Statler Hilton Hotel

HILTON HOTELS CORP. 197 Hilton Hotels Corporation d/b/a Statler Hilton Hotel and Carpenters' District Council of Washington, D.C. & Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 5-CA-4984 the statement "Keder produced a copy of the Board's Regulations and referred to Section 103," should be corrected to read "Section 102 " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE September 17, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On May 26, 1971, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereaft- er, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 recommendations 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 recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Hilton Hotels Corporation d/b/a Statler Hilton Hotel, Washington, D.C., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. I We hereby correct the following inadvertent errors in the Trial Examiner's Decision Under sec If, C. Francisco's Layoff, the statement "The layoff [of Francisco 1 was made abruptly, with no advance notice, 2 days before the scheduled election," should be corrected to read "2 days before the representation case hearing"; and under sec 11, D, 1. The Facts, JOSEPHINE H. KLEIN, Trial Examiner: This case was tried in Washington, D.C., on February 5 and March 2 and 3, 1971, on a complaint issued against Hilton Hotels Corporation d/b/a Statler Hilton Hotel, Respondent, on December 18, 1970, pursuant to a charge filed by the Carpenters District Council of Washington, D.C. & Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union) on November 27, 1970. The charge and the original complaint alleged principally that an employee had been discriminatorily terminated in violation of Section 8(a)(3) and (1) of the Act' on November 23, 1970. The original complaint also alleged one incident of unlawful interrogation violative of Section 8(a)(1) in November 1970. Another such allegation was added by amendment at the hearing. At the opening of the hearing, on February 5, 1971, the complaint was amended to add allegations of further violations of Section 8(a)(1) by conduct of Respondent's counsel and a supervisor on February 1 and 3, 1971, allegedly designed to interfere with the present proceeding. All parties were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and after the hearing the General Counsel and Respondent filed briefs. Upon the entire record, observation of the witnesses, and consideration of the briefs, the Trial Examiner makes the following: FINDINGS OF FACT 1. PRELIMINARY FINDINGS A. The complaint alleges, the answer admits, and the Trial Examiner finds that Respondent, a Delaware corporation, operates a hotel enterprise in Washington, D.C. In the course and conduct of its business, Respondent received in excess of $500,000 in gross revenues in the preceding 12 months, a representative period. Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. B. The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Chronology Wellington J. S. Francisco was hired by Respondent as an apprentice carpenter at $2.75 per hour around the t National Labor Relations Act, as amended (61 Stat 136, 73 Stat. 519, 29 U.S C Sec 151 et seq ) 193 NLRB No, 31 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD beginning of October 1970. At that time, there were two carpenters employed at the hotel- Giuseppe (Joe) Rotella2 and Farris Rafeedie. The carpenters are in Respondent's Rehabilitation Department, which includes other categories of workers, such as painters and paperhangers, wallwashers, carpet men and a seamstress.3 Mr. Tommie Izumi is rehabilitation manager In a letter dated October 16, 1970, addressed to Respondent's building superintendent, Mr. William Dar- lington, Local 99 of the International Union of Operating Engineers stated that unless Rotella paid that Union's initiation fee and dues by November 10 the Engineers Union would demand his discharge under the union- security provision of its collective-bargaining agreement. Darlington gave the letter to Rotella. Rotella belonged to the Carpenters Union and did not want to join or be represented by the Operating Engineers. He felt that as a carpenter not qualified as an engineer he could not secure any significant assistance from the Engineers Union should he ever be in need of ajob Rotella consulted Izumi and was assured that he had nothing to worry about. Izumi said that Darlington, not being Rotella's supervisor, could not discharge him; that if Darlington did undertake to discharge Rotella, Izumi would immediately have him reinstated. Izumi said he would look into the matter and speak to Rotella again shortly. A few days later, having received no further word, Rotella informed Izumi that he intended to seek the advice of Mr. Charles E. Menges, organizer for the Carpenters Union. Rotella testified that Izumi asked Rotella if he was the only carpenter who wanted the Carpenters' Union, to which Rotella replied that Rafeedie and Francisco would also sign for that Union. When Izumi said that he believed Rafeedie belonged to the Operating Engineers Union, Rotella replied, that Rafeedie, after thinking the matter over, had decided he preferred the Carpenters Union and was withdrawing from the Engineers. Izumi denied that either Rafeedie or Francisco was mentioned. Rotella then consulted Menges, who visited the hotel several times.4 He filed a representation petition with the Board on November 9, 1970. The petition was supported by authorization cards executed in November. The Union made no bargaining demand. About a week later, Rotella and Izumi discussed the matter again. Izumi asked Rotella what wages the carpenters would get under a Carpenters Union contract. Rotella replied that wages would be a matter for negotiation, but "probably it will be about $4.50 an hour." At that time Rotella was getting $4 an hour,5 Rafeedie, $3.71, and Francisco $2.75. Izumi then asked if Rotella was furthering the Carpenters Union solely because of the higher wages, to which Rotella answered that he wanted to be represented by the Union for both higher wages and better working conditions. 2 It is unnecessary at this point to resolve the dispute among the parties as to whether Rotella was a supervisor within the meaning of the Act 3 Although apparently under the supervision of the rehabilitation manager, some of these employees are in the housekeeping department for payroll purposes 4 There was some evidence that Menges had also visited the hotel in On November 20 a notice was issued of a representation hearing to be held on Wednesday, November 25. At the end of business on Monday, November 23, Francisco was laid off. The reason assigned for the layoff was a decline in business. The representation hearing was indefinitely postponed and on November 27 the Union filed the present charge alleging Francisco's layoff as violative of the Act.6 On December 18, the Regional Director issued the present complaint and notice of a hearing to commence on February 5. Shortly after the complaint was issued, Francisco received backpay forms from the Board. At Rotella's suggestion, Francisco, armed with unexecuted forms, visited Izumi and, for at least the third time, requested reinstatement. Francisco volunteered to refrain from returning the backpay forms to the Board if he was reinstated. Izumi consulted Mr. Richard C. Nelson, Respondent's General Manager, and Francisco was reinstated, returning to work on or about January 11, 1971. On Monday and Wednesday, February 1 and 3, 1971, Francisco was interviewed by Joel I. Keiler, Esquire, Respondent's counsel, in Izumi's office, with Izumi present and participating to some extent. The amendment of the complaint made on February 5 alleges that certain conduct by Keiler and Izumi in these meetings violated Section 8(a)(1), in tending to interfere with the present proceeding. B. Interrogation of Rotella The amended complaint alleges that on November 5 Izumi questioned Rotella "concerning the Union sympa- thies, affiliations and activities of other employees" and on November 18 "concerning the Union and his membership in, activities on behalf of, and adherence to the Union." Izumi denied having questioned Rotella. Further, Respon- dent maintains that Rotella was a supervisor and therefore could lawfully be questioned. In the Examiner's opinion, it is unnecessary at this point to resolve the conflict between Rotella and Izumi or to determine Rotella's supervisory status, since the General Counsel's evidence fails to establish coercive interrogation. As shown above, the conversations in November were initiated by Rotella because of his displeasure at the attempt of the Operating Engineers Union to bring him within the union-secunty provision of its collective-bar- gaining agreement. Rotella volunteered that he was a member of the Carpenters Union and did not want to join the Engineers. In the conversation on November 18, Rotella also volunteered that he was going to consult Menges, the Carpenters organizer. On November 5 when Rotella first consulted him, Izumi reacted by assuring Rotella, in effect, that he would not be forced into the Engineers against his will. But Izumi could not so readily support Rotella's wishes if Rafeedie and Francisco, the other two carpenters, wanted to be represented by the Operating Engineers. It appears that July when the Engineers Union had also attempted to bnng Rotella under its contract 5 Respondent's payroll records show Rotella's rate as $3 9983 The testimony was that he received $3 71 per hour plus $50 per month 6 Francisco's discharge was the only conduct specified. However, the charge also contained the catchall phrase "by other acts and conduct." HILTON HOTELS CORP. 199 Rafeedie was a member of the Engineers Union and Izumi was aware of that fact at least by November 18. Thus, Izumi, faced with the Engineers claim to jurisdiction over the carpenters and Rotella's resistance thereto, had a reasonable and legitimate interest in knowing the desires of the two other employees potentially affected. The atmosphere of the conversations was friendly, with Izumi trying to help Rotella maintain his preference for the Carpenters over the Operating Engineers Union. There is not a scintilla of evidence that Izumi suggested any hostility to the Carpenters Union. Indeed, Izumi, who apparently had been in the United States only a relatively short time, was manifestly unknowledgeable as to labor matters. So far as appears, he has no role in Respondent's labor relations matters, which are conducted through a hotel association. Although it may literally be said that Izumi's asking if Rotella was the only carpenter who wanted the Carpenters Union was "designed to permit ascertainment of the identity of the employees and their support of the union," 7 Izumi had a reasonable, noncoercive purpose in seeking the information. Under the circumstances, it cannot be said that the questions attributed to Izumi by Rotella would tend to interfere with, restrain, or coerce employees in the exercise of their rights under Section 7 of the Act. According to Rotella, in one of the conversations in November, Izumi asked Rotella what carpenters' wages would be under a Carpenters Union contract and thereafter asked whether Rotella s preference for the Carpenters Union was based solely on the prospect of obtaining higher wage increases through that Union. Rotella answered, presumably truthfully, that he was interested in both higher wages and improved working conditions. The matter ended there, with the two men apparently as friendly as ever. Rotella had previously disclosed his membership in the Carpenters Union and his feeling of identification as a carpenter and lack of community of interest with engineers. On the facts here presented, including the absence of any evidence of prior animus against the Carpenters' or any other union, it cannot be found that Izumi coercively interrogated Rotella in November 1970. Accordingly, it will be recommended that the complaint be dismissed so far as it alleges such interrogations as violative of the Act. C. Francisco 's Layoff Francisco started to work as an apprentice carpenter for Respondent on October 6, 1970. At or about 3:40 p.m. on November 23, Rehabilitation Manager Izumi, after a meeting with General Manager Nelson, informed Francis- co that "management" had decided to lay Francisco off, effective immediately, because of a decline in business. At the time, a hearing was scheduled for November 25 on the representation petition which the Union had filed on November 9. At the present hearing, the General Counsel attempted to establish that Respondent sought to abort the representa- tion proceeding by reducing to one the number of carpenters eligible to vote. The General Counsel's apparent theory was that Respondent discharged Francisco so as to leave only Rafeedie and Rotella, who Respondent claimed was ineligible as a supervisor. The evidence at the hearing, however, established without doubt that Francisco was not discharged but rather was only laid off. According to both Francisco and Izumi, at the time, Izumi "guaranteed" Francisco's recall as a carpenter at the earliest opportunity. Thus, Francisco would presum- ably have been eligible to vote in a carpenters' election on November 25, despite the layoff action of November 23. Filler Products, Inc., 159 NLRB 1536, 1554, enfd. in part, 376 F.2d 369 (C.A. 4). But, while Respondent maintains that Francisco was laid off, not discharged, it does not refer to his continued employee status in refutation of the General Counsel's theory. On cross-examination, after considerable fencing and equivocation, General Manager Nelson admitted that he had been "vaguely" briefed by counsel and that "perhaps [counsel ] may have mentioned" that the Board would not conduct an election for a one- member bargaining unit. That Respondent's counsel considered the Board's policy concerning one-employee bargaining units sufficiently relevant to discuss with Nelson certainly suggests that Respondent believed Francisco's layoff on November 23 would render him ineligible to vote in a carpenters' election. But in his brief, the General Counsel does not expressly contend that Respondent's specific motivation was a desire to avert an election by disenfranchising Francisco. He concludes his argument on this phase of the case by saying that "Francisco's sudden termination was due either wholly or in substantial part to his union activity and Respondent's desire to destroy or severely undermine the Union's strength." Respondent contends that no finding of discriminatory layoff can be made because the General Counsel has failed to establish that Respondent knew of Francisco's Union sympathies or activities and there is an absence of any evidence that Respondent harbored any union animus. Affirmatively, Respondent maintains that the layoff was purely economic, based on a decline in business. Despite Izumi's denial, the Examiner credits Rotella's testimony that in November he told Izumi that the three carpenters all favored the Carpenters' Union. Basically, in view of the circumstances leading Rotella to consult Izumi, it would appear natural, if not inevitable, that the wishes of the other carpenters would be discussed. Further, observa- tion of the witnesses and analysis of their testimony leads the Examiner to discredit Izumi wherever his testimony conflicts with Rotella's. There were significant inconsisten- cies and equivocation in Izumi's testimony. For example he testified that it was he, in consultation with Nelson, who selected Francisco for layoff. However, at the time, he told Francisco and Rotella that the decision had been made by "management" and, in effect, that Izumi was carrying out orders which he was powerless to influence. In attempted explanation of the inconsistency, he testified that he "is management." But throughout the rest of his testimony he used the word "management" to refer to high-echelon personnel, whom he once identified as General Manager Nelson and Resident Manager Dalani. Although, as a native of Japan, Izumi has some difficulty with the English 7 See Cannon Electric Co, 151 NLRB 1465, 1470, citing Bourne v N L R B, 332 F 2d 47,48 (C A 2) 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD language, he engaged in somewhat sophisticated semantics before finally conceding that counsel had told him not to allow union organizer Menges to meet the employees on Respondent's premises. On the other hand, there are no substantial deficiencies in the testimony of Rotella, to whom English is also a second language . Additionally, as contended by the General Counsel, the smallness of the group involved supports an inference of employer knowl- edge of the status of union activity. N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 110 (C.A. 2), remanded 395 U.S. 828; N.L.R.B. v. Mid State Sportswear, Inc., 412 F.2d 537, 539 (C.A. 5); Big Town Super Mart, Inc., 148 NLRB 595, 606-607. To be sure, as Respondent argues, there is no evidence of a history of union animus on the part of Respondent, which maintains collective-bargaining relationships with several other unions. However, the absence of such general union animus is not itself conclusive. For example, it is conceivable that Respondent specifically opposed the Carpenters Union to avoid potential difficulty with the Operating Engineers, which had claimed jurisdiction over the carpenters. While not necessarily improper Keiler's advice to Izumi concerning Menges' visits to the hotel suggests some hostility to the Carpenters Union.8 The layoff was made abruptly, with no advance notice, 2 days before the scheduled election. It came at the end of business on Monday, although, in testifying concerning Francisco's reinstatement Izumi indicated that personnel actions are generally made effective at the beginning of a week. Francisco testified similarly concerning his original employment. In addition, Rotella credibly testified that in 1967 an employee was given 2 weeks' notice of a proposed layoff and he knows of no subsequent layoff without notice. In view of Nelson's testimony that decisions to have layoffs are usually made on the basis of projections, it would appear reasonable that some advance notice would be feasible. Indeed, Nelson's testimony suggests that advance notice is frequently given. He testified that because the hotel business is seasonal, economic layoffs are frequent. When an economic layoff is proposed, he speaks to his department heads and asks each of them to cut his staff by any possible means, including requests that employees "take voluntary leave of absence over a holiday period." Nelson does not generally impose departmental quotas or participate in the selection of persons or positions to be eliminated. In the present case, however, he actively participated in the selection of Francisco for layoff. Nobody was asked to take a "voluntary leave of absence." Respondent offered no explanation of the departure from Nelson's usual practice. Presumably to establish the necessity for layoffs, Nelson testified that the hotel's gross revenues in November 1970 were $631,586, as against $818,505 in November 1969. Whatever probative value these figures might have standing alone, (without comparison of other months and trends and without gross profit and similar data), they are essentially 6 "Q Did Mr Keller instruct you to do anything if Mr Menges appeared at the hotel again9 A He's not my instructor, he don't tell me nothing You're asking me, he instructed No. Q Did he tell you anything9 A No. . Oh, I see Mr Keller said, 'This is hotel's property' immaterial in view of Nelson's further testimony that the layoff "resulted from a phone call [Nelson] received from [his] senior vice president, who had a call from the West Coast, indicating that all the hotels were experiencing adverse business and to look at each department carefully and make any cutbacks that he possibly could." Nelson testified that there were layoffs in other departments, but he provided no details as to the number or identity of the persons laid off or as to the savings realized. Although he testified that he had received his telephonic instruction "about in the middle of November," he made no attempt to show the temporal relationship between the call and any of the layoffs. Nelson also testified that the layoffs were dictated in part by the fact that the hotel's "convention forecast" showed "a slow December coming up." Yet he also testified that he "assumed" the banquet department hired employees in December "if they had an attrition of personnel." He did not apparently make any effort to arrange temporary transfers of employees from other departments to the banquet department. Francisco, on his own initiative, secured employment in the banquet department, where he had worked sometime before on a part-time basis. If, as Respondent maintains, Rotella was required to spend a large part of his time on supervisory and administrative work, Francisco's layoff left Respondent with only one full-time operating carpenter while retaining three painters and two paperhangers. According to Nelson, a carpenter was chosen for layoff rather than a painter or paperhanger because decoration must continue despite vacancies and guest rooms could be painted while vacant during the anticipated December lull. When later confronted with the fact that the Washington Hilton had laid off a painter and a wall washer, retaining three carpenters, Izumi attributed the disparate conduct to the relative age of the two buildings, the Statler being some 30 years old, the Washington Hilton being only about 6. However, the explanation is not entirely convincing since paint and wall covering generally seem to deteriorate at the same rate in old and new structures, while one might expect that the amount of necessary carpentry repairs would increase with advancing age. Nelson also testified that the painters were needed to work on some remodelling work which was done by outside carpenters under contract in November and December. No details were given as to the amount of such painting. It does appear that Respondent's own carpenters did about 40 to 50 hours of work on this remodelling in December. According to Francisco and Rotella, when Francisco was laid off there was a considerable backlog of carpentry work, caused in part by Rotella's absence from June 4 to August 17 because of an injury. Rotella credibly estimated the backlog on November 23 at between 100 and 150 orders. Payroll records for the weeks ending October 3, 1970, through January 16, 1971, submitted by Respondent, do not establish any decline in carpentry work as compared with painting and paperhanging. And he say if he wants to meet the carpenters, he should see them outside, not on the working hours, not on the premises . That's the only thing he told me He didn't instruct me, no." HILTON HOTELS CORP 201 Nelson also testified that there had been layoffs in July 1970 because of declining business. Nonetheless, Izumi was then actively looking for an apprentice carpenter to hire. His search was unsuccessful until Francisco appeared on the scene late in September. At that time Izumi assured Francisco of steady work. Izumi had at all times been extremely pleased with Francisco's work. It appears unlikely that, with carpenters so difficult to find, Respon- dent would risk permanently losing Francisco's satisfactory services because of a seasonal decline in business, particularly where, as the evidence establishes, Respondent retained a wall washer who Rotella and Izumi agreed was unsatisfactory and whom Rotella had recommended discharging on several occasions. The abruptness and timing of Francisco's layoff "are persuasive evidence as to the motivation." N.L.R.B. v. Montgomery Ward & Co., 272 F.2d 497, 502 (C.A. 2), cert. denied, 355 U.S. 829) and establish a prima facie case of discriminatory discharge, placing on Respondent "the burden to come forward with an adequate explanation." N. L. R. B. v. Standard Container Co., 428 F.2d 793, (C.A. 5) Respondent's evidence is insufficient to meet this burden. On all the evidence, the Examiner concludes that Francisco's layoff was motivated by Respondent's desire to prevent the Union's becoming the collective-bargaining representative of the carpenters. The layoff therefore violated Section 8(a)(3) and (1) of the Act. D. Respondent 's Trial Preparation 1. The facts Laid off by Respondent's Rehabilitation Department on November 23, Francisco went to work for Respondent's Banquet Department on December 10. After working there a while on a full-time basis on the day shift, he transferred to part-time work on the night shift while working days as an apprentice carpenter with a construction company. When the construction company job ended, he reverted to full-time work on the day shift with Respondent's banquet department, where he worked a few days until his return to the rehabilitation department in January 1971. Around December 3, Francisco asked Izumi for rein- statement and Izumi replied that business was still down. Francisco applied again around December 10 and, after consulting Nelson, Izumi gave Francisco the same answer. Sometime around the end of December, Francisco obtained backpay forms from the Board's Regional Office. At Rotella's suggestion, Francisco thereafter visited Izumi and volunteered to refrain from returning the backpay forms to the Board if Izumi would reinstate him. Francisco, Izumi, and Rotella all believed, mistakenly, that the backpay forms constituted a charge or "backpay claim." After speaking with Nelson, Izumi informed Francisco that he was being reinstated as of the next Monday, January 11. Francisco went back to work in the rehabilitation department at that time, with his hourly wage rate increased from $2.75 to $3. On Monday, February 1, Francisco was called to the rehabilitation office, where in the presence of Izumi, he was interviewed by Joel I. Keiler, Esquire, Respondent's counsel. Keiler testified that he had Francisco called for the interview because Izumi said that Francisco was in favor of Respondent's position and would probably be a coopera- tive witness. At the outset of the meeting, Keiler said that he was preparing for the hearing scheduled for February 5 and would like to question Francisco. Keiler clearly stated that Francisco's answering questions was voluntary and there would be no rewards for cooperation or reprisals for refusal to talk. Francisco said that he was willing to answer any questions because he was not afraid of the truth. Keiler said he would like to have a written statement and assured Francisco that his signing a written statement, like his orally answering questions, would be voluntary, with neither rewards nor punishments for signing or refusing to sign. Keiler wrote Francisco's statement; Francisco read it, noted corrections, initialed changes, and signed. There is no question that Francisco was advised and fully understood that his participation and cooperation in this interview were entirely voluntary. Keiler and Izumi testified that Francisco said that he did not want to attend the hearing and that, after being reinstated to hisjob, he had asked the Union and the Board to drop the case. Although Francisco was recalled as a rebuttal witness after Keiler and Izunu had testified, he did not deny having made the statements so attributed to him. The Examiner finds that Francisco expressed his personal preference not to appear at the hearing in support of a backpay order, the only affirmative remedy possible under the complaint. Izumi then asked Francisco why he planned to attend the hearing in view of his prior promise to Izumi not to pursue the backpay claim. Francisco replied that he had kept his promise by refraining from executing and returning to the Board the backpay forms he had previously shown Izumi. Francisco indicated that the pending case was "the Union's" and beyond his control. Francisco further indicated that he was going to attend the hearing in effect because he was required to. Keiler confirmed Francisco's statement that the proceeding had been initiated by the Union rather than Francisco. Keiler then asked if Francisco had received a subpoena. When Francisco replied in the negative Keiler stated that Francisco need not appear at the hearing because it was then too late for valid service of a subpoena, the Board Regulations providing for service at least 5 days before the required appearance. Keiler and Izumi told Francisco several times that it was up to him whether to attend and testify at the hearing and that nothing could happen to him because he chose to appear or not to appear. At the meeting on February 1, Keiler asked Francisco about his Union activities. Francisco disclosed that he, together with Rotella and Rafeedie, had spoken with a Board agent at the Union hall. According to Francisco, Keiler then asked "what it was all about" and Francisco replied that the Board's lawyer had asked the three employees for the same information Keiler was seeking. Keiler denied having asked more than "what government attorneys were doing at the union hall talking to him." Whatever his precise words, their effect was a general question concerning the meeting of the employees with Board representatives at the Union hall. He did not pursue 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the matter with inquiries as to specific questions asked by the Board agents or as to the employees' answers. When Francisco said that the Board agents inquired about the same questions that Keller was asking, Keller said he hoped the employees had told the Board agents the truth. Francisco volunteered the information that in one or two matters, relevant to Rotella's supervisory status, Francis- co's and Rotella's expressed views were somewhat different. Francisco also disclosed that he was scheduled to talk to a Board agent that evening, February 1. Keiler advised him that he was not legally required to meet with Board representatives and that whether he chose to or not was entirely up to him. The evidence establishes that Francisco did then confer with a Board representative. He informed the Board attorney of his interview with Keller, including Keller's statement that Francisco could not now be subpoenaed for the hearing because he was entitled to at least 5 days' notice. The Board attorney said that Francisco would be required to honor a subpoena even if served as late as an hour before the commencement of the heanng and that if he failed to honor it he could be forcibly brought to the hearing by a United States Marshal. Francisco was served with a subpoena, apparently at the meeting on the evening of February 1, although there is no direct evidence to this effect. Francisco met with Izumi and Keller in Izumi's office again on February 3. Izumi testified that Francisco asked for an interview with Keeler and Keller testified that he saw Francisco in response to Izumi's statement to that effect. Francisco, however, denied that he had asked to see Keiler. Francisco testified that he was summoned to the February 3 meeting by Izumi. The Examiner finds Francisco to be a conscientious, accurate, and credible witness. Crediting Francisco over Izumi, the Examiner finds that Francisco did not request the second interview with Keeler. However, it does appear that Francisco informed Izumi of the receipt of the subpoena. It is reasonable to assume that Francisco also told Izumi of the Board attorney's forceful statements concerning the compulsory nature of the subpoena and expressed his "confusion" over the conflicting advice of the two attorneys. Izumi apparently freely and wishfully translated Francisco's bewilderment into a request for further enlightment by Keeler. At the meeting on February 3, Keiler asked to see the subpoena Francisco had received. Upon examining it, Keeler first noted that it misstated the courtroom in which the hearing was to be held.9 When Keeler repeated his previous advice that Francisco need not honor the subpoena because served less than 5 days before the hearing, Francisco told him of the contrary advice he had received from the Board's attorney. To support his statement that the Board attorney was wrong, Keiler produced a copy of the Board's Regulations and referred to 9 Apparently the subpoena called for appearance at the United States Tax Court Courtroom No I (Room 2132 of the Internal Revenue Service Building), whereas the hearing was held in Courtroom No 2 (Room 2142 of the I R S Building) The notice of heanng had specified Courtroom No I and it does not appear when or how Keller learned of the change 10 Sec 10231(b) reads in part "Any person served with a subpena, whether ad testificandum or duces tecum, if he does not intend to comply with the subpena, shall , within 5 days after the date of service of the Section 103, which he both read aloud and had Francisco read for himself.10 Francisco asked what a "revoke" was and Keller replied that it was a paper telling the court why a person should not be required to appear and testify. Francisco said that he did not know what to do since he was "confused" by the conflicting legal opinions of the Board's and Respondent's counsel. Keller testified that Francisco then asked Keeler if he would prepare a petition to revoke the subpoena if Francisco wanted him to, and Keller said he would. Francisco indicated that Keller had taken the initiative in offering to prepare such a petition upon Francisco's request. Whichever man first mentioned the possibility of Keiler's preparing the petition, the evidence is undisputed that Francisco asked Keiler for his business card for use if Francisco wanted to have a petition prepared. Keiler wrote his home telephone number on the card because Francisco said he might want to call that night, apparently after a further meeting he was to have with a Board representative. Izumi and Keller again said that it was up to Francisco whether he attended the hearing or not. Francisco said that he felt obligated to testify because he had promised the Board's representative that he would . Izumi again remind- ed Francisco of his earlier promise not to pursue the claim for backpay upon reinstatement. Keiler opined that Francisco made too many promises and said that whether he kept his promises was purely a matter of his own conscience. In the course of the meeting Francisco said "that the whole thing was a big trouble" to him and it gave him "a lot of headaches." Keller said that Francisco's trouble was caused by the Union's filing the charge. Keiler also asked if the Union had offered Francisco any inducement for proceeding with the case and suggested that the Union might have offered Rotella some benefits for his favorable testimony. Francisco summarily rejected both suggestions. Francisco said that he had thought the present case "was to get the union in." Keller, on his part, advised Francisco that a Union victory would not necessarily achieve a speedy contract. He observed that the Mayflower Hotel still had no contract 6 or 7 months after an election. At both meetings, in response to Francisco's questions, Keller said he was confident that Respondent would win this case. Keeler indicated his belief that the hotel could lose only if witnesses lied. He added that perjury was punishable by imprisonment. Francisco asked why Respondent was so concerned about his appearance at the hearing if Keiler was as confident of victory as he professed to be. Keiler replied that Respondent's concern stemmed from the cost of defending, which was greater than the amount of backpay involved. For his part, Francisco also expressed disinterest in the backpay, which amounts to relatively little. subpena upon him, petition in writing to revoke the subpena ... The trial examiner or the Board, as the case may be, shall revoke the subpena if in its opinion the evidence whose production is required does not relate to any matter under investigation or in question in the proceeding or the subpena does not describe with sufficient particularity the evidence whose production is required , or if for any other reason sufficient in law the subpena is otherwise invalid." HILTON HOTELS CORP. 203 2. Discussion a. General observations The amended complaint contains three paragraphs alleging misconduct by Keiler and one alleging misconduct by Izumi in the pretrial meetings with Francisco. In his brief, the General Counsel argues that the February 1 and 3 meetings were generally coercive. He then proceeds to discuss specific examples of allegedly "per se" coercive interrogation and concludes with a contention that through these meetings Respondent interfered with Board processes by attempting to induce Francisco not to appear and testify at the hearing. Basically, the General Counsel attempts to evaluate Respondent's conduct against the ground rules set forth in the Johnnie's Poultry Co, 146 NLRB 770, 774-775, enfd. denied on the grounds, 344 F.2d 617 (C.A. 8), as follows: Despite the inherent danger of coercion therein, the Board and courts have held that where an employer has a legitimate cause to inquire, he may exercise the privilege of interrogating employees on matters involv- ing their Section 7 rights without incurring Section 8(a)(1) liability The purposes which the Board and courts have held legitimate are of two types: the verification of a union's claimed majority status to determine whether recognition should be extended .. . and the investigation of facts concerning issues raised in a complaint where such interrogation is necessary in preparing the employer's defense for trial of the case. ... the Board and courts have established specific safeguards designed to minimize the coercive impact of such employer interrogation. Thus, the employer must communicate to the employee the purpose of question- ing, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees. When an employer transgresses the boundaries of these safeguards, he loses the benefits of the privilege. In defining the area of permissible inquiry, the Board has generally found coercive, and outside the ambit of privilege, interrogation concerning statements or affi- davits given to a Board agent. For such questions have a pronounced inhibitory effect upon the exercise by employees of their Section 7 rights, which includes protection in seeking vindication of those rights free from interference, restraint, and coercion by their employer. Moreover, interrogation concerning employ- ee activities directed toward enforcement of Section 7 rights also interferes with the Board's processes in carrying out the statutory mandate to protect such rights... . The principles, so lucidly enunciated, are not always easy ii Rotella's eligibility could properly be determined in the representa- tion proceeding i2 The Union had not demanded recognition and thus there could be no to apply. The total context must be taken into account. Significant in the present case is the ambivalent position in which Francisco had been placed. He had solicited the agreement with Izumi for reinstatement in return for a waiver of any backpay. In utter good faith, Izumi accepted the proposal. Neither of the men, who are not natives of this country, had any reason to believe that their amicable arrangement would not end the matter. Francisco himself testified that he thought his reinstatement ended the matter and that the continued proceeding was for the purpose of getting the Union in as bargaining representative. For his part, Izumi understandably believed that continuation of the proceeding would constitute a disho- norable breach of his word by Francisco. Thus, the Examiner credits Izumi's and Keller's testimony indicating that Izumi thought Francisco would be a friendly witness for Respondent and that Francisco wanted to have the case dropped and would prefer not appearing and testifying at the hearing. It would undoubtedly be out of order for the Examiner to express any opinion as the administrative judgment of the General Counsel in proceeding with the present case after the parties primarily concerned had reached an amicable agreement and, according to Francisco's own testimony, Keeler had unequivocally acknowledged Francisco's eligi- bility to vote in the election.ii But the salient facts are that Francisco did not want to proceed with a Section 8(a)(3) charge on his behalf, his only affirmative desire apparently being to bring the Union in, a result which could not be achieved in the present proceeding.i2 While the peculiar facts in this may not render the Johnnie's Poultry standards inapplicable, they must be considered in determining the ultimate question whether Respondent's conduct was coercive or tended to interfere with Board processes. The General Counsel's specific contentions will now be considered in the light of the underlying situation. b. Izumi As amended at the beginning of the hearing, the complaint alleges that on February 3, Izumi "interrogated ... Francisco about his motivation for appearing and testifying at the hearing . . . in order to persuade him not to appear and testify." Francisco credibly testified that Izumi asked Francisco why he was going ahead with the matter after having promised not to "make the charge." The General Counsel argues that Izumi's question impermissibly sought to elicit information as to Francisco's "subjective state of mind" within the strictures enunciated by the Board. Johnnie's Poultry Co., supra. In the Examiner's opinion, the Board's rule cannot be so automatically invoked . There is no basis for inferring that Izumi's question was calculated to elicit information concerning protected activity or useful in opposing the Union . One might be surprised if, under the circumstances, Izumi had failed to indicate some conster- nation or puzzlement at Francisco's apparent disregard of the promise he had voluntarily made. With Francisco's Section 8(a)(5) allegation No request was ever made for a bargaining order based on the alleged violations of Section 8(a)(i) and (3) And the present record certainly would not support any such remedy. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD having made it clear that he did not want a claim and that the case was causing him great "headaches" any person in Izumi's position would wonder why Francisco actually was going ahead. After Keller confirmed Francisco's statement that the Union rather than Francisco was pursuing the matter, Izumi apparently asked no further questions. At no time did Izumi ask or advise Francisco not to appear, even though Francisco's testifying might well cause Izumi some loss of face. Along with Keiler, Izumi several times told Francisco that it was entirely up to him whether to appear or not. Izumi did, however, refer several times to Francisco's prior promise not to make any claim for backpay. There can be no doubt that such reminders would tend to dissuade Francisco from appearing. There is no doubt that, as the General Counsel maintains, "the act of seeking to persuade an employee to forego participation in a Board proceeding constitutes interference, restraint or coercion within the meaning of Section 8(a)(1) of the Act." Alterman Transport Lines, Inc., 127 NLRB 803, 804; The Duplan Corporation, 139 NLRB 1028, 1034-1036. But not every attempt to influence an employee not to participate in a Board proceeding requires a remedial order. Frontier Homes Corp., 153 NLRB 1070, 1074, enfd. in part, 371 F.2d 974 (C.A. 8). If Francisco felt under pressure because of Izumi's reference to their agreement, the pressure was caused by his conscience at furthering action which he had agreed not to take. As an obviously honorable man, Francisco was sorely tried by having to repudiate, in spirit if not literally, a bargain he had initiated and which Izumi had not only performed but even overperformed by granting a wage increase which had not been part of the bargain. Under the circumstances, to hold Izumi's reminding Francisco of a promise given and accepted in good faith was "coercive" or otherwise unlawful would be to dehumanize the law inexcusably. On all the evidence, the Examiner finds that the General Counsel has not established that Respondent violated the Act by Izumi's conduct on February 1, 1971 c. Keller The evidence is undisputed that Keiler gave Francisco the required assurances and that Francisco's participation in the conferences was completely voluntary.13 Further, it cannot be said that the interviews were conducted in a context of employer hostility to union organization. Francisco had already been fully reinstated and there is no evidence of general hostility to unionization on the part of Respondent. It is undisputed that Respondent has collec- tive-bargaining relations with about eight other unions and, as previously stated, from the beginning Izumi had been sympathetic to Rotella's preference for membership in the Carpenters' Union. 13 In a footnote in his brief, the General Counsel says "No assurances against reprisals were given to Francisco prior to the second interview" The record does not affirmatively so establish The second meeting concerned Francisco's appearance at the hearing and the subpoena he had received There was no contradiction of Keder's testimony that on this occasion he also said to Francisco "Whether you want to go or not, that is Nor is there any merit to the General Counsel's contention that Izumi's presence infused a "coercive coloration" into the meeting. On the contrary, Francisco and Izumi were apparently on very good terms; Izumi had never indicated any hostility to the Union, and Izumi had been responsible for Francisco' s reinstatement at an increased wage rate. Although a supervisor, Izumi was, in the labor relations situation, a subordinate, and his presence would, if anything, tend to give comfort to Francisco in the face of Keiler's somewhat authoritarian position and manner. Izumi's presence might have embarassed Francisco because of their previous gentle- men's agreement, but this could scarcely constitute the "coercive coloration" found significant in N.L.R.B. v. Neuhoff Bros. Packers, Inc, 375 F.2d 372 (C.A. 5); Automotive Warehouse Distributors, Inc., 171 NLRB No. 101; and Hickman Garment Co., 184 NLRB No. 103, cited by the General Counsel. On February 1, Keiler asked Francisco if he had signed a Union card and engaged in any other Union activities. In reply, Francisco said that he, Rotella, and Rafeedie had all signed cards. The General Counsel contends that such questions, even though accompanied by assurances against rewards or punishment, were violative of the Act because "totally irrelevant to the preparation of Respondent's defense." The General Counsel's argument proceeds: While it is true that in an 8(a)(3) case it is necessary to establish that the alleged discriminatee engaged in some union activity, the burden of proving this essential element rests with the General Counsel and not with the Respondent. Moreover, Respondent's potential defense to an 8(a)(3) allegation would be lack of any knowledge of union activity which it could easily discover from its own supervisors.. . In the Examiner's opinion, the General Counsel's position has no merit. Where, as here, a complaint alleges that an employee was terminated "because of his member- ship in, assistance to, or activity on behalf of the Union," it would be difficult to conceive of a question more relevant to a defense than the alleged discriminatee's Union activities. Respondent should not be relegated to exclusive reliance on testimony by company representatives that they did not know of such union activities, since, as the General Counsel here argues, the Company witnesses are subject to possible impeachment and disbelief and knowledge of union activities is often found on circumstantial evidence, including the smallness of the plant. If the Respondent's right to interview employees is to have any meaning, it certainly must cover at least the matters specifically alleged in the complamt.i4 Accordingly, the Examiner finds that Respondent did not violate Section 8(a)(1) by Keiler's asking Francisco if he had signed a union card. Keller also asked Francisco who had talked to him about the Union card. Francisco replied that he had received the card from Union Organizer Menges but had signed only up to you " 14 Respondents cannot be restricted to the matters relevant to "affirmative defenses," since the burden of proof is on the General Counsel and respondents are often found to have violated Section 8(a)(3) even when they established legitimate grounds for alleged discriminatory action HILTON HOTELS CORP. 205 after discussing the matter with Rotella. There is no apparent revelance of this question to the present complaint, which alleged only Francisco's termination and one incident of interrogation. In the absence of clearly demonstrated relevance (Madison Brass Works, Inc., 161 NLRB 1206, 1211) questioning employees "as to the identity of persons from whom they received union authorization cards . . . goes beyond the permissible limits set by the Board and is coercive in nature." Dixie Cup, Division of American Can Co., 157 NLRB 167, 168. See, also, Retail Clerks International Association v. N. L. R. B., 373 F.2d 655, 658 (C.A.D.C.); Sullivan Surplus Sales, Inc., 152 NLRB 132, 134; Texas Industries Inc., v. N. L. R. B., 336 F.2d 128, 133 (C.A. 5); N.L.R.B. v. Buddy Schoellkopf Products, Inc., 410 F.2d 82, 88 (C.A. 5). The General Counsel contends that Keller unlawfully questioned Francisco concerning the content of interviews conducted by a Board attorney with the three carpenters. Francisco's version of the matter was that Keiler asked if Francisco had attended any Union meetings, to which Francisco replied in the negative. Francisco's testimony continued: And I told [Keiler] that I have been in a meeting in the Carpenter Union Building, but there wasn't the union people,just a lawyer from the Government. He asked me what it was all about. I told him that they asked me the same information he [Keiler] was asking at the moment. And he say who else had been there? "Joe and Mr. Rafeedie." And at that moment, he asked . . . what the lawyer asked Joe and Faris And I say, "The same questions make to me." And I also told him that I feel-I feel that for me somethings that Joe say is not exactly how I think, concerning about the supervisor, concerning about he is a supervisor or not, if he is or not a supervisor Keiler's version was: I asked him if he had any other union activities that we might know about. And he said he was over at the union hall one night talking to Government attorneys. And I asked him what Government attorneys were doing at the union hall talking to him, and he said it had to do with the trial. And I said, "I hope you told the truth." And he said, "Yes, I told the truth, but Rotella didn't.. To the extent that these two versions differ, the Examiner credits Francisco. None of the evidence indicates that Keiler took the initiative to find out about interviews with Board agents, or pursued the matter to obtain detailed information concern- ing the subjects covered, or attempted to advise Francisco as to the "proper" answers to Board inquiries. Thus, the present case is factually distinguishable from Sinclair Glass Co., 188 NLRB No. 33, TXD; Texas Industries, Inc, 139 NLRB 365, 367, enfd . in pertinent part, supra, at 133-134, on which the General Counsel relies. However, "the Board has generally found coercive, and outside the ambit of privilege, interrogation concerning statements in affidavits given to a Board agent." Johnnies Poultry Co., supra. It is of the utmost importance that no conduct be sanctioned which might tend to discourage employees from seeking the Board's assistance in vindicat- ing their Section 7 rights. Thus, while Keiler's conduct at the February 1 meeting was not egregiously improper, the Examiner concludes that he did step beyond permissible bounds by asking Francisco questions related to the employee interviews with Board agents.15 The General Counsel next maintains that Keiler violated the Act on February 1 by asking Francisco if he was going to attend the hearing. According to the General Counsel that question was an impermissible inquiry into Francisco's "state of mind." This argument, however, at best, substitutes verbalism for reality. Keiler was at the time preparing to defend against the complaint. As he testified in answer to questions by the General Counsel, it would be "very helpful in preparing his defense to know whether Francisco would testify since "if he wasn't going to be at the hearing, it is a whole different case." 16 Since, as previously found, Francisco made clear his desire to be rid of the matter and he had not been subpoenaed, it would be reasonable for Keiler to ask if Francisco intended to appear. This did not constitute delving into Francisco's "subjective" thoughts about the Union or any of the substantive matters involved. The Examiner holds that Keiler's question in this regard did not amount to coercive interrogation in violation of Section 8(a)(I). Next the General Counsel argues that on February 3 Keiler "pried into union matters not relevant to" the case when he asked if the union had offered Francisco anything for appearing and suggested that the Union might have promised Rotella "a foreman's job for testifying. Although Keiler testified that he "didn't think anything" he said on February 3 "was disparaging" of the Union, the Examiner will assume that, as Francisco testified, Keiler did raise the speculative possibility that the Union had attempted to "buy" Francisco's and Rotella's cooperation in the present proceeding. Though such comments or questions may not have been in the best of taste or very gentlemanly, they cannot be said to be irrelevant to Respondent's defending itself against the complaint. A virtually inevitable issue was the veracity of Rotella and Francisco. Impeachment of them would be perhaps Respondent' s most effective defense. The General Counsel's major contention is that Keiler, with Izumi, attempted to interfere with Board processes by persuading Francisco not to appear at the hearing. According to the General Counsel, Keiler's misconduct consisted primarily of his "erroneously" advising Francisco that he was not obliged to honor the subpoena and offering to prepare a petition to revoke the subpoena if Francisco so desired. There can be little question that Respondent would have preferred that Francisco not appear at the hearing. But 15 The Examiner is sympathetic to Respondent's counsel's "duty to his balance must be struck in favor of employees' uninhibited recourse to the client to discover as best he could what evidence might be available to the Board Union to support its charge and thus available to General Counsel to 16 In answer to Francisco's questions, Keiler had disclosed his intention support a complaint" Walker's, 159 NLRB 1159, 1178 However, the to move for dismissal of the case if Francisco did not appear 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's preference does not establish that it improp- erly attempted to persuade Francisco to absent himself. There is no dispute that Keiler advised Francisco that he did not have to appear without a subpoena issued at least 5 days before the hearing. According to the General Counsel, this view was erroneous. N.L.R.B. v. Strickland, 220 F.Supp. 661 (W.D. Tenn.), affirmed 321 F.2d 811 (C.A. 6). Respondent, on the other hand, maintains that "Keiler's remarks were merely a short-hand statement of the rights [under Section 102.3 of the Board's Regulations] of a witness who is served with a Board subpoena." Keiler also agreed to prepare a petition to revoke the subpoena if Francisco wanted one. There is no suggestion that Keiler knowingly or intentionally misstated the law. Even if we assume that the Strickland case is controlling and conclusive, it cannot be said that the expression of an erroneous legal opinion is per se an unfair labor practice. The General Counsel appears to contend, however, that Keiler violated the law by undertaking to give any legal advice to Francisco. On cross-examination by the General Counsel, Keiler was asked how many times he had told Francisco that it was up to him whether to appear at the hearing. The following colloquy ensued: A. Approximately three times, each time. Because he kept saying over and over, how he wanted to drop the thing, how he was involved, he was caught in the middle, how he told Mr. Menges to drop it, how he and Rotella and Rafeedie had gone to the Board to try to get them to drop it. And he must have said that to me at least three times, each time, and each time, I told him the same thing, "Whether or not you go is up to you." I did not volunteer that to him. Q. You don't consider this volunteering? A. No. When somebody says he doesn't want to go, and does he have to go, I don't consider it volunteering to say, "If you want to go, you can go. And if you don't want to go, you don't have to go." Q. Why didn't you tell him to call up the Board agents, the Board attorney, to find out if he had to go? A. Because I worked for the Board for four and a half years, and I know Board agents and Board attorneys give a lot of rotten advice. In partial defense of Keiler's acerb answer, it will be recalled that a Board agent had threatened Francisco with virtual arrest upon his failure to honor a subpoena.17 So far as appears, the Board attorney did not mention the possibility of a petition to revoke the subpoena or the need for a court order before the authority of a federal marshal could be invoked. 18 The inescapable fact is that Francisco was being used as a it To his credit, Francisco, an honest and idealistic young man, testified that the threat of a federal marshal was less important than the fact that he had given Board agents his word that he would attend the hearing ie The record in this case casts shadow on the footnote in the General Counsel's brief reading "As an admitted former Board attorney, Keller was well aware of the fact that as a witness for the General Counsel, any inhibitions about testifying Francisco might have had, and all the legal ramifications attendant thereto, would have upon a simple inquiry been developed with him by qualified representatives of the Board 's Fifth Region " 19 The General Counsel suggests that Keiler may have been guilty of a breach of the ABA Code of Professional Responsibility , DR 7-104, which pawn by antagonists. Nobody apparently was prepared to advise him in the light of his personal interests. At the hearing, he indicated that he was interested in the case because he thought it was the vehicle for securing Union recognition. So far as appears, nobody attempted to correct this misapprehension. In view of his good-faith bargain with Izumi, initiated by Francisco himself, it was not in his personal interest to appear in support of the present complaint. Under the circumstances, the General Counsel, representing the public interest, was in no better position to advise Francisco than was Respondent's counsel.19 In the Examiner's opinion, the present case is governed by The Babcock and Wilcox Co., 114 NLRB 1465, 1466-1467, in which the Board held nonviolative an employee's attorney's giving a reluctant employee witness advice on how to avoid honoring a Board subpoena. It is not necessarily an unfair labor practice for an employer to furnish legal advice to employees concerning Board subpoenas. Bryant Chucking Grinder Co., 160 NLRB 1526, 1564, enfd. 389 F.2d 565 (C.A. 2); Bauer Aluminum Co., 152 NLRB 1360, 1367, enf. denied on other grounds sub nom. Republic Aluminum Co. v. N.L.R.B., 374 F.2d 183 (C.A. 5). The present case is factually distinguishable from Winn- Dixie Stores, Inc., 128 NLRB 574, Smith & Wesson, 174 NLRB No. 152, and Sunshine Art Studios, Inc., 152 NLRB 565, on which the General Counsel relies. In none of those cases had the subpoenaed employees initially indicated any desire not to testify. And in Winn-Dixie the supervisors "used veil[ed] threats to intimidate [the employees] into ignoring the subpoenas." CONCLUSIONS OF LAW 1. By interrogating an employee concerning the source of the Union authorization card he signed and concerning employees' interviews with representatives of the Board, Respondent interfered with, restrained, and coerced employees in the exercise of their rights under Section 7, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By laying off employee Wellington J. S. Francisco on November 23, 1970, and failing to reinstate him until January 11, 1971, Respondent discriminated in regard to hire and tenure of employment in violation of Section 8(a)(3) and (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 4. The General Counsel has not established that Respondent has engaged in any unfair labor practices other than those specified above. states. "During the course of his representation of a client a lawyer shall not . . [g live advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client." The Examiner makes no finding as to the applicability of that rule to any counsel in this case Nor does the Examiner express any opinion concerning possible transgressions of other rules See, e g , DR 7-106(c)(3) and (6) The Examiner's sole function was to hear and decide an unfair labor practice complaint. Contravention of accepted standards of professional conduct is not necessarily violative of the National Labor Relations Act. HILTON HOTELS CORP. 207 THE REMEDY Having found that Wellington J. S. Francisco was discriminatorily laid off, but that he has been fully and properly reinstated, the Examiner will recommend that he be made whole for the loss suffered by the layoff, backpay to be computed in accordance with F W Woolworth Co., 90 NLRB 289, with 6 percent per annum interest, in accordance with Isis Plumbing and Heating Co., 138 NLRB 716. Having further found that Respondent unlawfully interrogated an employee, the Examiner will recommend the customary cease-and-desist and notice-posting reme- dies. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner hereby issues the following recommended. ORDER 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. (d) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.21 IT IS FURTHER ORDERED that the complaint herein be dismissed insofar as it alleges violations of the Act not specifically found herein. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 2i In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 5, in wasting, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " Respondent, Hilton Hotels Corporation d/b/a Statler Hilton Hotel, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees concerning the source of Union authorization cards or concerning employee interviews with, or statements made to, agents of the National Labor Relations Board. (b) Discouraging membership in Carpenters' District Council of Washington, D.C. & Vicinity, United Brother- hood of Carpenters and Joiners of America, AFL-CIO; (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Carpenters' District Council of Washington, D.C. & Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, or to engage in any other concerted activity for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the National Labor Relations Act. 2 Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Make Wellington J. S. Francisco whole for any loss of pay he may have suffered by reason of his layoff by Respondent's rehabilitation department on November 23, 1970, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision, (b) Preserve and upon request make available to the National Labor Relations Board or its agents, for examination and copying, all records necessary for the determination of the amount of backpay due under the Order herein; (c) Post on its premises copies of the attached notice marked "Appendix." 20 Copies of said notice, on forms provided by the Regional Director for Region 5, shall, after being signed by a representative of the Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial, in which the parties had the opportunity to present their evidence, the National Labor Relations Board has found that we, Hilton Hotels Corporation d/b/a Statler Hilton Hotel, violated the National Labor Relations Act and has ordered us to post this notice; and we intend to abide by the following: WE WILL NOT ask employees who gave them Union authorization cards. WE WILL NOT question employees concerning interviews they had or statements they made to agents or representatives of the National Labor Relations Board. WE WILL NOT discourage membership in Carpenters' District Council of Washington, D.C. & Vicinity, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discriminating against any of our employees in regard to hire and tenure of employment or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act (except to the extent that such rights may be affected by an agreement requiring membership in labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended). WE WILL pay Wellington J. S. Francisco for the earnings he lost because of his layoff by our rehabilita- tion department on November 23, 1970, plus 6 percent interest. HILTON HOTELS CORPORATION D/B/A STATLER HILTON HOTEL (Employer) 208 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Federal Building, Room 1019, Charles Center, Baltimore, Maryland 21201, Telephone 301-962-2822.