Oklahoma Sheraton Corp.

OKLAHOMA SHERATON CORPORATION 759 17TE WILL NOT by refusing to bargain or in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of col- lective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as permitted by Sec- tion 8 (a) (3) of the Act, as amended. CAPITOL AVIATION, INC., Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 881 U.S. Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois, Telephone No. 828-7572, if they have any questions concerning this notice or compliance with its provisions. Oklahoma Sheraton Corporation and Hotel & Restaurant Em- ployees and Bartenders International Union , Local 246, AFL- CIO. Case No. 16-CA-2049. May 21, 1965 DECISION AND ORDER On March 8, 1965, Trial Examiner Samuel Ross issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices and recommended that such allegation of the complaint be dismissed. Thereafter, the Respondent and General Counsel filed exceptions to the Trial Exam- iner's Decision and supporting briefs and the Respondent filed cross- exceptions and a brief in support thereof. 152 NLRB No. 81. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that Respondent, Oklahoma Sheraton Corporation, Oklahoma City, Okla- homa, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on May 22, 1964, by Hotel & Restaurant Employees and Bar- tenders International Union, Local 246, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board issued a complaint dated June 25, 1964, against Oklahoma Sheraton Corporation ,' herein called the Respond- ent, alleging that it had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the National Labor Relations Act, as amended , herein called the Act. In substance , the com- plaint alleges that the Respondent discriminated against two of its employees , Leslie B. Brown and Cecil C. Mouser, by terminating their employment and refusing to reinstate them because of their membership in and activity on behalf of the Union. The Respondent filed an answer denying the substantive allegations of the complaint and the commission of unfair labor practices. Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross on August 25 and 26, 1964, at Oklahoma City, Oklahoma. All parties were repre- sented at the hearing and were afforded full opportunity to be heard , to introduce evidence , to examine and cross-examine witnesses, to present oral argument, and to file briefs . On September 29 and 30, 1964, respectively , the General Counsel and the Respondent filed briefs which have been carefully considered. Upon the entire record in the case, and from his observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. COMMERCE The Respondent, an Oklahoma corporation whose principal office and place of business is located in Oklahoma City, Oklahoma, is engaged in the business of oper- ating the Sheraton Oklahoma Hotel, less than 75 percent of whose guests occupy their premises for more than 1 month at a time. During the past 12 months , a represen- tative period, the Respondent has received in excess of $500,000 for the sale of goods and services at the hotel , and has made purchases of goods and materials valued in excess of $50,000 from suppliers located in States other than the State of Oklahoma. " The name of the Respondent Company has been corrected to read as above pursuant to the stipulation of the parties OKLAHOMA SHERATON CORPORATION 761 On the foregoing admitted facts, it is found that the Respondent is engaged in com- merce or in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On April 17, 1961 , the Respondent purchased the Biltmore Hotel in Oklahoma City, Oklahoma, which it renamed the Sheraton Oklahoma Hotel. At the same time, the Respondent also purchased for the use of its guests, an adjacent parking lot for automobiles which previously had operated independently . Following its acquisition of these properties, the Respondent continued in its employ the former employees of the hotel and parking lot. Among the employees thus acquired by the Respondent was Leslie B. Brown, one of the alleged discriminatees in this proceeding. The Union has been attempting to organize the hotel's employees for many years, its initial efforts dating back to before the Respondent acquired the property. In September 1961 , after the Respondent became the owner of the hotel , there were two Board-conducted elections which the Union apparently lost.2 Brown was the Union's observer in the second such election. B. The discriminatory discharge of Leslie B. Brown 1. Brown's employment record with Respondent Brown has been employed by the former owner of the parking lot since 1949, and at the time of its acquisition by Respondent he was the manager of the lot. When the Respondent assumed ownership , supervision of the lot was placed under the direction of one Junior Talley, and Brown was employed as a rank-and -file parking lot attendant. In February 1962, as part of the Respondent's processing of its newly acquired employees , Brown completed and delivered to the Respondent a form which dis- closed that he had been convicted for criminal offenses on five occasions , the last three of which were for "liquor violations ," and that he had served time in con- nection with his last four convictions . This record 3 further disclosed that Brown's last conviction (for a "liquor violation") had occurred in 1953, approximately 11 years before the termination of his employment. Notwithstanding his criminal rec- ord, Brown was assured shortly thereafter by Respondent Security Officer James Phillips that "it was all right" and would not affect his continued employment. At the time of his discharge by Respondent, Brown was general secretary of his church, recording secretary of his consistory , which is the 32d degree house of Masonry, and also secretary of the National Association for the Advancement of Colored People .4 In May 1962 the Respondent promoted Brown to parking lot manager , a position which included responsibility for the handling of the "cash bank" 5 and the daily receipts of the parking lot, According to the "policy and procedure" of the Respond- ent's parent company, the Sheraton Corporation of America ,6 in effect when Brown was promoted to parking lot manager , Respondent was required to forward a fidelity bond application for all employees, like Brown , who handled money. No such bond application was made for Brown. 'The first election was set aside for reasons not disclosed by the record ( Case No. 16-RC-2931). 1 Respondent's Exhibit No. 1. 4 The Respondent 's brief ( p 20) concedes that since Brown's last conviction in 1953, "his record . is indicative of his complete i ehabihtation," and that "he is a man of mature years ( 52), highly intelligent, self-confident .. . a man of dignity . . , a leader among his people and a great credit to them." s The term "cash bank" refers to the daily amount which the Respondent provides for making change to patrons . In the case of the parking lot, the cash bank was $55 and the daily receipts varied from a minimum of $20 to a maximum of $100. See Respondent's Exhibit No 7. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In September 1962, because of complaints from guests regarding the inefficient operation of the parking lot, General Manager Pannella designated Resident Comp- troller Reynold W. Case to take over administrative supervision of the parking lot. In October 1962, Case recommended to Pannella that Brown be discharged and that his position as parking lot manager be assigned to Joseph L. Kelly, who at that time was employed by Respondent as a part-time parking lot attendant. To the extent material to the issues herein, the reasons stated by Case to Pannella for this recom- mendation were Brown's criminal record, and his alleged excessive use of the single telephone in the parking lot which, purportedly, was delaying or preventing guests from calling the lot to order delivery of their cars. Pannella refused to accede to Case's recommendation for Brown's discharge, but agreed to his demotion to park- ing lot attendant because in the latter position "he [Brown] would not have charge of the cash." Brown was notified of his demotion by Respondent's personnel manager, but although Brown asked, he was never told the reason therefor.? Coincident with Brown's demotion, Kelly was appointed parking lot manager and as Case's "direct assistant." Like Brown, Kelly also had a criminal record consist- ing of a conviction for burglary in 1949.8 Notwithstanding the Respondent's bond- ing "policy and procedure," and the fact that Kelly as parking lot manager was responsible for the cash bank and daily receipts of the lot, no application for a fidelity bond was made by the Respondent for him until March 3, 1964, 11/2 years later. Thereafter, and until Brown's discharge as described hereinafter, Brown contin- ued to work for the Respondent as a parking lot attendant, and in Kelly's absence on weekends and other occasions, he was designated by Kelly to be responsible for the cash bank and the daily receipts. General Manager Pannella admitted that during Brown's entire tenure of employment with Respondent, no parking lot funds were reported as "missing," and that he had no reason to doubt Brown's honesty. Comp- troller Case also conceded that he knew of no act of dishonesty by Brown during his employment. 2. Brown's union organizational activity As secretary of the NAACP, Brown had a mailing list of its members which included the names and addresses of most of the Respondent's Negro employees. In early 1964, Brown commenced telephoning employees of the Respondent from his home with a view to "aligning" them with the Union, invited them to attend a union meeting on February 23, 1964, and requested Newt Ellenbarger, an International representative of the Union, to participate. The meeting was held as scheduled, and further union meetings were held at weekly intervals thereafter. In addition to the foregoing union activities, Brown also secured a supply of union authorization cards from the office of the Local Union, solicited employees of Respondent to sign the cards, and secured signatures from about 42 of them Although Brown did not engage in the foregoing union activity at the hotel's premises, he did not request the employees he solicited to keep silent regarding it, and made no effort to conceal what he was doing. In late February or early in March 1964, Parking Lot Manager Kelly came back to the lot after attending the weekly department head meeting of Respondent, and told Brown, according to the latter's uncontroverted and credited testimony, "Everybody in the hotel knows about this union activity that is going on around here." Kelly also told Brown that some- one at the department head meeting, after discussion of the Union, said that "they should have got [sic] rid of Leslie Brown earlier," when he was demoted,9 and that Crippin, Respondent's resident manager, had replied, "It was too late now." Shortly after this conversation between Brown and Kelly, the latter called all the parking lot attendants together, told them he was neither for nor against the Union, but that he wanted it to be specifically understood that there was to be no union activity "on the job." Later that same day, Kelly asked Brown where he was holding the union meetings. Brown replied that they were being held at the East Fourth Street Branch of the YMCA. T The complaint does not allege that Brown's demotion was motivated by antiunion considerations s Kelly's conviction was disclosed to the Respondent on his application for employ- ment (Respondent's Exhibit No 16) and Case was aware of it O Brown credibly testified that he had asked Kelly who made this statement at the department head meeting, and that Kelly had replied that "he did not know " OKLAHOMA SHERATON CORPORATION 763 3. Brown discharge On March 3, 1964, Respondent General Manager Pannella received a memoran- dum from Thomas C. Deveau, division manager of Respondent's parent company, recommending that "another trial" be made by the Respondent at requiring its guests to park and lock their own automobiles.10 Upon receipt of the memorandum, Pan- nella instructed Comptroller Case to institute the park and lock system of parking guests' cars on March 13, 1964, and to select which parking lot employees should be retained and which terminated. Case designated four attendants and Parking Lot Manager Kelly for retention 11 Leslie Brown was one of three designated by Case for discharge, the other two being Delbert Hopkins and Allison. However, 1 day after the termination of the three on March 13, 1960, Hopkins was recalled to work as a parking lot attendant by Respondent, and he has been so employed by it ever since.12 Brown was notified that his employment was being terminated on March 13, 1964. On that day, Parking Lot Manager Kelly told Brown that he had "bad news" for him, that the hotel was instituting the park and lock system, and that he "was going to have to let half of the people-half of the staff go." Kelly then gave Brown three checks, one for his current pay, another for his accrued vacation pay, and a third for severance pay. Brown asked Kelly, "Why am I chosen when I am the oldest employee in the point of service, and I have far more experience in the parking busi- ness than anybody else here." Kelly replied that he had nothing to do with the selection of those who were to be terminated, but had merely been handed a list at a department head meeting of the employees to be retained. Brown looked at the list and noticed the absence of his name. He then commented to Kelly, "Why? I am an employee that [sic] has never had a reprimand. I have never had a customer complaint that I know about." Kelly replied, "Well Brown, I do not know unless it was your union activity." 13 4. The pretextual reasons assigned by the Respondent for Brown's termination The selection of which parking lot attendants were to be retained and which ter- minated was made by Comptroller Case, and in the case of Brown, with General Manager Pannella's approval. The only criteria which Case assertedly used for his selections were subjective ones, such as his personal observation of the relative mer- its and efficiency of the attendants, their personal appearance, and their handling of the guests. However, Case did not explicate how, or in what manner, Brown was deficient in any of these alleged criteria. Seniority was admittedly not considered "at all," and no explanation was offered for the failure to consider it.14 None of the parking lot employees even closely approximated Brown in length of service. Kelly, the parking lot manager, who obviously was in the best position to judge the relative merits of the parking lot attendants, was not consulted in regard to which should be retained. No explanation was offered for this significant omission by Case. Two objective reasons were stated by Case for Brown's selection for termi- nation, his criminal record, and his alleged excessive use of the parking lot telephone. These reasons for Brown's termination will be considered sei iatinz. 10In October 1962, in a review of the Respondent's operations, Deveau had recom- mended that "by requiring the guest to park and lock they [sic] own cars, 4 attendants can be eliminated," with a savings of $15,000 per annum. The Respondent, pursuant to that recommendation, instituted its first trial of the park and lock system in March 1963, but discontinued it after 1 week because of reported complaints from guests No park- ing lot attendants were laid off or discharged in connection with that trial. 11 The four were John Benford. Kenneth Benford, Lee Quincy Barnett, and Chester Brown (unrelated to Leslie B. Brown, the alleged discriminatee). 12 The complaint does not challenge the economic necessity for the layoff, but alleges that the selection of Brown for termination was motivated by antiunion considerations. 13 Kelly was not called as a witness by Respondent, and no application for a continuance was made by it to obtain his testimony. 14 Length of service with Respondent, its parent company, or with any hotel acquired by it, is rewarded by cash and other recognition based on the length of service. Thus, employees with 20 years' service are given $100 15-year employees get $50, 10-year employees receive a gold pin, and employees with 5 years' service are given a silver pin. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. Brown's criminal record As previously noted, the Respondent had knowledge of Brown's criminal record for 2 years (since February 1962), and notwithstanding that knowledge, had retained him in its employ, first as parking lot manager, and later as parking lot attendant. Moreover, as also previously noted, both General Manager Pannella and Comptroller Case admitted that they had no reason to doubt Brown's honesty, and knew of no act of dishonesty on his part during his employment. Nevertheless, Pannella and Case explained that under the new park and lock system which was then being insti- tuted for handling guests' automobiles, there would be only one attendant working at the lot on each shift; each such attendant would be responsible for the cash bank and daily receipts; Sheraton's bonding policy therefore required that each parking lot attendant who remained in Respondent's employ be bonded; and in the light of Brown's criminal record, "they could not send in a bonding application for him [Brown]." This explanation, although on its surface quite persuasive, cannot withstand close scrutiny. Sheraton's bonding policy was not a new one. It had been in effect as long as Manager Pannella could remember, at least 12 years. It required all employees who handled money to be bonded. But notwithstanding that policy, no application for a bond had ever been required of Brown while he was manager of the parking lot and was responsible for the cash bank and daily receipts, none was ever required of Brown thereafter, although in Kelly's absence, Brown was assigned responsibility for the cash, and as noted above, none was ever required for Parking Lot Manager Kelly for 11/2 years until Brown's discharge was decided upon. After so long a period of ignoring Sheraton's bonding policy, the coincidence of these two events (the decision to discharge Brown and the bonding of Kelly) is too significant to be ascribed to mere happenstance.15 The fact is that notwithstanding the asserted requirement that all the parking lot employees who were retained would have to be bonded, no applica- tion was made to bond two of the retained employees 16 until the first day of the hearing herein, which was 5 months after Brown's discharge. From the foregoing, it is fairly obvious that Brown's termination on March 13, 1964, could not have been motivated by any immediate requirement for his bond application. Additional reasons are disclosed by the record for the foregoing conclusion. Park- ing Lot Manager Kelly, despite his known conviction for burglary, was not dis- charged by the Respondent, and his criminal record did not deter the Respondent from forwarding a fidelity bond application for him. A week before the hearing in this case, and notwithstanding his known criminal record,17 the Respondent also for- warded a bond application for John Benford, one of the parking lot attendants who was retained when Brown was discharged. No persuasive reason was offered or can be perceived why, if indeed a bond for Brown was required at all, an application therefor was not also made for him.rs Finally the record also clearly discloses that a bonding application was not required for all parking lot attendants. As previously noted, the requirement for bonding all the parking lot attendants was allegedly based on the fact that under the new park and lock system of parking guests' cars, there would be only one attendant working 15 Manager Pannella attributed the failure to follow the bonding policy to laxity which he corrected when he received a "policy and procedure" reminder from Sheraton However, the reminder was dated January 10, 1964, and no explanation was offered for the intervening 2 months of further delay. 16 Delbert Hopkins and Lee Quincy Barnett. 17 Comptroller Case professed lack of knowledge of John Benford's criminal record before his bond application was completed Since Benford's record was disclosed by his application for employment, and the Trial Examiner regards Case's testimony as un- reliable, his asserted lack of earlier knowledge of Benford's conviction is not credited. 1e Comptroller Case admitted that he knew about Kelly' s criminal conviction for burglary as far back as the time when he promoted Kelly to parking lot manager. He attempted to explain his obviously inconsistent treatment of Brown and Kelly on two grounds* (1) because Kelly had not served time in jail, but instead had been placed on probation for 2 years, and (2) because Case had consulted with and had been advised by Respondent Security Officer Phillips, that since Kelly's conviction, Phillips "could not find anything at all against Mr. Kelly." However, Case admitted that he made no such similar inquiry of Security Officer Phillips in respect to Brown before the latter's termination, and that he knew that Brown's last conviction, for "a liquor violation," had occurred more than 10 years before. Moreover, such an inquiry would have disclosed a similar lack of "anything at all" against Brown following his last involvement with the law. OKLAHOMA SHERATON CORPORATION 765 on each of the three shifts, and since each of them would be alone and "in charge" of the cash bank and daily receipts, they were all required to be bonded. However, the record shows that including Kelly, the Respondent retained five parking lot attendants after the terminations of March 13, 1964, and after the recall of Hopkins 1 day later, that number was increased to six.19 Thus, since the number of attendants retained by Respondent was not limited to one to each shift, it is fairly obvious that all were not "in charge" of the cash, and, therefore, it was not necessary for all to be bonded. For all the foregoing reasons, it is concluded and found that the alleged require- ment to bond Brown, and the asserted inability to send in a bond application for him, quite apparently were advanced to conceal the real motivation for his discharge. b. Brown's alleged excessive use of the telephone Case testified that his selection of Brown for termination was also based on com- plaints which he had received regarding Brown's excessive use of the single telephone at the parking lot which interfered with service to the guests. According to Case, this alleged propensity of Brown had existed for a long time, and it was one of the reasons why Brown was demoted from parking lot manager to rank-and-file attendant in October 1962. Significantly, however, Case did not testify that he ever repri- manded Brown for excessive use of the telephone, or for any other reason. Unlike Case, Pannella did not ascribe Brown's selection for termination to his alleged excessive use of the parking lot telephone. However, Pannella testified that he also had received reports that the parking lot telephone was being used excessively by Brown, that such reports first came to his attention while Brown was still parking lot manager and persisted thereafter, and that a memorandum on the subject was posted in the parking lot, as follows: 20 Hotel-Sheraton Oklahoma Oklahoma City, Oklahoma, From: Hal Crippen Date-February 22, 1964. To: Parking Lot and OK Park Inn SUBJECT- The telephones in the two above places are business phones and not for personal use on long conversations. I have tried to call both places and the lines are tied up far too long. I have instructed the operator to cut in on calls if this continues, and also the only personal outside calls you will receive will be emergency calls. Having the lines tied up for any length of time hurts our service. I realize there must be outside calls made for different things which are business, but personal calls are what I am referring to. H. C. cc: Mr. Pannella Marie Prater Significantly, the memorandum did not refer to Brown personally, and Pannella did not testify that he ever reprimanded Brown, either for using the parking lot telephone, or for any other reason. The alleged source of the reports that Brown was excessively using the parking lot telephone, Respondent's Chief Telephone Operator Marie Prater, testified that this propensity of Brown existed "ever since Sheraton" took over the hotel (1961), that Brown was "the principal offender," that she would cut in on the line and "would ask him to hang up," and that she reported Brown for this offense to Respondent's Manager Crippen "several times" and once at a department head meeting Prater also testified that although other employees occasionally used the telephone, "that was very seldom," that the other employees "did not hold the line up," and that, therefore, she "had no occasion to" and did not report any employee other than Brown "for abusing the telephone privilege." However, Prater also testified that when she spoke to Brown at the parking lot, she told him, "It would be nice if the people over there would not abuse the telephone service," indicative, at the very least, that "people" in addition to Brown were abusing the telephone privilege, and that her testimony that she had "no occasion to" report anyone else was not true. Moreover, contrary to her testimony that no one else was reported for this offense, Prater also testified that she reported at the department head meetings, "which employees in the parking lot were abusing the privilege," and that Brown was "include[d] among them." 19 The Respondent admittedly also employs additional part-time attendants when the hotel is busy. "Respondent's Exhibit No. 3 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On still another occasion, Prater testified, "I did not report Mr. Brown I said they are abusing the phone service." [Emphasis supplied ] In the light of Prater's self- contradictory testimony above, her quite apparent hostility to Brown revealed both by her testimony and her demeanor on the stand, and Brown's uncontraverted testi- mony that he was never reprimanded by any of Respondent's officials for excessive use of the telephone, the Trial Examiner concludes that Prater's testimony is unworthy of reliance. In contrast, Brown was a frank and forthright witness whose testimony is credited. He readily admitted that he used the parking lot telephone, but he denied that Prater had ever cut in on his calls, or that she ever told him to hang up or get off the line. Brown also frankly conceded that the use of the telephone by parking lot attendants had been a frequent subject of complaint by the Respondent and Prater, and "was a problem" all "through [his] employment," but he testified that the criticism was directed at others 21 and never at him. In addition, as noted above, Brown testified without contradiction that "no one from management had ever complained about [his] excessive use of the telephone." Finally, and significantly, when Union International Representative Ellenbarger met with Respondent General Manager Pannella and Resident Manager Crippen with a view, inter alia, to effectuating the reinstatement of Brown, the only reason stated by Respondent's officials for Brown's discharge was his criminal record. In this regard, Ellenbarger credibly testified without contradiction 22 that in April 1964 he met with Pannella and Crippen and asked them if there was any way to settle the matter "without a fight." Pannella replied that "it would be impossible to put [Brown] back," that he had not been fired because of his union activity, but "on account of his criminal record." Ellenbarger asked if the criminal record involved "whiskey violations," and said that "half of the people in Oklahoma-has [sic] liquor violations ... if they lived here [in Oklahoma] for very long " Pannella replied, "Oh, no. It was worse than that," and that if Ellenbarger "knew what it was," he "would not try to protect him [Brown]." Pannella further stated that the Respondent "just could not have him [Brown] at the hotel." In light of the long duration of the Respondent's "problem" in respect to the exces- sive use of the parking lot telephone, it would be reasonable to assume that if Brown was "the principal offender" and was demoted from parking lot manager to rank-and- file attendant therefor, he would have been advised, reprimanded, and/or warned against the continuance of that alleged practice. Since according to Brown's uncon- traverted testimony, no one from management had ever complained about his exces- sive use of the telephone, the only fair inference which can be and is drawn, is that Brown was not guilty of this offense Under all the circumstances, and especially in the light of Pannella's failure to state in his conference with Union Representative Ellenbarger that Brown's alleged excessive use of the telephone was a reason for his termination, the conclusion is inescapable that this reason for Brown's discharge is an afterthought and another pretext on the part of the Respondent to conceal the real motivation therefor. It is so found. 5. Concluding findings in respect to the motivation for Brown's discharge In the light of the pretextual reasons assigned for the termination of this admittedly senior employee, who was "highly intelligent," "a man of dignity," "a leader among his people and a great credit to them" (Resp. brief, p. 20), the true motivation is not difficult to perceive. The Respondent admittedly was opposed to the representa- tion of its employees by the Union Brown had been an observer for the Union in a prior election, and was the leader of the Union's current organizational effort His union activity was known to Respondent Supervisor Kelly,23 and therefore, was and is chargeable to the corporate Respondent herein.24 Kelly knew of no reason for Brown's selection for termination, "unless it was [his] union activity." Moreover, according to Supervisor Kelly's statement to Brown immediately after Kelly had attended a department head meeting, "Everybody in the hotel knows about this union activity which is going on around here." Finally, Comptroller Case admitted that 21 John Benford, Kenneth Benford, and Pierson, all of whom are still employed by Respondent z' Crippen did not testify for Respondent Pannella, although a witness for the Respondent, did not dispute the accuracy of Ellenbarger's testimony in this respect 2a According to Brown's uncontraverted testimony, Kelly had authority to hire and to discharge employees, and to assign them to the shifts on which they were to wort: It is therefore found that Kelly is a supervisor of the Respondent within the meaning of Section 2(11) of the Act aOwens-Corning Fibetglas Corporation, 14G NLRB 1492 OKLAHOMA SHERATON CORPORATION 767 at a department head meeting held on March 5, 1964, before Brown's discharge, Manager Pannella said, "It looks like maybe the Union is active again." On the foregoing record, and notwithstanding the denials of Pannella and Case, it is found that the Respondent had knowledge of Brown's leading role in the renewal of the Union's effort to organize its employees. In the light of that knowledge, the Respondent's admitted opposition to the Union, the timing of Brown's termination immediately after acquiring knowledge of his union activities, and the pretextual reasons asserted for Brown's selection for dis- charge, it is concluded and found that the real reason therefor was Brown's leading role in the Union's organizational campaign, and to discourage employees from joining or assisting the Union. Accordingly, it is found that by discharging Brown on March 13, 1964, because of antiunion considerations, the Respondent engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1) of the Act. C. The alleged discriminatory discharge of Cecil C. Mouser 1. Mouser's employment Mouser was hired in 1958 by the Biltmore Hotel, the predecessor owner of the Sheraton Hotel in Oklahoma City, to work as an engineer and maintenance employee. His supervisor, Emory Haynes, was the chief engineer. In the fall of 1960, Haynes accepted employment with the First National Bank in Oklahoma City as chief engi- neer. At the request of Haynes, Mouser transferred his employment to the bank on January 1, 1961, where he again worked under Haynes as an engineer and mainte- nance employee. On May 15, 1961, while so employed by the bank, Mouser fell from a ladder and fractured his 12th dorsal vertebra. This injury ultimately left Mouser with an "approximately 15% permanent partial disability to the body as a whole," for which he subsequently received compensation approved by the State Industrial Court of the State of Oklahoma. In May 1961, Mouser's supervisor, Haynes, returned to work for the hotel which by then was owned and operated by Respondent. Thereafter, on February 19, 1962, when a job as engineer "opened up" at the hotel, Haynes reemployed Mouser, and the latter worked for Respondent until his discharge on April 7, 1964. 2 Mouser's union activity In February 1964, Mouser commenced attending the Union's meetings at the YMCA. Mouser first testified that he engaged in no union activity "other than attending meetings." Then, in response to a leading question by the General Coun- sel, Mouser testified that he also "distributed" union cards to employees. However, he could not remember the names of any of the persons to whom he distributed cards. In view of his uncertainty in this respect, Mouser's testimony in respect to distributing union cards is not credited. In the latter part of March 1964, Chief Engineer Haynes joshed Mouser regarding his resumption of friendship with Fellow Engineer and Maintenance Man Lewis G. Hart. According to Mouser's credited testimony, Haynes said to him on this occa- tion, "I did not think you and Hart got along so well. I see you are going out together quite often." Mouser replied "We have not been going anywhere except to attend Union meetings" Haynes asked where the meetings were taking place Mouser answered, "The Northeast Branch of the Y.M C A." Haynes then asked Mouser how he "felt" about the Right to Work Bill, known as the 409 Issue, which was to be voted on in Oklahoma in May 1964. Mouser said that he was "against it." Then Haynes said, "I am sorry to hear that you are for the Union and against this 409 Issue. We have been friends for a long time We are brother Masons, belong to the same consistory." Mouser replied that as far as he was concerned, "the friendship that existed between [them] had nothing to do with the Union, or Masonry, or any- thing else." 25 3. Mouser's discharge Mouser's job with the Respondent consisted of firing the boilers, running the pumps, taking and recording hourly meter readings, repairing and installing air- conditioners, and other minor repair work on hotel equipment. His job occasionally required the lifting of heavy objects. However, because of his knowledge of Mouser's a Haynes' version of this conversation conflicted somewhat with that of Mouser. According to Haynes, the conversation related solely to the Right to Work Law Issue and (lid not concern unions or union meetings Since the Trial Examiner regards liouser's testimony as more reliable, Haynes' testimony is not credited to the extent it conflicts with that of Mouser. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD back injury, Chief Engineer Haynes, who was also a friend of Mouser, either excluded the latter from many of the heavy lifting jobs, or provided him with assistance in performing them. On March 17, 1964, while lifting and stacking 100 pound bags of salt, Mouser again injured or twisted his back, and he was sent by Haynes to the Respondent's doctor for examination and treatment. Dr. E. F. Lester who conducted the examina- tion found that Mouser had suffered a lumbar back strain. Upon Mouser's statement to the doctor that he had suffered a previous back injury, X-Rays were taken of Mouser's back. These revealed that since his previous back injury, Mouser had developed osteoarthritis in the lumbar region of the back. Dr. Lester informed Mouser of that fact, and also told him that "his back was apt to cause trouble in the future." Then, after giving Mouser a "heat treatment," the doctor advised him that he could return to work unless he found working to be too painful, in which event Mouser was to return to see the doctor on the following Thursday. Mouser returned to work the same day and had no further back trouble. Three weeks later, on April 7, 1964, Mouser was called to the office of Resident Manager Crippen, where in Haynes' presence he was advised that his employment was being terminated because of a back injury which he had not reported when he came to work for Respondent . At the same time, Mouser was given checks for his services to date, for accrued vacation pay, and for severance pay. 4. Respondent's reasons for discharging Mouser The Respondent is self-insured in respect to workmen's compensation law liability, and it utilizes the services of the Coleman Company, insurance adjusters and investi- gators, in respect to workmen's compensation claims. Following Mouser's examina- tion by Dr. Lester, the latter reported to Charles W. Stubbs of the Coleman Company that Mouser had an "old compression fracture of thoracic vertebrae number twelve along with a great deal of degenerative changes in the back, commonly called osteo- arthritis, which would predispose him to future back injuries." On April 6, 1964, Stubbs sent a written report to General Manager Pannella to the effect that when reemployed by Respondent, Mouser had reported that he had "no previous back injuries and that his back was normal," that the records of the State Industrial Court disclosed that he had sustained a back injury prior to his employ- ment by Respondent, that Mouser's present condition was "that he is very prone to have further injuries with this back," and that in that event, Respondent "would have some liability for the costs of medical treatment, [and] future and permanent dis- ability," that such medical treatment cost liability was "unlimited " and that the permanent disability liability could be as much as $15,687.50." 26 Upon receipt of this report on April 7, 1964, General Manager Pannella called Chief Engineer Haynes to his office, showed him Stubbs' report, and told him that Mouser would have to be discharged. Pannella also instructed Resident Manager Crippen to prepare the final paychecks for Mouser and to advise him of his termina- tion . Pannella testified that he took this action in pursuance to Sheraton's "policy and procedure" 27 which provides, inter alia, It is a hard rule but it is forced on us by the operation of the Workmen's Com- pensation laws that no man should be employed who has a serious past injury or a congenital defect. 5. Concluding findings in respect to Mouser's alleged discriminatory discharge The General Counsel contends that the reasons asserted by Respondent for Mouser's dismissal are pretextual , and urges that, accordingly, the conclusion is required that Mouser's discharge was motivated by his known union activity, and the Respondent's opposition to the Union. As found above, Chief Engineer Haynes knew that Mouser was attending union meetings , and that knowledge is chargeable to the Respondent 28 Moreover, as noted above, it is undisputed that the Respondent was opposed to the representation of its employees by the Union . Accordingly, if, as contended by the General Counsel, the reasons asserted by Respondent for Mouser's discharge were pretextual , a strong case of discriminatory discharge would be established. Respondent's Exhibit No. 9 x Respondent's Exhibit No. 10. 28 Otoens-Corning Fiberglas Corporation , supra. OKLAHOMA SHERATON CORPORATION 769 As previously noted, Mouser was told that he was being terminated because of a preemployment back injury which he had not reported. The General Counsel urges that these reasons are pretexts because: (a) Mouser, when hired, had not withheld from the Respondent the fact that he had sustained a preemployment back injury; and (b) other employees doing the same work as Mouser have been retained in the Respondent's employ notwithstanding that they suffer from similar debilitating con- ditions which subject the Respondent to liability under the workmen's compensation laws. The record in respect to these contentions will be considered hereinafter. (a) Admittedly, Mouser did not tell the Respondent's doctor who conducted his preemployment physical examination that he had suffered a prior back injury. How- ever, Mouser credibly testified that he was not asked any question by the doctor about a prior back injury, and that if he had, he would have truthfully answered because, "It is no secret. Everybody in the hotel knows about my back. I made no secret of my back." Mouser's testimony in this regard is amply corroborated. Although Dr. Cox who conducted the examination testified that he usually asks about prior back injuries, he was unable to state categorically that he did so on the occasion of Mouser's physical examination. Moreover, Mouser's supervisor, Chief Engineer Haynes, admittedly knew all about his previous back injury before be hired Mouser.29 Finally, Mouser's application for employment 30 disclosed that his last previous employment by the bank had terminated because he had been "injured and did not go back." It is therefore quite apparent and found that Mouser had not failed to report his back injury when hired by the Respondent. However, the conclusion that the Respondent erroneously informed Mouser that he had failed to report his previous back injury, does not require a finding that the assertion thereof was a pretext to conceal the real reason for Mouser's discharge. As noted above, on April 7, 1964, the day Mouser was terminated, General Manager Pannella had received a report on the investigation of Mouser's most recent back injury from Stubbs, the insurance investigator and adjuster. That report stated, inter alia, Your records show that this man [Mouser] came to work for you and reported that he had no previous back injuries. His physical examination from Drs. Adams and Lester show that his back was normal at the time of his employment with your company. Although as found above, Stubbs' report in this respect was erroneous, there is no evidence in the record that Pannella knew that it was inaccurate, and without such knowledge, it was quite reasonable for Pannella to rely on the report. Accordingly, absent evidence that Pannella solicited Stubbs' report to provide an excuse for Mouser's discharge,31 and there is none, the record is deemed insufficient to support that the erroneous assertion of this reason for Mouser's termination was a pretext to conceal another reason therefor. (b) The General Counsel further urges that the Respondent's reasons for dis- charging Mouser are pretexts because other employees doing the same work as Mouser have been retained in Respondent's employ notwithstanding that they also have similar debilitating conditions which subject the Respondent to potential work- men's compensation liability. In this regard the record shows that Leonard Ketter- man, a maintenance engineer, is still employed by the Respondent although on Sep- tember 27, 1963, Dr. Cox recommended that he should be rejected for employment because of a hernia; and that Henry K. Walters, also a maintenance engineer, is like- wise still employed by the Respondent, notwithstanding that on April 7, 1964, in his As previously noted, he and Mouser had worked together at the First National Bank when the injury was sustained. 30 General Counsel's Exhibit No. 3. u In this regard , the record shows that the opening phrase of Stubbs' report states, "Pursuant to your request." However, Pannella plausibly and credibly explained that the "request" was a reference to a telephone conversation on April 6, 1964, the day be- fore Mouser's discharge, during which Stubbs had reported orally to Pannella regarding the result of his investigation. Because the oral report was "quite lengthy," Pannella had asked Stubbs to send it to him "in writing." In addition, Pannella also credibly testified that he had not requested an investigation of Mouser's accident, and that such matters were left to the decision of the Coleman Company, the Respondent's insurance adjusters 789-730-66-vol. 152-50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD physical examination report on Walters, Dr. Cox wrote, "Has old injury & arthritis of rt. knee and this swells occasionally. If it bothers him while working, he can claim `aggravation' of preexisting condition and collect permanent disability." 32 Chief Engineer Haynes testified that Ketterman's hernia "is supposed" to be corrected by an operation by the latter's family doctor, and that in the interim, Ketterman has been carried on the Respondent's records as a temporary employee. Haynes further testified that he had not notified General Manager Pannella about Ketterman's condition. In respect to Walters, Haynes testified that he was advised by Walters that his arthritic condition was service connected, and that the Government "take[s] care of his disability." Haynes therefore requested Walters to procure a letter to that effect, which Walters later did from Dr. Henry J. Freede.33 General Manager Pannella testified that until the hearing in this case, he had no knowledge either of Ketterman's or Walters' physical disabilities Aside from the fact that the doctor's physical examination reports of these two employees were in the Respondent's personnel files, there is no evidence to dispute Pannella's testimony in this regard. Pannella also testified that unlike the case of Mouser, he received no report from Respondent's insurance adjusters alerting him to possible workmen's compensation liability by the retention of Ketterman or Walters in the Respondent's employ. Whether or not Haynes acted prudently in retaining Kellerman for so long without insisting on the correction of his hernia, and regardless of whether Haynes was legally justified in his belief that Walters' disability imposed no potential liability upon the Respondent, his conduct in employing these two employees and in failing to report their disabilities to Pannella was wholly consistent with his treatment of Mouser, who also was hired by Haynes, notwithstanding his knowledge of Mouser's prior injury. Moreover, since Pannella, on the record herein, had no knowledge, either of the dis- abilities of Ketterman and Walters, or of their possible workmen's compensation liability to Respondent, Pannella's failure to discharge them was not inconsistent with his termination of Mouser, whose disability and potential liability to Respondent had forcefully been brought to his attention by Stubbs' investigation report. Accordingly, notwithstanding the initial suspicions raised by the discharge of Mouser, and the retention of Ketterman and Walters, and although not free from doubt, it is con- cluded that the record does not furnish a sufficient basis for holding that Mouser's back injury was a pretext to conceal another motivation for his termination. In view of the above and of Mouser's minimal union activity, I conclude that the record fails to establish by a preponderance of the evidence that Mouser's discharge was motivated by antiunion considerations.34 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminated against Leslie B. Brown by termi- nating his employment and failing and refusing thereafter to reinstate him, I will recommend that the Respondent be ordered to offer him immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earn- ings he may have suffered by reason of the discrimination against him, by the pay- ment to him of a sum of money equal to the amount which he normally would have $3 The physical examination reports of employees are maintained in the files of the Respondent's personnel office 33 General Counsel's Exhibit No 7-C 34 The record in this case, in addition to what has been repotted above, also contains credited testimony by Jo Ann Myers, an occupant of the hotel, to the effect that in the latter part of illaich 19(i4, when she complained about the way another maintenance engineer had acted," Haynes said that he wished she would report Mouser every day In respect to the issue of discrimination, this testimony is at best ambiguous It is therefore regarding as having little. if any. value in establishing that the motivation for Haynes' statement to Myers was based on antiunion considerations OKLAHOMA SHERATON CORPORATION 771 Learned as wages from March 13, 1964, to the date of the offer of reinstatement, less his net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board.35 I will also recommend that the Respondent make available to the Board, upon request, payroll and all other records necessary to facilitate the determination of the amounts due under this recommended remedy. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1 Hotel & Restaurant Employees and Bartenders International Union, Local 246, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discouraging membership in a labor organization through discrimination in employment, and by thereby interfering with, restraining, and coercing employees in the exercise of their rights under the Act, the Respondent has engaged in and is engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 3. The General Counsel has failed to prove by a preponderance of the evidence that the Respondent's discharge and failure to reinstate Cecil C. Mouser was moti- vated by antiunion considerations. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Oklahoma Sheraton Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in and activities on behalf of Hotel & Restaurant Employees and Bartenders International Union, Local 246, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate any employee, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment, except to the extent permitted by the proviso to Section 8(a) (3) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employ- ees in the exercise of their right to self-organization, to form labor organizations, to join or assist Hotel & Restaurant Employees and Bartenders International Union, Local 246, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act 2. Take the following affirmative action to effectuate the policies of the Act. (a) Offer Leslie B. Brown reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimina- tion against him in the manner provided in the section of this Decision entitled "The Remedy." (b) 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 other records, as set forth in the section of this Decision entitled "The Remedy." (c) Notify Leslie B. Brown if presently serving in the Armed Forces of the United States of his 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. (d) Post at its hotel and parking lots in Oklahoma City, Oklahoma, copies of the attached notice marked "Appendix." 36 Copies of said notice, to be furnished by the 35F W Woolworth Company, 90 NLRB 289 Backpay shall include the payment of interest at the rate of 6 percent per annum to be computed In the manner set forth in Isis Plumbing <6 Heating Co , 138 NLRB 716 "In the event that this Recommended Order be adopted by the Board the words "a Decision and Order " shall he substituted for the words " the Recommended Order of a Trial Examiner" In the notice In the further event that the Board ' s Order be en- forced by a decree of a United States Court of Appeals, the words "a Deuce of the United States Court of Appeals , Enforcing an Order " shall be substituted for the words "a Decision and Order " 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director for Region 16, shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the date of the receipt of this Decision and Recommended Order, what steps it has taken to comply herewith.37 I further recommend the dismissal of the complaint insofar as it alleges that by discharging and failing and refusing to reinstate Cecil C. Mouser, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 37 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 Labor Management Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of Hotel & Restaurant Employees and Bartenders International Union, Local 246, AFL- CIO, or any other labor organization, by discharging or refusing to reinstate any of our employees or in any other manner discriminating against our employ- ees in regard to their hire or tenure of employment, or any term or condition of employment, except as permitted by the proviso to Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Hotel & Restaurant Employees and Bartenders International Union, Local 246, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to Leslie B. Brown immediate and full reinstatement to his former or substantially equivalent position, without prejudice to any seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as result of the discrimination against him. WE WILL notify the above-named employee if presently serving in the Armed' Forces of the United States of his 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. All our employees are free to become or remain or to refrain from becoming or remaining members of Hotel & Restaurant Employees and Bartenders International' Union, Local 246, AFL-CIO, or any other labor organization. OKLAHOMA SHERATON CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Sixth- Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions.