Treadway Inn of Princeton, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Treadway Inn of Princeton, Inc. and Rosa Cook La- cey, Johnny Cook, Eddie Cook, Etta Layton, and Flossie Fenderson. Cases 22-CA-7545-1, 22 CA- 7545-2, 22-CA-7545 3. 22-CA-75454, and 22- CA-7545-5 May 30, 1978 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDAI.E On January 12, 1978, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and the conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dr}) Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3. 1951). We have carefully examined the record and find no basis for reversing his findin.gs. Respondent further asserts in its brief that the Administrative Law Judge erred in "ignoring" certain testimony which conflicted with his findings As the Board stated in Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159. 1161 (1966), "The failure of [an Administrative Law Judge] to detail cornm- pletely all conflicts in the evidence does not mean . . . that this conflicting evidence was not considered." Further, "[tlhe absence of a statement of resolution of a conflict in specific testimony, or of an analysis of such testi- mony, does not mean that such did not occur." Stanlev Oil Compan,: In.., 213 NLRB 219, 221 (1974). Finally, as the Supreme Court stated in N 1, R. B. v Pittsburgh Steamship Company, 337 U.S. 656. 659 (1949), "IT]otal rejec- tion of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." We have examined the record in light of Respondent's contentions, and we find no merit in Respondent's exceptions in this regard Finally, Respondent contends that the Administrative Law Judge was biased against Respondent's witnesses, in favor of the General Counsel's witnesses, and that he had prejudged the issues before him. We have care- fully reviewed the record and Decision in light of Respondent's contentions. and conclude they are without merit. See, e.g., Super Tire Corporation. 227 NLRB 949 (1977). 2 In par. I(b) of his recommended Order, the Administrative Law Judge uses the narrow cease-and-desist language, "like or related," rather than the broad injunctive language, "in any other manner," which the Board tradi- tionally provides in cases involving unlawful discharges, such as those found here The discharges of the five employees involved herein for engaging in protected concerted activities are unfair labor practices which go to the very heart of the Act. Accordingly, we shall modify the Administrative Law Judge's recommended Order to require Respondent to cease and desist from in any other manner infringing upon the rights guaranteed its employees hy Sec. 7 of the Act. N. L R.B. v. Entwistle Mfg. Co., 120 F.2d 532. 536 (( A. 4, 1941); Skrl Die Casting. Inc., 222 NLRB 85 (1976). 236 NLRB No. 54 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Treadway Inn of Princeton, Inc., Princeton, New Jersey, its officers, agents, successors, and assigns. shall take the action set forth in the said recom- mended Order, as so modified: I. Substitute the following for paragraph l(b): "(b) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF TIHE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NoI discharge or otherwise discrimi- nate against employees for union reasons. WE WILL NOT in any other manner interfere with the rights of employees to engage in pro- tected concerted activities, and other rights un- der the Act. WE WILL reinstate and make whole Rosa Cook Lacey, Johnny Cook, Eddie Cook, Etta Layton, and Flossie Fenderson for loss of earnings since their discharge, with interest. TREADWAY INN OF PRINCETON, INC. DECISION STATEMENT OF THE CASE RALPH WINKLER. Administrative Law Judge: Upon charges filed on March 21, 1977, a complaint issued by the General Counsel on May 5, 1977, and an answer by Re- spondent, a hearing was held in Newark, New Jersey. on September 29 and November 23, 1977. Upon the entire record in the case, including my obser- vation of the demeanor of the witnesses, and upon consid- eration of Respondent's brief, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The Respondent, Treadway Inn of Princeton, Inc., a New Jersey corporation, operates a motel in Princeton, 530 TREADWAY INN OF PRINCETON New Jersey. All parties agree that it is an employer within Section 2(6) and (7) of the National Labor Relations Act, as amended. II THE LABOR ORGANIZATION INVOLVED Hotel, Motel, Bar, Restaurant and Cafeteria Employees, Local 741, herein called the Union, is a labor organization within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES All dates herein are in 1976 unless otherwise indicated. The Union was certified in 1970 as statutory bargaining representative of the employees at Respondent's Princeton facility and it apparently retained that status through the events in this case. The record does not show how active- if at all-the Union was during that period. In any event, Respondent filed a Representation Petition with the Board in July (Case 22-RM-484), and the Union then began or- ganizing or reorganizing the employees. A Board-conduct- ed election on Respondent's petition was held in Septem- ber; the Union won the election and on September 13 it was again certified as the bargaining representative. The complaint alleges that Respondent unlawfully dis- charged Rosa Cook Lacey, Johnny Cook, Eddie Cook, Etta Layton, and Flossie Fenderson on various dates in October. Respondent contends that it discharged Rosa La- cey and her two sons, Johnny and Eddie, because they "would not give assurances to Respondent that she and her sons would not commit any acts of physical harm against any employee or guest of Respondent and would not in any way create any damage to the property of the Respon- dent." Respondent's contention as to Layton and Fender- son is that they quit and were not fired. Ernest Wolfinger was the innkeeper, and Respondent agrees that housekeep- ers Janice Seely and Lois Ripperger also were statutory supervisors at material times. The employees usually had their luncheon together in a balcony area overlooking Respondent's dining room. On one such occasion in July, there being some 10 housekeep- ing and a few kitchen personnel present, Union representa- tives George Poulos and George Allemonos approached the lunching employees and solicited their interest in the Union and they distributed union designation cards to the group. Employees signed the cards and returned them at the time to the union representatives. Wolfinger ap- proached the group and told the union representatives to leave, which they did, and Wolfinger then asked the em- ployees who of their number had signed cards. One of the employees replied that all of the employees had done so, whereupon Wolfinger commented to the group that the cards "didn't mean anything." Poulos and Allemonos met a second time with the employees in similar circumstances at lunch several days later and Wolfinger once more came up and told the union representatives, according to Etta Layton's credible testimony, that "we don't want you on these premises, the next time you come on these premises I am going to have the cops put you off." The record does not show that any Inn patrons were in the balcony during these luncheon meetings, nor is there any showing that these meetings interfered in any other respect with hostelry operations. Lacey, meanwhile, became the principal employee or- ganizer among the Inn's housekeeping personnel and two of four organizing meetings (apart from the mentioned lun- cheon meetings) were held at her residence in August. Jan- ice Seely, the housekeeping supervisor, left Respondent's employ some 3 or 4 weeks after the September election, and Lois Ripperger took over Seely's housekeeper position. Seely was a wholly trustworthy witness, and she testified to the following effect: Within a week before the election Wolfinger told her that he did not want the Union and was "very concerned" about the upcoming election, that Rosa Lacey was the housekeeping employee primarily responsi- ble for getting employees to vote for the Union, and that he "would like to get rid of Rosa"; that, if the Union won the election, Respondent would change its policy of giving free lunches to employees and of not requiring them to clock out for their luncheon breaks, that he wanted Seely to find reasons for terminating Lacey and "any others" if the Union prevailed in the election, "and that he wanted Seely to issue warnings slips as a basis for such terminations. Respondent, upon the Union's election victory on Septem- ber 3, immediately discontinued its free lunch policy and began requiring employees to clock out for such period. Seely further testified that Wolfinger was "mad" because of the election results which he attributed to the house- keeping employees (they constituted the largest single group within the bargaining unit) and that he instructed her to issue warning notices so that "eventually" he would be able to fire all of these people in my [the housekeeping] department." Shortly before the election, Seely told Etta Layton that Respondent would go "strictly by the Book" should the Union get in, and Seely mentioned to Layton the changes in luncheon practices which Wolfinger had told Seely he would make and that Respondent would also discontinue its practice of permitting certain employees to report for work a half hour late in order to accommodate the school schedules of these employees' children. The Discharges It should be mentioned at the outset that Respondent does not raise any' contention respecting the job competen- cy of any of the alleged discriminatees in this case. Flossie Fenderson and Etta Layton were maids in the housekeeping department from February and April, re- spectively, until their respective separations on October 18 and October 17. They signed union cards and attended the Union's organizational meetings, and they were also pres- ent at the luncheon meetings when Wolfinger in effect ev- icted the union representatives. Fenderson was out sick for 3 days in October, and, in compliance with company policy, she called in each morn- ing to notify Respondent of her absence. Upon reporting for work after her illness, Fenderson checked the employ- ees' work schedule in housekeeper Ripperger's room. Not seeing her name on the schedule, Fenderson asked Ripper- ger concerning the matter and Ripperger referred her to 531 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wolfinger. Wolfinger told her she was fired. Fenderson ex- plained to Wolfinger that she had called in each day of her illness and she asked the reason for her discharge. Wolfing- er gave no explanation, except to repeat, according to Fenderson's credible account, "as far as he was concerned I was fired." Layton had a similar experience the previous day when she called Ripperger to inquire about her work schedule. Ripperger informed her that she was "no longer on sched- ule" and was fired. Ripperger gave Layton no explanation for the discharge.' Rosa Lacey, Johnny Cook, and Eddie Cook were dis- charged on October 21. They had signed union cards and attended union organizational meetings and, as appears above, Wolfinger knew of Lacey's prominent role in those activities. Lacey also had been union observer at the Sep- tember election. Lacey was hired as a maid; her son, Johnny, was a dish- washer and Eddie was a porter. Some time in the summer, Respondent began installing equipment to do laundry work that previously had been sent out for servicing and, some time before the Union got in, Lacey requested that Wolfinger assign her to the laundry because a bursitis con- dition made it difficult for her to perform maid functions. Wolfinger assigned her some laundry functions and he told her he would consider her for a full-time laundry position and give her a raise when the laundry facility was complet- ed. About a week before the September 3 election, Wol- finger called Lacey to his office and told her that the laun- dry was almost completed and that she would get a raise when it was finished. Wolfinger further told Lacey, accord- ing to the latter's trustworthy testimony, "that the Union was trying to get in but in a small place like Treadway Inn it would do more harm than good and that the things [be- nefitsj we were getting then we wouldn't get if the Union got in." A week or so after the election, Lacey asked Wol- finger about her raise. Wolfinger replied that no one could get a raise until the matter of a union contract was settled. Lacey was out ill during parts of October and there was a rumor that she was being taken off laundry work. Johnny Cook credibly testified as follows, concerning a conversa- tion he had with Wolfinger. A. I went to speak to Mr. Wolfinger, the innkeeper because I heard that my mother who was personally employed in the laundry was supposed to be put back as a maid. This would affect her pay and her physical well being I thought because my mother had a condition of bursitis and she couldn't work as a maid because of the cold and Treadway Inn has corridors so I asked Mr. Wolfinger why did he do that and how could that benefit Treadway or my mother because she could not perform that duty. And he told me he was sorry but that's the way it was and that's all, that the only explaining he gave me. Q. Proceed then. Ripperger testified that she had never fired anyone. She also testified that she did not recall the circumstances of Layton's or Fenderson's separa- tion and that she did not know whether Fenderson was separated during her (Ripperger's) employment as housekeeper. A. So I personally I felt like he was trying to force my mother to quit because he knew she couldn't per- form that duty. When I was leaving he had a smirk or laugh on his face and that caused some arrogance in me and I told him that he might be laughing now but he wouldn't be laughing later. Q. When you said it, did you raise your voice? A. No. Q. What happened after that? A. Later on that evening when I got home my mother received a phone call from Mr. Wolfinger and he told her that she was fired that I was fired and since she was my mother and Eddie was my brother, which are relatives they were fired also. The next day, Lacey, her two sons, and a union representa- tive went to Wolfinger's office to discuss their discharges. Wolfinger asked whether Johnny had threatened him and Johnny said he (Johnny) would not consider it a threat. Wolfinger did not request an apology, and he did not ask for any comments from either Lacey or Eddie and they made none so far as the record shows. Wolfinger told them only that Johnny was fired for threatening him and Lacey and Eddie because they were Johnny's relatives. Concluding Findings Not much more need be said here. For, in my opinion, the facts set forth above-based entirely on credible testi- mony which was uncontradicted-impels the conclusion that Respondent unlawfully terminated the five alleged dis- criminatees. The facts belie Respondent's assertion that the record lacks proof of Respondent's union animus. Wolfinger was opposed to the Union and he was determined to get rid of Rosa Lacey and other union adherents should the Union win the election. The Union did win in September, and Wolfinger immediately withdrew the aforementioned em- ployee benefits, as he had said he would, and he also in- structed Seely to lay the groundwork for terminating union supporters. According to Respondent, union members Layton and Fenderson quit the following month, and La- cey and her two sons were fired a few days later, purport- edly because Johnny Cook had threatened Wolfinger and because Lacey and Eddie Cook failed to dissociate them- selves from this "threat." Fenderson and Layton did not quit, they were fired. And Respondent's claimed reason for discharging Lacey and her sons is patently pretextual. Considering all the circum- stances of this case, I conclude that Respondent fired all five employees in retribution for the Union's election victo- ry and that Respondent thereby has violated Section 8(a)( ) and (3) of the Act.2 CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(6) and (7) of the Act. 2 Respondent's other conducl was not alleged to have violated the Act as it occurred before the cutoff period under Sec. 10b) 532 TREADWAY INN OF PRINCETON 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Rosa Cook Lacey, Johnny Cook, Ed- die Cook, Etta Layton, and Flossie Fenderson, Respon- dent has violated Section 8(a)( ) and (3) of the Act. 4. The foregoing unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(l) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, including reinstating the aforementioned five discriminatees and making them whole, in order to effectuate the policies of the Act. All backpay computations shall be in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950). and Florida Steel Corporation, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER3 The Respondent, Treadway Inn of Princeton, Inc., Princeton, New Jersey, its officers, agents. successors, and assigns, shall: I. Cease and desist from: 3 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, he adopted bh the Board and become its findings, conclusions. and Order, and all objections thereto shall he deemed waived for all purposes (a) Discharging or otherwise discriminating against em- ployees for union considerations. (b) In any like or related manner interfering with, re- straining. or coercing its employees in the exercise of their rights as guaranteed by Section 7 of the Act. 2. 'Take the following affirmative action which is neces- sarv to effectuate the policies of the Act: (a) Offer Rosa Cook Lacey, Johnny Cook, Eddie Cook, Etta Layton, and Flossie Fenderson reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions. without prejudice to their seniority or other rights and privileges, and make them whole, as set forth in "The Remedy" section, above, for any loss of earn- ings suffered as a result of the discrimination against them. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Inn in Princeton, New Jersey, the attached notice marked "Appendix." 4 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 22, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. In the event that this Order is enforced by a Judgment of a United States (Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National ,ahbor Relations Board." 533