The Ramada Inn

248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Denmac Corporation , d/b/a The Ramada Inn and Anna Marie Hawkins. Case 23-CA-2929 June 25, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On April 19 , 1968, Trial Examiner Paul E. Weil issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of the National Labor Relations Act, as amended , and recommending that the Respondent cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision . Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief. 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 brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner,' as modified. 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 orders that the Respondent, Denmac Corporation, d/b/a The Ramada Inn, Beaumont, Texas, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order, with the following modifications: 1. Insert the following as paragraph 2(b), and re- letter the remaining paragraphs as 2(c ), 2(d), and 2(e), vice 2(b), 2(c), and 2(d): ' Hawkins testified that she had been informed by a waitress sometime before December 28 that Respondent was in desperate need of waitresses We do not rely on Hawkins ' testimony as evidence of the fact of need, but only as an explanation for Hawkins ' specific application for employment on December 28 There is other evidence in the record to support the Trial Examiner's finding that waitress Billie Joe Litton left Respondent 's employ before December 28 and that Respondent did have need for another waitress "(b) Notify Anna Marie Hawkins, if presently serving in the Armed Forces of the United States, of her right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 2. Add the following immediately below the signature line of the Appendix attached to the Trial Examiner's Decision: Note: We will notify Anna Marie Hawkins, if presently serving in the Armed Forces of the United States, of her right to full reinstate- ment, upon application, in accordance with the Selective Service Act and the Universal Milita- ry Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On a charge filed January 12, 1968, by Anna Marie Hawkins, an in- dividual, the General Counsel issued his complaint on February 12, 1968, against Denmac Corpora- tion, d/b/a The Ramada Inn, hereinafter called Respondent, alleging that Respondent since December 28, 1967, has been in violation of Sec- tion 8(a)(1) and (3) of the Act by refusing to rehire the Charging Party because of her activities on behalf of the Union and because she engaged in other concerted activities. Respondent by its duly filed answer admitted the refusal to rehire Mrs. Hawkins but contended that its decision was reached for good cause rather than for the reasons alleged by the General Counsel. At the hearing held on March 18, 1968, at Beau- mont, Texas, all parties were present and had an opportunity to examine and cross-examine wit- nesses, adduce documentary evidence, and argue upon the record. At the close of the hearing the parties all waived oral argument and the filing of briefs. Upon the entire record in the case and from my observation of the witnesses, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation operating a motor hotel and restaurant in Beaumont, Texas, from which it annually receives gross revenue in ex- cess of $500,000. During the 12 months preceding the issuance of the complaint, Respondent purchased and received goods valued in excess of $1,000 shipped directly to it from points outside the State of Texas. During the same period in ex- cess of 75 percent of its gross revenues was received by Respondent from rental payments of 172 NLRB No. 25 THE RAMADA INN 249 guests at the motor hotel who resided there for periods less than I month . Respondent is, and at all times material herein has been , an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 750, Hotel, Motel, Restaurant and Club Employees Union, hereinafter called the Union, is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Background At all times relevant, in the operation of the Ramada Inn in Beaumont Respondent has em- ployed approximately 75 employees who worked in' the front office, as maids and custodial help at the hotel and as cooks, waitresses, busboys, and custodial help in the restaurant portions of the en- terprise. In July 1966 Ben H. Roberts was ap- pointed manager. In February 1967 the minimum wage law became applicable to Respondent's employees. The applica- tion of the law required that employees who received tips and gratuities in the course of their employment report such tips to management, ap- parently in whole or partial satisfaction of the minimum wage required to be paid them. Misun- derstanding and resistance to this requirement on the part of some of the employees led to strained relationships between some of the employees, par- ticularly the busboys and waitresses, and Manager Roberts. On March 18, 1967, the Union demanded recog- nition as the collective-bargaining agent of all Respondent's employees with the statutory excep- tions. A petition was filed and an election con- ducted pursuant to which the Union was certified as the collective-bargaining representative of the unit sought. The Charging Party was the Union's observer at the election and after certification of the Union became its business agent and a member of the negotiating committee. After extended and apparently hard negotiations a contract was ex- ecuted on December 8 by Respondent's president and by the president and the Charging Party, as secretary-treasurer, of the Union. The Alleged Violation Anna Marie Hawkins was an experienced waitress when she commenced work at Respon- dent's place of business on September 1, 1965. She worked until Thanksgiving Day, 1965, at which time she left to have a baby. The baby was born in May and when it was 2 weeks old Respondent's head waitress, Wilma Leger, called Mrs. Hawkins asking when she could come back. Miss Leger called again 2 weeks later and asked Mrs. Hawkins to come back for a few hours a day. She worked for several days and found that she had gone back to work too soon. Finally, she returned to work in June 1966. She continued working from then until on or about August 25, when she notified Manager Roberts that she was resigning because she had been offered a job as a manager. He said he was sorry to hear that she was leaving and she rejoined that he knew he was glad to see her leave because he had always considered her the leader of the Union. He answered, "I can't say that. I have al- ways considered you as one of my finest dining room waitresses." Mrs. Hawkins parted company with her new job after 5 days' employment. Thereafter she attempted to find work elsewhere and at some undisclosed time in November or December applied to Mrs. Gravatt, the manager, with her husband, of Respon- dent's restaurant at that time. Mrs. Gravatt told her that it was not necessary for her to fill out an appli- cation. Sometime prior to December 28, Mr. and Mrs. Gravatt were discharged. A waitress , Billie Joe Lit- ton,' left the Respondent's employ at the same time. One of the waitresses called Mrs. Hawkins and told her that they were desperately in need of waitresses and asked her to put in an application. On December 28, Mrs. Hawkins filled out an appli- cation which she got from Manager Roberts. Roberts said that he would put the application on file and give it every consideration. She told him that she needed to work and would work days, nights, or part time. Roberts answered that he would consider it. On January 2, Donna Hutchinson came to the Ramada Inn to make application. She did not ex- pect to be hired and apparently did not want to be hired but was required in order to continue drawing unemployment compensation to apply to at least three places. However, Roberts recognized her as a girl who had waited on him when he had stayed at another motel and told her to report to work the next day. At the time Roberts hired her he said something about backdating her application, and explained that "some of the members of the Union had filled out an application form and if she back dated it on her application it would come up before her's did." The application was never backdated. Mrs. Hutchinson testified that she thought that she would not be employed by Respondent because she understood it was a union shop. On the occa- sion of her hire Roberts asked her if she was union ' Possibly Billie Joe Linton , whose application is in evidence as Respon- dent's Exhibit 8 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and she told him she was not; that she would rather not work if she had to join the Union. He assured her that she would not have to do so. On January 17 according to the records of the Texas Employment Commission, Respondent, through its then restaurant Manager Taylor,' requested a waitress for a hotel restaurant to wait on tables and a counter. The Commission's record indicates that employees were referred on January 17 and 18, but that on the 22d none had yet ap- plied. On the 25th one applied and Respondent re- ported to the Commission that they might hire her. Finally, on the 31st, the first employee referred, Tommy Lou Wilcox, was hired. The order for em- ployees was then canceled. Manager Roberts first testified that he did not apply to the Texas Employment Commission for employees at any time after Hawkins had filed her application. Later he acknowledged that Taylor might have done so but that he didn't know about it and he stated that Taylor had the authority to apply for applicants in order to build up his file of appli- cations. With regard to Tommy Lou Wilcox he testified that she was hired to work in the club but not as a restaurant waitress. Manager Roberts testified that when Anna Marie Hawkins applied for her job he did not need a waitress. Thereafter he needed a waitress on Janu- ary 2 and Donna Hutchinson had meanwhile ap- plied. He testified that he weighed Anna Marie Hawkins against Donna Hutchinson and chose Hutchinson because "I couldn't get it out of the back of the mind that she [Anna Marie Hawkins] was some sort of a troublemaker. I had had trouble with her ever since February of 1967 ...." How- ever he also testified that the need for a waitress was occasioned by the fact that Billie Joe Litton had quit. He testified that she quit at the same time the Gravatts were discharged and he testified that the Gravatts were discharged prior to December 28. Accordingly it is clear that at the time Hawkins applied he needed a waitress but did not fill the job with Hawkins. When 5 days later Mrs. Hutchinson appeared he hired her without delay and advised her at that time that at some time in the future he would ask her to backdate her application.' Early in the proceeding Respondent appeared to contend that Roberts declined to rehire Mrs. Haw- kins because she had quit. He testified that as a matter of policy, "We just don't like to rehire peo- ple who have quit." However, it is clear that when Mrs. Hawkins quit Roberts himself contacted Ada Holmes, who had quit his employ earlier, to take Hawkins' place. Nell Prothro who also quit when she was married was rehired by Respondent. If in fact Respondent has any policy against rehiring em- ployees who quit, it apparently is a policy that is Y Roberts testified that Taylor was hired around February I or 15 He also testified that Taylor was hired a week or two after the departure of the Gravatts which occurred before December 28. At any rate it appears clear that Taylor was restaurant manager on January 17 honored more in the breach than in the observance except with regard to Mrs. Hawkins. I view Roberts' testimony that he did not reem- ploy Anna Marie Hawkins because she was a troublemaker as dispositive of the issue in- this case. He testified that the troublemaking that he had reference to was trouble with the busboys and the other waitresses who had apparently refused to fill out reports of their tips in February 1967. How- ever, he testified that Mrs. Hawkins never refused to fill out such report. Obviously he blamed her for their refusal. This in itself is indicative of the fact that it was the concerted activity of the busboys, the waitresses, and Mrs. Hawkins to which he had objection. Thereafter, it is clear that during the ex- tended negotiations for a contract attended both by Mrs. Hawkins and Manager Roberts no love was lost between them. While Roberts attempted to give the impression that there had been no trouble between Hawkins and him since February 1967, the following took place on his cross-examination by the General Counsel. Q. My question is, after these incidents relating to the minimum wage law, after that was straightened out, did you still consider her a troublemaker for her activities after that? A. I gave her very little-I stayed out of it as much as possible, and I had no reason to con- sider that she was giving me any trouble at that time. Q. So at this time, then, you do not consider her a troublemaker, during the period after February or March of '67. Is that correct? A. Once a troublemaker-no, I didn't have any more trouble with her after that. I do not credit Respondent's Manager Roberts. His attempt to leave an impression that there was no job opening when Mrs. Hawkins applied con- tradicted both by his own testimony and by that of Mrs. Hawkins, as well as by the date of her applica- tion, is obviously false. The false start in the last answer quoted above, I find very illuminating. While due to his evasive answers it is at times dif- ficult to deduce his rationale for not hiring Haw- kins, to the extent that it can be deduced, it appears to boil down to four separate points: First, there was no job available when she applied. This is con- tradicted as I have set forth above. Second, he had a policy not to rehire employees who had quit, which appears to be disproved by Respondent's own evidence. Third, no one else was hired, other than Mrs. Hutchinson against whom Hawkins did not compare favorably. But the record reveals that while Roberts himself may not have hired other em- ployees his restaurant manager hired at least two and had, in fact, a call to the State Employment Commission for a period of at least 5 days during ' I do not credit Roberts' equivocal testimony with regard to his conver- sation with Mrs. Hutchinson, and I credit Mrs Hutchinson 's account THE RAMADA INN 251 which he appears to have needed a waitress. Roberts testified that the girl hired as a result of that call went to work in the club, which was obvi- ously run by the motel under his ultimate supervi- sion. It also appears that Glenda Hutchinson was hired either on a full- or part-time basis during January, and worked as a waitress initially. Finally, Roberts' characterization of Mrs. Hawkins as a troublemaker was an obvious reference either to her engaging in concerted activity prior to the ad- vent of the Union or to her activities on behalf of the Union. I believe in view of Roberts' testimony that Mrs. Hawkins was a thorn in his side as the spokesman for the Union. I believe that in the last answer quoted above he started to say "once a troublemaker always a troublemaker." It was no mere reference to an occurrence almost a year be- fore that caused him to refuse to hire her on December 28. Accordingly, I find that Respondent violated Section 8(a)(1) and (3) of the Act by the refusal to hire Anna Marie Hawkins on December 28. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent 's operations described in section I, above , have a close, intimate , and substantial rela- tionship 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 the Respondent failed and refused to hire Anna Marie Hawkins in violation of Section 8 (a)(1) and (3) of the Act, my Recom- mended Order will provide that Respondent cease and desist from such violations of the Act and that it offer Mrs. Hawkins employment as a waitress and make her whole for any loss of pay she may have suffered as a result of the refusal to hire her by pay- ment of a sum of money equal to that which she would have earned as wages from the date of Respondent's refusal to hire her to the date of Respondent's offer of employment less her net earnings during such period, computed quarterly, with interest in accordance with the formulae prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Because the earnings of waitresses are in part derived from tips and gratuities from customers the computation of backpay shall include the computa- tion of the sum of money reasonably to be expected in that form.4 I note that such computation should not be difficult in view of the fact that waitresses are apparently required to provide statements of tips to Respondent from which such earnings may be deduced. Payroll and other necessary records in possession of Respondent are to be made available to the Board or its agents to assist in such computa- tions. 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. Respondent is engaged in commerce within the meaning of Section 2(6) and (7)of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to hire Anna Marie Hawkins because of her concerted activity and because of her union activity, Respondent has discriminated against employees in violation of Section 8(a)(3) of the Act and has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act thereby engag- ing in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER The Respondent, Denmac Corporation, d/b/a The Ramada Inn, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to hire employees or otherwise dis- criminating in regard to the hire and tenure of em- ployment or any term or condition of employment because they have engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to discourage member- ship in any labor organization. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of their right to engage in or to refrain from engaging in any or all of the activities specified in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Anna Marie Hawkins employment as a waitress at its Beaumont, Texas, facility and make her whole for any loss of pay she may have suffered by reason of Respondent's refusal to hire her in the manner set forth in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports and all 4 Holiday Inn of Charleston, 147 NLRB 693 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other records necessary or useful to determine the amount of backpay due under the terms of this Recommended Order. (c) Post at its Beaumont, Texas, facility copies of the attached notice marked "Appendix. "I Copies of said notice, on forms provided by the Regional Director for Region 23, shall be posted by the Respondent after being duly signed by its represent- ative, 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 insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' 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." 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to hire any applicant for employment or otherwise discriminate in re- gard to hire, tenure of employment, or any term or condition of employment of any of our employees because they have engaged in con- certed activities for the purpose of collective bargaining or other mutual aid or protection or in activities on behalf of any labor organiza- tion. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their right to engage in or to refrain from engaging in any or all of the ac- tivities specified in Section 7 of the Act. WE WILL offer Anna Marie Hawkins im- mediate employment as a waitress at the Ramada Inn and will pay her backpay to reim- burse her for the wages and tips she lost as a result of our refusal to hire her. DENMAC CORPORATION, D/B/A THE RAMADA INN (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4296.