Holiday Inn of America of San Bernardino

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernardino and Reave Nichols. Case 31-CA-3974 June 28, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 29, 1974, Administrative Law Judge George Christensen issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge except as modified herein. We agree with the Administrative Law Judge's finding that Respondent, in violation of Section 8(a)(3) and (1) of the Act, discharged Charging Party Nichols for filing a grievance over employment condi- tions and for seeking his Union's aid in processing that grievance.' We disagree, however, with the Ad- ministrative Law Judge's conclusion that the miscon- duct attributed to Nichols during his last 7 1/2 months on the job warrants withholding a reinstate- ment and backpay order such as the Board would ordinarily issue to remedy an unlawful discharge like the one found here. While Nichols may have fre- quently displayed towards his customers, his fellow employees, and his supervisor a lack of decorum and civility which must be deemed less than praisewor- thy,' the record shows that Innkeeper Cunner at no time after learning of Nichols' misconduct took action to indicate the Employer's conclusion that he had proved himself unfit for further employment as a bar- tender at the Inn' In these circumstances, for us to t While Respondent at trial contended that it had discharged Nichols for his job misconduct, no exceptions were taken to the Administrative Law Judge's finding that it was his grievance activities for which Nichols was discharged 2 While Nichols at trial denied engaging in the misconduct attributed to him by Respondent's witnesses, no exceptions were taken to the Administra- tive Law Judge's finding that Nichols did engage in such misconduct The General Counsel 's exceptions were directed only to the Administrative Law Judge's conclusion that Nichols' misconduct warrants withholding a rein- statement and backpay order 3 In response to some of the reports of Nichols' misconduct. Cunner did nothing at all In response to other reports, she talked to Nichols but aban- withhold a reinstatement and backpay order would be effectively to deny Nichols a remedy for his unlawful discharge; and for us to base such a denial on a judg- ment that Nichols' misconduct disqualified him for further employment at the Inn would be needlessly to reject Respondent's own repeatedly demonstrated judgment to the contrary." We note that nothing in this decision should be interpreted to preclude the Respondent from spec- ifying, for the future, reasonable rules of conduct ap- plicable to all employees or from enforcing such rules in a nondiscriminatory manner. We add this admit- tedly somewhat gratuitous comment because we wish to be sure that neither the discriminatee here nor any other employee could construe this decision as some kind of Federal license to engage in the kind of con- duct here involved. On the other hand, an employer who freely tolerates such conduct may not suddenly find it offensive only when committed by an employ- ee who exercises his rights to engage in concerted activity. Accordingly, we shall amend the Administrative Law Judge's order to require that Respondent offer Nichols immediate and full reinstatement to his for- mer position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered as a result of the unlawful discrimination against him by payment to him of a sum of money equal to the amount he would have earned from the date of his discharge to the date of such offer less net earnings, if any, during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Wool- worth Company, 90 NLRB 289, and including interest at the rate of 6 percent per annum in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor doned the matter when he denied the reports . In response to one report of Nichols' drinking after hours, she ordered him off the Inn's property but did nothing on hearing other such reports In response to reports of Nichols' remaining at the inn after hours, she issued a written warning but did nothing on heanng reports of his ignoring the warning ° The cases cited by the Administrative Law Judge as authority for with- holding a reinstatement and backpay order are distinguished from the pre- sent case by the absence of employer condonation of employee misconduct. N L.R.B. v. Big Three Industrial Gas & Equipment Company, 405 F 2d 1140 (C A 5), N L.R B v. Breitling Bros Construction Company, 378 F,2d 663 (C A 10, 1967), N,L R B v R C Can Company, 340 F 2d 433 (C A 5, 1965), Uniform Rental Service, Inc., 161 NLRB 187, Offner Electronics, Inc, 134 NLRB 1064 In each case the misconduct deemed to disqualify an employee for further employment with respondent employer was unknown to the em- ployer while the employee remained on the Job No behavior by the employer could therefore be held to have contradicted a judgment that the employee was disqualified by his misconduct for further employment with respondent employer, 212 NLRB No, 46 HOLIDAY INN OF AMERICA OF SAN BERNARDINO Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernardi- no, San Bernardino, California, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as modified below: 1. Insert the following as paragraph 2, renumber- ing the present paragraph and the subsequent para- graphs accordingly: "2. Offer to Reave Nichols immediate and full re- instatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole, in the manner provided in the Decision, for any loss of earnings resulting from the discrimination against him." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Rela- tions Act by discharging employee Reave Nichols for filing a grievance with his Union and with higher management concerning his terms and conditions of employment, has ordered us to post this notice advis- ing you that: WE WILL NOT lay off, discharge, or otherwise discriminate against any of our employees for filing grievances with their Union or with higher management concerning their rates of pay, wag- es, hours, or other terms and conditions of em- ployment. WE WILL offer to Reave Nichols immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position, without prejudice to his se- niority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered as the result of the discrimination against him. APIco INNS OF CALIFORNIA, INC. d/b/a/ HOLIDAY INN 281 OF AMERICA OF SAN BER- NARDINO (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room 12100, 11000 Wilshire Boulevard, Los Angeles, California 90024, Telephone 213-824-7351. DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Administrative Law Judge:, On February 6, 1974, I conducted a hearing at San Bernardino, California, to try issues raised by a complaint issued on December 26, 1973,1 on the basis of a charge filed by Ni- chols on September 11. The complaint alleged that Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernardino 2 violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (hereafter called the Act), by discharging Nichols for filing a grievance con- cerning his working conditions and/or seeking the aid of his Union in resolving his grievance. The Inn conceded it discharged Nichols but denied any discriminatory motivation. The single issue is whether or not the Inn discharged Nichols for attempting to process his grievance. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses, argue, and file briefs. Briefs have been received from the General Counsel and the Inn. Based upon my review of the entire record, observation of the witnesses, perusal of the briefs, and research, I enter the following: FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the Inn admitted, and I find that the Inn at all times pertinent was an employer engaged in commerce in a business affecting commerce and that Local 535, Culinary Workers, Bartenders and Hotel Service Em- ployees, AFL-CIO, was a labor organization, as those terms are defined in Section 2(2), (5), (6) and (7) of the Act .3 1 Read 1973 after all subsequent date references omitting the year. 2 Hereafter called the Inn. 3 Local 535 shall hereafter be referred to as the Union. At all pertinent Contin ued 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. THE ALLEGED UNFAIR LABOR PRACTICE A. Introduction According to Nichols' sworn testimony, which is credited, he was hired by the Inn in April 1971 as a bartender.4 Between April 1971 and December 1972, the Inn's restau- rant and cocktail lounge was staffed by a small number of employees; one day bartender, one evening bartender, and one evening cocktail waitress manned the lounge ; one res- taurant manager and three waitresses manned the restau- rant.' Between April 1971 and December 1972, Thomas Tirado was the innkeeper, Nichols was the night bartender, and Doric Cunner was the restaurant manager. In December 1972, Cunner replaced Tirado as innkeeper. Shortly after that change, Cunner shifted Nichols from his position as evening bartender to the position of day barten- der, with hours extending from 11:30 a.m. to 7:30 p.m. During the period between December 1972, when Cunner succeeded Tirado as Innkeeper, and August 3, when Cunner discharged Nichols, Cunner continued to function as inn- keeper and Nichols continued to function as day bartender. Several women worked as cocktail waitresses during this period, with Ruth Larcomb in that capacity from April through August 3, with hours from 6 p.m. to 2 a.m. Over the entire time period, Clarice Orum and Dorothy Peters served as restaurant waitresses. Orum's hours were 5 to 11 p.m. and Peters' hours were 1:30 to 9:30 p.m. Cunner lived on the premises and had no specified hours. B. Nichol's Conduct, December 1972-August 2 Cunner, Larcomb, Orum, and Peters observed or heard Nichols perform or make the following actions and state- ments between December 1972 and August 2: 6 1. Two cocktail waitresses advised Cunner they quit be- cause Nichols stated he would make it difficult for them to continue to work in the cocktail lounge unless they engaged in sexual activities with him. 2. Nichols called Larcomb to where he was seated with a customer in the cocktail lounge drinking, solicited Lar- comb to engage in an act of prostitution with the customer for a specified sum, and called her stupid when she declined. 3. Nichols on several occasions, in the presence of wait- resses and customers in the cocktail lounge, when bringing bottles of beer to the serving area, held the bottles to his fly and pretended to urinate in them for the supposed amuse- times Local 535 was recognized by the Inn as the exclusive collective-bar- gaining representative of Nichols and other employees of the Inn and was party to an agreement with the Inn covering their rates of pay, wages , hours, and working conditions. 4In his July 31, 1973, grievance letter addressed to the Union, Nichols stated he was employed by the Inn as a club manager in February 1970 5 The hours of the waitresses varied, but normally three waitresses were on duty. Additional waitresses were called in as needed for parties or banquets. An innkeeper was in overall charge of both the lounge and the restaurant 6 The testimony of Cunner, Larcomb, Orum, and Peters concerning these incidents and statements is credited , inasmuch as one or more testified to the various acts or statements, many were corroborated, their testimony was forthright and direct, and Nichols' denials either were general or no denial was made ment of, the bar's customers. 4. Nichols on several occasions addressed derogatory and profane remarks regarding Cunner's personality and practices to employees and customers at the cocktail lounge, including a remark that Cunner would not be there for very long. 5. Nichols frequently remained on the premises after completion of his work shift, in violation of Inn policy. 6. Nichols frequently drank with customers on the prem- ises both on and off duty, in violation of Inn policy. 7. Nichols while on duty frequently expressed to Inn em- ployees and customers his dislike for mixing certain drinks, in profane terms. 8. Nichols regularly made lewd remarks and suggestions and engaged in profanity. C. Cunner's Efforts to Improve Nichol's Conduct Cunner discussed with Nichols the reports she received from two cocktail waitresses regarding Nichol's overtures as a reason for their quitting. Nichols denied the overtures. The matter was not pursued further? While Larcomb reported the solicitation incident to Cun- ner, there is no evidence Cunner ever discussed it with Ni- chols or took any action with regard to it. There is no evidence that the beer bottle incidents were ever reported to Cunner or that she ever discussed them with Nichols or took any action concerning them. Cunner conferred with Nichols several times concerning his derogatory remarks concerning her and requested he bring any 'complaints he had about her conduct to her. Nichols denied making the statements and Cunner took no further action. Cunner repeatedly discussed with Nichols his practice of remaining on the premises after completion of his work shift, but he ignored her admonitions to check out his cash and leave immediately on completion of his shift. She issued one written warning notice to Nichols regarding this infrac- tion of the rules on February 25. Nichols continued to ig- nore the rule thereafter, especially when Cunner was off the premises. Cunner received reports of his continuing to re- main on the premises after February 25 but, on ascertaining that he had not created any disturbances, did not say any- thing to Nichols. She also tolerated the presence of other employees on the premises after completion of their work shifts. With reference to Nichols drinking after completion of his work shift, on one occasion, when he was involved in a disturbance, she ordered Nichols off the property. On other occasions, she took no action. With reference to Nichols' frequent expression of dissat- isfaction or dislike for mixing certain drinks, there is no evidence that Curtner ever spoke to Nichols about this; however, Cunner did speak to Nichols on several occasions, when waitresses reported he was engaged in conversations at the other end of the bar and refused to mix drinks for them. In each of these instances Nichols denied that he had refused to make drinks for the waitresses and stated that Cunner should not take the waitresses' word for these inci- C Both conversations occurred prior to April HOLIDAY INN OF AMERICA OF SAN BERNARDINO 283 dents. In each case Cunner accepted Nichols' position. - Cunner spoke to Nichols several times about his consis- tent use of profanity. Nichols replied that profanity was commonly utilized both by the employees and the custom- ers and made no change in his speech habits. On numerous occasions Curtner pleaded with Nichols to give her more cooperation. His normal response was to praise the regime of the prior innkeeper, Tirado, and recite the fact there were no problems while Tirado was innkeeper. F. The Discharge On August 3, when Nichols arrived at the Inn (at approxi- mately I1 a.m.), he was called into Cunner's office by her and informed that he was discharged. Cunner gave him his pay in cash, including 4 hours' call-in pay for August 3, and requested that he sign for the pay. She also made the follow- ing statements: "I understand that you wrote your Union and also Memphis. I am not going to have this anymore. You are a troublemaker. I am the Innkeeper and you are not." 13 D. Nichols' June 24 Complaint to the Union and Cunner's Reaction On June 24 Nichols complained to the Union regarding "some situations." s That afternoon, Union Business Representative Gino Schilepe arrived at the Inn and talked with Cunner.9 On the following day, 'Cunner had her secretary-book- keeper, Naomi Ellison, type the following written warning notice addressed to Nichols: "This will be the last notice given to you for your insubordination and laxity in your work. Our Company rules would be adhered to." 11 Cunner handed Nichols the warning notice on June 25, stating at the time she handed it to him that: "I understand you contacted the Union. You are constantly doing this. I am not going to have this happen all the time." Cunner also accused Nichols of being a troublemaker." E. Nichols' July 31 Complaint to the Union and the Inn On July 31 Nichols addressed a letter to the president of the Union, with a copy to the president of Cunner's employ- er, Servico, Inc.12 In that letter, Nichols represented that: He was employed by the Inn as a club manager in 1970; Tirado was then the innkeeper; he and Tirado got along beautifully; following Cunner's appointment as innkeeper, she changed his work shift from 4 p.m.-midnight to 11:30 a.m.-7:30 p.m.; Cun- ner required him to punch in not earlier than 11:30 a.m. and punch out not later than 7:30 p.m., but his duties required he begin work at 11 a.m. to set up the bar and to remain after 7:30 p.m. to instruct the evening bartender concerning liquor supplies, etc.; this requirement was unfair and unjust; and problems arose only after Cunner succeeded Tirado. B Nichols did not testify to the substance of his complaints. 9 Cunner corroborated Nichols' testimony that she conferred with Schilepe on June 24, but did not testify to the substance of Nichols' complaints which Schilepe discussed with her She did testify that she pleaded with Schilepe and other union representatives to persuade Nichols to give her greater cooperation. 1 Before having Ellison type the warning notice, Cunner commented to Ellison that she was unhappy over Nichols ' constant complaints to the Union about her. Cunner conceded that she made a statement of this nature to Ellison. 11 While Cunner denies making the statements just quoted , Nichols' testi- mony to that effect is credited , particularly in view of Ellison's testimony and Cunner's admission that she expressed to Ellison her unhappiness over Ni- chols' contacting the Union immediately prior to the time the notice was typied. 2 Servico, Inc., is the parent company operating the Inn. i G. Analysis and Conclusions It is readily apparent that friction between Curtner and Nichols began immediately after Curtner was appointed Innkeeper, in December 1972.14 Nichols' hostllityl5 found vent in his June and July complaints against Cunner ad- dressed to his Union and her superior. Their feud ended in Nichols' discharge, which Cunner believed was the only way she could end Nichols' campaign to undermine 16 and displace 11 her. When Cunner learned of Nichols' July 31 letter to her superior criticizing her performance, her toler- ance of Nichols' lewd conduct, profanity, defiance, and personal vilification ended. During her tenure as innkeeper, she gave Nichols the benefit of the doubt when he denied making indecent proposals to two cocktail waitresses; she condoned his defiance of her orders to stay out of the lounge after finishing work; she accepted his denial that he made belittling remarks about her to customers and employees; but she could not accept his attempt to affect her continued employment. I therefore find and conclude that the Inn, by Cunner, discharged Nichols on August 3 because he sent a letter to his Union and to Cunner's superior on July 31 containing a complaint that his job required him to report for work one-half hour before his starting time and to remain for an undetermined period after his quitting time, but that Cun- ner required him to clock in at his starting time and to clock out at his quitting time; and that there had not been any problems at the Inn until Curtner replaced Tirado as inn- keeper. Inasmuch as the July 31 complaint may be validly de- fined as a grievance over wages, hours, and working condi- tions, I further find and conclude that the Inn violated Section 8(a)(3) and (1) of the Act by discharging Nichols for 13 This finding is based on Nichols' testimony, which is credited. While Cunner denied she knew about the July 31 letter sent by Nichols to the Union and her employer at the time she discharged Nichols, Ellison testified to knowledge of the letter prior to the discharge. Cunner's denial is likewise subject to doubt because, while she stated that she discharged Nichols for the conduct heretofore cited, and particularly after an incident the evening of August 2 which precipitated her decision to discharge Nichols, she was unable to state what the August 2 incident was. Cunner's denial is not credited. 14 The February 23 warning notice served on Nichols by Cunner over his remaining on the premises after completion of his shift was his third warning. 15 Evidenced by his critical and profane remarks about Cunner addressed to customers and employees during Cunner's tenure as innkeeper. 16 Demonstrated by his refusal to abandon his use of profanity after Cun- ner spoke to him about it, his defiance of her orders to leave the premises after completion of his shift, and his verbal attacks against her addressed to customers and employees. 17 Evidenced by his comments to customers and employees. 284 filing that complaint. DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. At all pertinent times the Company was an employer engaged in commerce in a business affecting commerce and the Union was a labor organization, as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. At all pertinent times Dorie Cunner was a supervisor and agent of the Inn acting on its behalf. 3. The Inn discharged Nichols on August 3 because he sent a letter to his Union and to Cunner's superior on July 31 containing a grievance over his wages, hours, and work- ing conditions and a complaint over the way Cunner was executing her duties as Innkeeper and thereby violated Sec- tion 8(a)(3) and (1) of the Act. 4. The unfair labor practice herein specified affects com- merce as defined in the Act. THE REMEDY It having been found that the Inn violated the Act by discriminating against an employee for filing a grievance with his Union and higher officials of the Inn, the Inn shall be ordered to cease and desist from discriminating against its employees for filing grievances and to post a notice to its employees stating it will not so discriminate in the future. Normally where findings have been entered that an em- ployer has discharged an employee for engaging in protect- ed, concerted activities, the employer is ordered to reinstate the employee to his former position, with backpay for the time he has lost. Under the circumstances of this case, however, I shall not so recommend. Findings have been entered above that Nichols, during the first 7 months of Cunner's tenure as innkeeper, defied her warnings and edicts, rejected her attempts to secure his cooperation, ignored her remonstrances over his use of pro- fane language, and consistently sought to undermine her by his remarks to other employees and to customers. Repeated verbal and written warnings failed to dissuade him from this course of conduct. The lounge-restaurant work force at the Inn is small. If the restaurant and lounge business is to prosper, close coop- eration between the bartender and the waitresses and a friendly, respectful attitude to and before the public by those employees is required. It is clear that Nichols' conduct during those 7 months met none of these standards. He was profane, lewd, disrespectful, uncooperative, and disruptive, despite repeated warnings and pleas to change his ways and his attitude. It would not suit the purposes of the Act to direct his reinstatement. The Board, wielding its discretion to fashion remedies to suit the circumstances of the cases before it, has on numer- ous occasions in the past exercised that discretion to deny reinstatement to a discriminatorily discharged employee under circumstances such as these.' That discretion should be exercised in this case to deny Nichols' reinstatement. Upon the foregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER 19 Apico Inns of California, Inc. d/b/a Holiday Inn of America of San Bernardino, its officers, agents, successors, and assigns, shall: 1. Cease and desist from discriminating against its em- ployees for filing grievances or complaints concerning their rates of pay, wages, hours, and working conditions with their union or higher officials of the Inn. 2. Take the following affirmative action: (a) Post at its restaurant and cocktail lounge in San Ber- nardino, California, copies of the attached notice marked "Appendix." 20 Copies of the notice, on forms provided by the Regional Director for Region 31, shall be signed by an authorized representative of the Inn and posted immedi- ately upon receipt thereof, and maintained for 60 consecu- tive days thereafter, in conspicuous places, including all places at all locations where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Inn to insure that the notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of receipt of this Order, what steps the Inn has taken to comply herewith. is N L R B v Big Three Industrial Gas & Equipment Company, 405 F.2d 1140 (C A 5, 1969), N L R B v. Breithng Brothers Construction Co, 378 F.2d 663 (C.A 10, 1967); Uniform Rental Service, Inc, 161 NLRB 187 (1966), Offner Electronics, Inc, 134 NLRB 1064 (1961), N L R B v R C Can Compa- ny, 340 F 2d 433 (C A 5, 1965) 19 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 20 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board"