Clinton Inn

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Clinton Inn and Local 69, Hotel & Restaurant Em- ployees & Bartenders International Union, AFL-CIO. Case 22-CA-8817 May 1, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On November 9, 1979, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed exceptions and a brief in answer to the General Counsel's exceptions. 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 conclusions2 of the Administrative Law I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In affirming the Administrative Law Judge's conclusion that Re- spondent violated Sec 8(aK3) of the Act when it discharged Steven Antebi, Members Jenkins and Truesdale rely on their conclusion, for the reasons set forth below, that Antebi was discharged because of his union activities and that Respondent's asserted reason for the discharge was a pretext. Respondent contended that Antebi was discharged because his work performance was not satisfactory. However, at the time of his discharge, Antebi was told by his supervisor, Koykos, that Respondent had "too many cooks in the kitchen." Koykos testified at the hearing that it was "very rare" to fire someone, and that, "to fire someone it's got to be a very good reason, because we need them." Koykos also admitted that he hired a replacement for Antebi the following week. In light of the fact that Antebi's discharge occurred 3 days after Koykos admittedly saw Antebi sign a union authorization card and that Respondent exhibited strong animus toward the Union and its adherents, these inconsistencies in Respondent's "business reasons" for Antebi's dis- charge fully support the inference, which Members Jenkins and Trues- dale draw, that Antebi's union activities, rather than any unsatisfactory performance, motivated his discharge Member Penello notes that in the section of his Decision pertaining to Antebi's discharge, the Administrative Law Judge discussed Antebi's union activities and Respondent's alleged business reasons for the dis- charge, which he discredited. He then concluded that Antebi's involve- ment in union activities was a "compelling factor" in Respondent's deci- sion to discharge him. However, the Administrative Law Judge went on to cite N.L.R.B. v. Hanes Hosiery Division, Hanes Corporation, 413 F.2d 457, 458 (4th Cir. 1969), in which the Fourth Circuit applied the "in part" test, in finding that the discharge violated Sec. 8(aX3) of the Act. Although he referred to the "in part" test, whether the Administrative Law Judge applied that standard in reaching his conclusion remains un- clear. Member Penello agrees with the Administrative Law Judge's con- clusion that Antebi was discharged for his union activities, but does not rely on the "in part" test in reaching this decision. Instead, he finds, for the reasons set forth above, that Antebi was discharged solely because of his union activities and that Respondent's asserted reason for the dis- charge was a pretext. 249 NLRB No. 22 Judge and to adopt his recommended Order, as modified herein.3 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, as modi- fied below, and hereby orders that the Respondent, Clinton Inn, Tenafly, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: i. Substitute the following for paragraph (i): "(i) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: I agree with my colleagues in finding that Re- spondent violated the Act by discriminatorily dis- charging two employees and issuing a written warning to a third, and violated Section 8(a)(1) by: interrogating employees, confiscating authorization cards from employees, removing union literature from employees' cars, announcing new and im- proved benefits and working conditions, and pro- mulgating and enforcing new rules in regard to em- ployee conduct, including an invalid no-solicitation rule. I also agree that a bargaining order in the ab- sence of a union majority is not appropriate here, but of course rely on my dissent, rather than the majority, in United Dairy Farmers Cooperative Asso- ciation, 242 NLRB No. 179 (1979). I disagree with my colleagues' action in chang- ing the Administrative Law Judge's "cease and desist" order from a broad to a narrow order. The wide variety, seriousness, and severity of Respond- ent's misconduct amply demonstrate the general disregard for employees' statutory rights which we require under Hickmott. Unless we are to confine broad orders to repeat offenders, which I would 3 In par. (i) of his recommended Order, the Administrative Law Judge provided that Respondent shall cease and desist from "in any other manner" interfering with, restraining, or coercing its employees in the ex- ercise of the rights guaranteed them in Sec. 7 of the Act. However, it is the Board's policy that such an order is warranted only when a respond- ent is shown to have a proclivity to violate the Act, or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. Hickmott Foods. Inc., 242 NLRB No. 177 (1979). With respect to the instant dis- pute, we find that the broad injunctive order issued against Respondent is not warranted. Accordingly, we will modify the Administrative Law Judge's recommended Order and notice. We shall also modify the notice to include par. I(e) of the Administra- tive Law Judge's recommended Order, which he inadvertently omitted from his notice CLINTON INN 199 not, this is plainly a case requiring such an order to curb Respondent's sweeping disregard of its em- ployees' statutory rights. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise dis- criminate against you in regard to your hire, tenure of employment, or any term or condi- tion of employment in order to discourage membership in Local 69, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, or any other labor organization. WE WILL NOT question you about your union sympathies or activities, or those of other employees, under circumstances or in a way that would restrain or coerce you. WE WILL NOT take union authorization cards or other union material from the posses- sion of our employees. WE WILL NOT remove union leaflets or pamphlets from parked automobiles in the em- ployees' parking lot. WE WILL NOT announce and put into effect improved benefits and working conditions for you to discourage your membership in, or ac- tivities on behalf of, any labor organization. WE WILL NOT put into effect new work rules or enforce old rules more stringently, be- cause employees show interest in unionization or in order to discourage them from joining or assisting any labor organization. WE WILL NOT promulgate, maintain, en- force, or apply any rule or regulation prohibit- ing you, when you are on nonworking time, from distributing handbills or similar material on behalf of any labor organization in non- working areas of our premises, or prohibiting you, during nonworking time, from soliciting your fellow employees to join or support any labor organization, or discriminatorily enforce any otherwise valid rule pertaining to such ac- tivities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed you by Section 7 of the National Labor Relations Act. WE WILL offer to Daniel Moskowitz and Steven Antebi immediate reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges and WE WILL make them whole for any loss of earnings they may have suffered by reason of our unlawful discrimination against them, with interest. WE WILL remove and expunge from the personnel record of Martha Woods the warn- ing notice issued to her on November 28, 1978. CLINTON INN DECISION STATEMENT OF THE CASE ROBERT COHN, Adminstrative Law Judge: This pro- ceeding, held pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), was heard in Newark, New Jersey, on May 31, June 1, and June 13, 1979, pursuant to due notice. The issues raised by the pleadings' are, in essence, whether Clinton Inn (herein called the Respondent or Inn), interfered with, restrained, and coerced its employees in violation of Section 8(a)(l) of the Act, and discriminated against three of its employees in violation of Section 8(a)(3) of the Act, by acts and conduct of its agents and supervi- sors hereinafter set forth. 2 Subsequent to the hearing, and within the time al- lowed, post-hearing briefs were filed by counsel for the Respondent, and by counsel for the General Counsel, which have been duly considered. Upon the entire record in the case, including my ob- servation of the demeanor of the witnesses,3 I make the following: FINDINGS AND CONCLUSIONS I. ALLEGED UNFAIR LABOR PRACTICES4 A. Background At all times material herein, the Respondent has oper- ated a hotel with related restaurant and banquet services in Tenafly, New Jersey. During the spring and summer of 1978, 5 the Respondent engaged in an expansion of its facilities so that by the fall it was employing approxi- mately 200 employees who were engaged in providing services indigenous to such an operation. In later Sep- The original charge was filed November 6, 1978; the original com- plaint issued December 28, 1978 (amended May 2, 1979). 2 The amended complaint also seeks "the entry of a remedial [bargain- ing] order, without inquiring into the Union's majority status . . 3 Cf. Bishop and Malco. Inc.. d/b/a Walker's, 159 NLRB 1159, 1161 1966). 4There is no issue as to the Board's jurisdiction or the status of the Charging Union as a labor organization. The complaint alleges sufficient facts respecting the interstate operations of the Respondent, which are admitted by answer, upon which I may, and do hereby, find that the Re- spondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It was alleged in the complaint, and conceded by counsel for the Re- spondent at the hearing, that the Charging Union is a labor organization within the meaning of Sec. 2(5) of the Act 5 All dates hereinafter refer to the calendar year 1978, unless otherwise indicated CLINTON INN '99 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tember and early October, the Union commenced an or- ganizational campaign among the employees of the Re- spondent. The complaint alleges that in October and No- vember, the Respondent engaged in a counter-campaign designed to disabuse its employees of the asserted advan- tages of belonging to, and supporting the union cam- paign, including two discriminatory discharges and one discriminatory warning notice, thereby violating Section 8(a)(l) and (3) of the Act. The Respondent denies such allegations, and further asserts that the conduct alleged to have been discriminatorily motivated was, in fact, prompted by good and sufficient cause. We now turn to the evidence adduced with respect to these issues. B. The Facts I. Events leading to the termination of Daniel Moskowitz As previously noted, the union campaign commenced at the Inn in late September, when two union organizers (one of whom was Bob Luchese) went into the hotel and distributed a few union authorization cards to some em- ployees. One of the employees, Daniel Moskowitz, a houseman, 6 received a card from a maid at the Inn, and, wishing to learn more about the Union, contacted Lu- chese by telephone. Subsequently, on or about October 12, Moskowitz met Luchese in the parking lot of the hotel, and Luchese explained to him the asserted advan- tages of becoming a union member. At that time Moskowitz signed a union authorization card, and took from Luchese other blank authorization cards to distrib- ute among the employees. Moskowitz testified that from that time until his discharge on November 1, he distribut- ed approximately 50 cards among the employees at the Inn, of which approximately 25 were signed and re- turned to him. During the last week in October, Moskowitz learned that one of the bellmen at the Inn was quitting, and he spoke with Assistant Manager John Rojan about apply- ing for the bellman's job.7 Rojan told Moskowitz that the latter should fill out an application for the bellman's job and that he (Rojan) would get in touch with Moskowitz' immediate supervisor, Lee Fitzpatrick, in order to check his work record. A short time later, Moskowitz had a conversation with Fitzpatrick who told him that Rojan had asked her about Moskowitz, and she told Rojan that it would be satisfactory with her to allow Moskowitz to change positions conditioned upon his training someone to assume the position of houseman. Shortly thereafter, Rojan advised Moskowitz that the latter was accepted for the position of bellman, and di- rected that he buy some suitable clothes for the position. 6 Moskowitz describes the duties of a houseman as follows. Well, in the morning I would open up all the doors, and I would immediately deliver linen to the maids' closets. I would clean, sweeping outside the parking lot, inside the hotel. I would vacuum the restaurant, and vacuum the bar. I would at times wipe windows, or vacuum inside the rooms I would pick up lunch for the employ- ees n my department 7 Although it is not entirely clear from the record, it would appear that the bellman's job would be more lucrative than the job of houseman since a bellman normally receives tips from guests of the Inn. On November 1, Moskowitz (who had a day off from work) received a telephone call from Rojan. The latter advised that he had "bad news"-that the management had decided that Moskowitz' work record was not good enough for the job of bellman, and that, indeed, the Inn did not desire to retain his services as a houseman. When Moskowitz asked why the sudden change in position, Rojan responded that, "He was in the middle of it, that he was the one who had to tell me about the bad news . . . that if Moskowitz had any further complaints, [he] should go to see the manager." 8 The following day, Moskowitz went to the Inn and had a conversation with both Fitzpatrick and the general manager of the Inn, Richard Trifari. According to the testimony of Moskowitz, which was undenied, Fitzpatrick told him that it was not true that his work record was not good, and that she had nothing to do with his being dis- charged. Then Moskowitz went into Trifari's office and asked why he had been terminated. Trifari responded, according to Moskowitz' testimony, "You were giving out cards in the hotel, your work wasn't good enough, and we can't have anybody in here whose work wasn't good enough, according to your records."9 Moskowitz then left Trifari's office. Moskowitz returned to the Inn the following Friday to pick up his last paycheck. On this occasion, he was ac- compained by one Steven Antebi, a former employee who had been discharged by the Respondent on or about October 27 (of which more, anon). While walking through the kitchen of the restaurant, Moskowitz gave authorization cards to two employees of Spanish descent, and told them that they could mail the cards to the Union after completing the information requested upon them. Apparently, Trifari learned of the presence of Moskowitz and Antebi on the premises, and became very disturbed. Martha Woods, a waitress in the coffeeshop, testified that she happened to be in the kitchen at the time, and described the circumstances as follows: . . about 2 minutes later, Mr. Trifari came running into the coffee shop and ran into the kitchen and there were two dishwashers standing there and they were looking at cards and he pulled them out of their hands and-still reading them, and that's all. I walked out of the kitchen at that point.' 0 Shortly thereafter, Trifari caught up with Moskowitz and Antebi with the two union cards in his hands, and advised the two men that if he ever saw them in the hotel again he would call the police. He also said that he I Credited testimony of Moskowitz. Neither Rojan nor Fitzpatrick was called as a witness by the Respondent, although it was not shown that either was unavailable. 9 Trifari denied knowledge of Moskowitz' union activities prior to the date of his discharge. For reasons discussed in infra, I do not credit this denial. However, this does not mean that I necessarily credit Moskowitz' testimony that Trifari uttered the words about the former's distributing union cards. Trifari did not impress me as one who would make such a damaging admission. "I rifari acknowledged being in the kitchen on this occasion and seeing the two dishwashers with cards i their hands; however, he denied removing the cards from the hands of the dishwashers I do not credit this denial. CLINTON INN 201 never wanted to see the cards again, and ripped them in pieces in front of Moskowitz and Antebi. Whereupon, Moskowitz secured his check and as he was leaving the hotel, he observed Trifari in the parking lot removing union pamphlets from parked automobiles where the union organizers had placed them. This partic- ular parking lot was one of several lots which the Inn maintained for the parking of automobiles, but this one was admittedly designated as an employees' parking lot. ' Trifari said that he did not want to see any union leaflets either and ordered the men to "get the hell off the property." 2 2. The discharge of Steven Antebi Antebi worked as a short order cook in the restaurant for approximately 2 weeks before he was discharged by the Respondent on October 27. He had known Moskowitz in school prior to his employment at the Inn, and 2 days before October 27, Moskowitz asked Antebi to sign a union authorization card. The two men went outside the door of the kitchen where Antebi signed the card. At that time, they were observed by food and bev- erage director, George Koykos, an admitted supervisor, who asked Antebi what he was doing. Antebi responded, "nothing," and Koykos walked back inside the kitchen. Antebi's only other activities on behalf of the Union con- sisted of passing out two authorization cards to two dish- washers in the kitchen. The following Friday, when Antebi went to pick up his paycheck, he was told by George Koykos that the latter was sorry, but there were too many cooks in the kitchen and he would have to let Antebi go.' 3. The alleged discrimination as respects Martha Woods, and other incidents of alleged interference, restraint, and coercion In October, Martha Woods was a waitress in the cof- feeshop, having been employed by the Respondent for approximately 4 years. Woods became active in the Union in October, soliciting other employees, mostly in the coffeeshop. She testified that she was successful in signing about 10 employees into the Union. On or about October 30, she had a conversation with Marie Vouteras, a hostess in the coffeeshop. Vouteras told Woods that she (Vouteras) had just returned from a conversation with Trifari; that he told her that he was aware of a union being formed in the hotel, and wished to know if she knew anything about it, or if anyone had approached her on the subject. Vouteras responded in the negative, and Trifari thanked her. It is alleged in the complaint, and denied by the Re- spondent that Vouteras is a supervisor within the mean- i" However, Trifari testified that that particular parking lot was also utilized for valet parking of guests' automobiles. :2 Testimony of Moskowitz 'J Koykos acknowledged that on the occasion when he told Antebi that the latter was discharged, the only reason given Antebi at the time was that there too many cooks, and that Koykos did not need him. How- ever, Koykos testified that a couple of days before that, he had told Antebi that he did not do his job properly, that he never came in on time, and that on many occasions he was not on his job when Koykos looked for him. ing of the Act. The evidence shows that the duties of a hostess are primarily to seat customers, assign stations to the waitresses, and make drinks at the bar. The coffeL- shop manager is Irene Brockman, an admitted supervi- sor. When Brockman is not present in the coffeeshop (which is usually for 2 or 3 hours in the morning on the first shift, and the last 2 or 3 hours on the second shift), the hostess on duty is in charge. Woods testified without contradictions4 that Vouteras had authority to grant waitresses time off from work. Under all circumstances, I find that Vouteras was a supervisor within the meaning of the Act. During the second week in November-on Tuesday, Trifari called a meeting of all the employees in each de- partment of the Inn into the grand ballroom of the Inn for a meeting. Trifari advised that he was aware of the union campaign and spoke for a few minutes about the Union in a derogatory manner. He advised of the bene- fits which the Respondent had provided the employees, which, he stated, were much better than the Union could offer. However, he listed new benefits which all hourly employees would receive. These included: Four paid holidays per year, double time under certain conditions, increased vacation benefits, increased hospital benefits, and for the maids, an increased-rate-per room after per- forming their required quota. During the meeting, Woods sat near the front and took notes.' After Trifari made his remarks, the meet- ing was thrown open for questions, and Woods asked the majority of the queries posed to Trifari. A couple of weeks later, on November 28, Woods received a written warning, as follows: Not complying with state health department's rule concerning neatly arranged hair and insubordination to hostess on duty. Woods testified as follows, respecting the incident which gave rise to the warning slip: A. It was in the morning and Eileen Healy, the hostess on duty told me that I had to put my hair up. My hair was already back in a clip when my hair was longer. My hair was already back in a clip and I told her that I had worn my hair the exact same way the day before and that Irene Brockman, the coffee shop manager, hadn't said anything about it. So she said, okay, then we'll ask Irene when she comes in to work. About 10 minutes later my hair was bothering me being down, it was giving me a headache with the clip, so I put it up anyway, and about two hours later Irene came in and Eileen and I went into the bar with Irene. Q. Irene Brockman. A. Brockman, right, the coffee shop manager. 14 Neither Vouteras nor Brockman testified at the hearing, and it was not shown that either was unavailable. Accordingly, I am entitled to- and do-draw an adverse inference from the failure of the Respondent to call Supervisor Brockman as a witness. 15 Trifari admitted observing Woods taking notes at the meeting. CLINTON NN 201 no, 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eileen Healy and I and Irene went into the bar and Eileen asked Irene if the girls were allowed to wear their hair pulled back in a clip or did it have to be all the way up. And Irene said the Board of Health required all girls to wear their hair up, and that was all. And so I left, and the following day I received that warning slip. Q. Okay, did you speak to Eileen Healy about this at all? A. Yes. Well, I asked Eileen what had been said to Irene that I should get the warning slip, and she said that she had said abosolutely nothing, that Irene had asked her, when she told me to put my hair up, if I did immediately and Eileen said, no, she did it about five or 10 minutes later, and Irene said, oh, she said that's reason for insubordination and that's why I got the warning slip.16 The following week, Schuler attended the November 10 meeting held by Trifari, and her testimony, in essence, corroborates that of Martha Woods, above. Following the meeting, Trifari passed her on the way out and stated that he now knew that she (Schuler) was not the leader of the union movement. That same week, Trifari called Schuler into his office again and asked if the employees were happy with the extra benefits that the Respondent had bestowed upon them. Schuler responded that she really did not know, and that ended the conversation. 7 In late November, the Respondent promulgated and distributed to employees a booklet entitled "Clinton Inn-Employee Manual" which explained the business of the hotel, incorporated the new employee benefits de- scribed above, and set forth sixteen (16) rules and regula- tions regarding employee conduct. The amended com- plaint attacks as violative of Section 8(a)(l) of the Act rule 4 regarding penalties for excused and unexcused ab- sences, and rule 14 which sets forth a no-solicitation/dis- tribution rule as follows: Solicitation of employees or the distibution of litera- ture during working hours without the authoriza- tion by the Hotel Manager or Food & Beverage Di- rector on behalf of any individual, organization, club or society is strictly prohibited. With respect to rule 4, Martha Woods testified, with- out contradiction, that prior to the issuance of the em- ployee manual the only policy of the Respondent regard- ing absenteeism was that ". . . you just had to call in if you were sick and let them know you were not going to come to work. But there was no excused absences or un- excused absences." Trifari testified that in February, he made a draft of proposed benefits to employees and rules le The testimony of Woods as to the incident is uncontradicted and credited; neither Eileen Healy nor Irene Brockman were called as wit- nesses, and it was not shown that either was unavailable. For reasons ex- pressed above with respect to Marie Vouteras, I find that Eileen Healy was a supervisor within the meaning of the Act. IT Credited testimony of Schuler. Trifari agreed with Schuler's testi- mony respecting the events of the meeting with her on November 4, but did not recall the statement assertedly made to Schuler following the meeting with employees on November 10. He admitted he may have made such a statement. and regulations which he recommended to the owners of the Respondent because of the anticipated doubling of the number of employees which would result as a conse- quence of the proposed expansion of the Inn. However, there is dearth of evidence, either oral or documentary, to corroborate Trifari's bare testimony,' so that the first notice to employees of such benefits and of such rules and regulations came in November, well after Respond- ent's first awareness of the union campaign. Trifari testified that he first became aware of the union campaign in October. In the light of this timing, and of the evidence in the record as a whole, I believe it to be a reasonable inference, and therefore find, that the promul- gation of the benefits (with the possible exception of the hospitalization program) and of the rules was a conse- quence of the Union's organizational campaign, which the Respondent vigorously opposed, and not due simply to an expansion of the employee complement. Moreover, with respect to the no-solicitation rule, I note that the language thereof is too broad, i.e., it fails on its face to delineate between working and nonworking areas of the premises, thereby abridging the right of employees to distribute literature in nonworking areas of the premises. There was no showing of any special circumstances justi- fying the breadth of the rule; accordingly, I find that by promulgating and maintaining the rules since on or about November 20, the Respondent has violated Section 8(a)(l). a II. ANALYSIS AND CONCLUDING FINDINGS A. Alleged Discriminatory Discharges In defense of the General Counsel's allegation that Moskowitz was terminated because of his activities on behalf of the Charging Union, the Respondent urges that: (1) the Respondent had no knowledge of such ac- tivities, and (2) good cause for the discharge existed in that Moskowitz was "spending so much time on duties other than what he was assigned to do." 20 I find that the record does not support the Respondent's contentions. The evidence shows that Moskowitz' activities in so- liciting other employees to join the Union were open and notorious, and were carried on at or in the vicinity of the Inn. It is unlikely that such activities would go unno- ticed by the agents and supervisors of the Respondent. This, particularly where the Respondent's general man- ager, Trifari, commenced making efforts in late October to ascertain the extent of union activities at the hotel, and who was involved in them. 2' The Respondent 8 There are minutes of a staff, i.e., supervisors' meeting on October 5, where it was mentioned that a hospitalization program was discussed, and that department heads should advise their employees of the program. However, there is no evidence that such advice was given prior to Tri- fari's speech to the employees in November. 1i See Wayne Home Equipment Company, Inc., 229 NLRB 654, 657 (1977), and cases cited therein. See also, Wilson Manufacturing Company, Incorporated, 197 NLRB 322, 325-326 (1972). As in that case, the evi- dence herein has not established that absenteeism became so agravated in September and October as to warrant the imposition of such stringent rules. 20 Resp. br. at p. 13. 21 See testimony of Martha Woods respecting her conversation with Marie Vouteras on or about October 30, recounted, supra. CLINTON INN 203 after Moskowitz' discharge as to the identity of the union leader somehow constitutes conclusive evidence that he was unaware of Moskowitz' activities in this regard. I am unpersuaded by this kind of reasoning; the fact that an employer wants to know the identity of the union leader in November, after a union leader has been terminated on November 1, is not persuasive that he did not desire to know the identity of the union leader in October, particularly in the light of his inquiry of Vou- teras, referred to above. Moreover, there is lack of support in the record for the Respondent's contention that Moskowitz was dis- charged for cause. Thus, there is Moskowitz' undenied testimony that he was never criticized for his work, and was on the verge of being transferred to a better position when he was summarily terminated. This sudden turn of events took place without any acts or conduct on the part of Moskowitz-so far as the record shows-except his union activities which the Respondent opposed. Such timing is "most telling" 2 2 as respects an indicia of dis- criminatory intent. Furthermore, as the evidence shows, there is no evidence of previous warnings regarding the asserted deficiencies in Moskowitz' work performance. I find the following language of the United States Court of Appeals for the District of Columbia Circuit pertinent in these circumstances: If the Employer had really been disturbed by the circumstances it assigned as reasons for these dis- charges, and had had no other circumstances in mind, some word of admonition, some caution that the offending lapse be not repeated, or some oppor- tunity for correction of the objectionable practice would be almost inevitable. E. Anthony and Sons, Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (D.C. Cir. 1947)23 On the basis of all of the foregoing, I find that the ter- mination of Moskowitz on November , by the Respond- ent, was in order to discourage membership in a labor organization, in violation of Section 8(a)(3) and (1) of the Act. Although the evidence is not so compelling with re- spect to the discharge of Antebi, I, nevertheless, find that his termination was also discriminatorily motivated. Thus, the record shows that he was terminated only 3 days following his signing of a union card for Moskowitz, an incident which was admittedly observed by his supervisor, Koykos. 24 To be sure, Koykos testi- fied that Antebi's work performance during his short tenure of employment with the Respondent was not sat- 22 See, e.g., Hambre Hombre Enterprise, Inc.. d/b/a Panchito's, 228 NLRB 136 (1977). 23 The following comments of the Court of Appeals for the 5th Circuit are pertinent: Perhaps most damning is the fact that both [discriminatees] were summarily discharged after reports of their misconudct . . without being given any opportunity to explain or give their versions of the incidents. 24 In the light of evidence that the union campaign was proceeding apace at the end at the time, I find implausible Koykos' denial that he was unaware that the document which Antebi signed on this occasion was a union authorization card. I therefore discredit Koykos' testimony to that extent. isfactory, and this testimony was not rebutted by the General Counsel. However, this was not the reason Antebi was let go. The reason given him by Koykos at the exit interview was that the Company had "too many cooks in the kitchen. There's not enough room. So I [Koykos] have to let you go." This testimony was con- firmed by Koykos, who also testified that it was "very rare" to fire someone-that "to fire someone its got to be very good reason, because we need them." Moreover, Koykos admitted that the following week he hired an- other person to replace Antebi. Finally, the Respondent failed to call as a witness the head chef, Theodore Koykos, with whom George Koykos testified he dis- cussed the matter of Antebi's discharge. The testimony of Theodore Koykos may well have shed light upon the "real reason," 25 for the discharge of Antebi. In view of all the foregoing, it is apparent that the business reasons proffered by the Respondent for Ante- bi's discharge do not withstand scrutiny. 2 8 Under all cir- cumstances, I am convinced, and therefore find, that An- tebi's involvement in the union activities, which the Re- spondent strenuously opposed, was a compelling factor in the decision to discharge Antebi, and therefore dis- criminatory within the meaning of Section 8(a)(3) of the Act. 27 B. The Alleged Discriminatory Warning Notice As previously noted, Martha Woods, a waitress in the coffeeshop, did, on November 28, receive a written warning for assertedly not complying with a health rule respecting properly controlled hair by employees who work in a restaurant, and insubordination to the hostess on duty. The particulars of the incident had been set forth, supra. The record further reflects that in March 1977, and again in March 1978, the inspector for the Tenafly Health Department, while giving the Respond- ent a "satisfactory" evaluation, did note that some em- ployees' hair was not controlled properly (without men- tioning any names). The record further shows that, until the advent of the Union in which Martha Woods was a known activist, such a dereliction was handled by an oral reminder. The facts reflect that Woods was hardly insubordinate to the hostess on this occasion, but merely wished to have the matter clarified by the coffeeshop manager. Finally, the evidence shows that Woods was the first to have received a written warning for such a common dereliction. Under all circumstances, I am convinced, and there- fore find, that Woods would not have received a written warning as a consequence of this incident had it not been for her concerted and union activities, to which the Re- spondent had a great antipathy. I therefore find that the warning notice of November 28, was discriminatorily motivated, in violation of Section 8(a)(3) And (1) of the Act. a2 See The Officers' Union of the Commercial Telegraph Union. A.FL.v. N.LR.B., 347 U.S. 17, 43 (1954). 26 N.L.R.B.v. Great Dane Trailers. Inc,388 U.S 26, 33-34 (1967). 2" See, e.g., N.L.R.B.v. Hanes Hosiery Division. Hanes Corporation, 413 F.2d 457, 458 (4th Cir. 1969), where the Court stated: And if a desire to stifle protected activity is a factor in the employ- er's decision, the discharge is discriminatory CLINTON NN 203 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ALLEGED ACTS OF INTERFERENCE, RESTRAINT, AND COERCION I have, heretofore, found announcements to the em- ployees of new benefits and new rules and regulations shortly after the union campaign commenced, constituted interference, restraint, and coercion within the meaning of Section 8(a)(1). 28 I find the following conduct of the Respondent's agents and supervisors to constitute further evidence of interference, restraint, and coercion in viola- tion of Section 8(a)(l): 1. The acts and conduct of the Respondent's general manager, Richard Trifari, on or about November 2, wherein he: (a) snatched the union cards from the hands of the two dishwashers in the kitchen, and confiscated them without their permission; and (b) removed union leaflets from the automobiles parked in the employees' parking lot. Clearly, such conduct tended to interfere with, restrain, and coerce employees in their engagement in conduct protected by Section 7 of the Act, in viola- tion of Section 8(a)(l) of the Act.29 2. The conduct of the Respondent's general manager, Richard Trifari, on or about November 4, in interrogat- ing employee Irene Schuler concerning union activities. It is well established that such interrogation, conducted in the boss' office without assurance to the employee that no reprisals will be taken, is coercive and therefore violative of Section 8(a)(1) of the Act.30 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section I, above, occurring in connection with its interstate oper- ations described in section I, above, have a close, inti- mate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the foregoing findings of fact, and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By coercively interrogating employees concerning their union activities, by confiscating union cards from employees without their permission, by removing union leaflets from parked automobiles in the employees' park- ing lot, by announcing improved employee benefits and working conditions in the midst of a union organizational campaign, and by promulgating and enforcing new rules and regulations governing employee conduct including an overly broad no-solicitation and no-distribution rule, the Respondent has interfered with, restrained, and co- erced employees in the exercise of the rights guaranteed 2S See N.L.R.B.v. Exchange Parts Co., 375 U.S. 405 (1964). 29 See Walter Kidde. Inc. (Globe Security Systems), 185 NLRB 1011 (1970), Baker Manufacturing Co.. Inc., 218 NLRB 1295, 1298-1299 (1975). 30 See N.L.R.B. v. Camco, Incorporaored, 340 F.2d 803 (5th Cir. 1965). them in Section 7 of the Act, in violation of Section 8(a)(1) of the Act. 4. By discharging its employees, Daniel Moskowitz and Steven Antebi, and by issuing a written warning to its employee, Martha Woods, in order to discourage membership in the Union, the Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent unlawfully discharged its employees, Daniel Moskowitz and Steven Antebi, it is recommended that the Respondent offer said employees immediate and full reinstatement to their former positions, or if such positions no longer exists, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings that they may have suffered as a result of the discrimination against them. Any loss of earnings shall be computed as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus in- terest as set forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962), and Florida Steel Corporation, 231 NLRB 651 (1977). It having been found that the Respondent unlawfully issued a written warning notice to its employee, Martha Woods, it will be recommended that such warning notice be removed and expunged from the personnel record maintained by the Respondent respecting the employ- ment of Martha Woods. As the unfair labor practices committed by the Re- spondent strike at the very heart of employee rights safe- guarded by the Act, I shall recommend that the Re- spondent be placed under a broad order to cease and desist from in any manner infringing on the rights of em- ployees guaranteed in Section 7 of the Act.3 1 However, in view of the fact that the General Counsel failed to prove that at any material time the Union represented a majority of the employees of the Respondent in an app- propriate unit, the request by the General Counsel for the entry of a bargaining order is hereby denied.32 Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 33 The Respondent, Clinton Inn, Tenafly, New Jersey, its officers, agents, successors, and assigns, shall: 31 Cf. Hickmott Foods, Inc., 242 NLRB No. 177 (1979). a2 See United Dairy Farmers Cooperative Association, 242 NLRB No. 179 (1979). a3 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 Continued CLINTON INN 205 i. Cease and desist from: (a) Discouraging membership in Local 69, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO, or any other labor organization, by discharg- ing or otherwise discriminating against employees be- cause of their union membership or activities. (b)Coercively interrogating employees concerning their union membership or activities. (c) Confiscating union authorization cards or other union material from the possession of employees. (d) Removing union pamphlets or leaflets from parked automobiles in the employees' parking lot. (e) Announcing and placing into effect improved bene- fits and working conditions for employees to discourage their membership in or activities on behalf of any labor organization.3 (f) Instituting, or discriminatorily or more stringently enforcing, work rules in retaliation for employees having joined or assisted Local 69, Hotel & Restaurant Employ- ees & Bartenders International Union, AFL-CIO, or any other labor organization in order to discourage member- ship in or support of such labor organization. (g) Promulgating, maintaining, enforcing, or applying any rule or regulation prohibiting its employees, when they are on nonworking time, from distributing handbills or similar literature on behalf of any labor organization in nonworking areas of the Respondent's premises, or discriminatorily enforcing any otherwise valid rule per- taining to such activity. (h) Promulgating, maintaining, enforcing, or applying any rule or regulation prohibiting its employees, when they are on nonworking time, from soliciting other em- ployees to support Local 69, Hotel & Restaurant Em- ployees & Bartenders International Union, AFL-CIO, or any other labor organization, or discriminatorily enforc- ing any otherwise valid rule pertaining to such activity. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named 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. 3' Nothing herein shall be construed to require the Respondent to re- scind the benefits so conferred upon the employees on November 10. labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Daniel Moskowitz and Steven Antebi imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of earnings he may have suffered by reason of the dis- crimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other rec- ords necessary to analyze and compute the amount of backpay due under the terms of this Order. (c) Remove and expunge from the personnel record, maintained respecting the employment of Martha Woods, the warning notice issued to her on November 28. (d) Post at its Tenafly, New Jersey, facility copies of the attached notice marked "Appendix." 3 5 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by the Respondent's authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 22, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3s 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CLINTON INN 205