Omni International Hotel

t8)'L(ISIONS OF NATIONAL. LABOR RE.IAI IONS BOARI) Omni International Hotel and Hotel and Restaurant Employees and Bartenders Union, AFI.-CI(), Local 151 Omni International Hotels, Inc. d/b/a Omni Interna- tional Hotels/Atlanta and Hotel, Motel & Restau- rant Employees Union, Local 151, AFL-CIO. Cases 10-CA 13088, 10-CA- 13154, and 10-RC- 1163 May 14, 1979 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY MEMBERS JNKINS, MURPIHY, ANI) TRUlISD)AI.I On February 2, 1979, Administrative Law Judge Charles W. Schneider issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended dismissal of the complaint2 and his overruling of the objections to the conduct of the election. 3 I We agree with the Administrative Law Judge's finding that employees Cooper and Bridgers were discharged because they threatened to blow up Respondent's hotel and kill Respondent's security guards, and therefore that their discharges did not violate the Act. In light of this finding, we find it unnecessary to pass on the Administrative Law Judge's further finding that certain conduct engaged in by Cooper and Bridgers in the locker room did not constitute protected concerted activity within the meaning of the Act. We also agree with the Administrative Law Judge's finding that employee Johnson was not unlawfully discharged. While it is not entirely clear whether the Administrative Law Judge found that Johnson was discharged in part because of her refusal to work overtime or solely because of her prior unsat- isfactory work record, we see no need to resolve that issue since, under the circumstances of this case, we would find in any event that Johnson's refusal to work overtime was not protected concerted activity. Thus, the evidence shows that in refusing to work overtime as directed, Johnson was acting solely and entirely in her own self-interest. There is no evidence that Johnson herself ever protested the general operation or effects of Respondent's over- time procedures. Rather, the facts indicate that she sought to circumvent or simply ignored them because she personally did not want to work overtime. ' The Administrative Law Judge's Decision does not contain a formal recommended Order. I The election in Case 10-RC- 1 1163 was conducted pursuant to a decision and direction of election issued on October 7, 1977. The tally was 88 for and 206 against. Petitioner; there were 17 challenged ballots, and there was I void ballot. The challenged ballots were insufficient in number to affect the results of the election. In the absence of exceptions thereto, we adopt, pro forma, the Administrative Law Judge's recommendation that Objections 1, 2, and 4 through 12 be overruled. Petitioner withdrew Objection 3 prior to the start of the hearing. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. CERTIFICAFION ()F RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots have not been cast tbr Hotel, Motel & Restau- rant Employees Union, Local 151, AFL-CIO, and that said labor organization is not the exclusive repre- sentative of all the employees, in the unit herein in- volved, within the meaning of' Section 9(a) of the Na- tional Labor Relations Act, as amended. DECISION SrAIEMENI OF 11it CASI CIIARI.ES W. S NEI)ER. Administrative Law Judge: On September 21, 1977, pursuant to the National Labor Rela- tions Act, as amended, 29 U.S.C. 151, et seq.. Hotel and Restaurant Employees and Bartenders Union, AFL-CIO, Local 151, the Union, filed an unfair labor practice charge against Omni International Hotels, Respondent, relating to the discharge of Arelious Cooper (Case 10-CA- 13088). On October 12, 1977, the Union filed a similar charge against Respondent in connection with the discharge of Natalie Johnson (Case 10-CA-13154). On October 18, 1977, the Union filed amended charges in Case 13088 concerning the discharge of Harry Bridgers. On November 2. 1977. the Regional Director issued a complaint alleging that Respondent committed unfair labor practices in violation of Section 8(a)(l) and (3) of the Act by the discharges of Cooper and Bridgers, allegations de- nied by Respondent in an answer thereafter duly filed. On December 2, 1977, the General Counsel issued a com- plaint in Case 10-CA- 13154 alleging that Respondent com- mitted unfair labor practices in violation of Section 8(a)(I) and (3) of the Act by the discharge of Johnson and by interrogation of employees. By simultaneous Order, the Re- gional Director consolidated Cases 13088 and 13154 for hearing. Thereafter, Respondent duly filed its answer deny- ing the commission of unfair labor practices in Case 13154. On December 14, 1977. the Regional Director issued an Order directing a hearing on objections filed by the Union to a collective-bargaining election held by the Board on November 1, 1977, among employees of Respondent in Case 10 RC 11163. Simultaneously, the Regional Director issued an Order consolidating Case 10-RC- 1163 with the unfair labor practice proceeding for hearing. The Regional Director's Order further provided that following a Decision by an administrative law judge in Case 10-RC 11163 that the matter be transferred to the Board in Washington, D.C., for further proceedings. On January 19, 1978, the Regional Director amended the complaint to allege the commission of additional unfair la- bor practices in violation of Section 8(a)(1) by Respondent 242 NLRB No. 45 248 OMNI INTERNATIONAL HOTEL by interrogation of' employees, allegations denied by Re- spondent in an answer duly filed. Upon due notice a hearing was held before me in At- lanta. Georgia. on April 24 and 25. 1978. The General Counsel. Respondent. and the Charging Party appeared and were represented. All parties were afforded full oppor- tunity to be heard, to introduce and to meet material evi- dence, to examine and cross-examine witnesses, to present oral argument. and to file briefs. Briefs were filed by the General Counsel and Respondent on or about May 23. 1978 and have been considered. Upon consideration of the entire record and the brietfs and my observation of the witnesses and their demeanor. I make the following: FINIING;S Oi FA( I 1. THtF. BL:SINFSS )1- RISPONI)INI Respondent is. and has been at all times material herein. a Georgia corporation with an office and place of business located at Atlanta. Georgia, where it is engaged in the busi- ness of providing overnight lodging, food, and related ser- vices to transient guests. Respondent, during the past calen- dar year, which period is representative of all times material herein, received gross revenues in excess of $500.000 and purchased and received products valued in excess of $50,000 directly from suppliers located outside the State of Georgia. II. THE LABOR ORGANIZATION Hotel and Restaurant Employees and Bartenders Union. AFL-CIO, Local 151, is a labor organization within the meaning of Section 2(5) of the Act. IlI. THE UNFAIR ABOR PRACTICES A. The Isrues On September 21, 1977, Respondent discharged employ- ees Arelious Cooper and Harry Bridgers; according to the General Counsel, because of their union and concerted ac- tivities, and according to Respondent, because they threat- ened Respondent's assistant director of security, and threat- ened to bomb the hotel. The complaint further alleges that on October 12, 1977, Respondent discharged Natalie John- son because of her union and concerted activity. Respon- dent ascribes the discharge to Johnson's improper perform- ance of her duties and her insubordinate conduct and language. Upon petition of the Union, an election was held under the auspices of the Board on November 1, 1977, to select a collective-bargaining representative. A majority of the valid ballots were cast against the Union; the Union thereupon filed objections to the election based in part upon the dis- charges of Cooper, Bridgers, and Johnson and in part on other alleged interfering conduct. The only evidence offered at the hearing in support of the objections was that adduced by the General Counsel relating to the discharges. No evi- dence having been introduced by the Union concerning the remainder of the objections, they were dismissed at the hearing, without objection, upon motion of Respondent. B. The Facts 1. T'he premises and personnel The Omni Hotel is a 47 I-room hostelry torming part of a large complex. referred to as a megastructure, covering some 500 acres in downtown Atlanta, Georgia. In addition to the hotel, the complex contains office space, retail shops. a bazaar. theaters. restaurants, a skating rink. galleries, and a convention center. Except for the convention center. which is located in a separate building connected by a cov- ered passageway, the various tfacilities are under one roof. Entrance to all areas mai be had trom an3 one of a number of communal entrances: that is from any one of the en- trances to the inegastructure one may reach an!: area or facility in the complex. including the hotel. At the time of' the events herein. Respondent employed 502 individuals and had a daily average of' about 650 guests. At that time, Heinz Schutz was general manager of the hotel; Gunther Schnee. executive assistant manager; Marvin Marcum, director of personnel; Renate Seybold, director of housekeeping; James Simms, director of secu- rity; Marvin Bevins, assistant director of security; and Her- bert Finney, security guard. 2. The union campaign On July 26. 1977, John R. Timperio, president and busi- ness manager of the Union. sent a letter to General Man- ager Schutz. advising Schutz that Harry Bridgers and Are- lious Cooper, service attendants employed by Respondent. were actively engaged in an organizational campaign being conducted by the Union among Respondent's employees. Timperio gave union authorization cards to Cooper and Bridgers and instructed them as to securing employee sig- natures on the cards. Thereafter. Cooper secured signed cards which he transmitted either to Bridgers or directly to Timperio. 3. The discharge of Cooper and Bridgers a. Bomb threats Over the past several years, the hotel and other parts of the megastructure have received a number of bomb threats. In the 2 years prior to September 1977, there were at least six. Each required checking out by the various security staffs in the megastructure and by police and fire depart- ments, and, on occasion, evacuation of the structure. In one search a bomb device was discovered. Because of the open character of the center, such threats pose more than an ordinary security problem.' b. Respondent's rules Under Respondent's written rules-described as stan- dards of conduct, violation of which may result in disciplin- I Evidence introduced by Respondent indicates that there were some IS such incidents in Atlanta hotels prior to September 1977. 249 I):( ISI()NS ()1 NA I IONA. I.AB()R RII.A IONS B()OARI ary action or termintilntin emiplioee solicitaltioln s prohih- ited only dlurilg work limle. Solicitation is per-lnitted onl an emplolue's tre tile. I le ritti1t rilles prohibit tile use (Of' "obscene ijorl aihusise linguage", and ;also. l- iltig. intiniidaing, coercing. lightling, or using ahutli\,e lnguage ton the premises at /an time 'for :anl purpose." t'lhere is liso an11 [ilnitlen rule. .laguet dillensllsion. which is regutial- communicaled lto eimpliees, lorhiddlil emplosces to Come to work ''"undul e;arl]" r to sta, ater work "'nd1ul late." Iec intent ofl the rule is that elilloees he tOn the preciises olnl\ during their workitng hou(s insotlar as possible. According to the testinitony of D)irector of' Per- sonnel Marvin Marcin. this rule is necessars becaluse ot wage and hour laws, limitations of' space. limited eles`ator service for employees, and securiit requiremenls. 'Ihere is no contrary evidenlce. C. 7ic' ivle'l o S'(ep t/te'e r 20, I/it tcrtermiltimi o Bridgc'rs a1IId (C',)p'r On the afternoon of September 2(1. 1977. Cooper and Bridgers. having completed their work for the day. came into the employee locker room at ahout 3:3(0 p.m. and changed from their uniforms into their street clothes. While they were there, some employees who were reporting for work and others who had finished tr the day hecame in- volved in a discussion of' the Union. and they asked Bridg- ers and Cooper about it.2 (ooper responded with a sales talk for the Inion. ilis remarks precipitated a heated, loud. and protracted exchange between one of the employees and either Cooper or Bridgers. The discussion extended into the worktime o some of' the employees. Sometime after 4 p.m. someone, not identified, telephoned Director of Securitv Simms, told him that there was a disturbance in the locker room, and that Simms had better send some men down there. Simms notified Assistant Security [)irector Bevins and Security Giuard Finney and told them to see what it was all about. Bevins and Finney then went to the locker rooms. When the' arrived they found Bridgers and ('ooper in street clothes, engaged in a loud and acrimonious discus- sion with employees. some of whom were in unitform. Fin- ney's undenied testimony is that at that moment the discus- sion was about rights due employees who had served in Vietnam.' Cooper's testimony is that he had just about completed the discussion when Bevins and Finney arrived. Assistant Security Director Bevins then told ('ooper and Bridgers that they were creating a disturbance, were divert- ing employees on duty rom their jobs, and he asked them to leave. Bridgers asked Bevins who he was, and Bevins and Finney identified themselves. Cooper and Bridgers pro- tested that they had a right to talk. Bevins reiterated that 2Unless otherwise staled, the indings herein as iii events in the loh>cker room and olher conduct of Cooper and Bridgers as they left the building, are based (on a composite of the testimonies of ll witnesses u,ho testified ahout those events: xooper Assistant Security Director Marvin Besins. Security Guard Herbert Finney. and Employee Alfred Berry. to the extent credited Bridgers, although present in the courtlroom during the hearing, did not testify. There are some differences in the testimonies of Cooper, Bevins, and Finney. Insofar as there is conflict, based on my observation of the witnesses and their demeanor I credit the testimonies of Bevins and Finney. Cooper could recall no references to Vietnam. the,' were causing a disturbance and said that that thev would halxe to leave. t a;hout that point, the other employees left the locker room. Bridgers then said that they would leave. flowe cr, hbefore leaving the locker room Cooper and Bridgers said that they were tired of Nazism and Hitlerism. and that Finne and Bevins could "(Go tell that goddam chlu inistlic Schuiz..' In addition. Cooper and Bridgers punctuated their expressions of' displeasure with a string of' inlctive against Respomident's officials in terms of sons-of- hitches." "motherlickers.' and "Nazis." In the hall, on the way out of the hbuilding. Cooper told Bevinls that lie vould "get" Bevins outside. As they w'ere le;lving. Cooper and Bridgers said that they would be hack, tlha Ithes, would( kill anll securit, guards the ftound on the street. and that they Would blit', up the hotel and get rid of the Nazis.' iinel'S's ncontradicted testinmont is that there was no meinltiotl l' a uion atter his and Bevins' arrival on the scene, After Bridgers and Cooper had left, Bevins and Finney immediately reported the incident to D)irector of' Security Siminms. The Atlanta police were called to the plant, and Bevins informed them otf the bomb threat. Manager Schnee issued instructions that Cooper and Bridgers were to be suspended pending a final decision, and that if they ap- peared the next day they should not be permitted to work. Thereatter. apparently sometime late in the evening. Per- sonnel Director Marvin Marcum reviewed the various re- ports of the incident and recommended the discharge of Bridgers and Cooper, a recommendation which Manager Schutlz approved. On the following morning, September 21 Marcum called (Loper and Bridgers separately to his office and discharged them. Before effecting the discharge, Marcum asked Coop- er ihe wished to make a statement concerning the incident. Cooper replied that he did not. I here is no evidence as to what was said in the discharge of' Bridgers, other than Mar- cum's testimni r that he infotrmed Bridgers of the intorma- tion given Respondent with respect to the threats, said that such hehavior as unacceptable. and that Bridgers was consequentls being separated. Personnel Director Marcum's further testimony is that the primary reasons for his recommendation for discharge were the bomb threat and the threat made to Assistant Se- curity Director Bevins. He also took into consideration the fact that Cooper and Bridgers should not have been on the 4 (oo)per's uncredited leslimony as ti this is that there was no reference to Schutz and nto use of the term Nazi. the credited estimony of Renate Sey- bold, Respondent's director of housekeeping. indicates that union literature issued during the campaign made asserions (of Nazism and contained pejo- rllSces agailnsl (;icerian nationality ' inney testified: T Ithey were going to kill all the security guards that they caught on the street. and . .. [Bridgersl said that if he had to go to jail or go to prison. . he was going to get a whole bunch of lobscenityl . . .and that they were ging to come back down and blow the damn hotel up." Bevins also testified that: "ITIhey were going to come back and blow up this damn place . . and get rid of the Nazis. There is also estimony by Besins and Finney. denied by Cooper, to the effect that on the way out (Cooper or Bridgers also said that they would get Hosea Williams (a local civil rights activisi and leader of the Poor Peoples Union in Atlanta) to assist them. Cooxper's testimony is that his reference was to the former chief of police or police commissioner of Atlanta, a Mr. Eaves. That conflict need not be resolved. 250 OMNI INTERNAIIONAL HOI'E., premises at that time. Manager Schutz' testimony is that his action was based on the threats to the hotel, threats to the employees, and insubordination. 4. The termination of Natalie Johnson Johnson, a guestroom attendant (maid) in Respondent's housekeeping department, was hired on Jul) 26, 1976, and discharged by Housekeeping Director Seyhold on October 12. 1977. a. Johnson's unioln aciivits The extent of Johnson's union interest or activity, if' any. is sketchy. The evidence in that regard is as follows: union representative Timperio testified that at some undisclosed time Timperio asked Bridgers and Cooper bor the name of "an employee in the housekeeping department that seemed to be liked and had the attention of the other employees in that department, somebody who would be considered a key committee member or leader...." Timperio's further testi- mony is that Bridgers and Cooper brought Johnson to him in response to that request. As to what Johnson did there- after, the extent of Timperio's testimony is as follows: Q. [Counsel for the General Counsel] Did she serve you as Mr. Cooper and Bridgers did during this cam- paign? A. Yes, she did.' On the same subject (the extent of Johnson's union ac- tivity), Johnson's testimony as a witness for Respondent was as follows: She was discharged for attempting to initi- ate a union, an activity known to everyone in the hotel. including Personnel Director Marcum, Housekeeping Di- rector Seybold, General Manager Schutz, and the owner of the hotel-Claude Feninger. Asked how they came to know of her attempt, Johnson's testimony was that it was, "obvi- ous.... Everyone knew it.... I didn't have to tell them." Marcum also knew it. because she had discussed it with him in his office and in the cafeteria in later September--about September 26, she thought. (This office meeting is appar- ently the one referred to below.) Around mid-September or late September, apparently prior to September 24 and after the discharges of Cooper and Bridgers. two unidentified floor supervisors advised Johnson that Respondent was set- ting her up to he fired because she was working for the Union. She thereupon went to a meeting of the housekeep- ing staff and "staged" a performance in which she por- trayed herself as antiunion. Thereafter (apparently on the same day), Personnel Director Marcum called Johnson and 6 The General Counsel's case-in-chief as to Johnson is based on the tesli- mony of Housekeeping Director Renate Seybold. who, was called by the General Counsel as his witness. The General Counsel did not call Natalie Johnson as a witness. Respondent, however. called Johnson as its witness for the ostensible purpose of adducing facts beanng on her discharge However, judging from the subsequent direction of examination. Respondent's appar- ent purpose was to establish a foundation for attacking her credihility and character, factors which at least up to that point had n discernible rell- tion to the issues or evident advantage to Respondent. As a witness for Respondent, Johnson contradicted material testimony by Seybold in Re- spondent's favor, which otherwise would have stoold undenied. I As to Cooper's and Bridgers' activity Timperio's testimony is that they aided Timperio "very much," specifically that Cooper turned over to Timpe- no or to Bridgers signed union authorization cards which Cooper had se- cured from employees. two other unidentified employees to his office. where he told them that he wanted them to vote no on the Union because the I nion could do nothing for them. On September 24, 1977, Johnson allegedly assaulted another employee, Willis, assertedly because Willis had informed Respondent that Johnson was passing out union cards. (This incident is fur- ther discussed inlra. ) About 3 days after her antiunion por- traval, Personnel Director Marcum saw Johnson passing out union literature at the employee entrance in the com- pany of union representative Timperio and Arelious Coop- er. and he asked Johnson for some. About September 25. 1977. Housekeeping Director Seybold told Johnson that the Union she was trying to get into the hotel was only for "poor people" and would not be good for Respondent's employees. This constitutes the extent of the evidence as to Johnson's union interest and activity. That evidence constitutes questionable proof that John- son engaged in significant overt union activits at a material time, and that Respondent was aware of it. Other than Tim- perio's pro forma affirmation in response to the General Counsel's leading question referred to above. Timperio's testimony does not disclose what, if anything, Johnson did in the way of assisting the Union. In any event. in view of the leading nature of the question, the answer is of little probative value. Johnson's testimony to the effect that she gave union literature to Marcum at the gate, not denied b3 Marcum, is accepted. However, it is found that this incident occurred after Johnson's discharge, and not before, as she testified. Marcum admitted seeing Johnson at the employee entrance on the day after her discharge in the company of union representative Timperio. I consider his recollection of the time of the event to be more reliable than here recollec- tion. I doubt that, while still an employee, Johnson would have joined openly in the distribution of union literature at the entrance 3 das after her antiunion speech if the pur- pose of the speech had been to deceive Respondent as to her union views, as she claimed. Apart from that incident. Johnson's testimony does not disclose any conduct by her that could be characterized as evidence of activity on behalf of the Union. Other factors militate against acceptance of her testimony as to her union activity. Thus, the only affir- mative objective evidence of any such activity by Johnson is that she denounced the Union publicly--scarcely a per- formance which she could have supposed would be credible to her audience it; as she testified, she initiated the union activity and everyone in the hotel knew it. Although Re- spondent was aware of the incident of September 24 in which Johnson assaulted employee Willis, there is no evi- dence in the record to the effect that Johnson passed out union cards or that Willis reported to Respondent that Johnson had done so. For much the same reasons, I do not consider it plausible that Johnson would have discussed her asserted union ac- tivity with Marcum either in the office or in the cafeteria or that Seybold would, in a conversation with Johnson, refer to the Union as the one Johnson was "trying to get in the hotel." No foundation is shown for Johnson's testimonial conclusion that Marcum. Sebold, Schutz, and Feninger knew of any attempts b her to initiate a union. The state- ments of Marcum to Johnson and to the other two emplo - ees in his office concerning the I nion. if made, do not re- flect an-y union activ it's b'h Johnson or a belief of 251 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent that she was engaged in such activity or had any sympathetic interest in the Union. There is no testi- mony as to what, specifically, was said or done in the al- leged cafeteria conversation with Marcum, other than Johnson's declaration that union activity was "discussed." The absence of essential foundational facts tends to deprive the testimony of essential probative value. Thus, based on the evidence and the plausibilities, there is scant ground to conclude that Johnson engaged in any overt activity on behalf of the Union of which Respondent could have been aware. That conclusion is reinforced by my judgment, based on observation and demeanor, that Johnson's testimony is, in general, not credible. Neverthe- less, in determining the merits of her discharge, I will as- sume that she engaged in significant activity on behalf of the Union, and that Respondent was aware of it. b. Johnson's work performance and conduct Although she received the customary raise upon comple- tion of her 6-week probationary period, and a "merit" raise upon completion of her first year-a raise which, according to the unimpeached testimony of Housekeeping Director Seybold has never been denied to any employee-the evi- dence, consisting of the credible testimony of Respondent's witnesses and documents in Johnson's personnel file, estab- lishes that Johnson was not a satisfactory employee. The first evaluation of Johnson by her supervisor, dated September 8, 1976, 2 months after her hiring, on a scale of excellent, good, fair, poor, rates her work and attendance as fair and her atttitude as poor. That report further indicates a problem with Johnson respecting her keeping supplies in the guestrooms. Nevertheless, the supervisor recommended that she be retained. Around April 1, 1977, Johnson was involved in an inci- dent in which she allegedly knowingly cashed a payroll checks of another employee a second time, after the cashed check had been inadvertently returned by the bank teller to the person cashing the check. On May 23, 1977, Johnson was given a warning notice for violation of safety rules. On July 26, 1977, Johnson was given another evaluation on a scale of outstanding, satisfactory, adequate, and mar- ginal; she was scored satisfactory on four elements (quan- tity, quality, knowledge of work, and cooperation), ade- quate as to ability to learn, and marginal on three factors (personality, judgment, and initiative)-evaluations de- scribed by Housekeeping Director Seybold as "not very good." Nevertheless, Johnson's supervisor recommended her for the yearly pay increase referred to previously. On September 2, 1977, Johnson was placed on probation for 4 weeks and taken off her regular work section because of her unsatisfactory work performance.' Housekeeping Di- rector Seybold's undenied and unimpeached testimony is that Johnson's work did not improve during the probation- ary period; that Johnson was abusive to Seybold, and John- son addressed her in defiant and derogatory terms. As a I Permanent attendants generally have regular work sections or stations. Removal from that section, a disciplinary measure, results in the attendants receiving floating assignments involving filling in for other attendants on their days off or when absent for other reasons. A regular work section is considered more desirable. result she was not restored to her regular work section but remained on probation. On September 24, 1977, Johnson allegedly assaulted em- ployee Maria Willis in the plant cafeteria, assertedly accus- ing Willis of having told Personnel Director Marcum that Johnson was passing out union cards-an accusation which Willis denied and which there is no evidence to support. In the ensuing investigation, Johnson denied striking Willis and accused Willis of assaulting her. Both Johnson and Willis took polygraph tests, the results of which indicated that Johnson was untruthful in denying that she struck Wil- lis. Personnel Director Marcum and Housekeeping Director Seybold reprimanded both Willis and Johnson, the incident was noted in their personnel files, and Johnson was in- formed that further incidents would result in her immediate termination. c. The October 11 incident9 The events precipitating Johnson's termination began on October II. Guestroom attendants are generally required to work 7 out of each 8 weekends. Weekends off are assigned in rota- tion in order to spread them equitably among the staff. The assignments for each week are posted 2 weeks in advance. Prior to the posting-but apparently not thereafter-em- ployees may request to be excused. Johnson apparently did not work her share of weekends. On one occasion she was off 7 weekends in a row. The 2 weekends before the week beginning Monday, October 10, she did not work; on one occasion she called in sick, and on the other she was pre- sumably AWOL. On Tuesday, October 11, 1977, at the end of the work- day, as the attendants were turning in their keys and section slips, Housekeeping Director Seybold asked Johnson whether washcloths had been placed in several rooms where they had been misssing. Johnson replied that she did not know. Seybold asked her to check. In reply, Johnson, in the presence of the other attendants, threw down the keys and the slip and went into the women's locker room. After an interval, she emerged, took the keys and the section slip, and apparently went to the floor. When she returned, with no change being indicated on Johnson's section slip, Sey- bold again asked Johnson whether the washclothes were in the rooms. Johnson did not answer; she threw down the keys and the slip, cursed Seybold, and disappeared. That evening, Seybold telephoned Personnel Director Marcum and told him she had "had it" with Johnson, and that she (Seybold) was going to let Johnson go because of her poor performance and her abusive attitude. However, apparently upon persuasion by Marcum, the decision was delayed until the following morning to give Johnson's "one last chance." It will be recalled that in September Johnson had been warned in writing that another incident would result in her immediate termination. 9 The findings relating to the events of October I I and 12, 1977, are based on the testimony of Respondent's officials Seybold and Marcum, and em- ployee Alfred Berry who testified as to the discharge of October 12. They were the only persons to testify as to those events. There is some evidence in the record indicating that the correct dates are October 12 and 13. The preponderance of the evidence indicates that the proper dates are October I I and 12, as found. 252 OMNI INTERNATIONAL HOTEL d. October 12, the discharge Johnson was scheduled to work the weekend of' Saturday. October 15. On October 12, the day following the incident of the washcloths. Johnson told Housekeeping Director Seybold, in the presence of the other attendants, that she was not going to work on Saturday. Seybold asked Johnson why she did not quit if she did not like the conditions. Johnson responded that she would not quit, and that Sey- bold would have to fire her so that she could draw unem- ployment compensation. Seybold. who was upset, there- upon discharged Johnson. Johnson cursed Seybold. calling her, among other things, a "Nazi bitch." At that time. John- son was still on probation. She was given a termination slip. stating the following grounds: (I) refusal to obey orders of supervisor; (2) using abusive language at a supervisor: (3) obscene, abusive language. Seybold's testimony is that Johnson was discharged on the basis of her whole record. not merely because of her conduct on the day of her termi- nation. C. Conclusions as to tile LUniir Labor Praclices I. As to the discharges a. Bridgers and Cooper The General Counsel contends that the actions of Assist- ant Security Director Bevins, in directing Bridgers and Cooper to leave the hotel premises. constituted a depriva- tion by Respondent of their rights under Section 7 of the Act, and that, even if it is assumed that Bridgers and Coop- er made the threats attributed to them. the threats were a reasonable and foreseeable result of Respondent's unlawful provocation and are thus excusable. I find that the primary conduct for which Bridgers and Cooper were discharged was their threats of violence to individuals and to the hotel premises: that such conduct was not a protected concerted activity. and thus. even ift' it were assumed that their prior conduct in the locker room was protected by the statute. Bridgers and Cooper were properly discharged. Director Marcum testified that in de- termining to discharge Bridgers and Cooper he did take into account the fact that they were improperly on the premises. However, it seems clear from the evidence, and I find, that the substantial reason for the discharges was the threats made by Cooper and Bridgers on their way out of the building: and that the presence on the premises was a thrown in and not a contributing factor to the decision to discharge. Whatever the legality of Bevin's action in direct- ing Bridgers and Cooper to leave the building. Respon- dent's action in the locker room-remediable. if unlawful. by the filing of unfair labor practice charges-did not con- stitute adequate provocation or justification for Cooper's and Bridgers' subsequent threats of violence. Such reactions were not a reasonable, forseeable. or tolerable result of Re- spondent's action in asking them to leave the premises. I find no substantial basis in the evidence from which to inter that Respondent seized on the threats as a pretext to termi- nate Bridgers and Cooper because of their union proselytiz- ing in the locker room or because of their union activity in general. Consequently the discharges were for cause. how- ever valid are the claims that Bridgers and Cooper had a right under the Act to remain in the locker room and to speak in support of the Union. The statute provides a peaceful method of resolving an invasion of rights under the Act. Absent cognizable provocation-of which I find none here-if threats of violent self-help are protected ac- tivity, there is little need for the statute. However, if necessary to the Decision, I do not find that Cooper's and Bridgers' actions in the locker room consti- tuted protected concerted activity. In the first place. while Respondent's rules do not pro- hibit union activity on nonworking time, they do not permit employees to remain on the premises after worktime. Bridg- ers and Cooper thus had no right to be on the property at that time, and it was not improper to request that they leave. That they may have wished to remain for the purpose of engaging in union activity does not create a right under the statute to be there. Otherwise. an employer would be required to permit employees access to his premises during all operating hours for the purpose of carrying on union activity. I am cited to no authority to that effect. and I do not understand it to be the law. The rule itself. requiring employees to leave the premises after completion of their work. is founded in reasonable business requirements. In view of its limited application, such infringement as the rule may have on union actisity, insofar as the circumstances here disclose. is marginal and outweighed by the considerations supporting the rule's es- tablishment. There is no suggestion or indication that the rule was enacted to impede the exercise of self-organiza- tional rights under the statute. or that it was otherwise ille- gal. Second. the directive to leave was a consequence, not of Cooper's and Bridgers' propagandizing. but of the distur- bance in the locker room and the distraction of employees from their work. Even where union activity may lawfully be carried on on an employer's premises, it may not be done in a manner creating disturbances to production or distracting employees rom work. T'hus. even assuming that Cooper and Bridgers had a privilege to carry on union missionary work at the time and place involved, they were not privi- leged to create disruption or to divert employees from work. Thus. the objection of Bevins which resulted in his asking Cooper and Bridgers to leave. was not that they were speak- ing, or that they were speaking about the Union. but that they were causing a disturbance and preventing employees from working. The General Counsel cites the case of AMC Air C'ondi- tioning Co.. 232 NLRB 283 (1977) in support of his posi- tion. That case appears to me to be inapplicable to the present facts. There, one Threadgill, an active union mem- ber. stood up in the employer's lunchroom during his lunch break, asked for attention, and began to read to the ap- proximately 75 employees in the room sections from a book concerning the rights of employees, management. and labor under the Act. Threadgill was prevented from continuing by a supervisor for the reason that Threadgill had not se- cured permission to speak in the lunchroom. After he re- turned to work. Threadgill was led to believe that he would be discharged for speaking in the lunchroom. He then ini- tially refused. but later acquiesced to, a request that he go 253 I)E CISIONS OF NATIONAL LABOR RLATIONS BOAR[) to the office. There was some accompanying interruption of work. Ultimately. Threadgill was discharged for having re- fused the request to go to the office and for having created a disturbance on the production line during working hours (the interruption of work). The Board, reversing the Administrative l.aw Judge, found that Threadgill had a right under the Act to speak in the lunchroom, a nonwork area, on employee's ree time, and that respondent could not, thereore. lawfully require him to secure prior permission to do so. An implicit premise of that holding is that Threadgill was properly on the prem- ises. The Board further found that I'hreadgill was not re- sponsible for the interruption of work on the production line, and further that Threadgill's postlunchroom conduct was a reasonable and forseeable result of respondent's in- terference with his statutory right to speak in the lunch- room. As the statement of' facts discloses, that case differs substantially from this one as to the nature of the initial conduct engaged in, and as to the conduct which precipi- tated the discharge. It is thus not an applicable precedent here."' It is consequently lind that Respondent did not commit unf;ir labor practices bh discharging BIridgcrs and ('ooper. b. The dlsc/largc o/Na ra'li Johntslon Nor does the evidence support the allegation that John- son was discharged because of her union or concerted ac- tivities. It has been seen that Johnson was not a satisfactory em- ploye. Hler perormance ealuations uniformly averaged below satisflhctory or fair. She was placed on probation for 4 weeks on September 2. 1977, and deprived of her perma- nent work section because of dissatisf'ction with her per- formance. At the time. Johnson had received three written adverse reports within the prior 12 months. As a result of her failure to show any improvement thereafter. Johnson was still on probation at the time of' her discharge. Two weeks before the discharge she had been warned, both oral- ly and in writing, that any further incidents would result in her termination. here appears to be no contention and there is no basis in the evidence to conclude that any of' those actions of Respondent were related to union or con- certed activity by Johnson. The uncontested evidence as to Johnson's performance between September 2 and October I I and her conduct on the afternoonl of October I . reflect adequate ground for her discharge an action decided upon that evening by Housekeeping I)irector Seybold and not executed then only because Personnel Director Marcum persuaded Seybold to defer the matter until the following day in order, as Sy- bold testified. to give Johnson "one last chance." " Apart from distinctions as to the cnduct, the Board pointed ut that there was no policy or rule of the employer prohihiting speechmaking in the lunchroom; nor was there a claim that I hreadgill's speech "had undesirable business related consequences " (ild at 284. In. 3). The Hoard thus distin- guished the case of Firah ,lhuilturing (',ronlmt, I, , 202 NI.RB 666 (1973), Where the Board approved a prohibilion against speeches and denm- onstrations in the employer's cafeteria which was used b vssitors and cus- tonlers as well as eniplo)ees. ihbd. Although. on their tlacrs, neither the 1 AM case nor the ftIrlah case seems to be controlling precedent here. on balance the F'i(Th decisin appears nmore applicable than AM1( On the next day, Johnson announced that she was not going to work on the following Saturday. This was beyond the deadline for being excused from weekend work, and there is no evidence that Johnson advanced a reason for her decision. In the past, Johnson had been equally delinquent over a consecutive period of many weeks, on the latest oc- casion only I week before. When Seybold asked Johnson why she did not quit. Johnson responded that Seybold should fire her in order that Johnson could claim unem- ployment compensation. Seybold complied with Johnson's request. On this set of facts, I conclude that Johnson was dis- charged by Seybold for her conduct and her work perform- ance. Such grounds do not constitute a violation of the Act. Although it may not be necessary to the Decision, it seems doubtful that in these circumstances Johnson's indi- vidual refusal to work overtime constituted a "concerted" activity. The evidence is that "some" employees there is no indication as to how many or under what circum- stances did riot like to work orertime and "complained" to Seyhbold about it, hut they nevertheless cooperated. There is no evidence of any concert of opinion or under- standing between them and Johnson. There may be differ- ence of' opinion as to whether, in such a context, it can be said, as the General (ounsel urges, that Johnson's "fellow emploees shared her . . concern and interest in common cotmplaints .... or that her individual refusal related to "a matter of common concern.... (Diagnostic Center Ho.vsi- tl( Corp. of li.as. 228 NLRB 1215, 1217 (1977))." Dissatis- faction of an employee with a condition of employment. voiced by her to a supervisor on her own behalf, does not establish that the action is concerted merely because other employees may have similar views. As the Board said in the Diagnot.ic ( enter case. "communication among employees with no purpose of adanciingg their common interest is not concerted activity." (1/. at 1217). In the instant case, there is no evidence of "colnunication among employees" re- specting weekend work, much less communication with a "purpose of advancing their common interest." However, I find it unnecessar' to decide that issue here. F:or the dispo- sition of this case. I will assunte that Johnson's refusal to abide bh the weekend rule constituted concerted activity within the meaningitng of the Act. If it be concluded that Johnson was discharged because she refused to work on Saturday rather than because of her conduct, that action was not, in the circumstances of this case, a protected activity. Repeated refusals to work over- time constitute a "partial strike," a defiance of the employ- er s authority to determine conditions of employment, and an attempt by employees to set their own conditions of employment. Tlhat is not a protected activity. (.G. Conn, l.imited. 108 .2d 390 (7th (Cir. 1939): alle (-City urniturre ('oipanv, 110 NLRB 1589 (1954): Anumlgamated l.ithogra- phers of lAnirica. Local 2, 124 NLRB 298 (1959). While a single instance of refusal to work overtime may not be un- protected (Polv tch, Incorporated, 195 NLRB 695 (1972): (;iult-Wand.s Corporation, 233 Nl.RB (772 (1977)): where the refusal is part oft' a determined and repetitious course of action it is unprotected. Ilere, Johnson repeatedly refused " Also c .4th'lu (uChion (,, In 221 NLRB 999 (1975): uernse- :tukilyngm El lric (loopeniive, In, 124 NI.RB 618 (1959). 254 ()OlNI \11:R A Ii()NAI 1t()1 1. to work on weekends s\hile continuing to \ork othelr dali s. In such circurnstances. Respondenlt ;as entitled to refuse tIo provide Johnison ilth cnmplo'ielleit \hlle shee coilrinutled to refuse to work the hours norim:ll\ required. I his is essen- tialls what Sebold did. But heond such considerations. it s n jludgiltilt ih;ll even if Johnson's refusal to work oertime was protected. the actual cause of her disciharged was not that action a lole but rather her prior course of condutict, and Ihat iher refus'al to work was i accompaniment. nt lot a cause, o her dis- charge. In sum. the substantial grolnds \'ere in reallit hter prior unsatisfactors perf'ormance anld the rea;sons noted on the termination slip. While her rettusal to \ork on the , eek- end maN have pro vided the ,ccsoln lor the ternlinaltioll it was not the (t'. of' it. I or .Iohnlsonl's refusal merel' pre- sented again the question oft \s hethei her oh perlrinilalltc. conduct. and attitude to\ardl sulel I\sion jlustific her retein- tion. Thus. it calnnot he said thai but tor the ret'usall *h11 would have been retained. 'Ihat the decision In dischalige was postponed on the night of ()ctoher I I th in order to giec Johnson "one more chaicc'' did nt A lthlorle Johlson t, continue her pattern of refusal to abide hb Respondell l's terms and conditions of eriplonenlcilt or require Schbold to blind herself to Johnson's prior record in detlerniling whether to retain her. In sum. I do not helie\e that in the light of Johnson's entire work record it cal be said thal tilhe reasons advanced bh Respondent for her discharge \\serc a pretext. Thus viewed, it ca intot he said that the ()ctohbe 12 conduct plased the signiicant r dolnmilnant role im the deci- sion to discharge Johnson. or that i her disciharge as "notll- vated in ans part" h a purpose to discourage legitimale concerted activit 3 I tlgh 11. I ,/,,r ( ,,lyrli,,,l. 171 NI RB 1040 ( 1968): (Cf. rnA P,\,,,,, l.,,it ( ',,,,O,,. 23 NI.RB 582 (19 78)), or that but for the ()ctober 1I2 inCiden Johnson would have been retalined. It is consequentl's itiund th;at Respondenli did no11 coirnill.t untair labor practices hb the discharge of Johnson. alt it will be recommended that this allegation of the comiplalit be dismissed. 2. The alleged 8(a)( I) conduct The General Counsel has also alleged. and Respondent has denied. several instances of asserted iilalions of' Sec- tion 8(a)( I ) of the Act b' Respondent. I here allegations are that on or about September 14, 1977. Personnel Mlanager Marvin Marcum and Food antd Bcxerage DI)rector (iunither Schnee interrogated emplosee cncerlnilg the unio ll meni- bership, activities. or desires of' emplosees. The only evidence concerning anls discussion bet\\ccn Marcum and emploees related to the I niri is that ofl' Johnson, related in subsection B.4.a abo\c. t tIhe tieect that around mid-Septenmbe or late September 1977 Mar- cum called Johnson and t o other eniplosces to the oflice. and he told theril that he anited them to \ ote aglinst the Union because the l'niron could do nothin tfor lthem. With respect to the allegations as to Schnee. the testi- mony of Schnee. called as a witness hb the (Genclal ('oun- sel, is that he "campaigned'' against thle 'nion and spoke to emplosees about it a number of' times" \shen tlie (caision arose." Except in one instance. there is no e idence l s tIo Illt. specifical . SchneCie did 1I hi "cs rtIia gilig or a.s toi \i.it lie hI said 111 In lie occlsislls sil \nilcl lie spoke to 111- p1hese. I Lt illhlalIlc i\ol\ss ,l In inclidCnit. relited hb, SchtIl. Inl \thi1ch :111 e'lo,ce namedI11C 1 ld Ill .reuil Johilsonl rceicid a S200t salarl\ aneilc troil Schneet. Ater gilnlig lJohnson tile 1ad,:;ncc. Schnee told John1son )1 hat lhe doulbled tit the IlloIl touild be able to gi. Jllnsorll such 111 ,did\ alice. I ind hlir neither the Marcur nor lithe Schnec incident coII l tIitrlC i'o l oi l Cilljll'l ces I Ilie sliCi2Cllts ofl 1;lcllilt itd Schllne do rot disclose thies. proiltiseCs of hbellfit eoilehr coerci\C COiidiiCl. 11 xIsill iiltltorc bh recoiIImerIIded t thosC alllgltioLs lo the tcollLI111 be disl,,ss ied \. ill 110ljI( "llIS 10 Ill I( 11I1iN tililillugl the I Ilioll's oh)ctllins t te ile lecti l rtiscd ,enlsie Ilssuels Is to Respoiilldent's i ondullkt i lile te elec- tril. tire o1il\ eidcnte ole1cd b\1 the I iion at l h Illllmgi in that r \grd s\a is htart adduced iii tile nlt.ill labol prlatice case cricerlliilg tie dfisc'lilrges. polln motilon of Resprll- denci. tlh reni llnl g obljec.tlls t cre dismissed .at the leril-- lg \ilout objectilonll I he dischtirges 1ha lIng been found not tor la e co(lst- uiled itnliur labor pracilces. t s llok ttritlin that the's did lot alect Ihc conduct oft1he (lectnll ili al' cogtnIulble s\\.s It ssill iliclteirc be c) Ci elietillcd th 1 t te obl.ectilos be \ . ltl R 11,11(1) NI Rot ',I I it)R \1 ()Rl "N I Is \\il ( ( )s Respondlnlil 1; , .iske thilu the 1Board be oldered t pa1 Respolde icl!t I 'tll 'nC\' s id C Cll courlt tosts.' ctillI as ail- thori, te decision ofl tle. L nitCd States Suprl-lle ('COU ii the cc t ( iroltill/ ,'f' (Irl'lltl (r) \. E( . 434 L .S. 412 1,78). I tind iha. Ccase not le pporril o Respondent's position. In ('/hritlsl/lt'o. te preatilng IdeCIlndant ii J stilt brhilught i tile nitcd States I)istrict ('Court b the 11O('. a L nitedl Stites (o.rltlIielit agelcl'. tunder title \II ot' the ('ixil RghIs At of 1964. claimed altornei' tees pir.lint to a pro\Islon of Section 700(k) ot' the ,lc. .iuthotrizin the court ''"in its discretion' to allo\s a presailing prlt'l to rC- cover reasonlble attorlle's tee , piarit o the costs I lie Suipremie (Court denied recoer\ - lhe (lu i held that. un- like presailinlg plaintitfl's. preallirllg dettndants could r- coer aornlc 's tees untillder tlt stattl! o1] \helre the plalillt]'s action ,;s l''rI-isollsi. LintleusOIible. or \1sitloilt tounti tion". I lie (oturt distinguished the st.tutor\ test troln ihl.t It csriilCm ol last\. I lie iltterl l,,. ie ( olurt .,lid (citinlg -fhlcs /l/ ( . . It il/dtrtIl' Si(til. 421 I. S 24(f 25 29 7') pnuts recoer ' l f ttl teC\ fs Iroi i lsirig palt! '"ihi has acted it bd aHiti."' I Ile st tutolr \ Atllh rit IT tll tIt . 11 Sectisoll '7ot({k) te ('i,il Righs \ct ot 1904 .is t the .c.alrdting 1 .il!o'lle\ tees h a Court, does lIot it1hl/cric IniiLI tcioul h t N- tii.al I .ubor Relitions Boq;nd Rut es ciit in di d. there s lit blsis /t' COlLtLLkIliog hut tile tlOitl s tlie (tiCC[a. ( liiSCI DECISIONS OF NATIONAL LABOR RELATIONS BOARD here in prosecuting the complaint was frivolous, unreason- able, or without foundation. The case presented substantial legal and factual questions appropriately-and perhaps solely-resolvable by trial. Thus. the Christianburg opinion provides no authority for an award of attorney fees or other costs to Respondent here. No other authority is cited b? Respondent. Since Respondent has not claimed attorney fees and costs from the Board under common law. no deter- mination is required as to that question. However. it may be noted that there is no basis in the record. that I perceive. for concluding that the General Counsel brought the action in bad faith. Respondent's request for an order directing the Board to pay Respondent an attorney's fee and "court costs" is ac- cordingly denied. Upon the basis of the foregoing findings and conclusions, it is recommended that the complaint and the objections to the election be dismissed in their entirety. 256