Cabana Motel

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tahoe Management & Leasing Company d/b/a Caba- na Motel and Hotel-Motel-Restaurant Employees and Bartenders Union Local 86, Hotel & Restau- rant Employees and Bartenders International Union. Case 20-CA-9561 January 19, 1976 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On June 17, 1975, Administrative Law Judge James T. Rasbury issued the attached Decision in this proceeding. Thereafter, General Counsel 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 conclusions of the Administrative Law Judge and to adopt his recommended Order, except as modified below. Unlike our dissenting colleague, we agree with the Administrative Law Judge's conclusion that employ- ee Fry was not discharged because of his union activ- ities. Our dissenting colleague admits that Respon- dent did not explicitly and outrightly fire Fry; rather the thrust of his dissenting opinion is that Fry was "driven" to quit by Respondent General Manager Robards' tirade of August 19 directed toward Fry wherein Robards condemned the union campaign and Fry's active role in it. We have no quarrel with our colleague's accurate view of the law that an employer violates Section 8(a)(3) of the Act when, motivated by union animus, it engages in certain conduct which is purposely de- signed to push a prounion employee into quitting. Mallory Capacitor Company, a division of P. R. Mal- i In affirming the Administrative Law Judge's commerce finding, we note that Cabana Investors B, the owner of the Cabana Motel, has veto power over the hiring and firing of Motel employees, and is consulted by Respon- dent as a matter of course prior to any decision as to staffing The revenue of Cabana Motel itself exceeded $500,000 in 1974 See Pacific Hosts, Inc - Padre Trails Motel Corporation 156 NLRB 1467 (1966), J J Gumberg Co and Pennley Park South, Inc, 189 NLRB 889 (1971), cf Phil- Modes, Inc., and Harold Berlin d/b/a Berlin Coat Manufacturing Co, 159 NLRB 944 (1966) Also, General Counsel has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (C A 3, 1951) \Ve have carefully examined the record and find no basis for reversing his findings lory & Co., Inc., 169 NLRB 42 (1968). However, un- like our dissenting colleague, we do not think that a preponderance of the evidence shows that Fry was so constructively discharged. Assuming, for the mo- ment, the substance of the Robards-Fry argument in the motel kitchen on the afternoon of August 19, as testified to by Fry and bystander Karl Ries, wherein Robards said he was going to fire Fry because he was "a typically union man . . . trying to go around get- ting people to sign the petition" there is very little evidence, if any, which tends to prove that this en- counter drove Fry to quit. On the contrary, the weight of evidence indicates that Fry had earlier that day decided to quit for other reasons entirely unrelat- ed to Robards' animus. According to the uncontro- verted testimony of both Robards and Fry, Fry had, earlier that day, come into Robards' office on behalf of himself and other employees and asked for a raise. According to the testimony of Robards, he told Fry a raise was out of the question and that if Fry were unhappy with what he was earning, he would "just have to leave that's all."2 While neither Fry nor Ro- bards testified that Fry formally announced at that time that he was quitting, Fry did admit elsewhere in his testimony that when he later applied for unem- ployment insurance, he put down on his application form that he had quit because he was refused a raise. For these reasons, we are convinced that Fry had quit upon being denied a raise. Karl Ries' testimony, relied on so heavily by our dissenting colleague, is not all that illuminating. On direct examination, Ries, who overheard the Fry-Ro- bards argument in the motel kitchen, testified that when Robards fired Fry, Fry responded that he couldn't fire him because "he [Fry] was going to quit. He quit or something." However, on cross-examina- tion, Ries quotes Fry as saying to Robards "You can't fire me, I've already quit." (Emphasis supplied.) Thus, far from showing that Fry's quitting was the direct product of Robards' animus, Ries' testimony, at least that part adduced through cross-examina- tion, indicates that the quitting antedated the ani- mus., We likewise, unlike our dissenting colleague, attach little significance to Robards' remark to Woodward I month later that Fry was discharged 2 Robards' testimony was not discredited in this regard Fry testified to a slightly different version of Robards' response to Fry's request for a raise, namely, that a raise was out of the question and it was best that Fry left right now While the Administrative Law Judge did not address this portion of Fry's testimony, he generally found Fry not to be a convincing witness. 3 Mallory Capacitor Company, supra, is factually distinguishable . There, the respondent, knowing ahead of time that the prounion employee in ques- tion was planning to quit if he did not get a raise in the near future , told the employee that his raise was denied and further urged him to quit on the spot When the employee asked for 2 weeks' notice before he left, Respon- dent again ordered him to quit immediately In the instant case, however, there was no pressure put on Fry to quit Robards merely denied him his raise and invited him to quit if he wished to do so 222 NLRB No. 37 CABANA MOTEL because he had circulated union petitions. To be sure, Robards, in making this statement, may have thought he had fired Fry because of his union activi- ties. Furthermore, his remarks, if indeed made, might have been designed to have an in terrorem effect on Woodward and other employees with prounion sym- pathies, and thus might be regarded as coercive vis-a- vis the employee to whom they were directed. How- ever, in the context of the facts in this case, they are not probative of a constructive discharge of Fry. For these reasons, we adopt the Administrative Law Judge's recommendation that the allegation of the complaint relating to Fry's discharge be dis- missed. REMEDY We do not adopt that portion of the Administra- tive Law Judge's recommended Remedy and Order which conditions the amount of backpay due em- ployees Lloyd Woodward and Sharon Stetson on the dates they would have been lawfully laid off but for their unlawful and discriminatory early layoff and which places them on a preferential hiring list and requires that Respondent offer employment to them on the occasion of its next period of peak employ- ment. As we noted in Colonial Corporation of Ameri- ca, 171 NLRB 1553 (1968), General Counsel, having proven that Respondent discharged employees for discriminatory reasons, does not also have to prove that the employees would have been employed at present, if no discrimination had been practiced. We therefore order that Respondent offer Lloyd Wood- ward and Sharon Stetson, as it did Karl Ries, imme- diate and full reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges.' We shall also order that Respondent make said employ- ees whole for any loss of earnings suffered by reason of the discrimination against them, by payment to them of a sum of money equal to that which they normally would have 'earned, absent the discrimina- tion, from the date of the discrimination, to the date of the offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). ORDER Pursuant to Section 10(c) of the National Labor " See also Radiadores Paragon De Puerto Rico, Inc, 206 NLRB 918 (1973) 395 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, Tahoe Management & Leasing Company d/b/a Cabana Motel, South Lake Tahoe, California,, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recom- mended Order, as herein modified: 1. In paragraph 2(a) of the Administrative Law Judge's recommended Order insert, "Lloyd Wood- ward, and Sharon Stetson" between " Ries" and "im- mediate." 2. Delete paragraph 2(b) of the Administrative Law Judge's recommended Order and renumber sub- sequent paragraphs accordingly. 3. Substitute the attached notice for that of the Administrative Law Judge. MEMBER JENKINS, dissenting in part: Unlike my colleagues, with whom I agree on other points, I find convincing evidence that the Respon- dent, through General Manager Robert Robards, constructively discharged employee Douglas Fry on August 19, 1974, in violation of Section 8(a)(3) of the Act. For as the 'General Counsel ' points out in his exceptions, the Administrative Law Judge over- looked certain credited and even undenied and un- controverted testimony which establishes the coer- cive ' nature of Fry's termination. Thus, the record plainly shows that, on September 13, Robards told two employees that the "reason why" he "had laid off Doug [Fry]" on August 19 was because Fry was "circulating petitions" on behalf of the Union. In my view, these remarks attributed to the Respondent, by employee Ernest Woodward, whom the Administra- tive Law Judge credited, virtually eliminate all doubt as to the coercive circumstances surrounding Fry's "quitting." See, e.g., N.L.R.B. v. Globe Products Corp., 322 F.2d 694, 696 (C.A. 4, 1963), enfg. 139 NLRB 1459 (1962). Moreover, the foregoing evidence does not stand alone, and even discounting Fry's asserted "vague" testimony, it is clear upon reading the testimony of Robards and the credited and uncontroverted testi- mony of witness Karl- Ries, that Fry was forced to quit for reasons unlawful under the,Act. Thus, as the Administrative Law Judge found, Fry and a fellow employee (Jim Glace) visited the Union's office on August 19, and, when they returned to work later that day, began to solicit support for the above-men- tioned union petitions. Robards soon became aware of this activity, as well as the employees' demand for higher wages. Indeed, as the Respondent's manager admitted, Fry was the "spokesman" for the employ- ees, and when Fry' related their demands, Robards 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied, "It's impossible for us to give you a raise and if you don't want to work for what you are working for, you'll just have to leave that's all." Accepting for the moment the Administrative Law Judge's finding that Robards' ultimatum that Fry would "just have to leave" was not tantamount to an order to "quit," there is additional uncontroverted testimony that re- moves all doubt on the matter. Again, as Robards testified, following this first encounter with Fry he found Fry in another area of the motel and ordered that "if he didn't have any business in there, if he was supposed to be working, to get out of there." There followed an "exchange" which if not "heated," as Robards asserted, certainly was unpleasant. Signifi- cantly, Robards did not elaborate, but credited wit- ness, Ries, testified that before Fry left the premises Robards told Fry that he was "a typically union man, always pushing for the union . . . that the union was no good . . . that [Fry] was always trying to go around getting people to sign the petition and he didn't like it, and that he was going to fire him and all that." Whereupon, Fry replied that Robards "couldn't fire him because he was going to quit" or "I've already quit." 5 From the foregoing it is abundantly clear, to para- phrase the Administrative Law Judge, that Fry was "provoked and pushed into an `I quit' situation." However, as with Woodward, the Administrative Law Judge inadvertently failed to weigh all of Ries' testimony. Thus, by citing only the "I quit" portion of Ries' testimony, he failed to consider Robards' declaration that he was "going to fire him"-which Robards never denied-as ample provocation for Fry's "quitting." Considering the fate of other union adherents, it is clear that the Respondent used Fry's "anticipated reaction" to Robards' antiunion re- marks and threat of discharge "as a pretext for rid- ding [itself] of a union partisan." Mallory Capacitor Company, a division of P. R. Mallory & Co., Inc., 169 NLRB 42, 44 (1968), enfd. 400 F.2d 956 (C.A. 7, 1968), cert. denied 394 U.S. 918 (1969). Moreover, the fact that Fry later filled out an unemployment compensation claim and noted something to the ef- fect that he had quit because he could not get a raise is hardly inconsistent with the finding that Fry did, indeed, "quit" but only did so after provoked into it for reasons violative of the Act. Finally, I find significant the fact that Robards never testified that Fry told him he was quitting and, on cross-examination, was even unable to relate what circumstances could have led him to such a conclu- sion. Indeed, the Respondent's own records, received as evidence in this, proceeding, make no mention of Fry's alleged voluntary separation. Although my colleagues are unable to attack di- rectly any of the foregoing evidence, they, nonethe- less, are "convince[d]" that "there was no pressure put on Fry to quit." Thus, they attempt to deflect the obvious thrust of undenied, uncontradicted, and un- impeached testimony of credited witnesses Wood- ward and Ries by suggesting that it bears "little sig- nificance," or, simply, "is not all that illuminating." Of course, to support their position they tacitly con- cede that they must necessarily go beyond the record and, for example, ruminate over what else Robards "may have thought" and what else he "might have" intended when, as a matter of record evidence, he unmistakeably announced to employee Woodward that Fry was terminated because of his union activi- ties. On the whole, I think that their conviction that the Respondent rebutted the General Counsel's com- pellingprima facie showing of unlawful conduct must rest on firmer ground, and I respectfully dissent. 5 Although Fry also testified to the same conversation, I have avoided relying on his testimony . Instead, I have throughout relied solely upon the testimony of credited witnesses Woodward and Ries, as well as Robards' testimony which, while consistent on this point , was in many other respects "confused" or simply uncreditworthy, as the Administrative Law Judge found I have done so to avoid any suggestion that I have relied on the "vague" testimony of Fry, or, in any other way disturbed the Administrative Law Judge's credibility findings 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 both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we interfered with the statutory rights of the employees to select their own bargaining representative, if such should be their desire, and has ordered us to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL NOT question employees concerning their union activities or interest. WE WILL NOT discharge or threaten employees with discharge because of their activities or in- terest on behalf of Hotel-Motel-Restaurant Em- ployees and Bartenders Union Local 86, Hotel & Restaurant Employees and Bartenders Inter- national Union. WE WILL NOT promise employees a change in working conditions in order to encourage them to abandon the Union. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed to employees under the National Labor Relations Act, as amended, which are as follows: CABANA MOTEL 397 To engage in self-organization To form, join, or help unions To bargain collectively through a represen- tative of their own choosing To act together for purposes of collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL reimburse employees Lloyd Wood- ward, Sharon Stetson, and Karl Ries for wages lost because of our discriminatory conduct in discharging them. WE WILL offer immediate and full reinstate- ment to Karl Ries, Lloyd Woodward and Shar- on Stetson without loss of benefits or seniority. TAHOE MANAGEMENT & LEASING COMPANY d/b/a CABANA MOTEL DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: The trial of this matter was initially opened before the Honorable James S. Jenson on December 18, 1974, but because there were questions raised concerning whether or not the proper party had been charged and served and also because there were serious questions as to whether certain subpenas had been properly served, the matter was adjourned indefi- nitely without evidence taken. For various reasons un- known to me, the matter was continued until March 12, 1975, when all available witnesses were heard by me at South Lake Tahoe, California, and then because of the unavailability of a key General Counsel witness and the prior commitment of Respondent counsel for March 13, the matter was continued and then concluded on March 14, 1975. Complaint was issued by the Regional Director for Region 20 on November 15, 1974, based on an unfair labor practice charge first filed on September 18, 1974, amended on November 4, 1974, alleging violations of Sec- tion 8(a)(1) and (3) of the National Labor Relations Act, as amended, 29 U.S.C. § 151, et seq., herein called the Act. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witness- es, and to file briefs. Based upon the entire record, includ- ing the briefs filed by Respondent and the General Coun- sel, and upon my observation of the demeanor of the witnesses, I make the following findings of fact and conclu- sions of law: 1. JURISDICTION The Cabana Motel is a large motel consisting of 205 rooms, a restaurant, and bar situated in South Lake Tahoe, California, and owned by Cabana Investors B, a limited partnership. The evidence establishes that the gross reve- nues for this motel during the calendar year 1974 was in excess of $600,000 and the gross revenue for the month of January 1975, was more than double that of January 1974. (See G.C. Exhs. 2 through 7.) In late May 1974, the owners hired Tahoe Management & Leasing Company, herein the Respondent, to manage, or operate, the motel. Ken Pirtle, Robert Bowles, and Gilbert Apodaca are the principal officers and major stockholders of Tahoe Con- struction, Incorporated. These same three men own the Ta- hoe Management & Leasing Company, a partnership and the Respondent herein. They also own the Tahoe Devel- opment Company, a partnership, and the Tahoe Payroll Company, a partnership. It appears from all the evidence that the various partnership companies act as service arms for and on behalf of the corporation (Tahoe Construction, Incorporated). Thus, for example, the Tahoe Development Company would originate a project, do the marketing, the feasibility studies, and then arrange for the financing. These services might be performed for the three partners, or for a specially arranged limited partnership investment group, but with a view toward the construction corporation doing the actual construction of the proposed project. The development company might also handle the sales. In a situation where the project is a motel, the Tahoe Manage- ment & Leasing Company might take over as the manager, or operator, of the motel on behalf of the owners. The evidence does not reveal whether Tahoe Construc- tion, Incorporated, built the Cabana Motel, but there is evidence indicating that the three partners (Pirtle, Bowles and Apodaca) had frequent business arrangements with Barry Evans, president of Madison and Burke, a real estate investment and property management firm located in San Francisco, California. Cabana Investors B, the owner of the motel here involved, is a limited partnership of which Barry Evans is a general partner. When problems devel- oped at the Cabana Motel, Barry Evans turned to Tahoe Management & Leasing Company for management assis- tance. A typical management contract was prepared in which Respondent was to be paid 5 percent of the gross room and shop revenues, plus 5 percent of the gross food and bever- age revenues, and profits in excess of $40,000 per annum from the food and beverage operations. The parties stipu- lated that Respondent purchased $2,000 of liquor from outside the State of California. In addition, Respondent is the manager, or operator, of the Travel Lodge Motel in Sunnyvale, California. In this instance, the Tahoe Development "built the hotel" (I un- derstood this to mean-feasibility studies, financing, etc.), Tahoe Construction, Incorporated, was the building con- tractor and now Respondent herein is the manager for a group of investors created, or brought together, by Barry Evans, who bought the property from the Tahoe Devel- opment Company. There was testimony from Ken Pirtle that Respondent is to receive a "split [in] the profits above a given point."While no compensation as manager of the Travel Lodge has yet been realized, it would appear to be largely a bookkeeping arrangement because Respondent is "responsible for making all payment and such on the prop- erty" (presumably to Tahoe Development Company). Ken Pirtle acknowledged that the same group of people are involved in a condominium development in Sacramen- to, California. Under all the circumstances, it is clear that Respondent 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act to a degree warranting the Board asserting jurisdiction in this matter.I II. THE LABOR ORGANIZATION INVOLVED Respondent does not deny, and I herewith find, the Ho- tel-Motel-Restaurant Employees and Bartenders Union Local 86, Hotel & Restaurant and Bartenders International Union, herein called the Union, to be a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUE The issue involved is one of ascertaining the true motive for the discharges of four named employees, rendered diffi- cult by the conflicting evidence and the necessity of resolv- ing credibility of the various witnesses. IV. THE UNFAIR LABOR PRACTICES A. Background Robert Robards is the general manager of the Cabana Motel and his wife, Nevada Robards, is the resident man- ager. They were hired by Kenneth Pirtle, the active manag- er and general partner of Respondent. The Robards have full authority to hire and fire; it is their responsibility to maintain an effective work force. Gloria Salvatore, the head housekeeper, was hired by them and in turn had au- thority to hire and fire the maids. I find each of them at all times to have been an agent of Respondent within the meaning of Section 2(13) of the Act and all three to have been supervisors of Respondent within the meaning of Sec- tion 2(11) of the Act. B. Discharge of Douglas Fry Fry was one of the more active employees in obtaining signatures on the union petition seeking to have an elec- tion. He was hired in April 1974,2 as a houseman, then was shifted to maintenance and worked until August 19. On August 19, Douglas Fry and Jim Glace, another mainte- nance employee, went to the union offices and met Hal Lawrence, a union agent, during the noon lunch hour. In the afternoon, they were both involved in seeking signa- tures on the union petition. The record is not clear, but apparently sometime in the early afternoon a meeting of four or five of the employees and Mr. Robards occurred. Mr. Fry was the spokesman for the employees and sought to obtain a raise. According to Mr. Robards, he responded by saying, "I'm sorry. We can't at this time. It's impossible for us to give you a raise and if you don't want to work for what you are working for, you'll just have to leave that's In asserting jurisdiction the Board looks to the totality of a Respondent's operation Acme Paper Box Co, 201 NLRB 240 (1973), Siem- ons Mailing Service, 122 NLRB 81 (1958) 2 All dates hereinafter will be in the year 1974 unless otherwise indicated. all." Fry didn't testify concerning this meeting.3 According to Fry, he was annoyed when his friend and roommate, Jim Glace, quit and he was even more anxious to get the employees to sign up with the,Union. He testified that immediately following the meeting he "went straight to the restaurant and sat down at the counter, and was talking to Red, who was the cook at the time-the chef." It was then that Mr. Robards came in and asked him to leave.' An argument ensued. Fry departed. According to Robards, Fry was never discharged he vol- untarily quit. Fry acknowledged that he applied for unem- ployment compensation shortly thereafter and in his appli- cation stated something to the effect that he had quit because he couldn't get a raise. Karl Ries testified that he heard at least a part of the argument between Robards and Fry and Fry said, "I quit." The Board has frequently found an unlawful construc- tive discharge where antiunion animus is prevalent and where the employer "pushes" the employee, into a "I quit" situation .5 I do not perceive this to be such a situation. Fry was not a convincing witness. His recollection was vague as to just what had transpired 6 months before; and he ac- knowledged some concern because his roommate and friend had already quit. The General Counsel has failed to prove by a preponderance of the evidence that Fry was either directly or constructively discharged. In every case, a violation of the Act must be proved by the General Coun- sel by a preponderance,of the evidence .6 In spite of the fact that I am convinced that Respondent was not anxious to have its employees unionized, I am even more convinced that Fry quit his job without being illegally provoked into doing so by Respondent. I shall recommend dismissal of this allegation of the complaint. C. Discharge of Woodward Woodward testified that he was first employed at the Cabana in the spring of 1974 but quit toward the end of May when the Robards took over as managers. The latter part of July he was hired again by Red Collins, the chef. Woodward testified that he signed the union petition at the request of Douglas Fry in the presence of Rita Cook, the head housekeeper, Barbara Ries, the assistant head housekeeper, and Karl Ries, her son. He attended a union meeting and obtained three or four signatures on the peti- tion seeking to have an election. Woodward testified that on September 13 he was talking to Red Collins concerning rumors he had heard that he (Woodward) was going to be laid off because of his activity and interest on behalf of the Union, when Mr. Robards appeared and the three of them engaged in conversation 3 Just when this meeting occurred is confusing, because Robards recollec- tion was somewhat vague but he recalled it as being in the morning Jim Glace quit immediately following receipt of the information that a raise was out of the question, but the testimony tends to indicate that he was still an employee in the early afternoon when he solicited signatures on the union petition. 4 Robards' recollection was that Fry was asked to return to his work 5 See Mallory Capacitor Company, 169 NLRB 42; enfd. 400 F 2d 956 (C. A. 7, 1968), cert denied 394 U.S. 918 6 Falstaff Brewing Corp, 238 NLRB 294, enfd as modified 301 F 2d 216 (C.A 8, 1962). 1 CABANA MOTEL 399 relating to the Union. During the conversation, according to Woodward, Robards stated that he had been in contact with three different insurance companies and planned to have a better insurance program than the Union could pro- vide. Robards promised higher wages in order to keep the Union out and asked, "Why pay out $6-a-month dues when you can get your insurance for nothing?" Mr. Robards had no recollection of any union conversa- tion with Woodward and denied that he ordered the chef, Red Collins, to let Woodward go because of his union ac- tivity. Mrs. Robards acknowledged that she was aware of the union meetings and that "most of them [employees] were at the meeting." She testified that Woodward was let go be- cause of a seasonal layoff. Woodward was terminated on September 14. General Counsel's Exhibit 9 is a copy of a help-wanted advertise- ment in which experienced cooks are requested to apply to the Cabana Restaurant. The ad appeared in the Tahoe Daily Tribune on Wednesday, September 18. Respondent's chef, Red Collins, was not called to testify. Woodward was active in the Union and Rita Cook had advised Mrs. Ro- bards the names of those employees attending the union meeting. Contending that a cook was laid off because of a seasonal slowdown while at the same time seeking help in the same job category is incredulous. Under all the circum- stances, I find the conclusion that Lloyd Ernest Woodward was terminated because of his activity and interest on be- half of the Union inescapable. The reason advanced by Respondent-seasonal layoff-was a pretext. Respondent is guilty of having violated Section 8(a)(3) and (1) of the Act. D. The Discharge of Sharon Stetson Sharon Stetson testified that she went to work at the Cabana Motel as a maid the first of August and worked until September 22. She was hired by Rita Cook, the head housekeeper, for whom she had previously worked at the Ramada Inn. Stetson signed the union petition and attend- ed the union meeting on September 10. She testified that she had discussed the Union with both Rita Cook and Barbara Ries and they had seen her at the union meeting. On September 22, when she reported for work she found that Rita Cook had been replaced by Gloria Salvatore. Af- ter learning Gloria had inspected all of the rooms the week before and had found all but one unsatisfactory, Sharon asked Gloria if she could tell her what was wrong with her rooms because she cleaned the same ones every day. Salva- tore responded, "Well, I really don't remember. Mrs. Ro- bards has the list." There followed a brief discussion re- garding the dirty condition of the rugs which should have been scrubbed by the maintenance people and the worn out condition of many of the bedspreads. As that conversa- tion concluded, Stetson turned to one of the other maids that happened to be in the housekeeping office and told her that she ought to go to the next union meeting. Gloria Salvatore immediately expressed her negative feelings to- ward the Union and advised Sharon that after she "had been with it a long time I'd realized that it really wasn't much help, and that I really didn't know what I was doing in trying to talk other people into going to the meetings." Very shortly, thereafter, Mr. Robards came into the housekeeping room and Gloria said, "We have an unhappy maid here." After Sharon stated that she only wanted to find out that was wrong with her rooms, Gloria Salvatore then said, "I don't think that's what's making her unhappy any way. I ' think it's the union. And I'don't want that on my shift." According to Stetson, Mr. Robards then said, "Well, I don't want the union on my premises." And Glo- ria Salvatore said, "Shall we pull her timecard?" To which Mr. Robards responded, "I think that's a good idea." Later Mr. Robards told Sharon Stetson, "Remember you haven't been fired because of the union, you've been fired for your inefficiencies as a maid." Respondent contends Sharon Stetson was "terminated because she had not been doing her work properly. We had complaints on her rooms." Sharon denied ever having been told that her work was inadequate. Rita Cook testified the rooms were' clean and she had no complaints regarding Sharon. While Mrs. Robards 'spoke in terms of having re- ceived written complaints from guests and that the rooms occupied by the complaining guests were determined to have been assigned to Sharon, none of the written complaints were produced by Respondent at the trial. Mrs. Robards was the resident manager responsible for the day-to-day supervision of the employees. In view of her totally incredi- ble testimony that Woodward (see discussion, supra) was let go because of "seasonal reasons" while at the same time the Cabana Motel was advertising for help in his work category, I find it impossible to credit any of Mrs. Ro- bards' testimony. Mr. Robards was oviously confused and had Sharon Stetson "mixed-up" with Barbara Ries, the as- sistant housekeeper. Considering all the evidence it seems clear that Sharon Stetson was terminated at an earlier date than she would otherwise have been laid off because of the seasonal decline in business, because of her union activity and interest. Such action by Respondent is discriminatory and violative' of Section 8(a)(3) and (1) of the Act. E. The Discharge of Karl Ries Karl Ries is 'a high school student. He had formerly worked for Rita Cook at the Ramada Inn and left there to go to work at the Cabana Motel the first part of August. Karl worked as a houseman whose duty it was to keep the linen closets stocked. Karl testified that he signed the peti- tion requesting an election among the employes on behalf of the Union on August 19 while in the housekeeping office in the presence of Rita Cook, two other maintenance men, and a maid. Karl had been told by Rita that after school started in the fall he could continue to work at the Cabana Motel on the weekends because that's when the work would be the heaviest. Karl testified that school started about September 12 and that he worked one weekend, but was then terminated on September 20. Karl testified that he learned of his discharge from his mother who handed him his final paycheck and told him that Mrs. Robards had given her the check and said that he had been discharged. Mrs. Robards explained that Karl was not terminated, but rather he quit. Mrs. Robards explanation was that a few days after Barbara Ries had been terminated that she 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (Barbara) returned to the motel to pick up a jacket that she had left in the housekeeping department and Karl was with her. On that occasion, she (Mrs. Robard) "asked Karl if he was coming to work the following Saturday and he said, `No, I quit, I'm not coming back to work.' " Barbara Ries testified during her direct examination that both she and Karl were terminated by Mrs. Robards on the afternoon of September 20. As best Mrs. Ries could recall, Mrs. Robards said, "I hate to let you go, I know your hands are tied. But the inspectress inspected the rooms, I talked to Mr. Robards and he said to let you and Karl go." Mrs. Ries testified that she was then handed both her check and her son's check. Again, I find it extremely difficult to believe the testimo- ny of Mrs. Robards. She testified that it was a few days (3 or 4) after Mrs. Ries was discharged that Karl advised her that he was quitting. Yet the summary of employee sever- ences submitted as Respondent's Exhibit 1 reflects that both Karl and Mrs. Ries were terminated on September 20. During cross-examination her efforts to explain this appar- ent inconsistency between Respondent's Exhibit 1 and her testimony became even more confusing and indicative of a contrived story. I find that Karl Ries was terminated from his weekend part-time work because of his activity and interest on behalf of the Union. While Karl's activity was admittedly minimal, he was undoubtedly branded as guilty by association because it was generally known that his mother, Mrs. Barbara Ries, was sympathetic toward the Union. F. Promises, Threats, and Interrogation I have previously related much of the testimony by Woodward, which, according to him, occurred on Septem- ber 13. At that time Mr. Robards, the head chef, Red Col- lins, and Woodward engaged in a discussion and consider- ation of the pros and cons of unionism. During this discussion, according to Woodward, Robards stated that he would pay more wages, higher wages than the Union would, that it was possible to get an insurance coverage without paying out union dues, and that before he would allow the Union to come in, he would close the doors and start all over again. If this testimony by Woodward was only "fanciful dreams" it would seem to have been rela- tively easy for the Respondent to have called Red Collins to deny that Mr. Robards made the alleged statements. An inference adverse to the party who fails to call witnesses otherwise available to it, or neglects to explain the failure to call such witnesses, has been established law since the early days of the Board . Freuhauf Trailer Company, 1 NLRB 68; reversed 85 F.2d 391 (C.A. 6, 1936); 301 U.S. 49 (1937) reversing circuit and enforcing the Board. On this basis I find that on or about September 13, Respondent did threaten to cease doing business before recognizing or bar- gaining with the Union and promised employees improved wages and insurance benefits in order to induce them to abandon their support of the Union . These threats and promises are violative of Section 8(a)(1) of the Act. I have credited the testimony of Sharon Stetson and her conversa- tion with Gloria Salvatore on September 23? In the course of that conversation, Gloria Salvatore, the head housekeep- er who had replaced Rita Cook, asked Sharon how long she had been a member of the Union. Such a question of an employee-particularly when it occurs in the context of other unfair labor practices-is deemed to be interference with an employee's Section 7 rights and thus independently violative of Section 8(a)(1) of the Act .8 V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute un- fair labor practices as set forth in section IV, above, occur- ring in connection with the operations of the Respondent described in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow there- of. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2) and (6) of the Act. 2. The Hotel-Motel-Restaurant Employees and Barten- ders Union Local 86, Hotel and Restaurant Employees and Bartenders International Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Lloyd Woodward on September 14, 1974, Sharon Stetson on September 23, 1974, and Karl Ries on September 20, 1974, because they, and each of them respectively, were interested in and actively support- ing the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By promising improved wages and insurance benefits, by threatening to refuse to recognize or deal with the Union and by interrogating employees, Respondent has been guilty of interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Sec- tion 7, which is in violation of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 6. Any and all allegations contained in the complaint not specifically found herein as a violation of the Act are to be dismissed. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having discriminatorily discharged Lloyd Woodward, on September 14, 1974, Sharon Stetson on September 23, 1974, and Karl Ries on September 20, 1974, 1 find it necessary that Respondent be ordered to reimburse each of them for wages lost, plus interest at 6 7 Again, Salvatore was not called to deny Sharon 's testimony and there 8 N L R B v Elias Bros Big Boy, Inc, 137 NLRB 1057, enfd 325 F.2d was no explanation as to why she was not called 360 (C A. 6, 1963). CABANA MOTEL 401 percent per annum in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co., 138 NLRB 716 (1962). I shall also direct that Karl Ries be reinstated to his part-time weekend em- ployment as houseman. Not only can it be accepted as common knowledge among residents of this area, but the evidence submitted by Respondent tends to prove that em- ployment at motels and lodges in the Lake Tahoe area is a highly seasonal occupation. For this reason, it will be nec- essary for the Regional Office in the compliance stages of this Order to ascertain the date or dates on which Wood- ward and Stetson might have been lawfully laid off, but for the unlawful and discriminatory early layoff. I will also direct that Woodward and Stetson be placed on a preferen- tial hiring list and require that Respondent offer employ- ment to Woodward and Stetson on the occasion of its next period of peak employment (either the summer months or the winter ski months). 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: ORDERS Respondent, Tahoe Management and Leasing Compa- ny, its general partners, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Hotel-Motel-Res- taurant Employees and Bartenders Union Local 86, Hotel and Restaurant Employees and Bartenders International Union, or any other labor organization, by discharging, or in any other manner discriminating against, employees in regard to hire or tenure of employment, or any other term or condition of employment. (b) Interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, by promising employees improved wages and/or in- surance benefits in order to encourage them to abandon their support of the Union, threatening employees by stat- ing that it would cease doing business rather than deal with the Union, and interrogating employees regarding their membership in and activities on behalf of the Union. (c) In any other manner interfering with, restraining, or 9 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 herem 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 coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer to Karl Ries immediate and full reinstatement to his former or substantially equivalent part-time weekend job without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings or other monetary losses suffered by him in the manner set forth in the section above entitled, "The Remedy." (b) Advise Woodward and Stetson that each of them will be placed on a preferential hiring list. At the earliest opportunity, upon the occasion of new employees being hired, Woodward and Stetson shall be offered reemploy- ment opportunities. In the manner set forth in that section hereinabove entitled "The Remedy," make Woodward and Stetson whole for any losses they may have suffered as a result of Respondent's discriminatory discharge of each of these employees. (c) 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 all other records necessary for deter- mination of the amount of backpay due and the right of reinstatement under the terms of this recommended Order. (d) Post at its principal office in the city of South Lake Tahoe, California, or such other places as the usual notices to employees are posted, including the Cabana Motel, cop- ies of the attached notice marked "Appendix." 10 Copies of such notice on forms provided by the Regional Director for Region 20, after being signed by an authorized repre- sentative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, de- faced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 10 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."