Halloran House

THE HALLORAN HOUSE 759 The Halloran House and Ellen Yaschur. Case 2- CA-16158 May 23, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 2, 1979, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and a supporting brief. ' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order.3 ' Respondent has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 2 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. Respondent also excepts, inter alia, to the Adminstrative Law Judge's finding that a front desk clerk had been hired since the date employee Ellen Yaschur was laid off. Respondent contends that there is no record support for that finding. We have carefully reviewed the record and find no merit in Respondent's contention. In response to the Administrative Law Judge's question at the hearing whether any individuals had been hired for front desk positions, Respondent's personnel director, Penny Rodriquez, answered in the affirmative. She also admitted that, since Yas- chur's layoff, individuals had been hired for the position previously held by Yaschur. The record furiher discloses that, on January 29, 1979, an employeee was transferred into the front desk office to fill the position of front desk mail and information clerk. Although Respondent had in- formed Yaschur at the time of her layoff that she would be recalled to any positon in the hotel for which she was qualified, she was never noti- fied of this opening nor offered the opportunity of accepting that posi- tion. We note in this regard that there is no contention that Yaschur was unqualified for that position or unavailable at the time the position came open. The General Counsel excepts to the Administrative Law Judge's fail- ure to find that Respondent discharged Yaschur for her concerted protest concerning wages in violation of Sec. 8(aXI) of the Act. We do not pass on the merits of the General Counsel's exception since the remedy for such a violation would be the same as that provided for the 8(a)(3) viola- tion. 3 In adopting the Administrative Law Judge's finding of a discrimina- tory discharge, we find it unnecessary to rely on his discussion of N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26 (1967), as critical to the resolution of this case. In so doing, we note that, as found by the Administrative Law Judge, Respondent had knowledge of the alleged discriminatee's union activity, took immediate action against the discri- minatee without warning, and failed to provide any plausible explanation for its conduct. Given these circumstances it was proper to infer, as the Administrative Law Judge did, that Respondent's motive was discrimina- tory and unlawful. 249 NLRB No. 113 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, The Halloran House, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed on January 19, 1979,1 by Ellen Yas- chur, a complaint, dated March 5, was issued alleging that The Halloran House, herein sometimes called the Hotel, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended. In sub- stance, the complaint alleges that Respondent on January 17 unlawfully discharged its employee Ellen Yaschur be- cause she "attempted to initiate a concerted protest con- cerning the wages and working conditions of Respond- ent's employees" and because she "distributed authoriza- tion cards on behalf of the Union among Respondent's employees." Respondent filed an answer generally deny- ing that it had engaged in the alleged unfair labor prac- tices. A hearing in this proceeding was held in New York, New York, on August 1, 1979.2 Pursuant to leave granted at the hearing General Counsel and Respondent filed briefs with the Administrative Law Judge. In December 1978 Lubos Pavlista, the executive ad- ministrator of the Union, began soliciting the housekeep- ing, dining room, bar, and kitchen employees of the Hotel to join the Union. As Pavlista was acquainted with Mary Diem, general manager of the Hotel,3 he informed her that he was organizing the Hotel's employees and was soliciting the employees to execute union authoriza- tion cards. According to Pavlista, "Mrs. Diem said she had no objection if I entered the House [Hotel] but she would prefer if people would sign the cards someplace [other] than in the Hotel and obviously I couldn't disturb the people when they are working." Thereafter, and at least through January 17, Pavlista visited the Hotel for organizational purposes approximately twice each week. The Hotel's management did not in any way interfere with his activities.4 Ellen Yaschur, who began working for the Hotel on November 13, 1978, as a front desk room clerk was under the impression that she and other employees had been promised a raise of $16 per week beginning on Jan- All dates refer to the calendar year 1979, unless otherwise indicated. 2 Pursuant to the stipulation, dated August 16, 1979, entered into by counsel for the General Counsel and the attorney for the Respondent, It. Exhs. E. 1, 2, and 3 are hereby received in evidence and are made a part of the record in this proceeding. 3 Prior to January 5 Mary Diem was corporate director of personnel for National Hotel Management which manages The Halloran House. ' In May or June the Hotel made a room available to Pavlista in which he held a meeting with the employees. THE HALLORAN HOUSE 759 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD uary . However, when she received her paycheck on January 13 she discovered that she had not been given the increase. The next day Yaschur spoke to Mary Diem about the matter. According to Yaschur, she asked Diem why she had not received her raise. Diem asked what raise. "And I said-well the raise that we were prom- ised. And she said by who. And I said by you and Penny Rodriguez. And she said . .. . that's only when the union comes in and I said . .. . I didn't even know that had anything to do with the union and she said . . . that's the way it is. And I said well, can you tell me when the union will be coming in and she said no, I have nothing to do with it." 5 Following her conversation with Mary Diem, Ellen Yaschur told other employees who were then on duty behind the front desk that they were not going to get the promised raise and related the same bad news by telephone to the other front desk employees. Yaschur further testified that she spoke with her immedi- ate supervisor, Greg Rizzi, and "I told him about the conversation that I had had with Mary Diem and I said that I felt we were lied to and he said that he would speak to her." On January 16 Yaschur telephoned Lubos Pavlista, complained to him that the employees were not getting a fair deal, and that they needed a union. Pavlista made an appointment to meet with her the next day. At 3:30 p.m., on January 17, Pavlista arrived at the Hotel. When Ellen Yaschur was relieved for her dinner break she and Pav- lista left the Hotel together. They were observed by Mary Diem. Yaschur received union authorization cards from Pavlista and when she returned to the Hotel she distributed cards to several employees. About 5:30 p.m. the same day, January 17, Yaschur was called into the personnel office where she met with Greg Rizzi, the resident manager, and Penny Rodriguez, the personnel director. Rizzi informed Yaschur that be- cause the Hotel was experiencing financial difficulties it was necessary to lay her off and, in response to a ques- tion from Yaschur, told her that her selection "was a matter of seniority." According to Yaschur, "I asked him if this was a temporary layoff and he said no it wasn't, it was permanent and I said . . . if the Hotel gets back on its feet . . . financially, will I be called and he said . . . you'll be the first one called." Rizzi gave Yas- chur a check for her wages and told her that she could leave then and did not have to complete her shift which was scheduled to end at 8 p.m. It is noted that, although the payroll period was from Sunday through Saturday, Yaschur was laid off on a Wednesday. The next day, January 18, Yaschur telephoned Pavlista and informed him that she had been discharged. He told her that he would call her back in an hour. Pavlista then telephoned Mary Diem. According to Pavlista, "I told Mrs. Diem that I couldn't understand why anybody who talked to me at 4:00 or 4:30 and apparently she saw me with her in the lobby; that a person would be fired at 6:00 o'clock. That I was very much disturbed . . . I want to know if [Yaschur was discharged] . . . because of [her] organizing effort. Mrs. Diem told me . .. (t]hat 5 This testimony is uncontradicted. Although Mary Diem was a wit- ness at the hearing she was not questioned about the conversation. I Yaschur was the least senior of the employees in her department. [Yaschur] was not fired because of the organizing effort · . .the decision was made three days before . . . to lay her off for economic reasons . . . Mrs. Diem asked me to get in touch with Ms. Yaschur; that she would talk to her, possibly offer her another position, either in the Hal- loran House or another property .... She mentioned Hotel Taft." Pavlista telephoned Yaschur the same even- ing and related the conversation he had with Mrs. Diem. 7 Diem telephoned Yaschur that same night. According to Diem, she said that "Lou [Pavlista] had thought[Yaschur] was terminated because of union ac- tions or being seen with him. And-to give some thought perhaps to another department and to call me back." 8 Yaschur did not telephone Diem again or meet with Diem to talk about further employment with the Hotel. On Friday, January 19, Yaschur again telephoned Pavlista and informed Pavlista that Mrs. Diem had not offered her anything. Pavlista asked Yaschur to meet him the following week in his office. However, Yaschur did not meet with him and Pavlista did not again see Yas- chur until the day of the hearing in this case. On Monday, January 22, Pavlista again telephoned Diem and complained to Diem that she had not made any concrete offer to Yaschur. Diem responded that there might be something for Yaschur in the future. Pav- lista closed the conversation by informing Diem that he expected to meet with Yaschur and that he "could dis- cuss it with Ms. Yaschur next day." 9 The Company's defense is that because it was losing money it decided in January to reduce personnel. The Company then employed approximately 240 people and, according to Mary Diem, the objective was to cut its payroll by 9 or 10 employees whose average earnings was $175 per week. Responsibility for implementing the layoff was delegated to Personnel Director Penny Rodri- guez who made the selections in consultation with the I Diem's version of the conversation corresponds generally with Pav- lista's testimony. Yaschur's version of the conversation does not differ from Diem's version in any important respect. According to Yaschur, "She called me back and said that she heard that I was laid off and I said yes and she said she was very sorry to hear that; that I was a good employee and that they don't like to leave good employees out in the cold and she said perhaps if there is another department of the Hotel that I would like to work in . .. to let her know and I said well could you tell what is avail- able and she said-well, you put on your thinking cap and let me know." 9 Mia Wechsler, a former employee of the Hotel, who was called as a witness by the General Counsel, testified that about a week after Yaschur was discharged she had a telephone conversation with James Boniello, an assistant manager of the Hotel. According to Wechsler, "I asked Jimmy why Ellen was fired . . . and he said . . . Ellen really went about things the wrong way .... She got people very upset . .. [S]he should not have spoken to Mary Diem about all this . . . I guess in general he said ... that she was a rabble rouser .... [H]e said that when she met with the union representative she, I guess walked across the lobby with him and he said that that was a really stupid thing to do because . . . the management of the Hotel had been in business a long time . . . they knew the union reps by sight and they saw her walking out with him." Although this testimony is uncontradicted, I find that it has no probative value. The record is devoid of any evidence suggesting that Boniello knew why Yaschur had been laid off or knew what was the Company's attitude regarding the organization of its employees. The import of Wechsler's testimony is that Boniello believed that the Company was hostile to the Union's organizational efforts. This is contradicted not only by the testimony of Mary Diem but also by the testimony of Union Ex- ecutive Administrator Lubos Pavlista. - ------ I THE HALLORAN HOUSE 761 various hotel department heads. Yaschur was the only employee laid off on January 17. Rodriguez gave no ex- planation as to why Yaschur was laid off 2 hours before the end of her shift and in the middle of a payroll period. According to Rodriguez, Randy Ogoff, an assistant man- ager in the same department, was laid off on January 9. This fact makes the precipitate timing of Yaschur's layoff even more suspicious, as a decision to reduce the number of front desk clerks apparently was made more than a week earlier. Rodriguez further testified that when Yaschur was laid off Yaschur was informed that she would be recalled if any job opened for a front desk clerk. However, al- though on March 25 the Hotel placed an advertisement in the New York Times soliciting employment applica- tions for, among other positions, front desk clerks and at least one front desk clerk has been hired since Yaschur was laid off, Yaschur was not recalled to work. At the hearing, Personnel Director Penny Rodriguez testified that, although Diem never told her that Yaschur's status was changed from a laid-off employee to a quit or a dis- chargee, nevertheless, because Diem had informed her that Diem had instructed Yaschur to telephone Diem "if she was interested in any other area" and because on January 19 Diem told Rodriguez that Yaschur had not called again, Rodriguez came to the conclusion that Yas- chur no longer should be considered for recall. More particularly, Rodriguez testified: THE WITNESS: Told [Yaschur] that she had been . . . laid off due to budgetary reasons and that should the Hotel pick up or so forth then she would be recalled; not necessarily at the front desk but in any area of the Hotel. Q. (By Judge Silberman) Now what happened to change the picture so that you did not recall her when jobs occurred for which she was qualified? A. To my knowledge what changed the picture was her not responding to Mrs. Diem's personal at- tention to recalling her in any other area of the Hotel. Q. Did Mrs. Diem advise you that Miss Yas- chur's status was changed from a laid off employee to a quit or discharged employee? A. No sir. Q. Now-did you indicate that on her personnel file any place? A. That there had been a conversation? Q. That there was a change in her status; from laid off employee to either a quit employee or a dis- charged employee? A. No sir. Discussion This case differs from the run-of-the-mill discharge cases in that there is no credited evidence indicating that Respondent was hostile to the Union, that it opposed the efforts of the Union to organize its employees, that it ob- jected to its employees engaging in organizational activi- ties or that, prior to Yaschur's discharge, it had engaged in any unfair labor practices. To the contrary, when Pav- lista began organizing Respondent's housekeeping, kitch- en, bar, and dining room employees, he informed Hotel management of his intentions and he was told that there there was no objection. Pavlista was permitted to enter the Hotel for organizational purposes and the Hotel did not in any way interfere with his organizational activi- ties. Further, when Pavlista telephoned Diem to com- plain about Yaschur's layoff because it gave the appear- ance that Respondent was punishing Yaschur for having had lunch with him, Diem was conciliatory and prom- ised that she would speak to Yaschur and would try to resolve the problem to Pavlista's satisfaction. The complaint alleges that Respondent discharged Yaschur because: (a) Ellen Yaschur attempted to initiate a concerted protest concerning the wages and working conditions of Respondent's employees; and (b) Ellen Yas- chur distributed authorization cards on behalf of the Union among Respondent's employees. There is no evidence of any causal relationship be- tween Yaschur's complaints regarding the failure of Re- spondent to keep its alleged promise to give its employ- ees a wage increase on January I and her termination. Yaschur spoke to Diem on January 14 about the subject and Yaschur's undisputed version of the conversation does not disclose that Diem became angry or became hostile towards Yaschur for having raised the subject. I find that General Counsel has not proved that Yaschur was terminated because of her alleged concerted protest about wages. On January 17 Yaschur returned from her meeting with Pavlista about 4 p.m. and was terminated about 6 p.m. Although during that 2-hour period she distributed authorization cards, there is no evidence that this activity on Yaschur's part came to the attention of Hotel man- agement. However, Diem observed Yaschur leave the Hotel in the company of Union Executive Administrator Pavlista at 4 p.m. on January 17. If Yaschur was laid off for that reason, then her termination would be a viola- tion of Section 8(a)(3) as well as Section 8(a)(1) of the Act.10 The question then is whether an inference fairly may be drawn that there was a connection between Yas- chur's meeting with Pavlista and her termination 2 hours later. Stated otherwise, does the credited evidence permit a finding that Respondent laid off Yaschur on January 17 to "discourage membership in any labor or- ganization" where there is no direct evidence that such unlawful reason prompted the layoff and where there is no evidence of hostility on the part of the Hotel towards the Union which then was engaged in organizing some of its employees or of antagonism towards employees who participated in the organizational activities? Resolution of this question begins with consideration of N.L.R.B. v. Great Dane Trailers Inc., 388 U.S. 26, 34 (1967), which represents the most recent effort by the Supreme Court to define a prima facie violation of Sec- tion 8(a)(3) and when a violation of that section of the Act has been proved. In relevant part, the Court stated: 10 Respondent does not contend that it has been prejudiced by the dis- crepancy between the allegations of the complaint and the proof. THE HALLORAN HOUSE 761.. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [I]f the adverse effect of the discriminatory conduct on employee rights is "comparatively slight," an an- tiunion motivation must be proved to sustain the charge if the employer has come forward with evi- dence of legitimate and substantial business justifica- tions for the conduct. Thus . . . once it has been proved that the employer engaged in discriminatory conduct which could have adversely affected em- ployee rights to some extent, the burden is upon the employer to establish that he was motivated by le- gitimate objectives since proof of motivation is most accessible to him. ' There is sufficient ambiguity in this statement that it has become the subject of several thoughtful law review articles which are referred to and cited in Jorgensen's Inn, 227 NLRB 1500, 1513-14 (1977), and J. Ray McDer- mott & Co., Inc., 233 NLRB 946, 952-953 (1977). Two of these articles suggest that in cases involving discharge (or other employee discipline) proof of "illegal intent or motivation" independent of the termination itself is not a necessary element of the prima facie case. One writer, in analyzing the Great Dane decision, states: An important element in showing discrimination is the presentation of direct or circumstantial evidence that the employer had knowledge of the union ac- tivity and the particular employee's involvement therein and that the employer's consideration of such activity was a factor which prompted, caused, or motivated the alleged discriminatory conduct .... The illegal intent or motivation of the employer may be inferred from the nature of the discriminatory conduct itself The inference arises automatically once the prima facie case is established. The burden of proof then shifts to the employer to show that he was motivated by "legitimate and substantial" busi- ness reasons . ... If the Board determines that the justification is "legitimate and substantial" the infer- ence is rebutted and the burden shifts back to the General Counsel who must then affirmatively prove anti-union motivation by additional evidence. [Em- phasis supplied.] According to this author a prima facie case is established by proving that the employer had knowledge of the dis- chargee's union activities and there was a causal relation- ship between such knowledge and the employee's termi- nation. Another article reaches the same conclusion using a different rationale. The authors of this article "suggest that confusion arises because the term 'motive' is used with respect to both the intent to discriminate and the intent to encourage and discourage union activity. They argue that the two uses should be distinguished. Their thesis is that motive in the sense of 'a consideration prompting an action' is what is meant when the refer- ence is to discrimination; and this kind of motive is prop- L I Justices Harlan and Stewart in their dissent refer to the majority de- cision as an "alteration of the burden" of proof in 8(a)(3) cases because "the Board is required to find independent evidence of the employer's an- tiunion motive only when the employer has overcome the presumption of unlawful motive which the Court raises." erly part of the prima facie case. On the other hand, motive in the sense of 'something within that incites to action' is what an employer has when he acts with the purpose to encourage or discourage union activity. This is the antiunion motivation or illegal intent that may be inferred from 'discriminatory conduct which could have adversely affected employee rights to some extent' and which must be affirmatively proved under the second prong of the Great Dane test once the employer has met his burden of showing a legitimate and substantial busi- ness justification." In determining whether the evidence establishes prima facie that a discharge was the result of union activity the most significant factors normally considered in evaluat- ing the proof are: 1. Knowledge on the part of the employer of the dis- charged employee's union activities or sympathies. 2. Timing, or the relationship between the discharge and other critical events. 3. The reasons given by the employer for the dis- charge. 4. The employer's opposition to the organization of its employees and its hostility toward the union involved and those who support it. The Board frequently refers to this factor by the short hand phrase "union animus. " ' 2 The Board deems "union animus" or "discriminatory motivation" an essential ingredient of an 8(a)(3) case.1 a The question here is whether such "illegal intent or mo- tivation of the employer may be inferred from the nature of the discriminatory conduct itself." My review of Board decisions, particularly the more recent cases, indi- cates that this question should be answered in the affirm- ative and that the requisite "union animus" or "discrimi- natory motivation" may be inferred even absent evidence of union hostility on the part of the employer, of opposi- tion to his employees' self-organizational activities, or of proof of other unfair labor practices apart from the al- leged discriminatory discharge. 4 Unambiguous confir- mation of this view is found in Warren L. Rose Castings, Inc., d/b/a V & W Castings, 231 NLRB 912, 913, 921 (1977), enfd. 587 F.2d 1005 (9th Cir. 1978), where the Board found that the discharge of an employee violated Section 8(a)(3) of the Act, although "there is not any evidence whatsoever of union animus on the part of the Respondent." In accord is Midland Ross, Inc., 239 NLRB 1205 (1979), where the Board found that the discharge of an employee violated Section 8(a)(3) of the Act, al- 12 This assertion is made with some trepidation because in North Adams Inn Corp., 223 NLRB 807 (1976), the Board reproved an Adminis- trative Law Judge for failure in his decision to "conform with our well. established definition of animus." The Board did not cite where the "well-established definition of animus" appears and this writer haa been unable to find the definition in his reading of Board decisions. At least one court has rejected the suggested definition of "union animus" set forth above. See Delco-Remy Div., General Motors Corporation v. ,V L.R.B.. 596 F.2d 1295, 1310 (5th Cir. 1979), where the court states, "it is undisputed that Delco opposed unionization of its Fitzgerald plant. Such opposition, without more, does not amount to anti-union animus." But see American Thread Company, Svier Plant, 242 NLRB No. 10 (1979). where the Board equates opposition "to having a union represent its employees" with "hostility toward union organizational activities." 3 See J. Ray McDermott & Co., Inc., supra at 951. 4 But see N.L.R.B. v Otis Hospital, 545 F.2d 252, 254, fn. 3 (Ist Cir. 1976) -/ - THE HALLORAN HOUSE 763 though the "Respondent did not act out of animus toward the Union in the usual sense of that phrase."' 5 In Ace Foods, Inc., 192 NLRB 1220, 1223, fn. 11 (1971), a violation of Section 8(a)(3) of the Act was found where apart from certain unlawful conduct by "a minor supervisor working on an informal basis with his men" the employer "did not engage in any antiunion campaign or express hostility toward union organization. On the contrary, . . . it appeared willing to cooperate in the holding of an election. This fact, however, does not serve to countervail the only plausible motive I can find in its dealing with Jones [the discharged employee]." See also Banks Engineering Company, Inc., 231 NLRB 1281, 1283 (1977), enfd. 577 F.2d 524 (3d Cir. 1978). In this case the Hotel knew of Yaschur's union activity because General Manager Diem on January 17 observed Yaschur leave the Hotel in the company of Union Ex- ecutive Administrator Pavlista. Yaschur was laid off 2 hours later. The termination occurred before the end of her shift and before the end of a pay period. The precipi- tate termination of Yaschur so soon after the Hotel became aware of her union interest prima facie estab- lishes a causal connection between Yaschur's union activ- ities and her layoff. ' A violation of the Act therefore is established unless the Hotel is able to advance legitimate and substantial business justifications for then having laid off Yaschur. The Hotel's defense is that its precarious fi- nancial condition compelled it to reduce its labor force. This argument and the evidence adduced in support thereof does not explain why Yaschur was laid off when she was rather than at the end of the workweek. Fur- ther, indicating the insubstantiality of the defense is that when Yaschur was laid off she was advised that she would be recalled when the Company needed additional employees, but this promise was not kept although the Company thereafter hired at least one other front office desk clerk. The explanation given by Personnel Director Penny Rodriguez for the Hotel's failure to recall Yas- chur is lame indeed. Rodriguez testified that she believed Yaschur was no longer interested in a job with the Com- pany because Yaschur did not return Diem's telephone call after Diem had suggested that Yaschur should think of where there might be another position available for her. Rodriguez made no effort to confirm her belief by directing an inquiry to Yaschur as to whether Yaschur's interest in employment with the Hotel continued. I find that Rodriguez' explanation for not having recalled Yas- chur to work was contrived and specious. As Respond- ent has not established any legitimate and substantial business justification for terminating Yaschur on January 17, it was not necessary for the General Counsel affirma- tively to prove by additional evidence that antiunion considerations prompted the layoff. Accordingly, I find that the General Counsel has proved by a preponderance of the evidence that Respondent in violation of Section I5 Accord: Local 19 Hotel. Motel, Restaurant Employees and Bartenders Union, AFL-CIO, 240 NLRB No. 45 (1979). "e L'Eggs Products Incorporated, 236 NLRB 354 (1978); Ultra-Sonic De- Burring, Inc., of Texas, 233 NLRB 1060 (1977), enfd. 593 F2d 123 (9th Cir 1979): Union Camp Corporation, Building Products Div., 194 NLRB 933 (1972), enfd 463 F2d 1136 (5th Cir 1972): Bhomn/Art Textiles. Inc.. 225 NLRB 766, 767-768 (1976) 8(a)(1) and (3) of the Act terminated Ellen Yaschur on January 17, 1979. Some courts suggest that where the employer has met his burden of showing legitimate and substantial business justification for a discharge, the burden of proof not only shifts back to General Counsel affirmatively to prove an- tiunion motivation but also to prove a causal connection between such antiunion motivation and the discharge. See Syncro Corp v. N.L.R.B., 597 F.2d 922, 924, fn. 7 (5th Cir. 1979); Florida Steel Corporation v. N.L.R.B., 601 F.2d 125 (4th Cir. 1979); Mueller Brass Co. v. N.L.R.B., 544 F.2d 815, 819 (5th Cir. 1977); Western Exterminator Co. v. N.L.R.B., 565 F.2d 1114, 1118, fn.3 (9th Cir. 1977). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged or laid off its employee Ellen Yaschur on January 17, 1979, 1 shall recommend that Respondent offer her im- mediate and full reinstatement to her former job, or, if that job no longer exists, to a substantially equivalent po- sition, without prejudice to her seniority and her other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of the discrimi- nation against her by payment to her of a sum of money equal to that which she normally would have earned from the date of her termination to the date of Respond- ent's offer of reinstatement, less her net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accord- ance with the method prescribed in F W Woolworth Company, 90 NLRB 289 (1950). Interest shall be added to such backpay and shall be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977). 7 Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. By discriminatorily discharging Ellen Yaschur on January 17, 1979, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 17 See Isis Plumbing & Heating Co., 138 NLRB 716 (1962). THE~ H_ L R N HO S 6 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, con- clusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER'8 The Respondent, The Halloran House, New York, New York, its officers, agents successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of their employment in order to discourage membership in Local 6, Hotel, Motel & Club Employees Union, AFL-CIO, or any other labor organization. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act.' 9 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Ellen Yaschur immediate and full reinstate- ment to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority and other rights and privileges, and make her whole for any loss of earnings she may have suffered by reason of Respondent's unlawful discrimination against her in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its place of business in New York, New York, copies of the attached notice marked "Appendix."2 0 Copies of said notice, on forms pro- vided by the Regional Director for Region 2, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be 's In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.agents, successors, and assigns. shall: 19 Hickmort Foods. Inc., 242 NLRB No. 177 (1979). 20 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." maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 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 discrimi- nate against employees in regard to their hire, tenure of employment, or any term or condition of their employment in order to discourage member- ship in Local 6, Hotel, Motel & Club Employees Union, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce our employees in the exercise of the rights 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 activi- ties for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Ellen Yaschur immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority and her other rights and privileges and WE WILL make her whole for any loss of earnings she may have suffered by reason of our unlawful discrimination against her with interest added to the backpay. THE HALLORAN HOUSE