Holiday Inn

216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kearney Convention Center, Inc., d/b/a Holiday Inn and United Steel Workers of America, AFL-CIO. Case 17-CA-3064 January 17,1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On July 17, 1967, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding , finding that the Respondent had en- gaged in certain unfair labor practices alleged in the complaint and recommending that it cease and de- sist therefrom and take certain other affirmative ac- tion, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain other unfair labor prac- tices alleged in the complaint and recommended dismissal as to them. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision with supporting briefs, and the General Counsel filed cross-exceptions and a brief in support of cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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, briefs, cross-exceptions and brief in support thereof, and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner with the following modifications: While we agree with the Trial Examiner that Respondent violated Section 8(a)(1) of the Act by formulating and promulgating a rule prohibiting the hiring of strikers from the Rockwell Manufacturing Company, we do not agree with his conclusion that Respondent refused to rehire Lopez as a result of this rule in violation of.Section 8(a)(3) of the Act. The record clearly shows that Lopez was lawfully laid off for lack of work by the head chef, his father- in-law, 2 or 3 days before. the illegal rule was promulgated. The record also shows that no new chefs were hired during the critical period herein with the exception of one permanent full-time chef who was hired on December 1, 1966, to replace another permanent full-time chef who had resigned. Lopez had never been employed in that status. As the record shows that the strike period involved herein occurred during that period of the year when Respondent's kitchen operation was at its seasonal low, and, in the absence of any evidence that Lopez' application for work' was refused by his father-in-law because of that rule rather than because there was no work available at the time, we do not conclude, under the particular facts of this case, that the General Counsel has by a preponder-, ance of the evidence proven that Lopez was refused rehire because of the policy announced in the unlawful rule.2 We are further persuaded that lack of work was the primary motivation, and that Lopez so understood, by the fact that (1) the rule was rescinded within 3 weeks with notice to Lopez' father-in-law, and (2) even if Lopez had not received notice of the rescission in November, the rule expired by its own terms when the strike at Rockwell ended, and yet Lopez, who was ap- parently unemployed during this entire period, did not at any time thereafter apply for work not- withstanding the removal of the limitation. Ac- cordingly, we shall dismiss the complaint as to this issue.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Kearney Convention Center, Inc., d/b/a Holiday Inn, Kearney, Nebraska, its officers, agents, su - cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: "1. Delete in their entirety paragraphs 1(b) and 2(c) and (d) of the Trial Examiner's Recommended Order and reletter the other paragraphs ac- cordingly. "2. Delete the fourth and sixth indented para- graphs of the Appendix attached to the Trial Ex- aminer's Decision." I Although the record is not entirely clear as to whether Lopez actually applied for work at the time of his Sunday dinner discussion with his father-in-law, we find it unnecessary to resolve this point at this time. We note that Lopez' father-in-law did not appear and testify on this point. 2 Cf. Shawnee Industries, Inc., 140 NLRB 1451, where we found that the absence of vacancies did not absolve the Employer from violating Sec- tion 8(h)(3) of the Act where the record clearly showed that the employer refused to consider certain job applicants because the individuals involved were known union adherents. 3 In view of our finding that Respondent did not unlawfully refuse to rehire Lopez, we find it unnecessary to pass on the Trial Examiner's con- clusion that Lopez was not entitled to backpay beyond the date the strike ended at the Rockwell Manufacturing Company. 169.NLRB No. 41 HOLIDAY INN 217 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALVIN LIEBERMAN, Trial Examiner: This case, with all parties represented, was tried before me in Kearney, Nebraska, on March 9, 1967, upon a complaint' of the General Counsel and respondent's amended answer.2 The issues litigated were whether respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (herein called the Act). More particu- larly the questions for decision are as follows: 1. Did respondent violate Section 8(a)(3) and (1) of the Act by terminating the employment of Silvester Lopez and thereafter refusing to reinstate him? Subsidiarily, in this regard, on what date was Lopez' employment ter- minated and on what date was he refused reinstatement? 2. Did respondent independently violate Section 8(a)(1) of the Act by adopting a policy of not hiring, and directing its department heads not to hire, persons who were on strike against Rockwell Manufacturing Company (herein called Rockwell)? Upon the entire record3, upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and the briefs submitted by the General Counsel and respondent, I make the following: FINDINGS OF FACTO I. RESPONDENT'S BUSINESS Respondent, a Nebraska corporation, is engaged at Kearney, Nebraska, in the operation of a motel, known as the Holiday Inn. During 1966,5 a representative period, respondent's gross revenues exceeded $500,000, of which more than 25 percent was received from transient guests. In addition, respondent annually purchases, and receives directly, from vendors located outside the State of Nebraska supplies and materials valued at more than $5,000. Accordingly, I find that the assertion ofjurisdic- tion over this matter by the National Labor Relations Board (herein called the Board) is warranted. Floridan Hotel of Tampa, Inc., 124 NLRB 261, 264; SpinkArms Hotel Corporation, etc., 133 NLRB 1694, 1695; Catalina Island Sightseeing Lines, 124 NLRB 813, 815. It. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with the termination of the employment of Silvester Lopez, one of respondent's I The complaint was issued on a charge filed by United Steel Workers of America, AFL-CIO (herein called the Union). During the trial the complaint was amended to set forth respondent 's name as it appears in the caption The complaint was further amended by substituting the number "25" for "15" in paragraph II(b) 2 During the trial respondent's amended answer was amended to admit paragraph 11(b) of the complaint, as amended , and to include in paragraph V a denial of paragraph V of the complaint. 3 Issued simultaneously is a separate order correcting the stenographic transcript of this proceeding in several respects. cooks; respondent's subsequent refusal to reemploy him; and the issuance by respondent of a directive to the heads of its various departments, including its chef, who was its kitchen supervisor, not to employ persons who were on strike against Rockwell.6 The General Counsel contends, in support of his com- plaint, that early in November, respondent, contrary to Section 8(a)(1) of the Act, decided not to hire Rockwell strikers; and that respondent's supervisors were informed of this policy, which also became known to its employees. The General Counsel further contends that in implemen- tation of this policy and in violation of Section 8(a)(3) Lopez was discharged and thereafter refused employ- ment. Respondent professes to be without knowledge con- cerning the circumstances of Lopez' employment or its termination, which is alleged in the complaint as having contravened Section 8(a)(3). Admitting that on November 3, a notice was sent to the heads of all depart- ments, including its chef, directing them not to hire Rockwell strikers, respondent denies that this was a pol- icy or that the notice was discriminatorily motivated. Rather respondent asserts, on brief, that it had been dissatisfied with Lopez during a previous period of em- ployment and that its motive in issuing the notice in question "was to save the Chef [Lopez' father-in-law] from embarrassment [in refusing to give a job to Lopez, who in the meanwhile had become an employee of, and was on strike against, Rockwell] and to prevent the return to work of a highly unsatisfactory employee who unfortunately was a relative of the Chef, a prized depart- ment head." It is also respondent's contention that Lopez would not in any event have been reemployed in November because its economic condition did not war- rant the hiring of an additional cook. B. Facts Concerning Respondent's Alleged Unfair Labor Practices 1. The nature of respondent's operations As noted above, respondent operates a motel under the name of Holiday Inn at Kearney, Nebraska. As an ad- junct to its motel, respondent, during the time material to this proceeding, also operated a kitchen and dining room.7 Respondent's chef was in charge of the kitchen and su- pervised, hired, and discharged all kitchen employees, in- cluding the cooks. Respondent's business is seasonal in nature. Its room occupancy fluctuates from 100 percent during the summer to about 40 percent in the fall and winter months. There is, also, a corresponding drop in the business done in the dining room. Because of this, Gregg Johnson, respondent's manager, talked to its department heads, including the chef, a number of times during September and October about reducing the number of employees on their respective 4 The motion to dismiss the complaint made by respondent at the close of the trial is disposed of in accordance with the findings and conclusions set forth in this Decision. 5 Unless otherwise designated, all dates refer to 1966. ' At all material times the Union was engaged in a strike against Rockwell's Kearney, Nebraska, plant. 7 On February 15, 1967, respondent leased its kitchen and dining room to an independent contractor. 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD staffs. As a result a substantial reduction in force oc- curred in September and October. Thus, in the chef's de- partment the number of cooks dropped from 11 on Au- gust 15, to 8 on October 30. "that [he] would not be needed any more, and that [he] would be laid off because there was not enough work for all the cooks that were on duty."12 Accordingly, Lopez left respondent's premises. 2. The termination of Lopez' employment Silvester Lopez, who the complaint alleges was discharged on November 3, in violation of Section 8(a)(3) of the Act, was employed by respondent during two separate periods . He began working for respondent as a dishwasher in April 1965, and voluntarily quit early in October 1966. At the time of his resignation Lopez was a full-time cook whose tour of duty was from 3 to 11 p.m. During this period of his employment Lopez did not conduct himself in a manner calculated to bring him praise. By his own admission he was tardy in reporting for work on two mornings , which resulted in the late opening of respondent's coffeeshop and his transfer to the after- noon shift; he "frequently dance[d] around [in] the kitchen";, he did not get along well with the waitresses, often screaming at them and using "vile and vulgar lan- guage with them,"8 for which he was cautioned on one oc- casion by Harold Rieber , respondent's president.9 Upon leaving respondent's employ early in October, Lopez obtained a position with Rockwell. The Union struck Rockwell 2 weeks later. Lopez supported the strike, during which he picketed, became a member of the Union, and attended union meetings. On October 23, while he was on strike against Rockwell, Lopez asked respondent's chef, his father-in- law, for employment for the duration of the strike.'° Respondent's chef told Lopez that he needed help; that Lopez should come to work the next day as a full-time cook on the 3 to 11 p.m. shift; and that he could continue to work until the Rockwell strike was over. t t As directed by respondent's chef, Lopez reported for work on October 24. Johnson, respondent's manager was not at the motel when Lopez arrived, having left earlier that day to attend a convention in Memphis, Tennessee. Lopez continued to work in respondent's kitchen as full- time cook from October 24 through 30. During the even- ing of October 30, Johnson returned to respondent's motel and noted that Lopez was working. Although he also saw the chef that night, Johnson said nothing to him about Lopez' presence in the kitchen. When, or shortly after, Lopez came to work the next day, October 31, the chef told him, as Lopez testified, 8 In mitigation , Lopez testified that his language improprieties toward the waitresses were caused by their addressing him in a similar manner. 9 Although denied by Lopez, Rieber testified that at the time in question he told Lopez that if he continued to use improper language in the kitchen he would be "fire [d] on the spot." 10 It was stipulated that the Union discontinued its strike against Rockwell on January 28,1967. 11 These findings are based on testimony given by Lopez. As noted above, respondent claims to have no knowledge concerning its chef's hir- ing of Lopez on this occasion. 12 The date of Lopez' layoff is an important factor in determining its cause, for, as will be seen below, respondent adopted its policy of not hir- ing Rockwell strikers on November 3, and the General Counsel urges that Lopez' employment was terminated in pursuance of this policy. As I noted at the trial, the evidence concerning the date of the termination of Lopez' employment is "on the vague side." Lopez, himself, was unable to state with certainty whether his layoff occurred in October, or in "the first part of November." None of respondent's witnesses were any more 3. Respondent's policy concerning the employment of Rockwell strikers As found above the Union struck Rockwell in mid-Oc- tober. On November 3, while the Rockwell strike was in progress, respondent's officers, its manager, and its chef were conferring with respect to a matter which did not concern Lopez. Toward the end of this meeting Beltzer, respondent's vice president, inquired of the chef as to whether Lopez was then in respondent's employ. Upon being informed that he was not, Beltzer told the chef "we do not want you to hire him back. As a matter of fact, it is against the company policy to hire strikers from Rockwell 11 Later that day, Johnson, respondent's manager, prepared a notice 13 addressed to the heads of all of re- spondent's departments, including the chef, which stated: IT IS AGAINST OUR COMPANY POLICY TO HIRE ANY PERSON ON STRIKE AGAINST ROCKWELL COMPANY. PLEASE SEE THAT NO EXCEPTIONS ARE MADE. Johnson hand-carried a copy of this notice to the kitchen and in the presence of employees working there, but in the chefs absence, laid it on the chefs desk. It does not appear that respondent made any attempt at secrecy with respect to this notice. As Johnson readily admitted, its contents became "rather knowledgeable around the Inn," and had "become common knowledge" among respondent's employees. Johnson and Beltzer, respectively respondent's manager and vice president, testified that the sole pur- pose in issuing the notice was to save the chef from em- barrassment in having to refuse work to Lopez, his son-in- law, whom respondent did not want to reemploy not only because of his many faults, as demonstrated during his previous employment, but also because business condi- tions at the time did not warrant the hiring of an additional cook. Respondent's department heads, as Johnson and Beltzer acknowledged, were never informed that this was the purpose of the notice. In view of this and of my findings appearing - below in connection with the testimony given by Gilbert Laws, a witness for the General Counsel, I place no credence on the explanation offered by Johnson and Beltzer. definite. Thus, Johnson , respondent's manager, testified that Lopez "hadn't been working for several days before" November 3. Rieber, respondent's president , testified that Johnson told him on October 31, "that Silvester [Lopez] was back working." And William Beltzer, respon- dent's vice president whose operational sphere embraced respondent's recordkeeping, testified that he "assumed' that Lopez was working on October 31, and that he was told by the chef on November 3 that "the last day that [Lopez] worked was the 30th of October." Opposed to this in- conclusive testimony is a book kept by the chef in which he listed the names of all cooks working during the period in question. Although not in- troduced into evidence, it was referred to by Johnson and shows, as John- son credibly testified, that October 30 was the last day on which Lopez worked. It is this book , which appears to me to be the most reliable evidence on the point at issue, which furnishes the basis for my findings that the last day of Lopez' employment was October 30, and that its ter- mination occurred on October 31. 13 A copy of this notice was received in evidence as G.C. Exh. 3. HOLIDAY INN 4. Respondent's refusal to reemploy Lopez, and sub- sequent events A day or two following the issuance by respondent of its notice concerning the hiring of Rockwell strikers, Lopez again requested employment from respondent's chef, telling him that if he was not needed at the motel, he would look for another job.14 In response the chef in- formed Lopez, as Lopez testified, that "he couldn't [be used] because [the chef] had his orders that [Lopez] was not to be employed [at the Holiday Inn] because [he] was on strike at Rockwell."ls On November 7, Gilbert Laws,16 a guest at respond- ent's motel, asked Johnson, respondent's manager, whether, as he had been informed, respondent had posted a notice "on the board to all department heads, do not hire Rockwell strikers." Johnson, in essence, told Laws that his information was correct. Upon Laws' expressing surprise that respondent actually did this, Johnson responded "that 10 per cent of his business at the Holiday Inn was Rockwell management." During this same conversation Laws asked Johnson whether, as he had also been informed, "an employee in the kitchen [had been] let go," suggesting in his question that the employee involved "had been let go because he was a striker at Rockwell." Johnson did not answer this question directly. Instead he stated, without at anytime mentioning the family relationship between Lopez and the chef,17 that the employee concerned "was a part-time employee [who] had worked [for respondent] before, had quit, hired out at Rockwell, [and] when they went out on strike he came back and worked at Holiday Inn ... [and that ] he was let go because [respondent] felt as soon as the strike was over he would go back to work for Rockwell anyway."'s C. Contentions and Concluding Findings Concerning Respondent'sAlleged Unfair Labor Practices The complaint alleges that respondent committed un- fair labor practices within the meaning of Section 8(a)(1) of the Act by adopting a policy of refusing to hire Rockwell strikers and within the meaning of Section 8(a)(3) by discharging and refusing to reinstate Lopez. In support of the latter allegations of the complaint the General Counsel argues that both the discharge of, and the refusal to reinstate, Lopez were in implementation of respondent's policy with respect to the employment of Rockwell strikers. 14 The record is as vague with respect to the date of Lopez' second request for employment as it is with respect to the date on which his previ- ous employment with respondent was terminated . Lopez testified that the request was made a "day or two" after his layoff, which, I have found, oc- curred on October 31 . In view of the answer which he received , however, it could not have been made then, but must have been made a "day or two" after November 3, the date on which respondent informed its chef and other department heads of its "policy" against hiring Rockwell strikers. is The chef did not appear as a witness in this proceeding and Lopez testimony in this regard stands undenied is Laws is employed as a field representative by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. 19 This finding is based on Laws' testimony. Johnson testified contrarily that he "discussed [the family relationship] and told [Laws] it was family situation." Aside from his demeanor while on the witness stand , which I have taken into account in making this finding , Laws, despite his position as an official of a union, has nothing personally to gain or lose by the out- 219 Respondent, as noted, professes to be without knowledge concerning the commencement of Lopez' em- ployment on October 24 or its termination on October 31. It asserts, however, that it would not have rehired Lopez on October 24, regardless of his status as a Rockwell striker, because he had not been a satisfactory employee when he had previously worked for respondent and, irrespective of this, for the further reason that its business condition at the time did not warrant the em- ployment of an additional cook. Concerning the notice of November 3, setting forth a policy of not hiring people on strike against Rockwell, respondent's position is that it didn't really have such a policy. Respondent contends, in this connection, that it was not concerned with hiring Rockwell strikers, but that it did not want its chef to reemploy Lopez, his son-in-law, who was known to be a participant in the strike against Rockwell.19 Accordingly, respondent's argument continues, the notice was issued for the sole purpose of providing its chef with a basis, not embarrassing to him, for not hiring Lopez, whom re- spondent did not want to employ for reasons uncon- nected with his participation in the Rockwell strike. Section 8(a)(1) of the Act is violated by an employer who engages in conduct which, in the language of the statute, operates "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Sec- tion 7." One of the rights guaranteed to employees is that of striking. N.L.R.B. v. Erie Resistor Corp., et al., 373 U.S. 221, 233. Accordingly, by issuing its notice of November 3, which on its face indicated that respondent had adopted a policy of not hiring Rockwell strikers, respondent inter- fered with a right guaranteed to employees by Section 7 of the Act.20 Although I have found that respondent's em- ployees became aware of the contents of the notice, my conclusion with respect to the policy which it set forth would not be different even if it had been kept secret from them. Wallace Press, Inc., 146 NLRB 1236, 1239. In reliance on the testimony of Johnson and Beltzer, respectively respondent's manager and vice president, respondent vigorously argues that it didn't really adopt a policy of not hiring Rockwell strikers, but was interested only in preventing the reemployment of Lopez for reasons not related to his supporting the Union in its strike against Rockwell. I have already discredited the explanation for the policy and notice offered by Johnson and Beltzer. However, even if it were to be believed, it would avail respondent nothing, for it is well settled that the test of interference, restraint, and coercion within the come of this proceeding Accordingly, I consider Laws , unlike Johnson, respondent's manager, to be a disinterested witness whose testimony, for this reason, outweighs that given on this point by Johnson. is The findings concerning the conversation between Laws and John- son are based on Laws' testimony, the correctness of which, except for the family relationship between the chef and Lopez (see fn. 17), was ad- mitted by Johnson. Although Johnson further admitted that respondent "did receive a lot of business from Rockwell," he testified that the 10 per- cent figure which he mentioned to Laws "was wrong" and "grabbed. . out of the air." In view of Johnson's admission concerning the substan- tiality of respondent's business with Rockwell , whether that business was less than 10 percent , as Johnson implied, is immaterial. is With respect to this contention respondent 's counsel remarked in his opening statement that respondent "recognize [d] that the chef was taking care of [Lopez] to see that his daughter had food on the table " 20 The fact that the target of respondent's policy, as expressed in the notice, was Rockwell strikers who were not employees of respondent is immaterial. Phelps Dodge Corp v N.L.R B , 313 U.S. 177,187. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meaning of Section 8(a)(1) of the Act does not turn on motive. Russell-Newman Mfg. Co., Inc., 153 NLRB 1312, 1315, reversed on other grounds 370 F.2d 980 (C.A. 5); Exchange Parts Company, 131 NLRB 806, 807, 812, affd. 375 U.S. 405 . Nor, where a statement or writing is concerned, does it turn on the truth of the ut- terance. Lenz Company, 153 NLRB 1399, 1400. I conclude, therefore, that respondent independently violated Section 8(a)(1) of the Act by adopting a policy of not hiring Rockwell strikers and by issuing its notice ex- pressing that policy. The final questions for consideration are whether, as al- leged in the complaint, respondent violated Section 8(a)(3) of the Act by the termination of Lopez ' employ- ment and by the refusal to reinstate him. Briefly review- ing the facts respecting this branch of the case, I have found that in the early part of October after having been employed by respondent for a substantial period of time as a cook, during which he displayed many undesirable characteristics , Lopez quit to take a job with Rockwell. A short time later the Union instituted a strike against Rockwell in which Lopez participated. On October 23, after respondent had instructed its chef and other depart- ment heads to reduce their staffs because of a seasonal decline in business , respondent's chef, Lopez' father-in- law, rehired Lopez for the duration of the Rockwell strike. On October 31, respondent's chef laid Lopez off for lack of work. On November 3, respondent adopted a policy of not hiring Rockwell strikers and sent a notice to that effect to all its department heads . A day or two later, Lopez sought reinstatement . In response to this request respondent's chef told Lopez that he could not be hired as he had "orders that [Lopez] was not to be employed ... because [he] was on strike at Rockwell." The General Counsel argues that both the termination of Lopez' tenure as an employee of respondent and respondent's refusal to reinstate him were in implementa- tion of respondent's policy of not hiring Rockwell strikers and, therefore , in violation of Section 8(a)(3) of the Act. The evidence, however, does not support this argument with respect to Lopez' layoff. First, this occurred, as I have found, on October 31, 3 days before , respondent adopted its discriminatory hiring policy with respect to Rockwell strikers . Second, the reason assigned for the layoff withstands scrutiny. Cf. N.L.R.B. v. Dant et al., etc., 207 F .2d. 165, 167 (C.A. 9). Respondent was, in fact, suffering from a slump in business and had in- structed its department heads , for this reason, to reduce their staffs. I conclude, therefore, that the General Coun- sel has not sustained his burden of proving by a prepon- derance of the evidence that respondent violated Section 8(a)(3) of the Act by terminating Lopez' employment. Accordingly , I will recommend that paragraphs IV and VI of the complaint be dismissed insofar as they relate to the termination of Lopez' employment. A different result, however, is required with respect to the refusal to reinstate Lopez, which was clearly in imple- mentation of respondent's policy of not hiring Rockwell strikers. The evidence leaves no room for doubt as to this. Unlike the reason given Lopez for his previous layoff, respondent's chef plainly and bluntly told Lopez that he 21 Casting doubt upon this contention is the failure on the part of John- son, respondent's manager, to deny or to reply directly to a suggestion by Laws, a guest at respondent's motel, that an employee "had been let go because he was a striker at Rockwell." 22 Analytically there appears to be no difference insofar as Section could not return to work for respondent because he was on strike against Rockwell. Lopez was thus patently de- nied employment because he supported the Union, by participating in its strike against Rockwell , an obvious violation of Section 8(a)(3) of the Act. N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26. That respondent, as it argues , may have had other reasons, nondiscriminatory in nature , for not reemploy- ing Lopez21 is of no moment . As was stated in this regard in N.L.R.B. v. Symons Manufacturing Co., 328 F.2d 835, 837 (C.A. 7), the "mere existence of valid grounds for a discharge is no defense to a charge that the discharge was unlawful, unless the discharge was predicated solely on those grounds."22 Accordingly, I conclude that by refusing to reinstate Lopez following his layoff on October 31 , respondent committed an unfair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE Respondent's activities set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that respondent engaged in the unfair labor practices set forth above, my Recommended Order will direct respondent to cease and desist therefrom and to take such affirmative action as will effectuate the pur- poses of the Act. In this connection, inasmuch as Lopez' employment with respondent would have terminated upon the cessation of the Union's strike against Rockwell, which, as stipulated by the parties, came to an end on January 28, 1967, his reinstatement will not be required. Instead, my Recommended Order will provide only that Lopez be made whole for any loss of earnings he may have suffered from the date on which he was refused employment by respondent until January 28, 1967. Any backpay found to be due Lopez shall be computed in ac- cordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716. Respondent offered evidence for the purpose of show- ing that it had rescinded its policy of not hiring Rockwell strikers and its notice of November 3, setting forth that policy. However, even if such recission were a fact, as to which I make no finding, it would not render moot in the circumstances of this case respondent's conduct in adopt- ing and issuing its notice concerning the policy, nor would it obviate the necessity for an appropriate remedial order. Clark Printing, Inc., 146 NLRB 121, 123. In view of the nature of the unfair labor practices en- gaged in by respondent, my Recommended Order will contain broad cease-and-desist provisions. 8(a)(3) of the Act is concerned between a discharge and a refusal to em- ploy. The section, itself, speaks in terms of "hire or tenure," and the Supreme Court has emphasized that an employer has no greater power to discriminate in hiring than he has in discharging . Phelps Dodge Corpora- tion v. N.L.R.B., 313 U.S. 177, 187. HOLIDAY INN 221 Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By adopting a policy of not hiring Rockwell strikers and by notifying its department heads of such policy respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing to employ Silvester Lopez because he supported the Union by participating in its strike against Rockwell, thereby discouraging membership in the Union, respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in unfair labor practices in the manner set forth in paragraph IV and VI of the complaint insofar as those paragraphs make reference to respondent's having violated Section 8(a)(3) of the Act by terminating Lopez' employment. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this case, I hereby issue the following: Labor Relations Board, within 20 days from receipt of this Decision, a copy of its notice rescinding its said pol- icy with proof that a like copy was duly furnished to each of its department heads. (c) Make Silvester Lopez whole for any loss of earnings he may have suffered by reason of the dis- crimination practiced against him in the manner set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the National Labor Relations Board or its agents, for ex- amination or copying all payroll records, social security payment records, timecards, and personnel records necessary or useful to determine the amount of backpay due under the terms of this Recommended Order. (e) Post at its premises copies of the attached notice marked "Appendix. 1123 Copies of said notice, on forms provided by the Regional Director for Region 17 of the National Labor Relations Board, after being signed by an authorized representative of respondent, shall be posted by respondent immediately upon 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 respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from receipt of this Decision, what steps respondent has taken to comply herewith.24 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor prac- tices not specifically found herein. RECOMMENDED ORDER Kearney Convention Center, Inc., d/b/a Holiday Inn, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Adopting or maintaining a policy of refusing to hire employees who have engaged in, or are engaging in, a strike against Rockwell Manufacturing Company or any other employer, or who in any other manner have assisted or supported, or are assisting or supporting, United Steel Workers of America, AFL-CIO, or any other labor or- ganization. (b) Discouraging membership in United Steel Work- ers of America, AFL-CIO, or any other labor organiza- tion by discriminating against employees in regard to hire or tenure of employment or any term or condition of em- ployment. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, 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 as guaranteed in Section 7 of the Na- tional Labor Relations Act, as amended, or to refrain from any or all such activities. 2. Take the following affirmative action which, it is found, will effectuate the policies of the National Labor Relations Act, as amended: (a) Rescind its policy of refusing to hire employees who have engaged in the strike against Rockwell Manu- facturing Company which terminated on January 28, 1967. (b) Notify each of its department heads, in writing, of its recission of the aforementioned policy and forward to the Regional Director for Region 17 of the National 23 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 24 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 Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: After a trial in which both sides had the opportunity to present their evidence, it has been found that we violated the law by committing unfair labor practices and we have been ordered to post this notice and to keep the promises that we make in this notice. WE WILL NOT put into effect, keep in force, or fol- low a policy of not hiring persons who took part in the strike against Rockwell Manufacturing Com- pany. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT put into effect , keep in force, or fol- low a policy of not hiring persons who have struck, or are on strike against , any company. WE WILL NOT put into effect , keep in force , or fol- low a policy of not hiring persons because they sup- port or help United Steel Workers of America, AFL-CIO, or any other union , or because they may have done so in the past. WE WILL NOT refuse to hire anyone or dis- criminate against you in any way in order to discourage membership in, or 'support for, United Steel Workers of America, AFL-CIO, or any other union. WE WILL NOT in any other way interfere with, restrain, or coerce you in the exercise of any rights guaranteed to you by the National Labor Relations Act. In this connection, we will respect your rights to self-organization, to form,join, or assist any union, to bargain collectively through any union or representative of your choice as to wages , hours of work, or any other term or condition of employment. You also have the right, which we also will respect, to refrain from doing so. WE WILL NOT discriminate against any employees for engaging in union activity or for joining any union. Since it has been found that we did so when we refused to hire Silvester Lopez because he took part in the strike against Rockwell Manufacturing Company, WE WILL pay him for any loss he suffered because we refused to hire him. WE WILL cancel our policy of not hiring anyone who took part in the strike against Rockwell Manu- facturing Company and WE WILL notify our depart- ment heads of the cancellation of this policy. Dated By KEARNEY CONVENTION CENTER, INC., D/B/A HOLIDAY INN (Employer) (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, 610 Federal Building, 601 E. 12th Street, Kansas City, Missouri 64106, Telephone FR4-5181.