Holiday Inn of Holyoke

HOLIDAY INN OF HOLYOKE Holyoke Motel, Inc. d/b/a Holiday Inn of Holyoke and Local 116, Bartenders, Hotel, Motel, Cafeteria and Restaurant Employees Union, AFL-CIO. Case 1-CA-10162 July 10, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 17, 1975, Administrative Law Judge Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. 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 and to adopt his recommended Order. However, the Re- spondent has raised certain questions concerning the Administrative Law Judge's credibility resolutions and his rejection of the Respondent's post-hearing offer of proof, which warrant further explication. The facts are fully set forth in the Administrative Law Judge's Decision and need not be repeated here. The Respondent excepts, inter alia, to the Admin- istrative Law Judge's denial of its request to continue the hearing to adduce testimony by Gary Schahet and to his rejection of Respondent's post-hearing of- fer of proof. Respondent contended at the hearing that it could not have anticipated the need for Schahet's testimony because it was denied discovery. After conceding that it was aware that the Board did not grant discovery, Respondent contended that it had had no way of knowing that the discharge inter- view-in which Schahet participated-would be crit- ical. After observing that he had never participated in a discharge case in which the discharge interview was not critical, the Administrative Law Judge de- nied the motion for a continuance. However, the Ad- ministrative Law Judge offered to hold the record open for Schahet's deposition if the General Counsel agreed to participate. Following the General Counsel's refusal to participate, the Respondent sub- mitted an offer of proof, largely corroborating Respondent's innkeeper, Fisch, particularly with re- spect to the discharge interview . The Administrative Law Judge rejected the offer of proof as untimely 61 and because sequestration, which the Respondent had requested, had been broken by Schahet. The Respondent argues in its brief that "the find- ing that the sequestration rule was broken is totally without foundation-the offer of proof merely sets forth the expected testimony of Mr. Schahet to ques- tions properly put to him." But whatever the merits of the argument with respect to what the offer of proof does or does not reveal concerning the seques- tration of Respondent's witnesses, the Administrative Law Judge's ruling was also based on the testimony of Fisch. On the final day of the hearing, Fisch was recalled to the stand as the Respondent's witness and testified that before discharging Klekotka and Houle he had offered them the alternative of working on separate shifts. Fisch had testified on the first day of the hear- ing as the General Counsel's witness that he had de- cided on their discharge earlier but had not advised them of the decision when he paid them, after which they normally would have gone home for the day. The discharge occurred when they returned to see him of their own volition. In those circumstances, the Respondent obviously would be hard put to establish that the decision had, in fact, been reached earlier and was not a result of events occurring during their last day at work. Respondent's counsel asked Fisch on redirect examination what had "jogged" his me- mory about the offer to permit Klekotka and Houle to work separate shifts as an alternative to being fired. Fisch replied: "I had a discussion last night with Gary Shockett [sic]." Schahet, according to Fisch, "distinctly remembered being against it." The Respondent also asserts that the Administra- tive Law Judge relied on "inconsequential" matters in discrediting Fisch, such as the number of times he was served by Klekotka or Houle and the identity of the waitress, and erred in concluding that Fisch's tes- timony concerning the number of times he ate lunch in the restaurant reflected adversely on his credibili- ty. Fisch testified that a major reason for the dis- charges was constant interruption at meals and stat- ed that . .. there was a 15 day period, with three meals a day. That's 45 days [sic]; I believe they worked the breakfast and lunch shift for the most part, which would make it 30 meals approximately- given-so maybe it's 20, with days off or what have you. Yet on the last day of the hearing, after listening to testimony that placed him and Schahet at a nearby table while Klekotka and Houle were discussing or- ganizing with a union representative, Fisch testified that he probably was not in the restaurant at the time 219 NLRB No. 10 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he very rarely ate lunch. The Administrative Law Judge's conclusion that Fisch's testimony was tailored to the occasion is at- tacked by the Respondent on the ground that he mis- construed Fisch's testimony. "The relevant testimony of Mr. Fisch was an explanation why the testimony of Klekotka and Houle placing Fisch and Schahet two tables away from Union representative Wall's ta- ble was not correct, i.e. because Schahet did not take luncheons in the dining room, not because Fisch did not lunch there when possible." That interpretation requires a good deal of faith. Fisch testified: My recollection is that I did not have lunch in the restaurant that day. And I say that because Mr. Shockett [sic] very rarely allowed me to have lunch, during the period when I was there with him. I did have occasion to have lunch in the restaurant, and there were quite a few days when he was not present at various times during the day. Fisch's explanation when Respondent' s counsel asked specifically "why was it that you couldn't have lunch when Mr. Shockett [sic] was around?" was that: Mr. Shockett [sic] doesn't like to eat lunch par- ticularly often. Mr. Shockett eats cereal and milk for breakfast, and very little else until din- nertime. And he wanted me to use the time that he was available to me wisely. It is clear that Fisch's testimony cannot be construed, as the Respondent now would, to deny only that Schahet ate lunch in the restaurant. Moreover, Fisch's denial that he was in the restau- rant was based on his assertion that Schahet very rarely allowed him to have lunch . If, as the Respon- dent now contends , that is not true, and Schahet did allow Fisch to eat lunch, then there was no reason for Fisch's assumption that he was not eating lunch in the restaurant and consequently no rebuttal to the firm testimony placing Fisch in the restaurant at the time. In that posture , the only issue would be wheth- er or not Schahet was also present . That has no bear- ing on whether or not Fisch was aware of Union Representative Wall's conversation in the restaurant, and only minor significance with respect to the credi- bility of Klekotka, Houle, or Wall. Only Fisch contended that Schahet did not eat lunch in the restaurant. The offer of proof concern- ing Schahet's expected testimony merely denies knowledge of union activities. Schahet , of course, could testify only to his own knowledge or to that which might, or might not, have been confided to him by others . Vand Sande, the Respondent's execu- tive housekeeper, testifying before Fisch returned to the stand, asserted that Fisch and Schahet did not have lunch with her that day but". . . did just about every other day." She testified that when she learned that a union organizer was talking to her employees she got Fisch and Schahet out of the office but that she could not recall whether they had eaten lunch in the restaurant. The attempt to rationalize Fisch's testimony and restore its credibility must founder on his obvious attempts to fit his story to the demands of the mo- ment. And no coherent version of events could be pieced together were we to credit all Respondent's witnesses as it urges. Fisch, as already pointed out, did, and did not, always eat lunch in the restaurant-depending upon whether he was being constantly, lengthily, and un- necessarily interrupted at meals, or whether he was not observing employees talking to a union represen- tative. Schahet, one gathers from the Respondent's brief and Fisch's final testimony, rarely or never ate lunch. Vand Sande, whom the Respondent would have us credit, almost always ate lunch with both Fisch and Schahet, save for the 1 day employees were talking to a union organizer. Similarly, Vand Sande did and did not call Fisch about a disturbance caused by Klekotka, depending upon which of Respondent's witnesses was testifying at the time. When Fisch's testimony does not conflict with his own earlier or later testimony, or that of other wit- nesses, including those of the Respondent, it is often simply unbelievable. Fisch's story is that he decided to discharge Klekotka and Houle sometime before September 5, payday, and to effect the discharges on that day. He did not discharge them before, despite what he considered ample provocation, because it was not "appropriate," but at first was unable to re- call why payday was appropriate. Fisch later decided that he probably selected pay- day because "in terms of administration that's a clean time to do it." But, with scarcely an interrup- tion in the flow of his testimony, Fisch stated that he did not tell them they were discharged when he gave them their checks because he did not "like to give somebody a check and tell them they're fired at the same time." Fisch had no other explanation the first day of the hearing why he did not tell them they were fired when he paid them, although testifying that normally they would have gone home immediately afterward and have reported to work for their next scheduled shift. Nor were their checks current to the day of discharge. When it was suggested to Fisch that state law required that employees be paid in full at the time of discharge, he asserted that when em- ployees requested all their pay at the time of dis- charge he paid them from petty cash. If that be true, HOLIDAY INN OF HOLYOKE then the administrative cleanliness of a discharge on payday is mystifying . Despite these difficulties, Fisch stoutly maintained that the decision to discharge Klekotka and Houle on September 5 was arrived at earlier. On the last day of the hearing , after talking to Schahet, Fisch asserted that he had offered to sepa- rate Klekotka and Houle as an alternative to firing them and that was the reason for the second conver- sation and his failure to fire them when they were paid. Even in his testimony on the final day of the hearing, Fisch originally could not recall whether he offered them the separate-shift alternative when he gave them their checks or during the second conver- sation (much of Fisch's testimony was based, at best, on his conjecture as to what he had probably done, and why). But, if the offer was not made in the origi- nal conversation, then as far as Fisch knew they would not have returned until their next scheduled working day and it then follows that there was no earlier decision , before their restaurant conversation with Union Representative Wall, to discharge them on September 5. Fisch earlier testified that they had always insisted on working the same shift ; which sug- gests that the offer, if made, was made with the knowledge that it would be refused. Despite all the foregoing, Respondent contends that it was prejudiced by the Administrative Law Judge's denial of its request for a continuance predi- cated on surprise and Schahet 's alleged inability to be present the last day of the hearing because of ill- ness. We have already rejected the Respondent's pat- ently erroneous claim that Schahet had not discussed the case with any of Respondent's witnesses after it invoked sequestration. The Respondent asserts essentially that Schahet would testify that before Fisch arrived both the food and beverage manager and Vand Sande had com- plained to him that Klekotka and Houle were prob- lems. He would also testify that Vand Sande later reported that they had caused a scene in the lobby, after which Klekotka and Houle asked to speak to him and Fisch . In the subsequent conversation, both Fisch and Schahet expressed disapproval of their conduct, while they complained about the treatment they received , particularly from the cook. Fisch alleg- edly said that he would look into it, but that squab- bling was not acceptable and he hoped nothing dras- tic would have to be done . After investigating, Fisch decided they were at fault and should be fired, but decided to give them one more chance by splitting them up. According to the offer of proof, Schahet also would testify that Klekotka and Houle were told of the schedule decision when they were given their 63 checks and there was no other discussion . They left and returned shortly to refuse the changed work schedule . The only discussion then was about the schedule change and their denial that they were at fault. There was no reason to connect Klekotka and Houle with any union activity, and they did not men- tion seeking assistance from any governmental agen- cy. The discharges were not based on their presenting grievances to management. The only reasons for the discharges, so Schahet would testify , was that they were not satisfactory employees, were embarrassing the hotel, and were antagonistic towards other em- ployees ; ultimately their discharge came from their refusal to accept the schedule change. Were we to accept the offer of proof and credit Schahet in all save his conclusory exculpation of Fisch's motivation, and his testimony concerning Fisch's knowledge, the record would nonetheless provide ample support for refusing to credit Fisch, who, according to both Fisch and, allegedly , Schahet, made the actual discharge decision . There would also be ample reason to conclude that the Respondent, if not Schahet personally, had good reason to suspect and even know of union activity by Klekotka and Houle. Vand Sande testified that she knew Wall was a union representative before September 5 even though she did not know his name. She testified that she, though not Fisch and Schahet, ate lunch in the res- taurant on September 5 and, while denying that she noticed Wall, did not testify that he was not there. Fisch testified that, when he first met Wall, Wall told him he had eaten lunch in the restaurant . All other testimony establishes that Wall first spoke to Houle about organizing the restaurant at that time. Thus we have a representative of management who, by her own testimony, reacted vigorously and precipitately whenever she discovered there was a union representative present , eating lunch while a union representative that she knew by sight was hav- ing a discussion with an employee whom she admit- tedly disapproved of because she constantly com- plained about working conditions. Her knowledge, of course, is imputable to the Respondent . Moreover, Fisch, independently, might well have had his suspi- cions aroused by learning that a union organizer- admittedly about his job-had eaten lunch in the res- taurant where two of Fisch's waitresses were creating problems by constantly complaining both to him and to customers, about the working conditions. Whether or not Fisch and Schahet were present, and whatever suspicions Schahet might or might not have had, the Respondent had ample reason to sus- pect Klekotka and Houle . Significantly, however, while Schahet supposedly would testify that he and 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fisch (although his testimony concerning Fisch's knowledge would have no value ) had no reason to connect Klekotka and Houle to union activities and that union activities played no part in the discharges, it is not alleged that he would deny eating lunch in the restaurant with Fisch. In these circumstances we cannot find that Re- spondent has been prejudiced in a material way by the Administrative Law Judge's exercise of his broad discretion to deny the Respondent's request for a continuance. The motion to reopen the record is hereby denied. The Respondent also contends that, even should we conclude that Klekotka and Houle were unlaw- fully discharged, we should not order reinstatement because of their misconduct . Although the Respon- dent concedes that it had tolerated complaints by Klekotka and Houle to customers , it argues that it did not know that these complaints to customers about working conditions were part of a planned campaign as Houle testified, and that as a public res- taurant it cannot afford such conduct . In our judg- ment their conduct was not so serious as to preclude reinstatement in light of the gravity of Respondent's conduct. It obviously was not a willfull attempt to injure Respondent in its business nor is it likely to create difficulties between Klekotka and Houle and other employees upon their return to work. Moreover, Respondent adduced testimony that customers had been told that "the food stinks." We would regard such statements coming from a wait- ress to be a much more serious threat to the Respondent's restaurant business than blaming any defects in service on poor working conditions. Fisch, however, testified that he did not even consider that alleged remark to be worthy of a reprimand, much less discharge . Houle testified to only one instance when she obtained a reference from a customer in order to protect herself in the event the Respondent attempted to discharge her for seeking help from a governmental agency. We view her efforts as mis- guided, and certainly do not endorse them. But in our opinion the fact that she may have had some reason for her conduct other than malice does not in the circumstances render it somehow more culpable or more detrimental to the Respondent's business. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Holyoke Motel, Inc. d/b/a Holiday Inn of Holyoke, Holyoke, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting: I believe that the Administrative Law Judge abused his discretion in refusing Respondent's re- quest for a continuance of the hearing to permit testi- mony by Gary Schahet, one of Respondent's owners, who, Respondent's attorney asserted , was ill and un- able to be present at the hearing. Shortly before the close of the hearing, Respondent's attorney moved as follows: Your honor, as the result of the testimony yes- terday, you will recall that I've had occasion to remark here about our desire in the past for dis- covery. But, as a result of that testimony yester- day, and for that reason, we tried to get hold of Mr. Gary Schahet in Indianapolis last evening, to be here this morning. Unfortunately, Mr. Schahet has the flu, and is not able to be here this morning. The hearing was held in Northampton, Massachu- setts. Mr. Schahet's office and residence is in India- napolis, Indiana. Without questioning the attorney's statement that Mr. Schahet was ill and unable to be present, the Administrative Law Judge denied the re- quest for a continuance upon the ground that the attorney knew or should have known that the Board does not grant discovery, that the discharge interview is always critical, and therefore, Respondent should have had Mr. Schahet present and prepared to testi- fy. Respondent's attorney replied: Mr. Schahet was preparing to be here if we thought it was necessary, based on what the tes- timony was. We at that time had no idea that it was the interview that Mr. Schahet attended on the 5th that was going to be critical to this case. In denying the request for a continuance, the Ad- ministrative Law Judge added that if Respondent and the General Counsel would agree on the submis- sion of a post-hearing deposition , he would entertain it. Thereupon, Respondent moved for permission to take such a deposition and expressed a willingness to make whatever arrangements were satisfactory to the General Counsel. However, the General Counsel re- fused to participate and no deposition was taken. Subsequently, Respondent moved to reopen the hearing to permit taking the testimony of Mr. Scha- het. The Administrative Law Judge denied the re- quest. The Administrative Law Judge did reopen the record to receive Respondent's offer of proof, but rejected the proffered testimony. It seems apparent to me that the Administrative Law Judge misunderstood the basis for Respondent's HOLIDAY INN OF HOLYOKE 65 motion for a continuance. The Administrative Law Judge assumed that the basis was surprise, whereas Respondent was claiming that the witness, Mr. Scha- het, was ill with the flu and was incapable of being present. The Administrative Law Judge made no at- tempt to verfiy the accuracy of Respondent's asser- tion that Mr. Schahet was too ill to testify. Under these circumstances, I believe that the Administrative Law Judge committed prejudicial error in denying Respondent's motion for a continuance. This error was compounded by the Administrative Law Judge's refusal to order the taking of Mr. Schahet's deposi- tion as requested by Respondent. This might have corrected the refusal to grant a continuance. I do not agree with the majority's assertion that, based upon Respondent's offer of proof, it is evident that Respondent was not prejudiced in a material way by the Administrative Law Judge's denial of a continuance. I believe that Schahet was a material witness, that it was error not to continue the hearing because of his illness to permit him to testify, and that therefore it is premature to render a decision in this case. I would reopen the record to permit taking the testimony of Mr. Schahet. Accordingly, I dissent. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On October 15, 1974, Local 116, Bartenders, Hotel, Motel, Cafeteria and Restaurant Employees Union, AFL-CIO, hereinafter called the Union, filed with the Regional Director for Re- gion 1 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Holiday Inn Ho- lyoke violated Section 8(a)(1) and (3) of the Act by the discharge of two employees for activities on behalf of themselves and their fellow employees and for union activ- ities on behalf of the Union. On December 6, 1974, the said Regional Director, on behalf of the Board's General Coun- sel, issued a complaint and notice of hearing alleging that Holyoke Motel, Inc., d/b/a Holiday Inn of Holyoke, here- inafter called Respondent, violated Section 8(a)(3) and (1) of the Act by the discharge on September 5, 1974, of Kath- erine Houle and Jean Klekotka. Respondent admitted the jurisdictional allegations in the complaint and the fact that the Union is a labor organization, admitted the discharge of the two employees but denied the alleged conclusion that it was because of the union or concerted activity. On the issues thus joined the matter came on for hearing be- fore me on February 4, 1975, and was completed on Febru- ary 6, 1975. All parties were present and represented by counsel and had an opportunity to call and examine wit- nesses and to adduce relevant and material evidence. At the close of the hearing the parties had an opportunity to make oral argument which they waived . Briefs have been received from the General Counsel and Respondent. Upon the entire record in the case and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT It is alleged, admitted, and I find that Respondent is a corporation operating a motel which annually does busi- ness exceeding $500,000 in value and annually receives goods valued in excess of $5,000 directly from points out- side the Commonwealth of Massachusetts. Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent operates a small Holiday Inn in Holyoke, Massachusetts. The Inn has about 153 rooms, a bar, dining room, and some banquet facilities. Respondent has in its employ from about 60 to about 100 employees, depending on the season and at the times relevant herein, August and September 1974, had from 15 to 20 waitresses. The Inn opened in February 1973 and operated under a succession of managers until August 25 on which day Bruce Fisch became the innkeeper. For some weeks prior to his arrival the enterprise had been managed by Gary Schahet, one of the owners. The employees of Respondent's enterprise, hereinafter called the Inn, were not represented by a union although on some occasion during the summer of either 1973 or 1974 there appears to have been some organizational at- tempt. Near the end of July I Jean Klekotka was hired as a waitress on the day shift. On August 20 Mrs. Klekotka's daughter, Katherine Houle, was also hired as a waitress. According to the testimony of Mrs. Houle they were dis- turbed with some of the working conditions at the Inn and after discussing the matter with some of their fellow em- ployees, including Erin and Katherine Breen, Mrs. Houle agreed to go to the Department of Labor of the State of Massachusetts in an attempt to find out whether their wag- es and working conditions were in accordance with the law of the Commonwealth of Massachusetts. Mrs. Houle went first to the Massachusetts authorities on August 28 and was given certain advice and a suggestion was made that she return on August 30 to talk to a person more expert in the field in which she was inquiring. On the occasion of her second visit she was given certain general information that led her to believe that she should be given more pay and some changes in her working conditions. The next day, August 31, Mrs. Houle and Mrs. Klekotka attempted to talk to Mr. McClanahan, the food and bever- 1 All dates hereinafter are in the year 1974 unless otherwise specified 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD age manager, who simply advised them to stay with it and that things would straighten themselves out. That evening they worked a special shift serving an anniversary party until 2 :30 a.m., September 1. They doubled back, returning to work at 5 a.m., September 1, a Sunday, to serve break- fasts. For some reason on that Sunday morning the other two waitresses of the four who were to have come to work did not show up nor did the busboy nor the hostess; in the kitchen apparently only one cook was on duty. By 8 o'clock the restaurant was crowded and the girls were not able to keep up with the work. According to the testimony of the housekeeper , Mrs. Vand Sande (generally referred to on the record and hereinafter as Mrs . Vand), there were some 300 guests in the motel and they were lined up at the entrance to the restaurant waiting to be seated. Mrs. Klekotka came running out the dining room and approached Mrs. Vand, who was the only supervisor or managerial person around , and asked her to call Manager Fisch because they needed help and Mr. McClanahan could not be reached . According to Mrs . Vand's testimony she called Mr. Fisch but a short while later Mr. McClana- han showed up and everything cooled down. According to Mr. Fisch, Mrs. Vand did not call him but when he came down later he found everything under control. That af- ternoon when Mr. Fisch took his lunch in the restaurant the two ladies asked to speak to him . Mr. Schahet, who had remained to "break in" Mr. Fisch as innkeeper and was seated at the table with him, suggested that they move to Mr. Fisch's office, which they did. On this occasion the two ladies complained to Fisch about the working conditions and especially about the cook whose name was Rock and is called Rocky. Accord- ing to Fisch on this occasion they stated that if Rocky was not fired they might quit. As a result of their conversation with Fisch and Schahet, the two ladies believed that the situation and their particular problems would be taken care of and they left his office. According to the testimony of Mrs . Houle the situation did not improve during the next few days after their con- versation with Fisch. On September 5, during the luncheon serving, Mrs. Houle had some difficulty with Rocky, and gave that as a reason for her slow service of a table of guests . She stated that she was very upset. One of the guests identified him- self as an agent of the Retail Clerks Union and told her that she did not have to quit as she threatened to do but that a union could help her with her problems . He took her name and told her that he would have someone contact her. Shortly thereafter Business Manager Edward Wall of the Union came into the restaurant and sat down at one of Mrs. Klekotka's tables. He addressed her as Kathy and Mrs. Klekotka pointed out her daughter and told him which table she was serving . She asked Wall who he was and he said that he was Kathy's cousin. He moved to one of Mrs. Houle's tables, accosted her, introduced himself, and made arrangements with her at that time to meet with a group of the employees at his office on the following day. Although Wall did not know it at the time , Manager Fisch was sitting at the second table from where he was seated. Wall on this occasion was accompanied by his assistant. After they finished their luncheon, Wall and his assistant went into the motel lobby where they accosted some of the employees and talked about union organization . One of the employees went into the office and Wall assumed that she had gone there to inform management that union agents were on the premises . The agents split up and Wall sat down in the lobby. A few minutes later Fisch, Schahet, and Mrs. Vand walked by him down the corridor; they turned around and came back , Mrs. Vand pointed at Wall, and Fisch came over and introduced himself. Wall introduced himself to Fisch and they talked briefly and Wall left. On this occasion Fisch asked Wall whether he had been talk- ing to his waitresses . Wall denied having done so. On either September 4 or 5, checks for all of Respondent's employees were received at the Inn. At Schahet's suggestion, Fisch had a small typed note at- tached to each check stating in essence that he was happy to be working with the employee to whom the check was addressed and he determined to hand out the checks per- sonally so that he could get to know the employees in the Inn. This was the first payday after his arrival as a manag- er. According to the testimony of Mrs. Vand, he handed out all the checks to the housekeeping department on Sep- tember 4. According to his testimony and that of Mrs. Houle and Mrs. Klekotka he handed them their checks on September 5. Mrs . Klekotka finished work at 8 o'clock on September 5.. It was the birthday of Mrs. Houle's son and Mrs. Houle had to work until 4:30 because the wait- ress who was to have relieved her at 3 o'clock did not show up. Accordingly Mrs. Klekotka determined that she would pick up her check and then go get the birthday cake that they had ordered for Mrs. Houle's son. She went by the office and found a number of people waiting to see the innkeeper so she changed into her street clothes and went to get the cake. On her return she waited for Mrs. Houle to complete her work. Mrs. Houle did so and before changing the two went to Fisch's office to get their checks. Fisch handed them their checks and, according to their testimo- ny, there was no conversation at this time, but according to one of the versions given by Fisch, at this time they com- plained again about working conditions. According to yet another version by Fisch, he ended this conversation tell- ing them that he was going to split them up, with one of them on the first shift and one on the evening shift and told them to think it over and let him know. According to Mrs. Houle's version they left his office and she looked at her check and found that while she had a gross salary of $156, her check was in the amount of $64 or $67. Not under- standing the reason for deductions of this amount she went to the clerk's office where she was given an explanation by the clerk which she did not understand. Leaving the clerk's office Mrs. Houle was standing in the lobby talking with her mother about the problem when Fisch went by. They greeted him and he asked if they wanted to see him. They said that they did and proceeded with him into his office along with Mr. Schahet. Mrs. Houle then complained about the size of her check and stated that she had been informed in addition that she was supposed to be getting some additional money, and that her working conditions were not appropriate for the job. According to her testimony, Fisch asked who had in- HOLIDAY INN OF HOLYOKE 67 formed her and she said that she had gotten the informa- tion from the Labor Board .2 Fisch answered "You went to the Labor Board" emphasizing the word you. At this point Fisch lost his temper and told them that he was tired of their complaints, that he had had complaints about them from McClanahan and Mrs. Vand and that their work was unsatisfactory and told them that they were laid off. On the basis of the facts above the General Counsel con- tends that Fisch discharged the two ladies because of their activities on behalf of all the employees of going to the state agency and, it transpired, the Wage-Hour Division of the Department of Labor and also because he had seen the contact between Mrs. Houle and Mr. Wall that same day during the luncheon serving. The Respondent contends that Fisch discharged the two ladies because they were unsatisfactory employees and be- cause they could not get along with their fellow employees or with management. The evidence in support of Respondent's position was adduced almost entirely from the testimony of Fisch and Mrs. Vand neither of whom I credit. With regard to Mr. Fisch, the General Counsel called him under Rule 43(b) of the Federal Rules of Civil Proce- dure as the first witness in the case. His testimony during this appearance on the witness stand was internally incon- sistent and furthermore inconsistent with his testimony when he was recalled by Respondent as Respondent's last witness. It was also inconsistent with the testimony of Mrs. Vand and of Jane Frederick, a hostess who also was called by Respondent. Fisch testified that he was the person who made the decision to discharge Katherine Houle and Jean Klekotka. He testified that he consulted with McClanahan, Mrs. Vand, Gary Schahet, a hostess, Beth Collin, Ray Acosta, who apparently was the chief cook, and Jane Fred- erick, who was a hostess and has since become banquet manager? Fisch testified in his original testimony that after careful consideration he concluded that he had discharged the la- dies because of their conduct, attitude, and inefficiency. With regard to their conduct, he testified that he had refer- ence to the fact that they were unable to get along with other employees, with their supervisors, or with manage- ment. When he was asked to specify in what regard they were unable to get along with other employees he specified only one matter, that they were constantly arguing with the cook, Rocky. He admitted that Rocky was sometimes hard to get along with, and that it was common for the wait- resses to argue with Rocky. Indeed it is the testimony of all the witnesses with the exception of Mrs. Vand that Rocky was grouchy, and the four witnesses called by the General Counsel all testified that he made it a point to pick on other employees, especially the waitresses, that he would give new waitresses a hard time and had in fact reduced at least two of them, Mrs. Houle and Katherine Breen, to 2 It was apparent at the hearing that Mrs . Houle did not distinguish be- tween the Wage-Hour Division of the Department of Labor (Federal), the National Labor Relations Board (Federal), or the State Division of Labor, but generically referred to all three of them or any one of them as the Labor Board. 3 According to the testimony of Ms. Frederick , she was never consulted about the two ladies by Fisch or anyone else. tears by cursing at them and making it difficult for them to serve their customers. Mrs. Vand on the contrary testified that Rocky was a kind old man, that she had known him for a long time. She characterized him variously as "the greatest guy that ever walked the face of the earth," "a grizzly old bear," "a darling," "a jolly old elf." Mrs. Vand was the head housekeeper and the only function she had in the kitchen was the responsibility with regard to the equip- ment therein.' With regard to their attitude, Fisch testified that the two ladies always came together to talk to him, that they always seemed to wait on him when he took his meals in the Inn's restaurant, that they very frequently took occasion to com- plain to him while they were serving him, and that on at least four or five occasions they complained to him in his office in meetings that lasted from 25 to 30 minutes. At other places in his testimony, however, Fisch reduced the occasions to two, and on one occasion stated there were at least six. It appears from all the testimony that there were really only two occasions on which complaints were made to Fisch by the two women, the Sunday meeting on Sep- tember 1 after the debacle in serving breakfast, and the occasion of their discharge. Fisch's testimony was throughout characterized by a great deal of exaggeration. He testified for instance that he had luncheon in the restaurant during the period between his arrival at the Inn and the discharge of the two women 15 times, and that most of such luncheons were served by Mrs. Klekotka or Mrs. Houle. He testified that during at least half of these meals he had problems with the food or the service. He testified that he particularly remembered that Mrs. Houle served him cold food or cold coffee two or three times, and dirty silverware several times over a period of 2 weeks, although he never reprimanded her for it. He then testified that on one occasion he got dirty silverware and cold coffee at the same time. However he could not remember how many times she had served him, but it seemed almost every time he went in to the dining room. Mrs. Houle on the other hand testified that she only served him one time and that her mother, Mrs. Klekotka, served Fisch four or five times. The value of this evidence by Fisch is considerably lessened by his testimony at the end of the hearing, when he was attempting to meet the testi- mony of Business Manager Wall that Fisch and Schahet had eaten lunch together on September 5, that he did not have lunch in the restaurant on September 5, and he said "because Mr. Schahet very rarely allowed me to have lunch during the period of time when I was there with him." Asked why that was the case, Fisch answered "Mr. Schahet doesn't like to eat lunch particularly often. Mr. Schahet eats cereal and milk for breakfast, and very little else until dinnertime, and he wanted me to use the time that he was available to me wisely." Since Schahet was present during the entire period from August 25 until Sep- tember 5, one would assume that most of "those 12 days Fisch did not eat lunch. In addition the record reveals that It appears that at least in part the problem that waitresses had with Rocky was that he was so fat that it was difficult for him to bend down to pick dishes off the counter when he had to serve food, and accordingly he required the busboys and waitresses to hand him the dishes so that he could fill them. 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Houle did not work 2 days in the week of her dis- charge and worked only 6 the prior week. Accordingly, she could not have been present more than 9 days. With regard to the events of September 1, as I have set forth above, Fisch's testimony conflicts with Vand's as to whether she called him when Mrs. Klekotka asked her to do so, and to some extent conflicts with her testimony concerning the irascibility of the cook, Rocky. Mrs. Vand somewhat diminished the credit that I might assign her testimony by her positive testimony that she had reported to the innkeeper who preceded Schahet that Klek- otka and Houle were troublemakers and could not get along with the other employees . This is very difficult to believe as it does not appear that either of them were hired during the incumbency of the former innkeeper. She too was inclined to exaggeration in her testimony and made it clear that she bore animosity toward both ladies because they were dissatisfied with conditions at the Holiday Inn. Mrs. Vand testified as to her feelings regarding the Union that she would appreciate a union if there was any need for one, but there could not possibly be any need for one at Respondent's premises because the employees were happy and had good working conditions. She testified that she knew that the employees did not want one because on the occasions when union agents had been reported to be around the Inn, including September 5, she interrogated her employees in her office concerning their inclinations and they unanimously informed her that they did not want a unions The only evidence supportive of Fisch's testimony that Houle and Klekotka did not get along with their fellow employees was offered in the form of testimony by Linda Holewah, another waitress, whose complaint was that they never wanted to hand the plates to the chef , reciting an incident where she testified Klekotka, on being asked by Rocky to hand him some dishes, replied with a vulgarity that it was not her job. Her credibility was not enhanced by her tale that the two ladies always waited on tables together, waiting on the same customer , each carrying some of the plates . This is entirely divergent from the testi- mony of any other witness in the hearing, especially that of Fisch who testified that one or the other served him, but never that both served him. A clue to the evident animosity of Holewah may be found in the fact that she had appar- ently engaged in an argument with Klekotka about wheth- er she had stolen tips that Klekotka had earned , and she in turn accused Klekotka of stealing tips that she had earned. She testified that Mrs . Klekotka did not get along with any of the other waitresses, or at least any of the good wait- resses. She then testified that Klekotka and Houle together with Kathy Moses and Betsy, whom she did not otherwise identify, were against the Holiday Inn and were talking about going to the Labor Board and that the good wait- resses were not involved in that. She finally indicated that the good waitresses consisted of herself, Shirley, and Joan- na (without any addition of surnames). It was quite ob- vious that at least to Miss Holewah, good is synonymous 5 No 8(a)(l) allegation appeared in the complaint with nonunion or satisfied , and has very little to do with the capacity of the waitresses. Conclusions I conclude that Mrs. Houle and Mrs. Klekotka were dis- charged because Fisch believed , quite correctly, that they were responsible for bringing in the Union as well as bring- ing in the Government in the form of the "Labor Board." I do not credit his denial that any mention was made of their activities in the discharge interview , or that he was not present in the restaurant when Mrs. Houle first arranged with the Union's business manager for a meeting with the employees, although I believe that it was not until after lunch when he met the business manager that he realized to whom Mrs. Houle had been talking. Although Fisch testified that he had made up his mind on September 1, 2, 3, or 4, to discharge the two women, I do not credit him. When he gave them their checks at 4:30 p.m., on September 5, he had to have been aware of the fact that both of them had completed their day's work, yet they left his office, according to his first and second ac- counts, without saying anything to indicate that they were discharged. It was not until they reentered his office on his invitation after he met them in the lobby that the interview took place which culminated in the termination. His first accounts of the interview made no mention of the alleged offer he had made to split them up and permit them to remain. On the contrary, he indicated that his intention prior to September 5 was to discharge them on that day, and it was for that purpose that he called them into his office. Yet his last account of the two interviews of Septem- ber 5 was that when he gave them their checks he offered the splitting up arrangement and when they returned they refused it and he discharged them . I can only believe that the last account was an attempt to accommodate Fisch's testimony to the testimony adduced by the General Coun- sel after Fisch's first testimony . It should be noted that Fisch was present in the hearing room at all times during the hearing and was well aware of the testimony he bad to meet. On February 11, 1975, I received from Respondent a motion to reopen the hearing to permit Respondent to call as a witness Mr. Gary Schahet, one of Respondent's own- ers, to testify in corroboration of Innkeeper Fisch. Respon- dent had moved at the end of the hearing to keep the hear- ing open to adduce the testimony of Mr . Schahet, and his motion was denied as untimely . By telegram on February 28, 1975, I denied Respondent's motion to reopen, on the same grounds. On March 7, I received another motion to reopen the record to admit an offer of proof in the form of an un- signed affidavit of Mr. Schahet. No reaction to Respondent's motion has been received from the General Counsel. Respondent's motion to reopen the record to receive the offer of proof is granted, and the record is again closed. The offer of proof is rejected. My reasons for rejection of the offer of proof are two- fold. First, the reasons given at the close of the hearing, i.e., that Respondent's decision to call Mr. Schahet was untime- ly; his presence at the termination interview was known to HOLIDAY INN OF HOLYOKE Respondent at all times. It appears that it was only after the testimony of Innkeeper Fisch that Respondent's coun- sel decided that he needed Mr. Schahet. I could see then, and I can see now, no reason to put the other parties and the Government to the expense of keeping the hearing open or reopening the hearing to take Schahet's testimony. The second reason for the rejection of the offer of proof lies within its four corners. On page 4 of the offer of proof the paragraph starts "I am familiar with the testimony that my meeting with Mr. Wall from the Union took place on the day that Houle and Klekotka were discharged." On page 5 of the offer of proof Respondent offers that Schahet would testify that "the testimony alleging that Mr. Fisch grew angry and upset at this and at an alleged remark about going over his head is also untrue." Further on page 5 Respondent offers testimony in this form "the testimony concerning the cookies . . . was also completely false." The above-quoted sections of the offer of proof revealed clearly what was implicit in the testimony of Fisch on the last day of the hearing, that the testimony of the witnesses in the hearing had been discussed with Mr. Schahet. At the opening of the hearing Respondent moved to se- quester the witnesses and the rule was granted. Basic to the sequestration rule is the provision that a witness may not be informed as to the testimony that has already been giv- en in the proceeding.6 Like Wigmore, I value the expedient of sequestration. As Wigmore says "But when all allowanc- es are made, it remains true that the expedient of seques- tration is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the de- tection of liars in a court of justice ." In the instant case it is clear that the party demanding the sequestration, i.e., the Respondent, broke it and now proposes to call a witness who has been educated by the witnesses who preceded him to testify in this proceeding. If I were to reopen the hearing on Respondent's motion to receive the testimony of Scha- het and, if the General Counsel were to move to strike all of his testimony on the grounds that the rule had been broken, I would grant the motion . I see no need to engage in an exercise in futility at considerable cost to the parties and the Government. Accordingly for this, as well as the former reason, Respondent's motion is denied. I find that Respondent discharged Katherine Houle and Jean Klekotka because of their concerted and union activi- ties and in order to discourage such in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with Respondent's opera- tion as described in section I, above , have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. Upon the basis of the above findings of fact and upon 6 See 6 Wigmore, Evidence § 1838. the entire record in this case, I make the following: CONCLUSIONS OF LAW 69 1. Holyoke Motel, Inc. d/b/a Holiday Inn of Holyoke, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Katherine Houle and Jean Klekotka because of their union and concerted activities Respondent has discriminated against its employees in violation of their rights guaranteed in Section 7 of the Act thereby engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act and has interfered with, re- strained, and coerced employees in the exercise of their rights protected by Section 7 of the Act thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action which is nec- essary to effectuate the policies of the Act. I found that Respondent discharged Katherine Houle and Jean Klekot- ka in violation of Section 8(a)(3) of the Act, accordingly I recommend that Respondent be ordered to reinstate them to the jobs they formerly held or, if these jobs no longer exist, to substantially equivalent jobs and make them whole for any loss of pay they may have suffered as a result of Respondent's discrimination against them, by payment to them of the amount which they would normally have earned from the date of their discharge to the date of Respondent's offer of reinstatement less any net interim earnings which shall be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest at the rate of 6 percent per annum as set forth in his Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the foregoing findings and conclusions and the entire record and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER7 Respondent, Holyoke Motel, Inc. d/b/a Holiday Inn of Holyoke, Holyoke, Massachusetts, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 116, Bartenders, Hotel, Motel, Cafeteria and Restaurant Employees Union, AFL-CIO, or any other labor organization of its employ- ees by discharging or otherwise discriminating against its 7 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. 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in regard to their hire or tenure of employment or other term or condition of employment. (b) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which will ef- fectuate the policies of the Act: (a) Offer to Katherine Houle and Jean Klekotka rein- statement to the jobs they formerly held, or, if those jobs no longer exist, to substantially equivalent positions with- out prejudice to their seniority or other rights and privi- leges and make each of them whole for any loss of earnings she may have suffered as a result of the discrimination against her in the manner provided in the section of this Decision entitled "The Remedy." (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 place of business in Holyoke, Massachu- setts, copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by an au- thorized representative of Respondent shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not al- tered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. 8In 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, an Administrative Law Judge of the National Labor Relations Board has found that we violat- ed the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT discourage membership in Local 116, Bartenders, Hotel, Motel, Cafeteria and Restaurant Employees Union, AFL-CIO, or any other labor or- ganization, by discharging or otherwise discriminating against our employees in regard to their hire or tenure of employment or other terms or conditions of em- ployment. WE WILL reinstate Katherine Houle and Jean Klek- otka to the jobs they formerly held or, if those jobs no longer exist, to substantially equivalent jobs and WE WILL make them whole for any loss of pay they may have suffered as a result of our discrimination against them by payment to them of the amount of money they lost as a result of our action. HOLYOKE MOTEL, INC. d/b/a HOLIDAY INN OF HOLYOKE