216 NLRB 721
Greenbrier Hotel
GREENBRIER HOTEL
721
White Sulphur Springs Company, d/b/a Greenbrier
Hotel and Albel't Lindsey. Case 9-CA-8449
February 26, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On October 10, 1974, Administrative Law Judge
Arthur Leff 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 2 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,
White Sulphur
Springs Company, d/b/a Greenbrier Hotel, White
Sulphur Springs, West Virginia, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule
an
Administrative
Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 While we agree with the Administrative Law Judge that Respondent
violated Sec. 8(a)(1) by stating to employee Charles Robert Livesay and to
another employee that Livesay's promised raise was being withheld because
of the employees' organizational effort, we hereby correct his inadvertent
error at par. (d) of his "Concluding findings with respect to 8(axl)
allegations" wherein he states the affected employee was Lindsey rather
than the actually affected employee, Livesay
DECISION
STATEMENT OF THE CASE
ARTHUR LEFF, Administrative Law Judge: Upon a
charge filed by Albert Lindsey on April 15, 1974, and
amended on June 10, 1974, the General Counsel of the
National Labor Relations Board, by the Regional Director
of Region 9, issued a complaint, dated June 17, 1974,
against the above-named Company, Respondent herein,
alleging that Respondent by conduct hereinafter specified
had engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the
National Labor Relations Act, as amended. Respondent
filed an answer denying the commission of the alleged
ur}fair labor practices. A hearing was held at Lewisburg,
West Virginia, on July 30 and 31, 1974. Following the close
of the hearing, the General Counsel and Respondent filed
briefs.
Upon the entire record in the case1 and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a West Virginia corporation, is engaged in
the operation of a resort hotel in White Sulphur Springs,
West Virginia. During the past year, a representative
period, Respondent's gross revenue from its operation of
that hotel was in excess of $500,000. During the same
period, Respondent purchased from firms outside the State
of West Virginia goods and merchandise valued in excess
of $500,000 that were shipped directly, in interstate
commerce, to its location within the State of West Virginia.
Respondent admits that it is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and it is so
found.
II. THE LABOR ORGANIZATION INVOLVED
Greenbrier Security Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introductior,• The Issues
Respondent is charged in this proceeding with having
engaged in 8(a)(1) and (3) unfair labor practices allegedly
committed to discourage employees on its security force
from organizing themselves into a union.
Respondent's security force at the Greenbrier Hotel is
compoged of approximately 22 people who furnish guard
and fire protection service for the hotel and its guests. The
force is headed by Harry Welsh, the hotel's chief of
security, who has occupied that position for 23 years.
Immediately below him in order of rank is Mike Wikle, the
fire chief, who is ranked as a lieutenant colonel. Further
down the line are Thomas Henson, ranked as captain, and
Gerald Wylie and Merle Morgan, ranked as lieutenants.
There are three employees classified as sergeants. The
remaining members of the security force are classified as
i The transcript has been corrected as requested by Respondent.
216 NLRB No. 122
722
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
security officers, first or third class. The complaint, as
amended at the opening of the hearing ,
names as
supervisors Welsh, Wikle, Henson, Wylie, and Morgan?
Respondent in its answer as amended admits that Welsh is
a supervisor and denies the amended complaint's allega-
tions as to the others.3
Most of the employees at the hotel have been represent-
ed by AFL-CIO affiliated unions since 1948. There are six
employee bargaining units at the hotel, four craft units
composed respectively of carpenters, plumbers, electri-
cians, and painters, a hotel workers' unit, and a mainte-
nance employees' unit. Between 1948 and 1960, Respon-
dent's security personnel were included in the maintenance
employees unit which is represented by a local affiliated
with the Laborers' International. In 1960, the security
employees were dropped from the maintenance employees'
unit after it was learned that the inclusion of plant guards
in a bargaining unit also containing other employees was
inconsistent with the provisions of Section 9(b)(3) of the
Act. Since then Respondent's security employees have not
been represented by any labor organization.
In late March 1974, employees in Respondent's security
department initiated an effort to organize a union of their
own. It is the General Counsel's claim in this case that
Respondent, acting through Chief Security Welsh, aided
by others under him alleged to be supervisors, responded
to that organizational effort by engaging in a course of
unlawful conduct designed to chill the employees ' desire
for unionization. More specifically, the complaint alleges
that Respondent violated Section 8(axl) of the Act by (1)
interrogating employees about union activities ; (2) threat-
ening employees with a reduction or loss of benefits or pay
if they became unionized; (3) suggesting to employees that
they form an independent union instead of seeking
representation by an AFL-CIO labor organization; (4)
threatening to rescind an employee's raise because of the
union activities; (5) threatening to alter past layoff policies
for the same reason; (6) terminating certain privileges
theretofore enjoyed by employees; and (7) instituting
certain changes in past working practices to retaliate
against employees because of their organizational effort.
The complaint,
in
addition,
alleges that
Respondent
engaged in 8(a)(3) discrimination against three employees
-in the case of one of them, Gary Lambert, by refusing,
contrary to alleged past practice , to allow him to remain on
its payroll' and to perform "light work" while he was
incapacitated by injury from fully performing his regular
duties ;
in the case of another,
Robert Livesay, by
withholding a promised wage raise ; and in the case of the
third, Robert McCoy, by rescinding a promotion previous-
ly granted him. All of the conduct complained of is alleged
to have occurred in the latter part of March and in the
early part of April.
Respondent's answer, in addition to entering a general
denial, avers affirmatively that if the alleged unfair labor
practices were committed by individuals found to be its
supervisors, the supervisors acted "without the authoriza-
tion and knowledge of Respondent . . . and contrary to
instructions
of
Respondent."
Respondent asserts that
2 The original complaint had named only Welsh and Wide.
3 Respondent's position in this respect has also not been consistent. In its
"Hotel management" first learned of union activity on the
part of its security employees when the charge in this case
was served, and promptly thereafter took measures to
assure the security employees that the hotel had no
antiunion policy and would respect their rights under the
Act, measures which Respondent contends operated as an
effective disavowal and cure of any unfair labor practices
that may theretofore have been engaged in by supervisors
in its security department.
On June 6, 1974, Albert Lindsey, the Charging Party in
this case, filed on behalf of an independent union, called
Greenbrier Security Union, a petition, docketed as Case
9-RC-10599, for an election in a unit of Respondent's
security employees. A hearing on the petition was held on
June 27, 1974. One of the issues litigated at length at that
hearing related to those who should be excluded from
voting eligibility as supervisors. The Petitioner contended
that Wikle, Wylie, Morgan, and Henson were supervisors;
the Employer's position was that Security Chief Welsh was
the only supervisor within the meaning of Section 2(11) of
the Act in its security department. The Regional Director
in his Decision and Direction of Election, issued on July
15,
1974, did not pass on the question of Wikle's
supervisory status because of insufficiency of evidence, but
he upheld the Employer's position as to all other
individuals whose supervisory status was in issue . So far as
appears, the Union did not petition for Board review of the
Regional Director's findings. The election directed by the
Regional Director was to be held on August 12, 1974, after
the hearing in this proceeding. This record does not reveal
its outcome.
Thus, the issues presented for determination are these:
(1) Are Wikle, Wylie, Morgan, and Henson supervisors
within the meaning of Section 2(11) of the Act? (2) Did
Welsh and any of the others named above who are found
to be supervisors engage in 8(a)(1) coercive conduct in the
respects alleged in the complaint? (3) Does the record
support the complaint's allegations of 8(a)(3) discrimina-
tion against employees Lambert, Livesay, and McCoy? (4)
Were the assurances given by Respondent to its security
employees after the filing of the charge such as to amount
to an effective repudiation and cure of any unlawful
conduct that might theretofore have been engaged in by
Respondent's supervisors? These issues will be discussed
below in the order indicated.
B.
Supervisory Status of Wikle, Wylie, Morgan,
and Henson
1.
George Michael Wikle: "Mike" Wikle, classified as
fire chief, is second in charge of the entire
security
operation, and the highest compensated man below Welsh
on the security force. The "fire chief" classification was
excluded from the maintenance employees' bargaining unit
during the period between 1948 and 1960 when Respon-
dent's security personnel were part of that unit. Wikle is
the only member of the security force, besides Welsh, who
has an office of his own at the security department's
headquarters, located in the fire house. Wikle is authorized
original answer it admitted the supervisory status of Wikle.
GREENBRIER HOTEL
to,
and does,
give
work orders to all ranking and
nonranking officers on the security force . The ranking
officers in charge of the respective shifts are required to
report to him with respect to the performance of their
duties. In addition to attending to regular security matters,
Wikle has primary responsibility for overseeing the entire
fire safety and firefighting operation . In fire situations, he
is in full charge, assigns members of the security force to
specific duties, and directs them in the performance of
such duties. He also trains employees in those aspects of
their work that are related to fire security. An employee
may not be promoted from a third-class to a first-class
security officer classification unless he is certified by Wikle
as having passed the course of instruction rendering him
competent to work on a fire truck. Wikle is consulted by
Welsh with respect to other promotions as well . He is the
only one in the security department besides Welsh who
interviews applicants for employment. He has on a. number
of occasions recommended employees for discharge, and
his recommendations were given effective
weight by
Welsh4 On the foregoing facts, I believe it clear, and I
find, that Wikle is a supervisor within the meaning of
Section 2(11) of the Act.
2.
Wylie, Morgan, and Henson: 5 Respondent operates
its security department on a 3-shift basis. Henson is the
ranking officer on the first shift (7 a.m. to 3 p.m.), Wylie on
the second (3 p.m. to I 1 p.m.), and Morgan on the third (I 1
p.m. to 7 a.m.). Six men are assigned to the first shift, the
same number to the second, and eight to the third. The
ranking officer on the shift has no fixed post or station, but
spends most of his time at the headquarters office, with
which the security officers on the shift maintain contact by
telephone and radio . Usually one of the security officers on
the shift is also stationed at the headquarters office. The
others are assigned to fixed posts at entrances to hotel
property and/or to specified patrol duties. On the day of
the week when the ranking officer is off duty, or when he is
otherwise absent or on vacation, his place is taken by the
man on the shift who is next lowest in rank, usually the
sergeant, or, if he also is absent, then by the most senior
security officer on the shift.
Henson, Wylie, and Morgan are viewed by Welsh and by
the men under them as the individuals who are in charge of
their respective shifts . At the hearing in the R case, Welsh
repeatedly in the course of his testimony referred to the
The factual findings in this paragraph are based both on the record
made in this case and on the record made at the hearing in Case
9-RC-10599, the transcript of which was introduced into evidence in this
case.
S As was observed above, these individuals were found not to be
supervisors in Case 9-RC-10599. On the record in that case , the Regional
Director concluded that they were no more than "leadman or shift leaders,
who do not possess any indicia of supervisory authority within the meaning
of Section 2(11) of the Act." The Respondent contends that the Regional
Director, having made that determination in the representation case, is now
precluded from taking an inconsistent position in the complaint which he
authorized and issued on behalf of the General Counsel in this unfair labor
practice proceeding. The law is clear, however, that a finding in a
representation case that a person is not a supervisor, while not subject to
relitigation in a "related" subsequent unfair labor practice proceeding (i.e.,
an 8(ax5) case based on the R case certification), has no binding force in a
subsequent complaint proceeding where, as here, independent violations of
Sec. 8(aXl) and (3) of the Act are involved. See Amalgamated Clothing
Workers (Sagamore Shirt Co.) v.
N.L.R.B , 365 F.2d 898,
902-905
(C.A.D.C., 1966). This does not mean, of course, that evidence and the
723
position they occupy as being that of "foreman" or "head
foreman" of the shift. And though he refused to acknowl-
edge that their status was also that of "shift supervisors,"
the only reason he gave for the distinction he drew was that
they do not have the authority to hire or discharge. As the
ranking officers on their respective shifts, Henson, Wylie,
and
Morgan are charged with the responsibility of
directing the work of the men assigned to their shifts; they
give the orders to the men, and are required to see to it that
such orders are carried out. Normally, no one -higher in
authority than Morgan is present during the 11 p.m. - 7
a.m. hours of the third shift,6 and generally Wylie is the
highest in authority present during the 3 p.m. - 11 p.m.
hours on the second shift.? Although the security guards'
job assignments to posts or patrol work, which are rotated
among them on a regular basis, have well defined duties, it
does not follow from this that the officers in charge of the
shift are left with no work to assign and nothing to direct.
When in his judgment there is a need for this, the officer in
charge of a shift will transfer an employee on his shift from
one post to another or assign him to a particular job other
than the one for which he was scheduled. If a complaint is
made by a guest or if an investigation is required, the
officer in charge of the shift selects the security guard who
,is to handle the complaint or is to conduct the investigation
and tells him what to do. When an emergency situation
occurs on the shift, the officer in charge determines what
duties should be performed by each of the men on the shift
to cope with that emergency, assigns the men to such
duties, and supervises their execution. Although Welsh
normally retains sole authority to determine and assign
overtime work, in the case of an emergency situation
presenting a need for extra men, the officer in charge of the
shift is authorized, without first clearing with Welsh, to call
men not then on duty and to request them to come in on
an overtime basis, making his own determination as to
whom to call. When a man on a shift desires time off he
makes his request of the officer in charge who is authorized
to grant the request if in his judgment it is warranted. As
the ranking officers of their respective shifts, Henson,
Wylie, and
Morgan have no authority to discharge
employees, or, so far as appears, to take other action
affecting their job status. In the case of Wylie and Morgan,
it appears, however, that, while they do not recommend
promotions as a formal matter, they have been called on by
findings of the Regional Director in the representation case must be
ignored. As the court pointed out in the cited case, at 905, "The findings of
the Regional Director [in the representation case] may be accorded
'persuasive relevance,' a kind of administrative comity, aiding the Examiner
and the Board in reachingjust decisions, subject however to reconsideration
both on the record already made and in the light of any additional evidence
that the Examiner finds material and helpful to a proper resolution of the
issue." The findings I make below on the specific issue under consideration
are based on the evidence adduced both in this case and in Case
9-RC-10599, and have also taken into account as a relevant but not
controlling consideration the findings of the Regional Director in the
representation case.
6 Welsh testified that he sees the men in the third shift "perhaps 30
minutes a day, 2 or 3 days a week."
7 Wikle normally works during the 7 a.m. - 3 p .m. hours of the first shift,
devoting much of his time to fire inspection matters. Welsh, so far as
appears, has no fixed working hours, but his testimony reflects that he
spends much of his working time at the hotel, away from security
headquarters with which the security guards maintain contact.
724
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welsh to give their evaluation of employees under them
whose promotions were being considered .8
On the foregoing facts, I am satisfied, contrary to the
earlier finding of the Regional Director, who did not have
the benefit of the added evidence adduced at the hearing in
this case, that enough has been shown to establish that
Henson, Wylie, and Morgan occupy the status of "shift
supervisors," rather than that of "shift leaders" as the
Regional Director found in Case 9-RC-10599. In my
judgment, the authority and responsibility vested in them
to assign work and to direct the work of the employees on
their respective shifts is sufficiently substantial in kind and
degree to place them within the supervisory category as
defined by Section 2(11) of the Act. I think that conclusion
is particularly warranted in the case of Morgan, and to a
somewhat lesser extent in the case of Wylie as well,
because of the absence during all or most of their shift
hours of anyone higher in authority who would be in a
position to direct the day-to-day performance of the work
of the men on the shift. The validity of that conclusion is
not negated by the fact that the men in question possess
only limited attributes of supervisory authority within the
broad range of those spelled out in Section 2(11). The law
is well settled that that section is to be interpreted in the
disjunctive and that an individual need not possess all, or
even most, of the attributes of supervisory authority to
qualify as a statutory supervisor. Ohio Power Co. v.
N.L.R.B., 176 F.2d 385 (C.A. 6). Nor is that conclusion
nullified by the fact that much of the work done by
security officers on a shift is of a routine or standardized
nature,
not necessitating
the exercise of independent
judgment in its direction. The frequency with which
independent judgment is exercised is not the test for
determining whether supervisory responsibility in the
statutory sense is involved. It is enough that the responsi-
bility entrusted calls for the exercise of such independent
judgment on occasions, and that I find to be so here.
Accordingly, I find that Henson, Wylie, and Morgan
were at all times material herein supervisors within the
meaning of Section 2(11) of the Act.
C.
Interference, Restraint, and Coercion
1.
The evidence
On March 23, 1974, employees of Respondent's security
department met at the union hall in White Sulphur Springs
for the purpose of organizing themselves into a union. It
appears to have been contemplated at that time that the
union being formed would seek affiliation with the United
Steelworkers of America, although the latter labor organi-
zation had not yet been contacted to determine whether
such affiliation would be acceptable to it. Albert Lindsey
and Charles Feury were selected at that meeting as
spokesmen for the employees to call upon Welsh to inform
him that efforts were underway to start a union.
The meeting on March 25 was still in progress when
9 Thus, Wylie, a witness for Respondent, referred in his testimony to one
occasion when he was requested by Welsh to state his choice of two men
who were being considered for promotion to a single opening; his
recommendation was adopted.
9 The foregoing findings are based on undisputed testimony of McCoy
security officers Robert McCoy and John Turner reported
for work for the shift beginning at 3 p.m. that day. Upon
their arrival they were summoned to Welsh's office where
they found Wikle and Wylie also present. Stating that he
had heard from a source downtown that the security
officers were meeting at the union hall, Welsh demanded
to know what was going on. McCoy told Welsh that the
men were there to organize a union. Welsh expressed his
anger with the men for organizing behind his back and also
wanted to know whether "that God-damned Lindsey was
at the head of this." When McCoy told Welsh that it had
been planned to have some of the men come in to see him
after the meeting was concluded, Welsh exclaimed, "I
don't want to see none of the sons-of-bitches." 9
Lindsey and Feury called on Welsh later that afternoon;
Wikle and Wylie were also there at the time. The following
account of what occurred is based on a composite of the
testimony, to the extent credited, of all those present.
Except where otherwise noted, the testimony relied upon is
not contradicted.
Lindsey and Feury informed Welsh that they had come
to let him know that the employees in the security
department were organizing themselves into a union.
Welsh asked what union the men wanted. When Feury
replied that the men wanted to get into the Steelworkers
Union, Welsh inquired why they did not form an
independent union and why they thought the Steelworkers
could give them better representation than a union of their
own.10 Welsh also asked Lindsey to identify the employees
who had signed union cards. Lindsey refused to do so,
although declaring that cards had been signed by a
majority of the employees. Welsh also asked why the
employees felt they needed any union at all. Lindsey stated
that the employees wanted to improve their wages and
working conditions, and also protect their jobs, mentioning
in the latter connection a then current rumor that
Respondent was planning to replace Welsh with a Captain
White of the state police who might bring with him some of
his own men. After Lindsey explained to Welsh why the
employees wanted a union, Welsh stated that if the
employees organized a union, it would result in conse-
quences detrimental to them. In the past, he said, he had
stood up for the men, but he would no longer do so if the
men went behind his back and formed a union. He also
said that if the employees became unionized they would
suffer a reduction in their existing pension and insurance
benefits. Much of the remainder of the meeting, which
lasted over an hour, was taken up with a heated discussion
between Welsh and Lindsey concerning complaints which
Lindsey stated employees had about Welsh's operation of
the security department. One of the specific complaints
mentioned by Lindsey was that Welsh was favoring
younger men by promoting them rapidly while making
more senior employees wait 5 years before granting them a
raise. Welsh asked whether Lindsey wanted to cut the pay
and Turner.
10 This finding is based on credited testimony of Lindsey and Feury.
Welsh's denial that any mention was made of the Steelworkers union was
not corroborated by Respondent's other witnesses, Wylie and Wikle.
GREENBRIER HOTEL
725
of the men who he claimed had been favored . Lindsey said
he did not.ii
On the evening of March 25 , following the meeting
referred to above, John Turner, one of the employees
whom Welsh had questioned earlier that day about the
meeting at the union hall, had a second conversation with
Welsh, also at Welsh's office. Welsh told Turner that
Turner had recently been considered for promotion to the
position of acting sergeant, but that Welsh could no longer
consider him for such a promotion now that he knew what
was going on. Welsh also told Turner that if the employees
followed through with their plan for unionization they
would probably lose some of their pension and insurance
benefits. He also told Turner that if there was any possible
way to revoke a raise he had managed to work out for
Turner several months before , he would see that this was
done.'2
The same evening,
March 25, Welsh also had a
conversation with security officer Gary Lambert , concern-
ing- the organizational effort then in progress. Lambert's
credited and uncontradicted account of what Welsh said to
him follows:
He [Welsh] told me I was just harming myself by
joining the union, that I would lose benefits like
insurance, retirement. I could be cut in pay. He also
told me that he had promised Robert Livesay a raise,
but he couldn't give it to him now. He told me that in
the past . . . he had hid men on the post that were sick
and unable to work, so he just hid them where people
wouldn't even see them, so people could draw their
pay, but he wasn't going to do it any more. He said .. .
in the past he had kept people from being laid off in the
winter but because of union activities he wasn't going
to try to keep them from being laid off.
Also during the evening of March 25, Welsh approached
Charles Livesay, one of the security officers who had
attended the meeting at the union hall earlier that day.
After reproving Livesay for not having come to him to
inform him that the men were organizing a union, Welsh
told Livesay, "I guess you know, I can't give you a raise
now." 13
ti Wylie's testimony that Lindsey stated that there should be a 5-year
waiting period before any raises were granted is not supported by the
testimony of other witnesses and is not credited.
is The foregoing findings are based upon Turner's credited testimony.
Although Welsh did not specifically advert to Turner's testimony, he did
testify in general terms that he had not threatened employees with the loss
of benefits or a cut in pay if they organized themselves into a union. With
respect to pension and insurance benefits , a reading of the record as a whole
can leave little doubt that Welsh, whether or not he personally viewed this
as a threat, did seek to impress upon employees that they would suffer a loss
or reduction of such benefits if they became unionized. Respondent has two
pension plans, one for employees represented by unions under contract with
it, and the other for unrepresented employees. Welsh's testimony reflects
that he was of the belief that the unionization of the security department
employees would automatically remove them from the nonunion plan and
place them in the union plan , whose benefits he considered to be inferior,
even though, as he admitted at the hearing, he did not know much about
either plan. With respect to cuts in pay, Welsh did not deny raising that
subject in his talks with employees during this period, but testified that the
way he put it to the men was that if they listened to Lindsey, those who had
recently obtained a pay raise would lose it. Turner impressed me as a careful
witness, and I think it altogether likely that Welsh, considering his anger at
the time with employees for having "gone behind his back," did make the
On March 28, about a half-hour before the end of the
third shift that morning, security officers Gary Lambert,
James Campbell, and Roy Barnes were summoned from
their posts to Fire Chief Wikle's office: Morgan, the
ranking officer on the third shift, was there with Wikle.
Wikle told them they were harming themselves by going
union.
He told them that Respondent's pension and
insurance benefits for unrepresented employees were better
than those for unionized employees, and that if the plant
guards went union they would lose $2,000 in insurance and
also lose some of their pension rights and benefits . He told
them not to listen to Lindsey who, he said, wanted to cut
$100 a month in pay from all security officers who had
been there less than 5 years, and warned them that they
would risk the possibility of a cut in pay if they went
union. i4
On April 2, Lindsey picked up Welsh in the patrol car
and drove him home. En route, as appears from Lindsey's
testimony, not contradicted and credited, the following
conversation occurred:
He [Welsh] brought up the subject of the union and he
asked me why we wanted a union. He said, "I'm your
union" and I told him I thought this was the very thing
that had brought on the union, that he had been our
union too long. He said "Now, you realize that if you
fellows get in the union that you're going to get
cut-your wages will be cut, and your pension plan will
be cut" and he mentioned that the men would be cut in
wages $100 a month.
Prior to March 25, the security department employees
while on duty at the headquarters station were permitted
the use of a television set located there, a set the employees
had purchased out of their "pop" funds. The only
restriction imposed on its use was that it not interfere with
their work. On March 26, while employee John Turner was
watching a television program, Lieutenant Wylie came in,
unplugged the set, and stated, "We'll have no more of
this." Thereafter, the TV set remained disconnected for a
period of about 3 weeks, following which the employees
were again permitted its use . No claim is made by
Respondent that the employees' use of the television was
statement attributed to him by Turner concerning the revocation of
Turner's raise, if not in haec verba, at least in words from which Turner
could reasonably have drawn that meaning.
13 This finding is based on Livesay's credited testimony. Welsh's version,
which I find less plausible, is that he told Livesay, "Did you see that our
friend Lindsey wants not to give you the money and the raise until 5 years
from now." Lambert's undenied testimony, quoted above, serves in a sense
to corroborate Lindsey's and heightens the likelihood that Welsh did make
the statement attributed to him by Livesay.
14 The above findings are based upon a synthesis of the credited
testimony of Lambert , Campbell, and Haynes. Wikle did not deny making
the statements attributed to him . He testified that he told the employees that
their insurance and pensions would be lost or reduced because that was his
belief. He further testified that he computed the $100 a month which he told
the employees they might lose on the basis of the union dues the employees
would have to pay, on the basis of the pension contributions they would
have to make under the union plan , and on the basis of what (he told them)
Lindsey wanted. Wikle's statement that Lindsey wanted to cut their pay was
a misrepresentation of Lindsey 's position. The record shows, as Wikle
himself admitted while testifying, that at the March 25 meeting Lindsey did
not say that he wanted to cut the pay of employees who had been there less
than 5 years.
726
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discontinued for reasons related to the performance by
employees of their duties. Wylie testified that he discon-
nected the set because he had noticed when he first came
there that day that the TV had been unplugged and
assumed that it must have been unplugged for "some
reason." Respondent offered no other explanation for
discontinuing the use of the set for a period of 3 weeks.
Nor did it offer any for restoring its use 3 weeks later. It is
noted, however, that the restoration of its use coincided in
time with the service upon Respondent, on April 17, of the
charge in this case, alleging, inter a/ia, the retaliatory
withdrawal of employee benefits.
Prior to the March 25 meeting, employees assigned to
certain posts were allowed to eat lunch at their posts. Their
lunch, which was provided by Respondent, was brought to
them by the officer detailed to the patrol car. That practice
had been in effect for some 15 years. Shortly after the
March 25 meeting,15 Welsh ordered a discontinuance of
that practice. Thereafter the men at these posts were
required to come to the station house for their lunch. Their
place at the post was filled during their absence by the
officer assigned to patrol duty, who had to relieve three
posts in turn. The employees used the patrol car to drive to
the station for their lunch but remained on duty and were
subject to call during that time. Several employees testified
that this change in procedure was objectionable to them
because they were now expected to drive to the station, eat
their lunch, and return, all within one-half hour, and they
could no longer eat at their leisure. Welsh testified that he
effected this change because he thought it unseemly for
security officers to be seen eating while at their duty
stations. His only explanation at the hearing for ordering
the change at that particular time was that he had not
theretofore been aware that the men at the posts were
having their lunches brought to them, having observed it
for the first time on the day he directed the practice to be
discontinued. Considering the length of time that practice
had been going on, I find Welsh's testimony not credible.
On or about the same day that Welsh effected the change
with respect to lunches he also directed certain other
changes in operating procedures. Before March 25 it had
long been the standard practice to have two men ride in the
patrol car during the evening hours and together to make
the required inspections of the facilities on hotel property
that were removed some distance from the main hotel
building. Under the new procedure directed by Welsh the
patrol car was to be manned by only one officer and
certain foot patrolling and inspection duties away from the
main building that had previously been performed by
officers in teams of two now had to be performed by an
officer working alone. Employees involved viewed these
changes as creating additional hazards for them and
15 Charles Feury in his testimony fixed the date as March 26; other
witnesses for the General Counsel could not fix the exact date but recalled
only that it was shortly after the March 25 meeting , Welsh estimated the
date to be April 8.
is Welsh testified that the standard practice had always been to have
only one man on the patrol vehicle except when a rookie was being trained,
and that this practice had been deviated from only for a brief period of
several months when Respondent had on its security force two extra men
who had been retained after completion of a construction project for which
they had been needed and who had been "stuck any place" until the force
was reduced to normal size by quits. His testimony as to Respondent's
therefore being detrimental to their working conditions, a
view not shared by Respondent. On the day the change
was effected, Gary Lambert was one of the two officers on
the night shift who had been scheduled for duty on the
patrol car that evening. Lambert, a credible witness,
testified without contradiction, and it is found, that when
he was told by Merle Morgan, the ranking officer in charge
of the shift, that the patrol car was to be manned by only
one officer, he remarked, "I guess this is something new for
the damn union again." To which Morgan responded,
"Well, what do you expect? You stick a knife in the boss,
he's going to stick one back." At the hearing,
Welsh
admitted that "immediately or shortly after" the meeting of
March 25, there "could have been" a change in the method
of patrolling, but he denied that the change was related to
the employees' organizational effort. His testimony as to
why that action was taken at that particular time was,
however, confusing and unconvincing and is not credit-
ed.18
2.
Concluding findings with respect to 8(a)(1)
allegations
The foregoing factual findings clearly establish that
beginning at the time Welsh learned on March 25, 1974,
that the security officers in his department were seeking to
organize themselves into a union and continuing through
the early part of April, Respondent, through supervisory
personnel in the security department, engaged in a coercive
campaign designed
to discourage union organization.
More specifically, I find that Respondent, through such
supervisory personnel, trespassed upon employee statutory
rights in violation of Section 8(a)(1) in the following
respects:
(a)
By Welsh's conduct in summoning McCoy and
Turner to his office on March 25 and interrogating them
about the organizational meeting then still in progress at
the union hall. I find such interrogation clearly coercive,
particularly when considered in context with the hostility
toward union organization that Welsh expressed at that
meeting, and also when considered in context with
Respondent's other 8(a)(1) conduct herein found.
(b) By Welsh's statements to Lindsey and Feury at their
meeting on March 25, and later that evening to Lambert,
in which Welsh declared his intent if the men formed a
union no longer to extend to them the lenient considera-
tion he had in the past and to adopt a more restrictive
policy toward them with respect to matters affecting their
earnings and working conditions.
(c) By Welsh's implied threat to Lambert that employees
might suffer seasonal layoffs as a result of union organiza-
tion.
standard practice was, however, directly at odds with that of employee
witnesses, who I do not believe would lie on a matter of this sort and whose
testimony I find was credible
Moreover, Welsh's testimony was vague,
indefinite, and vacillating in its suggestion that there was a relationship in
point of time between the reduction of the security force to normal size
following the addition of the extra men and the change in the method of
patrolling which occurred shortly after March 25. He testified initially that
the reduction occurred about "seven, eight months" before the hearing,
which would fix the time as several months before March 25, but later
altered his testimony to state "I think it was after" March 25.
GREENBRIER HOTEL
(d) By Welsh's statement to Lindsey on March 25, and
also by his statement to Lambert the same day, that he was
withholding from Lindsey a promised raise in pay because
of the employees' organizational effort.
(e) By Welsh's statement to Turner on March 25 that he
was withdrawing his consideration of Turner for promo-
tion to the position of acting sergeant because of "what
was going on" (that reference , I find, was to the union
organizational effort), and also by Welsh's threat to Turner
in the same conversation to revoke if possible the pay raise
Turner had recently been granted.
(f) By the statements made by Wikle to Lambert,
Campbell, and Barnes on March 28, and by Welsh to
Lindsey on April 2, to the effect that employees would, or
might, suffer a cut in pay if they went union.
(g) By statements made by Welsh at various times to
employees Lindsey, Feury, Turner, and Lambert, and, on
March 28, by Wikle to employees Lambert, Campbell, and
Barnes, to the effect that the security employees would
suffer a reduction or loss in their existing pension and
insurance benefits if the security force became unionized. I
find that these statements were inherently coercive and
violative of Section 8(axl) even though Welsh and Wilde
may in good faith believed them to be true. And I find
them no less coercive because, as it appears, the pension
and insurance plans covering the security employees were
in fact restricted in their application to Respondent's
nonunion employees and called for the cessation of
coverage and for the loss of acquired benefits in the event
that previously covered employees became represented by
a labor organization.17 The law is well settled that an
employee benefits plan which on its face conditions the
continued participation and the enjoyment of benefits
therein upon employees continuing to forgo their right to
select and bargain through a collective-bargaining repre-
sentative is inherently
restrictive of employee rights
guaranteed under Section 7 and therefore violative of
Section 8(a)(1) of the Act.is Publicizing to employees that
the unlawful provisions of such a plan will be enforced
against them if they become represented by a union is no
less violative of the Act, and especially so where, as here,
this is done in an organizational context and for the
purpose of discouraging union membership.
(h) By terminating for a period of approximately 3
weeks, beginning on March 26, the privilege theretofore
allowed its employees to use the firehouse television set
during working hours. It is well established that the
withdrawal of employee privileges, though lawful under
other circumstances, is violative of the Act if it is done to
retaliate against employees because of their union activi-
ties.is In the instant case Respondent's conduct in question
must be viewed, not as an isolated act, but in the context in
it The pension and insurance plans were not introduced into evidence.
However, Edward Johnson, the administrator of Respondent's pension
plans,
testified
that
under the provisions of Respondent's so-called
nonunion plan if the security employees became represented by a labor
organization they would all cease to be active members of that plan, and
that eight of them-those having less than 5 years' service with
Respondent
-would in addition lose all their theretofore accumulated rights under the
plan. Johnson further testified that two employees on the security force,
because of their age, would be ineligible to switch to the existing union plan,
even if brought under that plan by agreement, and would consequently lose
all rights upon retirement.
727
which it occurred-its
timing
in relationship to the
employees' organizational effort ; the chief security officer's
anger with the employees for "going behind his back"; his
expressed resentment over the employees'
failure
to
appreciate the privileges and benefits he had provided
them in the past; his declared intent to discontinue his past
lenient policy toward employees; and the other unfair
labor practices that were being contemporaneously en-
gaged in to discourage unionization of the security
department. So viewed, and considered in conjunction with
Respondent's failure to come forward with any other
plausible explanation for its conduct, the only reasonable
inference to be drawn is that Respondent's withdrawal of
the TV privilege constituted a reprisal measure unlawful
under the Act. I so find.
(i) By instituting, in the context of its other unlawful
activity herein found, the changes from past practices,
described above, with respect to patrolling procedures and
the place where employees might eat their lunch. The
legality of Respondent's conduct in these respects does not
turn
on
whether these changes were reasonable or
unreasonable, justifiable
or
not justifiable, from an
operating point of view, but on whether they were effected
for a lawful or unlawful purpose within the purview of the
Act. The Act, does not, of course, prohibit an employee
from effecting changes he normally would make in
employee working conditions simply because his employ-
ees are engaged in an organizational effort. But it does
condemn as an unlawful restraint upon employees' self-
organizational rights retaliatory changes in working condi-
tions designed to discourage unionization .20 On all the
evidence in this case, I am persuaded that Welsh would not
have ordered the changes in longstanding practice here
involved at the time he did were it not for the employees'
organizational effort and a retaliatory purpose on his part
to adopt a "get tough" attitude that would demonstrate to
employees that they would be better off without a union.
The changes were promulgated shortly after Welsh had
indicated to employees his intent to harden his attitude
toward them because of their organizational effort and
during a period when he was engaging in other unfair labor
practices designed to discourage the unionization of
Respondent's security employees. Respondent's sudden
decision in that setting to alter working conditions that had
been in existence for many years in ways considered
objectionable by employees could reasonably be expected
to be viewed by employees as a retaliatory response to their
organizational effort, and also to serve as warning to them
that if they persisted in that effort Respondent had the
means, and had the will, to effect further unfavorable
changes that might make them regret their desire for
unionization. To avoid an inference that this is what was
18 E.g., Goodyear Tire & Rubber Company, 170 NLRB 539, 548 ( 1968),
Motor Wheel Corporation, 180 NLRB 354 (1969), N.LR.B. v. Kroger Co,
401 F 2d 682 (C.A. 6, 1968).
iB See, e.g., Medley Distilling Co., Inc., 187 NLRB 84, enfd. 453 F.2d 374
(C.A. 6, 1971); South Akron Awning Company, 205 NLRB 370(1973). The
case last cited involved the cutting off of an employee's privilege to listen to
a radio while working.
20 See, e.g., Carlisle Paper Box Company, 168 NLRB 706 (1967), enfd.
398 F.2d (C.A. 3, 1968); Wilson Manufacturing Company, 197 NLRB 322
(1972); Plastic Sealers, Inc., 200 NLRB 22 (1972).
728
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intended, it was incumbent on Respondent to present a
plausible explanation that would account for its choosing
that particular time to effect these changes in its prior
practices. As found above, Respondent has not done so.
An inference of illegality under Section 8(a)(1) is therefore,
I find, reasonably warranted. It is noted, moreover, that
the finding of unlawful purpose with respect to the change
in patrolling procedures need not, and does not, rest upon
inference alone . It is buttressed, I find, by Morgan's
remark to Lambert at the time that that change was
announced to him, "Well what do you expect? You stick a
knife in the boss, he's going to stick one back." There is no
similar independent evidence with respect to the change in
the place-of-lunch practice. But since both changes were
effected at the same time , it is reasonable to assume that
they were motivated by the same retaliatory purpose.
The complaint also contains a number of other 8(a)(l)
allegations not covered by the above concluding findings,
with respect to which evidence was adduced at the hearing,
but as to these allegations I find that the credible evidence
does not substantially support findings of 8(aXl ) viola-
tions, and I shall accordingly recommend their dismissal.
D.
Violations of Section 8(a)(3)
1.
Discriminatory denial to Gary Lambert of of
an opportunity to work light duty
On April 7, 1974, Gary Lambert, a security guard in
Respondent's
employ since 1969, sustained
multiple
fractures of his foot in a nonemployment -related accident
and his foot was placed in a cast. The injury incapacitated
him from performing some of the regular duties of his job
particularly those requiring foot patrol 21 After an absence
of 2 days, Lambert called Merle Morgan , the ranking
officer in charge of his shift . Lambert requested Morgan to
ask Welsh if he could come to work while his foot was
mending and perform work that did not require much
walking, mentioning that Welsh had allowed this in the
past under comparable circumstances. Morgan responded,
"No, I won't ask him, and I would advise you not to ask
him. If this wreck would have happened two or three weeks
earlier, before this union business, but because of that he
won't let you now." Several days later, Lambert came to
the station house to speak directly to Welsh about coming
back to work . Welsh had already gone home, but Morgan
was there. After ascertaining from Lambert the purpose of
Lambert's visit, Morgan told Lambert, "Well, I'll tell you
again it don't do any good. Since this union business, he
won't do nothing for nobody." A few clays later , Lambert
again came to the fire station, found Welsh there, and
asked him whether he could come back with his injury and
work in the station. Welsh told Lambert he could not, but,
as appears from Lambert's credited testimony, gave no
reason at the time for denying Lambert's request . Lambert
thereafter continued to remain on an excused layoff status.
On June 19, 1974, after Lambert's cast was removed,
Lambert was reinstated to his regular employee status
21 Lambert testified credibly that with his foot in a cast he was not
altogether disabled from walking, and that, although his condition would
not have allowed him to walk the grounds, it would have allowed him to
upon presenting a release from his doctor. He has since
remained in Respondent's employ.
The complaint alleges in substance that Respondent
unlawfully
discriminated against
Lambert within the
meaning of Section 8(a)(3) by refusing to allow him to
perform light duty work from the date he initially
requested such duty to the date of his reinstatement to full
employee status, as aforesaid. More specifically, it is the
General Counsel's position that prior to the initiation of
the
union organizational effort Welsh in comparable
circumstances had consistently allowed employees, disa-
bled by injury or illness from performing their regular
duties, to remain on the payroll performing light-duty
work, but that Welsh had not similarly accommodated
Lambert because the intervening employee organizational
effort, which Welsh resented and opposed, had led him to
change his earlier policy in that regard as a reprisal
measure.
To support his contention with respect to Welsh's earlier
policy,
the
General Counsel adduced evidence, not
disputed by Respondent, establishing that prior to March
25, 1974, Welsh had on a number of occasions assigned
"light-duty" work to employees when they had been
disabled through illness or injury from performing their
regular duties. Three examples were specifically cited. In
two of them, the employees had suffered heart attacks.
After their release from the hospital, they had returned to
their jobs while not yet fully recovered and had been
assigned exclusively to posts that required little or no
walking. In the third, the employee, Albert Lindsey, had
sustained a severe injury to a knee in an accident on the
job and had been told by his doctor that he could not
perform his regular work since it was essential to his
recovery that he keep weight off his knee. After 5 days'
absence from the job, Lindsey, at the suggestion of Welsh,
had returned to work, and for a period of 3 months
thereafter, until he was well enough to resume his regular
duties, he had been assigned exclusively to duties in the fire
station and as a dispatcher , duties that required little or no
walking. Welsh admitted at the hearing that Lambert's
injury would have permitted him to do the same light work
that had been given Lindsey. Lindsey, who has been in
Respondent's employ as a security guard for more than 10
years, testified that during all that time no employee, other
than Lambert, had been denied light-duty work when
unable because of illness or injury to perform in full his
regular
duties. Respondent did not dispute Lindsey's
testimony in that respect, nor otherwise make any claim to
the contrary.
To support his contention that Welsh was motivated by
the unlawful reasons stated above in according Lambert
disparate treatment, the General Counsel points to the
antiunion course pf conduct, including other reprisal
actions, engaged in by Welsh at about the same time, as
reflected by the findings made above and the additional
findings to be made below. And as more specifically
revealing of Welsh's motivation in denying Lambert light-
duty
work, the General Counsel
relies on
Lambert's
perform most of the other work performed by security guards , such as
dispatching work at the station house, manning the front gate post, and
driving the firetruck
GREENBRIER HOTEL
729
credited testimony relating to his conversation with Welsh
on the evening of March 25. It will be recalled that Welsh
in the course of that conversation had referred to his liberal
and considerate treatment of employees in the past,
mentioning specifically how he had allowed employees
unable to do their work because of illness to remain on the
job and draw pay, and had stated that because of the union
activities "he wasn't going to do it any more." Welsh's
attitude in that regard is furthet evidenced by the reasons
which Morgan gave Lambert for not transmitting Lam-
bert's light-duty request to
Welsh, as found above.
Although the record evidence does not support a finding
that Morgan had specifically discussed Lambert's request
with Welsh, it is reasonably to be inferred from the reasons
given that Welsh must at least have earlier communicated
to Morgan the attitude he would adopt on a matter of this
sort.
The evidence adverted to makes out an exceptionally
strong prima facie case in support of the General Counsel's
position, one which I find on all the record Respondent has
failed persuasively to overcome. Respondent's counsel in
his opening statement gave the following as Respondent's
reason for not granting Lambert's request for "light duty":
"He was injured in a nonemployment accident and there
was simply no job available for him on the shift that he
worked in so-called light duty." The record shows,
however, and Welsh during his cross-examination in effect
conceded, that prior to the initiation of the employees'
organizational effort Welsh had not confined his lenient
policy of allowing partially disabled employees to perform
"light duty" exclusively to employees whose injury or
illness was job-related. Further, Respondent's contention
that no light duty work was available on the third
shift-the shift on which Lambert worked-was not
convincingly supported. The record shows that Lindsey
had also worked on the third shift; yet Welsh was able to
arrange light duty work for him, work which, Welsh
conceded at the hearing, Lambert could also have been
given without affecting the efficient operations of the
security force. During the course of the hearing, Welsh
shifted from Respondent's originally stated position and
now asserted as his primary reason for not allowing
Lambert to come back on light duty that he did not want
to subject the hotel to the risk of liability if Lambert was
further injured on the job. Welsh was unable to explain
satisfactorily, however, how light-duty work of the kind
that had been given others, Lindsey for example, would
have created a substantial risk of such further injury. Nor
did he explain why the same consideration had not
deterred him from giving light-duty work to ill or injured
employees prior to the start of the Union's organizational
effort. Taking into account Welsh's conversation with
Lambert on March 25 and Morgan's remarks to Lambert
when Lambert asked for light-duty work, I am convinced
that the last mentioned reason is the product of an
afterthought and was not the controlling reason that
motivated Welsh to deny Lambert light-duty work at the
time he did.
On all the record, I am satisfied that the General Counsel
has established by a fair preponderance of credible
evidence that Respondent, through Welsh, was led to deny
Lambert light-duty work, contrary to his past practice in
comparable situations, for the reasons contended by the
General Counsel, as stated above. Accordingly, I find that
Respondent discriminated against Lambert in violation of
Section 8(a)(3) and (1) of the Act.22
2.
Discriminatory withholding of a wage increase
from Charles Livesay
Charles Livesay was hired by Welsh on September 10,
1973, and at that time, as appears from his credited
testimony, was told that after he worked 6 months he
would receive a $100-a-month raise. Six months later
Livesay spoke to Wikle about the raise. Wikle told him that
he could not get the raise at that time, but that a raise
would be put in for him as soon as the season opened.
Respondent's season normally opens about April 15.
Livesay attended the employees' organizational meeting
which was held on March 25, 1974. On the evening of the
same day, as found above, Welsh reproved Livesay for not
having informed him that the men were organizing a union
and told Livesay, "I guess you know, I can't give you a
raise now." Also, as found above, during the course of a
Separate conversation with Lambert that same evening,
Welsh told Lambert that he had promised Livesay a wage
increase but that he could not give it to him now, the
implication being clear that this was because of the
employees' organizational efforts which Welsh resented.
Livesay eventually did receive his raise, but this was not
until June 16, 1974.
Upon the foregoing facts, evaluated in the context of
Respondent's other unfair labor practices during this
period, particularly its other reprisal actions, I am satisfied,
and find, that Respondent's delay between April 15, 1974,
and June 16, 1974, in giving Livesay the wage raise he had
been promised would not have occurred but for the
employees' organizational campaign, and that it was
motivated by retaliatory considerations. I find that by
withholding Livesay's pay raise during that 2-month period
Respondent violated Section 8(a)(3) and (1) of the Act.
3.
Discriminatory rescission of Robert McCoy's
promotion
Prior to the organizational meeting of March 25, 1974,
Robert McCoy, then a first-class security officer, was told
by Lieutenant Wylie, his shift supervisor, that he was being
promoted to the position of acting sergeant. McCoy was
given at that time the cap and stripes that are the insignia
of a sergeant's position. While serving in an "acting"
capacity, however, McCoy was not entitled to wear the
insignia nor was he entitled to any raise in pay; his duties
remained those of a first-class security officer, except that
he became next in line to take charge of the shift if those
above him higher in rank were absent 23 McCoy attended
the employee organizational meeting on March 25. While
22 1 find that the period of discrimination began on April 10, when
Morgan refused to transmit Lambert's request for light-duty work, and
ended on June 19, 1974, when Lambert was reinstated to regular employee
status.
23 It appears that at about the same time that McCoy was promoted to
acting sergeant Respondent advanced all its sergeants and officers one
(Continued)
730
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that meeting was still in progress-as found above-Mc-
Coy was summoned, along with Turner, to Welsh's office
and interrogated by Welsh as to what was taking place at
the meeting. In the course of that interrogation, Welsh told
McCoy that he had just received confirmation of McCoy's
promotion to the position of acting sergeant and demand-
ed to know in effect why McCoy and the other men were
acting in opposition to him in their organizational effort.
Later that day, Welsh had another conversation with
McCoy in which he sought to dissuade McCoy from
supporting the employees' organizational effort, stating to
McCoy, among other things, that Lindsey did not think a
sergeant should get more than other men on the force. On
March 28, Sergeant (Acting Lieutenant) Mines-who was
in charge of the shift that day, it being Wylie's day
off-told McCoy to return the sergeant's stripes that had
been given him. When McCoy inquired why that action
was being taken, the only reason given him was that "the
boss jumped the gun." Although he was not specifically so
told, McCoy assumed from the demand made upon him
for the return of the sergeant's insignia that his promotion
to the position of acting sergeant was being rescinded. His
assumption, I find, was a correct one.
Respondent has advanced no clear explanation for the
demotion. Counsel for Respondent in his opening state-
ment, addressing himself to the 8(aX3) allegation relating
to McCoy, stated:
McCoy was promoted to acting sergeant, but the
evidence will show that there was no pay increase
involved. He was, contrary to the hotel's understand-
ing, the management's understanding, and against its
direction, reduced from acting sergeant to security
officer first class. When management learned of that, it
immediately corrected it.24
Welsh's testimony does not support the statement that
McCoy's demotion has been corrected. Welsh testified that
as of the time of the hearing McCoy was a first-class
security officer but that he "will be" an acting sergeant.
Welsh admitted that he was responsible for recalling
McCoy's sergeant's insignia, but, while denying that he did
so for union-related reasons, gave no other explanation for
demoting McCoy at the time.
In the absence of any other plausible explanation for
McCoy's demotion and in the light of the other unfair
labor practices, including acts of reprisal, in which it has
been found that Respondent, through Welsh, was engaging
in at the time,
I believe an inference is reasonably
warranted that McCoy's promotion to acting sergeant was
rescinded because of the employees' organizational effort
and McCoy's sympathy with and support of that effort. I
so found, and further find, that by taking such action
Respondent violated Section 8(aX3) and (1) of the Act.
E.
Respondent's Exculpatory Contentions
As noted above, Respondent contends that it should be
exculpated from liability for the conduct herein found
notch in rank, but also in an acting capacity . At the time of the hearing, they
were all still in an "acting" status in their higher classification, with their
rate of pay remaining as before.
unlawful because (1) such conduct was contrary to hotel
policy and was engaged in without the knowledge and
authority of hotel management, and (2) such conduct was
affirmatively repudiated and effectively disavowed by
hotel
management promptly after being called to its
attention.
To support these contentions, Respondent relies upon
the testimony of its president, Edward Truman Wright,
who has had primary responsibility for the operations of
the Greenbrier Hotel for the past 23 years. Wright testified
that the Greenbrier Hotel has always had an open door
policy toward unions, pointing as evidence of this to the
amicable relationship the hotel has enjoyed since 1960 with
the six unions that now represent hotel employees.
According to Wright, he first learned that there was union
organizational activity by the security guards on April 17,
1974, when the charge in this case was served on
Respondent. Any coercive or discriminatory conduct that
may have been engaged in by supervision in the security
department prior to that time, testified
Wright,
was
unauthorized by hotel management and contrary to its
policy. Wright further testified-and this is conceded by
the General Counsel-that, after learning of the charge
and conferring with the Board's field examiner concerning
it, he called a meeting of the security guards and at that
meeting, held on May 5, read to them a prepared statement
to clarify the hotel's position with respect to their right to
organize. In his statement Wright advised the security
guards in substance that the hotel had no antiunion policy;
that, while the law forbade them from joining any of the
hotel's existing unions, they were free to join a union
representing security guards; and that Respondent under
the law could not, and would not, take or permit any
action to discourage or encourage them from doing so.
Wright impressed me as a truthful witness, and I credit
his testimony that he did not expressly authorize, and prior
to the charge in this case was unaware of, any of the
activities herein found to have been engaged in by the
hotel's
security department supervision to discourage
union organization. I agree with him that the Greenbrier
Hotel can scarcely be characterized as an antiunion
employer in the light of its long and harmonious relation-
ship with the six existing unions at the hotel. And I also
accept Wright's testimony that the conduct herein found
unlawful did not reflect hotel policy, as that policy was
understood at the highest level of Respondent's manage-
ment. In that respect I am satisfied from the evidence in
this record that the unlawful conduct had its roots in
Welsh's personal enmity toward the employees organiza-
tional effort, generated by a fear on his part that the
formation of a union would somehow undercut the esteem
and authority he had enjoyed during his 23 years service as
security chief. It is clear from the record that Welsh
considered himself a good "boss" who had protected the
interests of the men ("I'm your union"), felt personally
affronted by the employees' manifested desire for separate
representation of their own, feared and distrusted Lindsey
as a potential leader of the Union, and was led by these
24 Counsel's reference to "management" is obviously to the hotel's top
management, above Welsh.
GREENBRIER HOTEL
731
considerations to oppose union organization in the manner
he did. But the fact that Welsh acted on his own, rather
than at the direction of higher management authority, and
contrary to hotel policy, in initiating and engaging in the
unfair labor practices herein found, does not exonerate
Respondent from legal responsibility for his conduct. The
fact remains that Welsh was a management representative
acting within the implied scope of his authority-in fact to
the security employees he was management-and Respon-
dent must under the doctrine of respondent superior as a
matter of law be held accountable for his unlawful
activities, no less so than if its top management had
expressly authorized and directed them.
Respondent's contention that Wright's assurances to
employees following receipt of the charge served as an
effective disavowal and "cure" of the earlier unfair labor
practices stands on no firmer footing. The assurances given
by Wright to the employees were general in nature. The
statement read by him neither specifically adverted to nor
repudiated the specific coercive
statements made by
subordinate
management representatives,
statements
which, left standing, would retain their coercive force.25
Nor did Respondent take any steps to undo the unlawful
reprisal actions found to have been taken by Welsh. In
these circumstances, if the policies of the Act are to be
effectuated, the assurances given by Wright to the security
guards can scarcely be viewed either as a "cure" of the
earlier unfair labor practices or as an effective substitute
for a Board remedial order.
CONCLUSIONS OF LAW
1.
By engaging in the conduct summarized in section
III, C, 2, above, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a)(l) of the Act.
2.
By denying Gary Lambert an opportunity to work
light duty, by withholding a wage increase from Robert
Livesay, and- by rescinding the promotion of Robert
McCoy to the position of acting sergeant, all as found
above, Respondent has engaged in unfair labor practices
within the meaning of Section 8(aX3) and (1) of the Act.
3.
The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
4.
Respondent has not engaged in unfair labor prac-
tices as alleged in the complaint in respects other than
those stated above.
THE REwDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respondent
be ordered to cease and desist therefrom, and from like
and related unfair labor practices , and that it take the
affirmative action provided for in the recommended Order,
below, which I find necessary to effectuate the policies of
the Act.
Having found that Respondent unlawfully discriminated
against Gary Lambert between April 10 and June 19, 1974,
against Charles Livesay between April 15 and June 16,
1974, and against Robert McCoy beginning on March 28,
1974, it will be recommended that Respondent make each
of them whole for any loss of money he may have suffered
by reason of the discrimination against him, by payment to
him of a sum of money equal to the amount of his loss, if
any, together with interest thereon at the rate of 6 percent
per annum. F.
W.
Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962). In the case of Gary Lambert the amount of his loss
shall be computed on the basis of the amount he normally
would have earned if employed by Respondent during the
period of the discrimination against him, less net earnings,
if any, during such period. In the case of Livesay, the
amount of his loss shall be computed on the basis of the
added amount of money he would have earned during the
period of the discrimination against him. In the case of
McCoy, it will additionally be recommended that Respon-
dent be ordered to reinstate him to the position of acting
sergeant, or, should it appear that, but for the discrimina-
tion against him, his position of acting sergeant would
normally have been converted to sergeant prior to the date
of such reinstatement, then to the latter position. The
amount of loss, if any, in McCoy's case shall be computed
on the basis of the difference, if any, between the amount
he earned as a first-class security officer and the larger
amount he would have earned had he not been discrimi-
nated against, as found above, from the date of the
discrimination (March 28, 1974) to the date of reinstate-
ment 28
No affirmative provision is recommended for rescission
by Respondent of the changes from past practice, found
violative of Section 8(a)(l), that were effected by Respon-
dent with respect to patrolling procedures and the place
where employees might eat lunch. Such changes were
found to have violated that section, not because they were
inherently unlawful, or even unreasonable, but because
they were effected in a coercive context for an unlawful
purpose. It is believed that this violation is adequately
remedied by the cease and desist provisions in the
recommended Order.
For reasons that have been indicated above, it is
recommended that Respondent be required to post its
notice to employees, provided for in this recommended
Order, only in places where notices to its security guards
are normally posted.
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 recommended:
sa Such as, for example, the statements made by Welsh and Wikle that
unionization would result in a loss or diminution of insurance and pension
benefits.
2
The record in this case establishes that up to the date of the hearing
McCoy suffered no loss in pay by reason of the discrimination against him.
The backpay provision in his can is recommended only for the purpose of
covering any change in relevant circumstances occurring between the date
of the hearing and the date he is granted reinstatement as herein required.
732
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 27
White Sulphur Springs Company, d/b/a Greenbrier
Hotel, its officers, agents, successors, and assigns, shall:
1.
Cease and desist from:
(a)
Interrogating employees concerning their union
activities,
membership, or support,
or those of other
employees, in a manner violative of Section 8(axl) of the
Act.
(b) Directly or indirectly threatening employees with less
favorable treatment,
with
more restrictive
personnel
policies, with seasonal layoffs, with losses or cuts in pay, or
with any other consequences detrimental to them affecting
their wages, hours, or conditions of employment, in the
event they become represented by a labor organization.
(c) Directly or indirectly threatening employees with the
withholding or rescission of pay raises, promotions, or
other benefits because of union organizational activities.
(d) Threatening employees with a loss or reduction in
their existing pension or insurance benefits if they become
represented by a labor organization.
(e) Terminating privileges theretofore allowed its em-
ployees in reprisal for their union or protected concerted
activities.
(f) Instituting changes in conditions of employment in
reprisal for, and in order to discourage, union membership,
activities, or support of a labor organization.
(g) Discriminating against employees with respect to
their hire or tenure of employment, or any term or
condition of employment, in order to discourage member-
ship in, or support of, Greenbrier Security Union, or any
other labor organization.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2.
Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Reinstate Robert McCoy to the position of acting
sergeant, or, if such position would normally have been
converted to that of sergeant prior to the time of such
reinstatement, then to the latter position.
(b) Make whole Gary Lambert, Charles Livesay, and
Robert McCoy for any loss of earnings they may have
suffered by reason of Respondent's discrimination against
them, as set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request , make available to the
Board or its agents, for examination and copying the
records necessary to determine the adequacy of reinstate-
ment of Robert McCoy and the adequacy of backpay, if
any, due him, and of backpay due Gary Lambert and
Charles Livesay.
(d) Post at its hotel in White Sulphur Springs, West
Virginia, copies of the attached notice marked "Appen-
dix."28 Copies of said notice, on forms provided by the
Regional Director for Region 9, after being duly signed by
Respondent's representative, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to Respondent's
security guards are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director of Region 9, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER RECOMMENDED
that all allegations of
unfair labor practice in the complaint , except for the unfair
labor practices herein found, be dismissed.
27 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.
28 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 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
WE WILL NOT interrogate employees concerning their
union activities, membership, or support, or those of
other employees, in a manner that will interfere with
employees rights under the National Labor Relations
Act.
WE WILL NOT directly or indirectly threaten employ-
ees with less favorable treatment, with the adoption of
more restrictive personnel policies,
with
seasonal
layoffs, with loss or cuts in pay, or with any other
consequences
detrimental to them affecting their
wages, hours, or conditions of employment, in the
event they become represented by a labor organization.
WE WILL NOT threaten employees with the withhold-
ing or rescission of pay raises, promotions, or other
benefits because of union organizational activities.
WE WILL NOT threaten employees with a loss or
reduction in their existing pension or insurance benefits
if they become represented by a labor organization.
WE WILL NOT terminate privileges heretofore granted
our employees in reprisal for their union or protected
concerted activities.
WE WILL NOT institute changes in conditions of
employment in reprisal for, and in order to discourage,
union membership, activities, or support.
WE WILL NOT discriminate against our employees
with respect to their hire or tenure of employment, or
of any term or condition of employment, in order to
discourage membership in Greenbrier Security Union,
or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under the Act.
WE WILL reinstate Robert McCoy to the position of
acting sergeant, and make him whole for the pay, if
any, that he lost by reason of his earlier demotion from
that position.
GREENBRIER HOTEL
733
WE WILL make Gary Lambert and Robert Livesay
remaining members of Greenbrier Security Union, or any
whole for any pay they lost by reason of the
other labor organization.
discrimination against them, with interest.
All employees employed by us as security guards are free
WHITE SULPHUR SPRINGS
to
become or remain,
or refrain from becoming or
COMPANY, D/B/A
GREENBRIER HOTEL