Briarwood HiltonDownload PDFNational Labor Relations Board - Board DecisionsFeb 20, 1976222 N.L.R.B. 986 (N.L.R.B. 1976) Copy Citation 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McMullen Corporation , d/b/a Briarwood Hilton and Hotel, Motel, Restaurant Employees , Cooks & Bar- tenders Union, Local 24, AFL-CIO. Case 7-CA-12019 February 20, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On December 5, 1975, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Re- spondent filed a reply 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 Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent McMullen Corporation, d/b/a Briarwood Hilton, Ann Arbor, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order. pany, has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act. In substance, the complaint alleges that on May 13, 1975, Respondent discharged its employee Marvel Turner (Mayotte) because of her activities on behalf of and adher- ence to the Union, and, by.reason thereof and by other conduct set forth in the complaint, Respondent also has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent's answer to the complaint denies that it has engaged in the alleged unfair labor practices. A hearing in this proceeding was held in Detroit, Michigan, on Septem- ber 11, 16, and 17, 1975. Posthearing briefs were filed with the Administrative Law Judge by General Counsel and Re- spondent. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company, a Michigan corporation, operates a hotel and restaurant in the city of Ann Arbor, Michigan. During the calendar year 1974, which period is representative of the Company's operations, Respondent derived gross reve- nues in excess of $500,000 and purchased and caused to be shipped to its Ann Arbor premises from points outside the State of Michigan foods, beverages, cleaning materials, and other goods valued in excess of $5,000. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES 1 The General Counsel 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 credibili- ty 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 those findings. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge and an amended charge respectively filed on May 14 and May 23, 1975, by Hotel, Motel, Restaurant Em- ployees, Cooks & Bartenders Union, Local 24, AFL-CIO, herein called the Union, a complaint, dated June 30, 1975, was issued alleging that McMullen Corporation, d/b/a Briarwood Hilton, herein called Respondent or the Com- A. Background Prior to 1975, the Company recognized the Union as the representative of its restaurant employees and since then has been party to collective-bargaining agreements with that organization. The current agreement expires in Janu- ary 1977. At least as early as December 1974 the Company's unrepresented employees began discussing the Union among themselves and also, from time to time, with the Union's representative. Such activity has been open and continuous and has been known to company manage- ment. Thus, General Manager Hans Franke testified that in February 1975 he learned that the Union was engaged in an organizational drive, that its business representative, Dennis Tap, had held meetings in the hotel with the em ployees, and that Marvel Turner, a maid employed in the housekeeping department, favored the Union.' i All dates refer to 1975 unless otherwise indicated. 222 NLRB No. 158 BRIARWOOD HILTON 987 In April, the Union intensified its organizing efforts. Marvel Turner obtained authorization cards from Mary Mueller, a kitchen employee and the union stewardess. Turner testified that she spoke -to approximately 18 em- ployees about the Union and obtained signed authoriza- tion cards from 12 employees which she transmitted to the Union.2 On May 2, the Union filed with the Board=in Case 7-RC-13004 a petition requesting certification as represen- tative of "all employees of the Employer [the Company] including maids, housemen, maintenance employees, front desk clerks, auditors, telephone operators, porters, bell per- sons and laundry employees, but excluding supervisory, confidential employees,- managers and guards as defined in the National Labor Relations Act." On the same day the Union directed a letter, to the Company advising that it represented a majority of the employees in an appropriate unit, offering to demonstrate its majority status, and re- questing a meeting for the purpose of negotiating a collec- tive-bargaining agreement. The- Company received copies of the- -representation petition and the Union's letter on May 63 The complaint alleges that Marvel Turner was dis- charged on May 13 because of her activities on behalf of the Union and that the Company further violated Section 8(a)(1),of the Act by: (a) On or about April 28 and May 5, 6, and 16, 1975, coercively interrogating employees as to their union activi- ties, sympathies, and desires. (b) On or about April 28 and May 5 and 6, 1975, threat- ening employees with adverse changes in employment con- ditions for engaging in union activities or for supporting the Charging Party. (c) On or about April 28 and May 5 and 6, 1975, solicit- ing grievances from its employees and making the implied promise that it would adjust the grievances in order to dis- courage support for, the Charging Party. , General Counsel's only, witnesses, other than the brief testimony by Union Business Representative Dennis Tap, were three employees, Marvel Turner, Craig Golab, and Raman Mullick. Mullick's and Golab's testimony was lim- ited to, conversations and meetings with Company General Manager Hans Franke and the larger part of Turner's testi- mony also concerned conversations with Franke. Franke denied having engaged in most of the unlawful conduct described by these witnesses, either by denying that the events occurred or by giving different versions of the events than described in the testimony of General Counsel's witnesses. Thus, a significant issue in this case is Franke's truthfulness and reliability as a witness at the hearing. Franke is a soft-spoken individual. His testimony was given deliberately and,thoughtfully. He answered all 2 There is no evidence that the Company knew that Turner had been soliciting union authorization cards. 3 Union Business Representative Dennis Tap testified that on May 5, in a conversation with Company General Manager Hans Franke, the latter ac- knowledged receipt of the Union's May 2 letter and informed Tap that the Company would not voluntarily recognize the Union and that the question of representation should be decided at an election . Franke, whom I credit, testified that he met with Tap on May 6, not May 5, but that on the night of May 5 he heard from employee Judy McCulley that the Union had intensi- fied its organizational effort. questions put to him directly and forthrightly. He showed an understandable uncertainty as to the precise dates on which some events occurred, but rather than detract from the reliability of his testimony it reflects that his testimony was based upon his recollection of the events and not upon notes or other material that may have been prepared be- fore the trial. I am of the opinion that Hans Franke was a truthful and reliable witness. I generally credit his testimo- ny. The testimony given by Turner Golab, and Mullick to a greater or lesser extent was self-contradictory. Also, there are significant disparities in the testimony of Golab and Mullick about a meeting they both attended. Further, each of the three has a bias against the Company. Mullick is no longer employed by the. Company and has filed a civil ac- tion against the Company; Golab testified that his resigna- tion is "under negotiation"; and Turner claims to have been unlawfully discharged by the Company. I am of the opinion that Turner, Golab, and Mullick were less reliable witnesses than Franke. B. Interference, Restraint, and Coercion ° 1. Craig Golab Craig Golab, who has been employed by the hotel for 5 years and at the time of the hearing was the night auditor, testified that one evening in April he had a brief conversa- tion with Franke in which Franke asked what Golab "thought of the employees' interest in the union and did [Golab] think there was a morale problem." Golab replied that he did not believe there was much of a morale prob- lem in the hotel and that the union interest was centered in the housekeeping department. Franke denied having had such conversation with Golab. Franke testified that from time to time he had conversations with Golab, as well as with other employees, in which he asked were they happy on the job, how things were going, and similar questions, in order to obtain information as to what was happening in the hotel and as to the attitude and morale of the employ- ees. I credit Franke's denial of Golab's testimony and find no violation of the Act proved by Golab's testimony con- cerning an all-ged conversation with Franke in April-1975. 2. Marvel Turner Turner testified that towards the end of April 1975 Franke had a conversation with her in his office. Accord- ing to Turner, after some small talk between the two about Turner's daughter who was a babysitter for Franke's fam- ily, Franke suggested that she had the respect of the other women and that they paid attention to Turner's opinions. ° At the hearing a motion by General Counsel to amend the complaint by adding an allegation that in January 1975 General Manager Hans Franke advised employees at a meeting that another employee had been terminated because of his union activities was denied and testimony adduced tending to support such allegation was stricken. On October 2, 1975, an order was issued asking the parties to show cause why the Administrative Law Judge should not reverse his ruling denying said motion. and why the record should not be reopened to permit the parties to adduce evidence with. re- spect to matters within the scope of the proposed amendment to the com- plaint In response to the order to show cause , General Counsel withdrew his motion to amend the complaint ' 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turner denied that she had such standing among the em- ployees. Franke then said that he knew there was some tension in the housekeeping department and wanted to know what was disturbing the women. Franke asked Turn- er if she knew who Mary Mueller was. (Mary Mueller was the union stewardess.) He stated to Turner that Mueller "worked in the kitchen and that the kitchen hated him and there was a lot of tension there." Franke denied having had such conversation with Turner. I do not credit Turner with respect to the alleged conversation and find that her testi- mony in regard thereto does not establish any violation of the Act.5 Turner had a meeting with-Franke on the evening of May 5.6 According to Turner, Franke began the conversa- tion by saying there had been quite a bit of talk "about union." She asked him if he was trying to use her to betray the girls. He then asked Turner why the employees wanted to see a union man and whether the girls in the housekeep- ing department were for or against the Union. Turner did not answer his questions . Franke then described what he had done for the employees, such as providing them with good insurance , with new uniforms, and with free meals. He asked what more could a union offer the employees. He said that a union would only hurt the employees by taking away the free meals and the maids would have more rooms to do and they would have to pay money to the Union which would be wasted. Turner testified that much more was said but she "just didn't answer to anything." Then, according to Turner, "I told him that I would not say any- thing if I was for or against the union, because I thought it wouldjeopardize my job.... I said `are you asking me to represent the group and bring back what they feel?"' Franke replied, "I want you to talk to the girls and then tell me what [are] their gripes and ... what's going on." Turn- er asked for permission to meet with the employees for a half hour.? Arrangements were made for her to meet with the other employees in the housekeeping department be- tween 4 and 4:30 the next day. Franke's version of the conversation is that Turner complained to him that the maintenance man (Executive Housekeeper Nita Swick's husband) was interfering with the direction of the activities 5 Turner's recollection of the conversation she allegedly had with Franke in April by her own admission was limited. While a faulty memory is not to be equated with untruthfulness , it tends to impair the reliability of the testi- mony given by such witness The manner in which Marvel Turner testified and her selective recollection of events suggest that her answers , particularly on her direct examination , were to some degree rehearsed responses to an- ticipated questions rather than recitals from memory . Also, various incon- sistencies between her direct examination and her cross-examination reflect an uncertain memory of what transpired. I am of the opinion that Turner was an unreliable witness. 6 On her direct examination, Turner testified that she met Franke in the hallway and he asked her to come to his office . On her cross-examination, Turner testified that when she reported for work on May 5 Nita Swick told her that Franke wanted to speak with her and she went to his office. Ac- cording to Franke, in late April Turner asked to see him but he did not then have the time . On a second occasion , he again was unable to meet with her when she asked to see him . Finally, she approached him on May 5 and he invited her to his office. 7 On cross-examination Turner testified that in the same conversation she complained to Franke that the maintenance man (who is Nita Swick's hus- band) was interfering with the privacy of the women in the housekeeping department and that although she was speaking for herself she had heard similar complaints from others. in the housekeeping department and that he was interfer- ing with the opportunity of the employees in the depart- ment to consult with the executive housekeeper privately. Franke asked Turner whether she was voicing a personal complaint or whether the entire crew had the same com- plaint. Turner said she did not know about the attitude of the other women but could find out. She asked for permis- sion to speak with the women in a room of the hotel. Ar- rangements were made for such meeting to be held the next day and Franke also arranged for Coca-Cola and coffee to be given the employees .8 Although I believe that Franke's version of his May 5 conversation with Turner is somewhat more accurate than Turner's, nevertheless, I find that Turner understood, and undoubtedly Franke intended that she would understand, that Franke wished to learn from her what were,the complaints of the employees. Turner reported the results of her meeting with the housekeeping department employees to Franke about 8 p.m. on May 6. Turner testified that she told him that the girls were disturbed by the attitude of Jackie Brandes, the assistant housekeeper. Subsequently, Brandes was trans- ferred to an office position .9 Turner also testified that the employees wanted to know more about the insurance pro- gram.10 She also told him that the employees were upset because Jackie Brandes and Nita Swick's husband were always in the housekeeping office, and that the employees wished to hear a debate between Franke and the union representative. According to Turner, Franke indicated that he would not engage in such debate. Franke' s version of the meeting is not substantially different from Turner's. According to Franke, Turner reported that the housekeep- ing employees were concerned by what they felt was an invasion of their privacy by Nita Swick's husband. She also said that the employees wished a more comprehensive ex- planation of their benefits under the insurance program which had been adopted on April 27, and that the employ- ees wanted Union Representative Dennis Tap and Franke to debate the issues before them. According to Franke, he responded that he was not then prepared to say anything about the problem involving Mrs. Swick and her husband. He told Turner that he would arrange for a representative of the insurance company to explain the benefits program to the employees and he avoided giving a response to the request for a debate. I find that Franke obtained the assistance of Marvel Turner to ascertain what the gripes or complaints of the housekeeping employees were. The fact that he permitted the meeting to be held on company time, that he arranged for the employees to have a private room in which to meet, and that he provided them with refreshments suggested to the employees that his sponsorship of the gripe session was not to be without purpose and that they could anticipate that he would attend to their complaints. To some extent such anticipation was quickly realized. In response to the 8 Franke testified that the subject of the Union did not arise during his May 5 conversation with Turner. 9 Franke confirmed that Jackie Brandes at the time of the hearing was working as a payroll clerk 10 According to Franke, he arranged for a representative of the insurance company to meet with employees on Friday, May 9, and to explain the benefits to which they were entitled under the plan that had been instituted in April. BRIARWOOD HILTON 989 complaint that the employees did not-know the extent of their benefits under the Company's newly inaugurated in- surance program, Franke promptly arranged for an insur- ance representative to, meet with the employees and to ex- plain the benefits to them.1' The solicitation of employee grievances during an orga- nizational campaign accompanied by a promise, express or implied, that the grievances will be remedied is a violation of the Act. Such conduct constitutes an unlawful restraint upon and interference with employees' self-organizational rights guaranteed-under the Act because implicit therein is the promise that benefits will be awarded to them by their employer so long as they are not represented by a labor organization and because it tends to frustrate the employ- ees' organizational efforts by showing them that union rep- resentation is unnecessary.'? Accordingly, I find that by reason of Franke's conduct, described above, in soliciting employees' gripes or complaints, Respondent has violated Section 8(a)(l). 3. Meeting of front desk employees At 2 p.m. on May 6, Franke held a meeting with the approximately eight front desk employees. Such meetings with the staff are held on a regular basis. Following a dis- cussion of various operating problems, Franke began to talk about the Union. Craig Golab and Raman Mullick testified for General Counsel as to what was said. Franke was the only witness who testified for Respondent with respect to the meeting. The most significant discrepancy among the three versions concerns the testimony of Golab that Franke said, "[I]f the union came in that we would lose our benefits, including uniforms, meals and current level of wage." Mullick did not testify that any such state- ment was made and Franke denied having made such threat. I do not credit Golab in this respect. It is my opin- ion that the most accurate description of what was said at the meeting was given by Franke. Accordingly, the sum- mary set forth below is based upon the testimony of Hans Franke whom I credit in respect thereto. Franke began the discussion about the Union by inform- ing the group that the ,night before a front desk employee had informed him that the Union had successfully orga- nized the hotel's employees, and that he (Franke) had re- ceived a representation petition from the National Labor Relations Board. He stated that such activity had occurred in the past and would continue in the future. Franke told the employees that the Union could not give them job se- curity. He pointed out that union representation had not insured the jobs of the restaurant employees. As examples he cited two instances where restaurant employees had been discharged and the Union did not take their cases to arbitration. Franke expressed his disappointment at the fact that despite his open door policy under which employ- ees could freely speak' to him about their problems they ii Franke dented that the subject of Jackie Brandes arose during his May 6 discussion with Turner. 12 House of Mosaics, Inc., Subsidiary of Thomas Industries, Inc., 215 NLRB No 123 (1974), N.L.R B. v Tom Wood Pontiac, Inc, 447 F.2d 383, 384-385 (C.A. 7, 1971). nevertheless were seeking the intervention of a union. He pointed out that in the past he had been able to solve the employees' problems and had been able to respond to their problems not with words alone but by acceding- to the em- ployees' requests. As illustrations he pointed out that the Company was now giving the employees uniforms, free meals, and an insurance program, and had given them an increase in pay. He repeated that with his open door policy he believed that they would be able to solve their problems in the future as they had done in the past. Franke pointed out to the employees that they were enjoying higher wages and more benefits than the employees at the only union- ized hotel in Ann Arbor. In that connection, he indicated that the Union could make promises to'the employees but could not guarantee them anything because all benefits were subject to negotiation. In his closing remarks, Franke stated that he would do anything in his power to keep the Union from coming in. According to Franke, "I told them that as long as I had the idea that the majority of the employees were not in favor of the union, that I would speak out. . . . I would do everything in my power to take care of the employees that did not want to have the union in the hotel ...." Although Franke in his talk to the front desk employees indicated with no uncertainty that he intended to vigor- ously oppose the Union's organizational effort, he did not say anything that is statutorily offensive. 4. Raman Mullick Hans Franke testified that on May 7 Union Business Representative Dennis Tap'made an offer to him that if he would recognize the Union-as the representative of the ho- tel employees the Union would enter into a contract for I year which would involve no change in conditions of em- ployment. Later the same day, Franke informed Raman Mullick about the substance of his talk with Tap. This inci- dent is not alleged in the complaint as a violation of the Act and I find that nothing improper occurred by reason of the described conversation between Franke and Mullick. Mullick testified that on May 16 he spoke with Franke about his job and Franke said, " [H]e could not do any- thing for me, especially after I had contacted the union and told them that he was threatening to lay me off." Franke" denied having made such remark. I credit Franke and find no violation of the Act by reason of the May 16 conversa- tion between Mullick and Franke. C. The Discharge of Marvel Turner Marvel Turner was employed as a maid by the Company from September 10, 1974, until May 13, 1975. Her duties involved cleaning guestrooms and public rooms and doing laundry. Turner was active on behalf of the Union. Franke testified that he knew of her union adherence as early as February and Nita Swick, who was appointed executive housekeeper towards the middle of April , testified that she became aware of Turner's union interest after she was hired by the Company in December 1974. From the date of her hire until sometime in January or February 1975, Turner worked as a full-time day shift 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housekeeping employee. Thereafter, she continued in the same. job but as a part-time employee. Her work schedule was 25 hours per week, 5 hours on each weekday af- ternoon. Beginning the week of April 27, her schedule was changed to 25 hours distributed over 4 days of the week, Monday through Thursday, inclusive. She was supposed to work 6 hours on 3 days and 7 hours on the 4th day. This change in Turner's work schedule developed after a deci- sion had been reached to discontinue part-time employ- ment for regular employees. When the decision was made, there were two part-time. employees, Joyce Gordon and Marvel Turner. Gordon thereafter began working 40 hours per week. However, when Turner was informed that the Company wanted her to work 40 hours per week, she com- plained that she was unable to do so because if she worked more than 25 hours per week she would lose benefits she was receiving under a welfare program . The Company was willing to accommodate Turner and she was, permitted to continue as a part-time employee. Both Swick and Turner testified that under the new schedule initially Turner was supposed to work from 4 to, I I p.m. on Mondays. Turner testified that the 7-hour day was changed from Monday to another day, but Swick testified that it was never changed. However, Turner did not work 7 hours on any of the three Mondays between the inauguration of the new schedule and her discharge on May 13. Swick did not testify that she reprimanded Turner for not working 7 hours on either of the first two Mondays of the new schedule. Nita Swick, the executive housekeeper, testified that she had been dissatisfied with Turner's work performance, was of the opinion that a full-time employee was required in the place of Turner, and had been planning to dismiss Turner. However, according to Respondent, certain events that oc- curred on May 12 were responsible for the decision to dis- charge Turner the next day. Turner had been absent from work on Wednesday and Thursday, May 7 and 8. When Turner next reported for work on Monday, May 12, Swick asked for her doctor's excuse , but Turner did not have one with her.13 That night Franke observed Turner eating in the coffee shop. This violated an explicit employee rule even though at the time the coffee shop was closed to the public. Later the same evening, at about 10 p.m., as Turner was leaving the prem- ises she met Franke , who also was leaving the hotel. He asked her why she was leaving and she replied that it was 10 o'clock and time to go. Also, Franke observed that she was parked in the area immediately in front of the hotel. According to Swick, the women who work at night are supposed to park at the side of the hotel, while employees who work during the day are required to park their cars in back of the hotel. The next morning, May 13, Swick telephoned Turner and advised Turner that she was discharged.14 Swick testi- fied that she told Turner that the reasons for the termina- 13 Turner testified that when Swick asked for her doctor's excuse she inquired if she could go home to get it, but Swick said that it was unneces- sariy and that she could bring it the next day 4 To the extent that it is inconsistent with the testimony of Franke and Swick, I do not credit Turner's testimony regarding the events on May 12 and 13. tion were that Turner had been in the coffee shop without authorization, had parked in front of the hotel, had not been doing the laundry, `and was not even working her scheduled-25 hours per week, although the hotel needed someone to work 40 hours. Turner telephoned Franke and informed ,him that, she had been discharged and com- plained that it was not fair. Franke told her that there was nothing he could do for her. Also, Franke told her not to come to the hotel for her paycheck and that it would be sent to her. According to the testimony, of Franke and Swick, about- 8:30 a.m. on -May 13 when Franke came to the hotel he asked Swick if she had given Turner permission to eat in the coffee shop while on duty, to park her car in front of the hotel, and to leave work early. Swick responded that she had not given Turner such permission. Then, according to Swick, she complained to Franke that Turner had.not been doing the laundry which meant that the-maids who- came to work in the morning were delayed in cleaning the rooms, and that Turner "just seemed to go and come as she pleased. She just didn't seem to want to follow any orders." Swick also complained that the hotel needed someone to work 40 hours because too many complaints were being received about the restaurant bathrooms not being clean. Swiclc then stated that, Turner should be discharged and someone should be found who would follow orders and who would work 40 hours per week. Franke replied that Swick was boss and it was her decision whether to dis- charge Turner.15 Both Franke and Swick testified that it was Swick who made the decision to discharge Turner. That same morning Swick prepared a separation notice which listed as the reasons for Turner's discharge: "Did not do all her duties, sat in coffee shop, up-at front desk too much. Would not work 40 hr. week. Said he could only work 25 hr. week. Needed her 40 hr. a week & she did not stay her full 25 hr. a week." The issue is not whether Turner was a satisfactory or unsatisfactory employee or whether, as Swick testified, she would have been discharged within 2 or 3 weeks had she not been discharged on May 13, but whether Turner was precipitately discharged on May 13 because of her union activities. Respondent's explanation for Turner's sudden dismissal on May 13 is not persuasive . It is Respondent's claim that one problem with Turner was that she refused to work more than 25 hours per week which meant that the laundry wasn't done on time and that certain public rooms were not adequately cleaned. If that were the case , no rea- son is given why Turner was discharged before the end of a workweek and before any replacement was hired. Her alleged derelictions on the night before her discharge were not so serious as to have required her immediate termina- tion. The weakness of Respondent's explanation for Turner's 15 Franke's version of his conversation with Swick did not differ materi- ally from Swick's version . According to Franke, Swick complained that she was unable to work with Turner , that Turner contradicted her orders to other maids , that Turner refused to work more than 25 hours , that the hotel needed someone to work longer hours, that Swick discovered that Turner was not even putting in the 25 hours she was supposed to, that Turner didn't do the laundry , and that Swick could not depend upon Turner . Franke advised Swick that she was the boss and it was up to her to decide what to do about Turner. BRIARWOOD HILTON 991 discharge, weighed together with the facts that Turner was known to Respondent as an active union adherent and that Respondent was vigorously opposed to the organization of its hotel employees, raises a suspicion that-Turner's union activities may have been a factor which impelled the deci- sion to dismiss her on May 13. However, a violation of Section 8(a)(3) cannot be based upon suspicion alone. General Counsel argues that "[t]he timing of discharge sup- ports a violation. The discharge occurred within eight days of filing of the petition in Case 7-RC-13004." This argu- ment would appear to be inconsistent with - General Counsel's overall theory of the case. According to General Counsel, as early as February Franke knew about Turner's union interest. When Franke suspected that the organiza- tional campaign was gaining momentum, he sought out Turner, who he may have believed was a leader among the women or with whom he may have had better rapport than with other employees,16 to find out and to report to him what the employees' grievances were. This Turner did. Why then, after Turner had been completely cooperative, did Franke discharge her? It is illogical for Franke to seek and to obtain Turner's cooperation in his effort to combat the Union and then to discharge her. General Counsel at- tempts to meet this dilemma by arguing, "The conclusion becomes inescapable that Turner who had been reluctant to betray fellow employee confidences and thus an unwill- mg participant became expendable once she had served Respondent's purpose . . . ." This argument is not sup- ported by the evidence. Contrary to General Counsel, the evidence, including Turner's testimony, shows that she had no reluctance to conduct the May 6 meeting with the housekeeping employees and to report the results to Franke. Thus she was a willing not "an unwilling partici- pant." Also, there is no credited evidence that Franke sought to have Turner "betray fellow employee confi- dences." 17 The employer's explanation for a discharge is a factor which is weighed in determining whether the action was unlawful. However, a feeble reason for the termination, alone, or together with evidence that the employer knew of the dischargee's union sympathies and was opposed to an ongoing organizational campaign, does not spell out an un- lawful discharge. To find a violation of Section 8(a)(3) the evidence must permit a positive finding (which may be based on circumstantial evidence) that union activity was a contributing factor in the decision to discharge the employ- 16 Turner's daughter was the babysitter for Franke's family and Franke had extended to Turner special consideration by permitting her to work part time when other regular employees were required to work full 40-hour weeks. 17 Even Turner did not testify that Franke asked her to "betray fellow employee confidences." According to Turner, on May 5 when she met with Franke, "he said there had been quite a bit of talk about union and I guess I must have showed a nervous reaction and he told me not to be embar- rassed about it and I replied I wasn't embarrassed And I asked him if he was trying to use me ... to betray the girls and what they were saying to me . in confidence ." Turner did not testify that Franke answered this question . Turner further testified that Franke "asked why the girls wanted to have a union come in. And I refused to answer any questions about the girls or what they were saying." However, the next day Turner held a "gripe" session with the housekeeping department employees and reported their grievances to Franke. Thus, to this extent, Turner did communicate the employees' attitudes to Franke. ee. Suspicion that such was the case is not enough. While in this case the issue is not free from doubt, I find that Gener- al Counsel has failed to prove by a preponderance of the evidence that Turner was- unlawfully discharged. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in and is engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By interfering with and restraining employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding and pursuant to Section 10(c) of the Act, I hereby issue the following rec- ommended: ORDER18 Respondent, McMullen Corporation, d/b/a Briarwood Hilton, Ann Arbor, Michigan, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interfering with or restraining employees in the exer- cise of their rights guaranteed in Section 7 of the Act by soliciting employees to voice their grievances while leading them to believe that their grievances will be remedied in order to discourage support of Hotel, Motel, Restaurant Employees, Cooks & Bartenders Union, Local 24, AFL- CIO, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the 18 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. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Post at its place of business in Ann Arbor, Michigan, copies of the attached notice marked "Appendix." 19 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 7, after being duly signed by Respondent's representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees 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. (b) Notify the Regional Director for Region 7, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a IT IS FURTHER ORDERED that the allegations in the com- plaint of violations of Section 8(a)(1) and (3) be dismissed except insofar as a specific finding of violation of Section 8(a)(1) has been made above. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT solicit employees to voice their griev- ances and lead them to believe that their grievances will be remedied in order to discourage support of Ho- tel, Motel, Restaurant Employees, Cooks & Barten- ders Union, Local 24, AFL-CIO, 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 the rights guaranteed them in Section 7 of the Na- tional Labor Relations Act. Judgment of the United States Court of Appeals Enforcing an Order of the MCMULLEN CORPORATION, d/b/a BRIARWOOD National Labor Relations Board" HILTON Copy with citationCopy as parenthetical citation