Pottsville Community Hotel Co., Inc.

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 ST. Louis CAR, A DIVISION OF GENERAL STEEL INDUSTRIES, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 4459 Federal Building, 1520 Market Street, St. Louis 3, Missouri, Telephone No. Main 1-8100, Extension 2142, if they have any question concerning this notice or com- pliance with its provisions Pottsville Community Hotel Co., Inc. (Necho-Allen Hotel) and Local 391, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO. Case No. 4-CA-2544. Janu- ary 9, 1963 DECISION AND ORDER On October 1, 1962, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Intermediate Report. There- after, the General Counsel filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Leedom and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the General Counsel's exceptions and brief, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the follow- ing exceptions and additions. 1. We adopt the recommendation of the Trial Examiner that the complaint be dismissed insofar as it alleges that the Respondent dis- criminated against Francis H. Spotts and Anne M. Kehoe.' 2. At the time of the events herein, Cerullo had been employed as a banquet waiter for more than 5 years, had apparently always done I We find that the Trial Examiner's credibility resolutions as to Spotts and Kehoe are not clearly erroneous. We do not, however , adopt his conclusion that Spotts' discharge would not have constituted a violation if Spotts had not quit 140 NLRB No. 54. POTTSVILLE COMMUNITY HOTEL CO. , INC. 557 satisfactory work, and had risen to the head of the banquet list from which work assignments were made according to position on the list. The Trial Examiner found that , while the Respondent's antiunion attitude toward Cerullo was well established, nevertheless it dropped him from its list of banquet waiters only because his request that he be called for work on weekends was impractical and unreasonable. In his exceptions, the General Counsel contends that a preponderance of the evidence shows that Cerullo was dropped from the list because of his activities on behalf of Local 391 , and because he testified in a Board proceeding. We find merit in this exception. Cerullo was a, member of the Local 391 organizing committee. The Board found , in an earlier proceeding involving the Respondent,' that the Respondent had previously discharged Cerullo in January 1961, allegedly because he had not been truthful about not distributing union authorization cards , and had rehired him a week later on advice of counsel; and that, about the time of a Board election conducted on July 26, 1961 , Hotel Manager Warfel twice threatened Cerullo with discharge because of his activities on behalf of Local 391. On Septem- ber 17, 1961, Cerullo asked the, assistant hotel manager to put him at the foot of the banquet list so he would be called for work only on Saturdays and Sundays because he was going away to school and would be home only on weekends. The assistant manager agreed, re- marking that Warfel would not be "aggravated " if he did not see Cerullo around so much. Cerullo worked on the two following week- ends. Although Cerullo went to the hotel every weekend except one between that time and the end of December, he was not hired again. The weekend Cerullo did not report to the hotel was the one preceding the Board hearing in the prior case, held on Monday and Tuesday, October 16 and 17, 1961, and at which he testified as a witness for the General Counsel on Monday , October 16. Four days after Cerullo testified, Warfel informed him by letter dated October 20, 1961, that the Respondent could not offer him employment on weekends, as re- quested, and was dropping his name from the banquet list ( 1) because of uncertainty as to his availability and (2) because granting his re- quest would discriminate against employees who were available at any time on short notice. The Trial Examiner found that the validity of the first reason given-the uncertainty of Cerullo's availability-had been demon- strated by Cerullo's failure to report the preceding weekend. This absence, however, occurred just before Cerullo was scheduled to be in town for the Board hearing , and was his only absence. He was at the Respondent's hotel seeking work every weekend but that one over a 3-month period. Nor is there any evidence that the Respondent had 2 136 NLRB 463 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work for him during the one weekend he was not present. We find, under all the circumstances , that Cerullo's alleged unavailability was not a reason for his removal from the list, but a pretext. The second reason given for Cerullo's termination--discrimination against other employees on the list-was equally without foundation. As Cerullo requested that his name be put at the bottom of the banquet list, all other employees on the list, even those hired subsequently, would be called before he was . The pretextual nature of Respondent's purported reasons for terminating Cerullo was further demonstrated by its calling on other individuals , whose name; were not on the banquet list at all, to work on various weekends when, the record shows, Cerullo was present and seeking in vain for work. Accordingly, we find, under all the circumstances, including the Respondent's union animus, Manager Warfel 's threats to discharge Cerullo because of his activities on behalf of Local 391, the assistant manager's remark that Warfel would be glad not to see so much of Cerullo, the timing of Cerullo's termination 4 clays after he testified in a Board hearing, and the pretextual nature of the Respondent's alleged reasons for terminating him, that the Respondent removed Cerullo's name from the banquet list because of his union activities and because of his testimony, thereby discriminating against him in viola- tion of Section 8(a) (1), (3), and (4 ) of the Act. TIIE EFFECTS OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with its operations as set forth in the Intermediate Report, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent discriminated against Francis Cerullo in violation of Section 8(a) (1), (3), and (4) of the Act, we shall order it to cease and desist therefrom. As the nature of the un- fair labor practices found herein go "to the very heart of the Act," I we shall also order the Respondent to cease and desist from in any manner infringing upon the rights of its employees guaranteed by the Act. In addition, we shall order the Respondent to restore Cerullo's name to its banquet list, offer Cerullo employment therefrom on a nondiscriminatory basis, make him whole for any loss of pay suffered by him,' and take other affirmative action necessary to effectuate the policies of the Act. 3 N.L R B. v. Entwistle Mfg Co., 120 F. 2d 532 , 536 (C A. 4). 4 See F W. Woolworth Company, 90 NLRB 289 The amount of backpay due is left to the compliance stage of this proceeding. In accordance with the policy recently adopted by the Board, there shall be no tolling of backpay for the period between the issuance of POTTSVILLE COMMUNITY HOTEL CO., INC. 559 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. Pottsville Community Hotel Co., Inc. (Necho-Allen Hotel) is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 391, Hotel and Restaurant Employees and Bartenders In- ternational Union, AFL-CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. 3. By discriminating against Francis Cerullo in regard to his hire and tenure of employment because of his activities on behalf of Local 391 and because he testified in a Board hearing, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (1), (3), and (4) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Upon the entire record in this case and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pottsville Com- munity Hotel Co., Inc. (Necho-Allen Hotel), Pottsville, Pennsylvania, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in Local 391, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization, by discharging any of its employees or by discriminating in any other manner in respect to their hire or tenure of employment, or any term or condition of employment. (b) Discharging or otherwise discriminating against an employee because he has given testimony under the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local 391, Hotel and Restaurant and Bartenders International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to re- frain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor or- the Intermediate Report and the Order herein. A P W Products Co , Inc, 137 NLRB 25 Interest at the rate of 6 percent per annum shall be added to the backpay to be com- puted in the manner set forth in Isis Plumbing & Heating Co , 138 NLRB 716 For the reasons set forth in the dissent in that case , Member Leedom would not award interest on backpay 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ganization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Restore Francis Cerullo's name to its list of banquet waiters, offer him employment on a nondiscriminatory basis, and make him whole as set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- curity payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due and the right of reemployment under the terms of this Order. (c) Post at its hotel in Pottsville, Pennsylvania, copies of the at- tached notice marked "Appendix." 5 Copies of said notice, to be fur- nished by the Regional Director for the Fourth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fourth Region, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT Is FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act by conduct other than that found to be violative herein, be, and it hereby is, dismissed. 5 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT discourage membership in Local 391, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, or in any other labor organization, by discharging any of our employees, or by discriminating in any other manner in re- spect to their hire or tenure of employment, or any term or condi- tion of employment. POTTSVILLE COMMUNITY HOTEL CO., INC. 561 WE WILL NOT discharge or otherwise discriminate against an employee because he has given testimony under the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Local 391, Hotel and Restaurant Employees and Bartenders Interna- tional Union, AFL-CIO, or any other labor organization, to bar- gain 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 protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized by Section 8(a) (3) of the said Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. WE WILL restore Francis Cerullo's name to our list of banquet Waiters, offer him employment on a nondiscriminatory basis, and make him whole for any loss of pay he may have suffered by reason of the discrimination against him. POTTSVILLE COMMUNITY HOTEL CO., INC. (NECIIO-ALLEN HOTEL), Employer. Dated---------------- By------------------------------------- (Representative) (Title) NorE.-In the event that the above-named employee is presently serving in the Armed Forces of the United States, we will notify him of his rights in accordance with the Selective Service Act after dis- charge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 1700 Bankers Security Building, Walnut and Juniper Streets, Philadelphia 7, Pennsylvania, Telephone No. Penny- packer 5-2612. INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein (issued June 8, 1962 ; charge filed January 31, 1962) alleges that the Company has violated Section 8 (a) (3) of the National Labor Relations Act, as amended, 73 Stat. 519, by terminating the employment of Francis H. Spotts on or about August 28, 1961 , of Francis Cerullo on or about October 20, 1961, and of Anne M. Kehoe on or about December 4, 1961 , and also be laying off Kehoe on or about September 26, 1961 , and failing and refusing to reinstate them, all because of their union membership or other protected concerted activities ; Section 8(a)(4) 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act by its action against Cerullo and Kehoe because they gave testimony under the Act in another proceeding; and Section 8(a)(1) of the Act by each of said acts. The answer alleges that Spotts was not discharged but resigned (a later paragraph in the answer refers to the discharge or layoff of "the employees referred to in the Complaint"); that Cerullo's discharge was justified because he changed his avail- ability for work; and that Kehoe's jobs were eliminated for economy reasons. A hearing was held before me at Pottsville, Pennsylvania, on July 24 and 25, 1962, and at the close the General Counsel and the Company were heard in oral argument. Pursuant to leave granted to all parties, a brief has been filed by the Company. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, a Delaware corporation with its principal office and place of business in Pottsville, Pennsylvania, is engaged in the business of operating the Necho-Allen Hotel; during the year preceding issuance of the complaint, the Company's business operations grossed more than $500,000, a majority of its guests or customers were transient guests whose stay was for a period of less than 30 days; during that period it received goods valued at approxi- mately $38,000, which were shipped to it from points outside the Commonwealth of Pennsylvania; and the Company is engaged in commerce within the meaning of the Act. It was stipulated and I find that the Union is a labor organization within the meaning of the Act. H. THE UNFAIR LABOR PRACTICES There is no question here concerning union activity generally, company knowledge thereof, or antiunion attitude. The Board in its Decision of March 21, 1962,1 adopted Trial Examiner James V. Constantine's findings and conclusions of marked inter- ference, restraint, and coercion by the Company. This together with the probative evidence now received and the reasonable inferences to be drawn therefrom will be taken into account herein. A. Spotts Spotts, for some months employed as a busboy, was on August 28, 1961, seen by Mrs. Warfel , the hotel housekeeper and wife of the manager, handing a hanger with a white shirt and some uniform jackets underneath to a boy at the back door of the hotel . When she confronted Spotts with this, he explained that it was necessary for him to take or send his jackets home to be cleaned . He testified that he had done this before to have them laundered and repaired, and that both Mr. and Mrs. Warfel had seen him once with two jackets on his arm. Our initial concern, although no claim has been made by the General Counsel in this respect, is whether Mrs. Warfel's question about his taking the jackets home (she testified that they appeared to be clean ) was itself discriminatory or can be said to have provoked what followed. According to Spotts, he adequately and fairly answered the question when he explained the need. Whatever Spotts' reason for taking the jackets out (he testified that the boy to whom he handed them was his brother, whom he had asked to come for them), one can wonder whether he did so to have them cleaned since, although Mrs. Warfel's ability to see that he had handed out several was questioned, it stands undenied that, when told to return them, he brought four jackets back. A concern for jackets in good condition on the job would not lead to an otherwise unexplained collection of so many at his home. I do not credit Spouts' testimony concerning the need to take the jackets home. But this is not the main issue here, since admittedly he was not discharged and would not have been discharged merely for taking the jackets out ; he would have been reprimanded. Whatever Spotts' activities at other times, he was not engaging in concerted activi- ties when, complaining that someone else wore his jackets , he now said to Mrs. Warfel that this was "like a lot of other things." He correctly realized and said that his remark could "cause trouble." Mrs. Warfel then took him to her husband 's office, where she reported that Spotts was taking jackets home, and the latter explained 1 136 NLRB 463 POTTSVILLE COMMUNITY HOTEL CO., INC. 563 that he had done so to have them cleaned. With respect to Warfel's attitude toward taking jackets home, admittedly he did ask whether Spotts knew that he was not supposed to do that, the latter replying that he did not and had not been so notified, it does not appear that such a rule was formerly posted or reduced to writing as Mrs. Warfel claimed. One can understand Warfel's reaction, like his wife's, when she repeated Spotts' remark about "a lot of other things." Spotts now aggravated the situation by adding, "And the way you treat the people in the AFL-CIO " (That Spotts other- wise favored the Union and that the Company had knowledge of this are not at all clear. It appears from the report of the earlier hearing that the Company believed that it could "count on" Spotts.) Whatever Spotts had in mind and even if he were referring to the interference, restraint, and coercion which have since been found, this was hardly his function as an employee; it was plainly provocative if not insubor- dinate on this occasion when he had been charged only with taking his jackets home. Under the circumstances it cannot be said that discharge would have been unlawful. Whether a quitting or a discharge, what now occurred was prompted by these remarks in Warfel's office. Spotts was not discharged because he took jackets home. Because my finding, infra, that Spotts quit is not based on demeanor and invites a contrary finding, I have here briefly explained why I would find no violation even had he been discharged. The issue raised by the pleadings, whether this was a discharge or a quitting, can readily be resolved. According to Spotts, after his own AFL-CIO remark, Warfel declared, "If you don't like it, you can go home"; and Mrs. Warfel added, "Well, if that is not grounds to send anyone home, I don't know what is." Spotts then admittedly asked for his pay if he was being sent home and if he was being fired, was told that he would be paid when he returned his jackets, returned with four in about half an hour, and was paid. On the stand, Spotts testified also that Warfel had said that Spotts could go home if he did not like it; and that he assumed that he had been fired and therefore asked for his pay. About 5 days after September 28, however, he telephoned Warfel and asked whether he was through or whether the Company was going to call him back; and Warfel replied that Spotts had been unfair and was through, and referred to his walking off the job. These elements are concomitant; it would be straining to find that "unfair" referred to Spotts' concerted activities and that, although he had quit, he was discharged or refused reemploy- ment because of such activities. Warfel, admitting that he did not recall the entire conversation, testified that he told Spotts: "You quit. We have no opening." At- tempting to explain this belated inquiry, Spotts testified that he had reflected on the incident and now thought that it was disciplinary: he was now not sure that he was fired, this although he had been paid in full. I find more reliable and credible the testimony by Mr. and Mrs. Warfel on this point According to the latter, her husband, after Spotts' remarks, told him that he did not have to work there if he didn't want to, to which Spotts replied with a request for his pay. Warfel's version was that he asked why Spotts stayed on if, as he put it, nothing was right around there and he was dissatisfied; and that Spotts thereupon asked for his pay. Clearly this was no harmonious atmosphere. But quite as clearly, Spotts quit. Aside from the question of credibility, Spotts' own version of a condi- tional request for his pay was based on conditions which he himself stated: if he was being sent home, and if he was being fired. I would not find a violation because of acceptance of such a challenge. The record includes instances of combativeness and limited recollection by both Mr and Mrs. Warfel. On the other hand, Spotts was not a prepossessing witness. But I base my finding that Spotts quit on the recorded testimony on this point, and not on my observation of these three witnesses. We need not pursue the Company's reference to the failure to include this allegation in the proceeding which was heard last October. Nor need we decide that a tender regard for the Company led the General Counsel, despite his duty to proceed where it appears that the Act has been violated, to omit these matters from that earlier proceeding. If there did not appear to be merit in this respect at that time, that evaluation has now been confirmed. If it be urged that Spotts was quick on the trigger and that this incident is not to he regarded in isolation but in the context of the Company's attitude and its interference, the fact remains that what its representative here said was not unlawful. For the interference earlier found there is a remedy. But that context does not warrant the finding that the Company must permit taunts in the conduct of its business or that it is liable for a discharge which did not occur. 681-492-63-vol. 140-87 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Kehoe Kehoe was previously employed at the hotel for a few years, left, and then returned in September 1960, since when she had been employed as the telephone operator Monday through Thursday on the night shift, and in the dining room on Saturday as hostess from 11 a.m. to 2 p.m. and as cashier from 3 to 9:30 p.m. According to her testimony, the Company's attitude toward her changed markedly on July 25, when she made some prolabor or antimanagement remarks in addressing a question to counsel for the Company. While Kehoe was uncertain as to this date, as she was concerning other details (the General Counsel recognized that she was easily confused), she did know that it was the day before the July election, and that was held on July 26. The fact is, however, that whereas she had worked 5 days a week from October 1960 to June 24, 1961, she was thereafter employed for 3 or 4 days a week through August 26, except for 3 weeks when she did not work at all. Thus, the records contradict Kehoe's testimony that immediately after the incident of July 25, her employment became "less steady." Kehoe testified that Warfel at that time rudely told her that she would not be needed in the dining room any more, and that she replied that her fifth day that week would be Friday since she was then relieving a girl who worked on Friday. After checking with Ritzel, the chief clerk and Kehoe's switchboard supervisor, Warfel informed Kehoe that she would not work on Friday. We would thus at most have the question whether the denial of relief work on Friday in one given week was discriminatory. But no claim was made at the earlier hearing or could now be made in this connection; nor is there basis for finding that the cessation of Kehoe's employment in the dining room on Saturdays was either discriminatory or manifested a wrongful attitude by the Company. All of this preceded the 6-month statutory period, which began on July 31. As for the period immediately prior to and after that date, she did not work between July 23 and August 15; she then worked a total of 8 days prior to September 24, then apparently 3 days, her last being September 26. There is no claim of discrimi- nation even as to the portion of this time which lay within the statutory period. Thus, Kehoe's employment clearly had been irregular, and lawfully so. Her testimony that she had been employed on a steady basis until the latter part of July was untrue; if she meant that it was steady even if irregular, it was misleading, as was the recital of the "background" change in her dining room employment. Her employment continued irregular and with no claim of discriminatory change at least until September 26. The Company's discriminatory attitude was allegedly now or further manifested on September 26, when Ritzel told her that she was no longer needed; he would call her if needed. Two months later she received Warfel's letter of December 4, in which she was informed that because of business conditions the Company could not see its way to calling her in the immediate future; it was therefore removing her from the payroll. It appears without contradiction that a steady night telephone operator is no longer needed; her work is performed by the night clerk, whose position is only a few feet from the switchboard. In an emergency, the relief desk man (even the watchman) is called in to help; he can assist both on the switchboard and on the desk. An effort was made to teach Kehoe, who had greater seniority, to perform the night clerk's duties, but she was as unable to do this. As emergency needs arise, the relief deskman, Hosler (also referred to as Hasler), can be called on to assist both on the switchboard and on the desk. The records show that Hosler, who had worked 3 days a week when Kehoe was fully employed, has since continued at that rate and occasionally at 4 days a week; he has not taken over Kehoe's job in addition to his own. In fact, no one has been hired in Kehoe's place. From observation, I can understand why Kehoe was not given the desk clerk's job. Nor is there any suggestion of discrimination against her when Hosler was hired approxi- mately 11/z years ago. Presumably he was then replacing someone else; we do not have the details on this. Warfel testified that business reasons required curtailment of employment; this commenced at least 5 years ago, and from 1957 until December 4, 1961, employment at the hotel had declined from approximately 125 to some 86. Such curtailment indicates that the Company had pursued its lawful right to cut expenses. But these figures cast no light on the 1961 situation. Of more immediate significance might be any reduction in the number of employees at or about the dates which here concern us, and from those dates to the present. Such a general reduction does not appear. Yet our specific concern is with the elimination of Kehoe's job; POTTSVILLE COMMUNITY HOTEL CO., INC. 565 and on this the Company has sustained its defense that the action was taken to reduce expenses. As the restaurant schedule had been revamped to eliminate the Saturday relief, the night telephone operator 's work was also reassigned , as noted supra, and at an apparent saving of man-hours. As for the letter of December 4, the notifica- tion of removal from the payroll appears to have reflected no more than a recogni- tion of the existing situation concerning Kehoe's employment. C. Cerullo If additional animus needs to be pointed out for its possible bearing on the issues herein, we can note that the Intermediate Report in the earlier proceeding recited, but without any finding in that connection , that in January 1961 , Warfel discharged Cerullo because he allegedly lied about not distributing union cards, and rehiring him about a week later on the advice of counsel. Cerullo had been employed by the Company as a banquet waiter for approximately 5 years and had risen to the head of the banquet list, work assignments being made according to position on the list. On September 17, 1961 , explaining that he was going to school in Philadelphia and would be home on weekends only, he asked Puches, the assistant manager, to place hun at the foot of the list so that be would work on weekends only. Puches agreed, adding that Warfel would not be "aggra- vated" if he did not see Cerullo so much; and to this Cerullo replied that, if Puches meant that this was because of the Union, it was Wensel, a cook, who had started all the trouble. Cerullo worked on two weekends after that, evidently on Sunday, September 24, and Saturday, September 30; he went to the hotel every weekend from September 17 until about December 23, except for the weekend of Octo- ber 14 and 15. By letter dated October 20, 3 days after the earlier hearing, Warfel informed Cerullo that the Company could not give him weekend employment because of the uncertainty whether he would be in Pottsville on weekends, and because to give him such employment would be to discriminate against employees who were available at any time and on short notice; he was therefore dropping Cerullo from the payroll. The second reason recognized that assurance of employment for weekend banquets would constitute a preference , when the entire complement was not needed, for Cerullo over others on the list who were available for work throughout the week. Cerullo did not question the validity of this reason, nor has the General Counsel its sufficiency (as distinguished from argument against it as pretextual). We must bear in mind that it was Cerullo who sought to change the terms of his employment . Here again we recall the proof of the Company's antiunion attitude. But that the employment conditions which he requested were permitted for 2 weeks is no more proof of their reasonableness or of the Company's belief that they were reasonable than it is evidence of the Company's nondiscriminatory willingness to accommodate him in the meantime . Whether it took a month to realize that such conditions were not feasible or to get a decision by higher authority under the exist- ing circumstances with the Board hearing pending (the matter was brought before the Company's board of directors), or whatever other reasons there were for the de- lay in denying Cerullo the privilege which he sought, was not explored. Although the arrangement was allowed while the Company checked or weighed its right to re- fuse or the wisdom thereof, the refusal was unusual only to the extent that the request was Cerullo's absence on the weekend of October 14 and 15 itself indicated the uncertainty of the arrangement which he sought and concerning denial of which he now complains. The antiunion attitude was too well established at the earlier hearing to require the argument that the letter of October 20 was sent in reprisal for Cerullo's testi- mony; no additional motivation needs to be shown . But such motivation does not itself prove discrimination . In view of the longstanding attitude noted , whether the letter preceded or followed the hearing is of slight moment . The test is still its reasonableness ; and we cannot properly assume that the conditions requested by Cerullo would have been permitted but for such attitude. It has not been shown that the Company discriminated by its act of October 20. Elenausky, a waiter formerly and regularly employed by the Company until May 1961, who had left to get a better job while he attended college in Philadelphia, was visiting his former coworkers at the hotel on November 2, when he was asked to work at a banquet that evening. He had worked for several days in August and now did again on this occasion. This employment on a weekend, so far from establishing the reasonableness of the terms which were denied Cerullo, supports the Company's refusal. There is no evidence that Elenausky was now on the Company's employ- ment list or that, like Cerullo, he asked for any weekend priority over people not on 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the list, as a former full-time employee or as a part-time employee. He now worked on one Saturday without prior notice or call by the Company: he was at the hotel and was needed. This is hardly to be equated with Cerullo's request and his com- plaint that he was denied a commitment for future weekend employment. It does not appear that Cerullo would have been denied employment had he appeared when there was, as in Elenausky's case, need for another waiter; nor did he ever test this The uncertainty of Cerullo's availability mentioned as the first reason in the Com- pany's letter of October 20 was supported by Warfel's reference to the hazards of travel from Philadelphia in the winter. (We have seen that Cerullo did not come in on the weekend of October 14 and 15, which immediately preceded the Com- pany's letter.) Even if incorrect, the subjective estimate of uncertain availability cannot be said to be unreasonable or pretextual, even if it appear less persuasive than the other reason given in the letter, that weekend priority for him would discriminate against employees available at any time and on short notice. As for two new waitresses whom Cerullo saw at the end of October or the beginning of November, and who were given employment before he was, there is no evidence that this was unreasonable, as Cerullo himself recognized when he suggested that if additional people were needed for banquets or parties during the week, they should be added to the list and placed ahead of him. Cerullo also testified that on the third or fourth weekend in October, 2 or 3 weeks after his last employment, he saw some of the Company's coffeeshop waitresses doing banquet work; and when he asked Puches about this, the latter replied that he was not the boss. Even without explanation by the Company, and a failure or refusal by Puches to discuss the matter, the reference was to regular employees who were now doing extra work. It does not appear that Cerullo made known his availability before the assignment of these extra waitresses or that he was entitled to preference over them. The very nature of the arrangement which he proposed and the ex- perience in adding people to the list indicated that he could fairly be employed only as there was immediate need for a weekend extra. The letter of October 20 reflected Cerullo's statement that anyone used during the week would precede him on the list so that in effect he could have no permanent or significant position on the list, every new waiter would precede him, there being no evidence that anyone on the list worked weekends only. As Elenausky did (mention was made of a waitress who may have similarly been employed on a weekend after she left Pottsville), Cerullo could work as an extra employee if he were needed whether or not he was on the list or regularly "on the payroll; he might have had he sought such ad hoc employment instead of a formali- zation of a new status. That the Company was markedly antiunion is established. That Warfel would be pleased not to "see (Cerullo) around so much" may be accepted. But that it dis- criminated against him has not been shown. Reduced to simplest terms, this case involves three employees: Spotts quit and was abusive; Kehoe's job was eliminated, her duties assumed by other employees at a saving to the Company and without evidence of discriminatory selection; Cerullo's request for an impractical, unreasonable, and unique privilege was denied. Unless the Company's attitude, fully recognized here, warrants a per se finding that its actions were violative, discrimination has not been shown. Despite its threats and its attitude toward the Union and union activities, as found in the earlier case, and any aggravation thereof because of Kehoe's and Cerullo's testimony in that case, the evidence does not show that the Company discriminated within the meaning of Section 8(a)(3) of the Act or more specifically within the meaning of Section 8(a)(4). Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local 391, Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. The Company has not engaged in unfair labor practices within the meaning of Section 8(a)(3), (4), or (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety.