Holiday Inn Restaurant

77 OPERATING COMPANY 927 (b) In any manner interfering with the efforts of the above- named Union to bar- gain collectively with the above-named Company on behalf of the employees in the above-described unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclu- sive representative of all employees in the above-described unit, and embody in a signed agreement any understanding reached. (b) Post at its office at Meridian , Mississippi, copies of the attached notice marked "Appendix." 3 Copies of such notice , to be furnished by the Regional Director for Region 15, after being signed by an authorized representative of the Respondent, shall be posted immediately upon the receipt thereof, and be maintained by it for 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 such notices are not altered , defaced, or covered by any other material. (c) Notify the said Regional Director, in writing , within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith .4 3 In the event that 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 . In the further event that the Board' s Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." * In the event that this Recommended Order is 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." John Hammonds and Roy Winegardner, Partners, d/b/a 77 Operating Company, d/b/a Holiday Inn Restaurant and Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO. Cases 9-CA-3554 and 3595. September 7,1966 DECISION AND ORDER On January 21, 1966, Trial Examiner George A. Downing issued his Decision in the above-entitled proceeding, finding that Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Deci- sion. The Trial Examiner also found that Respondents had not engaged in certain other unfair labor practices, and recommended that the allegations of the complaint pertaining thereto be dismissed. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision and a supporting brief. 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 and the entire record in these cases , including 160 NLRB No. 68. 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. In the absence of exceptions thereto, Ave adopt the Trial Examiner's findings, conclusions, and recommendations with regard to the Section 8(a) (1) and (3) aspects of these cases. Further, however, we find that only a bargaining order can adequately remedy the situation created by Respondents' unfair labor practices. Respondents, separately incorporated businesses, operate a motel and restaurant.' The Union (herein called Local #347) requested Respondents to recognize it as the bargaining representative of Respondents' restaurant employees. Local # 347 presented Respond- ents with 25 valid authorization cards from approximately 38 employ- ees on the restaurant payroll, and later procured a card from a porter on the motel payroll. Respondents re,'used to recognize Local #347 on the ground that some of the authorization cards presented were fraudulently obtained, that others were forged, and still others were signed by employees not on the payroll of the restaurant.' Imme- diately thereafter Respondent undertook a vigorous campaign to intimidate and discourage employees in the restaurant from remain- ing loyal to Local #347. The campaign included the unlawful dis- charges of seven restaurant employees. At the hearing herein, -Respondents for the first time questioned the appropriateness of the unit requested. The Trial Examiner dismissed the alleged violation of Section 8(a) (5) because he deemed himself bound by the Board's Arling'ton3 rule for the hotel industry that "all operating personnel have such a high degree of functional integration and mutuality of interests that they should be grouped together for collective-bargaining purposes." 4 We have decided to overrule Arlington. The circumstances of this case graphically point up the weaknesses of Arlington as a rigid rule. While Respondents' motel and restaurti'nt form a single'bui'siness enterprise for jurisdictional purposes, their functions are not in our opinion so integrated as to preclude a finding that the restaurant employees form a separate appropriate unit for purposes of collective bargaining. One building consists only of motel rooms. The other, 'The Trial Examiner found that, for the purpose of meeting the Board's jurisdictional standards, the motel and restaurant operations of Respondents should be treated as a single enterprise. We agree. He was also correct, however, in rejecting Respondents ' contention that the Board must therefore include the employees of both the motel and restaurant in a single unit. 2 As Respondents presented no evidence which would substantiate their' allegations with regard to the validity of the cards, we adopt the Trial Examiner 's findings in this regard. 3 Arlington Hotel Company, Inc., 126 NLRB 400. 4 Although later exceptions to the Arlington rule (see Water Tower inn, 139 NLRB 842, and LaRonde Bar h Restaurant, Inc., 145 NLRB 270) are not applicable here, they suggest that bargaining in less than hotelwide units is feasible. - 7 7 OPERATING COMPANY 929, called the commercial building, contains the motel and restaurant. offices, a lobby, dining room, coffeeshop, kitchen, club and banquet rooms, and office space leased to local businesses. The employees working in the restaurant are classified as cooks, cashiers, waitresses, dishwashers, etc. Other than those typical restau- rant employees, the only employees working in the commercial build- ing are maintenance men, desk clerks, a bookkeeper, and porters. At the time of the hearing one porter was working as a janitor (in the restaurant and/or lobby) the majority of his time. He sometimes assists in the kitchen, and spends the remainder of his time carrying food to guests in the motel rooms.5 A common maintenance crew of about five employees is carried on the motel payroll. The duties of the desk clerks, who are on the motel payroll, do not bring them into con- tact with employees working in the restaurant. One of them "super- vises" the porter while he is working in and around the lobby, but he is otherwise supervised by a restaurant supervisor. Though the motel and restaurant are under the same general man- ager, their immediate and daily supervision is separate. There is no evidence of interchange of employees and no overlapping of duties beyond that mentioned above. It is our opinion that the functions of the restaurant herein are definable and are clearly separate from those of the motel.6 The Board has in a number of cases recognized gen- erally that units composed only of restaurant employees form appro- priate bargaining, units, even in industries where, as here, the res- taurant functions of employers are only part of the overall functions ,of a; single' business enterprise. See, e.g., Allied Stores of Ohio, d/b/a A. Polsky Company, 90 NLRB 1868; F. W. Woolworth Company, 144 NLRB 307, 309. The Arlington case issued only a year after the Board had first asserted jurisdiction over corporations in the hotel and motel indus- try.' Since Arlington, the Board has gained much experience and bet- -ter insight into the nature of the hotel-motel industry. Although, as was held in Arlington, employees in the various facilities of hotels and motels have a basic mutuality of interest, neither their functions nor their mutual, interests are in all cases integrated to such a high degree that an overall unit should be found the only appropriate` unit. Indeed, the employees in all facilities at hotels and motels today do s Although it appears that other porters occasionally perform some -6f these functions, it is clear that such functions are sporadic and consume an insignificant portion (of their time. 9 The fact that the phone bill of the restaurant is charged to the motel, and that's. car "owned" by the motel is used exclusively by the restaurant, are matters of bookkeeping, and do not affect the nature of the functions of4he restaurant as opposed to those of"the motel. Neither, in our opinion, is it significant that one bookkeeper handles 'the auditing of both corporations. 4 Floridan Hotel of Tampa, Inc., 124 NLRB 261. 257-551---6T-vol. 160-60 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not necessarily perform the single function of serving room guests. A business may operate in such a manner as to depend substantially upon other than room guests. Here, for example, the restaurant corpora- tion also provides club rooms and banquet facilities. Nor does it seem that the motel provides complete restaurant facilities primarily for its relatively few room guests. Arlington took a valid principle (if functions and mutual interests are highly integrated, an overall unit alone is appropriate) and fash- ioned from it an inflexible rule to be applied to all hotels and motels. But, because our experience has indicated that such a degree of inte- grated functions and employee interests does not exist in every hotel or motel, we shall hereafter consider each case on the facts peculiar to it in- order to decide wherein lies the true community of interest among particular employees. We have carefully examined the func- tions and interests of Respondents' employees, and conclude that they are not so highly integrated as to require a finding that only the overall unit is appropriate. Accordingly, we find that the unit in which Local #347 requested recognition is appropriate8 for purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. The record shows that a clear majority 3 of the employees in the unit here found appropriate authorized Local #347 to bargain for them. Respondents did not refuse to bargain with Local #347 either on the basis of any good-faith doubt as to the authenticity of the cards or because the unit was not appropriate. On the contrary, Respondents exhibited their total disregard for the rights of their employees, and their total rejection of the collective-bargaining prin- ciple, by pursuing a course of unlawful activities designed to destroy the representative strength of Local #347. As Local #347 did rep- resent a majority of employees in an appropriate unit, under the cir- cumstances herein only a bargaining order can adequately restore as nearly as possible the situation which would have existed but for Respondents' unfair labor practices. Accordingly, we shall order 8I.e., all the employees at Respondents ' restaurant located at Parkersburg,. West Vir- ginia, including the porter who regularly spends a substantial portion of his time working in the restaurant, but excluding maintenance men, desk clerks , the bookkeeper, and all guards, professional employees , and supervisors as defined in the Act. Although at the time of -the hearing only one porter was regularly spending a substantial portion of his time working in the restaurant , if others should now fall into that category they shall be included in the unit . Local #347 has indicated its willingness to represent this porter, and his interests are almost indentical to those of other admitted restaurant employees, such as the janitors . It is clear, however, that the maintenance men, desk clerks, and bookkeeper do not share a sufficient community of interest with restaurant employees to warrant their inclusion in the unit. B Local # 347 has established a majority even if we were to include in the 'unit all the porters, and the maintenance men who work a sufficient amount of their time maintaining restaurant facilities. 77 OPERATING COMPANY 931 Respondents, upon request, to bargain with Local #347 in the unit found appropriate.' N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6) ; Editorial "El Impartial" Inc. v. N.L.B.B., 278 F.2d 184, 187 (C.A. 1) Piasecki Aircraft Corporation v. N.L.B.B., 280 F.2d 575, 591-592 (C.A. 3) ; N.L.B.B. v. Joe and Mike Caldarera d/b/a Falstaff Distributing Company, 209 F.2d 265,268-269 (C.A. 8), enfg. as modified 104 NLRB 760. Cf. N.L.R.B. v. Flonnatic Corp., 347 F.2d 74 (C.A. 2). [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(a) and reletter the present paragraphs consecutively : ["(a) Upon request, bargain collectively with Local #347 as the exclusive representative of the employees in the unit found appro- priate by the Board with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached." [2. Add the following at the end of paragraph 1(i) of the Trial Examiner's Recommended Order and at the end of the corresponding (present ninth) paragraph and the last paragraph of his "Appendix": as modified by the Labor-Management Reporting and Disclo- sure Act of 1959." [3. Add the following as the ninth paragraph to the notice marked "Appendix" attached to the Trial Examiner's Decision : [WE WILL, upon request, bargain collectively with the above- named labor organization as the exclusive bargaining representa- tive of all employees in the following unit with respect to rates of pay, wages, hours of employment and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is : [All the employees at Respondents' restaurant located at Parkersburg, West Virginia, including the porter who regu- larly spends a substantial portion of his time working in the restaurant, but excluding maintenance men, desk clerks, the bookkeeper, and all, guards,. professional employees, and supervisors as defined in the Act.] [The Board dismissed the complaint insofar as it alleges violations not found herein.] 10 In the circumstances of this case we find it unnecessary'to determine whether Respond- ents' refusal to bargain in this unit violated Section 8(a) (5) of the Act, and we shall dismiss that allegation of the complaint. 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act was heard before Trial Examiner George A. Downing in Parkersburg, West Virginia, on September 14 and 15, 1965, pursuant to due notice . The complaint, which was issued on June 29, 1965, on charges and amended charges dated April 21, May 5 and 24, and June 11 and 18, alleged in substance that Respondents engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act (a) by various specified acts of interference , restraint, and coercion ; (b) by discrim- inatorily terminating the employment of eight employees because of their union membership and activities; and (c) by refusing to bargain with the Union as the majority representative of its employees in an appropriate unit . Respondents answered, denying the unfair labor practices. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondents are copartners and are also the principal stockholders and owners of a corporation known as Park Hills Investment Company whose home office is in Cincinnati, Ohio. The corporation owns real estate at Parkersburg, West Virginia, upon which is located a motel room building and a separate building called the commercial building, which is situated some 80 feet in front of the motel and which houses the motel lobby, registration desk, offices , dining room, coffeeshop, kitchen, and club and banquet rooms. The corporation leases the motel building and portions of the commercial build- ing to Respondents Hammonds and Winegardner, who operate the motel business proper under the name of Park Hills Operating Company. The corporation leases the remaining portions of the commercial building to Respondents who conduct, under the name of 77 Operating Company, a food and restaurant business in the commercial building, as well as in the motel proper through the distribution of menus in the rooms and the furnishing of food and beverage room service. The corporation charges the separate operating companies as rent a percentage of their respective gross revenues. Both operations are conducted under the direct and immediate management and supervision ,of, Respondents' general manager and innkeeper, James E. Smith, who, is the sole local representative of the owners . Smith is assisted by his wife, Mildred L. f Smith, who though nominally designated as restaurant manager , assists her husband in the management of both the motel and the restaurant operations. Though beneath the Smiths there were separate lines of supervision for the two operations , there was considerable overlapping as to certain employees whose functions related commonly to both operations , and also as concerned the authority exercised by Colin Cogar, who served as Smith's secretary and assistant and also as overseer of the front desk. See section III, B, 1, infra, for a summary in more detail of the joint use by the Companies of various portions of the commercial building, of various other facilities, and of the services of certain , personnel. Pay- .roll checks for the employees of both companies are made out in the home office in Cincinnati and are signed by Smith. The evidence as a whole plainly establishes and I find that the motel and res- taurant -operations constituted a single integrated business enterprise as alleged in the complaint and as admitted by General Manager Smith in his testimony. See, e.g., Trade Winds Motor Hotel & Restaurant, 140 NLRB 567, 568; and cf. Justru Realty Corporation and Palmer Motor Inn, Inc., 156 NLRB 1. For the year ending April 1 , 1965, the 77 Operating Company did a total gross business of $260,055, and during the same period the Park Hills Operating Com- pany had a total gross income of $336,423. In addition to the foregoing , the com- panies honor, on presentment by their guests, credit cards issued by such nationally known credit agencies as Diners' Club, American Express Company, and Gulf. .Cf. Southwest Hotels, Inc., 126 NLRB 1151, 1154. The 77 Company also makes 77 OPERATING COMPANY 933 monthly purchases of some $600 or $700 worth of alcoholic beverages from State liquor stores.' It is evident from the foregoing that the volume of business done annually by the integrated operations exceeds $500,000 and that the Board's jurisdictional stand- ards for the hotel industry are met. The Board has held, however, that before asserting jurisdiction in cases involving that industry the record must also demon- strate the existence of legal jurisdiction, Southwest Hotels, Inc., supra, 1153. The record here meets that requirement, for it shows that both operations extend credit to holders of nationally known credit card agencies, that the employees are paid by payroll checks which are drawn in Cincinnati, and that the restaurant's purchases of liquor amount to roughly $7,500 a year, of which only an infinitesimal portion at best is distilled in West Virginia. Those items taken together have more than a minimal effect on interstate commerce and they underscore the commonsense view that hotels and motels which serve a transient trade play an important role in fur- thering travel and in fostering commercial relationships between the inhabitants of the several States. Id. at 1154. I therefore conclude and find that the combined restaurant and motel operations affect commerce within the meaning of Section 2(7) of the Act, that their gross volume of business meets the Board's jurisdictional standards, and that it will effec- tuate the policies of the Act to assert jurisdiction in this case. If. THE LABOR ORGANIZATION INVOLVED The Charging Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and issues; the supervisors On April 12, 1965, Jack L. Brooks and Woodrow -R Gunnoe, business represent- atives of the Union, informed Business Manager Smith that the Union represented a majority of the restaurant employees and requested Smith to recognize and bar- gain with the Union. The majority claim was substantiated by presenting to Smith some 22 signed cards and by informing him of the names of 3 other signatories, copies of whose cards were enclosed with Brooks' letter of April 13 in which Brooks repeated the Union's majority claims and its request to bargain. By letter of April 16 Smith formally declined to recognize the Union, questioning its majority on the basis of alleged invalidity of some of the cards and because some of the signatories were not employees of the restaurant. Aside from the refusal to bargain the course of conduct complained of herein began immediately after the request for recognition; it included various alleged interrogations, threats, and solicitations attributed to Smith and to other super visors, and the discharges of eight employees between the dates of April 13 and May 5. The issue of jurisdiction raised by Respondent is resolved in section I, supra. The 8(a)(1) and (3) allegations involve mainly factual issues. The chief issue under Section 8(a)(5) is whether a unit confined to the restaurant employees is an appropriate one, and the question of majority turns on the resolution of the unit issue. Though Respondents denied the supervisory status of alleged supervisors except Business Manager Smith, the undenied testimony of the General Counsel's witnesses, substantially corroborated by Smith himself and by correspondence in evidence, plainly established that the supervisory hierarchy in the restaurant included Smith's wife, Mildred L. Smith, restaurant manager; Faye Koch, dining room supervisor; Edward Peton, kitchen supervisor; and Colin Cogar, secretary and assistant to Smith. Only in Cogar's case did Smith attempt to raise a question, but his testimony was overborne by the cumulative testimony of the employee-witnesses, and finally Smith himself, on questioning by Respondents' counsel, included Cogar in a list of 1 Donald Markey, an employee of one of the stores, testified that he was familiar with the stock carried by the stores ; that to his best knowledge there was only one distiller in West Virginia whose products were handled by the store, and that the sales of those products were very small, not amounting even to as much as 1 percent. 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salaried supervisors. Aside from that the evidence showed that Cogar occupied the same office as Smith, where the conduct attributed to her occurred, and that Smith, participated in some of the conversations. B. The refusal to bargain 1. The appropriate unit Directly pertinent here is the evidence set forth in section I, supra, with which the following additional facts are closely related: The evidence established a substantial common use in the motel-restaurant oper- ations of certain employees, equipment, and facilities. The lobby, halls, and rest- rooms in the commercial building were used commonly, though they were con- sidered to be a part of the motel operation. The switchboard was considered a Park Hills facility and the operators were carried on the Park Hills payroll, but calls were received for restaurant business, e.g., banquet reservations, etc. The air-conditioning system was owned by 77 Operating, but was maintained by employees carried on the motel payroll. There were some four or five of such maintenance men, who did all the maintenance and equipment work as well as special cleaning and waxing of floors and the setting up of partitions, platforms, and such special equipment as might be necessary in preparing for banquet rooms. Indeed, two of those em- ployees spent more of their time in the restaurant operation than in the motel. A separate maintenance building (not heretofore mentioned) fell under the motel operation, but was used commonly for the storage of tools and equipment and for the storage of excess supplies, such as linens and silverware for both operations. It also housed a Multilith machine which was used by employees on the motel payroll in running off children's menus and fliers for the restaurant. All electricity, gas, and water consumed at the commercial building was charged against the restaurant, but the telephone was billed against the motel except for a private line to the restaurant. A single motor vehicle was allocated to Park Hills but was used entirely by 77 Operating. Kitchen employees prepared the food served in the motel rooms, the orders for which were taken by the dining room cashier on the telephone, and the porters, such as William S. Blackburn, who were on the motel payroll, assembled the orders on trays and delivered them to the motel. On request, the porters also assisted employees in the dining room, banquet rooms, and the executive club. The linens provided in connection with the room service of meals were supplied by the restaurant. The porters either collected for those meals or took signed checks back to the cashier in the coffeeshop. Such receipts went with the daily record to the front desk personnel (motel) for checking and for posting by the night auditor on a city ledger account, where through an accounting transaction it was shown as a credit toward the restaurant. Food purchases on credit cards by guests in the restaurant were similarly handled, and in the case of a credit card transaction covering both room and meals, the bookkeeper made appropriate entries on billings to the respective operations. A total of five employees in the front desk operation were engaged in performing services on such transactions. The maids at the motel distributed restaurant menus in the guestrooms. The supervisor at the motel helped on the switchboard. The janitors were carried on the 77 payroll (restaurant) but they also cleaned up the lobby which was under the Park Hills lease. All the porters did the same work as Blackburn and helped to, clean up dishes on request. Blackburn (and the other porters) though carried on the motel payroll were supervised by Geraldine Burkey, on the front desk, who- was carried on the 77 payroll. The General Counsel offered no evidence of a prior history of collective bargain- ing based on less than an overall unit and no evidence of the existence of a well- defined area practice or historic unit pattern. Conclusions The leading case on hotel-motel-restaurant units is Arlington Hotel Company, Inc., 126 NLRB 400. There in a unanimous five-member decision the Board pro- mulgated "the general rule" for the hotel industry 2 that "all operating personnel have such a high degree of functional integration and mutuality of interests that they should be grouped together for collective-bargaining purposes." That general 2 So explicitly acknowledged in LaRonde Bar and Restaurant, Inc., 145 NLRB 270. 77 OPERATING COMPANY 935 rule was modified in Water Tower Inn, 139 NLRB 842, -where the Board carved out an exception for cases where there existed a history of collective bargaining in less than hotelwide units. The Board pointed out that in Arlington there was no evidence that historic unit patterns existed in the area which preponderated in favor of units less than hotelwide, whereas it found such a factor to be present in Water Tower. A further exception was carved out in LaRonde Bar and Restaurant, Inc., supra, where the employer operated a motel providing lodging, a restaurant, convention, and certain recreational facilities to the public. The employer sought a single unit under the Arlington rule, whereas the union sought alternatively a unit of the motel and laundry employees, either with or without the restaurant employees, but exclu- sive in either case of office clericals and certain other classifications. Acknowledging the general rule of Arlington and the limited scope of the excep- tion engrafted by Water Tower, supra, the Board observed further that there was no bargaining history for LaRonde's employees. The Board continued, however, that in previously finding the units appropriate, bargaining history was not the determinative factor and that: More relevant was the stability of bargaining relations inherent in the area's historic unit patterns. We believe that in finding a unit appropriate here, which is less than hotelwide in scope, but which conforms to an existing and well- defined area practice, we are furthering the stability of collective-bargaining relationships in the industry. [ 145 NLRB at 272.] The unit finding as ultimately made was found to be appropriate on the basis of the bargaining practices in the area .3 Outside the hotel-motel setting, the Board has felt free to find appropriate a separate unit of restaurant employees, as for example in retail department stores and in industrial plants. We consider briefly the former, in which the setting more closely resembles that which exists in the hotel industry. In Allied Stores, 90 NLRB 1868, the Board found that restaurant workers had among themselves a mutuality of employment interests which were not shared by other retail store sell- ing or nonselling employees and that such mutuality existed by reason of their singularly different work and different skills. The Board reversed the trend of an earlier line of cases in which it had found separate units of selling and nonselling employees to be appropriate for department stores, such as represented by Thal- himer Bros. Inc., 81 NLRB 1175, and Maas Bros. Inc., 88 NLRB 129, 131-133, and cases there cited at footnote 4. If considered on first impression, the Allied Stores holding could easily be accorded persuasive, if not controlling, weight as applied to the hotel-motel industry. But both in promulgating the general rule for the hotel industry and in carving out the exceptions noted above, the Board ignored Allied Stores and the cases which followed it (e.g., Thalhimer Brothers, Incorporated, 93 NLRB 726, 728). Indeed the only true department store case which the Board cited in Arlington (i.e., Mass Brothers, Inc., 116 NLRB 1886) was one which supported its conclusion that only a single unit was appropriate. No department store case was cited in either Water Tower or LaRonde. Those facts demonstrate forcefully that the Board did not regard its unit holdings in other settings to be of relevance or significance in rela- tion to the hotel industry, and they emphasize as well the status of Arlington as the controlling precedent in the hotel industry, subject to the limited exceptions recognized in Water Tower and LaRonde. The General Counsel here, however, made no attempt to qualify his unit claims within the recognized exceptions. Thus his position as announced early in the hear- ing and as maintained throughout was that the unit as pleaded was prima facie an appropriate one, and he repeatedly stated his intention of filing a brief in which he would support his contention on the appropriate unit as well as on the place- ment of certain employees whose duties were mixed. Thus as the record stands (no brief having been filed), the General Counsel's position is not only in square conflict with the general rule of Arlington, but he also failed to qualify his case within the exceptions recognized in Water Tower and LaRonde. 8 Member Leedom dissented, contending that the effect of the majority decision was to erode the Arlington rule to the point of confining its applicability only to those situations In which there was no area bargaining practice, as well as no history of collective bargain- ing on less than a hotelwide basis, and further that to follow the area practice under the circumstances was to give controlling effect to the union's extent of organization. '936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As Board law presently stands, a holding by a Trial Examiner that the separate unit is an appropriate one would require of him in effect either to reverse Arlington ,or to modify it by carving out some further exception which would leave it with little or no vitality as a precedent. See the dissenting opinion of Member Leedom in LaRonde, footnote 3, supra. But such a step does not lie within the province of a Trial Examiner; it is one appropriately to be taken by the Board, for it is a Trial Examiner's duty to follow law and precedent until the Board itself announces a change of policy. Insurance Agents International Union (The Prudential Insur- ance Company of America), 119 NLRB 768, 773. Though I find for the foregoing reasons that the unit herein sought is not an appropriate one, I reject Respondent's contention that if the Board's exercise of jurisdiction is based on treating the motel-restaurant operations as a single enter- prise, the Board must include the employees of both in a single bargaining unit. The Board considered and rejected such a contention in Dixie Belle Mills, Inc., 139 NLRB 629, 630, holding that: "[A] single-employer determination . . . does not establish that only an employerwide or multiplant unit is appropriate. For the factors which are relevant in identifying the breadth of an employer's operation are not conclusively determinative of the scope of an appropriate unit." And in N L R B. V. Melvin Smith, etc, d/b/a Service Pait' Company, 209 F 2d 905, 907 •(C.A 9), the court enforced the Board's holding, 101 NLRB 1172, 1178, that the fact that the employer's stores as a group were considered for the purpose of deter- mining jurisdiction did not make the employees of the stores as a group the only appropriate bargaining unit. 2 The majority question The' Union sought to organize only the restaurant employees and made no representation claims concerning the motel employees. It procured and presented to Respondents 25 valid authorization cards from some 38 employees on the restaurant payroll, and it later procured a single card from William Blackburn, one of the porters on the motel payroll. As there were a total of 70 employees in the combined operations, the Union did not represent a majority of the employ- ees in an appropriate unit. I therefore conclude and find that -Respondent did not refuse to bargain with the Union within the meaning of Sections 8(a)(5) and 9(a) of the Act. C. Interference, restraint, and coercion The Union's request for recognition on April 12 was followed immediately by a course of conduct which was attributed by the General Counsel's witnesses to Mr and Mrs. Smith and to Cogar and Peton and concerning which there was scant issue on the record, for only Smith was called by Respondent and he made no direct denial of much of the opposing testimony. Joyce Raber testified that on April 12 Smith questioned her about whether she knew anything concerning the Union and whether she had signed a card .4 When she answered affirmatively to both questions, Smith asked if she knew "who all had signed and how many." Raber testified that following the request for recognition she had conversations every day concerning the Union with the Smiths. On the day following the request Smith angrily upbraided her for talking with one of the kitchen help and stated he had two things against Raber and with one more he would fire her. Smith specified that one of the things was that Raber was talking union in the kitchen and also that as far as he was concerned he could have killed the union representatives while they were there the day before. Mrs. Smith came in and commented that she felt the starting of the Union was a personal slap against her and Mr. Smith. Smith also asked if Raber knew what she was doing by signing the union card, that he intended to ask all the employees whether they knew what they were get- ting themselves into, and that if the majority of the employees stated they did, he would go along with it, but that he would not have to be there to put up with Before meeting with Smith on April 12 and presenting the signed cards, Business Repre- sentative Brooks called Smith on the telephone, claimed a majority, and made arrange- ments for the meeting. 77 OPERATING COMPANY 937 it because if necessary they would close the place down, move all the equipment to Missouri, and that he and Mrs. Smith and a chef and one busboy would serve coffee to the hotel guests in the morning and simply close the restaurant up. Smith also stated that a Mr. James, general manager of Respondents' Inns, was coming to Parkersburg and that they were going to discuss closing the place. Pearl Holtz testified that 2 or 3 days after the Union requested recognition Smith informed her during a discussion of the Union that the employees "were going to be in a lot of trouble," and that they should sign a paper which he had that they did not want the Union. Linda Casto testified that before she was discharged on April 17 Cogar called her into the office and questioned her in Smith's presence whether she had "signed for the Union." When Casto acknowledged that she had, Cogar asked her to sign a "sheet" that she did not want the Union. Smith asked Casto why she had signed for the Union, stating that he felt the only reason was a personal feeling against him and Mrs. Smith, and he added that the Union was not recognized in West Virginia. Casto testified further that Peton also questioned her about signing for the Union and informed her it would not do her any good because the Union was not recognized in West Virginia. Edward L. Friese testified that before he was discharged on April 20, Peton called him into Mrs. Smith's office, stated that, "You know what this is all about," produced a typewritten form from the desk, asked Friese to read it, and told him that he could sign it or not. Yvonne Farley testified that on April 13 or 15, Smith stated during a discussion of the Union with a group of the waitresses that they were "really in a mess" and that they should have come and talked with him before signing the union card. Smith continued that he did not know whether he wanted to work with a union or not, that "this one" was not recognized in the State, and that he did not want to deal with it. Smith referred to Union Representatives Brooks and Gunnoe as "dirty" and stated that he could slam them "plumb through the banquet doors and plumb out of the place." Smith suggested that the employees should talk with their lawyer and see what a mess they were in. Smith also stated that he could discharge Farley if he wanted to because he had two things on her; i.e., that she had left the floor when she had a customer and that she was talking union on the job. In the latter connection Smith referred to a camera which he had carried in, the restaurant on April 13 and said he had a picture of Farley in front of the timeclock talking union. Farley also testified that Mrs. Smith called her in on one occasion and directed her not to talk union on the job. Mrs. Smith also stated that she could not afford the union wages which she had heard quoted and that "they" would have to close up. Lucille Taylor was discharged by letter from Peton on April 13 while she was, out on sick leave. A few days later Taylor went in to see Mrs. Smith, who stated that the Union was not any good and that if the Union came in "they would have to close the doors." Mrs. Smith also stated that if Taylor had anything to do with the Union she could not come back to work and that Smith would not give Taylor a reference to get a job at any other place. William S. Blackburn signed a union card on the evening of April 19. He testified that on the 20th he went in and spoke to Cogar telling her he found out he could join the Union. Cogar commented, "You join the Union, and you're fired."' On May 21, Union Representative Gunnoe went to the restaurant for lunch with discharged employees Linda Casto and Joyce Raber and Raber's husband. Smith met them at the door and asked them to enter the dining room. Smith removed the chain which barred the entrance, seated them at a table, and replaced the chain as he left them. There were no other guests in the dining room, and when no waitress appeared to serve them after some 15 minutes the group moved to a table in the coffeeshop. After some 10 or 15 minutes more, Yvonne Farley informed them that Mrs. Smith had ordered the waitresses not to serve them. Farley testified directly that Mrs. Smith had given such orders. After another 10 or 15 minutes Smith approached and asked the group to come into his office. Gunnoe replied that they were customers, that they wished to be served, and that they refused to go into the office. Smith thereupon requested them to leave, and they did so after a further wait during which they were not served. Smith did not testify concerning the May 21 incident, and be made no direct denial of any of the statements which were attributed to him by the General Coun- sel's witnesses. He admitted having several discussions of the Union with Joyce 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Raber, testifying that be told her he had been a union member and a union officer, that he did not care whether the place went union or not , and that he expressed to her "a personal opinion" concerning, the two business agents. Smith testified further that he asked the employees at various times not to gather and discuss union on the premises and not to congregate for that purpose and that he specifically asked them not to do so in the presence of customers . He testified he said nothing concerning union activities other than those occurring on the premises and denied that he in any way undertook to coerce employees or to pre- vent them from engaging in union activities . Testifying at another point specifically concerning Nellie Snyder , Smith admitted he told the employees he did not think the Union was a good one for them, that they should make sure they knew what they were doing, and that they should ask their lawyer about it. As is seen, there was little in Smith's testimony in the way of a specific denial of the statements and the conduct attributed to him . To the extent that there is actual conflict, Smith 's testimony is overborne by the cumulative weight of the opposing testimony, which I credit. It is also to be noted that Smith and the other supervisors were engaged in a common course of conduct , which as to the others was not denied. Concluding Findings I conclude and find on the foregoing evidence that Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act by the following conduct: 1. By interrogating employees concerning their signing of union cards and as to the identities of other employees who had done so. 2. By soliciting employees known to have signed union cards to sign a statement that they did not want the Union. 3. By giving the impression through alleged use of a camera of engaging in surveillance of union activities. 4. By threatening to close the restaurant if the Union should come in. 5. By threatening to discharge employees if they should join a union or for discussing the Union on the premises. 6. By threatening not to reinstate an employee and not to give her reference for other employment if she should continue her adherence to the Union. 7. By refusing to serve as guests in the presence of employees, and by directing their employees to refuse to serve, the union representative and two discharged employees in the public restaurant. D. Discrimination 1. The evidence The Union's request for recognition was also followed by a rapid series of dis- charges and layoffs as follows: Lucille Taylor and Larry Rhyne, April 13; Linda •Casto, April 17; Edward Friese and John Raber, April 19; William Blackburn, April 20; Joyce Raber, April 28; and Nellie Snyder, May 5. Except for Blackburn, the authorization cards of all these employees were presented to Smith on April 12 and 13, and Blackburn informed Cogar on the very day of his discharge that he had found that he could join the Union. Respondents contend that a temporary layoff was made in the cases of Casto and Snyder, that Joyce Raber quit, and that John Raber was only a temporary employee for whom no work was available. Denying that its actions were discriminatorily motivated, Respondent offered Smith's testimony as to the cause for each termination. The evidence is summarized below in the order of the terminations. a. Lucille Taylor Taylor's job was that of "salad lady" in the kitchen , which included at times helping the dishwasher to wash pots and pans . Taylor testified that nothing hap- pened before her discharge; that while she was off sick she received a letter dated April 13 from her supervisor, Peton, which informed her that "Due to a change of Kitchen Routine and changing of duties to the different personnel , your services are no longer required at this time." Taylor's later conversation with Mrs. Smith, set forth under section C, supra, has a direct bearing upon the claimed discriminatory motivation for the discharge. 77 OPERATING COMPANY 939 Peton was not called as a witness, and though Smith testified that he made the -decision and directed the discharge, his testimony concerning the reasons for the -termination was based on alleged reports made by Mrs. Smith which the latter was not called to substantiate and which Taylor denied. Thus Smith admitted that he had no discussion with Taylor concerning the matters in question but that Mrs. Smith reported to him that Taylor had informed her on the telephone that it was doing the pots and pans which had made her sick, that the work was ruining her health, that her husband did not want her to work anymore, and that because of the heat in the kitchen Taylor did not think she could stand it for the summer. Smith testified that Taylor's union activity had nothing to do with her termination and that he made this decision to terminate her because the efficiency of the kitchen had dropped and that with the busy season coming up he could not afford to have someone on that job who was going to be sick. Taylor denied having the conversations with Mrs. Smith and denied that she found the work too difficult for her. Taylor denied telling any management repre- sentative that she could not stand the heat in the kitchen and though admitting that she did not care to do pots and pans testified that she "didn't mind doing it." Taylor testified further that after she came back to work on June 28, she was at first put to washing pots and pans, that she asked Peton when he was going to take her off that, and that he put her back on her regular job. b. Larry Rhyne Larry Rhyne was working as counterman and busboy at the time he signed a -union card on April 11. He was discharged on April 13 by Mrs. Smith who assigned as the cause that Rhyne had smoked in front of the customers in the dining room and had talked "harsh" to his supervisor, Koch, who was present at the time of the discharge. Rhyne admitted the smoking charge and explained to Mrs. Smith that he had been so busy that he had been unable to take a break in the coffee- -shop (where smoking is permitted). Rhyne testified that Mr. Smith first spoke to him on the occasion in the dining room and directed him to put the cigarette out. He admitted knowing it was a violation of instructions to smoke in the dining room before customers and excused his conduct on the ground that he did not have time to go over and sit down in the coffeeshop. Rhyne also testified that in discharging him Mrs. Smith referred to the fact that Rhyne had turned in his resignation some 2 or 3 weeks before. Rhyne testified, however, that after he tended his resignation, both Mrs. Smith and Koch asked him to continue working and that he agreed to do so and withdrew the notice he had given. Neither Koch nor Mrs. Smith testified. Smith himself testified that when he caught, and reprimanded, Rhyne for smoking before dining room guests, Rhyne's response was "Well, I got to smoke sometime, don't I?" Smith also testified that Rhyne had sat at the counter in the coffeeshop smoking only an hour and a half before the dining room incident. c. Edward L. Friese Following a prior employment, Edward L. Freese returned to Respondent's employ in September 1964 and worked until April 20, 1965, when he was dis- charged by letter signed by Peton which read as follows: Mr. Riggs, of the Wood County Health Department, was here today inspecting the Health Cards on display, and again yours was missing. We have no choice other than to discharge you, or close our restaurant, which we could not do, and therefore are forced to dismiss you as of today. We highly recommend you as a cook and wish you the best of luck. Should you need a recommendation at anytime please do not hesitate to call us. Prior to that time there was posted on February 18 a notice to the restaurant employees on the subject "Health Cards," which listed Friese's name along with seven others as employees who "MUST without fail, submit their health cards before the first of March, or give a good reason why they do not have a card." The notice continued: Chest X-rays may be made each Thursday from 1:00 PM until 3:30 PM. The Health School will start the 26th of March and those who have not attended this school must make arrangement with your supervisor to be off from work to attend these sessions, as this is a MUST with the Health Department. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The original notice as introduced by Respondent bore the notation "O.K." opposite the names of three of those listed and the notation "Quit" opposite the names of four. Only Friese remained as a noncompliant. Admitting that he did not procure a health card (or food handlers' card ), Friese testified that some time prior to his discharge he presented Peton with a doctor's certificate and that Peton agreed it was all that Friese needed . The certificate was dated March 6 and stated that Friese was "physically able to work." Friese admitted however, that Peton informed him a week before the discharge that he needed a food handlers' card and testified that it takes a month or more to get such a card because the health school has a class only once a month. Friese testified that upon receipt of the discharge letter he immediately con- sulted Riggs of the health department and thereupon procured and paid for an X-ray and that he then went to the Inn and attempted to present Peton with proof of the X-ray. Peton stated that he did not want to see Freese or the proof of the X-ray, that the dismissal had already been acted upon , and that he could not change it. Friese told Peton that Riggs had stated he could come back if he provided proof of an X-ray but Peton still said that he did not want to see it. Smith testified that Superintendent Riggs of the health department had for some time been "riding" the restaurant to procure the health cards of all employees and that Friese was asked to supply his in January and again in February after the notice was posted. The doctor's certificate which Friese supplied in March was presented to Riggs but was not acceptable , and when Riggs finally came to the Inn on the morning of the 12th to check on Friese 's card, Friese had still not supplied one. Friese testified that pursuant to an offer of reinstatement he returned to work on June 28 , that in the meantime he procured his health card a few days after his discharge, but that he did not present it to Peton , and that so far as he knew the Company had no knowledge of it until the day he returned to work. d. John Raber John Raber, the son of Joyce Raber, was a freshman in high school at the time he was employed as a busboy on April 3. Raber testified that Mrs. Smith hired him with the understanding that he would work on weekends until school was out and then would be given more work . A written application prepared and signed by Mrs. Smith for filing with the State Child Labor Division specified that Raber would work "weekends and holidays." Raber was actually called in to work only on April 3, 4, 10, and 11. Smith testified that Raber's mother asked him to use John as an extra boy for Mothers' Day and for Easter and that he agreed to give John part-time employ- ment. Smith testified that Raber was classified as a temporary occasional busboy to be brought in to help on occasions when he was needed; that there was no regular work arrangement with Raber ; and that he was not terminated in any way, but he was not called to come in because there was no occasion to use him. An issue developed whether Raber received an offer of reinstatement in late June at the same time that his mother and other employees received letters offering reinstatement. Raber denied that he received such a letter. Respondent introduced copies of letters to both mother and son together with separate return receipts which purported to bear the signatures of each. Raber testified that he signed a receipt acknowledging delivery of the letter to his mother but that he received no letter addressed to him. Raber was apparently mistaken in that testimony , for the receipts in evidence show that separate receipts were signed for Joyce and John Raber and that the signatures thereon match those contained on their union author- ization cards also in evidence. e. William S. Blackburn Blackburn joined the Union on the evening of April 19, and had the conversation with Cogar upon going to work (at 4 p.m. ) on April 20 as recounted in section C, supra. Around 9:30 or 10 p.m. Cogar called him into the office and discharged him in Smith's presence , stating that his timecard showed he had been tardy on numer- ous occasions and that he had also "talked back " to Mr. Smith and had failed to do some of the things that he was told to do. Asked for an explanation, Cogar 7 7 OPERATING COMPANY 941 stated that what Blackburn had done could not make any difference at the time because it had been done , there was nothing that could be done about it; and it did not need explaining. Admitting that he had been tardy "numerous times," Blackburn testified that several months before his discharge Smith asked the reason for his tardiness and that he explained that he was attending a business college and could not possibly report before 4 p.m. Smith replied, "Fine; you get here when you can." Blackburn denied that he was late on several occasions as much as 10 or 15 minutes ( beyond 4 p.m.). He admitted, however, that on one occasion he arrived somewhere between 4:30 and 4:45, but testified that when he explained the reason to Cogar, she said, "Fine; just try not to let it happen again." Blackburn testified further, without denial from Smith, that the timeclock was off 5 minutes and that in order to punch in on time, the employee had to punch in at least 5 minutes before the reporting time. Smith testified that he authorized Blackburn's discharge because of Blackburn's continual tardiness and his insubordinate attitude . From timecards present before him Smith testified that Blackburn was tardy on 21 occasions during the month of March, in all instances beyond 4:05 p.m. f. Linda Casto Linda Casto was employed on February 2, 1965, as a waitress in the coffeeshop. Her testimony concerning conversations with Peton, Cogar, and Smith concerning the Union is set forth in section C, supra. On April 16, Casto's last day of work, Cogar remarked that she guessed she would cause Casto "a little bit of trouble." On the 17th Casto called in to report that she had the measles. On the 20th she received a letter dated the 17th, signed by Koch, which stated that it was necessary to decrease the-payroll and that since Casto was one of the last to be hired she was being put on indefinite layoff. Thereafter Casto received two checks, one a payroll check, and another check for $3 from Smith personally with the notation thereon, "Final Pay." Smith testified that because business had gone down it was necessary to cut' the force, that Casto was not performing her duties as she should , and that she also had been asked to improve her appearance to avoid complaints from customers. Casto was therefore given a temporary layoff until business picked up. Casto testified that she received a letter dated June 22, recalling her to work; that she reported the following Sunday; and that because of some argument among the waitresses and the cashier concerning the allotment of stations and an antici- pated diminution in the amount of tips, Casto decided she did not want to work in that atmosphere and left without formally reporting to management and without ,doing any work. g. Joyce Raber Joyce Raber was first employed for a few months in 1963 and returned in November 1964. She was then hired by Nellie Snyder (supervisor at the time) with the understanding that because of her family situation she would work only from 4 to 12 p.m. Raber's testimony concerning her conversation with the Smiths is set forth in section C, supra. On the evening of Easter Sunday, Koch called Raber into Smith's office and informed her that due to cutting down on the payroll she would either be put on a morning shift or else given a layoff. Raber replied that Koch knew it was impossible for her to work morning shifts because of the necessity for her getting five children off to school in the mornings and that she would take the layoff . Shortly after she returned to work, Smith came in to the club and asked Raber to bring in a state- ment on Monday or Tuesday that she had asked for the layoff. Raber replied that she had not asked for one but felt she was being forced into one. Smith told her she could either bring the statement or be there to work on the morning shift, or that it would be an automatic dismissal . Raber replied that in that case she would be there. When Raber reported on Tuesday she took along some insurance papers con- cerning her husband which Cogar customarily handled for her. Cogar refused to take them saying, "It would be considered a union bribe ." When Raber asked what Coga meant, Koch replied that Raber should give the papers to Smith and ask him about them . Raber responded that she was not going to ask Smith anything. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A short while later Koch took Raber into Smith's office and in to the presence of the Smiths and Cogar. Smith stated that he wanted witnesses present when he talked with Raber and asked if she had made the statement that she was not going to talk to him. -Raber explained what she had said. It was on this occasion that- Smith handed Raber a financial statement of the business showing how business was going down, and asked Raber to use his office and bring in all of the employ- ees and try to talk them out of talking about the Union on the job or referring to it in any way. Raber refused to comply, and she continued to work for 2 or 3 days. Raber thereafter contracted laryngitis and was unable to talk. She took a doctor's slip to Mrs. Smith and Koch and it was agreed that she would come back to work on the 27th. When-she came to work on that date she found her schedule had been changed from 7 a.m. to 6 a.m. After failing in her attempt to speak with Smith, she finally explained to Koch it was impossible, as Koch -knew, for her to get to, work at 6 o'clock with five children to get off to school, that though she had man- aged it at 7 o'clock, she could not possibly manage it an hour earlier. Koch stated she could not do anything about it until she talked to Smith, but she reported to- Raber several times that day that she had been unable to talk with Smith. Raber then attempted to reach Smith on the switchboard but the operator refused to connect her but did connect her with Koch, who stated there was nothing she could do. Raber said that she felt the action was due to her union activity because she had been replaced on Monday after Easter by another employee. Koch denied that the employee was on the payroll and stated that if Raber would like to work to closing time to come ahead, and she added she did not care one way or the- other whether the employees had a union or not. Raber did not return to work after that. Raber was one of those who received a letter offering her reinstatement under date of June 22. She returned to work on June 28 and was discharged again on July 6, but the General Counsel does not claim the second discharge as violative of the Act. Raber admitted that the club business went down for a while in March or April but testified that it then started to pick up again. Though conceding there was not enough work for four waitresses, she would not agree there was not enough for three and she denied that her tips fell off. Raber also testified that she complained to Koch about her seniority in relation to Nellie Snyder and that Koch disputed her claim on the.ground that Snyder had stepped down from supervisor. Smith's testimony concerning the decline in business is summarized following the evidence concerning Snyder's discharge, to which we now turn. h. Nellie Snyder Nellie Snyder was employed from July 19, 1963, until May 5, 1965, and had formerly served as supervisor of the dining room, coffeeshop, executive club, and banquet rooms. About a month and a half before her discharge Snyder had resigned her supervisory job, with the Smiths' permission, to become a waitress in the executive club, and she signed a union card on April 9. On May 5 Snyder received a letter signed by Koch informing her that "due to, low volume," Koch was forced to decrease the payroll in the executive club and explaining that: Since you'are the youngest to be put on the club payroll as a waitress, I will have to put -you on indefinite lay-off. I hope this does not cause hard feelings; or misunderstandings and that it will be for a short time. Snyder admitted that upon resigning her supervisory job she became the youngest of the waitresses working in the executive club proper and she admitted further observing a substantial decline in the business of the club. Snyder also admitted that she was offered a job at the front desk when the waitress' job was terminated, but that she declined it because she knew nothing about that job. Smith testified that with the decline of business in the executive club, the wait- resses were complaining of the sharp diminution in the amount of tips and that as business went down he decided to reduce the staff. Smith therefore chose Snyder for temporary layoff because Snyder had indicated she was going into her own business and-would welcome the layoff.5 5 Snyder denied both that she had made any effort to go into business before her discharge and that she had informed anyone of such an intention. Again Respondents made no at- tempt to substantiate the alleged report. 77 OPERATING COMPANY 943 Testifying from records produced in response to the General Counsel's subpoena duces tecum, Smith supplied the following figures concerning monthly receipts and profit and loss, respectively, on 'a monthly basis as shown below: Months Receipts Loss December-------------- $19,025 $4,482 January---------------- 14,875 4,297 February-------------- 18,418 2,916 March- ---------------- 19,620 1,905 April - ----------------- 20,533 9 132 Smith testified further that in the first 6 months of 1965 the total loss was $7,400.- As the total loss in the first 4 months of the year as shown in the tabulation above aggregated some $9,250, it is thus apparent, that in May and June the Company- showed a profit, as Smith admitted (i.e., $1,850). Also relevant to the issue of the motive for the discharges was the testimony of a number of witnesses to subsequent conversations which they had with Mrs. Smith upon reporting for work pursuant to letters dated June 22, in which each of" the alleged discriminatees was offered reinstatement. William S. Blackburn testified that during a lengthy conversation Mrs. Smith, questioned him concerning his dealings with the Union, whether he planned to continue working with it, whether he thought the Union was fair, whether he approved the way the Union was handling things and "the sneaky way" it was brought in. She also stated that the Inn was formerly a friendly place in which to. work but that it no longer was, and she blamed a loss of business on the Union and the union activities. Larry Rhyne testified that Mrs. Smith told him that she hated to see the dis- chargees come back but that she had no choice in the matter and that she was not going to discharge the replacements. She also stated that Rhyne had lost all his friends and that they would not be talking with him. Linda Casto testified that Mrs. Smith said that she did not want to bring any of the dischargees back to work but had been told she had to hire them back. Mrs. Smith questioned Casto as to what she thought she was going to get out of the Union. Lucille Taylor'testified that Mrs. Smith stated that she guessed Taylor knew she would have to be paid backpay, that Taylor would not be liked, that the employees would not treat her as they used to, and that it was not going to be a pleasant place in which 'to work. 2. Concluding findings Directly relevant to the issue of discriminatory motive is the evidence summa-- rized in section C, supra, as well as that concerning-the statements which Mrs. Smith made to employees in the interviews which immediately preceded the reinstatements on June 28. Though the discharges and layoffs were separately made, the foregoing, body of evidence serves commonly as a basis for inferring a discriminatory motiva- tion. Considering it first as standing alone, the General Counsel's evidence plainly made out a prima facie case that Respondents' action in all the cases was motivated by deep seated union animus as reflected in both predischarge and prereinstatement utterances, particularly in the threats to close the restaurant if the Union should come, in the threat to discharge employees who joined the Union, and in the threat, not to reinstate employees if they adhered to it. Indeed it would be very difficult to conceive clearer and more forceful threats of retaliation than those. Cf. Texas Industries Inc., 156 NLRB 423. Where such threats are made by supervisors who. are openly hostile to the Union and who promptly set upon a series of discharges of known union members, it is a fair inference that the union activities contributed to the discharges. Betts Baking Company, 155 NLRB 1313, and cases there cited. 0 ,Smith testified concerning the April figures that though club activity and banquet activity dropped off, the breakfast and dining room business increased, and he therefore ,shifted the employees from the low spots to those where the activity had increased. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finding, therefore , that the General Counsel's evidence made ,out a strong prima facie case of discriminatory motivation , we turn to the question whether Respond- ants' defenses were supported by sufficient evidence to overcome that showing. In so doing it is necessary to consider each discharge separately for Respondents asserted a different defense to each. a. Lucille Taylor Smith's testimony concerning the alleged cause for Taylor's discharge was based wholly on reports which Taylor denied and which Smith made no attempt to sub- stantiate though corroborating witnesses were obviously available. The weaknesses in such a defense were emphasized by the fact that Taylor was discharged without warning immediately after the Union's demand for recognition while she was absent during a brief illness and that it occurred in the setting of flagrant coercive conduct as shown by the record, including Mrs. Smith 's later statements to Taylor that if she adhered to the Union she would not be reinstated and would not be given a reference for other employment . As Smith's unsupported testimony was wholly inadequate to overcome the heavily preponderant weight of the General Counsel's case, I conclude and find that Smith discharged Taylor as the first step in his campaign to discourage union membership. b. Larry Rhyne In Rhyne's case one of the grounds for discharge was substantiated by Rhyne's admissions , i.e., smoking in the dining room in the presence of guests. The other, the acceptance of a prior resignation , was not substantiated , for Respondents offered no refutation of Rhyne's testimony that he had withdrawn his resignation at the request of Mrs. Smith and Koch. Thus Respondents' defense was reduced to justifying a- discharge based on Rhyne's single violation of a no smoking rule which was in effect in the dining room. Of course, if that were the real reason for the discharge it would suffice, but in determining whether it was real or only a pretext it is necessary to weigh it against the evidence of the Smiths' extreme union animus and against the harshness of the penalty itself. In the latter connection there was no evidence that Rhyme had been guilty of any prior violation of the rule or that he had been previously warned for violating it, or indeed for any other misconduct. Neither did Smith deny the testimony of another witness that he himself made no pretense of complying with the rule. When supervisors who are openly hostile to the Union and who openly threaten both discharges and the closing of the business if the Union should come in dis- charge a known 'union adherent under circumstances such as these , it is a fair inference that the union activity contributed to the discharge and that the trivial incident would have provoked a lesser response, or none at all, but for the union activities. Betts Baking Company, supra, and cases there cited. I therefore conclude and find that Respondents discharged Rhyne because of his union activities in violation of Section 8(a)(3) and (1). c. Edward L. Friese Friese's testimony and the documentary evidence in the record went far to sub- stantiate Respondents' defense that Friese was discharged for failure to procure a health card despite repeated requests . Of crucial significance was the fact that the General Counsel made no attempt to refute Smith's testimony that Superintendent Riggs of the health department made a check for Friese 's card on the morning of April 12 and no attempt to disprove the statement in Peton 's letter that Riggs made a further inspection on the 20th . Those facts dissipate much, if not all, of the force of the inference which would normally flow from the coincidental timing of the union activities with the discharge of a known union adherent . And though Friese shortly afterward obtained his card, he did not put Respondents to the test by informing them he had it and by requesting reinstatement. On this record, therefore , I find that the General Counsel failed to establish by a preponderance of the evidence on the record that Friese was discharged because of his union membership. d. John Raber Respondents' defense in Raber's case was that he was hired for only occasional work as needed and that there were no occasions after the weekend of April 10 to 11 when his services were needed . Though Smith testified that it was Raber's mother 77 OPERATING COMPANY 945 who applied to him and that he agreed to give John part-time employment, he did not claim to be present when Mrs. Smith actually hired John, and there was no denial of the latter's testimony that Mrs. Smith agreed that until school was out he would work on weekends and would then be given additional work. Furthermore, the application to employ child labor which Mrs. Smith prepared and signed on April 9 bore out Raber's testimony that he was being hired to work on weekends. Concluding therefore that Respondents failed to substantiate their defense and failed to overcome the preponderant weight of the General Counsel's case, I find that Respondents discharged Raber because of the union activities of himself and his mother by failing to employ him for weekend work for the weekends beginning April 17-18 and thereafter. e. William S. Blackburn Smith's testimony was that Blackburn was discharged because of continual tardi- ness and an insubordinate attitude. Though the tardiness charge was established- indeed admitted-no effort was made either to substantiate or to explain the naked claim of insubordination. As for Blackburn's tardiness, Smith did not deny the conversation with Blackburn some months before in which he accepted Blackburn's excuse-attendance at business college-for not reporting on time. Neither was Cogar called to deny her own condonation of a single instance of excessive tardi- ness which Blackburn explained to her satisfaction. Against the background of Smith's open hostility to the Union and the threats disclosed by the record, the pretextual nature of the grounds assigned for the dis- charge are obvious. Blackburn's tardiness was a matter which Smith had lived with and countenanced for months, and it was not until the union activities began that it suddenly became of such serious import as allegedly to warrant precipitous dis- charge without a warning that no further condonation would be accorded. I there- fore conclude and find that the reasons which Smith assigned were not the real reasons but motive of, the moving cause for, which [was] antiunion discrimination." N.L R.B. v. C. & J. Camp, Inc, d/bla Kibler-Camp Phosphate Enterprises, 216 F.2d 113, 115 (C.A. 5), enfg. 107 NLRB 1066. f. Linda Casto, Joyce Raber, and Nellie Snyder Of common application to these three cases was Respondents' defense that a dropoff in business necessitated cutting down the payroll . What Smith 's testimony showed from Respondents' records was that though the restaurant operations con- sistently ieflected losses from December 1964 through April 1965, the greatest loss ($4,482) had occurred in December, that the losses thereafter diminished sub- stantially month by month through April ($ 132), and that the months of May and June actually showed a profit . Simultaneously the monthly receipts were increasing fiom a low of $ 14,875, in January to a high of $20 ,533, in April. On the face of it, therefore , there could be no genuine basis for Respondents' claim of economic justification . Indeed it seems inconceivable that if no layoffs were made in December and January when operations showed their heaviest losses, a layoff was called for in April after a consistent sharp improvement in the fiscal showing. ? With specific reference to the April figures, however, Smith testified that though breakfast and dining room business increased, club and banquet business dropped off and that he shifted employees accordingly. We turn then to considering the consistency of that claim in the light of the evidence surrounding Respondents' conduct and the basis on which the selections for layoff were made. Casto, the first of the three to be terminated , was employed in the coffeeshop which was not one of the places where business was decreasing . Furthermore, the action against her was taken on the heels of Cogar's cryptic remark that she was going to cause Casto some trouble. Snyder , a former supervisor, was purportedly selected for layoff in the executive club because of her low seniority as a waitress. However, when Raber was being transferred out of the club and protested to Koch that her seniority exceeded Snyder's, Koch rejected that complaint on the ground of Snyder's former status as a supervisor. The foregoing inconsistencies therefore tended to discredit Respondents ' defense of0economic justification . This is not to say that economic justifications which an 4 The April figures showed that the amounts of the December and January operating losses had been reduced by over 95 percent. 257-551-67-vol. 160-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer advances must be economically sound but rather to say that such eco- nomic considerations must be honestly invoked and that an employer may not attempt to disguise an antiunion motive by speaking the language of economic necessity. N.L.R.B. v. Savoy Laundry, Inc., 327 F.2d 370, 372 (C.A. 2). Here the weakness in the Respondents' defenses served but to strengthen the inference plainly flowing from the General Counsel's evidence that antiunion motivation was behind` the terminations. See e.g., N.L.R.B. v. Georgia Rug Mill, 308 F.2d 89, 91 (C.A. 5), N.L.R.B. v. Schill Steel Products, Inc., 340 F.2d 568, 573 (C.A. 5). I so find. The circumstances surrounding the harassment of Raber were particularly flagrant and they need to be considered separately because of Respondents' contention that Raber quit her employment. Though the hardships involved in Raber's family situ- ation were well known to Respondents, the first move against her was to take her off the nightshift at the executive club 8 and transfer her to the morning shift begin- ning at 7 a.m., with a layoff as an alternative. When Raber protested that her family situation was such that she would have to take the layoff, Smith endeavored to force her to submit a written statement that she herself sought the layoff. There- after when Raber was able to make arrangements to meet the 7 a.m. reporting time, her schedule was changed after a few days, without notice, to require her to come in at 6 a.m., an impossibility as Raber explained to Koch. Thereafter despite frantic efforts on Raber's part, Smith evaded all her attempts to see or talk with him. That Raber should quit under such circumstances was not a real quitting in any sense of the word, for it was apparent from the nature of Respondents' treat- ment of her and the progression of the steps of its actions that it had only one aim in mind, and that was to force her out of its employment. I therefore conclude and find on the entire evidence that Respondents construc- tively discharged Raber, discriminating against her because of her union member- ship and activities. 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. By interfering with, restraining, and coercing their employees in the exercise of rights guaranteed in Section 7 of the Act, Respondents engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By discharging Larry Rhyne, Linda Casio, William Blackburn, Lucille Taylor, Joyce Raber, Nellie Snyder, and John A. Raber because of their union membership and activities, Respondents engaged in discrimination to discourage membership in the Union, thereby engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 4. Respondents did not discriminatorily discharge Edward L. Friese as alleged in, the complaint. 5. Respondents did not refuse to bargain with the Union within the meaning of Sections 8(a)(5) and 9(a) of the Act. THE REMEDY Having found that Respondents engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirma- tive action of the type which is conventionally ordered in such cases as provided in the Recommended Order below and which I find necessary to remedy and to- remove the effects of the unfair labor practices and to effectuate the policies of the Act. For the reasons which are stated in Consolidated Industries, Inc., 108 NLRB' 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. The state of the record requires some discussion on the matter of reinstatement. All of the discriminatees (including John Raber, as I have found) were offered reinstatement as of June 30, and all except Raher returned on June 28 after inter- views by Mrs. Smith as previously recounted. The General Counsel represented that he was offering the latter evidence not to establish independent violations of the c s That assignments to the club were highly prized was apparent from Snyder's action in giving up her supervisor's post so as to share In the attractive tips received by the waitresses in the club. 7 7 OPERATING COMPANY 947 Act (which in any case were not included in the complaint allegations) but as "background" to show Respondents' continued hostility to the Union. Evidence was also offered concerning the subsequent discharges of Joyce Raber and Nellie Sny- der, but again the General Counsel specifically disclaimed any intention of litigating those discharges as violative of the Act. The record shows further that William Blackburn resigned after his reinstatement, voluntarily so far as the record showed, and that Linda Casto though returning briefly on June 28, remained only a few minutes and departed without reporting to any supervisor. Larry Rhyne and Lucille Taylor remained in Respondents' employ at the time of the hearing. The General Counsel made no contention at the hearing questioning the validity of the reinstatements, and as he filed no brief, it must be assumed that he stands on his oral representations at the hearing to the effect that he was not litigating the circumstances surrounding the reinstatements or the subsequent discharges as violative of the Act. Under those circumstances it will not be recommended that Respondents be required to make further offers of reinstatement, and the backpay recommendations will run from the date of the respective discharges to June 28. Upon the foregoing findings of fact and conclusions of law and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following: RECOMMENDED ORDER John Hammonds and Roy Winegardner, partners, d/b/a 77 Operating Company, d/b/a Holiday Inn Restaurant, their agents, representatives, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor oiganization, by discharging, failing to reinstate, or in any other manner discriminating against them in regard to hire or tenure of employ- ment or any term or condition of employment. (b) Interrogating employees concerning their signing union cards and as to the identities of other employees who have done so. (c) Soliciting employees to sign a statement that they do not want the Union (d) Giving the impression to employees through the alleged use of a camera or otherwise that they are engaging in surveillance of union activities. (e) Threatening to close the restaurant if the Union should come in. (f) Threatening to discharge employees if they should join a union or for dis- cussing the Union on the premises. (g) Threatening not to reinstate employees and not to give them a reference for other employment if they should continue their adherence to the Union. (h) Refusing to serve as-guests in the presence of employees, and directing their employees to refuse to serve, union representatives in the public restaurant. (i) In any other manner interfering with, restraining, or coercing their employees in the exercise of their right to self-organization to form, join, or assist said Food Store Employees Union, Local No. 347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective 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 orga- nization as authorized in Section 8(a) (3) of the Act. 2. Take the following affirmative action: (a) Make whole Lucille Taylor, Larry Rhyne, Linda Casto, William Blackburn, John A. Raber, Joyce Raber, and Nellie Snyder for any loss of pay which each may have suffered by payment to him of a sum of money equal to that which he would normally have earned from the date of his discharge as found herein to June 28, 1965, less his net earnings during said period. Said backpay to be com- puted on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716. (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 necessary to analyze the amounts of backpay due under these recommendations. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post in their offices, motel, and restaurant, at Parkersburg, West Virginia, copies of the attached notice marked "Appendix." 9 Copies of the said notice, to be furnished by the Regional Director for Region 9 after being duly signed by Respondents' representative, shall be posted by Respondents immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. ^(d) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps the Respondents have taken to comply herewith.io Q In the event that 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words, "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 10 In the event that this Recommended Order is 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 Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or in any other labor organization, by discharging or failing to reinstate employees or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate employees concerning their signing of union cards or as to the identities of other employees who have done so. WE WILL NOT solicit employees to sign statements that they do not want the Union. WE WILL NOT give the impression to employees through the alleged use of a camera or otherwise of engaging in surveillance of union activities. WE WILL NOT threaten to close the restaurant if the Union should come in. WE WILL NOT threaten to discharge employees if they should join a union or for discussing the Union on the premises. WE WILL NOT threaten not to reinstate employees and not to give them references for other employment if they should continue their adherence to the Union. WE WILL NOT refuse to serve as guests in the presence of our employees, or direct our employees to refuse to serve, union representatives in our public restaurant. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization, to form, join, or assist said Food Store Employees Union, Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. WE WILL make whole Lucille Taylor, Nellie Snyder, Larry Rhyne, Linda Casto, William Blackburn, John A. Raber, and Joyce Raber for any loss of pay they may have suffered as a result of our discrimination against them in the manner provided in the Trial Examiner's Decision. All our employees are free to become and remain, or to refrain from becoming or remaining, members of the above-named or any other labor organization except CLEVELAND LOCAL NO. 2 4-P, LITHOGRAPHERS 949 to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as authorized in Section 8(a)(3) of the Act. JOHN HAMMONDS AND Roy WINEGARDNER , PARTNERS, D/B/A 77 OPERATING COMPANY, D/B/A HOLIDAY INN RESTAURANT, Employer. Dated------------------- Bv------------------------------------------- (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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 2023 , Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 684-3627. Cleveland Local No. 24-P, Lithographers and Photoengravers International Union, AFL-CIO and Akron Engraving Com- pany, Inc. Case 8-CB-1000. September 7,1966 DECISION AND ORDER On June 6, 1966, Trial Examiner Melvin Pollack issued his Deci- sion 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. Thereafter, Respondent filed exceptions to the Trial Examiner's. Decision and a supporting brief. The General Counsel filed an answer- ing brief to the Respondent's exceptions and brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. In the heading of the Appendix to the Recommended Order, insert the words " CLEVELAND LOCAL 24-P, LITHOGRAPHERS AND PHOTO- ENGRAVERS INTERNATIONAL UNION- AFL-CIO," immediately after the phrase "To ALL MEMBERS or", and before the phrase beginning "AND TO ALL EMPLOYEES OF".] 160 NLRB No. 77.