Holiday Inn of Henryetta

410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Okla-Inn, d/b/a Holiday Inn of Henryetta and Retail Clerks Union, Local No. 73, Retail Clerks Interna- tional Association, AFL-CIO. Cases 16-CA-4085, 16-CA-4277, and 16-RC-5537 July 26, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 8, 1972, Trial Examiner Benjamin B. Lipton issued the attached Decision in this proceed- ing. Thereafter, the Resondent filed exceptions and 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 authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, and to adopt his recommended Order. 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 Okla-Inn, d/b/a Holiday Inn of Henryetta, Henryetta, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. IT IS FURTHER ORDERED that the election held in Case 16-RC-5537 on February 11, 1971, is hereby set aside and the petition filed in that case is hereby dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON, Trial Examiner: Cases 16-CA-4085 and 16-CA-4277 involve a consolidated complaint by the General Counsel' against the Respon- dent alleging numerous independent acts of coercion, discriminatory terminations of 16 named employees, and a refusal to bargain, in violation of Section 8(a)(1), (3), and (5) of the Act. In Case 16-RC-5537, pursuant to a Decision and Direction of Election issued by the Regional Director on January 19, 1971, after hearing, a Board election was conducted on Feburary 11, 1971, in an I The original charge in Cases 16-CA-4085 and 16-CA-4277 were filed, respectively, on August 20, 1970, and February 16, 1971, with service on Respondent by registered mail on the same dates In both cases , amended charges were filed and served on various subsequent dates The consolidat- ed complaint thereon was issued on May 26, 1971 appropriate unit consisting essentially of all regular employees of Respondent at its Henryetta motel. At the election, of 48 ballots cast 10 were for the Union, 19 were against the Union, and 19 were challenged.2 As apparent, the challenges are sufficient in number to affect the outcome of the election. In addition, timely objections were filed by the Union.3 On May 26, 1971, the Regional Director issued his formal report on the objections and challenges, finding that they raised substantial and material issues of fact, and ordering consolidation of the complaint and representation cases for the purpose of hearing before a Trial Examiner. In substance, the objections to the election are coextensive with the complaint allegations. From October 18 through 21, 1971, a hearing in the consolidated proceeding was held before me in Okmulgee, Oklahoma. All parties participated in the hearing and were afforded full opportunity to present relevant evidence, examine and cross-examine witnesses, and to argue orally on the record at the close. Briefs filed by each of the parties have been carefully considered. Upon the entire record in the cases, and from my observations of the demeanor of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. JURISDICTION Okla-Inn, Inc., d/b/a Holiday Inn of Henryetta, herein called the Respondent, operates and maintains a transient motel in Henryetta, Oklahoma. This is the sole facility directly involved herein. During a recent annual period preceding issuance of the consolidated complaint, Respon- dent received revenues from the operation of the Henryetta facility in excess of $350,000, and purchased goods directly in interstate commerce valued in excess of $50,000. During the same period, Lindo Corporation, which operates the Holiday Inn of McAlester (Oklahoma), received revenues from such operation valued in excess of $490,000. In the Decision and Direction of Election, supra, it was found that Lindo Corporation and Respondent constitute a single-integrated enterprise, or single employer, for juris- dictional purposes, and that their combined gross revenues on an annual basis are in excess of $500,000, sufficient to satisfy the Board's applicable retail standard for assertion of jurisdiction. Thereafter, Respondent's request for review, upon consideration by the Board, was denied. At the outset of the hearing herein, Respondent presented a motion for reconsideration of the jurisdiction finding made in the representation case. This was denied. Respondent admits the factual allegations in the complaint, does not dispute the underlying facts relied on in the prior case, but challenges only the legal conclusion reached therein. It did not allege or offer before me any newly discovered or other evidence not available in the earlier hearing, or assert any reason for a different jurisdictional conclusion in the 2 Among the challenged ballots are those cast by 15 of the alleged discmmmatees in the complaint cases J Encompassing alleged interference by Respondent between September 4, 1970, when the petition was filed, and the date of the election 198 NLRB No. 68 HOLIDAY INN OF HENRYETTA present case. In the circumstances, I consider myself bound by the previous holding of the Board based on a fully litigated record on the issue.4 Accordingly, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and within the established jurisdictional criteria of the Board. II. THE LABOR ORGANIZATION INVOLVED Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Principal Questions Presented Under Section 8(a)(1), whether Respondent engaged in coercive interrogations, threats of reprisal, surveillance, and creating the impression of surveillance, all relating to the union activities of the employees. Respondent denies these alleged violations. Under Section 8(a)(3), (a) whether Respondent refused to reinstate 10 maids upon their stated unconditional applica- tion after they concertedly ceased work (on July 8, 1970) 5 and have since continuously picketed Respondent's prem- ises. Respondent contends that the maids had actually "quit" their employment and were not engaged in a strike or concerted activity; that, alternatively, their strike activity was unprotected because they were protesting the discharge of a supervisor; that their application to return to work was not unconditional; and that they were, in any event, permanently replaced. (b) Whether Respondent terminated five employees (on September 12 and 14), in whole or in part, because they joined or assisted the Union. Respondent defends generally on the ground that these employees were reduced in force as a result of a seasonal slack in business. In addition, it asserts that certain of these employees were selected for reduction for reasons, e.g., relative inexperience as waitresses, inefficiency in work performance, and misconduct on the job. (c) Whether Respondent discriminated against DeLois Porter, a desk clerk, by transferring her to a less desirable work shift and making further adverse changes in her working conditions. Respondent contends that the transfer was necessitated for economic reasons, and that particular restrictions were placed upon Porter because she had engaged in certain misconduct at work. (d) Whether Respondent terminated Porter because of her activity or sympathy for the Union. Respondent states that she was discharged for engaging in certain improprieties affecting the reputation of its manag- er and of the motel. Under Section 8(a)(5), the essential issue raised is that of a refusal to bargain on evidence that a majority of the unit employees signed union authorizations preceding the election-with emphasis placed on the Gissel cases to justify a bargaining order based on the extensive unfair 4 E.g., Checker Cab Company, etc., 153 NLRB 651; Thunderbird Hotel. Inc., 149 NLRB 362. 5 All dates hereafter are sequentially in 1970 and 1971, unless otherwise specified. 6 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. 411 labor practices allegedly committed by Respondent. This allegation is likewise denied by Respondent. B. Walkout of the Maids 7 Under the supervision of the housekeeper, Eunice Burke, some 11 maids were regularly employed in cleaning, laundry, and related functions. Initially, after the inn was opened in May 1968, they were required to clean 12 rooms in a period of 8 hours and to stay longer if necessary to complete the work. Thereafter, following each raise they were granted, as required by the Federal minimum wage law, the number of rooms per day was increased. Thus, in February 1970, their quota was enlarged to 15 rooms per day. On March 1, the maids and Housekeeper Burke held a meeting in the laundry room; the maids not working that day were notified and, apparently, all maids were in attendance. Fred Braasch, the manager, was later called into the meeting. Various grievances were voiced concern- ing their working conditions. A major complaint was that the maids could not properly clean 15 rooms in 8 hours. Braasch told them they were smart enough to figure out a way to cut time off each room by omitting some of the usual work, but advised them he would deny this statement if attributed to him. Braasch left to answer a telephone call. The maids then considered a suggestion that they "go home," or walk off the job. Burke finally persuaded them to try the method indicated by Braasch, stating that if they were unable to do the 15 rooms, they could then go out and put up a picket line. For several weeks the maids worked on this basis until Braasch complained that the rooms were not clean and that they would have to do everything normally required. In May or June, one of the maids consulted a union (other than the Union herein) but was advised that it lacked interest in organizing these employ- ees. This effort was generally discussed with the other girls. In addition, they agreed among themselves that each would abide by the will of the majority on any action to be taken. Immediate supervision of the maids, including all hiring and assignments, was left in the hands of Burke. Preceding and following the March meeting, Burke discussed with the maids their complaints concerning the conditions of employment. At various times, Burke talked to Braasch on these matters. It is plain in the record that Burke was in sympathy with many of these grievances but was unable, through management, to accomplish effective adjustments. However, she personally contributed her help by cleaning rooms where particular maids fell behind in meeting the daily quota. On July 8, about 11:40 a.m., Braasch discharged Burke.8 About noon, Audrey Maylen, who substituted for Burke in the latter's absence, was approached by Braasch and offered the job of housekeeper. Maylen said she would think it over and let him know. Maylen then joined Burke and five other maids at a nearby restaurant where they normally met for lunch. There they discussed their 7 The pertinent facts, described in their setting, are substantially without dispute. 8 Burke was employed since May 1968. Braasch gave as the reason for the termination that "This is not working out. We are not getting the work done." 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dissatisfaction with certain working conditions, including the 15-room requirement, and the adverse effect upon them caused by the discharge of Burke. They decided to cease work and to commence picketing the Respondent that day. Those maids not on duty that day, and one other who did not go to the restaurant for lunch, were called by telephone and agreed to join the walkout. About 1 p.m., Maylen, accompanied by another maid, returned to the motel and told Braasch that she would not accept the housekeeper job and that the girls had agreed to stick together and not go back to work. During the afternoon, Braasch telephoned four maids who were off duty that day and was informed that each of them was joining the other maids in the work stoppage. Commencing July 8, and continuing as of the date of the hearing, with minor interruptions, picketing has been conducted adjacent to Respondent's property with the participation of the entire staff of 11 maids .9 Initially, the picket sign indicated, "UNFAIR TO MAIDS AND HOUSEKEEPER." In September, after the termination of certain other employ- ees, the legend was changed to read, "UNFAIR TO EMPLOYEES." And in March 1971, it was changed to state, "UNFAIR TO EMPLOYEES-RETAIL CLERKS UNION, NO. 73." Following the strike, Respondent utilized the housekeep- er and maids borrowed from its affiliated motel in McAlester, Oklahoma. In mid-July, Bob Bartholic was given the job of housekeeper. On various dates in July and August, certain new maids were employed, and they underwent a period of instruction for about 2 weeks. About July 15, Burke and Maylen attended a meeting with Jack Lindley, Respondent's president, together with a local banker, Earl Wells, and an official in a local glass workers' union, Joe Shockley-apparently in a settlement effort by the latter two persons. About July 29, a further meeting was held with Shockley and Wells, attended by Manager Braasch, Burke, and five of the maids. Braasch said he was willing to reinstate three maids, unspecified -one, hired, when the! place, opened, one a year later, and one more recently. This was rejected as "unfair." He was then handed a typewritten list of demands of the maids, comprising 19 items,10 referred to therein as a contract. He responded that he would never sign a contract, and that he would have a counterproposal drawn up by the following Monday.11 Another meeting was scheduled at Wells' office with Lindley and Attorney Smith; the maids showed up but no representative of Respondent appeared. About August 17, Braasch visited the local state employment office. He told the agent (Miss Cook) he 9 In addition to Burke, there were Audrey Maylen, Tressie Vaughn, Maxine Jackson, Maudie Tarwater, Naomi Summers, Mary Ralston, Sandra Tyler, Thelma Brown, Lillie Brooks, Jane Aldridge, and Barbara Stanton. 10 Item I states that Respondent would be "required to keep a female housekeeper," not specifying Burke or other particular person. Items 17 and 18 request that the "original workers" be permitted to return to work at the same job, and that seniority follow a specified order of names, leading with that of Burke. Braasch testified (before Respondent supplied this document at the hearing) that all he could remember was that it stated the maids would come back if Burke were rehired. The list contains no such demand; and the absence of such condition seems to be implied in item 1. 11 Braasch testified that, at the time, he told Respondent's local attorney, Ernest Smith, to inform the maids that he would take all of them back to needed some maids, and then wrote down the names of four of the maids in question he thought were available. About August 28, these four maids came to the motel in response to the request.12 Braasch told them they would have to talk to Attorney Smith. Smith, when called, informed them that the jobs had already been filled. Braasch testified that he had hired four people in the meantime. The record indicates that during the entire month, one maid was hired for the laundry on August 26, and one maid was hired on August 27. On August 18, a petition authorizing representation by the Union was signed by Burke and 10 maids,13 plus 6 employees in other classifications.14 Thereafter, on various dates through August 27, nine additional employees signed cards and petitions, and one card was signed on September 10. By letter to Respondent dated August 29, the Union requested recognition and bargaining for the employees at the Henryetta motel. The request was received but not answered. On September 3, a letter signed by Burke and 10 of the maids who ceased work on July 815 was sent to Braasch, as follows: We, the undersigned, hereby request that we be reinstated to our former positions with Holiday Inn of Henryetta. This is an unconditional offer to return to work. Please advise representatives of the Retail Clerks Union, Local No. 73, Tulsa, Oklahoma of your position in this matter. Sincerely, 1. Eunice Burke (s) 7. Audrey Maylen (s) 2. Naomi Summers (s) 8. Mary Ralston (s) 3. Lilly Brooks (s) 9. Jane Aldridge (s) 4. Tressie Vaughn (s) 10. Sandra Tyler (s) 5. Maudie Tarwater (s) 11. Thelma Brown (s) 6. Maxine Jackson (s) No response was made to the Union or to any of the maids. In February 1971, at an unemployment compensation hearing, Respondent contested the right of the maids to draw such benefits, asserting that the state law disqualifies any person voluntarily separated from employment as a result of a labor dispute. During the preceding 2 or 3 months, Braasch and his bookkeeper or secretary, June James, kept a list of the maids engaged in picketing. work, including Burke "as a maid," and that several would be reinstated now and the rest when there were vacancies. However, there is no evidence that a "counterproposal" was submitted to the maids. 12 Aldridge, Tarwater, Vaughn, and Ralston. 13 Excluding Summers, who testified she was an existing member of the Union for 20 years. 14 About August 17, Union Agent Ted Helms informed Braasch of the organizational campaign, also stating that the Union would prove the motels at Henryetta and McAlester were operated by "one and the same" employer. 15 Excluding Stanton . Respondent contends, in support of the challenge to her vote in the election, that Maylen was a supervisor. For reasons shown in sec. G, infra, it is found she was and remains an employee. HOLIDAY INN OF HENRYETTA Braasch testified the list was intended to support Respon- dent's position at the anticipated compensastion hearing.16 Concluding Findings For reasons which are and were obvious from the overt conduct of the maids, as described above, Rrespondent's primary position that they voluntarily resigned from their employment on July 8 is rejected as frivolously advanced and pursued.17 These employees, in continuous fashion from the outset, engaged in a strike or concerted work stoppage as a result of a labor dispute within the protective compass of Section 7 of the Act, absent a basis for denying such protection under well-established criteria.18 Alternatively, Respondent contends that the maids forfeited the Act's protection because they struck in protest of the discharge of Housekeeper Burke, an agreed supervisor. It is sufficiently clear that the discharge of Burke on July 8 precipitated the walkout and was, initially, one of the factors in the strike. This is further implied by the legend on the first picket sign-"UNFAIR TO MAIDS AND HOUSEKEEPER." Whether employees' concerted activity for such an object is to be deemed protected under Section 7 may be determined under the follouing settled standards of the Board.: Each case must turn on its facts. Where, as here, such facts establish that the identity and capability of the supervisor involved has a direct impact on the employees' own job interests and on their performance of the work they are hired to do, they are legitimately concerned with his identity. Therefore, strike or other concerted action which evidences the employees' concern is no less protected than any other strike which employees may undertake in pursuit of a mutual interest in the improvement of their conditions of employment.19 What the evidence plainly discloses is that, for some months prior to July 8, the maids had organized among themselves and seriously contemplated a concerted walk- out to protest certain working conditions, particularly the recent increase in their daily quota of rooms to be cleaned. On and since their meeting with Manager Braasch on March 1, Burke effectively persuaded the maids to continue to accept for a trial period the conditions of their unresolved complaints, and directly assisted them in their work to ameliorate these conditions. In essence, the maids depended on Burke's performance to fulfill their individual allotment of work established by Respondent. Burke was a relatively minor supervisor20 and, as demonstrated, had no effective power to adjust the grievances of the maids. Through Burke as a supervisor, and her conversations with Manager Braasch, Respondent had knowledge of the continuing situation concerning the discontent of the maids with their working conditions. In these circum- 16 Braasch conceded that it was "very possible" that the picketers could observe this activity at the front door, and that the employees inside were aware of it. No surveillance violation is alleged. 17 For example, the testimony of a newspaper woman that, on July 8 at the picketing site, Burke told her the maids had "quit their jobs as a result of the woman being fired" and "the situation at the Inn" is, in my opinion, worthy of no weight on this question. To be noted is Respondent's inconsistent position at the unemployment compensation hearing that the maids were engaged in a labor dispute. 413 stances, I find that "the identity and capability of the supervisor" who was discharged, i.e., Burke, had a direct impact on the legitimate job interests of the maids and that, as related to this objective alone, their concerted work stoppage on and since July 8 was of a protected character. Moreover, it is evident that, from the start and during the course of this lengthy strike, the paramount concern of the maids was in seeking to improve certain aspects of their work without regard to the status of Burke. Thus, in late July, the list of 19 demands submitted to Braasch refers essentially to specific working conditions, and includes the request that a female housekeeper be employed, without insisting upon Burke. And in August, it was concretely shown by four of the striking maids that they were willing to return to work, unrelated to Burke's reinstatement, when they appeared at the motel in response to the request made by Braasch at the state employment office. Whether the maids gave advance notice, or defined their demands to Respondent immediately prior to the strike, or otherwise acted reasonably in their decision to strike when they did are irrelevant considerations.21 There appears to valid basis for Respondent to question the "unconditional offer to return to work" submitted by 10 of the striking maids in their letter dated September 3. Simply because it is expressed in the plural ("We, the undersigned ..."), the wording used does not reasonably imply the qualification that each would return only if all were taken back.22 Nor would the fact that Burke was among the signers of the document operate to defeat the unconditional character of the offer by the others. It is argued by General Counsel that she applied to return in the ordinary job of a maid in view of Braasch's proposal in the settlement discussions to reinstate her on such a basis. Be that as it may, she has no status as a protected striker and Respondent was not obliged to accept her offer, whether as maid or housekeep- er. Nor does the presence of her name reasonably permit Respondent to infer that the other signatories insisted upon Burke's restoration as a condition to their own. I find no real ambiguity in the statement of the offer being unconditional. By questioning particular maids at the hearing as to their subjective intent in signing the offer, Respondent cannot thus attempt to negate the plain language of the document itself. In view of the legal obligations upon Respondent which flow from such an offer, Respondent could readily have requested clarifica- tion from the Union or the maids if it truly entertained any doubt as to its unconditional character. However, Respon- dent made its election to ignore the offer completely. Tyler was attending college at a distant location and authorized her mother, by telephone, to sign the September 1s Plastilite Corporation, 153 NLRB 180, 183-184. 19 Plastilite Corporation, 153 NLRB 180, 182 (and cases discussed therein), enfd. 375 F.2d 343 (C.A. 8). 20 Her wage rate was $ 1.75, while the maids received $1.45. 21 Plastilite Corporation, supra 184-185; N.L.R. B. v. Washington Alumi- num Company, Inc., 370 U.S. 9. 22 Cf. American Optical Company, 138 NLRB 681, where such a condition was explicitly stated in the offer. And see Downtowner of Shreveport, Inc., 175 NLRB 1106. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3 letter on her behalf, I find, in the circumstances, that the agency of her mother is sufficiently established.23 Her application to Respondent was entitled to its face value.24 Respondent's counsel argued that all the striking maids were permanently replaced, but no supporting testimony or probative evidence was adduced to show the actual status of any of the maids hired and retained after the strike. Furthermore, the question must be considered in terms of the existing Laidlaw doctrine,25 viz: ... economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime ac- quired regular and substantially equivalent employ- ment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. The parties stipulated certain payroll data. This evidence reveals that nine new maids26 were hired after the strike and employed when the unconditional offer was received. Of these, six were later terminated and one transferred. In addition, between the strike and the unconditional offer, 15 maids were hired and terminated. After the unconditional offer, eight maids were hired, of whom two were terminat- ed; and the extent to which Respondent continued to borrow maids from the McAlester motel is not disclosed. The evidence of the unconditional application made by these economic strikers shifted the burden of evidence to Respondent to show that its failure to offer each of them immediate or later reinstatement was justified because of permanent replacements, or ;other legitimate and substan- tial business reasons. Such proof by Respondent was not forthcoming.27 On this record, I find that the evidence is sufficient to sustain the complaint generally as to all 10 maids who unconditionally applied, and that Respondent violated Section 8(a)(3) by failing to offer them reinstate- ment immediately, or at subsequent times when job vacancies occurred. However, it cannot equitably be disregarded that replacements for the striking maids were hired prior to the unconditional offer, although it was not established whether or not the replacements had perma- nent employment status. There are further questions under the Laidlaw doctrine, supra, as to employment which became available for the strikers after their unconditional offer. Therefore, it will be left for resolution at the compliance stage of this proceeding all determinations relating to the times the individual strikers were entitled to reinstatement and amounts of backpay. C. Restraint and Coercion Ruth Louchery, head hostess-cashier, is an admitted 23 E.g., Lillian Abrahamson Nursing Home, 174 NLRB No. 86. 24 It does not necessarily follow that Tyler was then unavailable to work because she was registered at college . The actual availability of the applicants at the time of their offer, or thereafter, may be determined in the compliance stage of this proceeding if such issues become pertinent. See, e.g., Pacific Tile and Porcelain Co., 137 NLRB 1358 (as to questions of the strikers accepting temporary employment elsewhere). 25 The Laidlaw Corporation, 171 NLRB No. 175, enfd. 414 F.2d 99 (C.A. 7), cert. denied 397 U.S. 920. 26 One was classified as "laundry," one as "maid & laundry," and one as supervisor and agent of Respondent. Considerable testimo- ny was taken of various instances of alleged coercive conduct by Louchery, described below. Louchery was not called as a witness and the General Counsel's evidence stands uncontradicted. In considering the alleged viola- tions attributed to Louchery, as well as Manager Braasch, certain of the surrounding events are summarized for the purpose of immediate relevant context: In July, the meeting with Respondent and the striking maids in a third- party effort to resolve the dispute, without result; on August 17, the overt commencement of the Union's organizational campaign, and the signing of 26 union authorizations within the next 2 weeks; on August 28, the rejection of the reemployment efforts by four maids after Respondent's request for these maids at the state employ- ment office; and on September 3, the unconditional offer to return to work by all but one of the strikers, and Respondent's failure to respond. On August 27, Louchery told (Mary) Juanita Green, a waitress, that she knew all the girls who had signed union cards. She was informed that Green had signed, which Green denied, but said she would go along with the other waitresses if that is what they wanted. Louchery stated that if they wanted their jobs they had better watch what they were doing. On August 27, Louchery asked Cora Bryan, a waitress, to dissuade the girls from signing union authorizations because she was afraid that Braasch would lose his job if all the girls signed. When Bryan said she "couldn't," Louchery asked her if she had signed the authorization petition. Receiving a denial, Louchery remarked that signing a card was just as bad as signing a petition. On December 1, Louchery told DeLois Porter, "This union can't get in. If it does Mr. Braasch will lose his job. ... Besides, if you vote for the union and the company finds out, you'll lose your job." Porter replied, "Well, I don't care. I have never made any bones about signing the petition or anything to Mr. Braasch.' In December, Janet Ashley, a waitress, was asked by Louchery's husband if she was going to vote for the Union. Louchery spoke up, "you know she is not going to vote for the union," and Ashley said, no, she was not. About 1 month before the scheduled election on February 11, 1971, Louchery told Ashley that, "if it went union," they would close the buffet and go on short orders, thereby cutting down on the help. If the Union lost the election, Respondent would fire those it knew to be prounion, naming several employees, including Esther Johnson, Cora Bryan, and DeLois Porter. Several days later, Louchery asked her if she wanted to work the early morning shift, indicating that the vacancy would be available because Respondent would fire Cora Bryan if the Union lost. Louchery spoke to Beverly J. Poulton, a waitress, on "maid & desk clerk"; some were hired at a higher wage rate than was paid the maids before the strike. 27 In its opening statement, Respondent added as a reason for not reinstating the striking maids who applied on September 3 that they had not "measured up" to Respondent's standard of performance ; e.g., the quota of 15 rooms. The contention was altered at a later point that not all were incompetent and that the four maids subsequently requested at the state employment office were "hand picked." There is no evidence that any of the maids were incompetent. And I find this ground, as a basis for denying the Section 7 rights of the maids in question, was not advanced in good faith. HOLIDAY INN OF HENRYETTA several occasions within 4 weeks prior to the election. At the motel, Poulton was asked if she had decided which way she would vote, and answered negatively. Louchery said if she voted for the Union she would not have a job; they had ways of finding out how she voted; jobs were scarce and she had better vote for the Company. Louchery also asked how certain other employees were going to vote. Louchery telephoned Poulton several times at her home, engaging in substantially the same conversations as above. Louchery lived a half block from Poulton. When union agents came to her home with Maylen, a striking maid, Poulton received a telephone call from Louchery the same evening inquiring if the union man was at her house. In early February 1971, Louchery asked Linda Whitlock, a waitress, how she was going to vote in the election, and then told her, if she votes for the Union, she would probably lose her job because they would have to call back the other girls who were laid off. About July 27, Manager Braasch asked Blanch Watteau, a desk clerk, what her opinion was of the ladies picketing out front. She said she did not know much about it, and they just sat around and talked awhile. It is conceivable that such a question might elicit a response revealing the employee's sympathy for the strikers and instill fear in her of possible reprisal. However, the conversation took place at a time and in an atmosphere free of any showing of animus by Respondent toward the strikers or union organizational activity. Accordingly, the allegation is not sustained. On August 18, Robert D. Blair and Danny Brison signed the union petition. Several days later, Braasch summoned them into the banquet room of the motel. He told them he knew they had signed the petition. Blair admitted he had. Braasch then spoke about how well he had treated them and wished they would try to have their names removed from the petition in some way. Braasch testified that he did discuss union activities with these employees and had told them, "if you boys haven't signed a card, I wish you would keep in mind the very good things that I have done for you. Something like that." Tommy H. Bryan, a dishwasher, signed a union card on August 27. He testified that, several days before in Braasch's room, Braasch asked him if any of the other boys had been giving him trouble about the Union. He said no. Braasch denied having had any conversation, with Bryan concerning union activities. Shortly after she had signed a union petition on August 19, Dorothy L. Bond, a cook, was called aside by Braasch, and asked how she felt "about what is going on out front"; i.e., the picketing. He said, "If I was you I wouldn't even be talking to them." She replied that she will talk to them, as she was related to certain of the picketers. DeLois Porter, desk clerk, signed for the Union (August 18), and the next day told Braasch she had done so. She also told him after each occasion when she attended union 29 Braasch flatly denied that any supervisor or other employees reported to him concerning union activities of employees. A contradiction appears in the testimony of Bob Bartholic, the new housekeeper after the strike. From different people Bartholic heard "hearsay" information concerning the union activities of employees, specifically including Myrtle Mouser, infra, and related some of these statements to Braasch . Braasch's testimony generally impressed me as evasive , shifting, and shaped to his concept of the 415 meetings. About October 16, he asked her why she "was walking out there with [her] friends, the sorry son of a bitches. . . . they are wasting their time." In mid-Novem- ber, Braasch told her the inn would close before the Union would come in. As to Blair, Brison, and Bryan, their testimony is credited as against Braasch's general denial or vague account of what was said. In the other instances the evidence is uncontroverted.28 Myrtle Mouser, one of the poststrike maids, testified that, just before she signed her card on September 10, Housekeeper Bartholic told her if she signed a union card she was going to get fired. Responding to a general question, Bartholic testified he never spoke to Mouser about a union card; he does not even know what a union card is. Particularly in the context of Bartholic's admis- sions, already described, I am inclined to credit Mouser. The issues of surveillance do not, in my opinion, require elaborate discussion. (Nevora) June James is the bookkeeper and secretary of Manager Braasch, working in his separate front office. She assisted him in keeping a list of the picketers, was present at certain controversial conversations concerning the Union, and was a witness to several documents prepared by Braasch relating to purported misconduct by certain of the alleged discrimina- tees herein. She was not called to testify. On September 3, the same day the first union meeting was scheduled, Supervisor Louchery asked Cora Bryan, in the presence of James, "to consider" before she went to the meeting and stated she would rather Bryan did not attend. James offered to go with Bryan and they could sit in the car and see who goes in. When Bryan told Louchery what James said, Louchery remarked, "all right "29 Shortly before the meeting that evening, James was observed by employees parked in a car for at least 10 minutes in direct view of the union hall. Bryan did not go to the meeting. Louchery was not shown to be James' supervisor. There is no actual evidence that Braasch or Louchery authorized or ratified such conduct by James, or that she reported back to either of them. It may well be that in the minds of the employees attending the union meetings and others who learned of the incident, James was identified with management. However, on such issues, even where it is clear that private secretaries or confidential employees are involved,30 the legal requirement of an agency relationship must control. General Counsel carries the burden of showing that James was an actual or an apparently authorized agent of Respondent. Suspicion apart, General Counsel' s reliance on James' role as bookkeeper-secretary and upon the described conversation with Louchery is insufficient. This allegation is therefore dismissed. legal implications of his answers. 29 Bryan was equivocal in such testimony, having previously stated that Louchery said nothing at this point. 30 By agreement, the appropriate unit excludes the "bookkeeper" and "confidential office employees." James appears to be the only bookkeeper, and no particular employees are shown in the confidential category. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concluding Findings Independent violations of Section 8(a)(1) are found as follows: Threats of reprisal: by Supervisor Louchery repeatedly to Ashley that, if the Union loses the election, certain named employees known to favor the Union would be fired; to Ashley that, if the Union came in, the buffet would be closed and less help needed; 31 to Green that the employees had better watch what they were doing regarding the Union if they wanted their jobs; to Whitlock, Porter, and repeatedly to Poulton that they would lose their jobs if they voted for the Union. By Manager Braasch to Porter that the inn would close before the Union comes in; to Bond, impliedly warning her not to associate with the picketing maids. By Housekeeper Bartholic to Mouser that employ- ees who sign for the Union would be discharged. Coercive interrogations: by Louchery of Green, Bryan, Whitlock, and repeatedly of Ashley. By Braasch of Blair, Brison, Bond, and Tommy Bryan.32 Impression of surveillance: By Louchery to Ashley that Respondent knows which employees are for the Union; to Green that she knew all the girls who signed union cards; to Poulton that Respondent will find out which employees voted for the Union and that Louchery observed union agents visiting Poulton's home. By Braasch to Blair and Brison that he knew they had signed the union petition. Soliciting employees to withdraw from the Union, by Braasch of Blair, and Brison, and to engage in antiunion activity by Louchery of Cora Bryan. D. The Alleged Economic Layoffs On September 12, Respondent terminated Mouser, a (new) maid, and on September 14 Blair, a busboy, Hardgrave and Green, waitresses, and Bond, a cook. All were handed the same written explanation, without prior notice, "Due to a reduction in our work force, you are hereby terminated...." Respondent advances the posi- tion, in essence, that these employees were reduced in force as a normal annual process at the conclusion of its motel season, which runs from May 1 to September 15. Seniority is not a factor; it has no recall policy ; and the terminated employees are given no preference for employment the following season. Respondent's evidence consists simply of the testimony of Manager Braasch ; no records were offered, or a documentary basis furnished, for such a fixed seasonal pattern of business. The actual experience in this relatively new enterprise, particularly in view of the apparent inconsistencies in Braasch's testimony, does not plausibly or convincingly substantiate Respondent's grounds of economic necessity for the layoffs . As related by Braasch, the particular 31 N.L. R.B. v. Gissel Packing Co., 395 U.S. 575, 618 (concerning predictions not based on demonstrably probable consequences beyond control of Respondent). 32 These interrogations plainly fall into a coercive pattern, especially when considered in the context of the serious contemporaneous threats and of the numerous other unfair labor practices committed by Respondent. See Blue Flash Express, Inc., 109 NLRB 591; Wisconsin Bearing Co., 193 NLRB No. 35. 33 Names and dates were not supplied. 34 Earlier Respondent argued that that "business took huge leaps in business is unpredictable; most of it just comes off the road; it is a day-to-day situation-"never really sure" how many rooms will be rented,' In 1968, the! motel opened with 82 rooms. In 1968, there were no layoffs and no "attrition" as Braasch could recall. In 1969, no layoffs were necessary and employees were reduced by attrition. Braasch testified that "as I remember it . . . I believe we had two maids . . . two or three waitresses . . . and a couple of boys in the kitchen. And these people just went back to school or something of this nature." 33 New employees were not hired, but those who remained did not do any less work. Then employed were 32 employees in addition to the maids. In 1968, occupancy never exceeded 60 percent; in 1969, 70 percent. In 1970, business increased "considerably" in July and August, but "started to decline" about September 10. Some attrition occurred "in the fall"-one girl and perhaps another left for school, and one boy from the kitchen departed. Following such attrition, the layoffs in question (September 12 and 14) were effected. Thereafter, Respondent did hire employees "to do the same work of those that were laid off." In 1971, Respondent enjoyed the greatest increase in its business until then. It "did not start to grow until April."34 In June, Respondent purchased additional equipment and in- creased the number of double rooms by 20. In September, it worked out that only a cook had to be laid off; two of the busboys had voluntarily left, and two or three of the maids had gone back to school. By letter dated February 8, 1971, Respondent notified Blair, Bond, Green, and Hardgrave, viz: Because of the seasonal nature of our business, and in accordance with our long established custom, under the circumstances that prevailed on September 14, 1970 we placed you on a laid-off status. Your termination was for that reason and no other. An organization has claimed that your termination was for other reasons. We believe this to be wholly untrue. That matter is to be later determined under the orderly processes provided by law for such purposes. Without in any way conceding or implying a circumstance different from the foregoing, and as further evidence of our absence of any attitude of discrimination, we are offering you a position at the current wage rate. You will be expected to report for your assignment of work in the same or similar capacity as at the time of your layoff on Tuesday, February 16, 1971, at 10 o'clock, A.M. The Board election took place on February 11, 1971, and these four employees cast challenged ballots. On February 16, each of them reported to Braasch in accordance with the letter.35 Braasch explained that, in February 1971, the "food" or February, March and April." 38 Braasch told Green business was still slow, and she was given 4 days per week, with less hours than she previously worked as waitress. Hardgrave, after refusing the first offer to work on the day shift, agreed to take 4 certain days on the evening shift as waitress , beginning February 17. However, she later changed her mind and did not appear. Blair was assigned to more outside work than he had done previously . Bond resumed her former schedule as a cook, except that for one of the days she had a different shift . The complaint alleges that Respondent failed to reinstate these employees, i.e., to their former or substantially equivalent positions. I (Continued) HOLIDAY INN OF HENRYETTA restaurant sales at the motel "started to improve"; it was "unusually early" and he watched it closely for a few days. Anticipating an increase in the overall business, after consulting with counsel he made the decision a day or two before February 8 to send the recall letter. Elsewhere he stated that not until April was there a showing of growth. The very fact of this action in early February, and the implausibility of Braasch's sketchy explanation, reflects strongly upon Respondent's reliability concerning the obstensible May to September season, the policy of not recalling employees subject to seasonal layoffs, and the variety of other grounds for selecting these employees to be laid off. In making the selections for layoff, Respondent indicates that it relied on the fact that Green and Hardgrave were inexperienced as waitresses when hired 36 All five employ- ees laid off in September had longer employment than others in their classification who were retained. I do not accept the facile testimony that, as a policy, Respondent accords no weight whatsoever to seniority for purposes of layoff or recall.37 It is noted that, at the same time, Respondent relies as a factor on the relative experience of employees such as waitresses. Braasch conceded that new waitresses were hired within a month after the September 14 layoffs. In Blair's case, Braasch stated he was the "least aggressive" among the six boys employed. In Mouser's case, she "talked a lot" while doing her work as a maid in the laundry. In addition, Housekeeper Bartholic and Braasch agreed upon her selection for layoff, because laundry work was frequently left uncompleted at the end of the day. Prior to the strike, there was no separate classification for the laundry work-which was the responsibility of the maids. It appears that two "laundry" employees were hired, respectively, on August 2638 and September 7, shortly prior to Mouser's departure, and that a maid was hired on October 12. While generally admitting that employees in the same classifications were hired after these five employees were laid off, Respondent supplied certain payroll data covering only the housekeeping help. Viewing the total evidence, these various special grounds affecting the laid-off employees are rejected as straws seized upon by Respondent. Blair signed a union authorization on August 18; Bond on August 19; Hardgrave and Green on August 27; and Mouser on September 10. All attended the union meetings. As shown, Blair was interrogated by Braasch and solicited to remove his name from the union petition. When terminated on September 14, Blair asked Braasch if it was because of the Union. Braasch wanted to know who told him to ask that question, and Blair replied it was none of Braasch's business. In view of the fact that Brison quit his job as busboy several hours later, Respondent now states that Blair would have been rehired but for his "belligerent" attitude when terminated. Bond was interrogated by find the evidence does not substantially support this contention as to Blair and Bond. Concerning Green and Hardgrave, it was not sufficiently litigated to make clear determinations whether Respondent failed to offer them available work substantially equivalent to that which they normally performed before their terminations . If necessary, these questions will be resolved in compliance. 36 Green was hired in January and Hardgrave in June 1970. They were not advised of such reason when laid off; the comparative experience of the 417 Braasch as to her sympathy with the picketing. In early November, she called Braasch and asked why he had their unemployment compensation cut off. He said he had seen her on the picket line and Respondent had to look after its interests by fighting back the best way it could. As earlier described, there were numerous threats of discharge made to employees, including Green and Mouser, related to the signing of cards. Respondent strenuously argues that Blair, Bond, Green, Hardgrave, and Mouser were permanently terminated or discharged and not "laid off' (in the sense that they could reasonably expect or were entitled to be recalled). Inconsistently, its February 8 letter advised these employ- ees that they were previously placed on "laid off status." It is my finding that in fact they were intended to be finally terminated because of their union activities, and that the alleged reduction in force was merely a guise to achieve this unlawful objective. The offer of reinstatement, made in February 1971 on advice of counsel, was clearly not for the reason testified by Braasch; i.e., that there was an unusually early seasonal pickup in business. Respondent's principal defense that these employees were seasonally terminated for purely economic reasons falls considerably short of probative and credible substantiation. Especially in view of the course of interrogations, impressions of surveillance, and outright admissions of awareness, it is amply evidenced that Respondent knew or strongly suspected these individual employees were aligned with the Union. The terminations took place on the heels of the Union's organizational drive and the demand upon Respondent for recognition. The extensive contemporane- ous unfair labor practices, supra, plainly demonstrate Respondent's animus toward the Union. Therefore it is found, as to the termination of these five employees, that Respondent violated Section 8(a)(3) as alleged. E. DeLois Porter Porter was hired as a desk clerk in May 1968, when the motel opened, and was discharged on April 27, 1971. She checked guests in and out, attended the switchboard, and performed related duties at the registration desk. On August 19, she told Braasch she had signed for the Union the previous day and also informed him in each instance after she attended union meetings. In October, Braasch asked her why she was "walking out there with her friends [the picketing maids], the sorry sons of bitches." In November, he told her "the Inn would close before the Union would come in." On December 1, Supervisor Louchery threatened that she would lose her job voting for the Union, if Respondent found out. In mid-January, Louchery told Ashley if the Union lost the election Respondent would fire the known prounion employees, specifically naming Porter, among others. Until changed in February 1971, Porter's shifts at the other waitresses was not shown ; at least as to Green she had the experience of working 9 months with Respondent when she was released ; and in fact both were later recalled despite this purported lack of qualification. 37 Cf. The Buncher Company, 164 NLRB 340, enfd. 405 F.2d 787 (C.A. 3), cert. denied 396 U.S. 828. 3S Bartholic testified that "the other girl," Carol Rosander, was a maid for a while before she went into the laundry and that she was retained over Mouser because "she had proven to be a good employee. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD desk were rotated weekly from 7 to 3 p.m. and from 3 to 11 p.m. When hired, it was agreed with Braasch that she would have Sunday as her day off to be with her family. On February 16, she was notified by Braasch that her schedule was changed so that she would have to work regularly from 3 to 11 p.m. each week, with Wednesday off. On February 18, Braasch instructed her to rearrange and file a large stack of folios (copies of credit charges), which was work she had not theretofore performed. And he said, "I'll make you wish you had quit." The foregoing evidence is uncontroverted. On February 16, when Porter asked Braasch the reason for the change in shift, he said Joyce Bartholic, the relief clerk, "was quitting." Braasch's version was that he told .Porter that Bartholic was given a leave of absence, and that the change in shift would continue until they could determine if Bartholic would return. (Elsewhere he averred that such a leave was granted for 2 months. Bartholic testified flatly that she worked until May 18, when she quit, and was not theretofore on a leave of absence.) Braasch further testified that June James, his secretary-bookkeeper, was put on the 7 to 3 p.m. shift, Blanche Watteau (also called the "night auditor") remained on the 1I to 7 a.m. shift, and Twila Smith assumed the relief position.39 On March 1,40 Braasch placed Porter on "strict restric- tion"; she was not permitted to talk to the employees or leave the desk "for anything." She responded, "Well, I'm not going to quit." She testified that the next day he told her she could go to the bathroom once during her shift.41 On March 11, Porter gave Braasch a note from her physician indicating she underwent treatment for acute anxiety and recommending a leave of absence. By letter dated March 12, she was granted a leave of absence for 2 months. Based on the foregoing, I find that Braasch's actions toward Porter were substantially motivated by his desire to cause her to quit as reprisal for her open espousal of the Union. In changing her shift, assigning her burdensome filing work, and restricting her normal personal activity as an employee, Respondent discriminated against Porter in regard to her employment conditions, thereby violating Section 8(a)(3) of the Act. On April 22, Porter presented to Braasch her doctor's written release to resume work. Braasch said, "okay,"-he would have to make up a schedule and get in touch with her in a couple of days. On April 27, a letter from 39 Smith is Braasch's sister and Joyce Bartholic is the housekeeper's wife. Both were hired in September 1970. Bartholic worked 4 days behind the desk and 2 days in the dining room. The stipulated evidence indicates that, during this time, there were other desk clerks employed; i.e., Charlsye Wakefield full time, and Billy Pat Smith part time. 40 The General Counsel's contentions that the desk and lobby area after Porter's change in shift was intentionally made uncomfortably cold and that Braasch sought to entrap Porter by new instructions to accept credit card prepayments are in the realm of ambiguous minutiae ; no findings thereon are made against Respondent. 41 Respondent introduced copies of three notes, dated February 27 and March I and 2, which Braasch placed in Porter's file. They were admitted not for the truth of the contents , but on counsel's representation that Respondent relied on these documents in discharging Porter on April 27, an issue discussed infra. These notes prepared by Braasch are self-serving, plainly based on hearsay, and cannot substitute for free and probative testimony. Unverified signatures of other persons, solicited by Braasch, appear on the documents. Of these, only Dorothy Bond was questioned by Respondent's attorney was sent to Porter, stating "due to -circumstances of your own making, there is no work for you at the Holiday Inn of Henryetta." The reason given for Porter's discharge that she engaged in "defamation" of Braasch by appealing to other persons to establish that he was intoxicated on February 27 has already been treated. Another reason asserted was that she publicized "an untruth that the Company was monitoring and/or taping telephone conversations of its hotel guests." Thus, Respondent introduced and relies, inter alia, on a letter dated March 29, 1971, set forth below in pertinent part, while omitting the name of the sender as unnecessary for reasons as will appear. To the management of Holiday Inn, Henryetta, Oklahoma: Dear Sir: I have been staying at your motel since the time it opened. . . . However, on March 29, 1971, I had a long distance telephone call from a friend of mine at Henryetta, Oklahoma advising me that a Mrs. DeLois Porter, a former employee at Holiday Inn of Henryetta, had called stating that all incoming and outgoing telephone calls for me and Mr. . . who is also a regular guest . . . were being taped by the .. . Telephone Company at the Holiday Inn of Henryet- ta.... I would like to hear from you immediately in regard to this matter. This is a very serious accusation... . Respondent also called a female witness, referred to herein as Witness Y. She described herself as divorced and an employee of a local food store. About March 19, Porter called her at the store and told her that the telephones at the motel were taped and monitored by "the Holiday Inn," and that she knew this witness had a friend who stayed there and wanted her to tell him. The witness then told her friend. The friend, a salesman, referred to herein as Mr. Z, sent the letter above. Initially, upon strong objections of Respondent, the Trial Examiner refused to permit the Union to cross-examine as to the existence of an "arrangement" between this witness and her friend taking place at the motel. Following an offer of proof 42 asserting the conscious participation of manage- ment in the affair, Porter was permitted to resume the stand on this subject matter. The testimony developed that Respondent, and she did not corroborate (a) Braasch's hearsay allegation that on February 27 Porter told Supervisor Louchery that Braasch was .drunk that evening while talking to her (Porter ), nor (b) that Porter left the front desk unattended and spent time talking to Bond. In her cross- examination by Respondent, Porter directly denied (a) and was not queried as to (b). The March 1 note states that Braasch told Porter "as of this minute, you are placed on very strict probation should you desire to continue as an employee of this Inn. One more outburst and your services will no longer be required. What is your decision?" In the note on March 2, he purportedly told her, "I am restating that you are to take care of your personal needs just as any other employee would normally do." Braasch testified that this procedure of placing notes in the file was never used as to other employees. Porter is credited as to the essence of her testimony. Respondent's asserted justification for restricting Porter and its reliance on the same grounds for the later discharge of Porter are rejected as unsupported and, in any event, as pretexts. 42 Stated and argued at the Trial Examiner 's bench, in the absence from the courtroom of the witness. HOLIDAY INN OF HENRYETTA 419 Braasch gave Porter specific instructions to cooperate with conclude, accordingly, that Respondent discriminatorily the "arrangement," which had been going on for about a terminated Porter in violation of Section 8(a)(3), as alleged. year. Witness Y would call the motel, speaking to Porter, and make reservations for Mr. Z and herself to be placed in a certain room. The rate charged was for a single, and his name was not listed at the switchboard. While Mr. Z was registered, he would advise Porter at certain times to tell his wife, if she called, that he was not there. Porter would take his messages. Braasch told Porter to "cover up for him." Desk clerks on other shifts were similarly involved. This evidence was not contradicted by Braasch or any representative of management. Nor was there any attempt to establish the "untruth" of the factual assertion that Mr. Z's telephone calls at the motel were being taped and monitored. Joyce Bartholic (relief desk clerk discussed supra) was called by Respondent. She testified she received no instructions from Respondent regarding the treatment of incoming telephone calls to Mr. Z, and she handled them in the same manner she did for any other guests. She did not remember any calls from Witness Y. She added that other people answered the switchboard when she was busy at the desk. Witness Y, recalled to the stand, was not further examined by Respondent. Then asked by the Union whether there was "any sort of an arrangement" between herself, Mr. Z, and Porter, she answered, "None whatsoever." I do not find that the testimony of Joyce Bartholic effectively refutes the substance of Porter's evidence. In any case, Porter was convincing and is generally credited. My view of this matter, regrettably made unavoidable in the litigation of Porter's discharge, is essentially as follows: Upon instructions from management, Porter was made party to this sordid arrangement, clearly extending beyond the normal requirements of her job. She subsequently had reason to believe the motel telephone of Mr. Z was being taped or monitored. Such a discovery would understand- ably be a source of personal embarrassment to her. It is immaterial that she was on a 2 month leave of absence when she made the telephone call to Witness Y. Her purpose was not, as charged by Respondent, a publicized attack upon the reputation of the motel, but rather a confidential disclosure to the parties immediately affected. Similarly-the ensuing letter to Respondent from Mr. Z was an indignant, but private, inquiry. Respondent directly injected the issue and then sought to suppress the relevant evidence revealing the nature of the "arrangement" and its own participation therein-leaving Porter to appear as the culprit. Almost a month transpired between the letter from Mr. Z. and Respondent's notice to Porter of her termina- tion for the ambiguous reason-"due to circumstances of your own making." It is my finding that this ground asserted by Respondent was an afterthought, makeweight, or pretext, as in many other instances reflected in the record. The evidence here displays a virulent union animus directed at Porter, including specific threats of discharge. I 43 E.g., Pacific Tile and Porcelain Co., 137 NLRB 1358; Sec. 9(c)(3) of the Act. 44 Mouser signed on September 10. As it was unnecessary , there is no showing of other subsequent authorizations , if any, preceding the election of February 11, 1971. 45 N.L. R.B. v. Gissel Packing Co., 395 U.S. 575. F. The Refusal To Bargain The appropriate unit consists of all regular full-time and part-time employees, including the night auditor, but excluding the innkeeper, housekeeper, bookkeeper, confi- dential office employees, head hostess, guards, watchmen and supervisors as defined in the Act. As previously noted, on August 29 the Union wrote Respondent demanding recognition and bargaining. The letter further stated that the Union was prepared to prove its majority status by card check if there was any doubt in the matter. The Union also indicated that the letter was sent at the request of Respondent's attorney and requested a written reply. Respondent made no answer of any kind. The parties herein stipulated to a list of 36 employees in the unit, exclusive of the 11 striking maids, as of the demand letter of August 29. As protected economic strikers, the 11 maids maintained their employee status (and were presumptively eligible voters in the election conducted within 12 months after the strike).43 Thus, the unit complement as of the demand date consisted of 47 employees. Of these, and on such date, authenticated union authorizations are eviden- ced for 25 employees, plus I employee (Summers) who was a long existing member of the Union.44 Therefore a clear majority is established. It is accordingly held that, on and since August 29, 1970, the Union has been, and is now, the statutory bargaining representative of the employees in the appropriate unit. As detailed herein, Respondent engaged in numerous and flagrant violations of Section 8(a)(1) and (3), which I find were calculated to defeat the Union 's organizational effort and undermine its representative status among the employees. These unfair labor practices, in my opinion, were of a character and scope which may properly be described as "outrageous" and "pervasive" within the terminology of the Gissel case.45 The effects of such conduct were to preclude a fair representation test in the Board election, and they also render improbable the holding of a new or rerun election without the continuing impact and recurrence of Respondent's coercion. In these circumstances, the use of traditional remedies is ineffectu- al, and consideration is validly given to the signed authorizations as a more reliable measure of the employ- ees' representation desires. Accordingly, it is concluded that, by refusing the Union's bargaining request and engaging in the aforesaid unfair labor practices, Respon- dent violated Section 8(a)(5) and that a bargaining order is necessary and appropriate to protect the majority selection of the Union through written authorizations and otherwise to remedy the extensive violations committed.46 G. The Representation Case The consolidated proceeding is prosecuted with the 46 Ibid. Cf. Restaurant Associates Industries, Inc., et al., 195 NLRB No. 172, distinguishing unfair labor practices "not so likely to have an inevitably lingering effect as to preclude the holding of a fair election." Clearly, these violations of Respondent fall into the first category of the most extreme variety under the Supreme Court's rules in Gissel. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD principal objective of setting aside the election of February 11, 1971, on the Union's objections, and obtaining a Gissel bargaining order. As already indicated, the evidence fully warrants such a result. The issues of the 19 challenges, determinative of the election result, were referred to me by the Regional Director within the framework of the representation case. Even assuming the challenges are overruled, are opened and counted, and the Union loses the election, it would nevertheless be entitled to the bargaining order under Gissel, as found. In effect, the challenges of the discriminatees, Mouser, Blair, Bond, Green, and Hardgrave, and those of striking maids, Brown, Aldridge, Vaughn, Tarwater, Ralston, Brooks, Tyler, Summers, Jackson, and Stanton,47 are already resolved in the complaint findings. However, the employee status of Maylen must be determined48 in view of pertinence of this question relating to the 8(a)(3) issue, supra.49 Maylen was originally employed as a maid in May 1968 and was so classified on Respondent's records when the strike com- menced on July 8, 1970, although she was sometimes verbally referred to as the assistant housekeeper. She substituted for Housekeeper Burke on Burke's day off, vacation for 1 week, or absence due to illness, but worked as a maid at all other times. In Burke's absence, Maylen calculated the number of maids needed based on room occupancy, allocated the available work equally among the maids from an existing list, and notified them to report to work. The procedures were established and unchanging. She was not paid extra for such work. If she had any problem, Maylen would call Burke by telephone. Unlike Burke, Maylen assumed no function in interviewing or hiring of maids; nor did she effect any power of discipline. Significantly, when Bob Bartholic became housekeeper after the strike, he had no such assistant, and the substitute duties were distributed among different maids. I find that such authority as was exercised by Maylen, while acting for Burke, was essentially of a routine nature not requiring the use of independent judgment. Accordingly, I find she was not a supervisor under the Act.50 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 4? Although Stanton (who testified she was then pregnant) did not unconditionally offer to return to work, as did the others on September 3, she was eligible as a continuing economic striker within the year. See fn. 43, above. 48 The position that Maylen was a supervisor, and therefore ineligible, was taken by Respondent within the representation aspect of the instant case. I do not agree with the contention that Respondent is estopped from litigating the issue here because it failed to raise the question in the prior representation hearing . Dryden Manufacturing Company, etc., 174 NLRB 255, fn. 2. Moreover, there was no specific finding as to Maylen in the decision and direction of election. 49 Two challenges involving Burke and Hedrick Poivre were eliminated by agreement that the former was a supervisor and the latter was ineligible. The remaining challenge concerns Joe Smith, alleged to be ineligible as a V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. A broad cease-and-desist order is warranted, particularly in view of the discriminatory terminations and other violations.51 It has been found that Respondent unlawfully terminat- ed Mouser, Blair, Bond, Green, and Hardgrave on September 12 and 14, 1970, and Porter on April 27, 1971. On this record, Blair and Bond were properly reinstated on February 16, 1971. It will therefore be recommended that Respondent offer Mouser, Green, Hardgrave, and Porter immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions. It has also been found that Respon- dent violated Section 8(a)(3) generally as to 10 employees (striking maids) engaged in protected concerted activity by failing to offer them reinstatement following their uncondi- tional application to return to work. As to these employees, it will be recommended, subject to any supplementary proceedings that may be had in this case, that Respondent (a) offer immediate and full reinstatement to all such strikers whose positions were not permanently replaced as of the date Respondent received their unconditional application; (b) offer immediate and full reinstatement to such of the remaining strikers, if any, whose former positions were vacated after the strikers' offer to return to work, and if their former positions no longer exist, to substantially equivalent positions. As to the pertinent discriminatees, reinstatement is to be offered by Respon- dent without prejudice to any seniority or other rights and privileges they previously enjoyed; and all 16 of these employees shall be made whole for any loss of pay suffered as a result of Respondent's discrimination against them by payment to them of a sum of money equal to that which they normally would have earned, absent the discrimina- tion, with backpay and interest computed under the established formulae of the Board.52 It will be further recommended that Respondent preserve and, upon re- quest, make available to the Board, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amounts of backpay and the rights of reinstatement under the terms of these recommenda- tions. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: guard. Since January 1971, in addition to his daytime maintenance duties, Smith regularly (over 30 percent) has served as a watchman at night. Armed, deputized, and bonded, he has authority to detain persons and to protect the motel property from theft or vandalism . See, e.g., Waherboro Manufacturing Corporation, 106 NLRB 1385; Continental Hotel, 133 NLRB 1694. 50 See, e.g., Sayers Printing Co., 185 NLRB No. 120, enfd. sub nom. Local Union No. 252, Lithographers-Photoengravers, International Union, AFL-CIO, in pertinent part 453 F.2d 810 (C.A. 8). 51 N. L. R. B. v. Express Publishing Company, 312 U.S. 426; N. L. R. B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4). 52 F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heating Co., 138 NLRB 716. HOLIDAY INN OF HENRYETTA 421 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 terminating on September 12 and 14, 1970, and April 27, 1971, the employees named below, and by discriminatorily changing the conditions of employment of DeLois Porter, thereby discouraging membership in the 'Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. Myrtle Mouser (Mary) Juanita Green Robert Blair Doris Hardgrave Dorothy Bond DeLois Porter 4. By failing and refusing to reinstate the 10 striking maids, named below, on and after Respondent's receipt of their unconditional offer to return to work dated Septem- ber 3, 1970 (under the circumstances detailed in section III, jabove), Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. Audrey Maylen Mary Ralston Tressie Vaughn Sandra Tyler Maxine Jackson Thelma Brown Maudie Tarwater Lilly Brooks Naomi Summers Jane Aldridge 5. All regular full-time and part-time employees of Respondent, including the night auditor, but excluding the innkeeper, housekeeper, bookkeeper, confidential office employees, head hostess, guards, watchmen and supervi- sors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. Since August 29, 1970, the Union has been and is now, the exclusive representative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 7. By failing and refusing, at all times since August 29, 1970, to bargain collectively with the Union as the exclusive representative of the employees in the appropri- ate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 8. By the foregoing, and by other acts and conduct interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 53 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Sec. 10. Respondent's unlawful conduct interfered with the election held on February 11, 1971. Upon the above findings of fact, conclusions of law, and the entire record in the cases, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER53 Respondent, Okla-Inn, Inc., d/b/a Holiday Inn of Henryetta, Henryetta, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union activities and those of their fellow employees, soliciting employees to withdraw their support from the Union or to dissuade their fellow employees from supporting the Union; creating among the employees the impression that their union meetings and activities are under surveillance by Respondent; and threatening em- ployees with discharge, layoff, loss of jobs, closing the motel, or other reprisals for engaging in union activities. (b) Discouraging membership in Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO, or in any other labor organization, by discharg- ing, terminating, laying off employees, changing their working conditions, failing or refusing to reinstate econom- ic strikers who have not been permanently replaced at the time of, or following, their unconditional offer to return to work, or in any other manner discriminating in regard to hire and tenure of employment or any term or condition of employment. (c) Failing or refusing to bargain collectively with the above-named labor organization, as the exclusive bargain- ing representative of all employees in the appropriate unit described above. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization, as the exclusive representative of its employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Offer the 14 identified employees immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make the 16 identified employees whole for any loss of earnings, as set forth in "The Remedy" section of this Decision. (c) Notify the 14 identified employees referred to in the preceding paragraph, if presently serving in the Armed Forces of the United States, of their right to 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. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Preserve and, upon request, make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of this Decision. (e) Post at its Henryetta, Oklahoma, motel and premises, copies of the attached notice marked "Appendix." 54 Copies of said notice, on forms provided by the Regional Director for Region 16, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecu- tive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Decision, what steps Respondent has taken to comply herewith.55 IT IS FURTHER RECOMMENDED that the consolidated complaint be dismissed insofar as it alleges violations not specifically found herein. FURTHER, IT IS RECOMMENDED that, in Case 16-RC-4437, the election on February 11, 1971, be set aside and the case remanded to the Regional Director for appropriate action.. 54 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." 55 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 16, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice; and we intend to carry out the Order of the Board, and abide by the Following: WE WILL NOT ask you anything about your union activities or the union activities of your fellow employ- ees in a manner which would coerce you regarding your rights under the Act. WE WILL NOT ask you to withdraw your member- ship, authorizations, or support given to the Retail Clerks, or ask you to tell your fellow employees not to support this Union. WE WILL NOT Spy, or make you believe we are spying, on your union meetings or activities in order to find out who has joined the Union or is in favor of the Union. WE WILL NOT threaten you with discharge, termina- tion, layoff, reduction in force, closing the motel, or other reprisal, in order to stop you from joining or supporting the Union. WE WILL NOT refuse to bargain collectively with Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed employees in the National Labor Relations Act, which are as follows: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL offer to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to any seniority or other rights and privileges previously enjoyed. Myrtle Mouser Doris Hardgrave Juanita Green DeLois Porter WE WILL make whole the employees named below for any loss of earnings they may have suffered as a result of our discrimination against them with interest at 6 percent. Myrtle Mouser Juanita Green Robert Blair Doris Hardgrave Dorothy Bond DeLois Porter WE WILL, in accordance with the Decision of the National Labor Relations Board and subject to any supplementary proceedings that may be had in this case, offer immediate and full reinstatement to the striking maids, named below, whose former positions have not been permanently replaced or have been vacated at any time after the strikers' offer to return to work, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of earnings they may have suffered as a result of our failure to offer them such reinstate- ment, with interest at 6 percent. Audrey Maylen Mary Ralston Tressie Vaughn Sandra Tyler Maxine Jackson Thelma Brown Maudie Tarwater Lillie Brooks Naomi Summers Jane Aldridge WE WILL notify those above-named employees who are entitled to reinstatement, if presently serving in the Armed Forces of the United States, of their 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. WE WILL, upon request, bargain collectively with Retail Clerks Union, Local No. 73, Retail Clerks International Association, AFL-CIO, as the exclusive representative of our employees in the appropriate unit, and put into a signed agreement any understanding reached. The appropriate unit is: All regular full-time and part-time employees, including the night auditor, but excluding the HOLIDAY INN OF HENRYETTA 423 innkeeper, housekeeper, bookkeeper, confidential This is an official notice and must not be defaced by office employees, head hostess, guards, watchmen anyone. and supervisor as defined in the Act. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, OKLA-INN, INC., D/B/A or covered by any other material. HOLIDAY INN OF Any questions concerning this notice or compliance with HENRYETTA its provisions may be directed to the Board's Office, Room (Employer) 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921. Dated By (Representative) (Title)