El Paso Manor, Inc.

EL PASO MANOR, INC. 597 El Paso Manor, Inc. and Hotel, Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union, ALF-CIO.' Case 28-CA-1369. May 15,1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On January 10. 1967, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal of the complaint to that extent. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed cross-exceptions with a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 Trial Examiner's Decision, the exceptions, cross- exceptions, and briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications and additions: 1. We agree with the Trial Examiner that Respondent violated Section 8(a)(3), (4), and (1) of the Act by discharging Reymundo Chavez because he had engaged in protected activities on behalf of the Union, and because he had given adverse testimony against Respondent in a prior Board proceeding.2 Like the Trial Examiner, we conclude that the so-called Ferrell incident, upon which Respondent relies to support its contention that Chavez was discharged for cause, was seized upon by Respondent as a pretext to conceal the unlawful reasons for the discharge. Respondent contends that it discharged Chavez, a cocktail waiter in its Mardi Gras Club, on April 26, 1966,3 because a "serious complaint" had been filed against Chavez the preceding day4 by a customer named Ferrell. As set forth by the Trial Examiner, the record reveals that on April 25 Ferrell complained to Respondent's Club Manager Irwin that he had been discourteously treated by Chavez on April 20 while he (Ferrell) was a customer entertaining luncheon guests at the Club. Ferrell's complaint to Irwin alleged that Chavez (1) was slow in removing an extra place setting and chair from his table when asked to do so by Ferrell and that, according to Ferrell's testimony, Chavez finally "just shoved it over to someone else's table" causing Ferrell to be embarrassed; (2) was slow in bringing his beverage order and, later, in bringing his check; and (3) gave him intermittent hostile glances throughout the duration of the meal. In addition, however, Ferrell testified, without contradiction, that he also voiced his dissatisfaction with respect to the food service rendered that day by the food waiter, complaining to Irwin that (1) the food was slow in coming; (2) the waiter brought food which had not been ordered; (3) the food was served from the wrong side; and (4) the waiter brought only one piece of bread per guest. Unlike Chavez, however, the food waiter was neither discharged nor reprimanded as a result of the Ferrell complaint against him. Under all the circumstances herein, we are persuaded that Chavez was not discharged for cause, as asserted by Respondent. And, while we do not minimize the possible seriousness of the Ferrell complaint, we are convinced by the following facts and circumstances, which are more fully set forth by the Trial Examiner, that this incident constitutes a pretext to conceal Respondent's unlawful motive for discharging Chavez. Specifically, we rely5 on the disparity of treatment accorded Chavez, a known prounion activist, and the food waiter, as a result of Ferrell's complaint; Respondent's failure to explain the reason for the discharge in response to Chavez' inquiry; Respondent's failure to give prior warning to Chavez that his work was less than satisfactory; Respondent's failure to seek an explanation from Chavez with respect to the Ferrell complaint prior to the discharge; the shifting and inconsistent reasons advanced by Respondent in support of the discharge; Respondent's expressed hostility toward the Union; and, the timing of the discharge 3 weeks after the Trial Examiner's Decision issued in the previous case involving this Respondent, at the hearing in which Chavez gave testimony adverse to Respondent's interests. 2. The Trial Examiner found that Respondent's no-solicitation rule, as enunciated by its attorney, Hoy, on March 15 at a meeting with Chavez, did not ' Herein called the Union 2E1 Paso Manor, Inc, 159 NLRB 1649 ' Unless otherwise indicated, all dates are in 1966 4 The decision to discharge Chavez was made on April 25, which was Chavez' day off 5 Unlike the Trial Examiner, we do not rely on the fact that a 15- percent service charge appeared on the beverage check signed by Ferrell 164 NLRB No. 81 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violate Section 8(a)(1) of the Act. We find merit in the General Counsel's exception to this finding. Respondent contends that its rule against solicitation during working time was not limited to union solicitation, and that Hoy's remarks to Chavez were intended to secure his compliance with lawful rules. According to Hoy's testimony, he told Chavez on March 15 about employee complaints "that he was bothering them during his working time and during their working time; that he was passing out literature, union literature , and attempting to discuss some of this against the will of the employees which was against the [Respondent's] policies." Hoy further testified: I told him [Chavez] ... it was an established rule, of which he was aware, that there was to be no solicitation for any reason on his working time or on the working time of the people, the employees that he was attempting to solicit. I did not outline in detail the matters regarding which he could not solicit, but I told him that his views as to the Union were his own ideas; that management did not necessarily agree with what he said. I did say that he could not solicit on working time for any purpose ... I did explain that his duties were limited to the Mardi Gras Club premises and the kitchen premises, because he was performing Club duties, and that while he was there as an employee, he was to limit his activities and that he was not to wander through the hotel or any of the other premises; and, if he was soliciting any other part of the hotel, he would be disciplined. [Emphasis supplied.] Furthermore, by admitted on cross-examination that the March 15 meeting with Chavez was, in fact, held because of Chavez' continued solicitation on behalf of the Union. The breadth of Respondent's no-solicitation rule, as set forth by Hoy's testimony, unlawfully restricts the employees' right to engage in union activities on nonworking time in nonworking areas, and therefore is violative of Section 8(a)(1) of the Act.6 In addition, the record establishes, and we find, that Hoy's statements to Chavez on March 15 were intended to discourage his solicitation and other activities on behalf of the Union rather than to enforce a presumed valid no-solicitation rule. Accordingly, we also find that Hoy's remarks constituted a threat of reprisal against Chavez if he continued to engage in prounion activities and, therefore, violated Section 8(a)(1) of the Act.7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor ' Firestone Steel Products Company, 147 NLRB 462, 464, General Aniline & Film Corporation, 145 NLRB 1215, cf, Relations Board hereby orders that the Respondent, El Paso Manor, Inc., El Paso, Texas, its_officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in Hotel, Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization , by discriminatorily discharging any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (b) Discharging or otherwise discriminating against employees because they have given testimony in proceedings under the Act. (c) Threatening employees with discharge or other reprisals if they support or assist the above- named Union, or any other labor organization. (d) Maintaining and enforcing a no-solicitation rule which prohibits its employees from engaging in union solicitation on nonworking time in nonworking areas. (e) 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 Hotel, Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees 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 purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to Reymundo Chavez immediate and full reinstatement to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole Reymundo Chavez for any loss of pay he may have suffered by reason of the discrimination, in the manner provided in the section of the Trial Examiner's Decision entitled "The Remedy." Floridan Hotel ofTampa, Inc , 137 NLRB 1484 Daniel Construction Company, Inc , 145 NLRB 1397,1399 EL PASO MANOR, INC. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and interest due under the terms of-this Order. (e) Post at its place of business in El Paso, Texas, copies of the attached notice marked "Appendix."8 Copies of said notice, to be furnished by the Regional Director for Region 28, shall, after being duly signed by the Respondent's authorized representative, be posted by it for 60 consecutive days from the date of posting, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 28; in writing, within 10 days from the date of this Decision, what steps have been taken to comply herewith. " 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 "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order 599 from engaging in union solicitation on nonworking time in nonworking areas. 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, join , or assist Hotel , Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union , AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all of such activities . All of our employees are free to become or remain members, or to refrain from becoming or remaining members, of the above-named Union or any other labor organization. WE WILL offer Reymundo Chavez immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed , and make him whole for any loss of pay suffered by him because of the discrimination against him. EL PASO MANOR, INC. (Employer) APPENDIX Dated By (Representative ) (Title) 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 Hotel, Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, or any other labor organization, by discriminatorily discharg- ing any of our employees or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT discharge or otherwise discriminate against our employees because they have given testimony in proceedings under the Act. WE WILL NOT threaten our employees with discharge or other reprisals if they support or assist the above-named Union, or any other labor organization. WE WILL NOT maintain and enforce a no- solicitation rule which prohibits our employees Note: We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 500 Gold Avenue, S.W., Room 7011, Federal Building and United States Courthouse, Albuquerque, New Mexico 87101, Telephone 247-0311. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HENRY S. SAHM, Trial Examiner: This proceeding was heard before me in El Paso, Texas, on September 20 and 21, 1966, on the complaint of the General Counsel and the answer of El Paso Manor, Inc., hereinafter referred to as 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent.' The issues litigated were whether the Respondent engaged in unfair labor practices and thereby violated Section 8(a)(4) of the Labor Management Relations Act, as amended , 61 Stat. 136, herein called the Act,2 and Section 8(a)(1) by threatening employees with discharge if they engaged in union activities. The parties waived oral argument and the briefs filed by the General Counsel and the Respondent have been fully considered. During the hearing the Trial Examiner reserved ruling on Respondent's motion to dismiss the complaint. This motion is disposed of in accordance with the findings and conclusions stated in this Decision. Upon the entire record in the case and from observation of the demeanor of the witnesses , I hereby make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Respondent is a corporation duly organized under the laws of the State of Texas. At all times material herein, Respondent has operated and maintained a motel , private club, restaurant, and bar in the city of El Paso, Texas, employing approximately 115 people and is, and has been at all times material herein , continuously engaged at said place of business in offering hotel accomodations, food, and drink to the public. During the same period, Respondent purchased and received supplies, goods, materials, and equipment from States other than the State of Texas valued in excess of $50,000. It is found that Respondent is now, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union, namely, the Hotel , Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO , is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Reymundo Chavez, the alleged discriminatee, testified against Respondent3 in an earlier related unfair labor practice proceeding (El Paso Manor, Inc., 159 NLRB 1649), at a Board hearing on September 16 and October 4, 1965.4 Respondent discharged Reymundo Chavez, a waiter, contending he was "late to work," his "general attitude was unacceptable," particularly after a Board election, he engaged in union solicitation during his "duty hours" and he was discourteous to customers. The i The Respondent's answer was a general denial although Section 102.20 of the Board 's Rules and Regulations , Series 8, as amended, provide that Respondent "shall specifically admit, deny, or explain each of the facts alleged in the complaint , unless the Respondent is without knowledge . All allegations in the complaint , if no answer is filed, or any allegation in the complaint not specifically denied or explained in an answer filed . shall be deemed to be admitted to be true and shall be so found by the Board , unless good cause to the contrary is shown " In view of the fact that the General Counsel has failed to object , the answer, for purposes of this Decision , shall be considered to comply with the above-cited provision General Counsel denies this was the reason for his termination, alleging Reymundo Chavez was discharged because of his union activities. B. The Testimony Reymundo Chavez was employed by Respondent from August 17, 1964, to April 26, 1966. His supervisor during this entire period of time was Hector Chavez, Respondent's maitre d'hotel , whose supervisory status is not in dispute. Respondent acknowledges that Reymundo Chavez, the alleged discriminatee , was a prime mover of the organizational campaign , an ardent union proponent, a union observer at the Board-conducted election of Respondent's employees on May 6, 1965, which the Union lost, and that Reymundo's union activities were known to it prior to Reymundo's discharge on April 26,1966. When he was a witness at the Board hearing in ,September and October 1965 in which the Respondent was found to have committed various unfair labor practices , Reymundo testified that Respondent 's officials interrogated him as to his views concerning the Union and questioned him as to whether his two sons , who were found by the Board in the prior proceeding to have been discriminatorily discharged by Respondent, were members of the Union. Subsequent to the May 6 election and up to the time of his discharge , Reymundo Chavez distributed union literature to the employees , solicited them to sign union authorization cards, and extolled the virtues of unionism to his coworkers. On or about March 15, 1966, he was summoned to the manager's office and in the presence of Klink, the Company's president , Irwin, the manager, and another waiter named Vargas, Chavez was advised by Respondent's attorney, Robert H. Hoy, Jr., who is also one of the owners of the Respondent Motel , that company policy prohibited employees from engaging in union activities or any type of solicitation, union or otherwise, during working hours and that, if Chavez violated this rule, he would be subject to discharge . Chavez said nothing. On cross-examination , Hoy testified that Chavez "was stirring up" the employees and on two occasions prior to March 15, Chavez had been cautioned by Respondent's officials not to solicit for any purpose or talk union to employees during working hours. A few days later, Reymundo Chavez testified that his supervisor, Hector Chavez (no relation) said to him: "I wish you would cut this stuff about the Union because I do not want to be the one to have to discharge you."s When Reymundo Chavez was discharged by Hector Chavez on April 26, 1966, the latter said , when asked by Reymundo the reason for him being fired : "there is a very big complaint against you." When Reymundo asked him to be specific and give him the details of this "complaint," 2 Section 8(a)(4) provides in pertinent part that it is an unfair labor practice "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under the Act " ' Respondent's counsel acknowledged that Chavez ' testimony at this hearing could properly be characterized as "adverse" to the Respondent See G C. Exhs 3(a) and 3(b) which are in the transcript in the prior case , particularly pp. 147 through 214 and 695 to 711 5 Hector Chavez, when asked by Respondent's counsel on his direct examination if this occurred, did not deny it but equivocally testified that "[he] don't recall " EL PASO MANOR, INC. Hector said it concerned an argument Reymundo had with a customer. When Reymundo denied this and asked Hector the name of the customer, the table at which he was seated, and the date this was supposed to have occurred, Hector refused to elaborate. Hector Chavez' version of this incident and the circumstances under which he notified Reymundo he was fired is as follows: "I told him that he was fired. He wanted to know why. I told him that we had received a very bad complaint on him. He inquired who the person was that had complained ... I couldn't recall the name of the person at that moment-so I didn't tell him who the person was." On cross-examination, Hector testified: "I didn't think I had to tell him [the name of the customer] since he had done something wrong ... He had the right to ask why he was being discharged, but not the name of the customer who complained." Jerry Irwin, manager of the motel, testified that a customer named Ferrell came to the motel on April 25, 1966, and complained of rudeness and impertinence on the part of a waiter, whose name he did not know, which he claimed occurred on April 20. Ferrell's complaint was based on the waiter being slow in serving drinks and "abrupt" in removing an extra place setting when so requested by Ferrell.s Also, Irwin testified Ferrell told him that the waiter gave him "intermittent, unfriendly looks and glances"7 and the check "was slow in coming." Subsequent investigation by Hector Chavez, the maitre d', who is Reymundo's supervisor, testified Irwin, revealed that the waiter responsible for the purported derelictions was Reymundo Chavez, the alleged discriminatee. Hector Chavez testified that in the course of his investigation Ferrell told him "that he was treated real dirty by the waiter." Hector also testified that Reymundo's "attitude was real poor toward the customers ... to me he was not performing as well as he used to perform before the election ... I warned him on several occasions. I told him to keep up the good work, to do a good job." Hector then alleged an additional reason for his dissatisfaction with Reymundo, testifying that "he was quite often late to work ... constantly late" and that he had two altercations with customers other than Ferrell. In addition to the complaints testified to by Irwin, Respondent's manager, Ferrell, when he was on the witness stand, stated that "[he] had trouble getting a chair moved and that the service was slow and it became evident we were being toned down and it was not pleasant there. . . . [The waiter's service] was very lacking and he seemed reluctant to move the chair."8 Ferrell testified that not only was he dissatisfied with the waiter who served the drinks, who it is uncontroverted was Reymundo, but that he was displeased also with the food waiter, a man named Vargas, whom Ferrell testified was not only slow but also served them food he did not order. Ferrell also testified that he and his two guests were served only one piece of bread each and "the food was served from the wrong side." Irwin, Respondent's manager, testified that although the Ferrell incident in itself, was sufficient to have discharged Reymundo Chavez that he nevertheless 8 It seems Ferrell had two luncheon guests and that the table had four place settings. The extra place setting apparently annoyed Ferrell because, testified Irwin, Ferrell complained that he did not "lik[el ghosts at his table." 7 When Ferrell was asked on his cross-examination if he upbraided the waiter, he answered in the negative, explaining that he and the waiter "lust star[ed] each other down for the whole 601 instructed Hector, the maitre d'hotel, not to discharge Reymundo because he "did not want to cause any trouble when we were in the midst of union dealings." When Irwin referred the matter to Attorney Hoy as to what disposition should be made of Reymundo, Hoy decided to have Hector, his supervisor, notify Reymundo he was being discharged but for Hector "not to discuss in any detailed terms with Reymundo why he was being discharged; but rather to simply explain that there had been a serious complaint as far as the customer was concerned." Klink, president of the Respondent, testified that Reymundo's "attitude had worsened and deteriorated after the [Board] election took place" on May 5, 1965; that he reported to work late; that "in waiting on customers, he was hesitant in getting to them" whereas before the election Reymundo was "quick moving" and that he had warned him "about riling the help in the kitchen and for berading [sic] them." When Klink was asked what the reason was for his deciding to discharge Reymundo, he replied: "it was the culmination of a number of offenses in my mind that caused the decision to be made to fire Mr. Chavez." Reymundo Chavez was called to the manager's office on March 15, and admonished by Attorney Hoy with respect to complaints being received from other employees that Reymundo was attempting during working hours to proselyte them to unionism. Hoy's testimony concerning this incident continues as follows: I told Reymundo Chavez that it had come to our attention, through complaints from [Respondent's] employees . . . that he was bothering them during his working time and during their working time; that he was passing out literature, union literature, and attempting to discuss some of this against the will of the employees which was against the [Respondent's] policies. I told him then that it was an established rule, of which he was aware, that there was to be no solicitations for any reason on his working time or on the working time of the other people, the other employees that he was attempting to solicit. I did not outline in detail the matters regarding which he could not solicit, but I told him that his views as to the Union were his own ideas; that management did not necessarily agree with what he said. I did say that he could not solicit on working time for any purpose. I did not say specifically that he should not solicit for the Union. All I said was, "You cannot solicit for any purpose while you are on duty or while another employee that you are soliciting is on duty, while in the performance of your duties or while other employees are in the performance of their duties or her duties there." I did explain that his duties were limited to the Mardi Gras Club premises and the kitchen premises, because he was performing club duties, and that while he was there as an employee, he was to limit his activities and that he was not to wander through the hotel or any of the other premises; and, if he was soliciting any other part of the hotel, he would be disciplined, that if he did that, he was wrong; that he should not do that. I told him two hours it took to serve the drinks and food " " Ferrell requested the waiter to remove the unoccupied fourth chair from the table as there was only he and his two guests seated at the table When he asked him to remove the chair, testified Ferrell, the waiter "shoved it over into someone else's table and that was embarrassing [he] was very arrogant with me 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if complaints continued to come in to the management at the [Respondent ] Sheraton that some disciplinary action would have to be taken. I then asked him if he understood what I was saying and he indicated that he did. On cross-examination , Hoy denied, contrary to Reymundo 's testimony, that he told him he could not "solicit for the Union" but, claimed Hoy, he did not confine his order to union solicitation alone but instructed Reymundo that he "was not to solicit for any purpose while he was working or while the other people were supposed to be working when he was soliciting." Bernardo Vargas, who worked for Respondent from February 21 to July 31, 1966, as a food waiter and who was present at the meeting in the manager's office when Reymundo was admonished by Attorney Hoy, testified through an interpreter that Reymundo was told by Hoy to take care of his personal affairs "outside of the business and on his free time , that he was free to do whatever he wanted but on his free time" and not during working hours and outside the premises of the motel. "Also [continued Vargas], that on his free time and outside of the building, that [Reymundo ] could take care of his business , that he was the owner of his acts , but not in the building or during working hours. And, that they did not want to see him around the swimming pool or around the motel; for him to limit himself to his place of work which was the kitchen and the dining room ; and that they did not want him to be taking care of personal things there, that he was the owner of his own personal acts.... It was all in a very cordial or friendly way from both parties , from the one party's end and from [Reymundo's] part." Vargas also testified that he knew nothing about Reymundo becoming involved in an incident with a customer on April 20, which is the date when Respondent claims the Ferrell incident was supposed to have occurred. On cross-examination by the General Counsel, Vargas testified he did not recall Hoy saying anything regarding unions at this meeting in the manager 's office but that the only matter discussed was "personal affairs." Analysis of the Testimony and Conclusions The witnesses for the General Counsel and Respondent are in sharp conflict as to the salient issues in this proceeding . Nevertheless , after observing the witnesses, analyzing the record as a whole, and the inferences to be drawn therefrom , this conflict in testimony is resolved in favor of the version told by Reymundo Chavez, the alleged discriminatee . Based upon the foregoing recital of the facts in this case , the demeanor and deportment of the witnesses in testifying, and upon the substantial evidence on the record appraised as a whole, and on the generally consistent testimony of Reymundo Chavez which logically conformed with the uncontroverted chronological sequence of events and attendant circumstances , as well as certain'undisputed and demonstrable facts hereinafter explicated , his testimony is credited.' Conversely, Respondent's witnesses ' recital of their versions of the facts are not credited because, among other reasons hereinafter explained , Klink's, Hector Chavez', See section C, infra " Interstate Circuit, Inc v US , 306 U S 208, 225, 226, iV L R B v Wallick and Schwalm, 198 F 2d 477, 483 (C A 3). Concord Supplies & Equipment Corp , 110 NLRB 1873, 1879 " Paudler v Paudle,, 185 F 2d 901, 903 (C A 5), cert denied 341 U S 920 12 An employer may lawfully prevent its employees from Ferrell's, and Irwin's testimony was singularly vague and indefinite, particularly with respect to the quality of Reymundo's work performance becoming increasingly unsatisfactory after the May 5, 1965, election and up until his discharge on April 26, 1966. Furthermore, equivocal customer complaints voiced by Respondent's witnesses with respect to the quality of the dischargee's work which, in the main, are too intangible to refute, leaves Reymundo's discharge unsatisfactorily explained. Not only was the Ferrell incident remarkable in its triviality, lacking in specificity, and doubtful in its verity, but when considered in the light of the fact that neither Guido nor Ranchik, customers with whom Reymundo also was alleged by Respondent to have had altercations, did not testify, it is reasonable to assume their versions of what occurred would not have corroborated Hector Chavez' testimony.10 Respondent's failure to produce these witnesses at the hearing weakens its own witnesses' testimony and warrants drawing an inference that if produced, their testimony would not have been favorable to its case. The absence of these witnesses "not only strengthens the probative force" of the General Counsel's contention that Reymundo Chavez was discriminatorily discharged, "but of itself is clothed with a certain probative force."" Highly significant with respect to the veracity of the Respondent's witnesses' version of the Ferrell incident is that Ferrell apparently gave a tip to Reymundo Chavez although he denies he did so. Refuting Ferrell's denial is the beverage check (Resp. Exh. 1), which reveals a "service charge" of 15 percent was added to the bill and Ferrell's cogent admission that it was his signature which was on the check. It would appear, therefore, that the service Ferrell received from Reymundo was satisfactory; otherwise, it is reasonable to infer he would not have given this gratuity to Reymundo. Moreover, the Guido incident was insignificant and the other incident involved an inebriated customer named Ranchik with whom Reymundo courteously and patiently remonstrated when he called Reymundo a vile name. Respondent gave additional reasons in addition to the Ferrell, Guido, and Ranchik incidents for firing Reymundo; namely, that he was chronically late for work; his attitude was poor; Reymundo allegedly talked union to employees during working hours; 12 being away from his duty station and a vague complaint that a lady customer was "embarrassed by Reymundo some time back." Such shifting and inconsistent explanations and reasons for Reymundo's discharge are indicative of a discriminatory intent and is a circumstance indicating its motivation. to Moreover, the refusal of Hector, his supervisor, to give- Reymundo the reason for his discharge and purportedly refusing to identify the customer to whom he was purportedly discourteous and the refusal to disclose the specifics of the customer's complaint may, of course, be considered in determining the real motive for the discharge.14 It is found, therefore, that the reasons alleged for discharging Reymundo Chavez were spurious and a transparent pretext to screen Respondent's discriminatory motivation. soliciting for a union during working hours provided the ban is not promulgated or enforced for a discriminatory purpose, as for example , in response to union activity and not to maintain order Sera-Air, Inc , 161 NLRB 382 Dant & Russell, Ltd , 92 NLRB 307,320 Interboro Contractors, Inc , 157 NLRB 1295, 1301 EL PASO MANOR, INC. 603 Motivation is a subjective matter, which if found, must be found from objective circumstances established by the record after duly considering all countervailing testimony.is One of the objective circumstances in this case is Reymundo's intensive union activities , of which Respondent admitted it knew. Another objective circumstance is Respondent's union antipathy as evidenced by President Klink's testimony. Another circumstance is the timing of Reymundo's discharge in the context of his testifying adversely at the unfair labor practice hearing in the fall of 1965, and his precipitate and summary termination 3 weeks after the Trial Examiner's Decision issued in that case, without being given any reasons for his discharge other than vague and generalized ones. It is not believed that a nondiscriminatorily motivated employer would have acted so unreasonably under such circumstances . It is much more reasonable to infer that Reymundo' s union activities, which Respondent opposed and toward which it was hostile, and his subsequently testifying adversely to Respondent, was the real reason for his discharge. Considering all these objective factors, it is concluded and found that there is a causal chain linking Reymundo's discharge to both his union activities and the adverse testimony he gave at the Board's hearing. Moreover, when it is considered, and this is uncontradicted, that Reymundo was never personally reprimanded or the quality of his work criticized, nor given any warning that Respondent was not satisfied with his work, although Hector Chavez, his immediate overseer, directly observed and supervised his work for approximately 20 months, the reasons ascribed by Respondent for discharging him strains one's credulity. In fact, Reymundo, working for Respondent almost 2 years, significantly indicates he was a capable, qualified, reliable employee who had a satisfactory work record. Of course, his 2 years' length of service does not conclusively prove he was efficient, but it does indicate that the Respondent had not considered Reymundo's alleged derelictions of duty to be serious enough to merit his discharge, and it also has relevancy as to whether Respondent sincerely acted on those grounds and not on the ground of union activity. Nevertheless, with the advent of the Union, as well as the unfair labor practice hearing at which Reymundo testified in September and October 1965, and with the issuance of the Trial Examiner's Decision on April 4, 1966, finding against Respondent, whereupon Reymundo was precipitately discharged within 3 weeks from the issuance of the Decision with no warning that disciplinary action was imminent, shows it was done for the purpose of Respondent ridding itself of an irritating union proponent. Here Respondent's evidence itself furnished part of "reasonable cause for believing that the ground put forward by [it] was not the true one and the ground was because of union activity." 16 It would seem that Reymundo's conduct apparently became intolerable only after he persisted, subsequent to the election, in his union activities and testified adversely to Respondent in the related prior proceedings in which the Company was found to have committed unfair labor practices. It stretches credulity too far to believe that there was merely a temporal coincidental connection between his testifying in the prior case, and his abrupt dismissal 3 weeks after the Trial Examiner's Decision issued. It is believed that this unexplained temporal coincidence vis-a-vis the principal events in this case were really no coincidence at all, but rather part of a deliberate effort by Respondent to abort the employees' lawful organizational activities before they had progressed too far toward fruition by firing Reymundo, the Union's leading proponent. Although Respondent sought to justify the discriminatee's discharge, inter alia, on the basis of his discourtesy toward customers, the evidence did not establish the factual validity of the derelictions charged to him. Running throughout his discharge is the dominant theme that at no time, either before the election in May 1965, or after the election and issuance of the Trial Examiner's Decision, or at any time thereafter up until his discharge on April 26, 1966, was any complaint made to him with respect to the quality of his work. The trier of these facts is not impressed by the sincerity of a charge of unsatisfactory work performance where the employer makes no effort to inform his employee that he is dissatisfied with his work. Assuming there was a justifiable ground for dismissal , it is no defense if it is a pretext and not the moving cause. 17 Against the evidence of inefficiency and other derelictions of duty alleged by the Respondent for Reymundo Chavez' discharge, there has been weighed the summary nature of the termination, with no prior notice ever having been given this employee that his work was unsatisfactory, its timing in relation to Reymundo 's union activities, the discharge within 3 weeks after the Trial Examiner's Decision issued, the satisfactory work record of Reymundo, the length of time he was employed by Respondent, and Respondent's admitted knowledge of his union activities at the time the discharge was effectuated, all of which leads to the inescapable conclusion that Reymundo was discriminatorily discharged. This combination of circumstances is scarcely explainable except upon the hypothesis that Respondent was discriminatorily motivated in discharging Reymundo and makes no other explanation reasonable.is The particular faults urged by the Respondent as occasioning Reymundo's discharge, the record reveals, are indefinite, vague, and general accusations which, in the main, are too nebulous to refute. Moreover, these alleged faults were condoned for 2 years without any action being taken and without Respondent reprimanding " However, the question whether Respondent discriminatorily discharged Chavez presents only a question of fact, the key issue being Respondent's intent or motivation However, "intent is subjective" and can usually be established only by circumstantial evidence N L R B v Melrose Processing Co , 351 F 2d 693, 698 (C A 8) Indeed, "direct evidence of a purpose to violate a statute is rarely obtainable " N L R B v International Union of Operating Engineers, Local 101 [Sub Grade Engineering Co ], 216 F 2d 161, 164 (C A 8) The issue with respect to Chavez' discharge is whether the General Counsel sustained his burden of proving that the Respondent's action was motivated in significant part by the employee's union activity The Company does not have the burden of proving that it discharged him for the reasons stated by the Company And it is by now a truism that an employee may lawfully be discharged for no reason at all On the other hand it is likewise true that employers do not ordinarily discharge men "for no reason at all," and the Respondent here does not claim to have done so Moreover , judicial authority warrants inquiry into whether an employer 's asserted motive for discharge "withstands scrutiny," and goes so far as to declare that its failure in that regard can furnish support for a finding of unlawful motivation See, e g , N L R B v Dant & Russell, 207 F 2d 165, 167 (C A 9 ), and cases there cited " N L R B v Texas Bolt Company, 313 F 2d 761, 763 (C A 5) N L R B v Solo Cup Company, 237 F 2d 521, 525 (C A 8) 18 See Pacemaker Corporation , 120 NLR B 987, 991 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or disciplining him until he continued to persist in his union activities after the election and subsequently testified against Respondent. The more reasonable explanation would appear to be that it was not until Reymundo testified against Respondent in the hearing which concluded October 4, 1965, that the Respondent became disenchanted with the quality of his workmanship, or to state it in the converse, the Company had evidently tolerated his alleged shortcomings only to find his services no longer tolerable 3 weeks after his adverse testimony contributed to a finding in the Trial Examiner's Decision that Respondent was guilty of unfair labor practices. These undisputed and demonstrable facts, particularly Respondent's direct knowledge of Reymundo's union activities, indicate that the reasons advanced by the Respondent for its discharging this employee were a subterfuge and chosen ex post facto to screen its true motive. The alleged reasons for the discharge are doubtful as well as unconvincing, because they are not only inconsistent with the credible evidence but are also believed to have been discriminatorily motivated. Furthermore, it is not believed that the alleged customer incidents, or any other asserted reasons, actually supplied the motivation for the termination here involved, but rather, that the operative reasons were in fact discriminatory. It is concluded, therefore, that the real cause of Reymundo Chavez' discharge was not his inadequacy as a waiter but his interest in union activities and his testifying adversely to Respondent, particularly so, when consideration is given to the evident interrelationship and proximity of his discharge to the Respondent's knowledge of Reymundo's union activities as well as his testifying against Respondent.19 Under such circumstances, it is believed and found that the motivating factors for Reymundo's discharge were both his union activities and his testimony in support of the Union. The evidence set forth above, not further explained nor rebutted by the Respondent, and occurring at the time the Respondent was engaged in widespread unfair labor practices, as f d b th B d i C 28-CA-1218 20 1257 oun y persuades , oar n e ase , the Trial Examiner that Chavez' fictitious derelictions di h were seized upon as a pretext for the arge. sc On the basis of the foregoing and the entire record, as well as the suggestive indicia inherent in the circumstances surrounding Reymundo's discharge, and the weakness of the alleged justification, it is found (contrary to Respondent's contention that Reymundo was fired for cause) that his union activities as well as his having given testimony under the Act, adverse to Respondent at the Board's unfair labor practice hearing, were the real reasons and therefore, discrimination in regard to his hire and tenure of employment, thereby discouraging membership in the Union in violation of Section 8(a)(1), (3), and (4) of the Act.21 C. The Alleged Violations of Section 8(a)(1) Paragraph 8 of the complaint alleges that on March 15, 1966, Attorney Hoy threatened employees with discharge and reprisals if they engaged in union solicitation or other union activities while on company premises. The evidence adduced by the General Counsel reveals that this allegation is confined to Hoy summoning Reymundo Chavez to the office of Respondent's manager, and notifying him of the motel's policy with respect to solicitation on company premises, the details of which are set out in the section of this Decision entitled "The Testimony." In substance, Reymundo's version differs from Hoy's as to what transpired when he was summoned to the manager's office, in that Reymundo testified he was cautioned not to engage in union solicitation, whereas Hoy's recital states he admonished Reymundo to desist from engaging in any type of solicitation, union, charitable, or otherwise. The question of credibility raised by the above-referred to testimony is resolved in favor of the version related by Hoy and Vargas, a coworker of Reymundo's, whose testimony tended to corroborate Hoy. This is not to indicate that Reymundo is not believed to be a credible witness. On the contrary, it is the opinion of the trier of these facts that Reymundo Chavez was a forthright and honest witness, as shown by his testimony as to other aspects of this case, supra, which have been credited.22 It is believed that because of language difficulties (he testified through an interpreter), that Reymundo was unable to understand clearly what Attorney Hoy told him at the meeting on March 15 in the manager's motel office. It is felt that he was honestly mistaken and undoubtedly confused as to what Hoy exactly said at this meeting when it is considered that he was testifying with respect to technical and precise legal terminology bordering on the semantic and to an event which had occurred 6 months prior to the hearing. It is not believed Reymundo lied but rather that he was prey to the fallibility of the human memory, the infirmities of the human mind, the weakness of human understanding (particularly one not conversant with the English language), and the vagaries of recollection. It is a fact of life that even literate witnesses sometimes see, hear, and recall inaccurately or perhaps hear only what they want to hear. After forgetting much of what he sees or hears within a matter of days, or perhaps weeks, a witness typically appears at a hearing many months later, retaining only his most emotional memories. Nor is it believed that Attorney Hoy, an able lawyer, versed in labor law, would have been so flagrantly stupid or such a marplot and so incredibly naive as to senselessly compromise his client by limiting his admonition to Reymundo to union solicitation exclusively. Moreover, it is believed that Hoy, Respondent's lawyer, was not attempting to interfere with, restrain, or coerce Reymundo in his Section 7 organizational rights, but rather to notify i" "Coincidence in timing between events in a union organizing campaign and company activities which have an adverse effect thereon should be considered in reviewing NLRB inferences of illegal motivation for such acts " N L R B. v Schnell Tool & Die Corporation , 359 F 2d 39, 45 (C A 6) N L R B v Montgomery Ward & Co , 242 F 2d 497 , 502 (C A 2) 20 159 NLRB 1649 21 N L R B. v Stowe Spinning Company, 165 F 2d 609, 615 (C A 4), N.L R B. v Elwood C Martin, d/b/a Nemec Combustion Engineers , 207 F 2d 655 (C A. 9), enfg 100 NLRB 1118 , Bausch & Lomb Optical Company, 107 NLRB 790, 826 , Lingerie , Inc, 101 NLRB 1374, 1377-78 Whether Reymundo Chavez' discharge is viewed as a violation of Section 8(a)(3) and/or 8(a)(4) is immaterial as the remedies are substantially the same Southern Bleachery and Print Works, Inc , 118 NLRB 299, 300, In 4 22 See the section of this Decision entitled "Analysis of the Testimony and Conclusions " "It is no reason for refusing to accept everything that a witness says, because you do not believe all of it, nothing is more common in all kinds of judicial decisions than to believe some and not all " N.L R.B v Universal Camera Corporation, 179 F 2d 749, 754 (C A 2) EL PASO MANOR, INC. 605 him what he legally could do and not do with respect to the Union's organizational campaign. It is found, therefore, that it has neither been proved by a preponderance of the evidence nor has the General Counsel sustained the requisite overall burden of proving that Hoy engaged in any illegal conduct. Accordingly, it is recommended that the allegation of the complaint with respect to the alleged unfair labor practice on the part of Hoy be dimissed.23 The record reveals that Hector Chavez, a supervisor within the meaning of Section 2(11) of the Act, warned Reymundo on or about March 18,1966, as follows: I wish you would cut this stuff about the Union because I do not want to be the one to have to discharge you.24 By such conduct, Respondent, through its supervisor, Hector Chavez, whose threat is imputable to the Respondent, engaged in unfair labor practices in violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in connection with the operations of the motel described in section I, above, 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. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It is therefore recommended that the Respondent Company offer to the discriminatee, Reymundo Chavez, immediate, unconditional, and full reinstatement to his former or substantially equivalent position25 without prejudice to his seniority and other rights, working conditions, and privileges. Furthermore, it will be recommended that the Respondent make the said discriminatee , Reymundo Chavez, whole for any loss of earnings suffered since his discharge, by reason of the discrimination against him by payment to him of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the Respondent's proper offer of reinstatement, less his net earnings during said period;26 the backpay with interest at the rate of 6 percent per annum, shall be computed on a quarterly basis in the manner established by the Board in F.W. Woolworth Company, 90 NLRB 289, and approved in N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344. It is also recommended that the Respondent preserve and make available to the Board or its agents, upon request, payroll records, social security payment records, timecards, personnel records and reports, and all other necessary or useful records to facilitate and determine or compute the amount of backpay due. Inasmuch as the discharge of employees for reasons of union affiliation or concerted activity has been regarded by the Board and courts as one of the most effective methods of defeating the exercise by employees of their rights to self-organization, it is believed that there is danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in the past.27 It will be recommended, therefore, that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The operations of El Paso Manor, Inc., affect commerce as defined in Section 2(6) and (7) of the Act. 2. Hotel, Motel, Restaurant Employees and Bartenders Local No. 628 of the Hotel & Restaurant Employees and Bartenders International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discharging and discriminating with regard to the hire and tenure of employment of Reymundo Chavez, Respondent discouraged membership in the aforementioned Union and committed an unfair labor practice within the meaning of Section 8(a)(1), (3), and (4) of the Act. 5. By discharging Reymundo Chavez because he gave testimony under the Act in Board proceedings, the Respondent violated Section 8(a)(4) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 7. It is recommended that the allegation in paragraph 8 of the complaint that Attorney Robert H. Hoy threatened Reymundo Chavez with discharge or other reprisals if he engaged in union solicitation or other union activities while on company premises be dismissed. [Recommended Order omitted from publication] 21 Cf Montgomery Ward & Co, Inc, 145 NLRB 846, second paragraph of £n 1 21 See section B, supra, and fn 5 °i The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827 16 Crossett Lumber Company , 8 NLRB 440 , Republic Steel Corporation v N L R.B., 311 U S 7. 17 N.L.R B v Entwistle Mfg Co , 120F 2d 532, 536 (C.A 4)