Sheraton Inn Airport

DECISIONS OF NATIONAL LABOR RELATIONS BOARD East Bay Properties, d/b/a Sheraton Inn Airport and Retail Clerks Union, Local 1179, Retail Clerks International Association, AFL-CIO. Case 20- CA-1 1398 September 30, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND MURPHY On June 21, 1977, Administrative Law Judge Harold A. Kennedy issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify his Remedy,2 and to adopt his recommended Order, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, East Bay Properties, d/b/a Sheraton Inn Airport, Concord, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph 2(a): "(a) Make Kay Esola and Suzanne Stevenson whole for any loss of earnings and benefits suffered because of their unlawful discharge with backpay to be computed in the manner set forth in the Section of this Decision entitled 'Remedy'." i The Respondent 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 credibility 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). We have carefully examined the record and find no basis for reversing his findings. 2 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977). we shall apply the current 7-percent rate for periods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. DECISION STATEMENT OF THE CASE HAROLD A. KENNEDY, Administrative Law Judge: Based on charges filed by Retail Clerks Union, Local 1179, Retail Clerks International Association, AFL-CIO (hereinafter Union), the General Counsel of the National Labor Relations Board issued a complaint which, as amended,' alleges that Respondent East Bay Properties, d/b/a Sheraton Inn Airport (hereinafter Company) violated Section 8(aX3) and (1) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.), by (a) discharging Kay Esola, (b) "constructively" discharging Suzanne Stevenson, (c) withholding a wage increase from Kay Esola, (d) interrogating employees, and (e) threatening an employee because of union or concerted activity. Respon- dent's answer does not dispute the jurisdictional allegations of the complaint but denies that it violated the Act as alleged. A hearing was held in San Francisco, California, on March 17, 1977. Briefs have been filed by the General Counsel and the Respondent. Upon the entire record,2 including my observation of the witnesses and consideration of the briefs filed, I make the following: FINDING OF FACT I. JURISDICTION - THE BUSINESS OF RESPONDENT The pleadings establish that Respondent is a California corporation engaged in the sale of hotel accommodations, with its principal office being located in Concord, Califor- nia; also, that during the past year Respondent received gross revenues exceeding $500,000 and purchased goods valued in excess of $10,000 from outside the State of California. Further, Respondent does not deny that it is an employer engaged in commerce and in operations affecting commerce as alleged in the complaint. The Sheraton Inn, which opened in July 1973, has over 160 rooms. On April 1, 1976, Respondent employed between 110 and 120 persons, most of whom were members of a union. At the hearing, a contract between Ace Foods, Inc., and Sasha Maloff, owner and president of the Respondent, was received by stipulation. Under the contract (G.C. Exh. 2)3 Ace Foods, Inc. (later known as Hotel and Management Hosts, Inc.) provided management services for the Shera- ton Inn, which were scheduled to begin in October 1975. Maloff explained during his testimony that he contracted for the management services because of a tight credit situation. Maloffsaid: I The original complaint issued on October 29, 1976. The complaint was amended on February 28, 1977, by adding allegation (b) and again at the hearing by adding allegation (c). Allegations (a) and (b) were alleged as 8(aX3) violations and as 8(aXI) derivative violations. Allegations (c), (d), and (e) were charged as 8(aX I) violations. 2 Certain errors in the transcript herein have been noted and corrected. 3 "G.C." is used herein to refer to a General Counsel's exhibit. 670 SHERATON INN AIRPORT The lender that has the construction loan, SMI Security Mortgage and Investment, there [sic] loan was due August 8, 1974. 1 couldn't refinance it because in 1974 there was no market for refinancing ... They gave me a choice: either foreclose on me or make me hire a management company ... Bob Nichols was the first general manager of the Sheraton Inn and remained in the position until Ace Foods' management took over. Anthony Zarkos, who was selected as the hotel's general manager by Ace Foods, arrived and took charge in February 1976. Eric Umstaddt, the new director of sales for the Sheraton Inn, arrived on April 6, 1976. Both Zarkos and Umstaddt had left by August 1976 when Sasha Maloff took over the general manager's position himself. Kay Esola, the General Counsel's primary witness, started work for Respondent in November 1972 doing "pre-sales" work. She continued to work in sales until terminated by Respondent on April 12, 1976. She returned to work for Respondent on or about October 1, 1977, and has been in charge of sales for the hotel since that time. Suzanne Stevenson, referred to as Sue, was also a principal witness for the General Counsel. She worked as catering and sales secretary for Respondent from Novem- ber 17, 1975, until April 23, 1976, when she quit because she had become "tired of being harassed." Two other persons, Wynetta Michaud, a sales representative, and Vera Pate, the catering manager, were also involved in sales work for the hotel, but neither testified. Ii. THE UNION The Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. Actions Affecting Kay Esola Carl Jones, an official of the United Steel Workers until his recent retirement, testified that "girls" from the Sheraton Inn became interested in becoming organized in 1975 when they learned what the office workers in his union "got paid and what their working conditions were. They started signing some cards." Kay Esola signed a United Steel Workers authorization card at that time and asked two other persons to do so. The organizing effort failed at that time she said as "[W]e were just too scared, and it didn't seem like the right time or the appropriate thing to do." She mentioned her interest in the Steel Workers Union to "some of the front desk people" and, at a later time, to General Manager Mike Zarkos during a "friendly meeting" when the two of them were discussing settlement of her claim that she had not been fully paid for all past commissions due her. Esola had discussions concerning the moneys due her initially with Bob Nichols when he was general manager of the hotel. The discussions continued with Mike Zarkos and 4 Respondent's employment of Umstaddt proved to be an unpopular move. Even Owner Sasha Maloff testified, "I didn't like Eric either." also involved Sasha Maloff, the owner. Esola described the dispute as a "very long tedious thing." During much of the negotiations Carl Jones participated on her behalf as a friend - not as a United Steel Workers official. According to Esola, "it was very hard for me to show strength with Bob Nichols." "I decided," she added, "that the way things were going with the hotel and the management corpora- tion, and the negative rumors about the position of the hotel, I would have someone represent me on a non-official basis, and Carl Jones was willing to act as my spokesman." The matter was finally settled in March 1976 with Esola being paid $2,400. In March 1976, Kay Esola signed a second authorization card for the Steel Workers. By way of explanation, she said, "I was concerned about my job protection because of the changes that were taking place." Tony Cannata, an official of the Contra Costa Council advised her, however, that the Retail Clerks was the appropriate union for her to join, not the United Steel Workers. Cannata contacted Bill Hender- son, president of Retail Clerks Local 1179, and arranged to secure Retail Clerks Union authorization cards. Esola spoke to Wynetta Michaud and Sue Stevenson about joining. Sue signed one of the cards on April 5, 1976, and Kay signed another on the following day, April 6. April 6, 1976, was the day Eric Umstaddt arrived to take over Esola's job as head of sales for the hotel. With Umstaddt's arrival, Esola's work situation became almost intolerable.4 Actually, Esola's work relations with her previous supervisors had already been difficult. She found Bob Nichols to be a "very strong" and "unpleasant" person to deal with. Tony Zarkos, who had been "extreme- ly sympathetic" at first over her unpaid commissions, had also become difficult. She was to hear Zarkos say "[a t one time . . . that he though I had made a mistake bringing Mr. Jones in with regard to the commissions," and at another that "it was a good thing that they didn't find out" about her organizing activities on behalf of the Steel Workers. Esola also recalled an occasion when Zarkos "had a real temper tantrum" that provoked her to say that "[i]f you don't get off my back, I will have the strongest union to protect me." In mid-March 19765 Zarkos at a staff meeting "apolo- gized for the unrest that had been created" and announced "that there wouldn't be anymore changes." But on Tuesday, April 6 - after denying a report as late as Friday, April 2, that a new director of marketing had been hired - Zarkos introduced Eric Umstaddt as the hotel's new sales head. According to Esola, "Mr. Zarkos introduced us to Eric, and strongly admonished that no one was to ask any questions at anytime anymore, that everything would be going through Eric." Although told at the time that she was a "good sales person and . . . could stay on the team," furniture was immediately rearranged with the result that Esola was without a desk. When Esola inquired where she might keep her purse, Umstaddt offered her a drawer in Wynetta Michaud's desk. 5 The transcnript reads March 1975 at one point but Zarkos was not at the hotel in 1975. 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kay Esola was discharged by Umstaddt on Monday, April 12,6 less than a week after he had taken over. Carl Jones was in the Sheraton Inn on that morning and "had a run in with the new sales manager over some charges." Later on that day he said he spoke with Zarkos about the matter and also about a "rumor" that Esola was to be fired. Jones testified in this regard as follows: And I told him I heard that he was going to fire Kay Esola. And he assured me in the discussions, the settlement discussions, that there would be no - I guess - retaliations against Kay. You know, for having gone for her money or for having used me to talk for her. And that I thought that he was double crossing me. He assured me that she was one of his best employees. That he liked her on his team and then he left. But 20 or 30 minutes later Jones said he saw Esola in the hotel and learned that Umstaddt had fired her. In the early part of April 12 Kay Esola was away from the hotel making a business call in Burlingame, California. She spoke to Umstaddt on the telephone before returning and learned that she was "to immediately return to the hotel." She did so - after telephoning Cannata and trying, without success, to reach Carl Jones and Bill Henderson. Esola testified that Umstaddt spoke to her as follows in his office when she arrived around 3 p.m.: "Kay, we are both adults and we are going to sever our relationship." Asked the reason for her termination, she said Umstaddt replied, "I just don't think I want you on my team." Esola testified that she asked to speak to Zarkos at that time but was told "no, that Zarkos didn't want to speak to me ... ." Cannata testified that after speaking with Kay Esola on the telephone he called Zarkos about 2 p.m. on April 12 and advised him that "the girls from the sales department" had signed authorization cards and were "being represent- ed by a union." Cannata said he declined to disclose at that time who had signed the cards, but Zarkos responded: "I know who. I know who. Kay Esola was one of them." And he wanted to know which union, but he was angry at the time. He made accusations. He accused me of trying to intimidate him ... Esola discussed reinstatement at the Sheraton Inn with Sasha Maloff in August and September 1976 after he had taken over as general manager of the hotel. At the first meeting, on or about August 31, they discussed their problems and "patted each other on the back." Esola recalled certain statements made by Mr. Maloff at that time: He said he liked me and he liked my work, and he said he would like to have me back, but he said he wished I hadn't brought in Carl Jones. 6 The transcript at one point reports that the day was Monday. April 10. T Esola also said her reinstatement was not "conditioned upon [her] dropping [her] participation in this hearing." 8 My recommended Order will provide for backpay for this period. 9 See letter of President Henderson of the Retail Clerks Union dated March 11, 1977, to Kay Esola (G.C. Exh. 5). He told me that Tom Stark, one of his attorneys, had represented that I not be brought back because of the things I had done with the unions ... Esola met with Maloff again about September 19 at which time she said he spoke of needing her "complete loyalty," making note of "the fact that this whole issue [of an NLRB inquiry] being an indication of lack of loyalty." In testifying later, Mr. Maloff agreed that he told Esola that "[b]efore you come back to work we will have to straighten out the union affairs." He denied, however, that her return to work was "conditioned" upon her dropping her charges.7 Kay Esola was reinstated on or about October I, 1976, although she actually returned "a few days before that" to "help put a party together." No back wages were paid for the period she had been unemployed by the hotel (i.e., between April 12 and October 1, 1976).8 Maloff did agree later to pay Esola an additional $150 per month out of banquet gratuities, but he undertook to cancel the raise on learning that her unfair labor practice charges had not been withdrawn. Maloff testified that he was "momentarily really mad" when he got notice of the hearing "and told her that if I had to go to court with her I was going to withdraw my promise to you on the wages." Esola tried to withdraw from the proceeding but was unable to do so.9 Maloff testified that after talking with an NLRB attorney he agreed to pay Esola the promised increase in wages - if permitted to do so under the culinary union rules. Clara Cook, manager of a convention bureau, testified about a conversation she had with Sasha Maloff concern- ing Kay Esola. According to Cook, Maloff said Kay "messed up" by bringing "the big labor man in on me." B. Acts Affecting Sue Stevenson Stevenson started work as a secretary for sales and catering at the Sheraton Inn in November 1975. Much of her time was spent preparing daily function forms and thank you form letters sent to hotel customers. She was also called upon to deliver messages and forms or notices within the hotel. One important duty she performed was to keep the banquet crew, including the chef and the person in charge of the receiving department, informed as to the exact count of the number of meals to be served. She liked her job - until Zarkos and Umstaddt arrived on the scene in the spring of 1976. On April 6, 1976, the day Umstaddt arrived and the day she signed an authorization card for the Retail Clerks Union,'0 Stevenson's work station was changed and she was told to answer only to Umstaddt and Catering Manager Vera Pate. She thought she was going to be fired on April 12, 1976, along with Kay Esola, but she was told by Umstaddt that she would not be "as long as you keep your work up." On the same day she was asked, either by Zarkos or Umstaddt, whether she belonged to a union. She 'O Stevenson asked Wynetta Michaud to also sign a card, but she did not. Michaud was initially apprehensive about the changes occurring in the hotel. She became friendly with the new management, however, and served as a sales manager for the hotel for a period. 672 SHERATON INN AIRPORT said she replied " 'yes,' that I belonged to my husband's union, The Retail clerks." t Beginning April 13, Stevenson was required to be at her desk at 8 a.m. and was not permitted to leave at 5 p.m. unless all of her assigned work had been performed. She no longer typed form thank you letters but was called upon to compose lengthy letters. She was also required to assist Wynetta Michaud, who had become a sales manager and was difficult to deal with, as well as the catering manager. She was permitted to leave her desk only two times a day to distribute papers. She had to obtain special permission to go to the restroom. Stevenson testified that on April 16, a day when Retail Clerks Union President Henderson had been in the hotel, she was "pulled" into Zarkos' office and asked why she belonged to a union. She recalled telling him at that time that the Union had "very good" benefits. She testified that Maloff also asked her at one time if she belonged to a union and she replied that she did. On her last day of work, April 23, 1976, Sue Stevenson said Zarkos called her into his office to post an election notice, undoubtedly a notice sent to the hotel by the National Labor Relations Board. She testified that Zarkos "threw" the notice at her and added: "I was a trouble maker and I was all this property needed." Stevenson said she was admonished by Zarkos on the same day not to make personal phone calls shortly after completing a business call to a waitress. Stevenson related one other incident that occurred on her last day of work. She testified that the duty station of bellman Mike Robertson was close to hers and they would sometimes "chit chat for a minute of two." On April 13 Robertson and Sue talked as Robertson cleaned out her ashtray whereupon "Zarkos came walking up ... and asked Mike if he had anything better to do." Shortly thereafter Stevenson said she observed Robertson leave Zarkos' office, but the bellman would not speak to or look at her thereafter. At 2:30 p.m. that day, Stevenson quit work at the hotel, advising Umstaddt that she was tired of being harassed "[bly Zarkos and Wynetta and himself." Sasha Maloff testified that Stevenson had told him when she was first hired that "she would rather not be in the union," a statement she denied making when called to testify on rebuttal. She had stated earlier in her testimony that while working there she had told Maloff, in response to a specific inquiry from him, that she did belong to a union.12 C. Discussion The 8(a)3) charges The amended complaint alleges Respondent violated the Act by: (i) terminating Kay Esola because of her membership in or activity on behalf of the Union or because she engaged in other concerted activities: and (2) n It is not clear from the transcript who asked her about her union membership on that day. She testified that she was in an office with Umstaddt and Zarkos and "they asked me if I belonged to a union." 12 Maloff testified that when he took over as general manager of the hotel he offered to rehire Sue to work in the sales department, even though she wanted to leave early each afternoon. Stevenson said she did not go back to constructively discharging Suzanne Stevenson for the same reasons. The only question for determination with respect to the discharge of Esola is whether it was motivated by an unlawful purpose.13 Respondent maintains that Kay Esola was discharged only because she could not get along with new General Manager Zarkos and Sales Director Um- staddt. According to Respondent, it knew nothing of Esola's union activities and, in any event, it had no animosity toward union activity. After having considered the whole record, I am con- vinced that Esola was terminated, at least in part, because of her union activity. She had taken the lead in attempting to organize the sales staff first on behalf of the Steel Workers and later on behalf of the Retail Clerks. The efforts of Carl Jones, the Steel Workers official, to assist her in obtaining a settlement of her unpaid commissions was undoubtedly regarded by Respondent as part of her union activity. There is nothing in the record that reflects unfavorably upon her work. She was regarded as a competent employee. The unpleasant working relation which Esola encountered with Zarkos and Umstaddt was due in part perhaps to the fact that they were a new team and were lacking in experience in operating the hotel. The inference is inescapable, however, that Kay Esola's union activity was a consideration in her termination. The discharge operated to discourage union activity as it no doubt was intended to do. At the time of her discharge on April 12, 1976, her interest and activities on behalf of the Union were known to Respondent's officials. Zarkos, who obviously approved of her termination, knew of Esola's activities on behalf of the Union as she had told him of them herself. Zarkos had expressed disapproval of the fact that Carl Jones of the Steel Workers had assisted her in negotiating a settlement with the hotel and at one time indicated to her that it was a "good thing" the hotel management did know of her past union activity. Zarkos obviously resented the appearance of Tony Cannata of the Retail Clerks at the hotel on the day she was fired. Zarkos' comment that day, when Cannata declined to disclose who had signed authorization cards, was revealing: "I know who. I know who. Kay Esola was one of them." Respondent's owner, Sasha Maloff, also resented the fact that Esola had asked Carl Jones of the Steel Workers to help recover some past due commissions due her and said so at the hearing as well as before it. The fact that most of the hotel's employees already belonged to a union does not necessarily mean, contrary to Maloffs assertion, that Respondent could not have been opposed to an additional union coming into the hotel or further unionization of the hotel. work at the hotel because Retail Clerks Official Henderson told her she should wait until the Board's investigation had been completed. i3 Respondent's answer denies that Umstaddt and Zarkos were agents of Respondent. It is clear from the record that both had authority over the activities and personnel in the sales department and exercised it. Respon- dent does not raise this issue in its brief. 673 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the other 8(a)(3) charge, Respondent argues that Sue Stevenson quit voluntarily and was not constructively discharged.'4 The evidence indicates other- wise, however. Stevenson was also a good employee. Her sympathy and activity on behalf of Retail Clerks were known by Respondent's officials. She had signed an authorization card and asked Wynetta Michaud to do so. She had told Zarkos and Maloff, in response to questions from each, that she belonged to the Union. Zarkos was angered over the efforts at unionizing of the sales staff. He threw the NLRB poster at Stevenson and referred to her as a troublemaker. Zarkos and Umstaddt followed a course of harassment toward Stevenson, the only union member left on the sales staff after Kay Esola was fired. For all practical purposes, Stevenson was confined to her desk and directed to perform tasks that she was not hired to do. The onerous working conditions imposed upon her were designed to embarrass her and discourage union participation. They were not, as Respondent asserts, simply new procedures instituted by management to make the hotel more efficient.15 The allegations of paragraph VIII(a) and (b) of the complaint were sustained. The amended complaint alleges Respondent violated the Act by: (I) interrogating employees about their union activities; (2) threatening an employee with termination because of her union and/or concerted activities; and (3) withholding a wage increase because of an employee's participation in a National Labor Relations Board hear- ing.' 6 Respondent concedes in its brief, as it must,' 7 that Respondent unlawfully questioned employees about union activities, and it is therefore unnecessary to analyze the evidence with respect to paragraph Vl(a) of the complaint. The record does not establish that Respondent threat- ened termination of any employee for union or other concerted activity, and the General Counsel has not asked for any finding or relief with respect to the allegation contained in paragraph VI(b) of the complaint. The remaining allegation of the amended complaint, paragraph VI(c), was established. Maloff himself testified that when Kay Esola approached him about a raise he checked with the appropriate department in the hotel and then agreed to give her "a share of the gratuities." He also testified that after he got a letter notifying him to appear at the hearing in this matter he got "really mad" and told Esola that "if I had to go to court with her I was going to withdraw my promise to you on the wages." Maloff said he later explained to an NLRB attorney that he would be willing to pay Esola the promised raise except that he had 14 Quoting from the Fourth Circuit's decision in J. P. Stevens & Co., Inc. v. N.L. R.B., 461 F.2d 490(1972): Where an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job because of union activities or union membership, the employer has constructively discharged the employee in violation of... § 8(aX3) [of the Act ... [Citations omitted.] Is Respondent cites two cases in support of its position that Sue Stevenson was not constructively discharged. Neither case is apposite. In General Adjustment Bureau, Inc.. a New York corporation v. N.LR.B., 331 F.2d 913 (C.A. 7, 1963), the Board had found a constructive discharge of an unsatisfactory employee who had resigned "to protect his employment been advised that a union contract, presumably made with Respondent's culinary workers, prevented payment of a raise out of any gratuities. The union rules, however, are not relevant in determin- ing whether Respondent could lawfully repudiate the promised raise to Esola. Maloff withdrew the raise admittedly because she had not withdrawn her unfair labor practice charges, and such an act on his part interfered with the exercise of her Section 7 rights.?8 The allegation contained in paragraph VI(c) of the complaint was established. CONCLUSIONS OF LAW I. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Retail Clerks Union, Local 1179, Retail Clerks International Association, AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By interrogating employees as to union membership, Respondent violated Section 8(a)(1) of the Act. 4. By withholding a wage increase promised Kay Esola because of her participation in a National Labor Relations Board proceeding, Respondent violated Section 8(a)(1) of the Act. 5. By terminating Kay Esola because she engaged in protected concerted activity, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 6. By constructively discharging Suzanne Stevenson because she was engaged in protected concerted activity, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)( ) and (3) of the Act. REMEDY It having been found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that Respondent cease and desist therefrom and take affirmative action to effectuate the policies of the Act. It has been found that Respondent unlawfully dis- charged Kay Esola on April 12, 1976, but she was reinstated on October 1, 1976, to a position substantially equivalent to the position that she had held on April 12, 1976. Accordingly, the recommended Order will provide for making her whole for the loss of earnings and other benefits within the meaning of and in accord with the Board's decisions in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB record." He had specified an effective date sometime in the future and said on several occasions that he had actually resigned voluntarily to enter politics. In the other case, N.LR.B v. Coats & Clark, Inc., 241 F.2d 556 (C.A. 5, 1957), the Board found that there was no constructive discharge but, notwithstanding such finding, had ordered reinstatement of the employee. 16 Sec. 8(aX 4) of the Act prohibits discrimination -against an employee because he has filed charges or given testimony under this Act," but Respondent was not charged with violating this provision of the Act. I7 Both Zarkos and Maloff interrogated Sue Stevenson about her union membership. 18 As has been noted, supra, Esola tried, unsuccessfully. to withdraw her charges. Cf. Wray Electric Contracting, Inc., 210 NLRB 757 (1974). 674 SHERATON INN AIRPORT 716 (1962), for the period April 12, 1976, to October 1, 1976. Further, I shall recommend that Kay Esola, in addition to the backpay as provided above, be paid the $150 monthly raise promised her by Sasha Maloff. The effective date of such raise is to be determined in the subsequent backpay proceeding. Having found that Respondent constructively discharged Suzanne Stevenson on April 23, 1976, in violation of Section 8(a)(3) and (1) of the Act, my recommended Order will provide that Respondent is to make her whole for any loss of pay or other benefits suffered by reason of the discrimination in accord with F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. It appears that Respondent made an unqualified offer to reinstate Stevenson, which offer was refused. Whether there was in fact a refusal of an unqualified offer of reinstatement and the date thereof, if there was one, are to be determined in the subsequent backpay proceeding. 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: ORDER 19 Respondent, East Bay Properties, d/b/a Sheraton Inn Airport, Concord, California, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees regarding their union activi- ties, sympathies, and desires. (b) Discharging or otherwise discriminating against employees in regard to hire or tenure of employment or any term or condition of employment because of union or protected concerted activities. (c) Withholding from an employee any raise or other benefit because of participation in a National Labor Relations Board proceeding. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Make Kay Esola and Suzanne Stevenson whole for any loss of earnings and benefits suffered because of their unlawful discharge, with backpay to be computed in accordance with F. W. Woolworth Company, supra, and Isis Plumbing & Heating Co., supra. (b) Make Kay Esola whole for loss of any raise or earnings because she filed charges or participated in a proceeding instituted under the Act. (c) Preserve and, upon request, make available to the Board or its agents all payroll and other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its Concord, California, operation, copies of the attached notice marked, "Appendix." 20 Copies of said notice, on forms to be provided by the Regional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by it 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 customarily posted. Reasonable steps shall be taken by Respondent to ensure the said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions. and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 20 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall 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 WE WILL NOT interrogate employees as to their own and other employees' union activities. WE WILL NOT discourage membership in Retail Clerks Union, Local 1179, Retail Clerks International Association, AFL-CIO, or in any other labor organiza- tion, by discharging employees, or in any other manner discriminating in regard to hire or tenure of employ- ment or any term or condition of employment. WE WILL NOT withhold raises because an employee files charges or participates in a proceeding before the National Labor Relations Board. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WILL make Kay Esola and Suzanne Stevenson whole for any loss of pay suffered as a result of the discrimination against them, plus interest. EAST BAY PROPERTIES, D/B/A SHERATON INN AIRPORT 675