Peachtree Plasa Hotel

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peachtree Plaza Hotel and Hotel, Motel and Restau- rant Employees Union, Local 151. Case 10-CA- 12614-2 November 7, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 18, 1977, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Respondent 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 attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).' 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 Administrative Law Judge and hereby orders that the Respondent, Peachtree Plaza Hotel, Atlanta, Georgia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I See, generally, Isis Plumbing & Heating ('o. 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage our employees from engaging in concerted statutory activities by discharging any of our employees because of such activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the statutory right to engage in concerted activities, or to form, join, or assist any labor organization, or to engage in any other 233 NLRB No. 59 concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Stephanie Jones immediate and full reinstatement to her former position or if such position no longer exists, to a substantially equivalent position. WE WILL pay Stephanie Jones for any loss of earnings she may have suffered as a result of our discrimination against her, plus interest. PEACHTREE PLAZA HOTEL DECISION STATEMENT OF THE CASE THOMAS A. RIccI, Administrative Law Judge: A hearing in this proceeding was held at Atlanta, Georgia, on June 21, 1977, on complaint of the General Counsel against Peachtree Plaza Hotel, herein called Respondent or the Company. The complaint issued on April 11, 1977, on a charge filed on March 1, 1977, by Hotel, Motel and Restaurant Employees Union, Local 151, herein called the Union. The sole issue of the case is whether the Respon- dent in fact discharged Stephanie Jones for having engaged in concerted activities and therefore violated Section 8(a)(1) of the statute. A brief was filed by the Respondent. Upon the entire record and from my observation of the witnesses I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Peachtree Plaza Hotel, a Georgia corporation, operates a hotel where it is in the business of providing lodging, food, and related services to transient guests. During the past calendar year, a representative period, it derived gross annual revenues in excess of $500,000. During the same period it received goods and services valued in excess of $50,000 directly from out-of-state sources. I find that the Respondent is engaged in commerce within the meaning of the Act. 11. THE UNION INVOLVED I find that Hotel, Motel and Restaurant Employees Union, Local 151, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICE Stephanie Jones was one of over 160 room attendants who each day clean and make up the guest rooms in the 72 story Peachtree Plaza Hotel. Each morning, after signing in, they are assigned for the day to a floor. Part of their work is to replace the bed linen and the toweling, an adequate supply of which normally is found in their work closets on their respective floors. For sometime before February 22, 1977, many of the girls were finding no such 314 PEACHTREE PLAZA HOTEL linen on their floor because the machine which washes and folds it had been broken. In consequence they had to take the elevators down again to the very low floors and themselves carry the necessary supply up. This meant extra work and caused delay in timely completion of their allotted assignments. In the words of Carol Daniels, director of housekeeping in charge of all the room attendants, "the ladies were really getting frustrated." Jones conceived the notion of doing something about this problem by group action of the attendants. She talked to her fellow workers on February 21 in the fourth floor cafeteria; this area is used only by employees for lunch, break periods, and employee meetings the Company sometimes has with them. Jones proposed, and urged, a mass protest over the linen problem and a walkout to compel the Respondent to correct the shortage. Many girls agreed with her, and some did not. Largely in consequence of her initiative, but also with cooperation of others, a large group of attendants - perhaps over 50 - left their work stations on the morning of February 22 to gather in the employee cafeteria and confront management with their demands. Before the girls could reach the meeting room, while they were still assembling and milling about the area near the descending elevators on the fourth floor, Daniels, appraised of developments, quickly appeared. She told the group she was aware of the problem. was sensitive to it, would do something about it as soon as possible, and asked them to pursue other ways of talking with her and to return to their work now. She convinced them, and a little at a time they all returned upstairs to their work stations. While the women were so complying with Daniels' pleadings, Jones kept calling out, in a loud voice, that the girls should stick to their resolve, did not have to go right back to work, "had all kissed [Daniels'] . . . ass," and should "walk out." Several other girls also urged the attendants to remain. In the end everybody went back to work. No sooner had Jones reached her work floor upstairs than she was called back downstairs to Daniels' office and discharged. The complaint alleges Jones was fired for having engaged in concerted activities with others and for having urged the others to persist in their group action by striking to enforce their demands. If only on the basis of Daniels' oral testimony as to why she fired the girl, and what she wrote on the discharge notice that day and in her prehearing affidavit a month later, the record proves the clearest unfair labor practice, a direct violation of Section 8(aX)( 1) of the Act. From Daniels' testimony: "I turned around and Stepha- nie made the statement, 'Yes, you damn well can walk out.' So, at this time I got a little hot under the collar." As to the discharge conversation: "I said, 'Stephanie, you know, anytime you have a problem you have always been able to come and talk to me. On more than one occasion you and I have talked and you know that you can come to me about any problems that you are having. I don't like the idea of you going around trying to get these ladies to walk out.' " Again: "I told her, I say, 'I am going to terminate you because I don't appreciate the attitude of you trying to get people to walk off thejob.' " Daniels' record notation of the discharge, written that same day, reads as follows: On this morning you were down on the 4th floor by room service elevators talking loud and using abusive language. You also were instigating a walkout by the room attendants you made the statement 'yes you damn can walk out' you have always had a bad attitude towards your supervisors the fellow workmen. I am terminating you for disloyalty and violation of rules and regulation. And from Daniels' March 21, 1977, affidavit: "I called Stephanie to my office and told her I didn't like her attitude of encouraging employees to walk out because that was disloyal to the company and I added she knew whenever any employee had problems he or she could come to me to discuss them. I told Stephanie she was being discharged because of her disloyal attitude in trying to get employees to walk out and because of her foul language." I find that the Respondent discharged Stephanie Jones to put a stop to her concerted activities together with other employees and thereby violated Section 8(aX 1) of the statute. Against the foregoing admissions by the director of housekeeping as to her literal reasons, her oblique sugges- tions at the hearing that she dismissed the girl because of her habitual use of offensive language is unconvincing. Jones had been warned in the past not to use bad language. But there is uncontradicted evidence that others on this job do the same, just "not as bad," according to Daniels. In fact, Jones was not the only one to use bad language even during the concerted action the morning of the 22d; her testimony that others yelled and swore as she did is uncontradicted. Whatever the Respondent's understand- able dislike of such language in the hotel by its employees, it had never before deemed that weakness in Jones sufficient cause to discharge her. Lavonia Greeson, now a supervisor but previously an attendant who worked with Jones, as a witness called by the Respondent agreed she was "a good worker." It follows from all this that all of Jones' other faults, whatever they were, never outweighed her value as an employee in the Respondent's judgment, that is, until she began to suggest a common effort by all to improve conditions of employment. It was the thought of strike action that Daniels found intolerable. That this is what the director was not going to permit is shown not only by what she told Jones individually, but also in her announcement to all the women on the fourth floor that day. She told them that if they chose to strike, she would never permit them to come back to work. This was a pure threat of retaliation in keeping with the punitive action she took against Jones for having no more than urged the others to take that risky step. As to details, also stressed by the Respondent, of Jones' other failings, I find them all of no moment to the issue raised here. In the beginning of her employment, starting in August 1976, she wore too much jewelry, used heavy lipstick, shaded her eyes too much, went without a brassiere. She was told not to do these things, and she complied, down to every detail of attire and cosmetics. But with all these faults the Respondent was satisfied to keep 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD her nevertheless until she chose to exercise her statutorily protected right to engage in concerted activities. The further contention in defense that Jones' conduct was disruptive and therefore fell outside the area of protected activity has been rejected too often to require citation of authority here. There was a minimum of loss of work that morning, albeit contrary to the Respondent's desire. But this is precisely what strike action is- concerted withholding of services. If the fact so many attendants that day returned to the fourth floor after going to their work stations be called strike action in itself, then it was a strike Jones had urged them to begin. When the director kept telling the women to return to work and Jones kept yelling they should not work, she was again urging them on to strike. Calling her behavior disobedience hardly changes the nature of her activities in the statutory sense. Likewise, Daniels' paraphrase, in both the record of discharge and the investigation affidavit, equating strike action with disloyalty, is no defense to this complaint. The moral of the case is that merely because an employer establishes one procedure for considering individual or even group employee gripes, the employees do not lose their guaranteed rights to group action, even to the point of strike activity. It sometimes is inconvenient, disruptive, loud, and even abusive in language. It is protected nevertheless. For case precedent precisely in point, see N.L.R.B. v. Thor Power Tool Company, 351 F.2d 584 (C.A. 7, 1965). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 11I, above, occurring in connection with the operations of Respondent described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent unlawfully discharged Jones, it must be ordered to offer her immediate reinstatement to her old job or to a substantially equivalent position. The Respondent must also make Jones whole for any loss of earnings, plus 6-percent interest. And of course the Respondent must be ordered to cease and desist from committing unfair labor practices. CONCLUSIONS OF LAW I. By discharging Stephanie Jones the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 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. 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. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER The Respondent, Peachtree Plaza Hotel, Atlanta, Geor- gia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging concerted activities by any of its employees by discharging employees or otherwise discrimi- nating against them in their employment conditions because of their concerted activities. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer Stephanie Jones immediate and full reinstate- ment to her former position or, if such position no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges. (b) Make Stephanie Jones whole for any loss of pay or any benefits she may have suffered by reason of the Respondent's discrimination against her, with 6-percent interest. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business in Atlanta, Georgia, copies of the notice attached hereto and marked "Appen- dix."2 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by its representatives, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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." 316