL, D/B/A SCHIMMEL HOTEL COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if he is presently serving in the Armed Forces of the United States of his right to full reinstatement upon ap- plication 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, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, Telephone No. Balti- more 1-7000, Extension 731, if they have any question concerning this notice or com- pliance with its provisions. Plumbers Local Union No. 307 and Meyers Plumbing. Case No. 13-CC-375. April 16, 1964 DECISION AND ORDER Upon charges duly filed by Meyers Plumbing, herein called Meyers, the General Counsel of the National Labor Relations Board, by the Regional Director for the Thirteenth Region, issued a complaint dated August 9, 1963, against Plumbers Local Union No, 307, herein 146 NLRB No. 110.