St. Francis Hotel

National Labor Relations Board - Board Decisions

Mar 29, 1982

260 N.L.R.B. 1259 (N.L.R.B. 1982)

ST. FRANCIS HOTEL
St. Francis Hotel and Hotel and Restaurant Em-
ployees and Bartenders Union, Local 2 and Sin
Yee Poon. Cases 20-CA-14621 and 20-CA-
14912
March 29, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On January 13, 1981, Administrative Law Judge
Michael D. Stevenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel 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, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The initial charge (Case 20-CA-14621) concerns
allegations that Respondent violated Section 8(a)(1)
of the National Labor Relations Act, as amended,
by depriving employees of their Weingarten rights'
to union representation at investigatory interviews
which the employees reasonably believed might
result in disciplinary action. On July 24, 1979,2 Re-
spondent and the Union entered into a settlement
agreement which was approved by the Regional
Director for Region 20 on July 25. Subsequently,
an additional charge (Case 20-CA-14912) was filed
concerning allegations that Respondent further de-
prived employees of their Weingarten rights. Ac-
cordingly, the Regional Director withdrew ap-
proval of the settlement agreement and issued the
consolidated complaint herein alleging both preset-
tlement and post-settlement Weingarten violations.
The Board will not find an unfair labor practice
based on the subject of a settlement agreement
unless the settlement is first set aside, and the
Board will not set aside a settlement agreement
unless there is a breach of the agreement or a sub-
sequent related violation of the Act. Henry I. Siegel
Co., Inc., 143 NLRB 386 (1963). The General
Counsel contends that the settlement agreement
should be set aside on the basis of the alleged sub-
sequent violation of the Act. However, for the rea-
sons set forth below, we find that the subsequent
conduct did not violate the Act. Accordingly, we
shall not set aside the settlement agreement, or find
'N.LR.B. v. J Weingarten. Inc., 420 U.S 251 (1975)
2 All dates refer to 1979
the violations alleged, but will dismiss the com-
plaint in its entirety.
The only post-settlement violation alleged in the
complaint concerns a memorandum from Respond-
ent's general manager to division heads. The
memorandum was dated August 13, 1979, was
marked "Confidential," and concerned the "NLRB
SETTLEMENT AGREEMENT - HOTEL ST.
FRANCIS/LOCAL 2." The memorandum ex-
plains generally the settlement agreement and con-
tains examples of how to handle situations which
might arise, including the following which the
General Counsel contends violates Weingarten prin-
ciples:
Mary Jane is asked to meet with her super-
visor at the end of the shift to discuss the day's
work. If Mary Jane feels she might be disci-
plined as a result of the meeting, she can re-
quest the presence of a union representative
(shop steward) to be present and she must be
given the opportunity to have one there. The
role of the shop steward is to observe and
assist Mary Jane in responding to questions,
however, the shop steward may not speak for
her.
There is no evidence that the memorandum was
communicated to employees, and there is no evi-
dence of any denial of Weingarten rights in any
post-settlement interview. Instead, the General
Counsel contends, and the Administrative Law
Judge found, that the memorandum on its face vio-
lates the Act. We do not agree.
The Administrative Law Judge focused on the
language stating "the shop steward may not speak
for her" and found that it amounted to a flat prohi-
bition of the steward's speaking out. If the Admin-
istrative Law Judge's reading of the language is
correct, then the memorandum is evidence of a
violation of the Act. See Southwestern Bell Tele-
phone Company, 251 NLRB 612 (1980), enforce-
ment denied 667 F.2d 470 (5th Cir. 1982), and
Texaco. Inc., 251 NLRB 633 (1980), enfd. 659 F.2d
124 (9th Cir. 1981), in which the Board held that
an employee's Weingarten right includes both the
presence and the participation of the union repre-
sentative. On the other hand, the language could
also be read to mean that a supervisor can insist on
the employee's own account of the matter, which
is clearly permissible. See Weingarten, supra at 602.
Thus, we find that the particular language is not all
that clear.
The Administrative Law Judge also looked at
the following part of the memorandum:
260 NLRB No. 174
1259
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The NLRB settlement agreement should not
alter your day-to-day supervision of your re-
spective employees. It is "business as usual"
and our practices with respect to "managing
the work place" should not change because of
that agreement.
The Administrative Law Judge found that the ref-
erence to "business as usual" told supervisors to
continue doing what they had done before relative
to the alleged presettlement Weingarten violations.
We do not read the language that way. In the im-
mediate context, "business as usual" refers to day-
to-day supervision, not to Weingarten interviews. In
the broader context, it refers to the limited role
stewards have under the collective-bargaining
agreement which provides, "Said shop stewards
shall not interfere with the management of the
business or substitute for the Business Agents of the
Union in handling complaints." However, the
memorandum specifically addresses this limitation
in relation to Weingarten interviews and states that
shop stewards are to be recognized as union repre-
sentatives for such purpose but are not otherwise
to be recognized as employee representatives in
such matters as grievances and problem solving.
The memorandum states, "The [settlement] agree-
ment, with respect to the shop steward recognizes
the shop steward as a union representative solely
for the purpose of being present during [a Weingar-
ten] interview .... " Thus, in context, "business as
usual" refers to matters other than Weingarten in-
terviews. 3
Because the language, "the shop steward may
not speak for her," suggests that Respondent was
attempting to control what stewards can do in
Weingarten interviews, the language is suspect. It is
possible to interpret the memorandum to mean that
Respondent was restricting the steward's role to
that of an inactive participant or silent observer,
but that is not the only possible interpretation. The
best evidence of what Respondent meant would be
the actions that were taken pursuant to the memo-
randum. If Respondent had restricted the steward's
role to that of a silent observer, it would have vio-
lated the Act. As indicated, however, there is no
evidence of any such post-settlement action or,
indeed, of any post-settlement Weingarten inter-
view. 4
' The presettlement complaint allegations apparently concern Respond-
ent's attempt to apply the contractual restrictions on steward activity to
Weingarten interviews as well as to other matters. In agreeing to the set-
tlement Respondent abandoned this position. The memorandum in stating
that during Weingarten interviews employees are to be allowed to have
stewards present to assist them indicates that Respondent was telling its
supervisors that "business as usual" did not apply to such interviews,
'There is no evidence that Respondent ever had such a policy. Al-
though one presettlement allegation involved the refusal to permit a ste-
From the foregoing, we find that the memoran-
dum does not clearly show an intent to violate em-
ployee Weingarten rights. The meaning of the
memorandum is not clear and is at worst ambigu-
ous. 5 In appropriate circumstances an ambiguous
policy or rule which could reasonably be interpret-
ed as violative of employee rights will be construed
against the maker of the policy or rule and, even if
it was not followed, will be found to have violated
the Act. For example, an ambiguous no-solicitation
rule violates the Act even if there is no evidence
that the rule was enforced against employees. Mal-
lory Battery Company, a division of P. R. Mallory &
Co., Inc., 239 NLRB 204 (1978). The appropriate
circumstances, however, are not present here. The
reason we construe an ambiguous rule or policy
against the maker is that employees could be
misled by the ambiguity and thereby could be in-
hibited in the exercise of their statutory rights. The
standard to be applied is an objective standard, not
a subjective one; we ask whether the rule or policy
could mislead employees, not whether the rule did
mislead them. In the instant case, unlike Mallory
where the ambiguous rule was stated in a pamphlet
given to employees, there is no evidence that the
ambiguous policy in the memorandum was commu-
nicated to employees or that employees were
aware of the memorandum. The memorandum was
circulated to supervisory department heads and
was not intended to be read by or communicated
to employees. So far as the record shows, the only
Weingarten policy communicated to employees
after the settlement was the "Notice To Employ-
ees" posted pursuant to the settlement, which reads
in pertinent part:
WE WILL NOT require any employee to
submit to an interview with our representa-
tives which he or she reasonably fears might
result in discipline, while denying his or her
request for union representation during the in-
terview.
WE WILL NOT refuse to recognize shop
stewards as Union representatives for the pur-
pose of Union representation in such potential
ward to speak, the steward merely happened to be present when the in-
terviesw began and refused to leave Respondent based its refusal on its
policy at the lime of not permitting stewards to represent employees in
any manner, including being present at Weingarten interviews However,
as pre.viously indicated, the settlement and the internal memorandum
both show Respondent's intent to abandon its prior position and to
permit stewards to represent employees for, but only for, Weingarten in-
terviews. Thus, again, "business as usual" does not refer to Weingarten
interviews or to any restrictiotn on the role of stewards in such inter-
views
s Accordingly, we need not decide whether an internal nmemorandum
or instruction showing an unlawful intent violates the Act without any
showing of employee knowledge or employer implementation. See, gen-
erally, Elm Hill 'Meats of Owcnsiboro, Inc., 205 NLRB 285 (1973).
1260
ST. FRANCIS HOTEL
disciplinary interviews. However, this is not to
be construed as superseding the rights of the
parties in respect to the grievance handling
provisions of the collective bargaining agree-
ment.
On this record, the General Counsel has failed to
show that employees were aware of the ambiguous
memorandum and, thus, has failed to show that
employees could have been misled by that memo-
randum to forgo their Weingarten rights. Accord-
ingly, we find that the General Counsel has failed
to meet his burden of proof and that there is, there-
fore, no basis on this record to construe the ambi-
guity against Respondent.
As we have found that the memorandum is at
worst ambiguous and that there is no basis to find
that employees objectively could have been ad-
versely influenced or affected by the ambiguity, we
find that the memorandum does not violate the Act
as alleged. As the General Counsel has failed to
prove that Respondent has engaged in any post-set-
tlement unfair labor practice, the settlement agree-
ment will be reinstated. Accordingly, we find it un-
necessary to consider the alleged presettlement
unfair labor practices and shall dismiss the com-
plaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the consolidated
complaint herein be, and it hereby is, dismissed in
its entirety.
IT IS FURTHER ORDERED that the settlement
agreement entered into between Respondent and
the Union on July 24, 1979, be, and it hereby is, re-
instated.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I agree with the Ad-
ministrative Law Judge's finding that Respondent's
post-settlement memorandum to its supervisors vio-
lated Section 8(a)(l) of the Act, and that such con-
duct presented a proper foundation to vacate the
settlement agreement.
The facts of this matter are essentially undisput-
ed and correctly set forth by my colleagues. How-
ever, unlike them, I am unwilling to don blinders in
making findings and conclusions from those facts.
It is uncontroverted that on May 30, 1979,6 the
Union filed a charge alleging that Respondent had,
on April 16, violated its employees' Weingarten
rights.7 Respondent apparently had little concern
' Unless otherwise noted, all dates hereinafter refer to 1979
'N.L.R.B. v. J Weingarten, Inc., 420 U.S 251 (1975)
about the charge, and further denied employees
their Weingarten rights on two occasions on June
17 and once again on July 5. The July 5 incident, it
is important to note, involved Respondent's refusal
to permit a union representative to participate in an
investigatory interview by directing the union rep-
resentative to remain silent. On July 24, Respond-
ent and the Union entered into an informal settle-
ment agreement which included a nonadmission
clause. The Regional Director approved the settle-
ment on July 25. On August 13, Respondent issued
a document marked "Confidential," addressed to its
division heads. The document, bearing the heading
"SUBJECT: NLRB SETTLEMENT AGREE-
MENT - HOTEL ST. FRANCIS/LOCAL 2,"
was an explanation to supervisors of Respondent's
interpretation of the settlement agreement and its
instructions to supervisors on how to handle Wein-
garten situations. The memorandum stated, in perti-
nent part,8 that the settlement agreement recog-
nized "the shop steward as a union representative
solely for the purpose of being present during an in-
terview between management and an employee in
which the employee has reasonable fears that disci-
plinary action may follow .... The shop stew-
ard's presence is to assure that the employee's rights
are protected .... The NLRB settlement agree-
ment should not alter your day-to-day supervision
of your respective employees. It is 'business as
usual' and our practices with respect to 'managing
the workplace' should not change because of that
agreement.... The role of the shop steward is to
observe and assist [an employee] in responding to
questions, however, the shop steward may not
speak for her...." (Emphasis supplied.)
The Administrative Law Judge found that Re-
spondent's memorandum violated Section 8(a)(l) of
the Act, reasoning that the memorandum, read as a
whole, indicated that the role of a shop steward
was that of a passive observer whose presence was
required by law, rather than an active participant in
the interview. I agree.
In reaching a contrary result, the majority ac-
knowledges that the memorandum is "suspect," but
finds it ambiguous and, in the absence of direct evi-
dence that the memorandum was disseminated to
employees, dismisses the complaint. In my opinion,
my colleagues have misplaced the respective bur-
dens of proof of the General Counsel and Respond-
ent. Even assuming that the reference to the role of
shop stewards being "solely for the purpose of
being present" and the subsequent reference to a
steward's "presence," as opposed to participation,
I The complete text of the memorandum is contained in the Adminis-
trative L aw Judge's Decision
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amount to an ambiguity, I would find that any am-
biguity in the policies expressed in the memoran-
dum is adequately clarified by reference to Re-
spondent's presettlement conduct and its avowed
intention to continue "business as usual" despite the
settlement agreement. In order to establish a prima
facie case, the General Counsel is not required to
show that the avowed policy was in fact imple-
mented; rather, it is Respondent's burden to rebut
the prima facie case by showing that the policy ex-
pressed therein was rescinded in a timely manner
or that it was never implemented. 9 Respondent in-
troduced no evidence to establish either fact. Ac-
cordingly, the General Counsel's prima facie case
remains unanswered. In the absence of affirmative
evidence to the contrary, we assume that company
policies are followed by those to whom such poli-
cies are directed. Here, Respondent admitted that it
issued the memorandum in question, and that it
was distributed to those persons charged with its
enforcement. Having established a prima facie case
that the memorandum unlawfully impinged on em-
ployees' Section 7 rights, the General Counsel has
proved his case. In the absence of rebuttal evidence
from Respondent, the General Counsel need do
nothing more.
I would thus find, in agreement with the Admin-
istrative Law Judge, that the memorandum in issue
was violative of Section 8(a)(1) of the Act, and
thus would set aside the settlement agreement and
find that Respondent violated its employees' Wein-
garten rights as alleged in the complaint.
9 See Birmingham Ornamental Iron Company, 240 NLRB 898 (1979)
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at San Francisco, Califor-
nia, on October 27, 1980,1 pursuant to a complaint issued
by the Regional Director for the National Labor Rela-
tions Board for Region 20 on November 30, and which
is based upon charges filed by Hotel and Restaurant Em-
ployees and Bartenders Union, Local 2 (20-CA-14621)
(herein called the Union), and by Sin Yee Poon, an indi-
vidual (20-CA-14912) on May 30 and October 10, re-
spectively. The complaint alleges that St. Francis Hotel
(herein called Respondent) has engaged in certain viola-
tions of Section 8(a)(l) of the National Labor Relations
Act, as amended (herein called the Act).
On July 24, Respondent and the Union entered into a
settlement agreement. On July 25, the Regional Director
for Region 20 approved the settlement agreement. On
November 30, the Regional Director ordered the ap-
proval of the settlement agreement be withdrawn on the
'All dates herein refer to 1979 unless otherwise indicated.
grounds that Respondent failed to discharge its obliga-
tion under said agreement.
Issues
1. Whether the settlement agreement was properly va-
cated.
2. Whether Respondent violated the rights of its em-
ployees guaranteed to them pursuant to the Weingarten
case2 and subsequent Board cases interpreting the princi-
ples of law contained therein.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of Respondent only.3
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
Respondent admits that it is engaged, on behalf of
Western International Hotels, a corporation, in the oper-
ation of a hotel located in San Francisco, California, and
providing food and lodging for guests. It further admits
that during the past year, in the course and conduct of
its business, that its gross volume exceeded $500,000 and
that annually it purchases and receives goods and materi-
als valued in excess of $5,000 from suppliers located out-
side the State of California. Accordingly, it admits, and I
find, that it is an employer engaged in commerce and in
a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits and I find that Hotel and Restau-
rant Employees and Bartenders Union, Local 2, is a
labor organization within the meaning of Section 2(5) of
the Act.
nII. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
As mentioned above, Respondent and the Union en-
tered into a settlement agreement on July 25. The Re-
gional Director approved said agreement and, on Octo-
ber 18, the Regional Director sent Respondent the usual
letter informing Respondent that it had satisfactorily
complied with the affirmative and negative provisions of
the settlement agreement and that the file in the case
would remain closed "so long as the present status of
compliance continues." The letter closed with the admo-
nition, "subsequent violations may become the basis of
further proceedings despite the formal closing of the
2
N.L.R.B. v. J. Weingarren, Inc., 420 U.S. 251 (1975).
At hearing, counsel for the General Counsel expressly waived her
right to file a brief. However, on November 13, 1980, I received a one-
paragraph letter from the General Counsel, addressed to "Honorable Ste-
venson," correcting certain statements which the General Counsel made
at the hearing.
1262
ST. FRANCIS HOTEL
case." (G.C. Exh. I-p.) Subsequent to this letter, the
General Counsel received a copy of a "Memorandum to
Division Heads" marked "Confidential." This document,
dated "8/13/79" was prepared by Respondent's general
manager and bore the following heading: "SUBJECT:
NLRB SETTLEMENT AGREEMENT - HOTEL ST.
FRANCIS/LOCAL 2." Consisting of 1-1/4 pages of
text, the document is followed by several examples of sit-
uations likely to arise and directions on how they are to
be handled by Respondent's supervisors. I include below
the entire text of the memo and the first example, which
the General Counsel alleges violate the principles of
Weingarten and the Act:
On May 30, 1979, Local 2 filed an NLRB complaint
(called an Unfair Labor Practice) against the hotel,
alleging that the hotel had violated Section 8(a)(l)
of the National Labor Relations Act by requiring
employees to participate in interviews or meetings
with management without union representation. A
settlement agreement has been reached and the
hotel will be required to post the attached notice
for 60 days. As you know, the hotel has worked di-
ligently in applying all sections of the Local 2 con-
tract especially the section pertaining to Shop Stew-
ards (Section 13, General Rules, page 27). Local 2,
on the other hand, has sought recognition for Shop
Stewards over and above what is contained in the
contract, and the settlement agreement is one step
toward that direction.
The agreement, with respect to the shop steward
recognizes the shop steward as a union representa-
tive solely for the purpose of being present during
an interview between management and an employee
in which the employee has reasonable fears that dis-
ciplinary action may follow after the interview has
been terminated. The shop steward's presence is to
assure that the employee's rights are protected
under the terms of the contract and the law.
The agreement also states that the recognition of
the shop steward is not to supersede the rights of
the parties (Hotel and Local 2) with respect to
grievance handling. In other words, the shop ste-
ward may not handle grievances or raise matters
that arise out of the application and interpretation
of the contract. This is a very important point to
keep in mind as a shop steward may very well go
directly to a supervisor and attempt to represent an
employee who may legitimately have a complaint
which should be more appropriately handled by a
Business Agent. These problem-solving matters are
our responsibility as well as that of the Business
Agent if one is asked to intervene. The hotel must
not put itself in the position of dealing with the
shop steward in problem solving. Should the shop
steward persist in representing the employee, the
hotel's response should be "Thank you for your in-
terest in the matter however, it is suggested that
this problem be brought to the attention of your
Business Agent for resolution."
The NLRB settlement agreement should not alter
your day-to-day supervision of your respective em-
ployees. It is "business as usual" and our practices
with respect to "managing the work place" should
not change because of that agreement.
Attached is a set of examples which you may use as
a guide when confronted with a steward-recogni-
tion problem. Should you have any questions or dif-
ficulty in handling a problem, please call Jerry
Evans and/or Lindy Valentin for assistance.
cc: Department Heads
1. Mary Jane is asked to meet with her supervisor
at the end of the shift to discuss the day's work. If
Mary Jane feels she might be disciplined as a result
of the meeting, she can request the presence of a
union representative (shop steward) to be present
and she must be given the opportunity to have one
there. The role of the shop steward is to observe
and assist Mary Jane in responding to questions,
however, the shop steward may not speak for her.
[G.C. Exh. 27.]
I also include below, section 13 from the collective-
bargaining agreement then in effect between Respondent
and the Union (July 1, 1975, through July 30, 1980).
Shop Stewards:
Shop stewards shall report to the Union violation
of contract and complaints by members of the
Union. Said shop stewards shall not interfere with
the management of the business or substitute for the
Business Agents of the Union in handling com-
plaints. Shop stewards shall not be discharged for
performance of their duties provided such activity
does not interfere with his regular duties as an em-
ployee. [Resp. Exh. I.]
At the hearing, three witnesses-two present and one
former employee of Respondent-testified relating to in-
terviews between employees and supervisors. These oc-
curred at different times when a maid was unable to
finish her assigned work. (In the jargon of the hotel busi-
ness, this is called "hanging a room" or "rooms" as the
case may be.) I will discuss these incidents in detail in
"Analysis and Conclusions" section of this Decision.
B. Analysis and Conclusions
I. Respondent's memo of August 13
Respondent's initial argument is in two parts: First, it
contends that its policy contained in the August 13
memo is not violative of Weingarten; alternatively, it
argues that even if this policy is violative of Weingarten,
there is no evidence that the policy ever restrained or in-
terfered with any employee's Section 7 rights. I begin
with Respondent's first argument which raises an impor-
tant issue since an unfair labor practice will not be found
based on presettlement conduct unless there has been a
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
failure to comply with the settlement agreement, or sub-
sequent unfair labor practices have been committed.4
There can be little question that Respondent's memo
of August 13 violates Section 8(a)(1) of the Act. Para-
graph 2 of the memo states in part that the role of the
shop steward at a disciplinary meeting is "solely for the
purpose of being present" to assure the protection of the
employee's rights under the contract and the law. Exam-
ple 1, elaborating on the text of the memo, reads in perti-
nent part, ". .. the role of the shop steward [in a meet-
ing with supervisors where discipline is possible] is to ob-
serve and assist Mary Jane in responding to questions,
however, the shop steward may not speak for her." In
Texaco, Inc., 251 NLRB 633 (1980), the Board found a
violation where the union representative's role was, in
effect, that of a passive observer, rather than an active
participant. Thus, the Board held that not only is the
presence of a union representative required at an investi-
gative interview when requested by the employee but, in
addition, the active assistance of that representative is re-
quired during a confrontation with the employer which
threatens the employee's employment security. This case
is a closer case than Texaco and an earlier similar case
entitled Southwestern Bell Telephone Company, 251
NLRB 612 (1980). In both of these cases, the supervisor
demanded the silence of the union representative at the
outset of the interview. Here the example quoted above
merely says "the shop steward may not speak for her."
This flat prohibition should be considered in context of
the entire memo, particularly the reference on page 2 of
the text:
The NLRB settlement agreement should not alter
your day-to-day supervision of your respective em-
ployees. It is "business as usual" and our practices
with respect to managing the work place should not
change because of that agreement.
For me to understand the expression, "business as usual,"
I look to the General Counsel's proof relative to the pre-
settlement violations which I will detail below. These
matters do not represent close questions and I must
assume that Respondent is telling its supervisors to con-
tinue doing what they had been doing before. Accord-
ingly, I find that Respondent's memo violated Section
8(a)(l) of the Act and therefore presented a proper foun-
dation to vacate the settlement agreement. 5
I do not mean to say by the above that a supervisor
cannot insist on a first-hand explanation of an employee's
conduct from that employee. In the same way that a su-
pervisor cannot lawfully tell a union representative to
remain silent during an investigative interview, so, too,
an employee cannot tell a supervisor that the employee
Interstate Paper Supply Company. Inc., 251 NLRB 1423, fn. 9 (1980);
Chauffeurs. Teamsters and Helpers Local Union 215 a/w International
Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of Amer-
ica (B d W Construction Company, a division of Babcock & Wilcox Compa-
ny), 251 NLRB 1234 (1980).
s I am not troubled by the fact that the memo was dated August 13
and the Regional Director's closing letter was dated October 18 Clearly
the "Confidential" memo was not readily discoverable through investiga-
tion. Thus, the General Counsel apparently acted upon the memo as soon
as it was discovered. Chauffeurs. Teamsters and Helpers Local Union 215.
supra.
wishes to remain silent and allow the union representa-
tive to do all of the talking for him or her. Either of
these approaches would tip the balance between the
right of an employer to investigate the conduct of its em-
ployees at a personal interview, and the role of the rep-
resentative present at such an interview. It is not neces-
sary for me to state how such a balance should be struck.
I say only that in this case, Respondent has fallen short
and has violated the Act.
Having found that Respondent's memo violated the
Act on its face, I find the second prong of Respondent's
defense unavailing. It argues that there is no evidence
that the policy was communicated to employees and ac-
cordingly, no violation can be based on its mere exist-
ence. This argument has several flaws. First, when of-
fered by the General Counsel, the document was de-
scribed by counsel for Respondent:
What I'm stipulating to is that the document which
counsel has referred to is a document that was
issued by the Hotel St. Francis ....
In addition, there was no objection to its admission into
evidence. Under these circumstances, and because the
document is a business record, prepared in the regular
and ordinary course of business, I am permitted to draw
an inference that the document was used for the purpose
intended.' Its purpose was not to communicate directly
with employees, but to supervisors. Since Respondent
presented no evidence to the contrary, I find that Re-
spondent's supervisors acted in accord with the direction
of the memo issued by Robert Wilhelm, general manager
of the hotel. I further find, through the drawing of a rea-
sonable inference, that Respondent's policy was commu-
nicated to employees through its supervisors' actions.
Having so found, I am not certain that such a finding is
essential to a violation since, as Respondent recognizes
(br. p. 9, fn. 4), any act or statement of an employer must
be measured by an objective standard. By that measure-
ment, I reiterate my finding above, that Respondent's
policy has violated the Act without respect to the issue
of communication to employees.
2. Four alleged Weingarten violations
The General Counsel presented three witnesses who
testified regarding their experiences with Respondent's
supervisors over the issue of "hanging rooms." Charging
Party Sin Yee Poon testified that on June 17, once by
phone and later in person, she talked with Supervisor Pat
Kelly. In accord with the hotel's standard operating pro-
cedures, Poon had informed Kelly about 2 p.m. by tele-
phone that she would not be able to finish her assign-
ment. When asked for an explanation, Poon requested a
union representative be present. Kelly continued to
demand an explanation. Finally, Kelly said that Poon
should call the union business agent. However, it was
Sunday and Kelly knew that the business agent would
not be available. Kelly said that a union steward would
not be acceptable. At 4 p.m., Poon was checking out for
the day when she encountered Kelly in person. Again
6Cf. General Thermodynamics. Inc., 253 NLRH 180 (1980).
1264
ST. FRANCIS HOTEL
Kelly asked for an explanation for Poon's "hanging
rooms" and again Poon asked for a union representative.
Kelly ignored the request and continued the interview.
On July 5, the above scenario was replayed with certain
differences. This time when Poon gave telephone notice
that she was "hanging room" she was told by Patty
Neery, a secretary in the housekeeping department, that
she could bring "anyone you wish" to represent Poon in
the subsequent interview with a supervisor. About 4
p.m., Kelly asked Poon why Poon could not do the as-
signed work. This time Poon was represented by shop
steward Feliza Magno, also a maid, and a witness at the
hearing. Kelly asked Poon for an explanation and when
Magno attempted to participate in the hearing, Kelly re-
fused to permit it and directed Magno to remain silent.
During this interview, Poon did give Kelly an explana-
tion for not finishing her work, saying that she had been
assigned too many rooms that day. As a result of this in-
terview, Poon received an "Employee Warning Notice"
dated July 9. (G.C. Exh. 3.)
Witness Fred Butcher, a former employee of Respond-
ent, described a conversation he witnessed on or about
April 16 in Respondent's housekeeping department. This
occurred between Supervisor Diana Spicer and maid
Dorothy Brownlee, neither of whom testified, and again
concerned a supervisor's attempt to obtain an explanation
for Brownlee's "hanging rooms." Butcher advised the
maid that she had a right to the presence of a union rep-
resentative. To this, Supervisor Spicer answered in
Brownlee's presence, "We don't need a shop steward
here." When Brownlee asked Butcher to represent her,
Butch said he was not a shop steward. At this point,
Spicer again said a shop steward was not needed, that all
these people here are members of the Union-apparently
referring to several nearby employees waiting to punch
out. Spicer said that even she was a member of the
Union and then continued the interview.
Respondent presented no witnesses and only one ex-
hibit. I regard the evidence as largely undisputed. With
respect to the above evidence, Respondent argues that
neither Poon nor Brownlee had a reasonable fear of dis-
cipline (br. pp. 11-12). This argument must be rejected.
Two employees were unable to finish their assigned
work and were asked by supervisors for an explanation.
One disciplinary notice did result from the four incidents
related.' No one can seriously question the right of su-
pervisors to conduct inquiry on unfinished work, yet the
employees clearly understood that, if they did not have
good reasons for not completing their work, they would
I Respondent claims Poon received the notice for leaving a "room par-
tially completed-a subject about which [Poon] was not questioned" (Br
p. 12.) This is a distinction without a difference. The subject of the warn-
ing notice was an integral part of the Poon interview and refers to an
incident which occurred on the date of interview. Its validity must rise
or fall on the propriety of the interview.
be disciplined. The interviews were investigative in
nature as no discipline had been decided upon prior to
the interviews.8 That three of the interviews occurred at
the counter in Respondent's housekeeping department is
not material and does not affect my conclusion. Similar-
ly, I must reject Respondent's argument (br. p. 13) that
at least one of the four alleged violations must fall be-
cause no "interview" occurred over the telephone. It is
true that Poon testified that Kelly agreed to continue the
interview later, but this was after Kelly had rejected
Poon's request for a union representative and continued
the interviewing no matter how briefly. Each incident is
a separate violation.
In sum, I find that Respondent violated Section 8(a)(1)
of the Act on four separate occasions as alleged by the
General Counsel by either denying an employee's re-
quest for a union representative to be present at an inves-
tigative interview or, if the union representative were
present, denying that person a meaningful and effective
role in the interview.
CONCLUSIONS OF LAW
1. At all times material, Respondent was an employer
engaged in commerce in a business affecting commerce.
2. At all times material, the Union was a labor organi-
zation within the meaning of Section 2(2), (5), (6), and
(7) of the Act.
3. At all times material Kelly, Spicer, and Wilhelm
were supervisors and agents of Respondent acting on its
behalf; Poon and Brownlee were Respondent's employ-
ees.
4. By preparing and issuing a confidential memo of
August 13, and by either denying any union representa-
tion or by denying effective union representation to
Poon and Brownlee at their investigative interviews, Re-
spondent has violated Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices affected com-
merce as defined in the Act.
THE REMEDY
Having found that Respondent violated the Act by
preparing and issuing a confidential memo of August 13
and by denying Poon and Brownlee the assistance of ef-
fective union representation which they requested at
their investigative interviews, I shall recommend that
Respondent rescind the memo of August 13 by appropri-
ate means and cease and desist from similar denials in the
future, and expunge from its records any and all disci-
plinary notices issued to Poon and Brownlee as a result
of the interviews found herein to be unlawful.
[Recommended Order omitted from publication.]
See Penn-Dixie Steel Corporation. Joliet Bar Mill Division, 253 NLRB
91 (1980): compare Great Western Coca Cola Bottling Company. d/b/a
Houston Coca Cola Bottling Company, 251 NLRB 860 (1980)
1265