National Hotel Co.

236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD National Hotel Company Operating the Jung Hotel and Hotel, Motel& Restaurant Employees Union, Local 166, AFL-CIO. Case 15-CA-2975 January 18, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On August 21, 1967, Trial Examiner Herbert Sil- berman issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. He found further that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent and General Counsel filed exceptions to the Decision and supporting briefs. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. 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 and hereby or- ders that the Respondent, National Hotel Company operating the Jung Hotel, New Orleans, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERBERT SILBERMAN , Trial Examiner: Upon a charge and amended charges, filed by Hotel, Motel & Restaurant Employees Union, Local 166, AFL-CIO, herein called the Union, on November 29 and December 2, 1966, and February 13, 1967, a complaint, dated March 17, 1967, was issued alleging that the Respondent, National Hotel Company operating the Jung Hotel, herein called the Company, has engaged in and is engaging in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended. The complaint, as amended at the hearing, in substance, alleges that the Company unlawfully discharged six employees on various dates in November 1966 and on February 5, 1967, and by such discharges and other conduct set forth in the complaint has inter= fered with, restrained, and coerced employees in the exer- cise of rights guaranteed in Section 7 of the Act. Re- spondent's answer, as amended at the hearing, generally denies that it engaged in the alleged unfair labor practices. A hearing in this proceeding was held in New Orleans, Louisiana, on May 3, 4, and 5, 1967. Thereafter, briefs were filed on behalf of the General Counsel and the Respondent which have been given careful consideration. Upon the entire record in this case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation, operates the Jung Hotel in New Orleans, Louisiana. During the 12 months preceding the issuance of the complaint, which period is representative of the Company's business operations, Respondent's business receipts were in excess of $500,000, and more than 25 percent of such receipts were from the rental of lodgings to transient guests who stayed at the hotel for periods of less than 1 month. During the same period of time, Respondent purchased merchandise and supplied valued in excess of $10,000 which were shipped to it directly or indirectly from points outside the State of Louisiana. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization with the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The alleged unfair labor practices herein purportedly arose from Respondent's opposition to an organizational campaign conducted by the Union at the Jung. On November 29, 1966, an election was conducted by the Board among employees of the hotel pursuant to a stipu- lation for certification upon consent election entered into on November 2, 1966. The Union lost the election by a decisive margin: 288 votes having been cast against the Union and only 135 votes having been cast for the Union. However, the Union filed timely objections to the elec- tion and on February 24, 1967, the Board adopted the Regional Director's recommendation that, because the Company had failed to file a list containing the names and addresses of all the eligible voters in accordance with the rule announced in Excelsior Underwear Inc., 156 NLRB 1236, the election should be set aside and a second elec- tion should be conducted. The six employees who are alleged to have been dis- criminatorily discharged worked in the hotel's coffee shop. Four of them had been employed as busgirls and 169 NLRB No. 51 NATIONAL HOTEL COMPANY two as waitresses. Respondent's defense is that the four busgirls were discharged for incompetence, that one of the waitresses, Mae Bernard, was discharged for violating a rule prohibiting waitresses from giving or selling food to other employees, and that the other waitress, Irene E. Lane, quit her position. During the times material hereto Josephine Foret was the dining room supervisor and had direct charge of the waitresses and bus help. Mrs. Foret was strongly opposed to the organization of the em- ployees. She testified that she believed that her position would become untenable if the employees were to be represented by a union and that she would then be forced to give up her job as dining room supervisor, which she found to be highly rewarding (in the personal satisfaction she derived from holding a responsible position in which she was subject to a minimum of direction and supervi- sion) after a lifetime of hard work. Mrs. Foret, of necessity, was the principal witness for the Respondent and her reliability as a witness therefore is one of the material considerations in this case. Mrs. Foret is a highly emotional and excitable person. She revealed these personal characteristics on the witness stand and, according to the testimony of various wit- nesses, she also displayed these traits in her dealings with the employees whom she supervised. However, her testimony, although charged with the strength of her emo- tions, at all times impressed me as having been complete- ly sincere and honest. There was no hint of evasion or concealment in any of her answers whether given on her direct examination by the Company's attorney or on her cross-examination by General Counsel. Despite her in- terest and personal involvement in the events about which she testified, I am of the opinion that her testimony was truthful and reliable. The first witness for the General Counsel in this case was Raymond Anderson, a cook. His supervisor was head chef, Joseph Makefka.I Anderson was an unreliable witness. On his direct examination by General Counsel his memory appeared to be faulty and much of his testimony was given in response to leading questions or other prompting by General Counsel. There were some patent errors' in his testimony and some confusion as to the dates of the events about which he testified. His testimony, except about a single private conversation with Chef Makefka, concerned meetings of employees which were addressed by General Manager Biger or Makefka or Mrs. Foret. Presumably his testimony as to what was said at these meetings, if accurate, could have been corroborated by the testimony of other employees. Nevertheless,, no corroborative testimony was offered by General Counsel. For instance, Mae Bernard, who is one of the named discriminatees in this case and who was a witness at the hearing, was present at one of the meetings described by Anderson. Yet, when General Counsel ex- i Makefka, like Mrs. Foret, testified that he believed his job would become untenable if the employees under his supervision were to be represented by a union. 2 In his brief General Counsel asserts that while testifying at the instant hearing Raymond Anderson "was obviously intimidated by the presence of his bosses and completely overpowered by the vigorous cross-examina- tion of Respondent's counsel Scared and confused adequately describes Raymond Anderson " However, it was largely during the direct examina- tion by General Counsel that Anderson appeared to be frightened In an- swering the questions put to him by General Counsel he was hesitant to an extreme and spoke in a very soft voice By the time his direct examination 237 amined Mae Bernard he did not question her about the subject. As I find that Anderson was not a trustworthy witness, I do not credit his testimony to the extent that it conflicts with the testimony of Biger, Makefka, or Mrs. Foret.2 Anderson testified about certain events which an- tedated the limitation period of Section 10(b). Such testimony was adduced as background to demonstrate Respondent's opposition to the organization of its em- ployees. It is unneccessary to consider Anderson's testimony for such purpose because the testimony of former Manager Emmett Biger, Chef Makefka, and Mrs. Foret clearly reveals that they were hostile to the Union. Anderson testified about a speech that Manager Biger made at a meeting with the cooks and other kitchen help in September 1966, which was within the limitations period of Section 10(b). While I do not accept Anderson's version of the event, I find, based upon Biger's testimony, that some of the remarks made on that occasion were statutorily offensive. Biger testified that he told the em- ployees that "if the Union forced us into a fight in this campaign it left us no alternative but to fight." He also ad- vised the employees that "the minimum wage was coming into effect very soon and that we were hopeful of getting it approved, prior to the time that it would become effec- tive, which would be February 1, 1967.... [W]e felt that we would get an increase for them as we had previ- ously and that they did not need a Union to get these things for them, that we could do these things and that they would not have to have a Union." Biger's promise to "get an increase" for the employees in the context of his further remarks that "they did not need a Union to get these things for them" and that the Company was prepared to fight the Union "in this campaign" was calcu- lated not only to impress upon the employees the futility of seeking union representation but also to advise them in only loosely veiled terms that future benefits might de- pend upon their rejection of the Union in the pending or- ganizational campaign. Such remarks violated Section 8(a)(1) which "prohibits not only intrusive threats and promises but also conduct immediately favorable to em- ployees which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have that effect."3 Similarly, I find that the following remarks made by Chef Makefka to the cooks and other kitchen help about 2 weeks later constituted further violations of the Act: You have your increase in salary, and that the union didn't get it for you. We don't see no reason why you should join the union, because you got it without the union. You also have your five day week without the union.4 was completed, Anderson seemed to have gained composure and he dis- played normal self-assurance on his cross-examination s N.L.R.B. v Exchange Parts Co., 375 U.S. 405, 409. See also N.L.R.B v. Douglas & Lomason Company, 333 F.2d 510 (C.A 8); Brandenburg Telephone Company, 164 NLRB 825. 4 The above is quoted from testimony of Anderson which was not con- tradicted by Makefka. On another occasion Makefka remarked to various employees in the kitchen that "perhaps if the Union got into the hotel it would make my life so miserable that I would have to leave the hotel " Contrary to General Counsel, I do not deem this statement to constitute an unlawfully coercive threat 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Discharges of Elmira Pierre, Beverly Stewart, Yvonne Armstead, and Shelia Augillard Elmira Pierre, Beverly Stewart, Yvonne Armstead, and Sheba Augillard are young ladies who were hired by Mrs. Foret as busgirls in the hotel's coffee shop. Pierre and Stewart were discharged by Mrs. Foret on November 10, 1966, and Armstead and Augillard were discharged by Mrs. Foret on November 30, 1966. Each of these young ladies worked for Respondent between 2 or 3 months before their respective discharges. The evidence adduced at the hearing overwhelmingly establishes that they were thoroughly unsatisfactory em- ployees, incompetent in the performance of their duties on the floor of the restaurant, insolent to their supervisor, Mrs. Foret, and indifferent to their job responsibilitites. However, the issue is not whether there existed valid, legitimate reasons for their discharges, as to which no serious question can be raised, but whether they were discharged for such reasons rather than, as alleged in the complaint, because of their membership in and activities on behalf of the Union. The union activities of these four busgirls were minimal. They signed union authorization cards and Au- gillard testified that she attended a union meeting. There is no evidence that these facts came to the Company's at- tention. In addition, Armstead and Augillard wore union buttons on the day of the election. Augillard also testified that once, about November 15, 1966, she and other em- ployees and former employees carried a sign in the back of the hotel "about having fair wages. "5 General Counsel adduced evidence which purportedly establishes that Mrs Foret learned that they supported the Union. He ar- gues, in substance, that Mrs. Foret's opposition to the Union was so virulent that she promptly discharged each of them upon learning of their union sympathies. To support his argument that the Company, through Mrs. Foret in particular, was readily disposed to discharge employees who favored the Union, as well as to support certain of the 8(a)(1) allegations of the com- plaint, General Counsel, in his brief, refers to the follow- ing: 1. Irene E. Lane testified that, about October 1966, she and several other women spoke with a union organizer across the street from the hotel at which time she received a union card which she later signed. According to Lane, the next day Mrs. Foret "told me that I was fool- ing with that union, and that they weren't going to have a union in there . . . that they had fired girls there before, and there was going to be some more fired." Mrs. Foret denied making such statements. I credit Mrs. Foret's 5 Augillard testified that Pierre and Stewart also carried signs on that day. It would appear that this incident occurred after Pierre and Stewart had been discharged. 6 Contrary to General Counsel, there is no evidence that Lane was with the group of busgirls on this occasion ' The evidence shows that, for some considerable period of time during the Union's organizational drive , Washington stationed himself outside the employees ' entrance of the hotel and spoke with the employees on their way into the hotel and on their way out of the hotel Such activity on the part of Washington came to the attention of Mrs. Foret and other su- pervisors. However, while Mrs. Foret acknowledged that she knew that employees spoke with Washington, she denied that she had observed Pierre-speaking with Washington 8 Armstead testified that, prior to the election, at a meeting of busgirls held by Manager Biger, she complained to Biger that Mrs. Foret had been picking on her and that Mrs Foret had said to her that "after the Union was over and all of that mess , that she was going to be fired, and I was denial not only because I consider her to have been a credible witness but also because I find substantial parts of Lane's testimony to be fabrications which attenuate the reliability of the balance of her testimony. 2. Elmira Pierre testified that one morning she and other busgirls, including Augillard, on their way to work stopped to speak with the union organizer, Washington,6 and she observed Mrs. Foret standing in the doorway of the hotel. The same morning , according to Pierre, Mrs. Foret "told us that if we signed union cards and we was fooling with the union, she was going to get rid of us." This testimony was not corroborated by Augillard who was a witness for General Counsel at the hearing or by any of the other employees who allegedly were present on the occasion in question. Mrs. Foret denied that she had made the statement attributed to her by Pierre and also denied that she had observed Pierre speaking with Washington. I credit Mrs. Foret's denials.7 3. Shelia Augillard testified that on the day of the elec- tion she and six other female employees, including Yvonne Armstead, wore union buttons to work and, as they were getting ready to go onto the floor of the dining room, Mrs. Foret said to them that "she knows which ones to get rid of." Neither Armstead, who was a witness for the General Counsel at the hearing, nor any of the other employees, who allegedly were present, cor- roborated Augillard's testimony. I credit Mrs. Foret's denial that she made the statement attributed to her by Augillard.8 4. I do not credit Stewart's uncorroborated testimony, denied by Mrs. Foret, that Mrs. Foret said to a group of employees that "the Union was no good and if the Union would come in we have to work holidays, and that we didn't want any Union, because we didn't need a Union." Nor do I credit Augillard's testimony, also denied by Mrs. Foret, that on several occasions Mrs. Foret said to her "that the Union wasn't no good and only make us come to work earlier and wouldn't have an extra day off for being sick, or if we had somewhere important to go." 5. I credit the testimony of Pierre, Augillard, and Arm- stead that Mrs. Foret told them to avoid Mae Bernard because Bernard would try to influence them to vote'for the Union.9 Such instructions by the supervisor of the dining room, who was clothed with and exercised the authority to discharge employees, to avoid the Union's committeeman in their work area was to' intrude imper- missibly upon their organizational rights and constituted an implied threat of reprisal to employees who engaged in such organizational activity. Accordingly, I find that Mrs. Foret's direction to employees to avoid Mae Bernard vio- lated Section 8(a)(1) of the Act.10 going to be the first to go " This alleged threat, as testified to by Armstead, would seem to have been related to the employees' incompetence rather than to their union activities. Furthermore , Biger, who I find was a credi- ble witness, testified that Armstead did not say anything at the meeting in question to the effect that Mrs Foret had threatened to discharge em- ployees who were for the Union 0 Mrs. Foret testified, "I did tell a few of them, behave yourself, keep out of groups from around Mae Bernard , because the Company does not want it. They don't want you all in groups. It causes a lot of confusion in the dining room." As it was not uncommon for employees to talk with one another in the dining room, to have singled out Mae Bernard, who was the Union's com- mitteeman in the coffee shop , as a person to avoid was to suggest to the employees that the Company objected to their association with Bernard because of the prounion influence she might exert upon them. 10 The Lau Blower Company, 146 NLRB 1226, 1228, 1233, Remington Rand Corporation, 141 NLRB 1052, 1053-54 NATIONAL HOTEL COMPANY 6. Pierre and Armstead testified without specific con- tradiction that Mrs. Foret sought to persuade them not to sign a union card or to vote against the Union in the elec- tion because "all they do is take our money" or because "the union wasn't no good for us ... that they were going to tell us things that weren't right." Such statements, which reflect Mrs. Foret's opposition to the Union, are within the area of an employer's permissible campaign ac- tivity and do not violate the Act. In his brief General Counsel does not dispute that the four busgirls were unsatisfactory employees. However, he points out that their derelictions, according to Mrs. Foret's testimony, were continuous from the beginning of their employment. In effect, he asks why they had not been discharged earlier. Mrs. Foret's explanation was that she was experimenting with the use of female bus help and she was making a strenuous effort to train the girls she had hired with the hope that they would develop into satisfactory employees. In any event, each of the four was discharged within 90 days of her hire and before the completion of her probationary period of employ- ment. Thus, while the evidence indicates that there ex- isted much justification for earlier terminations of their employment, the fact that they were continued in the Company's employ for periods of from 2 to 3 months each does not suggest that Mrs. Foret or the Company found their work adequate despite their shortcomings. Pierre and Stewart were discharged on November 10, 1966. The busgirls were provided their meals by the hotel which they ate in the kitchen. They were required to remove the dishes which they used and to keep clean the area in the kitchen where they ate. On the morning in question, after she had received a complaint from a kitchen employee that busgirls had not removed their dishes after eating, Mrs. Foret told Pierre and Stewart to clear away the dishes. Pierre, who contended that she had taken away the dishes that she had used, refused to remove any dishes although instructed to do so several times by Mrs. Foret. Stewart complied with Mrs. Foret's instructions. Later the same day, during the busy lunch hour, several waitresses complained to Mrs. Foret that Stewart and Pierre had left the dining room and therefore the waitresses had to do their own bus work. Mrs. Foret checked the dining room and the nearby areas and could not find either Pierre or Stewart. She thereupon decided to discharge them." Mrs. Foret denied that the alleged union interest of Pierrce and Stewart in any way con- tributed to her decision to discharge these two em- ployees. Armistead and Augillard were discharged on November 30, 1966, the day after the election. During the lunch hour on that day several waitresses complained to Mrs. Foret that they were swamped with work and that the busgirls were not around. Mrs. Foret went to the dressing room in the back of the hotel where she found Armstead and Augillard sitting. Mrs. Foret thereupon discharged these two employees. I credit Mrs. Foret's testimony regarding the per- formance at work of the four busgirls and her reasons for discharging them. Despite Mrs. Foret's admitted an- tipathy towards the Union and despite any knowledge she 11 While they were working for the hotel Stewart and Pierre appeared to be close friends. They went to and from work together, and associated with each other while at work. Mrs . Foret was aware of this relationship 12 Despite conflicts as to details , the various witnesses who described the events which led to Bernard's discharge were in general agreement as 239 may have had of the union sympathies of these em- ployees, I find, as testified to by Mrs. Foret, that the four busgirls were discharged for cause and I further find that the General Counsel has failed to prove by a preponde- rance of the evidence that they were discharged because the Company suspected that they supported the Union. C. The Discharge of Irene Lane There is considerable divergence between the testimony of Irene Lane and Mrs. Foret as to what oc- curred on Lane's last day of employment. According to Mrs. Foret, in the early morning of February 5, 1967, be- fore the dining room was opened to its patrons, Mrs. For-et overheard Lane soliciting funds from other waitresses for the benefit of a cook who had been beaten and robbed the night before. Mrs. Foret advised Lane not to take up a collection because the waitresses did not earn enough to make contributions. Whereupon, Lane excitedly jumped up, made some intemperate remarks, and left the dining room. After changing into street clothes in the dressing room, Lane left the hotel. Mrs. Foret's version of the event was, in substantial part, cor- roborated by the testimony of other waitresses who were present on the occasion in question. On the other hand, no corroboration was offered in support of Lane's version of the event although there were other employees present at all material times. In addition, I am of the opinion that significant portions of Lane's testimony are fabrications and unworthy of belief. Accordingly, consistent with the testimony adduced on behalf of Respondent, I find that Lane was not discharged, as alleged in the complaint, but voluntarily quit her employment. Furthermore, I do not credit Lane's uncorroborated testimony that 1 or 2 weeks after the election Mrs. Foret said to her, "I'd better watch my step because they Were going to get me." D. The Discharge of Mae Bernard Mae Bernard began working as a waitress for the Respondent in May 1965 and was discharged on November 29, 1966, the day of the election. Bernard ac- tively supported the Union. This was known by the Respondent because, among other reasons, her name was included in the telegram which the Union on February 17, 1966, had sent to the Company listing its commit- teemen among the hotel's employees. There is no question concerning Bernard's competence. Manager Biger testified that she was a capable waitress. Bernard was discharged in consequence of an incident which took place in the morning of November 29.12 The decision to discharge Bernard was made by Harry Mais who is an executive and a special representative of the National Hotel Company, which operates 16 hotels in- cluding the Jung. In the performance of his business responsiblities Mais visited the Jung periodically. He pur- posely arranged for one of his visits to coincide with the election which was scheduled for November 29, 1966. About 10 a.m. on that morning Mais saw a dining room busboy deliver a sandwich with a banquet cover over it to one of the washermen in the laundry. Mais intercepted to what had happened. The summary of the incident described above, which reflects my conclusions as to what had occurred , is based upon my review and consideration of the testimony of all the witnesses who described the incident and also my evaluation of their respective reliabili- ty. 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the busboy, and accompanied him to the coffee shop where the busboy identified Mae Bernard as the waitress who gave him the sandwich. When questioned about the matter, Bernard acknowledged to Mais that she had or- dered the sandwich for the busboy and that she had not made out a guest check for the sandwich.13 Mais thereu- pon left instructions that Bernard and the busboy should be discharged. Mais testified that he knew that Bernard was active on behalf of the Union and that he had seen the telegram from the Union which included Bernard's name among the list of committeemen. He denied that this fact in- fluenced his decision to discharge Bernard. His testimony was that he discharged Bernard because she had violated the hotel rules and admitted doing so. He explained that pilferage is a serious problem at the Jung. Among other things, food disappears out of the kitchen. "And when I came up on this situation I had no recourse but to correct it immediately. The same would have been done re- gardless of whom the individuals were or what hotel it was at." Regarding the applicable rule, Mais testified that the bus help eat at a special table in the kitchen and that waitresses are not permitted to order food for the bus help. The rule described by Mais was not in writing. Bernard testified that she knew she was not permitted to give food away to other employees because "any restaurant has that rule." However, in a pretrial statement which she gave to the Board on January 16, 1967, she said "there was no company rule prohibiting waitresses from selling food to other employees, to my knowledge. . . . As a matter of fact, there is no rule prohibiting waitresses from giving away food to other employees." Contrary to Bernard, Mrs. Foret testified that the applicable rules are explained to all new waitresses. Among the rules she ex- plains to new waitresses is the rule against ordering, selling, or giving food to any employees of the hotel.14 Mrs. Foret's testimony was corroborated by the testimony of waitresses who were called as witnesses on behalf of the Respondent. Thus, Anna Cherry testified that, when she first began to work for the hotel, Mrs. Foret told her that "no food to go to the help without per- mission. You were to order nothing through those win- dows for any employees unless they had a guest check, I mean , an officer's check."15 Christina Nelson testified that at the time she was hired, the hostess (not Mrs. Foret) told her that waitresses were not supposed to order food for anyone except their customers and that we could be fired for violating the rule. Mary Moliason testified that when she began working for the Respondent it was explained to her that she was not supposed to order any food for any busboy or busgirl or for pantry or kitchen help and that she would be fired for violating the rule. Judy Ann Katz testified that when she began work- ing for the Respondent Mrs. Foret told her that "if you sell anything to any of the bus help or the waitresses ... to take out or to eat there, you automatically lose your job, you get fired."1e Finally, Aurora Weber, a rebuttal witness for the General Counsel, testified that she has t3 Bernard testified that she told Mais , "I ordered the sandwich for him I am getting ready to make the check now." 14 There is an exception which Mrs. Foret explains to the witnesses; namely, that certain officials are permitted to order food in the dining room but only if they have a special card which they are required to show to the waitress. 'S Anna Cherry testified that several times bus help asked her to order sandwiches for them and she merely ignored the requests. been a waitress for many years at various establishments and "it is against the hotel rules" to order food for busboys. She explained that "I am not supposed to order tood for busboys. I am not getting paid to serve a busboy." There is no dispute that Bernard had ordered the sand- wich, that the sandwich had been taken from the coffee shop and delivered to another employee by the busboy without payment having been made, and that Bernard had not yet prepared a guest check for the sandwich when she was questioned about the matter by Harry Mais. General Counsel, nevertheless, contends that the incident was not the motivating reason for Bernard's discharge. First, he points to the testimony of Biger who, in discussing the rule here in question, variously referred to it as a prohibi- tion against giving food away, as a prohibition against selling food to an employee, or as a prohibition against delivering food to employees without a guest check. From this alleged inconsistency, General Counsel argues that there was no rule prohibiting waitresses from selling food to bus help and that the so-called rule was fabricated by Respondent for the purposes of this case. However, this argument falls before the mutually corroborated testimony of the waitresses who were called as witnesses at the hearing,17 and who uniformly testified that there was a rule against selling, as well as giving, food to busboys. Furthermore, Aurora Weber, General Coun- sel's own witness, testified in effect that such rule is general at all hotels. The General Counsel's next argu- ment is that the entire incident involving Bernard was some type of trap which the Company set for her. How- ever, there is no evidence whatsoever to support this theory. While the discharge of an active union protagonist by an employer, who is firmly opposed to the organization of its employees, immediately before a scheduled represen- tation election is a suspicious circumstance, nevertheless, I find that the General Counsel in this case has not proved by a preponderance of the evidence that Mae Bernard was discharged because of her union activities or sympathies rather than for cause as contended by Respondent. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with Respondent's operations described in section I, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist 11 Katz testified that when she began working at the Jung, Bernard, in an effort to be helpful , described some of the rules to her and among the things Bernard told her was never to give a busgirl or busboy any food because they were not allowed to buy anything and a violation of the rule is a dischargeable offense. 17 The only waitresses who contradicted the testimony offered on be- half of Respondent regarding the rule were Bernard and Irene Lane. I do not credit their testimony in such respect. NATIONAL HOTEL COMPANY therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. 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 its em- ployees in the exercise of rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sec- tions 8(a)(1) and 2(6) and (7) of the Act. 2. Respondent had not engaged in any violations of the Act by reason of conduct alleged in the complaint to have constituted unfair labor practices except insofar as such conduct has been found hereinabove to have violated Section 8(a)(1) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby recommend that Na- tional Hotel Company operating the Jung Hotel , its of- ficers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Expressly or impliedly threatening its employees with loss of benefits if they join, assist, or support Hotel, Motel & Restaurant Employees Union, Local 166, AFL-CIO, or any other labor organization. (b) Expressly or impliedly promising its employees in- creases in their wages or other improvements in their con- ditions of employment to discourage them from joining, assisting, or supporting the above-named Union, or any other labor organization. (c) Expressly or impliedly threatening its employees with reprisals if they associate with persons, including other employees , who are known or thought to be ad- herents of the above-named Union , or any other labor or- ganization. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its Hotel in New Orleans , Louisiana, copies of the attached notice marked "Appendix." "' Copies of said notice , on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent , shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to in- 1s 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." 241 sure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.19 19 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: WE WILL NOT discharge any of our employees or reduce their wages or withdraw any employment benefits that they now have and WE WILL NOT withhold granting any wage increases or other benefits to any of our employees because they join, assist, or in any way support Hotel, Motel & Restau- rant Employees Union, Local 166, AFL-CIO, or any other labor organization. WE WILL NOT offer, promise, or grant wage in- creases to any of our employees in order to discourage membership in or support of the above- named Union, or any other labor organization. WE WILL NOT in any like or related manner inter- fere with, restrain, or coerce our employees in the ex- ercise of the rights guaranteed by Section 7 of the Act, which provides: Employees shall have the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall have the right to refrain from any or all such activities except as such right may be af- fected by an agreement requiring membership in a labor organization as a condition of employ- ment as authorized in Section 8(a)(3). NATIONAL HOTEL COM- PANY OPERATING THE JUNG HOTEL (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361.