Marriott In-Flight Services

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marriott In-Flight Services, A Division of Marriott Corporation and Henry C. Williams and Steven Young. Cases 12-CA-8318 and 12-CA-8318-2 May 14, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 7, 1980, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Re- spondent filed an answering brief in support of the Administrative Law Judge's Decision. 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 considerd 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 Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Marriott In- Flight Services, A Division of Marriott Corpora- tion, Tampa, Florida, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. l In the absence of exceptions thereto, we adopt, pro forma, the Ad- ministrative Law Judge's findings that Respondent did not commit cer- tain other violations of Sec. 8(a)(l) of the Act as alleged in the complaint In affirming the Administrative Law Judge, we do not rely on his re- marks that we permit employers to discharge employees for on-the-job misbehavior provoked by the employer's unlawful harassment of the em- ployees. 2 The Administrative Law Judge designates the acts described in Con- clusion of Law 3 as violations of Sec. 8(a)(3) and (I) of the Act Since these acts were alleged and found o constitute violations of Sec (a)(1) only, we hereby delete the apparently inadvertent reference to Sec 8(a)(3) DECISION STATEMENT OF HE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charges in Cases 12-CA-8318 and 12-CA-8318-2 were filed on August 22 and 25, 1978, respectively. The com- plaint issued on September 21, 1978. It alleges that 249 NLRB No. 72 through its supervisors Respondent violated Section 8(a)(1) of the National Labor Relations Act, as amended, by creating the impression of surveillance of employees' union activities, impliedly promising benefits to its em- ployees, threatening its employees with discharge and other reprisals, interrogating employees concerning their union activities, meeting with small groups of employees to tell them not to support a union, and mailing employ- ees a written communication to the same effect. The complaint also alleges that Respondent violated Section 8(a)(3) and (1) of the Act by terminating Charging Par- ties Henry C. Williams and Steven Young on August 21 and 23, 1978, respectively, because of their union or other concerted activities and by changing the work schedule of Steven Young on August 12, 1978, for simi- lar reasons. In its answer Respondent denies the commis- sion of any unfair labor practices. A hearing was held before me in Tampa, Florida, on December 11 through 13, 1978. At the conclusion of the hearing the parties waived oral argument and were given leave to file briefs which have been received from the General Counsel and Respondent. Upon the entire record in this case, and from my ob- servation of the witnesses and their demeanor, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is engaged in the businesss of providing food catering services to various airlines operating out of the Tampa International Airport and has a place of busi- ness located in Tampa, Florida. Respondent annually purchases and receives goods and materials valued in excess of $50,000 which are shipped to its Tampa, Flor- ida, facility directly from points located outside the State of Florida. I find that Respondent is an employer en- gaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert ju- risdiction herein. II. THE LABOR ORGANIZATION INVOLVED The International Association of Machinists and Aero- space Workers, AFL-CIO, hereinafter called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR l.ABOR PRACTICES A. Background Facts Respondent operates a flight kitchen at the Tampa In- ternational Airport where it prepares foods for several airlines. At the time of the events at issue herein the manager of the Tampa kitchen was Jorge Minoso. Oper- ations Manager Jerry Gordillo was in charge of day-to- day operations, and there were additional managers, who reported to him, including Assistant Manager Juan Gar- mendia and Safety Manager Clarence Chester. Respond- ent employed approximately 100 hourly paid employees at the kitchen. Those classified as field or standby coor- dinators, food and equipment handlers, also referred to as FEH drivers, and FEH helpers were responsible for MARRIOTT IN-FLIGHT SERVICES 497 transporting food and equipment between the kitchen and airplanes and for servicing the planes before their departures. In January 1978,1 some of Respondent's employees began to discuss the possibility of organizing a union, and on June I an initial organizing meeting was held and attended by representatives of the Union and five em- ployees. Each of the employees took blank union author- ization cards, and plans were made to meet with other employees and to get cards signed. From the outset Steven Young was among those who participated in the early discussion of the Union, attended the initial orga- nizing meeting, and solicited employees to sign authori- zation cards. Starting in July there were weekly union organizing meetings which Young attended. By mid-July the Union filed a representation petition seeking to repre- sent the coordinators, FEH drivers, and helpers. Re- spondent received a copy of the petition on or about July 17. B. Alleged Independent Violations of Section 8(a)(1) I. In mid-July Minoso spoke to FEH driver Salinero in the presence of Gordillo about a disciplinary person- nel action form, referred to as a PAF, which was given to Salinero because he missed a flight that he should have catered. At that time Minoso told Salinero that he knew what was going on and that Salinero had signed a union card, but that it was not going to work and they might as well forget it. Minoso also said that people were just squealing and "spilling their guts" out to him.2 The complaint alleges and I find that Minoso's state- ments to Salinero created the impression of surveillance of employees' union activities. 3 2. On July 20, 1978, Respondent sent the following letter to all employees over Minoso's signature: As you no doubt know by now, the International Association of Machinists (I.A.M.) is trying to get into our kitchen. To do this, they will try to get you to sign authorization cards. DON'T SIGN ANY- THING unless you are sure you know what it means, what effect it will have on you and what effect it might have on your job. The Union is attempting to get you to sign a card. These cards are used to get the National Labor Relations Board to certify the Union. It means that they will then speak for everybody in the group whether they are members of the Union or not and whether they have signed cards or not. WHEN YOU SIGN THAT CARD YOU GIVE AWAY YOUR RIGHT TO REPRESENT YOURSELF AND TO TALK TO THE COMPANY ABOUT YOUR WAGES, THE HOURS YOU WORK, AND YOUR JOB, WITHOUT THE UNION BEING PRESENT. All dates which appear herein occurred in 1978 unless otherwise stated. 2 Although Salinero's recollection was not strong and had to be re- freshed by reference to an affidavit he had given, his testimony was not contradicted. I have credited him. I Tre-Vill, Inc. and Don Pedro-Wesi, 225 NLRB 1259, 1265 (1976); Kraco Enterprises, Inc., 226 NLRB 22 (1976). The Company can and does urge you to be care- ful-find out what it means-find out what the Union laws are-find out if they can do anything for you or if they are just promising something they can't deliver. Membership in a labor organization does not entitle anyone to better treatment than non-union employees. Remember the Union did not get your job for you and had nothing to do with your wages, bene- fits, or anything else. Why are they suddenly be- coming interested in you? Do you believe they are interested in your welfare or could they only be in- terested in the dues they collect? Don't sign anything unless you are sure you un- derstand what it will mean to you, your job, and your relations with the Company. Your decision could affect your wages, your benefits, your job, and your future with the compa- ny-DON'T SIGN ANYTHING. The complaint alleges that the letter coerced employ- ees by telling them not to support the Union in its orga- nizational drive. Respondent contends that the letter con- tained no threat of reprisal or promise of benefit and therefore was protected free speech. The bulk of the letter warns employees not to sign anything unless they know what it means, and that warn- ing does not cross the boundaries of free speech. The only question is whether the final sentence contains a warning that employees would be adversely affected if they signed cards. Taken literally, it does not. There are two thoughts expressed, joined by a dash. The first is that the decision could affect employees' benefits and se- curity without indicating in what way. The second is a preemptory plea not to sign a card, reflecting Respond- ent's desire implicit throughout the letter that employees not sign cards. Taken separately, neither threatens repri- sal. While the joinder of the two thoughts makes it clear that Respondent's view is that signing cards is not in the employees' best interests, I do not find that the linkage is sufficient to imply the threat that if employees sign cards Respondent will take action to affect their wages, bene- fits, jobs, and futures adversely. I find that the July 20 letter was campaign propaganda protected by Section 8(c) of the Act. 4 3. In late July or August Minoso told Smith that he did not need to count employees' timecards, that there would be additional employees hired, that Respondent wanted a work force of about 150, and that Respondent was strong and was going to win. Minoso also told Smith that there were employees who had signed cards just as he had and had their minds changed. Minoso re- peated the latter remark to Smith on another occasion in mid-August when Smith approached him for an advance on his pay. Smith had never said anything to Minoso about signing a card.5 ' Cf. Boslich Division of Textron, Inc., 176 NLRB 377 (1969). 5 Although Smith was not an impressive witness, much of his testimo- ny was uncontradicted. I have credited him as to these conversations. The transcript initially refers to counting IAM union cards rather than timecards. It is clear from context and Smith's cross-examination that in this respect the transcript is incorrect. MARRIOTT IN-FLIGHT SERVICES 491 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is apparent from the initial conversation that Smith had been observed in the plant counting timecards. By observing him in the plant and communicating to Smith that he had been observed, Minoso neither engaged in surveillance nor created the impression of surveillance. However, Minoso's further comments about employees who signed cards as Smith did and changed their minds created the impression of surveillance. Although Smith's activities in the kitchen may have led Minoso to believe that Smith was assisting the organizing effort, Smith had never openly declared his support for the Union, and it appears from his testimony on cross-examination that he sought to persuade Minoso that he was either undecided or not supporting the Union. Moreover, Minoso's asser- tions as to his knowledge of others who signed cards and had their minds changed implied more widespread sur- veillance. I find that Minoso's statements to Smith about signing cards violated Section 8(a)(1). 4. Sometime during the first week in August, Oper- ations Manager Billy Locke called Smith to the office where he told Smith that a man from the dishroom had complained that Smith had given him a card to sign. Smith explained that he had passed some 3 by 5 index cards to employees to obtain names and addresses. 6 At or about that time the leadman from the dishroom complained to Gordillo that Smith was constantly going back to the dishroom, talking to employees, and stopping them from working. The leadman asked Gordillo if he could do anything about it. Gordillo spoke to Smith and told him that he would like him to make his visits to the dishroom brief, to do whatever he had to do there, and to leave. Gordillo added that there was no reason for him to go into the area where others worked in the dish- room. Smith asked why Gordillo was giving him these instructions, and Gordillo replied that employees were complaining that he was interfering with the work.7 The complaint alleges that Locke unlawfully interro- gated Smith by asking if he had been passing out union cards, and that Gordillo coerced Smith by warning him to stay out of certain work areas. As for Locke, the evi- dence does not show interrogation, but rather that Locke reported a complaint by a fellow employee, which in context referred to Smith's activities in the plant. While it may be inferred that Smith's purpose in seeking em- ployees' names and addresses was for the purpose of as- sisting the organizing campaign, the report of a com- plaint about in-plant activities does not unlawfully create the impression of surveillance or otherwise violate the Act. With respect to Gordillo, his instructions to Smith, un- accompanied by any threat, appear to have been in re- sponse to the same or a similar employee complaint 6 Smith so testified without contradiction. He initially testified that Locke specifically mentioned union cards, but on cross-examination and in his affidavit he referred only to a card. I Gordillo so testified. Smith testified to the same effect, but added that he was told to stay out of the hot and cold food areas of the shop and not to speak to the employees in them. Smith also testified that he asked Gordillo if he was the only employee being given these instructions, and that Gordillo replied that the others would be told later and that he would take care of Smith. Smith at times displayed uncertain memory and evasiveness in answering questions as to his actions in the plant. I have credited Gordillo's version of their conversation. about Smith. There is no evidence to show the extent, if any, to which Smith's presence was necessary in the dishroom or whether other employees were treated dif- ferently from Smith with respect to visiting the area or talking on the job. Even assuming that Gordillo related Smith's presence in the dishroom to his union activities, I find that the evidence does not establish that Gordillo's instructions to Smith interfered with or coerced him in the exercise of protected rights.8 5. On August 4 the Union withdrew its representation petition. Shortly thereafter, Respondent's employee rela- tions personnel met with groups of employees and read a speech to them. The complaint alleges in this respect that Respondent coerced its employees by meeting with them in small groups and telling them not to support the Union in its organizational drive." There is no question that the speech, like the July 20 letter, urged employees not to sign cards in the event of further organizational efforts. At one point in the speech the rhetorical question was posed whether the Union could be expected to make another attempt to solicit em- ployees to sign cards, and the following answer was given: It's always possible. However, I believe that we can expect this Union and employees who have sup- ported it to continue its efforts to get you to sign cards. Therefore if any organizer or employee in the future should try to get you to sign a card, tell the organizer or employee that you're not interest- ed. Also, after further argument in support of Respondent's opposition to the Union, the speaker stated, "The best advice I can give you is not to sign any card." For the reasons set forth above in connection with the July 20 letter, I find the speech did not violate Section 8(a)(1) of the Act. 6. On August 10 the Union held a meeting at the air- port resort hotel, its usual meeting place. As Steven Young entered the lobby of the hotel between 7:30 and 8 p.m., he saw Respondent's district manager, Luis Perez, standing in the lobby near the door to the lounge. Perez turned and looked in his direction and then turned away and entered the lounge. Later, while the meeting was in progress, Young went to get something from his car. As he walked away from the entrance, he saw Minoso and some other company officials standing nearby. Minoso looked at him and Young and turned and reentered the hotel. I 0 On that night employee Rafiu Ashimi saw Minoso and Supervisor Garmendia in the lobby of the hotel, and "Southern Frozen Foods. Inc., 202 NLRB 753 (1973). The complaint alleges and Young testified that these meetings oc- curred on or about July 20. From the content of the speech, however, it appears that it was given shortly after the Union withdrew its petition. 'O Young so testified. Perez testified that he stayed at the hotel that night. He was asked if he saw any employee in the lobby that night and he testified that at or around 9:30 p.m. he saw one employee named Don- iello. He was not asked whether he was in the lobby at the time Young testified he saw Perez. Minoso was not asked about his presence there that night. I have credited Young as to what he observed. MARRIOTT IN-FLIGHT SERVICES 499 Henry Williams saw Perez walk by the room in which the meeting was held. On one meeting night Freddie Smith saw Minoso and Lopez, a personnel director for Marriott, under the car- port of the hotel. A day or two later Minoso mentioned to Smith that he had seen him, that he knew he was at the meeting, and that he knew what time the meeting started. The airport resort hotel is within walking distance of Respondent's flight kitchen, and, as Young and other em- ployees were aware, visiting management officials, in- cluding Perez, stayed at that hotel. Perez was staying there on the night of August 10. Although the parties litigated the facts surrounding the presence of Respondent's officials at the airport resort hotel at times when union meetings were being held, the complaint does not allege that their presence constituted surveillance. I would, in any event, conclude that the evidence does not establish surveillance because of the location of the hotel and its regular use by management officials. Further, in view of my findings above that Re- spondent otherwise created the impression of surveil- lance, I find it unnecessary to decide whether Minoso's statements to Smith also created that impression. 7. In August Smith was sent to Minoso's office. Minoso told Smith that he knew that Steven Young, who was then on vacation, was calling Smith at work. During that or another conversation, Minoso talked with Smith about how bargaining worked, using an example to show an impasse could be reached if either side insist- ed on its position. Minoso then asked Smith what good unions were. The complaint alleges unlawful interrogation by Minoso. I find that Minoso's questioning of Smith consti- tuted the kind of indirect probing into employee attitudes which the Board finds coercive and violative of Section 8(a)(l) of the Act. 12 8. In mid-August Minoso told Rafiu Ashimi that two women had reported him for calling them to ask them to come to a union meeting, and that, if he called them a third time, he would be terminated. Ashimi denied that he had said anything about the Union. Ashimi had not invited anyone to a union meeting while in the shop, but had done so outside of working hours. On the following day Minoso assigned Ashimi to wash all the trucks in the yard. He had never been asked to do that before, and he did not believe that any other helper had been required to wash the trucks in the past.' 3 There is no evidence to indicate that Minoso's warning to Ashimi was related to any violation of company rules or that Ashimi had engaged in any unprotected activity in soliciting other employees to attend a union meeting. In these circumstances, it appears that Minoso threatened him with discharge for engaging in protected activity and violated Section 8(a)(1) of the Act. In the absence of II Smith's testimony as to this meeting showed uncertain recollection, but was not contradicted. 12 ITT Automotive lectrical Products Division, 231 NLRB 878 (1977). Smith also testified to another conversation in late August, similar in some respects, which did not establish further violations of the Act l' Ashimi testified to these incidents ithout contradiction, and I have credited him. any allegation in the complaint that Ashimi's assignment to wash trucks was in retaliation for his union activities, I reach no conclusions as to that assignment. C. The Alleged Discriminatory Discharge of Steven Young and Related Alleged Violations of Section 8(a)(l) of the Act 1. Young's employment and union activities Steven Young started to work for Respondent on Oc- tober 22, 1975, as a sanitation agent. After about a month he was promoted to FEH helper, and about a year later to FEH driver. In April 1978, Young was promoted to a coordinator's job. As set forth above, Young was a participant in the ini- tial union activities at the flight kitchen and made the ini- tial contacts with the Union. After the first union meet- ing Young visited a number of employees at their homes and obtained about 20 signed authorization cards. Young attended weekly union meetings at the airport resort hotel and also held a number of meetings for employees at his home. 2. Garmendia's alleged threats to Young In mid-July Young met Supervisor Juan Garmendia on the loading dock and spoke with him about the Union. Young asked Garmendia what would happen if the Union came in to the kitchen. Garmendia replied that the Union would have to bargain with Respondent, and that the Union might want some things that Respondent could not afford. Garmendia said that, if the employees did not get what they wanted and went on strike, the managers would have to work the flights along with em- ployees brought in from other locations. Garmendia added that, if they were unable to serve their customers, they would have to close the kitchen, and the Tampa employees would get nothing and would be stuck out on the street. 4 The General Counsel contends that Garmendia's state- ments to Young violated Section 8(a)(1) of the Act be- cause he threatened that selection of the Union would lead to a strike or closing of the flight kitchen. I do not agree. Although Garmendia told Young that bargaining could lead to a strike and the possible shutdown of the flight kitchen, he did not state that Respondent would shut the kitchen down if the employees chose union rep- resentation or that bargaining would be futile and lead inevitably to a strike. I find that Garmendia's statements to Young were protected by Section 8(c) and did not violate the Act.S 14 Young and Garmendia both testified as to this conversation. I have credited Young as to how their conversation started, for Garmendia's tes- timony that Young initiated the discussion by stating that the employees did not need a union does not square with his further testimony that his statements about negotiations were in response to Young's statement that the employees would get more benefits if the Union came in. However I have credited Garmendia that he mentioned closing the flight kitchen as a possible consequence of a strike, as Young's testimony left doubt that his perception and recollection in this respect were accurate Their testi- mony otherwise was not in essential conflict. s Southern Frozen Foods. Inc., 202 NLRB 753, 756 (1973) M A R R I O T T I N -F L I G H T S E R V I C E S 4 9 9~~~~~~~~~~~~~~ 500 DECISIONS OF NA] IONAL LABOR RELATIONS BOARD 3. Alleged creation of the impression of surveillance and implied promise of benefit On July 21 Young went to the flight kitchen while off duty to get some boxes to use in moving. Minoso saw him and invited him to the employee cafeteria for coffee. While Young was preparing the coffee, he heard Minoso say under his breath, "We're going to win." Young asked Minoso what he meant, and Minoso replied, "You know what I mean." Young stated that he thought he did know because Minoso's secretary had asked her daughter's boyfriend who had started the Union. Minoso then said he had reason to believe that it started among the coordinators. Young said that if that was the case Minoso must think that Young started it, and Young ve- hemently told Minoso that he hoped Minoso did not think that he had started it. Young referred to the fact that he was trying to get a car loan through the credit union and asserted his loyalty to Respondent. Minoso told Young that he felt that he could trust him, and then asked if Young felt that he was scheduled to work too many hours and would like to have his schedule changed. Young replied that he did not care whether he worked 8 hours or 12 hours, and that with a 12-hour schedule he had an extra day off each week. Minoso asked Young for his opinion of other FEH drivers and whether he thought some of them would like to be pro- moted. Minoso then asked Young if he would like Minoso to hold a meeting of the coordinators about their scheduling. When Young replied affirmatively, Minoso suggested that he stay at the flight kitchen so they could have the meeting when the coordinators returned from the airfield. 16 I find, as alleged, that Minoso created the impression of surveillance by his comment that he believed that the union activity started among the coordinators. In the context of that comment, I find further that Minoso's in- quiry about Young's schedule preference and his offer to hold a meeting of the coordinators to discuss a schedule change constituted an implied promise of a change in working conditions designed to appeal to the group among which Minoso believed the union activities start- ed. 4. Minoso's warning to Young Young was on vacation from mid-July until August 12. On that morning when he returned to work, Minoso told Young that he was warning him to clock in on time, to avoid mingling with women employees during working time, to make out a shift report every day and for every flight, and to make no mistakes. Minoso added that he would be watching Young and asked if Young got his "drift," adding that, if he did not, he would go out the door. Young asked Minoso what he meant by that. ' I have credited Young, who so testified. Minoso was not questioned about this conversation, but Gordillo testified that sometime in mid-July he was present in the cafeteria with Minoso when Young walked in and said that he knew what was going on, and that all he wanted was his car for which he had applied for a loan. According to Gordillo, Minoso told Young to drop the matter, and nothing else was said that he could recall. Young was not asked if Gordillo was present at the time of his conversa- tion with Minoso, and it is far from clear that Gordillo was testifying about the same conversation as Young. I have credited Young. Minoso replied that Young knew what he meant and again asked if he got it. Young answered that he guessed he had to because there was no other choice. Minoso then told Young to go out and get to work. 7 Insofar as it appears Minoso's warnings to Young were unprovoked by any related conduct of Young. There is evidence, however, from which to infer that, by the time Young returned to work, Minoso believed that Young was a prime mover in the organizing campaign. Minoso was observed by Young only 2 nights before at the motel where the union meeting was taking place. During Young's vacation, Minoso had told Young that he sus- pected that the source of the union activities was among the coordinators, of which Young was one. Minoso told Smith he knew that Young was telephoning Smith at the kitchen, and Minoso told Salinero and Smith that he knew who had signed union authorization cards. I find that Minoso believed that Young was a leader of the union organizing campaign, and that the warning to Young was designed in part to keep him away from other employees and to warn Young that he was being watched because of his union activities. I find that Mino- so's warning to Young violated Section 8(a)(1) of the Act. 5. Young's refusal to work overtime on August 12 On August 12, Young was scheduled to work from 11 a.m. to 7:30 p.m. He was assigned to coordinate the ca- tering on two Braniff Airlines flights which were sched- uled to arrive around 7 p.m. If they arrived and departed on schedule, it was possible for Young to finish his duties within his normal shift hours. Young's duties on these flights were to check them after the FEH driver and helper had loaded them and to make certain that everything was on board as required. Young also reviewed the bill with the flight stewardess and assisted her in verifying that the flight had been properly serviced. When the flights ran late, Young also helped to load them. On August 12, the two Braniff flights arrived late, and it would not have been possible for Young to complete his duties without working overtime. Shortly before 7:30 Young called the flight kitchen and told a shift supervisor that he was leaving. The shift supervisor asked Young to stay until the flights were serviced. Young replied that Minoso did not want Young to clock in late, and that Young did not want to clock out late and was not going to do Minoso any favors. Young then left without working on the Braniff flights. 8 7 Young so testified Respondent contends that Young's testimony that Minoso said he would go out the door should be discredited because onl cross-examination he failed to include this statement when asked to repeat what Minoso had said. In the absence of contradiction by Minoso, and in the face of Young's affirmation on direct examination that Minoso made the questioned remark, I find this omission insufficient to warrant discrediting Young. In any event, even if an explicit threat of discharge were not made, I would find a threat of discipline implicit in Minoso's warnings. 18 I have credited Young, who so testified without contradiction, MARRIOTT IN-FLIGHTT SERVICES 501 6. Minoso's instructions to Young to stay out of the flight kitchen Until August 13 Young routinely spent the time from about 1:30 to 4:30 p.m., when he had no duties at the air- field, working in the kitchen where he prepared standby meals and setups. During that period, he usually had contact with other flight kitchen personnel. Before 1:30 and after 4:30 his duties were to service flights at the air- field. On August 13 in mid-afternoon Minoso told Young that from then on he wanted Young to return directly to the airfield after he ate lunch and to remain there until the end of his shift. Young asked Minoso what he was to do about the standby meals that he should have on his truck. Minoso told him that he was not to worry about it and that they would be sent to him. Minoso told Young that he did not want him in the shop.' 9 From 1:30 to 4:30 Young had no duties at the airfield to perform. The complaint alleges that the change in Young's work schedule was discriminatory. I have found above that Minoso believed that Young was a leader of the union activities. The change in Young's working condi- tions on August 13, like the warning on the previous day, appears to have been designed to keep Young from having contact with employees who worked in the flight kitchen. It removed him from the flight kitchen where he performed useful work to the airfield where he had none. There is no connection between the requirement that Young stay at the airfield during the early afternoon and his refusal to work overtime the previous evening, and insofar as it appears Minoso did not become aware of his refusal to work overtime until the next day. From all the evidence the inference is warranted that the August 13 change in Young's working conditions was caused by his union activities and was intended to dis- courage and interfere with them. As Minoso was not questioned about this change, and Respondent offered no evidence to establish any other explanation for it, I find that the August 13 change in Young's working condi- tions was caused by his union activities and violated Sec- tion 8(a)(3) and (1) of the Act. 7. Young's refusals to work overtime on August 13 and 14 and Minoso's disciplinary action On August 13 the two Braniff flights which Young was assigned to coordinate at the end of his shift were again late, and Young again called the flight kitchen and told the shift supervisor that he was leaving. The super- visor asked Young to stay, but, when Young persisted, he told Young to have it his way.20 Young did not serv- ice the flights and clocked out at the end of his shift. On August 14 the two Braniff evening flights were late again, and Young again called the flight kitchen to say that he was not going to stay. On this occasion As- sistant Manager Garmendia took the call. He asked Young to stay, but, when Young said he did not want to, Garmendia told Young to come back to the shop. On each of the 3 days the Braniff flights were not sub- stantially late, but Young felt that it would have taken at '9 I have again credited Young, who ,, testified without contradiction 20 Young so testified without ctllradicttotl least 20 minutes of overtime for him to have completed his duties if he had serviced them. On August 14 when Young returned to the kitchen, Garmendia told him to see Minoso before he left. Young went to the office where Minoso was in the process of writing out three disciplinary warning notices, referred to as PAF's, for Young. Minoso read them to Young and asked him to sign them. After initially refusing, Young signed them. The warnings were based on Young's refus- al to stay to coordinate the Braniff flights on August 12, 13, and 14. In them Minoso pointed out that it was Young's responsibility to service these flights, and that it was necessary that they be checked. Minoso told Young that, if he refused to stay to service them again, Minoso would recommend that he be discharged. In discussion of the warnings Young told Minoso that he did not want to stay late and do Minoso any favors because Minoso did not want him to clock in late.21 The complaint does not allege the warning notices as a separate violation of the Act, but, in support of the alle- gation that Young's discharge a week later was discrimi- natory, the General Counsel contends that the attempt to require Young to stay to service these flights reflected a discriminatory change from past practice rendering Young's discipline discriminatory. Respondent contends that Young was insubordinate and that the discipline was warranted. The nature of the airline catering business is such that flights must be attended whether or not they are on time. There are frequent fluctuations from schedules caused by weather, mechanical problems, and other reasons, and it is not always possible on short notice to find a substitute to cover an assignment of an employee whose shift has just ended. Employees ordinarily stay until work is com- pleted on the flights to which they are assigned without specific authorization from management to work over- time for that purpose. Before August, on other occasions Young had called the flight kitchen from the field to tell supervisors that he did not want to stay. If the delayed flight was an Eastern Airline flight, for which Young's duties included boarding standby meals, Young had been told on some occasions that he had to stay, and on those occasions he did so. On other occasions a dispatcher was sent out from the flight kitchen to perform Young's duties on the delayed flight. If the delayed flight was a Braniff flight, for which Young's duties did not include boarding stand- by meals, Young had never been required to stay to work overtime against his desires. Even if Young had been initially asked by supervision to stay to service a 21 On the day after Minoso gave Young these PAF's Garmendia spoke to Young about a letter received from Braniff on August 13 com- plaining about Respondent's servicing of its nights. From the timing of the letter it appears that the letter was unrelated to Young's refusals to sork overtime on August 12, 13, and 14, and that it referred to the period when Young was on vacation. In their conversation Young re- peated that he did not want to do any favors for Minoso when Minoso could not do any for him. Garmendia told Young he understood that Younlg 'sas complaining of harassment by Minoso and asked Young what ":as causing the problem, offering his help Young said that Garmendia ssas a manager and should know the reason, but, when Garmendia re- plied that he did not knows and again asked Young what it was Young said he did not know MARRIOTT IN-FLIGHT SERVICES 501 502 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD delayed flight, he had been told that he could leave when he persisted in his request.2 2 In my view, the evidence that Young had never previ- ously been required to stay after the end of his scheduled shift to service Braniff flights does not establish that Re- spondent's practice was not to require coordinators to work overtime to service Braniff flights against their wishes. Minoso testified that employees had to attend their assigned flights, and Young conceded that Re- spondent had required him to work overtime to service delayed Eastern Airline flights. The fact that coordina- tors were required to board standby meals on Eastern flights and did not have that duty for Braniff flights does not warrant the conclusion that the remainder of the coordinators' duties could be ignored or more easily taken over by a substitute. The fact that in the few months Young had been a coordinator he had never been required to work overtime on Braniff flights does not establish that Respondent's practice for Braniff flights was different from Eastern flights in the absence of any evidence as to the number of times Young had asked to leave without servicing Braniff or other circum- stances, such as the length of delay, on those occasions. In these circumstances, I find the evidence insufficient to establish that the warnings given Young on August 14 for his refusals to work beyond the scheduled end of his shift reflected a discriminatory change in Respondent's practice. 8. Young's invitation to Minoso to fight On or about August 15 at or about 7:30 p.m. Minoso was making up the work schedule for the following week, a task usually performed by Gordillo. Minoso asked employees to look at their schedules and to initial them to indicate that they had seen them and were aware of them. Young returned to the flight kitchen and went to the office where he started to question the schedules of other employees. Minoso told him that their schedules were not his concern and asked Young to ini- tial his own schedule and leave. After some further ex- changes, Young left, but returned almost immediately to stand outside the office window where he waved at Minoso inviting him to come outside. Minoso motioned for Young to come in, and Young entered and told Minoso, "Now, I'm punched out; how about coming out- side and fighting me?" Minoso replied that he had no need to do that, and Young said that now they knew who was the best man, made a "V" sign, and left. 23 22 Minoso testified concerning the nature of the airline catering busi- ness and the practice of employees in ordinarily staying overtime to serv- ice the flights to which they were assigned without specific authorization or request Minoso also testified that employees had Io attend their as- signed flights. Young's testimony as to the circumstances under which he worked overtime or left without servicing delayed flights was uncontra- dicted. I have credited him in that regard. but I have not credited his testimony that he had previously left work at the end of his scheduled shift without permission and contrary to instructions from supervision. His testimony to that effect was adduced by leading questions and went beyond the practice as he described it in his own words both before and after he was led to give the more extreme testimony. "1 Minoso so testified. Initially. Young testified that he and Minoso had briefly discussed scheduling that day, but that he left without inci- dent According to hin, a week later he had complained of harassment and picked up a phone in Minoso's office with the stated purpose of call- After this incident Minoso asked Respondent's counsel if he should terminate Young. He was advised that there was sufficient cause to terminate Young, but that Young should not be terminated at that time because of the union activities. Minoso did not take any disciplinary action at that time. 9. The missing glass carrier on flight 734 and the disciplinary warning to Young On August 22 Young was assigned to work as an FEH driver to service Eastern Airlines flight 734 at midday with Mike Rubis as his helper. The coordinator assigned to the flight was Robert Roberson. 2 4 Flight 734 was the third flight catered by Young and Rubis after leaving the flight kitchen that morning. Due to circumstances beyond their control they were delayed in starting their work on flight 734 so that there was barely enough time to finish servicing the flight before its scheduled departure time. A few minutes before it was scheduled to depart, Young reported to Roberson that he did not have a glass carrier needed for the flight. Roberson was dubious and went to check Young's truck, but did not find it. Roberson said that he was going to call the shop, but Young told him that he did not have sufficient time, and suggested that Roberson could find a glass carrier on the truck of another coordinator. Young and Rubis then left the flight with Roberson still on board and the problem unresolved. Roberson made up a glass carrier from equipment he found in the other truck and brought it to the plane before it departed. Because of the missing glass carrier, the departure of the flight was delayed 10 minutes, and Roberson was still aboard when the plane was backed away from the jetway, making it necessary to lower the rear stairs so that Roberson could debark before the plane left. 2 5 That afternoon Roberson asked Young what had hap- pened to the glass carrier, and Young told him that he was in such a rush that he had just forgotten it at the shop. 2 6 Roberson wrote up the incident and gave his report to Minoso. ing the NLRB when Minoso threatened to punch him in the face if he made the call. He testified that he hung up the phone and left, but re- turned at the end of the day to ask Minoso if Minoso wanted to go out- side to punch Young in the face and, after Minoso declined, made the better man comment. Later, however, Young testified that his dates were mixed up, and that the incident occurred on the day when Minoso made out the schedule. However, Young did not explain how it came about thai he sought to call the NLRB on that occasion. The change and con- fusiol in Young's testimony, as well as its relative improbability com- pared to Minoso's, persuades me that Minoso rather than Young should be credited as to this incident. 24 Although Young and Rubis were both classified as coordinators, they were at times assigned to work in other capacities "' These facts are essentially uncontroverted There is some dispute as toI when Roberson boarded the plane and xwhether Young refused assist- ance frorn Roberson in servicing the plane, resolution of which is not ma- terial to the issues herein. Although Young testified that Roberson spent most of his time saying he was not going to get a glass carrier and was going toi call the shop, suggesting that it was Roberson's failure to act quickly which delayed the flight, Young's testimony otherwise, as well as that of Ribis and Roberson, establishes that the missing glass carrier was not reported to Roberson until shortly before the scheduled departure time 2i Roberslon so testified Although Young testified that he had not set up the flight, he did not contradict this testimony of Roberson MARRIOTT IN-FLIGHT SERVICES 503 That afternoon an Eastern Airlines official called Gor- dillo to ask why flight 734 had been delayed. He said that he would investigate and let him know. Gordillo then contacted Roberson who told him what had hap- pened. Gordillo then informed the Eastern official of the cause. Shortly thereafter Young returned to the kitchen, and Gordillo asked him what had happened. Young simply replied, "What," smiled, and walked away, sing- ing "Macho Man," a disco tune.2 7 An Eastern Airlines representative also called Minoso to ask about the glass carrier, and Minoso also promised to investigate and get back to him. Minoso spoke to Gordillo, the dispatcher Sam Rose, and Roberson. Rose told him that the glass carrier had been put on the float, or rack, containing the food and equipment for flight 734. He later reported back to the Eastern representative that it was Respond- ent's fault that the FEH driver assigned to the flight had not boarded the carrier. Minoso then wrote up a disciplinary PAF for Young, setting forth that, as a result of Young's failure to check out his catering cart, Respondent had been charged with a 10-minute delay for flight 734, and that because of this incident Minoso had reviewed Young's work record for the past year. In the PAF Minoso further set forth that between August 19 and 22 Young had failed to board other items that customers needed for in-flight service, that Young had threatened Minoso by inviting him out- side to fight, that he had used abusive language towards management when given an order, that beginning on August 12 he had refused to work needed overtime on three occasions, and that, because of his repeated acts of "coheision [sic]" and his aggressive defiant attitude to- wards management and his coworkers, he was suspended without pay for 3 consecutive workdays. Minoso further stated that any similar future acts or violations of compa- ny policy or procedures would result in Young's termi- nation. When Young returned from the field that evening, Minoso called him to his office and read the PAF to Young. Minoso told Young he had investigated the matter and that others had seen the glass carrier on his float. Young offered no explanation, did not deny that it had been on the float, and did not say that anyone had removed it. 28 Minoso gave Young the PAF, but he re- fused to sign it. There is disputed testimony as to who set up the float for flight 734 and who was responsible for seeing that all food and equipment for the flight were on it. Respondent presented only hearsay testimony by Minoso that Rose had told him that the glass carrier was on the float when Young loaded his truck. Both Young and Rubis testified that Young had not set up the float, and that covers had been put on the carriers before Young loaded his truck, making it impossible for him to have known that the glass carrier was missing. The difficulty with their testi- mony is that there are substantial conflicts between their 27 Gordillo so testified without contradiction. Young testified that he did not sing the song in question when he left the dock later that night, but he was not questioned about this conversation with Gordillo. 28 Young testified that he made no attempt to explain because he did not think Minoso would listen or that it would make any difference what he said in view of what had happened since his return from vacation versions making it impossible to credit either one, despite the absence of testimony from Rose or others who they identified as present at the time the float was loaded. Thus, according to Rubis, he and Young arrived at the kitchen at the same time and were told that the flight had already been set up and was ready to go. He testi- fied that Gordillo told him and Young to get ice and beverages to stock their trucks. He also testified that, when they arrived at the kitchen, the carriers on the float were sealed, making it impossible for them to see what was in them. Young testified that he arrived early and was told to set up his flights because Gordillo felt Young had enough time and would not let the dispatcher Rose set them up. According to Young, Rubis then telephoned to say that he would be 15 minutes late, whereupon Young obtained the assistance of another dispatcher, Dillon, who set the flight up while Young performed the help- er's job, stocking his truck with ice and beverages. Young testified that, when Rubis arrived, Rubis and Dillon started putting the covers on the carriers while Young finished up with the ice and beverages and started loading the truck. Thus, Rubis testified that someone other than Rubis or Young set up and sealed the carriers, while Young's tes- timony is that Dillon and Rubis sealed the carriers and shared responsibility for the missing glass carrier. Rubis, who testified for the General Counsel, was no longer employed by Respondent at the time of the hearing, and the record shows no motivation for him to have testified deliberately in opposition to Young's interests or, in view of his separation from Respondent, so as to conceal any responsibility he may have had for the missing carrier. Added to the basic conflict between their testimony as to responsibility for the missing glass carrier is the uncon- tradicted testimony of Roberson that Young told him they had forgotten the glass carrier and Young's failure to tell either Roberson or Gordillo that Rubis and Dillon had loaded the float when they asked him on August 22 what had happened. In these circumstances, I am unable to rely on their testimony as a basis for concluding that Young was improperly charged with responsibility for the missing glass carrier. 29 10. Young's discharge On August 22 after Minoso gave Young his disciplin- ary PAF, they both left Minoso's office. Young walked toward the timeclock passing by Gordillo, who was checking out a flight. After passing Gordillo, Young turned back and said to Gordillo, "You've had it, fucker." Young then left the kitchen. Gordillo followed him and told Young that he could not threaten him like a2 Substantial testimony was adduced as to whether the FEH driver or the dispatcher was responsible for seeing that all items were on the floats before taking them to the airfield. Rubis and Young testified that it was the drivers' responsibility to make certain before leaving the kitchen that the floats were properly loaded with all items necessary for the flights, unless they were late and the carriers were already sealed. Both also tes- tified that, when floats had been set up for them by others, Garmendia or Gordillo had told them to proceed to load without checking. Assuming that under some circumstances the driver was not responsible for seeing that all items were present on the floats, those circumstances have not been shown to have been present in this case MARRIOTT IN-FLIGT SERVICES 503 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that. Young protested that Gordillo was now threatening him. After a further exchange, Gordillo returned to work. Young remained in the kitchen a short while longer asking to talk to someone in management above Minoso, but finally left when Minoso asked him to.30 The next morning Minoso contacted Respondent's at- torney, told him what had happened, and said that he wanted to terminate Young. Respondent's attorney ad- vised Minoso that there was reasonable cause for Young's termination and dictated the contents of the fol- lowing telegram which Minoso then sent to Young: Yesterday evening after having fully reviewed with you your previous conduct and work perform- ance and having been advised that the Company would not tolerate like conduct in the future you were suspended from work for three days without pay. After clocking out at the end of your shift you left the premises. However, you later decided to return to the premises and once again saw a need to threaten management of this company. Based on the foregoing, it appears that you are unwilling to alter your ways. Therefore, your serv- ices are hereby terminated effective this date. Minoso testified that he discharged Young because of the threat to Gordillo, the delay of flight 734, the threat to Minoso, and Young's refusal to stay and check his last Braniff flights on August 12, 13, and 14. The General Counsel contends that Young was dis- charged because of his union activities, and not because of any misconduct or dereliction of duty on his part. In support thereof he argues that Respondent engaged in violations of Section 8(a)(l) generally which establish its union animus and specifically threatened Young and re- stricted his movement because of the union activities. He contends further that the discipline on August 12, 13, and 14 was contrary to past practice and retaliatory, that the August 22 discipline was imposed without an investi- gation to determine who was at fault, and that testimony as to the final incident which triggered Young's dis- charge was contrived and credibly denied. Respondent contends that it had no union animus and that the inci- dents on which it relied in discharging Young all oc- curred and warranted discipline. Despite Respondent's contrary contention, the evi- dence does establish Respondent's union animus. Not only did Respondent engage in permissible attempts to ao Gordillo so testified. Minoso testified that he was nearby and heard Young say to Gordillo, "You little fucker." Young denied that he said anything or made any derogatory comment to Gordillo, but his version of his departure that evening was otherwise substantially the same as Gordillo's, and Young conceded that Gordillo followed him out the door, asked if Young had threatened him, and claimed that he had a wit- ness who heard the threat. It seems highly unlikely that Gordillo would have accused Young of threatening him directly after Young passed by him, unless he had either heard Young say something or was determined to "frame" Young Given the fact that Respondent had already accumu- lated a series of complaints about Young, that it had just relied upon them to suspend and not discharge him, that Young appears to have spontaneously walked near where Gordillo happened to be, and that Young was concededly upset and in a state of agitation after he left Min- oso's office, I conclude that Gordillo did not invent the incident, but that it occurred as he testified. dissuade employees from supporting the Union, but it also engaged in conduct found above to violate Section 8(a)(l) of the Act. Particularly revealing is the conduct of Minoso toward Young, a leader in the organizing effort. In July, Minoso sought to probe Young as to his union activities, and, when his probing produced denials, suggested possible revision of schedules in accordance with the desires of the coordinators. Immediately there- after Young was on vacation for 3 weeks, but during that period Young attended union meetings at the motel where he was seen by management officials, including Minoso, and Young called Smith at the kitchen, a fact of which Minoso was aware. Minoso's conversation with counsel on August 15 following Young's invitation to him to go outside and fight also indicates Minoso's awareness that Young was actively supporting the Union. The inference is fully supported, and indeed it is not denied, that Minoso was aware of Young's union ac- tivities. As soon as Young returned from his vacation, he was warned by Minoso about coming to work on time and talking with other employees with no apparent provoca- tion other than Young's union activities. Minoso's warn- ing to Young that he would be watching him was clearly caused by Young's union activities and designed to in- timidate him and inhibit his future union activities. Mino- so's order to Young I day later to stay at the airfield during afternon hours when he usually was at the kitch- en was a further effort to restrict Young's union activi- ties by denying him contact with other employees. This setting in which the events culminating in Young's dis- charge occurred, as well as the implied threat to dis- charge Young if Minoso's watch of Young bore fruit, es- tablishes Respondent's union animus. To this extent, the General Counsel's contentions have obvious merit and cause one to view critically that which followed. However, while these preliminaries suggest that Re- spondent was waiting to seize on any pretext Young might furnish to put an end to his employment, what fol- lowed shows that Respondent acted with some restraint when possible cause for discharge arose. Despite the General Counsel's contention that Young's August 12, 13, and 14 refusals to work overtime were consistent with past practice, and that his discipline for them de- parted from past practice, the evidence does not support his contention. Although Young's refusals were posed as direct challenges to Minoso's authority to require over- time work and were so described by Young, Respond- ent's action was only to warn him and threaten more onerous discipline if the refusals were repeated. Next, after an argument over schedules, Young invited Minoso to go outside and fight with him. Whether or not Young's invitation was a threat, as Respondent contends, it was an act of insubordination challenging Minoso's au- thority which Respondent was not required to tolerate. Nonetheless, with advice from counsel, it did so. A week later when Respondent determined that Young was re- sponsible for the delay of the Eastern flight, Minoso gave Young a 3-day suspension based on the accumula- tion of incidents since August 12. Only when Young told (Gordillo that he had had it after Young was suspended did Minoso decide to terminate Young. The disciplinary MARRIOTT IN-FLIGHTT SERVICES 505 course Minoso followed does not disclose a determina- tion to seize on any excuse to discharge Young, notwith- standing Minoso's implied threat to Young. The principal premises of the General Counsel's argu- ment do not survive evaluation of the evidence. While Young's refusals to work overtime were not an overt re- sponse to Minoso's instructions to Young, the warning notices to Young for those refusals cannot be character- ized as retaliation for Young's union activity. The claim that the August 22 suspension was imposed without in- vestigation also cannot be sustained. While Rubis was not questioned, Young was questioned by both Gordillo and Roberson. He gave neither of them cause to carry the investigation beyond him to Rubis, and left both with basis to believe that he, as the FEH driver assigned to the flight, bore responsibility for the incident. Finally, the claim that the final incident, the threat to Minoso, was contrived and credibly denied does not survive eval- uation of the testimony. In Klate Holt Company, 161 NLRB 1060, 1612 (1966), the Board stated: The mere fact that an employer may desire to ter- minate an employee because he engages in unwel- come concerted activities does not, of itself, estab- lish the unlawfulness of a subsequent discharge. If an employee provides an employer with sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, and the employer discharges him for that reason, the circumstance that the employer welcomed the opportunity to discharge does not make it discrimi- natory and therefore unlawful. It is somewhat simpler to state the test than to apply it, for the question in each case is whether the miscon- duct was such that the employee would have been dis- charged in any event and whether he was actually dis- charged for that reason. Once an employer is aware of an employee's union activities, it is usually true that he can never put them completely out of his mind. Certain- ly, Minoso was aware of Young's union activities when he consulted with counsel and made his decision. How- ever, in the light of the cumulative nature of Young's in- fractions and the progressive discipline imposed for them, I conclude that he was discharged for them, and that they involved conduct for which he would have been discharged in any event. Having reached this conclusion, there is one further consideration raised by the facts. The evidence shows that the chain of actions for which Young was ultimately discharged was set in motion by his belief that he was being harassed because of his union activities. Minoso's conversations with Young on August 12 and 13, which I have found violated Section 8(a)(1), gave him cause for that belief and undoubtedly planted the seed of suspicion in Young's mind that everything thereafter was a part of planned harassment. Much of Young's conduct thereaf- ter, possibly including the missing glass carrier, appears to have been in reaction to his perception that he was being harassed. Certainly, his refusals to work ovcrtime were a direct response to Minoso's Aguit 12 svat;!ing. After that Young became increasingly argumentative and combative, and made the charge that he was being har- assed. Young's behavior on August 22 after receiving his suspension, as described by both Young and Gordillo, shows that this threat to Gordillo occurred in a context of Young's excitement, irritation, and complaints of ha- rassment. I have little doubt that, if Minoso had not set Young off with his implied threat and restrictive orders of August 12 and 13, Young would not have engaged in most, if not all, of the conduct which led to his dis- charge. Yet while the Board may excuse and find con- structively discharged an employee who leaves his job because of discrimination and unlawful pressure, insofar as I am aware, it does not condone on-the-job misbehav- ior which may have been provoked by unlawful harass- ment. Accordingly, I conclude that the violation has not been established as alleged in the complaint. D. The Alleged Discriminatory Discharge of Henry Williams Respondent hired Henry Williams on July 27, 1978, to work as a helper. At the time Williams told Minoso that he had plans to attend school and asked whether it would be better for him to enroll in morning or evening classes. Minoso encouraged him to attend school, sug- gested that it would be better for him to enroll in morn- ing classes, and said that when Williams started school Respondent would schedule work around his school hours. Minoso told Williams that if he had any problems to let Minoso know and he would take care of them.3 1 On the day Williams started work, Minoso introduced him to a personnel representative from Respondent's Washington office who spoke to Williams in Minoso's office. The personnel representative told Williams that it was a bad time for him to be hired because the Union was trying to come in. He advised Williams not to get involved with the Union, to stay away from people who talked about it, and to walk away if anyone approached him to talk about the Union. He told Williams that he hoped Williams would not get involved in the campaign and would remain a company person.3 2 Nonetheless, when Williams was invited to attend a union meeting on August 10 at the airport resort hotel, he went, and thereafter Williams solicited several em- ployees to sign authorization cards away from company premises Williams started work on Monday, July 21, and for the first week was told each day when to report on the fol- lowing day. Respondent's workweek runs from Saturday through the following Friday, and usually a work sched- ule is prepared in advance for each week showing the hours for each employee. For Williams' second week he uas scheduled to be off on Monday and Tuesday and to start work at 1 p.m. on the other days, except Saturday when he was scheduled to work in the morning. On a Wililams so testified. Minoso testified equivocally as to when he first learned that Williams was going to school. He testified that someone else interviewed Williams and that he spoke to Williams only) briefly, but he cnniceded that Williams' employment application showed that he was going to school and that Minoso reviews most employees' applications at :he time timeof heir hire I have credited Williams i Wilidli so testified without contradiction MARRIOTT IN-FLIGHT SERVICES 505 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Monday, August 7, Williams started to attend morning classes which ended i time for Williams to work the schedule assigned to him. During that week, at Respond- ent's request, Williams worked on his scheduled days off, and took a different day off. At the end of Williams' second week, Minoso asked Williams if he would like to become an FEH driver. When Williams answered affirmatively, Minoso told Safety Manager Clarence Chester to start training Wil- liams as a driver that day. For the next workweek, which began on August 12, Williams was scheduled to start work at 10 a.m. on Sat- urday and Sunday and to be off on Monday and Tues- day. It was stipulated that a work schedule was posted showing that Williams was to start work at 10 a.m. on Wednesday and Thursday and at 11:45 a.m. on Friday. Williams testified, however, that he did not recall being scheduled to work a morning shift during that week, and he did not report for work before I p.m. except on Sat- urday and Sunday. At Respondent's request during that week Williams again worked on his scheduled days off. On Friday, August 18, Williams saw the schedule posted for the following week and noticed that he was scheduled to start work on Saturday at 6 a.m., on Sunday and Monday at 7:15 a.m., and on Thursday and Friday at 6 a.m., with Tuesday and Wednesday off. As Williams' classes ran until 12:45 p.m., he told Garmendia that his schedule was "messed up," and that he could not go to school and report for work at the same time. Gar- mendia told him that he would have to check on it and would talk to Williams later. 3 3 Garmendia told Minoso that Williams wanted his schedule changed because he had to go to school.3 4 According to Garmendia, Minoso replied that the only schedule he was concerned with was the airlines' schedules. On Friday morning Williams told Chester, who was training him, about his problem. Chester asked Williams if he had told Minoso when he was hired that he was going to school. Williams answered affirmatively, and Chester said that he would see what he could do. Ches- ter later asked Minoso what was going to be done about Williams' schedule, telling him that Williams could not go to school and work at the same time. Minoso said that something would be done. Minoso then spoke to Williams and told him not to worry because Minoso would take care of it, but then said it would be even better if Williams went to Garmendia.3 5 Williams then spoke to Garmendia a second time, and Garmendia told 33 While there are some variances between the versions of Williams and Garmendia, both agreed that Williams complained to Garmendia about his schedule and told him that it was in conflict with his school schedule. a4 Garmendia so testified. Minoso testified with some equivocation that he was not aware that Williams was a student until after his discharge, and that he was not even sure that Garmendia had told him that Williams wanted his hours changed. I have not credited Minoso in this regard 'a Williams testified that he was present when Chester spukc to Minoso and heard their conversation. Ashimi testified that he heard Minoso tell Williams that they would work it out. Chester was not called as a witness, and Minoso was not specifically asked about these conrersa- tions, although he testified that Williams had not asked him for a change in schedule after it was posted I have credited Williams. him not to worry and that he would do everything he could to work the problem out.3 6 On Saturday, August 19, Williams again spoke to Chester and Garmendia. At this time, Garmendia told Williams that he could not help him with his schedule and asked Williams why he did not try to change sched- ules with another driver. Williams asked how that could be done, and Garmendia told him that he could ask anyone to switch schedules with him. After unsuccessful- ly asking one employee to change schedules with him, Williams asked Chester if he could swap schedules with another driver. Chester replied that he could not because there had been conflicts in the past as a result of such changes. Williams told Chester that there would be a problem on Monday because he could only be in one place at a time. Chester said that he was trying to get something done about it and told Williams not to worry. On Sunday, August 20, Gordillo called Williams to his office to give him a disciplinary PAF because Williams had been late on Saturday and Sunday. Williams ex- plained that he was late on Saturday because he had worked until 11 p.m. on Friday and was scheduled to start work at 6 a.m. the next day. He also told Gordillo that he had not had a day off for a number of days, and that, despite the fact that he tried to arrive on time, Re- spondent could have expected him to be somewhat late under those circumstances. Gordillo wrote the following on Williams' PAF: Mr. Williams at present you're on training with Mr. Chester to become an FEH and I don't feel that you realize the importance of getting to work on time. Saturday 8/19/78 you were 14 minutes late and then you come Sunday 32 minutes late. Mr. Williams the airline catering business is one that being on time is the name of the game. Right now it seems to me that you're not showing a great interest in becoming an FEH. I hope that in the future you make it a point to arrive on time or call and let us know whether or not you're having a problem or I will cover your shift with some one else and not permit you to work that day. At the bottom of the form Gordillo also noted: "Sat. Quick turn around worked until 11:00 Fri night." As Williams was leaving Gordillo's office, another em- ployee stopped Williams and pointed out to him that he had a blank union authorization card in his shirt pocket which could be seen through the shirt material. On Monday morning Williams went to school and re- ported for work at I p.m. When he arrived Minoso called him to the office where, in the presence of Gor- dillo, Minoso asked Williams why he had not shown up for work that morning. Williams replied that it was be- cause of his school and that he had been telling all the managers for 3 or 4 days that he could not be at work and school at the same time. Minoso told Williams that he had been spoken to previously about being late and that he had no alternative but to terminate Williams. Williams asked if he could not give him a further chance. Minoso told Williams that he could not work around one :" UWliains and Garmendia both so testified. MARRIOTT IN-FLIGHT SERVICES 507 man's hours and still keep a good operation going. Wil- liams told Minoso that if he had known about the change earlier he could have notified the school and transferred to night classes. Minoso replied that if he bargained with Williams over his hours he would have to do that for all the others who were going to school. Minoso said that he had no complaints against Williams other than his tar- diness and that he hated to see him go. Williams asked why he was discharging him if that were the case and said that he was willing to quit school in order to keep his job. Minoso rejected his offer, but told him to check back with Minoso, and said that, if he had an opening in the afternoon, he would let Williams know and that he could come back.3 7 Minoso filled out a PAF on which he stated as fol- lows: Employee was warned about his attendance and im- portance of being here on time due to our airline schedules. Employee was late Sunday 32 minutes. Today employee did not call nor did he show up. Employee is currently under 90 [day] probationary status. Employee is therefore terminated according to company policy. Employee has expressed his in- terest to become an FEH. Employee was to be pro- moted effective 8/19/78. Possible school hour con- flict. Minoso testified that he decided to discharge Williams because he had been late several times previously, was late the day before his termination, and reported for work 2 hours before his scheduled quitting time on the day of his discharge without giving notice to the man- ager on duty. The General Counsel contends that Williams' lateness was used as a pretext to discharge him after Gordillo became aware of his union activities. Respondent con- tends that Williams was discharged for tardiness after prior warnings when he proved to be chronically late during his probationary period. The General Counsel relies on the fact that Williams had authorization cards in his pocket when Gordillo gave him his disciplinary PAF on the day before his dis- charge to establish Respondent's knowledge of his union activity. There is other evidence from which to infer that Respondent was aware of his union activities. Wil- liams attended the August 10 meeting at the motel where management officials were present. Williams solicited au- thorization cards and spoke to others about the Union. While he did so away from the plant, Minoso claimed to other employees that he had learned who signed cards from employees who came to him with information. The inference of knowledge of Williams' union activities raised by these facts is strong enough to require rebuttal. :17 I have credited Williams who so testified In his version Minoso tes- tified that he stressed Williams' prior tardinesses, prior verbal warnings by supervisors, and the reasons why Respondent required employees to report on time Mimoso also testified that Williams did not say that he had told Minoso and Garmendia that he had to go o school. I have not credited Minoso's denial of knowledge that Williams was a student and reject Minoso's denials that Williams mentioned that he had told Minoso and Garmendia that he had to go to school. Gordillo, who was present, was not questioned about the discharge interview. However, while considerable attention was focused or the details of the placement of the cards in Williams' pocket and where he sat in relation to Gordillo on Sunday morning, Gordillo never denied that he saw the cards in Williams' pocket, and neither he nor Minoso denied that they were aware of Williams' union activi- ties. I find in the absence of such denials that the evi- dence supports a finding that Gordillo and Minoso were aware of Williams' union activities at the time he was discharged. As set forth above in connection with Young's discharge, the evidence also establishes Re- spondent's union animus. The question remains whether or not the reason advanced for Williams' discharge was a pretext. There is no doubt that Williams was late for work on the Saturday and Sunday preceding his discharge as well as on the day of his discharge. However, the extent of his tardiness before that is in substantial doubt. While Respondent contends that Williams was late on 3 of the 5 days of his first week of work, the evidence does not establish when he was scheduled to report during that week. For the second week he worked, Respondent con- tends that Williams was late on August 8, but his time- card for that date is clearly in error. Bearing in mind that Williams was offered a promotion at the end of his second week, I conclude that Williams was not tardy during his first 2 weeks of employment. With respect to the following week Respondent con- tends that Williams was late on 3 days, two of which were August 17 and 18, when, according to the posted schedule, Williams was to start at 10 a.m. and his time- cards show he punched in at 1:01 and 1:13 p.m. Howev- er, the circumstances render it unlikely that the stipulat- ed schedule accurately reflected the hours Williams was to work on those days. If the posted schedule was cor- rect, by Sunday, August 20, Williams had been late for 4 consecutive days, and was much more egregiously late on August 17 and 18 than on the next 2 days. Yet, in his August 20 PAF Minoso made no mention of tardiness on August 17 and 18. Moreover, if the posted schedule was correct, there was a conflict between Williams' school and work schedules before August 21. But Williams' complaints about his schedule did not begin until the schedule for the week beginning August 19 was posted. These circumstances persuade me that the schedule posted for August 17 and 18 does not accurately reflect his scheduled hours for those dates and does not estab- lish his claimed tardiness on those days. I find that Williams was late on one occasion during the workweek starting on August 22, as he testified when shown his timecards, but that he was not late on the other occasions claimed by Respondent before August 19. Further, in these circumstances I credit Wil- liams that he was not warned about tardiness until August 20 when Gordillo gave him the disciplinary PAF. These circumstances render suspect the reasons given by Minoso for Williams' discharge. Additional factors lead to the conclusion that Williams' attendance record was not the cause of his discharge. Despite Minoso's claim that he did not know that Williams was a student, the evidence indicates both that Minoso was aware of it MARRIOTT IN-FLIHT SERVICES 507 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that Minoso offered Williams, as Respondent had of- fered others, cooperation in adjusting his work schedule to avoid conflict with his school schedule. Despite assur- ances to Williams and advice to him not to worry given up to the last moment, Respondent did not adjust Wil- liams' schedule. Whether or not Respondent deliberately refused to adjust it, when Williams failed to report on Monday morning, Minoso, Gordillo, Garmendia, and Chester were all aware of the reason, and Minoso's reac- tion to Williams' absence was a complete reversal of the prior assurances given him. Not only did Minoso decide to terminate him in the face of these assurances, but, when Williams pleaded for his job and offered to aban- don school in order to keep his job, removing the con- flict between his school and work schedules, Minoso re- mained adamant, offering only to call Williams if after- noon work became available, which he never did. Minoso also ignored the penalty threatened by Gordillo I day earlier in the PAF he gave Williams. Gordillo warned Williams that if he failed to arrive on time or call in, Gordillo would cover his shift with someone else and not permit him to work that day, in effect a -day suspension. These circumstances lead to the conclusion that the reasons advanced for Williams' discharge were not the true reasons for it, and that some other reason caused it. Absent any other explanation, I find that the inference is to be drawn that Williams was discharged because, in disregard of the advice given him at the time of his hire, Williams became an active union adherent. I conclude therefore that Williams' discharge violated Section 8(a)(3) and (1) of the Act. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent unlawfully dis- charged Henry Williams, I shall recommend that Re- spondent be ordered to offer him immediate and full re- instatement to his former job, without prejudice to his seniority or other rights and privileges. I shall further recommend that Respondent be ordered to make him whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his discharge until the date of Respondent's offer of reinstatement, less net earnings, to which shall be added interest, to be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).38 Upon the basis of the above findings of fact and the entire record in this case, I make the following: 1S See, generally Isis Plumbing d Heating Co., 138 NLRB 716 (1962). The General Counsel has asked that interest be provided at the rate of 9 percent per annum rather than as prescribed in 7lorida Steel Corporation, supra. However, I am constrained to follow that decision until modified by the Board. Kim Gorse, an Individual (Paul A. Laurence Company), 242 NLRB No. 57 (1979). CONCLUSIONS OF LAW I. Marriott In-Flight Services, A Division of Marriott Corporation, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees concerning their union activities, by threatening employees with discharge be- cause of their union activities, by promising employees improved working conditions if they refrain from union activities, and by creating the impression of surveillance of employee union activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 4. By changing the working conditions of Steven Young and by discharging Henry Williams because of their union activities, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. 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 3 9 The Respondent, Marriott In-Flight Services, A Divi- sion of Marriott Corporation, Tampa, Florida, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees about their union sympa- thies or activities. (b) Threatening employees with discharge because of their union activities. (c) Promising employees improved working conditions if they refrain from engaging in union activities. (d) Creating the impression of surveillance of employ- ee union activities. (e) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because they become members of or engage in activities on behalf of International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights to engage in or refrain from engaging in any or all the activities specified in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Henry Williams immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a 39 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided ir 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. MARRIOTT IN-FLIGHT SERVICES 509 result of discrimination 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 the amount of backpay due under the terms of this Order. (c) Post at its Tampa, Florida, place of business copies of the attached notice marked "Appendix." 40 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by Respondent's representative, shall be posted by it immediately upon re- ceipt 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 cov- ered by any other material. (d) Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 40 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL. LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about their union activities. WE WILL NOT threaten our employees with dis- charge because of their union activities. WE WILL NOT promise our employees improved working conditions if they refrain from engaging in union activities. WE WILL NOT create the impression of surveil- lance of our employee's union activities. WE WILL NOT discharge or otherwise discrimi- nate against our employees in regard to their hire, tenure, or any term or condition of employment be- cause they become members of or engage in activi- ties on behalf of International Association of Ma- chinists and Aerospace Workers, AFL-CIO, or any other labor organization. WE WIl.L NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of their right to engage in or to refrain from engaging in any or all the activities specified in Section 7 of the Act. These activities include the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activi- ties. WE WILL offer Henry Williams immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent job, with- out prejudice to his seniority or other rights and privileges, and WE WILL make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, with interest. MARRIOTT IN-FLIGHT SERVICES, A DIVI- SION OF MARRIOTT CORPORATION MARRIOTT IN-FLIGHT SERVICES 509