The Jackson Hilton

THE JACKSON HILTON Southern Business and Industrial Development Cor- poration, d/b/a The Jackson Hilton and its Operating Receiver Robert G. Nichols, Jr. and J. T. James. Case 15-CA-5293 February 11, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 31, 1974, Administrative Law Judge Melvin J. Welles issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief and the General Counsel submitted a brief in support of the Administrative Law Judge's Decision. 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 briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that Respondent, Southern Business and Industrial Development Corporation, d/b/a The Jackson Hilton and its Operating Receiver Robert G. Nichols, Jr., Jackson, Mississippi, its officers, agents, successors, 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 Respondent contends that the Administrative Law Judge erred in denying its motion to stay the hearing on the grounds that an interim order of a bankruptcy court restrained all legal proceedings against Respondent pending further action by that court . Respondent further argues that, inasmuch as it has now been adjudged bankrupt, the Board should stay the present proceeding. We do not agree. We find that the proceedings involving Respondent's status as a bankrupt in no way affect this decision and that any question regarding Respondent 's ability to comply with the Board's Order is best left to the compliance stage of this proceeding Bakersfield Foods Co., Inc., 123 NLRB 1130, 1131, at fn. 2 (1959), McKesson & Robbins, Inc., 19 NLRB 778, 782 ( 1940). See also American Buslines, Inc., 151 F.Supp. 877 (D.C. Nebr., 1957). 541 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discrimi- nate against employees because of their union activities. WE WILL NOT interrogate or threaten our employees about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by the National Labor Relations Act. WE WILL offer J. T. James reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, and WE WILL pay him for losses he suffered as a result of our having discharged him in May 1974. SOUTHERN BUSINESS AND INDUSTRIAL!DEVELOPMENT CORPORATION, D/B/A THE JACKSON HILTON AND ITS OPERATING RECEIVER ROBERT G. NICHOLS, JR. DECISION STATEMENT OF THE CASE MELVIN J. WELLES , Administrative Law Judge : This case was heard at Jackson , Mississippi, on September 17, 1974, based on charges filed June 7 , 1974, and amended July 31, 1974, and a complaint issued July 31, 1974, alleging that Respondent violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. Upon the entire record in the case, including my observation of the witnesses , and upon consideration of the brief filed by the General Counsel , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Respondent, a Mississippi corporation, is engaged in operating a hotel and restaurant in Jackson, Mississippi. During the past 12 months, it received gross revenues in excess of $500,000, and during the same period, it purchased and received goods and services valued in excess of $ 10,000 from points located outside the State of Mississippi. I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 210 NLRB No. 99 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE UNFAIR LABOR PRACTICES With one minor exception, which will be discussed below, the facts of this case are uncontradicted, being based on the credible and uncontroverted testimony of the alleged discriminatee, James, and of two employees of a local television station, News Director Jack Hobbs, and Vice President Owens Alexander. These facts show that James was interviewed by Hobbs on the morning of May 24, 1974, and that this interview appeared on the 6 p.m. news broadcast that same evening . The interview began with Hobbs saying: Here in Jackson attempts are being made to unionize domestic and restaurant workers . About 125 workers in these categories met in Jackson earlier this week to discuss the proposal to unionize to obtain better working conditions and more pay. J.T. James says they have not contacted any union representatives yet and. are still organizing their efforts , but James says he hopes the movement will spread statewide . I asked James today specifically why he thought unionization was the right route. James then responded , "Well, not to join a union per se, but to try to organize a union." James made other remarks concerning the need for unionization and certain difficul- ties with the minimum wage . A portion of this film was shown to me at the hearing. James was clearly identifiable thereon, and by the caption superimposed on the film reading "J.T. James-spokesman-restaurant workers." Shortly after 6 p.m. that evening, James asked his supervisor for permission to leave the kitchen . He went to a room on the second floor of the hotel where he watched himself being interviewed,' and then returned to his work station in the kitchen. Shortly after his return, he was informed that Respondent's General Manager, Green, wanted to talk to him on the phone. James went to the phone, and the following conversation ensued, as testified to by James: I said, "Hello," and the voice on the other end said, "This is Mr. Green. We just saw you on T.V. What are you trying to do?" I said, "We had a rally earlier this week and we're trying to organize a union for restaurant workers." He said, "You just filed that damn EEOC thing." I said, "Yes, sir, I thought it was a good idea." He said, "Are you saying that all the employees at the Jackson Hilton need to be in a union?" I said, "Yes, sir, that's how I feel." I said, "Like Willie Johnson, who worked two weeks and drew $43.00. If we had a union it wouldn't be that way." He said, "That's no damn concern of yours." I said, "Yes, Mr. Green, I think it is." And he said, "Well if that's that way you feel, why do you hang around here and accept my damn pay?" And I said, "Mr. Green, I don't consider I'm hanging around. I'm here to do a job and I Respondent's only witness, employee Ray Abney, testified that he saw James watching the program while standing at the end of a corridor leading to the lobby. Even if true, this would not affect the result in this case. 7 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, I feel I should be paid for it.". . . and he said, "If your attitude don't change I am going to fire you." And I said, "You're in a position to do so. I can't stop you." Then he said, "If your attitude don't change, I am going to fire you." I said, "Well, Mr. Green, if you're talking about the union, you may as well fire me, because I'm not going to change my mind about that." He then said, "Well, you're fired." In addition to the above, the uncontroverted testimony shows that James was employed from April 8, 1974, to the date of his discharge on May 24, 1974, that during that time he was complimented on his work on a number of occasions by General Manager Green, and that the only time he was reprimanded was in connection with an allegedly improperly cooked meal for which the entire kitchen crew was reprimanded. Based on the foregoing facts, and with no other explanation of James' discharge even advanced by Re- spondent by way of argument, let alone testimony, that Respondent violated Section 8(a)(1) and (3) by discharging James and Section 8(a)(1) by interrogating him about his activities and threatening him with discharge is not open to question, and I so find. CONCLUSION OF LAW By discharging J. T. James because of his union activities, and by interrogating and threatening him concerning those activities, the Company engaged in unfair labor practices affecting commerce within the meaning of Sections 8(ax1) and (3) and 2(6) and (7) of the Act. THE REMEDY I shall recommend that Respondent cease and desist from its unfair labor practices, that it offer reinstatement to J. T. James with backpay, computed as provided in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and take certain affirmative action in order to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER2 Respondent, Southern Business and Industrial Develop- ment Corporation, d/b/a The Jackson Hilton and Its Operating Receiver, Robert G. Nichols, Jr., Jackson, Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discriminating against employees because they have engaged in concerted activities. 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. THE JACKSON HILTON 543 (b) Interrogating or threatening employees concerning their union activities. (c) In any like or related manner interfering with, restraining, or coercing their employees in the exercise of their rights protected by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer J. T. James immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) 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 records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its place of business in Jackson, Mississippi, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by an authorized representative' of the Company, shall be posted by Respondent immediately upon receipt thereof, and main- tained for 60 consecutive days thereafter, in conspicuous places, including all places at all locations where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that the Board's Order is enforced by a Judgment of a to a Judgment of the United States Court of Appeals Enforcing an Order of United States Court of Appeals, the words in the notice reading "Posted by the National Labor Relations Board." Order of the National Labor Relations Board" shall read "Posted Pursuant