Fairmont Mayo Hotel

462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San-Tul Hotel Company and Simon Zunamon, doing business as Fairmont Mayo Hotel and Hotel & Restaurant Employees and Bartenders Internation- al Union, Local 135, AFL-CIO. Case 16-CA-4034 July 27, 1972 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On August 27, 1971, the Board issued its Decision and Order in this proceeding,' finding merit in certain of the Respondent's exceptions to the Trial Examiner's Decision and ordering that the hearing be reopened and the case remanded "for full cross- examination of Brown and for such other evidence as may be properly offered by either party as bearing on relevant matters which may be raised in the course of such cross-examination." The reopened hearing was held on October 20, 1971, and on February 14, 1972, Trial Examiner Sidney D. Goldberg issued the attached Supplemental Deci- sion . Thereafter the Respondent filed exceptions to the Supplemental Decision 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 Decisions in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent herewith. The Trial Examiner found that the Respondent unlawfully threatened to discharge union members and did unlawfully discharge employee Brown on May 24, 1971. Having now before us a complete record in this case, we are convinced that substantial evidence does not support the Trial Examiner's conclusion that the discharge of Brown was unlawful. The Respondent took over management of the hotel here involved in February 1971. At times relevant, the Union represented there a unit of housekeeping employees, i.e., maids, and Brown was the union steward and had been for many years. From the outset the Respondent was quite dissatis- fied with the housekeeping services at the hotel, communicated its feelings in this regard to the maids, 192 NLRB No 173 2 The statement was made in a heated meeting between Sherman and Brown at which Sherman had initially intended to discharge Brown for threatening a supervisor Brown denied the threat and Sherman accepted the denial-an acceptance somewhat inexplicable if he were out to rid and instituted various changes in the housekeeping operations intended to improve the service. On May 18, at a meeting of all maids, the Respondent stated it would be necessary to discharge employees if their housekeeping work did not improve. On the 24th, Brown and Washington-another maid-were dis- charged assertedly for poor work. Washington's discharge is not alleged to be unlawful. In view of the foregoing, it seems clear to us that the treatment of Brown did not reflect some suspicious, inexplicable deviation in Respondent's continuing interests and practice, but rather was wholly consistent with its acknowledged concerns about improving the house- keeping service and with the treatment of other employees engaged in maid's work. Nevertheless, the Trial Examiner found that Brown was discharged because of her union activities and as part of a scheme by the Respondent to get rid of the Union. In support of his conclusion he relies on a statement made to Brown by Hotel Manager Sherman on March I 1 to the effect that the Union would not run the hotel and that he would get rid of the Union if he had to fire its members one by one. This statement, made some 10 weeks before Brown's discharge, is the only evidence of antiunion feelings or intention by the Respondent at any time.2 Clearly there is no evidence of any continuing union animus by Sherman or any other management personnel during the 10 weeks separating the March 11 statement from Brown's discharge. In fact the evidence indicates that the Respondent was not particularly, if at all, opposed to the Union. For example, when it took over management of the hotel in February it operated under the bargaining agreement negotiated by prior management and, further, in the fall of 1970, entered into a new 3-year agreement continuing the existing union-security clause.3 Also, Sherman himself had been a union member and had dealt with the Union-without incident insofar as the record indicates-at other hotels managed by the Respondent. Finally, the record shows that the Respondent assisted the Union in securing employees' signatures on authorization cards. In sum then, we have here a situation in which the allegedly unlawful discharge is wholly consistent with Respondent's continuing concern with respect to improving the housekeeping services and where there is no evidence of any consequential antiunion feelings by the Respondent and none connecting Sherman's March II outburst with Brown's dis- himself of the Union by firing its members J In so doing it barred itself as a practical matter from carrying out Sherman's threat of March I I to get rid of the Union by discharging its members 198 NLRB No. 86 FAIRMONT MAYO HOTEL charge some 10 weeks later. In these circumstances, we find, contrary to the Trial Examiner, ' that the General Counsel has failed to make out a prima facie case that Brown's discharge was unlawful. We shall, therefore, dismiss the complaint insofar as it alleged that the Respondent violated Section 8(a)(3) and (1) by discharging Brown. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, San-Tul Hotel Company and Simon Zunamon d/b/a Fairmont Mayo Hotel, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge because of their membership in or activities on behalf of Hotel & Restaurant Employees and Bartenders International Union, Local 135, AFL-CIO, or any other labor organization, or for exercising their right to engage in concerted action for mutual aid or protection guaranteed in Section 7 of the National Labor Relations Act, as amended. (b) ti any like or related manner interfering with, restraining, or coercing employees in the exercise of their righi to self-organization, to form labor organi- zations, :o join or assist Hotel & Restaurant Employees and Bartenders International Union, Local l?5, AFL-CIO, or any other labor organiza- .xunn, tc engage in concerted activities for the purpose of collective bargaining and other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Post on its premises at Tulsa, Oklahoma, copies of the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) 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. IT IS FURTHER ORDERED that the complaint be dismissed, and it hereby is dismissed, to the extent that it alleges the Respondent violated Section 463 8(a)(3) and (1) of the Act by discharging employee Bezz Rena Brown. 4 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act protects employ- ees in their right to form , join, or assist labor organizations, or to refrain from such activity. WE WILL NOT threaten to discharge employees for membership in, or activities on behalf of, Hotel & Restaurant Employees and Bartenders International Union, Local 135, AFL-CIO, or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, as amended. SAN-TUL HOTEL COMPANY AND SIMON ZUNAMON, DOING BUSINESS AS FAIRMONT MAYO HOTEL (Employer) Dated By (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 compli- ance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tele- phone 817-334-2921. TRIAL EXAMINER'S SUPPLEMENTAL DECISION SIDNEY D. GOLDBERG, Trial Examiner: On February 8, 1971, a Decision issued herein finding that respondents had interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the National Labor Rela- tions Act, as amended (the Act), and that they had discriminatorily discharged Rena Brown in violation of Section 8(a)(3) and (1) of the Act. Respondents filed 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extensive exceptions to both the findings in the decision and to rulings during and following the trial. By Decision and Order dated August 27, 1971 (192 NLRB No. 173), the Board held that respondents had been prejudiced by having been unduly limited in their right of cross-examination of Rena Brown. Accordingly, it re- opened the hearing "for full cross-examination of Brown and for such other evidence as may be properly offered by either party as bearing on relevant matters which may be raised in the course of such cross-examination." In accordance with the Board's Order, the hearing was reopened and resumed at Tulsa, Oklahoma, on October 20, 1971, with all parties represented. Respondents continued and completed their cross-examination of Rena Brown and presented additional evidence on matters raised in the course of that cross-examination. Additional briefs filed by the General Counsel and by respondents have been considered. With their brief, respondents filed a motion to dismiss the allegations of the complaint relating to the discharge of Rena Brown on the ground that, since the collective- bargaining contract between respondents and Hotel & Restaurant Employees and Bartenders International Un- ion, Local 135 (the union), the charging party herein, provides that "no discharge shall be made without just cause" and for binding arbitration of disputes between the parties, the failure of the union to file and process a grievance based on the discharge should result, under the Board's recent statement of policy in Collyer Insulated Wire, 192 NLRB No. 150, in dismissal of this part of the complaint. For the reasons hereinafter set forth in detail, I deny the motion to dismiss on the basis of the grievance procedure. The extended cross-examination of Rena Brown did not, I find, impair her credibility or enhance the credibility of respondents' witnesses and, on the entire record, I adhere to my prior Decision herein. Upon the entire record herein, including both hearings, and considering the demeanor of the witnesses while testifying, I make the following: SUPPLEMENTAL FINDINGS OF FACT 1. The motion to dismiss (a) Respondents' contention Respondents' motion' to dismiss the allegations of the complaint dealing with the discharge of Rena Brown on the basis of the Union's failure to resort to the grievance and arbitration provisions of the collective-bargaining contract and the Board's decision in Collyer Insulated Wire, supra, quotes a portion of article XIV of the contract as follows: The right to discharge shall remain at the sole discretion of the Employer but no discharge shall be made without just cause ... . The motion also states: Article XIV, Section 1 and Article V of said agreement provide for binding arbitration of disputes between the parties, including a dispute as to whether an employee has been discharged without just cause. The arbitrator has authority to order reinstatement and back pay. (b) The General Counsel's position The General Counsel has filed opposition to the motion on the grounds that the contract does not extend to a discriminatory discharge violative of Section 8(a)(3) of the Act and there is, in this case, "no contract interpretation involved which, if submitted to arbitration, could resolve the questions here presented ...." (c) Discussion and resolution Respondents' presentation of the relevant provisions of the collective-bargaining contract in evidence in this case is less than complete. In the first place, the remainder of article XIV, following the quoted portion, reads as follows: ... such cause to mean, among other things, drunk- enness, dishonesty, deliberate persistent or serious infraction of rules relating to the health or safety of the other employees or the rules relating to operation of the hotel, or failure to abide by the terms of this Agreement or by the award of any arbitration. A copy of the House Regulations is attached hereto and made 4 part hereof.2 If the Union considers a discharge unjv; t, it may notify the Employer to that effect, by vritten notice, within ten (10) days of such discharge, and the discharge shall thereupon become a grievance to be settled in accordance with the grievance procedure provided for in this Agreement provided, however, that the discharge of any employees may not be takes up as a grievance. The meaning of the final sentence is difficult to discern as written and the area is further clouded by the provision in article IV, labeled "Management Rights," that: The Employer shall continue to have and exercise all the rights which it had prior to selection by the Employees of a collective bargaining agent . . . . Such rights include, for example, the right . . . to suspend, discipline or discharge employees for cause ... . It appears, however, that the peculiar language of the final sentence of article XIV came to the attention of respondents' counsel in connection with the General Counsel's opposition to the motion to dismiss because, on January 6, 1972, they filed a further motion, this one requesting that there be struck, from the General Counsel's opposition to their motion to dismiss, the statement that: ... there is no contract interpretation which, if submitted to arbitration, could resolve the question here presented ... . and, in support of the motion, stating that "due to a clerical error" certain words were omitted from the copy of the collective-bargaining contract in evidence and that the proviso to the final sentence of article XIV (with the missing words underlined) should read: ... provided, however, that the discharge of any I No question has been raised concerning the timeliness of the motion 2 The only relevant regulation states that : "Repeated absenteeism or and I do not pass on it. tardiness will not be tolerated." FAIRMONT MAYO HOTEL employees during the first thirty days of their employment may not be taken up as a grievance. The General Counsel, in his response to the motion to strike, states that respondents' claim of a "clerical error" in the omission of the underlined words is without foundation and that he has been informed by the union that not only is its copy of the 1969-70 contract identical with the one in evidence,3 but that the renewal contract, covering the period October 15, 1970, to October 15, 1973, contains the same language, i.e., the proviso without the underlined words.4 There is no doubt that the proviso would make sense with the addition of the words suggested by respondents' counsel and it is possible that the omission was inadvert- ent. However, since an issue of fact has been raised, I am reluctant to resolve it on these motions and I shall not do so. Accordingly, respondents' motion to strike the General Counsel's opposition must be denied. This aspect of the matter, fortunately, is not essential to a disposition of respondents' motion to dismiss and further consideration of that motion follows. Even if respondents' version of the contract proviso were accepted, it would not change the situation. In the first place, Brown's conduct was not measured in this trial against the contract provision precluding discharge without "just cause": the question in this case is whether the respondents discharged Brown, as they claim, for her inadequate performance or, as alleged in the complaint, to discourage her activities on behalf of the union. Assuming, for the purpose of this argument, that there were inadequacies in Brown's performance of her duties that would have been "just cause" for her discharge, it does not follow automatically that they were the true reason for her discharge. Moreover, the Act does not prohibit discharge without just cause: it prohibits discharge to discourage membership in a union. It is so thoroughly established as to have become a truism that an employer may discharge an employee for any reason or for no reason at all, so long as the reason is not the employee's union activity.5 It follows, therefore, and I find, that the issue in this case is not one that can properly be determined solely by interpretation or construction of the collective-bargaining contract but it is one to be measured directly against Section 8(a)(3) of the Act. The foregoing conclusion is supported, I believe, by the Board's decision in Collyer and the other relevant cases. In Collyer Insulated Wire, 192 NLRB No. 150, the Board stated, in the introductory summary of its decision: We agree with Respondent's contention that this dispute is essentially a dispute over the terms and meaning of the contract between the Union and the Respondent. For that reason, we find merit in Respondent's exceptions that the dispute should have been resolved pursuant to the contract ... . 3 The copy of the 1969-70 contract in the record is Respondents' Exhibit 12 The transcript of proceedings shows that the subject of the contract was introduced by respondents and it appears reasonably clear that the document was respondents' copy 4 A paper entitled "Response to Response to the Motion to Strike" was filed by respondents on January 26, 1972 It again states that the omission of the critical words was an oversight and again requests that the provision of the contract be read as if the missing words were inserted 465 Further explicating the same principle, the Board, at the beginning of the section of its decision entitled "Discus- sion", wrote: We find merit in Respondent's exceptions that because this dispute in its entirety arises from the contract between the parties, and from the parties' relationship under the contract, it ought to be resolved in the manner which that contract prescribes. We conclude that the Board is vested with authority to withhold its processes in this case, and that the contract here made available a quick and fair means for the resolution of this dispute including, if appropriate, a fully effective remedy for any breach of contract which occurred. We conclude, in sum, that our obligation to advance the purposes of the Act is best discharged by the dismissal of this complaint. In our view, disputes such as these can better be resolved by arbitrators with special skill and experience in deciding matters arising under established bargain- ing relationships than by the application by this Board of a particular provision of our statute. The necessity for such special skill and expertise is apparent upon examination of the issues arising from Respondent's actions with respect to the operators' rates, the skill factor increase, and the reassignment of duties relating to the worm gear removal . . . . The determination of these issues, we think, is best left to discussions in the grievance procedure by the parties who negotiated the applicable provisions or, if such discussions do not resolve them, then to an arbitrator chosen under the agreement and authorized by it to resolve such issues. Similarly, the excerpt from Jos. Schlitz Brewing Company, 175 NLRB 141, set forth by the Board 'as part of its rationale in the Collyer decision, reads as follows: Thus, we believe that where, as here, the contract clearly provides for grievance and arbitration machin- ery, where the unilateral action taken is not designed to undermine the Union and is not patently erroneous but rather is based on a substantial claim of contractual privilege, and it appears that the arbitral interpretation of the contract will resolve both the unfair labor practice issue and the contract interpretation issue in a manner compatible with the purposes of the Act, then the Board should defer to the arbitration clause conceived by the parties. This particular case is indeed an appropriate one for just such deferral. The parties have an unusually long established and successful bargaining relationship; they have a dispute involving substantive contract interpretation almost classical in its form, each party asserting a reasonable claim in good faith in a situation wholly devoid of unlawful conduct or aggravated circumstances of any kind; they have a clearly defined grievance-arbitration procedure which Respondent has urged the Union to use for 5 The classic quotation is from N L R B v McGahey d/b/a Columbus Marble Works, 233 F 2d 406 at 413 (C A 5, 1956) Management can discharge for good cause, or bad cause, or no cause at all It has, as the master of its own business affairs, complete freedom with but one specific, definite qualification it may not discharge when the real motivating purpose is to do that which Section 8(a)(3) forbids 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolving their dispute; and, significantly, the Respon- dent, the party which in fact desires to abide by the terms of its contract, is the same party which, although it firmly believed in good faith in its right under the contract to take the action it did take, offered to discuss the entire matter with the Union prior to taking such action. Accordingly, under the principles above stated, and the persuasive facts in this case, we believe that the policy of promoting industrial peace and stability through collective bargaining obliges us to defer the parties to the gnevance-arbitration procedures they themselves have voluntarily established. [Footnotes omitted.] and the Board in Collyer, following this quotation, states: . , , Here, as in Schlitz, this dispute arises within the confines of a long and productive collective-bargaining relationship. The parties before us have, for 35 years, mutually and voluntarily resolved the conflicts which inhere in collective bargaining. Here, as there, no claim is made of enmity by Respondent to employees' exercise of protected rights . . . . [Emphasis supplied.] The situation in the case before me is at the opposite pole from the situation involved in both Collyer and Schlitz. There is no problem here of interpreting the terms of a continuing relationship. The complaint in this case alleges both that respondents interfered with, coerced, and restrained employees in their exercise of rights guaranteed by the Act and that they discriminatorily discharged Rena Brown to discourage her membership in the union. These violations are those that "go to the heart of the Act," presenting pure questions of law enforcement, and the case was instituted to assure to Rena Brown and other employees the protection to which they are entitled by the Act. The contract prohibition of discharge without just cause and the inclusion of the grievance procedure are remedies which the employees, including Rena Brown, could utilize if they and their union chose to do so. But the question in this case is not primarily one of contract interpretation, presented in terms of a statutory violation, as Collyer and Schlitz • The question here is primarily that of protection of the employees' basic rights under the Act, and it is only of secondary importance that the contract provides an "in house" remedy. No argument can be made that there is a special competence in the grievance procedure or in an arbitration proceeding to determine the question raised in this case, for the conduct with which respondents are charged constitutes one of the basic public wrongs which the Act was designed to present, not simply a dispute by the parties over the meaning of a contract provision or a method by which it is to be implemented. The fact that the contract, with its provisions against unjustified discharge and for the filing of grievances, also provides a device for the adjudication of this controversy if the parties should desire to invoke it is entirely insufficient, in my judgment, to justify abandonment of the method of 6 This characterization is unwarranted Although I found, in my Decision, that Mrs Brown was in error in fixing the date of her second interview with Manager Sherman as March 18 and that the date was March 11, this is the only point on which her testimony was not accepted This single instance is insufficient as a basis for labeling her testimony "proven unreliable " 7 To the extent that respondents may also rely on Brown's alleged adjudication provided by the statute. The Act, carefully providing in Section 10(a) that the Board's power "to prevent any person from engaging in any unfair labor practice . . . shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise," represents, in my opinion, the congressional intent that direct interfer- ence with rights guaranteed by the Act be dealt with in the formal manner provided. Nothing in Board law thus far indicates otherwise. Accordingly, I find that the controver- sy in this case does not resemble those in the Collyer and Schlitz cases and that the Board should not withhold the exercise of its statutory authority. The motion to dismiss is, therefore, denied. 2. The issues on remand Turning, now, to the issues presented by the additional evidence received at the hearing when it was reopened pursuant to the Board's Decision, respondents' brief states them as follows: The issues include: 1. Whether the testimony of Rena Brown ; proven in some respects to be unreliable,6 can alone provide that preponderance of credible evidence required to establish violations of the Act. 2. Whether Respondent violated Section 8(a)(1) of the Act during the conversation with Employee Rena Brown on or about March 11, 1970. 3. Whether Rena Brown was discharged in viola- tion of Section 8(a)(3) of the Act. In its Decision and Order, the Board held that the questions put by respondents' counsel to Mrs. Brown, both on her tardiness and on her failure to complete a "14 room assignment," should have been permitted because they "were relevant both to the credibility of the witness and to the issues in the case." The above statement of the issues by respondents, as well as their entire brief, however, indicates again that respondents' own view of their position with respect to the discharge of Mrs. Brown was that it was based solely on her incompetence as reflected in her work, culminating in the incident involving Room 1228 at the end of May, and that at the reopened hearing their questions concerning her tardiness and "failure to com- plete a 14 room assignment" were directed to the issue of her credibility. While the issue of Brown's credibility affects the decision on all issues determined, in whole or part, on that basis, with respect to her discharge this approach is consistent with respondents' position at the original trial-when they finally took a position-that the assigned reason for Brown's discharge was her "failure to perform properly on the job" and, accordingly, they directed most of their proof at that time to her perform- ance with respect to Room 1228.7 "tardiness," which is characterized in their recent brief as "resistance to Hotel rules," injustification for her discharge, the record shows that, for the 2-week period ending February 28, 1970, she clocked in before 8 a in six times and after 8 a in six times, but never later than 8 04, that for the 7-day period ending March 15 (when her timecard was voided by issuance of a termination check later withdrawn) she clocked in I I to 15 minutes early on 6 days, 4 and 5 minutes early 2 of the other days, and 1 minute late on I FAIRMONT MAYO HOTEL At the hearing in 1971 pursuant to the Board's order of remand,8 respondents continued and completed their cross-examination of Brown. They also called Pasquale Volonino, the hotel comptroller, and Patricia Hermann, the executive housekeeper, both of whom had also testified in 1970. The resumed cross-examination of Brown commenced with further questioning concerning tardiness. Brown testified that she understood that she was expected to clock in no later than 8 a.m. and go to the third floor linen room where she would sign a register which informed her which rooms and on which floor or floors she would work that day. The prescribed routine was that she then change into her uniform, check the rooms assigned to her, and return to the linen room with the room report to draw the necessary supplies. Brown's description of the morning routine was contra- dicted in only one particular: Hermann testified that the maids were expected to check in at the linen room to receive their assignments at 8 a.m. and that, to do so, it was necessary that they clock in by 7:55. This, however, was simply Hermann's testimony and, differing from Brown's, it created a discrepancy between them that might, under proper circumstances, have to be resolved, Since there is no incontrovertible proof, however, that the prescribed clock- in time was 7:55, it cannot be said that Brown's testimony, because it differed from Hermann's, affected Brown's credibility. Counsel's cross-examination of Brown concerning tardi- ness consisted of two questions: the first was: Weren't you supposed to be on the floor ready to go to work at 8:00? which Brown answered by saying that the maids "were supposed to check in at the door by the clock at 8:00 o'clock " Since even Hermann's testimony was only that the maids were expected to be at the linen room on the third floor at 8 a.m., where they would receive their assignments, and not on the floors where they would work, Brown's negative answer to this question was undoubtedly accurate and this exchange cannot be viewed as affecting her credibility. The other question concerning tardiness was put to Brown several times in terms slightly different but all dealing with the same period of time.9 As first put, the question was: day This latter period surely shows no persistent tardiness and her termination notice does not designate it as an item of misconduct Accordingly, I find that any claim that Brown failed to perform properly on the job, insofar as tardiness is concerned, is completely without foundation s This hearing is hereafter referred to as the 1971 hearing and the original trial is hereafter referred to as the 1970 hearing 9 Counsel asked some questions preliminary to inquiring about another period, in February, but did not question Brown concerning that period 10 The evidence concerning this interview included the "Employee Misconduct Notice" on which the item "frequent tardiness" was checked, serving as the basis for the Board's finding that it was an issue in the case I I Concerning her interview with Sherman on March 10, Brown testified at the 1970 hearing that, during their discussion of tardiness, Sherman called someone on the phone and asked that her timecard be checked, that after he received an answer, he said "Well, that is 0 K " Sherman was not questioned by respondents' counsel concerning this conversation and Brown's testimony concerning that phone call stands uncontradicted However, Sherman did testify that Brown "denied her tardiness, but, according to our records, she was tardy " When he was asked, shortly 467 Now, during the period approximately two weeks before this-this was on March 10-had you been tardy at any time? and Brown answered "No." Counsel then changed the question to ask: Had you punched in at any time after 8:00 o'clock from mid-February to March 10? To this Brown said "no" and explained that, at her interview with Sherman on March 10,10 he had checked with "somebody that had the card and they gave him the correct time and he turned to me and said, `There is nothing wrong there.' " Counsel then repeated the question, insisting on a yes-or- no answer, whereupon Brown said she "wouldn't know." Examination of Brown's timecard for this period shows the following check-in entries: Mar. 2 (Mon.): 7:56 Mar, 3 (Tue.): 8:01 Mar. 4 (Wed.): 7:45 Mar. 5 (Thu.): 7:47 Mar. 6 (Fri.): 7:45 Mar. 7 (Sat.): 7:49 Mar. 9 (Mon.): 7:48 Mar. 10 (Tue.): 7:55 Mar. I I (Wed.): 7:47 ,From the foregoing figures, it appears that, according to Brown's testimony that 8 o'clock was the prescribed clock- in time, she was 1 minute late on one of the 9 days and from 4 to 15 minutes early on the others. Even on the basis of Hermann's testimony that clocking in at 7:55 was necessary to bring the maids to the third floor by 8, Brown was 1 minute late on one occasion and 6 minutes late on another, but she was precisely on time 1 day and from 6 to 10 minutes early on the others. It seems to me that, in view of the type of work involved, Brown could not have been considered as one guilty of "frequent tardiness." Moreover, there was no contradiction, at the 1971 hearing, of Brown's testimony that no supervisor ever mentioned tardiness to her, or of her testimony that, on March 10, Sherman, after making a call to the custodian of the timecards in connection with the tardiness charge, said: "There is nothing wrong there." ii Based on this analysis of the record, I find that Brown's testimony on the tardiness issue is supported by the documentary evidence and that it was not even controvert- thereafter, whether her punctuality "improved" after the March 10 interviews, he said it did improve, "but not to the fact that she was always early or always there on time " Sherman explained this answer by saying A difference of improvements is a matter of degree If she was a half hour late and she improved, it would be fifteen minutes late What I am saying was that she was not there on time regularly In view of the entries on Brown's timecard set forth above, Sherman's testimony that Brown's punctuality "improved" shows some, but only vague, familiarity with the facts Brown's timecard for the 2-week period ending February 28 shows 6 check-in entries of 8 01 to 8 04 out of the 12 However, her timecard current at the time of the March 10 interview, covering 9 workdays, shows a single lateness of I minute (according to Brown's accepted version of the check-in requirement) or one lateness of I minute and one lateness of 6 minutes (according to Hermann's version), with the other seven check- in entries ranging up to 15 minutes early Accordingly, the improvement had already occurred and Brown's current check-in record was, at least. veiy good For this reason I credit Brown's testimony on this matter, while Sherman's testimony appears to have been more improvisation than recollection 6 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed by respondents' witnesses. Accordingly, I accept Brown's testimony on the subject. While respondents were entitled to question Brown on this subject to test her credibility, their entry into the inquiry for that purpose has resulted in strengthening her credentials as a credible witness. The other subject of cross-examination upon which the Board held respondents to have been improperly restricted was whether Brown "always completed a 14 room assignment." The specification of misconduct written on her termination notice includes "rarely does a full 14 rm assgmt." When the cross-examination of Brown was resumed at the 1971 hearing, she testified that she was expected to complete, during her 8-hour shift, as many rooms as were assigned to her. She also testified that the number of rooms assigned was fixed by the number of rooms "that was in the house"; that they were "divided among the maids"; and that her assignment was sometimes 11 rooms, sometimes 12, and sometimes 14. Brown testified that when her assignment was 14 rooms she always completed the assignment; that whenever rooms assigned to her were not serviced it was because they were occupied and the occupants did not want them serviced; that on those occasions she complied with the requirement that she promptly notify the assistant housekeeper; and, finally, that she turned in, at the end of the day, slips stating which rooms had not been serviced.12 She also testified that the maids usually exchanged information concerning the number of rooms they could not enter to service and that they frequently ended the day with one or more of the rooms assigned to them unserviced for this reason.i3 Hermann testified that the number of maids was fixed by the number of rooms occupied and, if there were not a sufficient number of rooms occupied to give each maid 14 rooms, the assignment was "filled in" with rooms to be given "general cleaning." She also testified that the time required to give a room general cleaning was longer than that required to service a room that was, or had been, occupied. It is obvious, therefore, that a "14 room assignment," based on the number of occupied rooms a maid could complete during her 8-hour shift, could not be completed if some of those rooms had to be given the more time-consuming process of general cleaning. Hermann conceded that the maids frequently failed to complete a 14- room assignment but she labeled the reasons of the others as "valid," while testifying that Brown averaged only about 12 rooms per day. There is no objective evidence on this subject and Hermann, by the contradictions in her testimony and her demeanor while testifying, impressed me as a witness trying to answer in accordance with her employers' interest rather than in the interest of accuracy. Nothing in the additional testimony on this subject at the 1971 hearing impairs the credibility of Brown's testimony. Concerning Brown's performance of her duties, particu- larly the V.I.P. cleaning of Room 1228, the additional 12 Hermann testified that she could not give any specific instance in which Brown failed to make this report 13 There is no reason, however, to doubt that it was a problem to management, since the notice of meeting for May 19, which Hermann prepared and posted, lists this as one of the topics to be discussed testimony is mostly cumulative . Hermann testified in detail in support of her claim of poor performance by Brown since the bowlers convention which ended May 9. But during that convention, as both Hermann and Roseman testified in 1970, the hotel was almost 100 percent occupied . 14 There were "quite a few complaints" during the convention and, immediately after it ended, the 10th and 12th floors were blocked off so that the staff could concentrate on cleaning them. But at this time, Hermann testified, she had less than 10 or 12 maids to keep up with the daily work and to "general clean" the rooms on these floors, as well as others on the sixth and ninth floors about which complaints had also been made . It appears, therefore, that, during the period following the convention, the maids were under considerable pressure to keep up with their current work and to clean the defective rooms on the 6th, 9th, 10th, and 12th floors. Although Brown's regular work area consisted of the 17 rooms on the west side of the 12th floor, she was given some rooms to clean on the 6th and 9th floors as well as the general cleaning of Room 1228 . Respondents placed in evidence some sheets of paper purporting to show Brown's defective work. One of these bears reference to rooms which Brown general cleaned on May 20, 21, and 22. It lists Room 1203 on May 22; Rooms 416-417 on May 22; Rooms 920-925 on May 21; and Rooms 1231 and 1232 on May 20. It then sets forth specific shortcomings in Rooms 1232, 1203, 417, and 416 . Hermann testified that the document was in the handwriting of Mrs. Wolmendorf, her assistant, who was still in respondents' employ at the time of the 1970 hearing but did not testify at either hearing. The form and contents of this document clearly show that it was not prepared in the regular course of business because it begins with a statement of the rooms general cleaned by Brown on 3 separate days and contains comments with respect to five of the seven rooms listed. It was obviously prepared by Wolmendorf to show specific poor work by Brown ; but, in the absence of Wolmendorfs testimony, I cannot give this document any probative value.i5 With respect to Rooms 920 and 925 , respondents introduced a sheet of paper which Hermann testified she wrote out after inspecting those rooms and gave to the night maid as instructions for remedying the deficiences. They also introduced another sheet of paper which, Hermann testified, she prepared after inspecting Rooms 1202 and 1209 , which lists the deficiences. Hermann testified that she had no actual recollection concerning these two rooms except that they were cleaned between May 10 and 25 while the 12th floor was blocked. She did not testify that these rooms were cleaned by Brown and these room numbers do not appear on the sheet of paper, referred to above, purporting to list the rooms cleaned by Brown on May 20-22. 11 Hermann testified in 1970 that the hotel had 15 guest floors with 37 rooms on each floor , or a total of 555 rooms, but in 1971 she testified that there were 430 rooms 15 Brown denied having cleaned Rooms 920 and 925 In the absence of contrary testimony , I credit her denial FAIRMONT MAYO HOTEL It would unnecessarily extend this decision further to analyze these sheets of paper16 and Hermann's testimony concerning their subject matter because this decision is not an investigation into Brown's actual performance of her hotel duties. It is necessary to note, however, that evaluation of performance in this type of work inevitably contains a large element of subjectivity and the evidence shows that management was generally dissatisfied with the cleaning performance of the maids. Any value judgment applied to this situation would obviously be in favor of better performance by all persons at all levels but none is applied herein because that is not the function of this litigation. The matter at issue, as stated, is not whether Brown was a competent maid, nor is it even whether her work in cleaning Room 1228 on May 22 or 23 was a good job or a poor job: the matter at issue is whether the claimed defects in Brown's work were merely a pretext and whether respondents' real reason for discharging her was her status in and activities on behalf of the union.17 Since the credibility of Brown as a witness contributes to the decision of this case, it has been necessary to discuss many of the issues of fact concerning which she testified. In addition to the matters discussed above, the date of her assignment to clean Room 1228 is a matter of dispute between Brown and Hermann. On this point respondents introduced the hotel records showing the reservation of the room and the subsequent arrival of the guests, but there is nothing in these records that contradicts the testimony of Brown that was credited in my original Decision. The records show that the reservation was made on May 19, which was Tuesday, and there is a reference to the need for nine telephones. Brown testified in 1970 that nine tele- phones had been installed on Wednesday and that she had emptied the waste baskets of all the snipped wire ends and bits of tape. While Brown testified that she cleaned Room 1228 on Friday and was surprised when she saw, on 16 Hermann testified that, when she came to this hotel, she established a system of checking for discrepancies Although there were other forms-the employee misconduct forms and forms of checklists for rooms occupied were mentioned-there were none for reporting discrepancies Hermann testified that these were written on "whatever kind of paper we can get if we don't expect really to pursue it that far " The sheets of paper on which were listed Brown's alleged incompetent performances with respect to the foregoing rooms-particularly that by Wolmendorf discussed above-were full-sized sheets of paper written out in considerable detail and appear to be more formal than the sort of notes of deficiencies which Hermann described To the one which Hermann testified was written by Wolmendorf I have given no weight because of respondents' failure to call Wolmendorf or explain her absence and the others, for the reason stated and the unreliability of Hermann as a witness, I consider self-serving 11 In 1970 Sherman testified that he found nothing objectionable in Brown's presence in the office in connection with the signing of union cards by new employees and Volonino, at that time, made no reference to it At the 1971 hearing, however, Volonino stated that her mere presence there interfered with his work. This testimony, given the respective status of the individuals involved, I regard as not credible but, more importantly, since the testimony was carefully adduced by respondents' counsel, I view it as a reflection and evidence of management's resentment at Brown's perform- ance of her duties as one of the union's stewards 18 Hermann testified that, when she found that Brown's cleaning of this room was inadequate, she looked rt some other rooms that Brown had general cleaned and found them unsatisfactory, and that it was then that 469 Saturday, that the room had not been used, the statement that the guests were expected on Friday was a contribution of respondents' counsel, not Brown.18 Whether Brown personally assumed that her assignment to Room 1228 on Friday meant that the guest was expected that day is unimportant because Brown never made the point as an important item in her testimony. Although the paper listing deficiencies in the cleaning of Room 1228 was the subject of additional testimony at the 1971 hearing, it stands as a document prepared by Hermann in her own office after Brown had completed her work and it was not, as Hermann first testified, the list of things she gave Brown as required for "V.I.P. treatment" of that room.19 Brown's testimony at the 1971 hearing on this matter was consistent with her testimony at the 1970 trial and she even recalled accurately that the document shown her in 1970 was the photographic copy on which all the writing, including that in red on the original, showed as black. Summing up, therefore, I find nothing in the record of the 1971 hearing to cause me to change my view of Brown as a credible witness and, on the basis of the entire record, I continue to accept her testimony on disputed issues as set forth in the Decision heretofore issued. On the basis of the facts so found in that Decision, I drew the inference that respondents' real reason for discharging Brown was her union activities. Nothing that has been added to the record justifies a change in that inference and I adhere to that decision. RECOMMENDATION Upon the entire record herein, and the demeanor of the witnesses while testifying, I reaffirm my Decision issued February 8, 1971, and recommend that respondents comply with the order recommended in it. she assigned the task of further cleaning Room 1228 to the night supervisor and a night maid and she told them that the V I P arrival was due at 7 p in The effect of Brown's work in other rooms on the need for further cleaning of Room 1228 is not apparent Moreover, the effect of the hotel's record concerning the reservation of this room, showing that the guests were not originally scheduled to arrive until May 24, is to affect Hermann's credibility, not Brown's 19 Hermann's testimony with respect to this document is self-contradic- tory She testified at one point that it was the list which she gave Brown when she assigned to her the task of preparing the room for the V I P arrival and she testified that Brown returned it to her when she had completed her work Brown testified that it was not, that she had never seen this particular paper until the hearing, and I accept her denial At another point, however, Hermann testified that the document was prepared by her after Brown had gone off duty and that, in preparing it, she tore up a number of other pieces of paper she had if this document was the original list she gave Brown and the underlined matter were the items needed to be done by the night maid, it would follow that the items not underscored in red were not done, although they were needed. At still another point, Hermann testified that the night maid did the underscoring and that she, Hermann, only wrote the words in red Other testimony by Hermann further confuses the use of underscoring on these discrepancy lists With respect to the preparation, use, and meaning of this document, heavily relied on by respondents, Hermann's testimony is confused and self- contradictory