Downtowner of Shreveport, Inc.

National Labor Relations Board - Board Decisions

May 20, 1969

175 N.L.R.B. 1106 (N.L.R.B. 1969)

1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Downtowner of Shreveport, Inc. and Common
Laborers , Hod Carriers , and General Laborers
Union , Local No. 229 affiliated with Laborers
International Union of North America , AFL-CIO.
Case 15-CA-3247
May 20, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 26, 1968, Trial Examiner Benjamin K.
Blackburn issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the Act, and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support of its
exceptions. The General Counsel filed
cross-exceptions and a brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions,
cross-exceptions, briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner as
herein modified.
The Trial Examiner concluded that he was
foreclosed from ordering the reinstatement of at
least two additional economic strikers because the
General Counsel conceded the permanent
replacement of six of the eight strikers and elected
to seek a remedy for only two of the strikers;
namely, Jeraline Greer and Gracie James. We agree
with the Trial Examiner's findings and conclusions
with respect to the reinstatement of Greer and
James. However, we disagree with his further
conclusion regarding the reinstatement of additional
strikers.
In The Laidlaw Corporation, 171 NLRB No. 175,
the Board held:
"economic strikers who unconditionally apply for
reinstatement at a time when their positions are
filled by permanent replacements: (1) remain
employees; (2) are entitled to full reinstatement
'The Trial Examiner concluded that Respondent violated Section 8(axl)
and (3) of the Act by refusing to reinstate Jeraline Greer and Gracie
James . We agree with the Trial Examiner's 8(axl) findings in this regard,
but find it unnecessary to consider or pass upon his 8(aX3 ) findings, as the
remedy would remain the same in any event.
upon the departure of replacements unless they
have in the meantime acquired regular and
substantially equivalent employment, or the
employer can sustain his burden of proof that the
failure to offer full reinstatement was for
legitimate and substantial business reasons."
In the present case the Trial Examiner properly
found that an unconditional offer to return to work
was made on behalf of all eight economic strikers at
a time when the Respondent had already
permanently replaced six out of the eight. The
record further reveals that two of the replacements
left the Respondent's employ shortly after their hire'
Although The Trial Examiner properly ordered
that the two strikers who had not been replaced at
the time of the offer to return to work be reinstated,
he declined to apply the above teachings of Laidlaw
to the other strikers despite the fact that the record
clearly reveals that at least two additional strikers
were entitled to immediate reinstatement under the
Laidlaw doctrine.' Clearly, in the present
circumstances, where all of the strikers have
unconditionally offered to return to work, the
Laidlaw principles apply to all of the strikers as a
matter of remedy. These remedial principles are not
dependent on the General Counsel's concession that
six of the eight strikers were permanently replaced
prior to an offer to return to work, particularly
where, as here, we are concerned with the rights of
economic strikers after the replacements'
employment has been subsequently severed.
Accordingly, we shall herein provide for those
continuing rights of all the economic strikers.
It is clear from the facts set forth above that at
least two of the additional six strikers are entitled to
immediate reinstatement and that the remaining
four strikers may also be entitled to reinstatement at
the departure of other replacements unless they
have, in the meantime, acquired regular and
substantially equivalent employment. However, as
we are unable to determine from the state of the
present record which two of the remaining six
strikers are entitled to immediate reinstatement,
and, if presently entitled, the order of reinstatement
of the remaining strikers, we shall leave the
questions of such individual reinstatement rights for
resolution at the compliance proceedings.
'We particularly note in this regard that Dorothy Jean Raney, one of the
permanent replacements hired before the strikers ' unconditional offer to
return to work , commenced working on the morning of January 26 and
quit after working on January 27. Thereafter , the Respondent hired Lula
Gillins to replace Raney rather than offer employment to one of the
strikers - all of whom had already offered to return to work.
Additionally, the record shows, as noted by the Trial Examiner, that
Hester Jackson, a permanent replacement , was subsequently replaced after
March I by Mary D . White , and thereafter White quit . Again, neither the
vacancy created by Jackson's departure nor the subsequent vacancy created
by White's quitting was offered to any of the strikers.
'No evidence appears that the failure to offer reinstatement was for
legitimate and substantial business reasons . Indeed , it would appear that
Respondent's need of maids continued as Respondent immediately filled
those vacancies created by. the departure of Raney and Jackson, thus
maintaining its customary staff of eight maids.
175 NLRB No. 178
DOWNTOWNER OF SHREVEPORT 1107
ORDER
Pursuant to Section 1Q(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Downtowner of Shreveport, Inc., of Shreveport,
Louisiana, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from interfering with,
restraining, and coercing its employees in the
exercise of their Section 7 rights by failing and
refusing to reinstate economic strikers who have not
been permanently replaced after an unconditional
offer to return to work is made by them or on their
behalf.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to Jeraline Greer and Gracie James
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to any seniority or other rights and privileges
previously enjoyed, and make them whole for any
loss of pay suffered as a result of Respondent's
discrimination against them, in the manner set forth
in the remedy section of the Trial Examiner's
Decision.
(b) In accordance with the Decision of the Board
and subject to any supplementary proceedings that
may be had in this case, offer immediate and full
reinstatement to such of the remaining strikers
whose former positions have been vacated after the
strikers' offer to return to work, without prejudice
to any seniority or other rights and privileges
previously enjoyed, and make them whole, in the
same manner as provided for in paragraph 2(a)
above, for any loss of pay suffered as a result of the
Respondent's failure to offer them reinstatement
after their replacements were no longer employed by
the Respondent.
(c) Notify Jeraline Greer and Gracie James and
those additional strikers provided for in paragraph
2(b) above if presently serving in the Armed Forces
of the United States of their right to full
reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended, after
discharge from the Armed Forces.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, as
well as all other- records necessary to analyze and
compute the amount of backpay due under the
terms of this Order.
(e) Post at its place of business in Shreveport,
Louisiana, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
provided by the Regional Director for Region 15,
after being duly signed by Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 15, in
writing, within 10 days from the date of the receipt
of this Decision, what steps Respondent has taken
to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board =and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT interfere with, restrain, and coerce our
employees in the exercise of their Section 7 rights by
failing and refusing to reinstate economic strikers who
have not been permanently replaced after an
unconditional offer to return to work is made by them
or on their behalf.
WE WILL offer to Jeraline Greer and Gracie James
immediate and full reinstatement to their formei or
substantially equivalent positions, without prejudice to
any seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings
they may have suffered as a result of our discrimination
against them with interest at 6 percent.
WE WILL, in accordance with the Decision of the
National Labor Relations Board and subject to any
supplementary proceedings that may be had according
to the Board's Decision in this case, offer immediate
and full reinstatement to such remaining strikers whose
former positions have been vacated after the strikers
offer to return to work, without prejudice to any
seniority or other rights and privileges previously
enjoyed, and make them whole for any loss of earnings
they may have suffered as a result of our failure to
offer them reinstatement after their replacements were
no longer employed by us.
WE WILL notify the above-named employees and
those additional unnamed employees also provided for
above, if presently serving in the Armed Forces of the
United States, of their right to full reinstatement, upon
application, in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
DOWNTOWNER OF
SHREVEPORT, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
'In the event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States Court
of Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, T6024 Federal
Building (Loyola), 701 Loyola Avenue, New Orleans,
Louisiana 70113, Telephone 504-527-6361.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: This case
began on February 7, 1968,' when Common Laborers,
Hod Carriers, and General Laborers Union, Local 229,
affiliated with Laborers International Union of North
America, AFL-CIO (referred to herein as the Charging
Party or the Union), filed a charge against Downtowner
of Shreveport, Inc. (referred to herein as Respondent).
On April 15, the General Counsel of the National
Labor Relations Board , acting through the Acting
Regional Director of Region 15 (New Orleans,
Louisiana), issued a complaint and notice of hearing in
which it is alleged that Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act by
failing and refusing to reinstate Jeraline Greer and Gracie
James for discriminatory reasons upon their unconditional
application to return to work following a strike. During
the hearing, pursuant to due notice, which was held before
me in Shreveport, Louisiana, on July 2, counsel for the
General Counsel moved to amend the complaint to add
six more names - Dorothy Houston, Lessie Washington,
Rosie Lee James, Helen Martin, Dorothy Tigue, and
Jeanette Bates - as more fully described below. I granted
the motion. Respondent' s answer denied any violations of
the Act.
All parties appeared at the hearing on July 2 and were
given full opportunity to participate, to adduce relevant
evidence , to examine and cross-examine witnesses, to
argue orally and to file briefs.' Both General Counsel and
Respondent filed briefs.
Upon the entire record, including the briefs of General
Counsel and Respondent, and from my observation of the
demeanor of the witnesses while testifying under oath, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Louisiana corporation and a wholly
owned subsidiary of The Downtowner Corporation. It
operates a motor hotel at 332 Market Street in
Shreveport. In the 12-month period prior to April 15,
Respondent received goods valued in excess of $10,000
which were shipped to it in Shreveport from points outside
of Louisiana, either directly or through suppliers in the
State of Louisiana who themselves received the goods
directly from outside the State of Louisiana. During the
same period Respondent received more than 25 percent of
I its revenues from units rented to transient guests who
stayed in Respondent's motor hotel for periods less than
one month in duration.
'All dates are 1968
'General Counsel , in his brief, reoffered an exhibit which I rejected at
the hearing (G C Exh 2, an affidavit by Mae Stewart) G.C Exh. 2 is
again rejected General Counsel also renewed his objection to and moved
to strike , as hearsay , certain testimony of Frank Mahon , Respondent's
resident manager , relating to a conversation with a Mr. Barker of the
Captain Shreve Hotel The General Counsel 's objection is overruled and
his motion to strike is denied.
The Downtowner Corporation is a Tennessee
corporation engaged in the business of operating motor
hotels in various states of the United States, including
Tennessee and Louisiana. In the 12-month period prior to
April 15, gross revenues of the Downtowner Corporation
exceeded $500,000; its purchases of goods outside of
Tennessee which were shipped directly to it in Tennessee
exceeded $10,000.
The complaint alleges, the answer admits, and I find
that Respondent and The Downtowner Corporation are
affiliated businesses, constituting a single integrated
enterprise with a common labor policy, and are engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
11. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits, and I find
that the Charging Party is a labor organization within the
meaning of Section 2(5) of the Act.
Ill. THE UNFAIR LABOR PRACTICES
A. The Strike
Respondent's entire complement of eight regular,
full-time maids - Jeraline Greer, Gracie James, Dorothy
Houston, Lessie Washington, Rosie Lee James, Helen
Martin, Dorothy Tigue, and Jeanette Bates - reported
for work as usual at 8 a.m., on Friday, January 26. A few
minutes later, as was their daily custom, they met with
their supervisor, Housekeeper Mae Stewart, in an
unoccupied room to receive their instructions for the day.
Mrs. Stewart told them that they were to remove a
buildup of soap film on shower tile by spraying it with a
mixture of Clorox and water, letting it stand for half an
hour, then wiping it off. The maids objected to the
addition of this new chore to their regular duties. Because
of this, and because they also objected to being cursed at
by Mrs. Stewart, all eight maids clocked out in a body at
8:33 a.m. and left the hotel. They went to the office of the
Union where they saw Henry McQueen, the Union's
president and business manager.
B. The Hiring of Replacements
Mrs. Stewart and Frank Mahon, Respondent's resident
manager, were having coffee in the hotel restaurant when
they saw the maids leave. Mahon instructed Mrs. Stewart
to seek replacements immediately while he pitched in to
help strip linen from beds and baths so that a 1 p.m.
deadline for sending dirty linen to the laundry could be
met. Approximately 87 of the Downtowner of
Shreveport's 101 rooms had been occupied the previous
evening . It was particularly unfortunate for Respondent
that its maids picked a Friday morning to go on strike,
rather than some other day of the week, because of the
laundry problem posed by the impending weekend. In
order to be returned by 1 p.m. Saturday, the last delivery
before Monday when the laundry reopened after being
closed Saturday afternoon and all day Sunday, Friday's
dirty sheets and towels had to be ready for pickup by I
p.m. If the Friday pickup were missed , Respondent faced
a possible shortage of clean linen by Monday. Thus
Mahon's concern over the walkout of his maids on a
Friday morning and his pitching in himself to meet the
crisis.
In the meantime, as instructed, Mrs. Stewart sought to
DOWNTOWNER OF SHREVEPORT
replace the strikers. She called the state employment
service and from it obtained Ethel Lee Belford, Dorothy
Jean Raney, Helen Bradberry, and Johnie Wynn. She
consulted an application which she had on file and called
in Hester Jackson. She spoke to another woman,
unnamed in the record, who promised to come in as soon
as she could get a babysitter. This person never appeared,
either on January 26 or thereafter. Mrs. Stewart (or
Mahon, the record is unclear) appealed for help to the
Captain Shreve Hotel, another Shreveport hostelry, and
from it obtained Addie Mae Wooten and Clemitee
Booker. The first six were hired for regular, full-time
positions as maids . Clemitee Booker, at her own request,
was hired as an "extra" maid; i.e., a maid who would help
out as needed when the regular maids were unavailable or
too few to handle the work on hand. Prior to January 26,
Respondent had no "extra" maids on its staff. Belford,
Raney, Bradberry, Wynn, Jackson, Wooten, and Booker
were all at work by noon on January 26.
Later that Friday afternoon, after the phone calls from
Jeraline Greer and Henry McQueen to Frank Mahon
which are set forth under "The Offers to Return" below,
Mrs. Stewart also spoke to Mary D. White, another
Captain Shreve maid who worked a night shift there
cleaning commercial offices in the building. Mary White
had heard from Addie Mae Wooten and Clemitee Booker
about the work available at the Downtowner of
Shreveport. She asked Mrs. Stewart for a day job which
would permit her to continue to work at the Captain
Shreve at night. Mrs. Stewart hired her, to begin work on
Tuesday, January 30.
Mrs. Stewart also placed Help Wanted ads in the
Shreveport papers. These produced a crowd of applicants
on Saturday morning , January 27, two of whom - Para
Lee Louis and Gloria Jean Struggs - were hired at that
time to begin work on -Monday, January 29.
Of the six full-time new maids who actually worked for
Respondent on January 26, five were still regularly
employed as of the end of February. The sixth, Dorothy
Jean Raney, quit after working only 2 days, Friday and
Saturday, January 26 and 27. Lula Gillins began work on
Tuesday, February 6, As of the end of February, the last
date on which the record sheds any light, Respondent's
staff of eight regular, full-time maids consisted of Ethel
Lee Belford, Hester Jackson, Helen Bradberry, Addie
Mae Wooten, Johnie Wynn, Para Lee Louis, Gloria Jean
Struggs, and Lula Gillins.
In the January 26 - February 29 period,
Clemitee Booker worked on January 26, 27, 28, and 29
and February 1 and 3, Mary D. White worked on January
30 and 31 and February 2, 4, 6, and 7.
C. The Offers to Return
Henry McQueen, the Union's president and business
manager, had had no prior contact with any of
Respondent's employees, including the maids, when they
got in touch with him following their walkout on the
morning of January 26. When the maids appeared at his
office, he suggested that one of the group call the hotel
and ask to return to work. Jeraline Greer was selected as
spokesman. She called between 1 and 1:30 on the
afternoon of January 26 and spoke to Frank Mahon. She
told Mahon that the maids ". . . want to come back and
talk to you about our jobs." Mahon said that he thought
the maids had quit when they walked out on him that
'Respondent's two hall porters were not involved in the January 26
1109
morning and, consequently, had already replaced them.
He indicated his willingness to talk to the strikers but said
that he was too busy to see them anymore that day. It
was arranged that the strikers would come to the hotel on
Saturday morning to see him.
Fifteen minutes later Henry McQueen called Mahon.
After identifying himself as the representative of
Respondent's maids and porters,' McQueen discussed the
situation with Mahon. When McQueen accused Mahon of
having "terminated" the maids, Mahon replied that they
had quit and that he had already replaced them. During
the course of the conversation McQueen explicitly asked
Mahon to take the maids back. The conversation ended
with McQueen's statement that Mahon would hear further
from him about the matter.
Because he was aware that he might have a union
problem on his hands, something unknown in Mahon's
prior business experience, he placed a call to his home
office in Memphis, Tennessee. His office referred him to
Fowler, Brackhahn and Young, the Memphis law firm
which represents Respondent in this matter. Mahon called
and spoke to a member of the firm.
Under date of January 26 McQueen wrote a letter to
Mahon in which he claimed, on behalf of the Union, to
represent all Respondent's maids and porters and
demanded recognition and bargaining. The letter contains
no reference to reinstatement, either express or implied.
Mahon received the letter on Saturday, January 27.
At 9 a.m. on Saturday, January 27, Mahon met with
the striking maids at the hotel. There was a discussion of
the maids' grievances against the housekeeper, Mae
Stewart, including the new chore of Cloroxing bathroom
tile. Mahon defended Mrs. Stewart as one who had aided
and protected the maids over the years. Mahon explained
that he would not take the strikers back because to do so
would require him to get rid of the replacements he had
already obtained. He told them that any reversal of that
decision would have to come from the home office and
promised to discuss the matter with his superiors.
D. Assignment of the Replacements
For a few days after January 26, while the replacements
were being trained, no assignments of the replacements to
specific work stations were made. The following week the
replacements were assigned to specific blocs of rooms as
follows. The striker who was assigned to each work
station on and before January 26 is listed in the third
column:
Replacement Rooms Striker
Johnie Wynn 200-211 Dorothy Houston
Hester Jackson 212-233 Lessie Washington
Ethel Lee Belford 300-312 Rosie Lee James
Para Lee Louis 314-326 Jeraline Greer
Helen Bradberry 400-412 Dorothy Tigue
Addie Mae Wooten 414-426 Helen Martin
Lula Gillins 500-512 ° Jeanette Bates
Gloria Jean Struggs 514-526 Gracie James
walkout . This bloc of rooms was initially assigned to Clemitee Booker, the extra
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Miscellaneous Findings of Fact
The Downtowner of Shreveport caters to traveling
salesmen . Consequently , absent a weekend convention, its
pattern of occupancy is as follows: On Monday, Tuesday,
Wednesday, and Thursday nights, generally, occupancy is
at or above the level of Thursday, January 25; namely, 85
to 90 percent. On Friday, Saturday, and Sunday nights,
generally, the occupancy rate falls off to 35 to 50 percent.
There was no convention at the hotel on the weekend of
January 27-29.
On Tuesday, Wednesday, Thursday and Friday,
Respondent needs a full complement of eight maids. Over
the weekends , absent a convention in the hotel,
Respondent can get along with as few as four maids.
Therefore, generally, the maids are scheduled for weekend
work on a rotating basis so that the hotel's needs are met
while the maids receive their days off . If there had been
no strike by the maids on Friday, January 26,
substantially less than eight maids , probably four each
day, would have worked on Saturday, Sunday, and
Monday , January 27 -29. Respondent actually used seven
maids on Saturday , six on Sunday, and eight on Monday
because of the situation created by the strike which began
on Friday . Occupancy of the hotel was normal on
Monday night , January 29 , and thereafter . Respondent
employed seven maids on Tuesday , January 30 , and eight
on Wednesday, January 31, Thursday, February 1, and
Friday, February 2. This normal pattern of employment
of maids continued thereafter.
F. Conclusions and Analysis
I find that Respondent violated Section 8 (a)(1) and (3)
of the Act by failing and refusing to reinstate two of eight
economic strikers upon their unconditional offer to return
to work at a time when the two had not been permanently
replaced in order to discourage membership in the
Charging Party.' I reach that conclusion as follows:
The General Counsel based his complaint on the theory
that six of the eight strikers were permanently replaced
before any offer to return to work was made by them or
on their behalf. He selected Jeraline Greer and Gracie
James as the two who had not been replaced for reasons
which are discussed under "The Remedy" below. At the
hearing , when counsel for Respondent would not agree
that if, in law, two of the maids were entitled to
reinstatement, Jeraline Greer and Gracie James are they,
counsel for the General Counsel added the names of the
other six to paragraph 11 of the complaint , which alleges
an unconditional offer to return to work on January 26.
However, he also amended paragraph 12, which alleges
Respondent 's failure and refusal to reinstate persons
named in paragraph It, to indicate that only two, rather
maid . It was assigned to Lula Gillins when she went to work on Tuesday,
February 6 . The preceding Saturday , February 3 , had been the last day
Clemitee Booker worked in the period ending February 29.
'There is no need to pass on General Counsel 's contention , raised for the
first time in his brief, that Respondent discharged Jeraline Greer and
Gracie James when Mahon said to McQueen , "Well, they [the eight
maids], quit . I don't want them back down here I don 't want to talk to
them or anything else." Respondent does not dispute that the maids, when
they walked out , were engaged in a concerted activity , electing to stand on
its position , inter olio , that the strike was unprotected , nor does it contend
that the maids intended to quit , thus terminating the employer -employee
relationship . Cf. Delsea Iron Works , Inc., 136 NLRB 453. A finding that
Greer and James were discharged would not alter the remedy.
than all eight , are claimed to be discriminatees . If it were
not for General Counsel 's concession that six of the eight
strikers were permanently replaced prior to any offer to
return to work, I would find, based on the fact that
Dorothy Jean Raney, one of the six full-time maids who
began work on the morning of January 26, quit after work
on January 27, that a third striker is entitled to
reinstatement . The rights of economic strikers are not
determined for all time at the moment of their offer to
return to work. Rather, they are, in effect, placed on a
preferential hiring list and must be offered any jobs which
thereafter open up so long as their "employee" status has
not been terminated by some intervening event .' Since,
however, the General Counsel has conceded the permanent
replacement of six of the eight strikers and elected to seek
a remedy for only two, I conclude that Respondent's
violation of the Act lies in its failure to reinstate two,
rather than three or four, of the strikers.
Respondent advances three separate defenses. It
contends:
1. That there was no unconditional offer to return to
work;
2. That all eight strikers were permanently replaced;
3. That the maids ' walkout was an unprotected
activity.
All are without merit.
1. The offer to return to work
In this area, Respondent argues that no words were
spoken which constituted a formal ' offer to return to work
and that the words which were spoken were intended to
and did convey the meaning that the eight maids would
only return to work on an all or none basis after the
removal of Mae Stewart as their supervisor.'
There were three occasions on which words could have
been spoken which constituted an offer to return to work,
Jeraline Greer' s telephone conversation with Frank
Mahon in the early afternoon of Friday , January 26,
Henry McQueen 's telephone conversation with Mahon 15
minutes later, and Mahon 's conference with the strikers
on Saturday morning , January 27 . There is no substantial
conflict in the testimony of the various witnesses as to
what was said on these occasions . For example, my
finding that Jeraline Greer told Mahon on the telephone
that the maids wanted to come back and talk to him
about their jobs is based on her testimony as corroborated
by Mahon and McQueen . The only potential credibility
IN L R.B. v Fleetwood Trailer Co., 389 U.S. 375; Laidlaw Corp.. 171
NLRB No. 175. Similarly, Mrs. Stewart , the housekeeper, testified that
Mary D. White, after a hiatus following February 7 at her own request,
replaced Hester Jackson as a regular , full-time maid in the first pay period
after March 1 . The exact date is unclear since Respondent's time records
for periods after February 29 were unavailable at the hearing . But for the
General Counsel 's concession I would find a fourth striker entitled to that
job for the same reason.
'Upon reconsideration , as requested in Respondent's brief, I again reject
Respondent's offer to prove what was said in the conversation between
Mahon and his attorney on the afternoon of January 26. Respondent urges
that such evidence would establish that McQueen 's purpose in calling
Mahon was to demand recognition, not to make an offer of reinstatement,
thus establishing its point that the words McQueen spoke do not , in law,
constitute a formal offer. The point is not well taken . Whatever may have
been McQueen 's purpose in calling Mahon , the only relevant question,
insofar as this aspect of the case is concerned , is whether he did, in fact,
speak words which constituted an unconditional offer to return to work on
behalf of the strikers.
'The latter aspect of Respondent's argument is discussed under "The
Protected Activity Issue" below.
DOWNTOWNER OF SHREVEPORT
problem of any materiality arose when Mahon initially
failed to confirm McQueen's testimony that he had told
Mahon on the telephone ". . . that the girls wanted to
come back to work, and I would like to send them back
down to work, . . . I asked for their jobs back ... I said I
would be glad to send them by and no conditions."
However, after having his recollection refreshed by an
affidavit given to the General Counsel in the investigation
stage of this case , Mahon admitted that McQueen had
asked him to take the maids back and did not indicate
that McQueen had attached any conditions.
Respondent, in its brief, stresses the undenied fact that,
on all three occasions, speakers for the strikers, McQueen
included, spoke in the plural, using such expressions as
"... ask for their jobs back ..." and ". . . asked if they
could come back to work ...", and argues therefrom the
applicability of American Optical Company, 138 NLRB
681. In American Optical, the Board ruled that ". . . since
the offer [by a union on `behalf of 12 striking employees]
contained the clear condition that each would return only
if all were taken back . . . the Respondent was legally
privileged to refuse reinstatement to all strikers in whose
behalf such conditional offer was made . . . . Rather, we
find it sufficient that, at the time all 12 strikers offered to
return to work, the Respondent had hired permanent
replacements for some of the 12, and that the Respondent
therefore was not obliged to take back all strikers." In
American Optical the all-or-none condition was explicitly
spelled out, both orally and in writing, when the offer to
return was made to the employer. Here, not even Mahon
testified that, on any of the three occasions when he spoke
to strikers or to McQueen, an explicit all-or-none
condition was voiced.
Jeraline Greer's statement that the maids wanted to
talk to Mahon about their jobs, as well as the discussion
which took place on Saturday morning, are somewhat
ambiguous. Whether an unconditional offer to return to
work was made on either occasion need not concern us
here, however, since the words spoken to Mahon by
McQueen were a clear offer to return, spoken on behalf of
all eight, which were not intended to and did not convey
any message that Respondent must take back all eight or
none would return regardless of how Mahon, on hindsight,
might have chosen to interpret them.'
Since, therefore, an, unconditional offer to return to
work was made on behalf of the strikers on the afternoon
of January 26 at a time when only six permanent
replacements had been hired, two of the strikers were
entitled to reinstatement, provided that eight regular,
full-time maid jobs still existed.
2. The replacement issue
Here Respondent argues .that the seven maids it was
able to hire on the morning of January 26, plus the
woman with the babysitter problem, Mary D. White, Para
Lee Louis and Gloria Jean Struggs constituted
replacement of all eight strikers. Clemitee Booker, one of
the seven who actually worked, on January 26, cannot be
counted as a permanent replacement because she was
expressly hired as an extra maid. Neither can the lady
with the babysitter problem since, having never appeared
for work, she never became an employee and thus never
replaced anyone. The hiring of Mary D. White on Friday
afternoon, after McQueen's call to Mahon, whether she
was hired as a full-time maid or only as an extra, and the
hiring of Para Lee Louis and Gloria Jean Struggs on
Saturday morning are, of course, immaterial since the
strikers' rights of replacement, if any, vested at the time
of the offer to return. The short and simple answer to
Respondent's contention is that two positions for regular,
full-time maids still existed when McQueen called Mahon,
regardless of the fact that the fewer than eight regular
full-time maids who did show up before McQueen's call to
Mahon on Friday afternoon were sufficient for
Respondent's needs on that full-scale activity day and the
ensuing reduced-scale activity Saturday, Sunday, and
Monday. Whoever was entitled to those positions might
well not have worked on Saturday, Sunday, or Monday.
They would not have worked one or more of those days
on a normal weekend. But, as Respondent's time records
clearly demonstrate, its need for maids was precisely the
same over the strike weekend and during the following
weeks as it was before the strike. No jobs were abolished
as a result of the strike. Eight jobs for regular, full-time
maids existed when the strike began and when it ended.
Respondent filled only six of them before McQueen's call
to Mahon. Therefore, two jobs were unfilled at the crucial
moment of that conversation. Two of the strikers are
entitled to be reinstated to those jobs, provided that the
strikers were, in fact, engaged in a protected activity.
3. The protected activity issue
Finally, Respondent contends that the maids' walkout
was an unprotected activity, thus denying them the
protection which the Act accords to unreplaced economic
strikers who make an unconditional offer to return to
work. Respondent relies on American Art Clay v.
N.L.R.B., 328 F.2d 88, and N.L.R.B. v. Ford Radio &
Mica Corporation, 258 F.2d 457. These cases involve
strikes over the discharge of foremen. American Art Clay
holds such a strike unprotected.
Respondent would bring this case within the American
Art Clay holding, first, by having me find that the
strikers, in their Saturday morning meeting with Mahon,
sought the removal of Mae Stewart as their supervisor. As
indicated above, I make no such finding. To the contrary,
the record is clear, from Mahon's testimony, that no such
proposal was ever advanced by the strikers. And I find
Mahon's inference from the words they did speak that
removal of Mrs. Stewart was what they really sought as
irrelevant as his inference from the words they 'spoke that
they sought reinstatement on an all or nothing basis.
Respondent would apply the American Art Clay
doctrine to this case notwithstanding the fact that the
strikers here did not explicitly request the removal of Mrs.
Stewart. But that doctrine, regardless of its validity when
applied to facts analogous to American Art Clay, is
inapposite here. For the rationale of American Art Clay is
that selection of supervisors is a management prerogative
in which employees have no legitimate concern, thus the
selection is not a condition of employment over which
they may legitimately engage in concerted activities. No
such element is present here. Here, the strikers walked out
because they objected to the addition of an unpleasant
new chore to their other duties and because they objected
to the manner in which their supervisor spoke to them.
Both were obviously conditions of their employment and
thus the maids were protected when they struck over
them.'"
'Baldwin County Electric Membership Corp., 145 NLRB 1316. "Pastilite Corporation, 153 NLRB 180; Delsea Iron Works, Inc , supra
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also argues that the strike was
unreasonable and intemperate, relying on the fact, which I
have found, that the maids left at the worst possible time
of the week from Respondent's point of view, and the
undenied fact that they left without making any effort to
discuss their grievances first with Mahon. However, the
partial strike cases" which Respondent cites in support of
this argument are readily distinguishable since the point of
that line of cases is that employees must choose between
striking or working and may not legally attempt to exert
pressure on their employers by halfway measures. Here,
the maids opted for strike. Having done so, it is
immaterial, as Respondent concedes, that they did not
give Mahon or Mrs. Stewart advance notice before they
left.': And having done so, it was neither unreasonable nor
intemperate of them to walk out at the moment their
grievances came to a head, even though their timing,
incidentally, happened to bring maximum pressure on
Respondent.
G. Summary
In summary, then, I find that the eight maids were
engaged in a protected, concerted activity when they
struck on the morning of January 26 over the new chore
assigned them and the manner in which Housekeeper Mae
Stewart spoke to them. Since their strike was economic in
nature, their rights to reinstatement depended on the
situation which obtained when they made an unconditional
offer to return to work. When that moment came on the
afternoon of January 26, six of them had been
permanently replaced, but two had not. Therefore, by
refusing to reinstate two strikers at that time, even if they
had not appealed to the Union for help, Respondent
violated Section 8(a)(1) of the Act by denying those two
their Section 7 right to engage in protected, concerted
activities for mutual aid and protection regardless of
Respondent's motive for not taking them back.
Additionally, I find that Respondent refused to
reinstate them because the eight maids carried their
grievances from the hotel to the Union's office and
enlisted the Union's aid. I rely for this finding on
Mahon's testimony about his union "problem" and the
manner in which he reacted to it. Since the effect of
refusing to reinstate two strikers under those
circumstances, regardless of the absence of any union
animus, is to discourage membership in the Union, the
same conduct is a violation of Section 8(a)(3)."
CONCLUSIONS OF LAW
1. Common Laborers, Hod Carriers, and General
Laborers Union, Local 229, affiliated with Laborers
International Union of North America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
2. By failing and refusing to reinstate two striking
maids on and after January 26 when an unconditional
offer to return to work was made on their behalf, under
the circumstances detailed in section III above,
Respondent has discriminated with respect to their hire
"E.g., C. G. Conn, Ltd. v. N L R B , 108 F.2d 380 (product boycott by
employees); Aurora Wallpaper Mill, Inc, 73 NLRB 188 (refusal perform
part of duties unless wage increase granted); Elk Lumber Co, 91 NLRB
333 (slowdown).
"Washington Aluminum Company, Inc, 126 NLRB 1410
"N L.R B. v. Fleetwood Trailer Co , supra; N L R B v. Mackay Radio
Telegraph Co, 304 U S. 333.
and tenure of employment, discouraging membership in
the above-named labor organization, and thereby has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
3. By the foregoing conduct, Respondent has also
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act
and thereby has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Two strikers thus are entitled to be reinstated and made
whole. The only question remaining is which two?
General Counsel initially named only Jeraline Greer
and Gracie James in the complaint on the theory that,
since Para Lee Louis and Gloria Jean Struggs, not hired
until Saturday morning, were ultimately assigned to their
old work stations, Jeraline Greer and Gracie James were
identifiable as the specific two strikers still unreplaced
when the offer to return to work was made. He theorized
that Lula Gillins replaced Dorothy Jean Raney, with extra
maid Clemitee Booker filling the gap between the quitting
of the latter and the hire of the former. In drafting his
complaint he assumed that Respondent agreed with his
theory. When, at the hearing, Respondent challenged it,
General Counsel amended the complaint, as detailed
above, without altering his basic position that only two
maids were entitled to reinstatement.
The alternative to the approach under which General
Counsel seeks a remedy for Jeraline Greer and Gracie
James is to order reinstatement for the two maids with the
greatest seniority. The fact that the record does not reveal
who they are does not preclude such a result since my
recommended order could be couched in general terms
and determination of which two maids are to benefit
thereby left to the compliance stage. However, I do not
find that assignment of the new maids to specific work
stations was so far removed in time from the moment
when rights to reinstatement vested that the customary
Board policy of identifying unreplaced strikers by looking
to see whose specific machine, post, or duties are still
unmanned or unassigned should not apply here. Since the
theory on which General Counsel initially elected to name
only Jeraline Greer and Gracie James is just and
reasonable and effectuates the policies of the Act, I adopt
it.
Having, found that Respondent has engaged in unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action which will
effectuate the policies of the Act.
I have found that Respondent violated Section 8(a)(1)
and (3) of the Act by discriminatorily failing and refusing
to reinstate two maids and that Jeraline Greer and Gracie
James are the two entitled to benefit from the remedy.
Therefore, I will recommend that Respondent offer
Jeraline Greer and Gracie James immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings they may have suffered as a result of
Respondent's discrimination against them, by payment to
each of a sum of money equal to that which she normally
would have earned as wages from January 26, 1968, to the
DOWNTOWNER OF SHREVEPORT 1113
date of Respondent's offer of reinstatement, less her net Woolworth Company, 90 NLRB 289, and Isis Plumbing
earnings during such period, with backpay and interest & Heating Co., 138 NLRB 716.
thereon to be computed in the manner prescribed in F W. [Recommended Order omitted from publication.]