Holiday Inn of Santa Maria

HOLIDAY INN OF SANTA MARIA 649 Holiday Inn of Santa Maria and Culinary Alliance ercise of rights guaranteed in Section 7 of the and Bartenders Union, Local No. 703, Hotel & Act." Restaurant Employees and Bartenders Interna- 2. Substitute the attached notice for that of the tional Union, AF-CIO. Cases 31-CA-8817 Administrative Law Judge. and 31-CA-9593 APPENDIX December 11, 1981 NOTICE To EMPLOYEES DECISION AND ORDER NOTICE To EMPLOYEES POSTED BY ORDER OF THE BY CHAIRMAN VAN DE WATER AND NATIONAL LABOR RELATIONS BOARD MEMBERS JENKINS AND HUNTER An Agency of the United States Government On July 28, 1981, Administrative Law Judge James T. Barker issued the attached Decision in WE WILL NOT, by inferring a threat to their this proceeding. Thereafter, the General Counsel job security, instruct our employees not to filed an exception. contact or consult with the Union, or repre- Pursuant to the provisions of Section 3(b) of the sentatives thereof, concerning problems or National Labor Relations Act, as amended, the Na- matters relating to ther terms and conditions tional Labor Relations Board has delegated its au- of employment, without first consulting with thority in this proceeding to a three-member panel. supervision or management with respect there- The Board has considered the record and the at- to. tached Decision in light of the exception and has WE WILL NOT constructively discharge em- decided to affirm the rulings, findings, and conclu- ployees for contacting the Union concerning sions t of the Administrative Law Judge and to overtime pay or any other matter relating to adopt his recommended Order, as modified herein. 2 their wages, hours, or terms and conditions of employment. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ- Relations Act, as amended, the National Labor Re- ees in the exercise of the rights guaranteed by lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge, as modi- WE WILL offer Paul Flores, who was con- fied herein, and hereby orders that the Respondent, structively discharged on March 2, 1979, im- Holiday Inn of Santa Maria, Santa Maria, Califor- mediate and full reinstatement to his former nia, its officers, agents, successors, and assigns, position or, if such job no longer exists, to a shall take the action set forth in the said recom- substantially equivalent position, without prej- mended Order, as so modified: udice to his seniority or other rights and privi- 1. Substitute the following for paragraph l(c): leges. "(c) In any like or related manner interfering WE WILL make Paul Flores whole for any with, restraining, or coercing employees in the ex- loss of earnings, plus interest, he may have suf- fered as a result of having been constructively The General Counsel has excepted to the failure of the Administra- discharged. tive Law Judge to state, in his Conclusion of Law 4, that by construc- tively terminating Paul Flores on March 2, 1979, Respondent violated Sec. 8(aXl) and (3) of the Act. The evidence supports the conclusion that HOLIDAY INN OF SANTA MARIA Respondent's conduct violated said section, and the analysis of the Ad- ministrative Law Judge clearly indicates that his omission was by inad- DECISION vertence only. We hereby modify the Administrative Law Judge's Con- clusions of Law accordingly. STATEMENT OF THE CASE i In par. I(c) of his recommended Order, the Administrative Law Judge included a broad cease-and-desist order against Respondent. We JAMES T. BARKER, Administrative Law Judge: This find it unnecessary to impose such a broad order against Respondent. As cae w h b m a S M i ifnia the General Counsel has not demonstrated that Respondent has a procliv- case washeard before me at anta Ma li ity to violate the Act, or that Respondent has engaged in such wide- January 20, 21, 22, 28, and 29, 1981, pursuant to an order spread or egregious misconduct as to demonstrate a general disregard for consolidating cases, consolidated amended complaint and its employees' fundamental statutory rights, a broad order is not warrant- notice of hearing issued on July 22, 1980, by the Region- ed here. Hickmott Food Inc., 242 NLRB 1357 (1979). Accordingly, we Director f the National Labor Relations Board for will modify the Administrative Law Judge's recommended Order by sub- r e c t o r t h e a t o n a l L a e l a t o n s o a r o r stituting narrow cease-and-desist language for the broad language used by Region 31. The charge in Case 31-CA-8817 was filed by the Administrative Law Judge. There is no need to similarly modify the the Culinary Alliance and Bartenders Union, Local No. Administrative Law Judge's notice, since it already contains narrow 703, Hotel & Restaurant Employees and Bartenders In- cease-and-desist language. cease-and-desist language. ternational Union, AFL-CIO, hereinafter called the In accordance with his dissent in Olympic Medical Corporation, 250 ternational nion AFL-CIO, hereinafter called the NLRB 146 (1980), Member Jenkins would award interest on the backpay Union, on March 13, 1979, and was duly served upon due based on the formula set forth therein. Respondent; and the charge in Case 31-CA-9593 was 259 NLRB No. 89 HOLIDAY INN OF SANTA MARIA 649 Holiday Inn of Santa Maria and Culinary Alliance ercise of rights guaranteed in Section 7 of the and Bartenders Union, Local No. 703, Hotel & Act." Restaurant Employees and Bartenders Interna- 2. Substitute the attached notice for that of the ti onarl Union, AFL C O . Ca ses 3 1- C A - 8 8 17 Administrative Law Judge. and 31-CA-9593 ^ , ,, ,00, ~~~APPENDIX December 11, 1981 DECISION AND ORDER NOTICE To EMPLOYEES POSTED BY ORDER OF THE BY CHAIRMAN VAN DE WATER AND NATIONAL LABOR RELATIONS BOARD MEMBERS JENKINS AND HUNTER An Agency of the United States Government On July 28, 1981, Administrative Law Judge WIL N b r t to r James T. Barker issued the attached Decision in jo W E W I L L N OT s i inferring a threatee their this proceeding. Thereafter, the General Counsel co bntac r c n str u c t o u r employees not to filed an exception. c o n t a c t o r c o n su l t wc th t he Uni o n g o r ol ps - Pursuant to the provisions of Section 3(b) of the sentatives thereof, concerning problems or National Labor Relations Act, as amended, the Na- m a t t e r s empl e t o t h eo r te r m s a n d conditions tional Labor Relations Board has delegated its au- o f employment, without first consulting with thority in this proceeding to a three-member panel. supervision or management with respect there- The Board has considered the record and the at- t o . tached Decision in light of the exception and has W E W I L L N OT constructively discharge em- decided to affirm the rulings, findings, and conclu- ployees for contacting the Union concerning sions' of the Administrative Law Judge and to overtime pay or any other matter relating to adopt his recommended Order, as modified herein.2 t h eir wages, hours, or terms and conditions of employment. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ- Relations Act, as amended, the National Labor Re- ees in the exercise of the rights guaranteed by lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge, as modi- W E W ILL offer Paul Flores, who was con- fied herein, and hereby orders that the Respondent, structively discharged on March 2, 1979, im- Holiday Inn of Santa Maria, Santa Maria, Califor- mediate and full reinstatement to his former nia, its officers, agents, successors, and assigns, position or, if such job no longer exists, to a shall take the action set forth in the said recom- substantially equivalent position, without prej- mended Order, as so modified: u d ic e t o h is seniority or other rights and privi- 1. Substitute the following for paragraph l(c): leges. "(c) In any like or related manner interfering W E W IL L make Paul Flores whole for any with, restraining, or coercing employees in the ex- lo ss of earnings, plus interest, he may have suf- fered as a result of having been constructively 'The General Counsel has excepted to the failure of the Administra- discharged. tive Law Judge to state, in his Conclusion of Law 4, that by construc- tively terminating Paul Flores on March 2, 1979, Respondent violated Sec. 8(aXl) and (3) of the Act. The evidence supports the conclusion that HOLIDAY INN OF SANTA MARIA Respondent's conduct violated said section, and the analysis of the Ad- ministrative Law Judge clearly indicates that his omission was by inad- DECISION vertence only. We hereby modify the Administrative Law Judge's Con- clusions of Law accordingly. STATEMENT OF THE CASE I In par. l(c) of his recommended Order, the Administrative Law Judge included a broad cease-and-desist order against Respondent. We JAMES T. BARKER, Administrative Law Judge: This find it unnecessary to impose such a broad order against Respondent. As case .. „ i.-.^ b-«~._ _- -» c__»- if- ~ ia- „ the General Counsel has not demonstrated that Respondent has a procliv- c ase w a s h ea rd be fo re m e a t S an ta M a r a, C l i fo rn i on ity to violate the Act, or that Respondent has engaged in such wide- January 20, 21, 22, 28, and 29, 1981, pursuant to an order spread or egregious misconduct as to demonstrate a general disregard for consolidating cases, consolidated amended complaint and its employees' fundamental statutory rights, a broad order is not warrant- notice of hearing issued On July 22, 1980, by the Region- ed here. Hickmoan Foods, Inc., 242 NLRB 1357 (1979). Accordingly, we ^ Director of the National Labor Relations Board for will modify the Administrative Law Judge's recommended Order by sub- a Dir ect o r o f t h e Na tio n al L abo r Rel atio ns oa rd fo r stituting narrow cease-and-desist language for the broad language used by Region 31. The charge in Case 31-CA-8817 was filed by the Administrative Law Judge. There is no need to similarly modify the the Culinary Alliance and Bartenders Union, Local No. Administrative Law Judge's notice, since it already contains narrow 703, Hotel & Restaurant Employees and Bartenders In- cems-and-desist language. trainlUin F-I, hriatrcle h In accordance with his dissent in Olympic Medical Corparion, 250 te rn at io n al U n io n A F L - C I O , h er ein a f te r c al led t h e NLRB 146 (1980), Member Jenkins would award interest on the backpay Union, on March 13, 1979, and was duly Served Upon due based on the formula set forth therein. Respondent; and the charge in Case 31-CA-9593 was 259 NLRB No. 89 HOLIDAY INN OF SANTA MARIA 649 Holiday Inn of Santa Maria and Culinary Alliance ercise of rights guaranteed in Section 7 of the and Bartenders Union, Local No. 703, Hotel & Act." Restaurant Employees and Bartenders Interna- 2. Substitute the attached notice for that of the ti onarl Union, AFL C O . Ca ses 3 1- C A - 8 8 17 Administrative Law Judge. and 31-CA-9593 ^ , ,, ,00, ~~~APPENDIX December 11, 1981 DECISION AND ORDER NOTICE To EMPLOYEES POSTED BY ORDER OF THE BY CHAIRMAN VAN DE WATER AND NATIONAL LABOR RELATIONS BOARD MEMBERS JENKINS AND HUNTER An Agency of the United States Government On July 28, 1981, Administrative Law Judge WIL N b r t to r James T. Barker issued the attached Decision in jo W E W I L L N OT s i inferring a threatee their this proceeding. Thereafter, the General Counsel co bntac r c n str u c t o u r employees not to filed an exception. c o n t a c t o r c o n su l t wc th t he Uni o n g o r ol ps - Pursuant to the provisions of Section 3(b) of the sentatives thereof, concerning problems or National Labor Relations Act, as amended, the Na- m a t t e r s empl e t o t h eo r te r m s a n d conditions tional Labor Relations Board has delegated its au- o f employment, without first consulting with thority in this proceeding to a three-member panel. supervision or management with respect there- The Board has considered the record and the at- t o . tached Decision in light of the exception and has W E W I L L N OT constructively discharge em- decided to affirm the rulings, findings, and conclu- ployees for contacting the Union concerning sions' of the Administrative Law Judge and to overtime pay or any other matter relating to adopt his recommended Order, as modified herein.2 t h eir wages, hours, or terms and conditions of employment. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ- Relations Act, as amended, the National Labor Re- ees in the exercise of the rights guaranteed by lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge, as modi- W E W ILL offer Paul Flores, who was con- fied herein, and hereby orders that the Respondent, structively discharged on March 2, 1979, im- Holiday Inn of Santa Maria, Santa Maria, Califor- mediate and full reinstatement to his former nia, its officers, agents, successors, and assigns, position or, if such job no longer exists, to a shall take the action set forth in the said recom- substantially equivalent position, without prej- mended Order, as so modified: u d ic e t o h is seniority or other rights and privi- 1. Substitute the following for paragraph l(c): leges. "(c) In any like or related manner interfering W E W IL L make Paul Flores whole for any with, restraining, or coercing employees in the ex- lo ss of earnings, plus interest, he may have suf- fered as a result of having been constructively 'The General Counsel has excepted to the failure of the Administra- discharged. tive Law Judge to state, in his Conclusion of Law 4, that by construc- tively terminating Paul Flores on March 2, 1979, Respondent violated Sec. 8(aXl) and (3) of the Act. The evidence supports the conclusion that HOLIDAY INN OF SANTA MARIA Respondent's conduct violated said section, and the analysis of the Ad- ministrative Law Judge clearly indicates that his omission was by inad- DECISION vertence only. We hereby modify the Administrative Law Judge's Con- clusions of Law accordingly. STATEMENT OF THE CASE I In par. l(c) of his recommended Order, the Administrative Law Judge included a broad cease-and-desist order against Respondent. We JAMES T. BARKER, Administrative Law Judge: This find it unnecessary to impose such a broad order against Respondent. As case .. „ i.-.^ b-«~._ _- -» c__»- if- ~ ia- „ the General Counsel has not demonstrated that Respondent has a procliv- c ase w a s h ea rd be fo re m e a t S an ta M a r a, C l i fo rn i on ity to violate the Act, or that Respondent has engaged in such wide- January 20, 21, 22, 28, and 29, 1981, pursuant to an order spread or egregious misconduct as to demonstrate a general disregard for consolidating cases, consolidated amended complaint and its employees' fundamental statutory rights, a broad order is not warrant- notice of hearing issued On July 22, 1980, by the Region- ed here. Hickmoan Foods, Inc., 242 NLRB 1357 (1979). Accordingly, we ^ Director of the National Labor Relations Board for will modify the Administrative Law Judge's recommended Order by sub- a Dir ect o r o f t h e Na tio n al L abo r Rel atio ns oa rd fo r stituting narrow cease-and-desist language for the broad language used by Region 31. The charge in Case 31-CA-8817 was filed by the Administrative Law Judge. There is no need to similarly modify the the Culinary Alliance and Bartenders Union, Local No. Administrative Law Judge's notice, since it already contains narrow 703, Hotel & Restaurant Employees and Bartenders In- cems-and-desist language. trainlUin F-I, hriatrcle h In accordance with his dissent in Olympic Medical Corparion, 250 te rn at io n al U n io n A F L - C I O , h er ein a f te r c al led t h e NLRB 146 (1980), Member Jenkins would award interest on the backpay Union, on March 13, 1979, and was duly Served Upon due based on the formula set forth therein. Respondent; and the charge in Case 31-CA-9593 was 259 NLRB No. 89 HOLIDAY INN OF SANTA MARIA 649 Holiday Inn of Santa Maria and Culinary Alliance ercise of rights guaranteed in Section 7 of the and Bartenders Union, Local No. 703, Hotel & Act." Restaurant Employees and Bartenders Interna- 2. Substitute the attached notice for that of the ti onarl Union, AFL C O . Ca ses 3 1- C A - 8 8 17 Administrative Law Judge. and 31-CA-9593 ^ , ,, ,00, ~~~APPENDIX December 11, 1981 DECISION AND ORDER NOTICE To EMPLOYEES POSTED BY ORDER OF THE BY CHAIRMAN VAN DE WATER AND NATIONAL LABOR RELATIONS BOARD MEMBERS JENKINS AND HUNTER An Agency of the United States Government On July 28, 1981, Administrative Law Judge WIL N b r t to r James T. Barker issued the attached Decision in jo W E W I L L N OT s i inferring a threatee their this proceeding. Thereafter, the General Counsel co bntac r c n str u c t o u r employees not to filed an exception. c o n t a c t o r c o n su l t wc th t he Uni o n g o r ol ps - Pursuant to the provisions of Section 3(b) of the sentatives thereof, concerning problems or National Labor Relations Act, as amended, the Na- m a t t e r s empl e t o t h eo r te r m s a n d conditions tional Labor Relations Board has delegated its au- o f employment, without first consulting with thority in this proceeding to a three-member panel. supervision or management with respect there- The Board has considered the record and the at- t o . tached Decision in light of the exception and has W E W I L L N OT constructively discharge em- decided to affirm the rulings, findings, and conclu- ployees for contacting the Union concerning sions' of the Administrative Law Judge and to overtime pay or any other matter relating to adopt his recommended Order, as modified herein.2 t h eir wages, hours, or terms and conditions of employment. ORDER WE WILL NOT in any like or related manner Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce our employ- Relations Act, as amended, the National Labor Re- ees in the exercise of the rights guaranteed by lations Board adopts as its Order the recommended Section 7 of the Act. Order of the Administrative Law Judge, as modi- W E W ILL offer Paul Flores, who was con- fied herein, and hereby orders that the Respondent, structively discharged on March 2, 1979, im- Holiday Inn of Santa Maria, Santa Maria, Califor- mediate and full reinstatement to his former nia, its officers, agents, successors, and assigns, position or, if such job no longer exists, to a shall take the action set forth in the said recom- substantially equivalent position, without prej- mended Order, as so modified: u d ic e t o h is seniority or other rights and privi- 1. Substitute the following for paragraph l(c): leges. "(c) In any like or related manner interfering W E W IL L make Paul Flores whole for any with, restraining, or coercing employees in the ex- lo ss of earnings, plus interest, he may have suf- fered as a result of having been constructively 'The General Counsel has excepted to the failure of the Administra- discharged. tive Law Judge to state, in his Conclusion of Law 4, that by construc- tively terminating Paul Flores on March 2, 1979, Respondent violated Sec. 8(aXl) and (3) of the Act. The evidence supports the conclusion that HOLIDAY INN OF SANTA MARIA Respondent's conduct violated said section, and the analysis of the Ad- ministrative Law Judge clearly indicates that his omission was by inad- DECISION vertence only. We hereby modify the Administrative Law Judge's Con- clusions of Law accordingly. STATEMENT OF THE CASE I In par. l(c) of his recommended Order, the Administrative Law Judge included a broad cease-and-desist order against Respondent. We JAMES T. BARKER, Administrative Law Judge: This find it unnecessary to impose such a broad order against Respondent. As case .. „ i.-.^ b-«~._ _- -» c__»- if- ~ ia- „ the General Counsel has not demonstrated that Respondent has a procliv- c ase w a s h ea rd be fo re m e a t S an ta M a r a, C l i fo rn i on ity to violate the Act, or that Respondent has engaged in such wide- January 20, 21, 22, 28, and 29, 1981, pursuant to an order spread or egregious misconduct as to demonstrate a general disregard for consolidating cases, consolidated amended complaint and its employees' fundamental statutory rights, a broad order is not warrant- notice of hearing issued On July 22, 1980, by the Region- ed here. Hickmoan Foods, Inc., 242 NLRB 1357 (1979). Accordingly, we ^ Director of the National Labor Relations Board for will modify the Administrative Law Judge's recommended Order by sub- a Dir ect o r o f t h e Na tio n al L abo r Rel atio ns oa rd fo r stituting narrow cease-and-desist language for the broad language used by Region 31. The charge in Case 31-CA-8817 was filed by the Administrative Law Judge. There is no need to similarly modify the the Culinary Alliance and Bartenders Union, Local No. Administrative Law Judge's notice, since it already contains narrow 703, Hotel & Restaurant Employees and Bartenders In- cems-and-desist language. trainlUin F-I, hriatrcle h In accordance with his dissent in Olympic Medical Corparion, 250 te rn at io n al U n io n A F L - C I O , h er ein a f te r c al led t h e NLRB 146 (1980), Member Jenkins would award interest on the backpay Union, on March 13, 1979, and was duly Served Upon due based on the formula set forth therein. Respondent; and the charge in Case 31-CA-9593 was 259 NLRB No. 89 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the Union on December 4, 1979, and service on by separately instructing an employee to bypass the Respondent was duly accomplished. The parties were Union and take complaints directly to management. represented by counsel at the hearing and were provided Respondent denies the commission of any unfair labor full opportunity to make opening and closing statements, practices and affirmatively contends, in substance, that to examine and cross-examine witnesses, to introduce rel- Flores' termination was voluntary and not constructively evant evidence, and to file briefs with me. Counsel for caused. Further, Respondent asserts that Mastriano was the General Counsel and counsel for Respondent filed terminated because she was grossly insubordinate and, in briefs with me. any event, the General Counsel failed in this proceeding Upon the basis of the entire record, the briefs filed in to establish a prima facie showing that Mastriano's pro- this matter, and my observation of the witnesses, I make tected concerted activity was a substantial or motivating the following: factor in her termination. FINDINGS OF FACT B. Pertinent Facts I. THE BUSINESS OF RESPONDENT 1. Background facts At all material times Respondent has been a corpora- Stock ownership of Respondent is vested in seven tion duly organized under the laws of the State of Cali- stockholders, none of whom has professional training or fornia, with an office and principal place of business lo- experience in the operation of a hotel or restaurant enter- cated in Santa Maria, California, where it is engaged in prise. Prior to 1978 management of the Santa Maria fa- the operation of a hotel providing food and lodging to cility was vested in a professional manager, with over- guests. sight and ultimate operational authority residing in the In the course and conduct of its business operations, seven-member board of directors. In November 1978 the Respondent annually purchases and receives goods or professional manager resigned following disclosures of services in excess of $2,000 from sellers or suppliers lo- improprieties in the operation of the hotel, including its cated within the State of California, which sellers or sup- restaurant and bar facility. In close conjunction with this pliers receive such goods in substantially the same form event three of the stockholders, representing a 64-percent directly from outside the State of California. Additional- ownership of the total outstanding shares, formed an ex- ly, in the course and conduct of its business operations, ecutive committee to assume control of the enterprise. Respondent annually derives gross revenues in excess of Roger Ikola, a medical doctor specializing in the practice $500,000. of pediatrics, became one of the members of the execu- Upon the foregoing facts, which are not in dispute, I tive committee. Dr. Ikola's stock ownership was slightly find that at all times material herein Holiday Inn of Santa in excess of 20 percent of the outstanding shares. For a Maria has been an employer engaged in commerce transitional period of approximately 5 days, the day-to- within the meaning of Section 2(2), (6), and (7) of the day management of the hotel was vested in an interim Act. manager. Key personnel had left following the departure of the prior manager and other personnel resigned in the aftermath. Then, the interim manager resigned for rea- Respondent concedes, and I find, that at all times ma- sons of ill health. To conduce to the orderly conduct of terial herein the Union has been a labor organization business, Dr. Ikola identified the key personnel remaining within the meaning of Section 2(5) of the Act. in the various phases of the hotel operation and met with them. Deborah Mastriano was one of the individuals III. THE ALLEGED UNFAIR LABOR PRACTICES who attended this meeting at which Dr. Ikola outlined the problems confronting the hotel. He instructed the in- A. The Issues dividuals present to report directly to the executive com- The consolidated complaint gives rise to the following mittee on matters pertaining to the operation of their basic issues: area of responsibility and to take direction from the ex- 1. Whether Respondent violated Section 8(a)(1) and ecutive committee. After the meeting, Dr. Ikola met sep- (3) of the Act by reducing the pay of Paul Flores on or arately with Mastriano who had been identified to him as about February 1, and by constructively discharging a senior employee assigned to the bar operation. Dr. Flores on or about March 2. Ikola charged Mastriano with the responsibility of elimi- 2. Whether Respondent unlawfully terminated Deb- nating the theft of liquor and other impermissible prac- orah Mastriano on or about November 28, in violation of tices in the bar which had come to Dr. Ikola's attention. Section 8(aXl) and/or (3) of the Act. It was in this framework that Bruno Fava was employed 3. Whether Respondent violated Section 8(a)(1) of the to become manager of the Santa Maria facility. Act by threatening to terminate Flores if he took com- At the time he was selected by the executive commit- plaints to the Union; by instructing employees in a meet- tee to become manager of the Santa Maria hotel oper- ing to bypass the Union and register any complaints di- ation, Fava had completed approximately 18 years of rectly with management upon threat of termination; and professional training in all phases of hotel management. Prior to assuming managership of Respondent's oper- 'Unless otherwise specified, all dates herein refer to the calendar year ations in December 1978, Fava had served approximately 1979. 10 years as general manager of the Vandenberg Inn, a 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the Union on December 4, 1979, and service on by separately instructing an employee to bypass the Respondent was duly accomplished.' The parties were Union and take complaints directly to management. represented by counsel at the hearing and were provided Respondent denies the commission of any unfair labor full opportunity to make opening and closing statements, practices and affirmatively contends, in substance, that to examine and cross-examine witnesses, to introduce rel- Flores' termination was voluntary and not constructively evant evidence, and to file briefs with me. Counsel for caused. Further, Respondent asserts that Mastriano was the General Counsel and counsel for Respondent filed terminated because she was grossly insubordinate and, in briefs with me. any event, the General Counsel failed in this proceeding Upon the basis of the entire record, the briefs filed in to establish a prima facie showing that Mastriano's pro- this matter, and my observation of the witnesses, I make tected concerted activity was a substantial or motivating the following: factor in her termination. FINDINGS OF FACT B. Pertinent Facts I. THE BUSINESS OF RESPONDENT 1. Background facts At all material times Respondent has been a corpora- Stock ownership of Respondent is vested in seven tion duly organized under the laws of the State of Cali- stockholders, none of whom has professional training or fornia, with an office and principal place of business lo- experience in the operation of a hotel or restaurant enter- cated in Santa Maria, California, where it is engaged in prise. Prior to 1978 management of the Santa Maria fa- the operation of a hotel providing food and lodging to cility was vested in a professional manager, with over- guests. sight and ultimate operational authority residing in the In the course and conduct of its business operations, seven-member board of directors. In November 1978 the Respondent annually purchases and receives goods or professional manager resigned following disclosures of services in excess of $2,000 from sellers or suppliers lo- improprieties in the operation of the hotel, including its cated within the State of California, which sellers or sup- restaurant and bar facility. In close conjunction with this pliers receive such goods in substantially the same form event three of the stockholders, representing a 64-percent directly from outside the State of California. Additional- ownership of the total outstanding shares, formed an ex- ly, in the course and conduct of its business operations, ecutive committee to assume control of the enterprise. Respondent annually derives gross revenues in excess of Roger Ikola, a medical doctor specializing in the practice $500,000. of pediatrics, became one of the members of the execu- Upon the foregoing facts, which are not in dispute, I tive committee. Dr. Ikola's stock ownership was slightly find that at all times material herein Holiday Inn of Santa in excess of 20 percent of the outstanding shares. For a Maria has been an employer engaged in commerce transitional period of approximately 5 days, the day-to- within the meaning of Section 2(2), (6), and (7) of the day management of the hotel was vested in an interim Ac t. manager. Key personnel had left following the departure II. THE LABOR ORGANIZATION INVOLVED o f t h e p rior m a n a ger a n d o t h e r p e r s o n n e l r e s i g n e d i n t h e aftermath. Then, the interim manager resigned for rea- Respondent concedes, and I find, that at all times ma- sons of ill health. To conduce to the orderly conduct of terial herein the Union has been a labor organization business, Dr. Ikola identified the key personnel remaining within the meaning of Section 2(5) of the Act. in the various phases of the hotel operation and met with them. Deborah Mastriano was one of the individuals III. THE ALLEGED UNFAIR LABOR PRACTICES who attended this meeting at which Dr. Ikola outlined the problems confronting the hotel. He instructed the in- A. The Issues dividuals present to report directly to the executive com- The consolidated complaint gives rise to the following mittee on matters pertaining to the operation of their basic issues: area of responsibility and to take direction from the ex- 1. Whether Respondent violated Section 8(a)(l) and ecutive committee. After the meeting, Dr. Ikola met sep- (3) of the Act by reducing the pay of Paul Flores on or arately with Mastriano who had been identified to him as about February 1, and by constructively discharging a senior employee assigned to the bar operation. Dr. Flores on or about March 2. Ikola charged Mastriano with the responsibility of elimi- 2. Whether Respondent unlawfully terminated Deb- "ating t h e t h e ft o f liquor a n d o th e r impermissible prac- orah Mastriano on or about November 28, in violation of tic e s in t h e bar which had come to Dr. Ikola's attention. Section 8(aXl) and/or (3) of the Act. It w a s in t h is framework that Bruno Fava was employed 3. Whether Respondent violated Section 8(a)(l) of the t o become manager of the Santa Maria facility. Act by threatening to terminate Flores if he took com- At t h e time he was selected by the executive commit- plaints to the Union; by instructing employees in a meet- t e e to become manager of the Santa Maria hotel oper- ing to bypass the Union and register any complaints di- ation, Fava had completed approximately 18 years of rectly with management upon threat of termination; and professional training in all phases of hotel management. Prior to assuming managership of Respondent's oper- 'Unless otherwise specified, all dates herein refer to the calendar year ations in December 1978, Fava had served approximately 1979. 10 years as general manager of the Vandenberg Inn, a 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the Union on December 4, 1979, and service on by separately instructing an employee to bypass the Respondent was duly accomplished.' The parties were Union and take complaints directly to management. represented by counsel at the hearing and were provided Respondent denies the commission of any unfair labor full opportunity to make opening and closing statements, practices and affirmatively contends, in substance, that to examine and cross-examine witnesses, to introduce rel- Flores' termination was voluntary and not constructively evant evidence, and to file briefs with me. Counsel for caused. Further, Respondent asserts that Mastriano was the General Counsel and counsel for Respondent filed terminated because she was grossly insubordinate and, in briefs with me. any event, the General Counsel failed in this proceeding Upon the basis of the entire record, the briefs filed in to establish a prima facie showing that Mastriano's pro- this matter, and my observation of the witnesses, I make tected concerted activity was a substantial or motivating the following: factor in her termination. FINDINGS OF FACT B. Pertinent Facts I. THE BUSINESS OF RESPONDENT 1. Background facts At all material times Respondent has been a corpora- Stock ownership of Respondent is vested in seven tion duly organized under the laws of the State of Cali- stockholders, none of whom has professional training or fornia, with an office and principal place of business lo- experience in the operation of a hotel or restaurant enter- cated in Santa Maria, California, where it is engaged in prise. Prior to 1978 management of the Santa Maria fa- the operation of a hotel providing food and lodging to cility was vested in a professional manager, with over- guests. sight and ultimate operational authority residing in the In the course and conduct of its business operations, seven-member board of directors. In November 1978 the Respondent annually purchases and receives goods or professional manager resigned following disclosures of services in excess of $2,000 from sellers or suppliers lo- improprieties in the operation of the hotel, including its cated within the State of California, which sellers or sup- restaurant and bar facility. In close conjunction with this pliers receive such goods in substantially the same form event three of the stockholders, representing a 64-percent directly from outside the State of California. Additional- ownership of the total outstanding shares, formed an ex- ly, in the course and conduct of its business operations, ecutive committee to assume control of the enterprise. Respondent annually derives gross revenues in excess of Roger Ikola, a medical doctor specializing in the practice $500,000. of pediatrics, became one of the members of the execu- Upon the foregoing facts, which are not in dispute, I tive committee. Dr. Ikola's stock ownership was slightly find that at all times material herein Holiday Inn of Santa in excess of 20 percent of the outstanding shares. For a Maria has been an employer engaged in commerce transitional period of approximately 5 days, the day-to- within the meaning of Section 2(2), (6), and (7) of the day management of the hotel was vested in an interim Ac t. manager. Key personnel had left following the departure II. THE LABOR ORGANIZATION INVOLVED o f t h e p rior m a n a ger a n d o t h e r p e r s o n n e l r e s i g n e d i n t h e aftermath. Then, the interim manager resigned for rea- Respondent concedes, and I find, that at all times ma- sons of ill health. To conduce to the orderly conduct of terial herein the Union has been a labor organization business, Dr. Ikola identified the key personnel remaining within the meaning of Section 2(5) of the Act. in the various phases of the hotel operation and met with them. Deborah Mastriano was one of the individuals III. THE ALLEGED UNFAIR LABOR PRACTICES who attended this meeting at which Dr. Ikola outlined the problems confronting the hotel. He instructed the in- A. The Issues dividuals present to report directly to the executive com- The consolidated complaint gives rise to the following mittee on matters pertaining to the operation of their basic issues: area of responsibility and to take direction from the ex- 1. Whether Respondent violated Section 8(a)(l) and ecutive committee. After the meeting, Dr. Ikola met sep- (3) of the Act by reducing the pay of Paul Flores on or arately with Mastriano who had been identified to him as about February 1, and by constructively discharging a senior employee assigned to the bar operation. Dr. Flores on or about March 2. Ikola charged Mastriano with the responsibility of elimi- 2. Whether Respondent unlawfully terminated Deb- "ating the theft of liquor and other impermissible prac- orah Mastriano on or about November 28, in violation of tic e s in t h e bar which had come to Dr. Ikola's attention. Section 8(aXl) and/or (3) of the Act. It w a s in this framework that Bruno Fava was employed 3. Whether Respondent violated Section 8(a)(l) of the t o become manager of the Santa Maria facility. Act by threatening to terminate Flores if he took com- At the time he was selected by the executive commit- plaints to the Union; by instructing employees in a meet- t e e to become manager of the Santa Maria hotel oper- ing to bypass the Union and register any complaints di- ation, Fava had completed approximately 18 years of rectly with management upon threat of termination; and professional training in all phases of hotel management. Prior to assuming managership of Respondent's oper- 'Unless otherwise specified, all dates herein refer to the calendar year ations in December 1978, Fava had served approximately 1979. 10 years as general manager of the Vandenberg Inn, a 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD filed by the Union on December 4, 1979, and service on by separately instructing an employee to bypass the Respondent was duly accomplished.' The parties were Union and take complaints directly to management. represented by counsel at the hearing and were provided Respondent denies the commission of any unfair labor full opportunity to make opening and closing statements, practices and affirmatively contends, in substance, that to examine and cross-examine witnesses, to introduce rel- Flores' termination was voluntary and not constructively evant evidence, and to file briefs with me. Counsel for caused. Further, Respondent asserts that Mastriano was the General Counsel and counsel for Respondent filed terminated because she was grossly insubordinate and, in briefs with me. any event, the General Counsel failed in this proceeding Upon the basis of the entire record, the briefs filed in to establish a prima facie showing that Mastriano's pro- this matter, and my observation of the witnesses, I make tected concerted activity was a substantial or motivating the following: factor in her termination. FINDINGS OF FACT B. Pertinent Facts I. THE BUSINESS OF RESPONDENT 1. Background facts At all material times Respondent has been a corpora- Stock ownership of Respondent is vested in seven tion duly organized under the laws of the State of Cali- stockholders, none of whom has professional training or fornia, with an office and principal place of business lo- experience in the operation of a hotel or restaurant enter- cated in Santa Maria, California, where it is engaged in prise. Prior to 1978 management of the Santa Maria fa- the operation of a hotel providing food and lodging to cility was vested in a professional manager, with over- guests. sight and ultimate operational authority residing in the In the course and conduct of its business operations, seven-member board of directors. In November 1978 the Respondent annually purchases and receives goods or professional manager resigned following disclosures of services in excess of $2,000 from sellers or suppliers lo- improprieties in the operation of the hotel, including its cated within the State of California, which sellers or sup- restaurant and bar facility. In close conjunction with this pliers receive such goods in substantially the same form event three of the stockholders, representing a 64-percent directly from outside the State of California. Additional- ownership of the total outstanding shares, formed an ex- ly, in the course and conduct of its business operations, ecutive committee to assume control of the enterprise. Respondent annually derives gross revenues in excess of Roger Ikola, a medical doctor specializing in the practice $500,000. of pediatrics, became one of the members of the execu- Upon the foregoing facts, which are not in dispute, I tive committee. Dr. Ikola's stock ownership was slightly find that at all times material herein Holiday Inn of Santa in excess of 20 percent of the outstanding shares. For a Maria has been an employer engaged in commerce transitional period of approximately 5 days, the day-to- within the meaning of Section 2(2), (6), and (7) of the day management of the hotel was vested in an interim Ac t. manager. Key personnel had left following the departure II. THE LABOR ORGANIZATION INVOLVED o f t h e p rior m a n a ger a n d o t h e r p e r s o n n e l r e s i g n e d i n t h e aftermath. Then, the interim manager resigned for rea- Respondent concedes, and I find, that at all times ma- sons of ill health. To conduce to the orderly conduct of terial herein the Union has been a labor organization business, Dr. Ikola identified the key personnel remaining within the meaning of Section 2(5) of the Act. in the various phases of the hotel operation and met with them. Deborah Mastriano was one of the individuals III. THE ALLEGED UNFAIR LABOR PRACTICES who attended this meeting at which Dr. Ikola outlined the problems confronting the hotel. He instructed the in- A. The Issues dividuals present to report directly to the executive com- The consolidated complaint gives rise to the following mittee on matters pertaining to the operation of their basic issues: area of responsibility and to take direction from the ex- 1. Whether Respondent violated Section 8(a)(l) and ecutive committee. After the meeting, Dr. Ikola met sep- (3) of the Act by reducing the pay of Paul Flores on or arately with Mastriano who had been identified to him as about February 1, and by constructively discharging a senior employee assigned to the bar operation. Dr. Flores on or about March 2. Ikola charged Mastriano with the responsibility of elimi- 2. Whether Respondent unlawfully terminated Deb- "ating the theft of liquor and other impermissible prac- orah Mastriano on or about November 28, in violation of tic e s in t h e bar which had come to Dr. Ikola's attention. Section 8(aXl) and/or (3) of the Act. It w a s in this framework that Bruno Fava was employed 3. Whether Respondent violated Section 8(aX1) of the t o become manager of the Santa Maria facility. Act by threatening to terminate Flores if he took com- At the time he was selected by the executive commit- plaints to the Union; by instructing employees in a meet- t e e to become manager of the Santa Maria hotel oper- ing to bypass the Union and register any complaints di- ation, Fava had completed approximately 18 years of rectly with management upon threat of termination; and professional training in all phases of hotel management. Prior to assuming managership of Respondent's oper- 'Unless otherwise specified, all dates herein refer to the calendar year ations in December 1978, Fava had served approximately 1979. 10 years as general manager of the Vandenberg Inn, a HOLIDAY INN OF SANTA MARIA 651 principal hotel operation situated in Santa Maria. For ap- During the initial days of his managership at Respond- proximately 6 months in 1977-78, Deborah Mastriano ent's Santa Maria facility, Fava looked for departmental had worked as a waitress at the Vandenberg Inn. leadership to the department heads and senior employees The members of the executive committee hired Fava who remained after the transition in management. Thus, with knowledge of his track record of successful man- Deborah Mastriano served as bar manager, Richard Cas- agement at the Vandenberg Inn. At the outset, the board taneda as chef, and until October 1979 Constance Antoi- of directors instructed Fava to bring the operation under gue remained as sales and catering director. 2 Antoigue control by developing a chain of command, coordinating possessed responsibility for booking and catering of all closely with the owners as a management team, employ- banquets, for hiring banquet personnel and scheduling ing good personnel, and running a "tight ship" in order their work, and for overseeing their performance in serv- to avoid the breakdown of discipline and proper supervi- ing banquets. Castaneda relinquished his responsibilities sion, which had contributed to the thefts of supplies and as head of the kitchen operation when Frank Fava as- other breaches leading to citations and warnings by sumed his duties as executive chef. health authorities and the Holiday Inns of America, Inc., In the spring of 1979 Antoigue, Phyllis Slaughter, and as well as to a substantial diminution in revenues. Union Lisa Ziemba conversed together concerning the advan- considerations played no part in either the decision of tages or disadvantages of continued union representation management to employ Fava as manager or in the for- of the employees. As a result of their conversation, they mulation of instructions to him. agreed to speak with employees to determine their reac- At pertinent times, Respondent and the Union were tion. At the time in question Slaughter was serving as the parties to a collective-bargaining agreement effective head waitress on the night shift in the dining room and from April 1, 1975, until March 31, 1980. The agreement Ziemba was the dining room hostess. She is the daughter contained a union-security provision. The relationship of one of the stockholders of Respondent. Antoigue between the Union and Respondent was a generally har- spoke with approximately 10 employees and inquired monious one. The Vandenberg Inn was a party to the whether they were satisfied with the Union and whether collective-bargaining agreement during the period of they desired to continue to be union members. She had time Bruno Fava served as manager there and in that ca- received no instruction from Bruno Fava to undertake pacity Fava had contacts with Ted Zenich, who served this endeavor but she did tell him of her activity. Fava as secretary/treasurer of the Union. Bruno Fava assisted neither encouraged nor discouraged the process.3 in negotiating the collective-bargaining agreement which became effective in 1975 for a term of 5 years, and he 2. The alleged proscribed conduct became co-chairman together with Ted Zenich of the Health and Welfare Trust Funds created and maintained a. The employee meeting pursuant to the collective-bargaining agreement. During the first week of December 1978, Bruno Fava Fava assumed management of Respondent's hotel op- Dur the first weekof December 1978, Bruno Fava called a meeting of employees. The meeting was held in eration with a commitment to a concept of systems man- calleda meeting of employees The meetingwas held in agement calculated to assist management in carefully one of the banquet rooms and was attended by dining controlling the purchase and depensing of food and bev- room, ktchen, and bar personnel Department heads erages; the utilization of overtime or premium hours; and such as Constance Antoigue, Richard Castaneda, and erages; th tliainofoetmeo reimDeborah Mastriano attended the meeting. Prior to call- the acquisition and disposition of physical property. In eb h M tr no ded t e ee n o to - the initial weeks of his tenure, Fava devoted his principal ing the meeting, Fava had received information indicat- efforts to correcting the most pressing the most pressing problems consti- ing e s ntacting the investors directly tuting a threat to the retention of the franchise. He re- concerning matters taking place in the transition, and he cruited his uncle, Frank Fava, an experienced chef with had received information indicating a quantum of em- approximately 50 years of experience in the restaurant in- loyee resistance to his hire as manager and a ear of dustry, to serve as executive chef and to assume direct losing their jobs- responsibility over the operation of the kitchen and res- At the outset of the meeting, Fava introduced himself taurant facility. Fava had served in the capacity of ex- as the new manager of the establishment and informed ecutive chef under Bruno Fava at the Vandenberg Inn. the employees, in substance, that the operation was in a Soon thereafter Bruno Fava removed the timeclocks state of transition and that effort was being devoted to which had been in use under previous management and remedying problems and conditions which had accumu- instituted the use of daily timesheets requiring employees lated under the previous management. Fava assured the to sign in and out and to receive independent verification employees that he was making no major changes but as- from supervision of hours claimed as overtime. More- serted that it was necessary for the employees to work as over, Fava instituted a system of ticket control in the a team. Fava introduced the department heads and stated cocktail lounge and dining room. Fava had a reputation in the community for running a "tight ship" and some of I The parties stipulated that at relevant times Antoigue was a supervi- sor within the meaning of the Act. Prior to becoming sales and catering the personnel at Respondent's facility had worked under director in October 1978, she had served as a waitress in the dining room. him at previous times at the Vandenberg Inn. A quantum ' The foregoing is based on a composite of the testimony of Diane An- of job-related apprehension concerning the future course toigue, Linda Stout, and Cheryl Barr. The thrust of Antoigue's testimony of events existed among Respondent's employee comple- is to the effect that this undertaking was a voluntary one and not at the directive of management. The testimony of Linda Stout provides an mind- ment during the early days of Fava's tenure as manager, equate basis to support a finding that the activity was undertaken pursu- and Fava was aware of this. ant to instructions from Bruno Fava. HOLIDAY INN OF SANTA MARIA 651 principal hotel operation situated in Santa Maria. For ap- During the initial days of his managership at Respond- proximately 6 months in 1977-78, Deborah Mastriano ent's Santa Maria facility, Fava looked for departmental had worked as a waitress at the Vandenberg Inn. leadership to the department heads and senior employees The members of the executive committee hired Fava who remained after the transition in management. Thus, with knowledge of his track record of successful man- Deborah Mastriano served as bar manager, Richard Cas- agement at the Vandenberg Inn. At the outset, the board taneda as chef, and until October 1979 Constance Antoi- of directors instructed Fava to bring the operation under gue remained as sales and catering director.' Antoigue control by developing a chain of command, coordinating possessed responsibility for booking and catering of all closely with the owners as a management team, employ- banquets, for hiring banquet personnel and scheduling ing good personnel, and running a "tight ship" in order their work, and for overseeing their performance in serv- to avoid the breakdown of discipline and proper supervi- ing banquets. Castaneda relinquished his responsibilities sion, which had contributed to the thefts of supplies and as head of the kitchen operation when Frank Fava as- other breaches leading to citations and warnings by sumed his duties as executive chef. health authorities and the Holiday Inns of America, Inc., In the spring of 1979 Antoigue, Phyllis Slaughter, and as well as to a substantial diminution in revenues. Union Lisa Ziemba conversed together concerning the advan- considerations played no part in either the decision of tages or disadvantages of continued union representation management to employ Fava as manager or in the for- of the employees. As a result of their conversation, they mulation of instructions to him. agreed to speak with employees to determine their reac- At pertinent times, Respondent and the Union were tion. At the time in question Slaughter was serving as the parties to a collective-bargaining agreement effective head waitress on the night shift in the dining room and from April 1, 1975, until March 31, 1980. The agreement Ziemba was the dining room hostess. She is the daughter contained a union-security provision. The relationship of one of the stockholders of Respondent. Antoigue between the Union and Respondent was a generally har- spoke with approximately 10 employees and inquired monious one. The Vandenberg Inn was a party to the whether they were satisfied with the Union and whether collective-bargaining agreement during the period of they desired to continue to be union members. She had time Bruno Fava served as manager there and in that ca- received no instruction from Bruno Fava to undertake pacity Fava had contacts with Ted Zenich, who served this endeavor but she did tell him of her activity. Fava as secretary/treasurer of the Union. Bruno Fava assisted neither encouraged nor discouraged the process.3 in negotiating the collective-bargaining agreement which became effective in 1975 for a term of 5 years, and he 2. The alleged proscribed conduct became co-chairman together with Ted Zenich of the Health and Welfare Trust Funds created and maintained a. The employee meeting pursuant to the collective-bargaining agreement. . ,. ,,, , ,,_„ „ pursant o th colectie-bagainng areemnt.During the first week of December 1978, Bruno Fava Fava assumed management of Respondent's hotel op- ^"S t e f r t w e o eebr17,BuoFv Favaassued anagmen of espnden's otelop- called a meeting of employees. The meeting was held in eration with a commitment to a concept of systems man- on e o f et ployes and was heldin agement calculated to assist management in carefully of the an d wp s atmed heads controlling the purchase and depensing of food and bev- rscha Cnt an e AnPo nne, R ecartentdhead erages; the utilization of overtime or premium hours; and DeborahConstane Attended thard to all the acquisition and disposition of physical property. In ing theMasttiag, attededdthecei etdng.formato cat- the initial weeks of his tenure, Fava devoted his principal ing t h e meetmnge Fava had received information mdicat- efforts to correcting the most pressing problems consti- coei t h a t employees were contacting the investors directly tuting a threat to the retention of the franchise. He re-hconcerning matters taking place in the transition, and he cruited his uncle, Frank Fava, an experienced chef with h ad p ec er v e d information indicating a quantum of em_ approximately 50 years of experience in the restaurant in-Ployee resistance to his hire as manager and a fear of dustry, to serve as executive chef and to assume direct lo s ln g "eir Jobs. responsibility over the operation of the kitchen and res- A t the outset of the meeting, Fava introduced himself taurant facility. Fava had served in the capacity of ex- a s the new manager of the establishment and informed ecutive chef under Bruno Fava at the Vandenberg Inn. t he employees, in substance, that the operation was in a Soon thereafter Bruno Fava removed the timeclocks st at e of transition and that effort was being devoted to which had been in use under previous management and remedying problems and conditions which had accumu- instituted the use of daily timesheets requiring employees la t ed under the previous management. Fava assured the to sign in and out and to receive independent verification employees that he was making no major changes but as- from supervision of hours claimed as overtime. More- serted that it was necessary for the employees to work as over, Fava instituted a system of ticket control in the a t eam . F a v a introduced the department heads and stated cocktail lounge and dining room. Fava had a reputation---- in the community for running aroom. Fava ha a reputation The parties stipulated that at relevant times Antoigue was a supervi- in thecommuity fr runnng a tightship" nd soe of or within the meaning of the Act. Prior to becoming sales and catering the personnel at Respondent's facility had worked under director in October 1978, she had served as a waitress in the dining room. him at previous times at the Vandenberg Inn. A quantum IThe foregoing is based on a composite of the testimony of Diane An- of job-related apprehension concerning the future course 't'gue, L i n d a Stout, and Cheryl Barr. The thrust of Antoigue's testimony of events existed among Respondent's employee comple- is to the effect that this undertaking was a voluntary one and not at the directive of management. The testimony of Linda Stout provides an inad- ment during the early days Of Fava's tenure as manager, equate basis to support a finding that the activity was undertaken pursu- and Fava was aware of this. ant to instructions from Bruno Fava. HOLIDAY INN OF SANTA MARIA 651 principal hotel operation situated in Santa Maria. For ap- During the initial days of his managership at Respond- proximately 6 months in 1977-78, Deborah Mastriano ent's Santa Maria facility, Fava looked for departmental had worked as a waitress at the Vandenberg Inn. leadership to the department heads and senior employees The members of the executive committee hired Fava who remained after the transition in management. Thus, with knowledge of his track record of successful man- Deborah Mastriano served as bar manager, Richard Cas- agement at the Vandenberg Inn. At the outset, the board taneda as chef, and until October 1979 Constance Antoi- of directors instructed Fava to bring the operation under gue remained as sales and catering director.' Antoigue control by developing a chain of command, coordinating possessed responsibility for booking and catering of all closely with the owners as a management team, employ- banquets, for hiring banquet personnel and scheduling ing good personnel, and running a "tight ship" in order their work, and for overseeing their performance in serv- to avoid the breakdown of discipline and proper supervi- ing banquets. Castaneda relinquished his responsibilities sion, which had contributed to the thefts of supplies and as head of the kitchen operation when Frank Fava as- other breaches leading to citations and warnings by sumed his duties as executive chef. health authorities and the Holiday Inns of America, Inc., In the spring of 1979 Antoigue, Phyllis Slaughter, and as well as to a substantial diminution in revenues. Union Lisa Ziemba conversed together concerning the advan- considerations played no part in either the decision of tages or disadvantages of continued union representation management to employ Fava as manager or in the for- of the employees. As a result of their conversation, they mulation of instructions to him. agreed to speak with employees to determine their reac- At pertinent times, Respondent and the Union were tion. At the time in question Slaughter was serving as the parties to a collective-bargaining agreement effective head waitress on the night shift in the dining room and from April 1, 1975, until March 31, 1980. The agreement Ziemba was the dining room hostess. She is the daughter contained a union-security provision. The relationship of one of the stockholders of Respondent. Antoigue between the Union and Respondent was a generally har- spoke with approximately 10 employees and inquired monious one. The Vandenberg Inn was a party to the whether they were satisfied with the Union and whether collective-bargaining agreement during the period of they desired to continue to be union members. She had time Bruno Fava served as manager there and in that ca- received no instruction from Bruno Fava to undertake pacity Fava had contacts with Ted Zenich, who served this endeavor but she did tell him of her activity. Fava as secretary/treasurer of the Union. Bruno Fava assisted neither encouraged nor discouraged the process.3 in negotiating the collective-bargaining agreement which became effective in 1975 for a term of 5 years, and he 2. The alleged proscribed conduct became co-chairman together with Ted Zenich of the Health and Welfare Trust Funds created and maintained a. The employee meeting pursuant to the collective-bargaining agreement. . ,. ,,, , ,,_„ „ pursant o th colectie-bagainng areemnt.During the first week of December 1978, Bruno Fava Fava assumed management of Respondent's hotel op- ^"S t e f r t w e o eebr17,BuoFv Favaassued anagmen of espnden's otelop- called a meeting of employees. The meeting was held in eration with a commitment to a concept of systems man- on e o f et ployes and was heldin agement calculated to assist management in carefully of the an d wp s atmed heads controlling the purchase and depensing of food and bev- rscha Cnt an e AnPo nne, R ecartentdhead erages; the utilization of overtime or premium hours; and DeborahConstane Attended thard to all the acquisition and disposition of physical property. In ing theMasttiag, attededdthecei etdng.formato cat- the initial weeks of his tenure, Fava devoted his principal ing t h e meetmnge Fava had received information mdicat- efforts to correcting the most pressing problems consti- coei t h a t employees were contacting the investors directly tuting a threat to the retention of the franchise. He re-hconcerning matters taking place in the transition, and he cruited his uncle, Frank Fava, an experienced chef with h ad p ec er v e d information indicating a quantum of em_ approximately 50 years of experience in the restaurant in-Ployee resistance to his hire as manager and a fear of dustry, to serve as executive chef and to assume direct lo s ln g "eir Jobs. responsibility over the operation of the kitchen and res- A t the outset of the meeting, Fava introduced himself taurant facility. Fava had served in the capacity of ex- a s the new manager of the establishment and informed ecutive chef under Bruno Fava at the Vandenberg Inn. t he employees, in substance, that the operation was in a Soon thereafter Bruno Fava removed the timeclocks st at e of transition and that effort was being devoted to which had been in use under previous management and remedying problems and conditions which had accumu- instituted the use of daily timesheets requiring employees la t ed under the previous management. Fava assured the to sign in and out and to receive independent verification employees that he was making no major changes but as- from supervision of hours claimed as overtime. More- serted that it was necessary for the employees to work as over, Fava instituted a system of ticket control in the a t eam . F a v a introduced the department heads and stated cocktail lounge and dining room. Fava had a reputation---- in the community for running aroom. Fava ha a reputation The parties stipulated that at relevant times Antoigue was a supervi- in thecommuity fr runnng a tightship" nd soe of or within the meaning of the Act. Prior to becoming sales and catering the personnel at Respondent's facility had worked under director in October 1978, she had served as a waitress in the dining room. him at previous times at the Vandenberg Inn. A quantum IThe foregoing is based on a composite of the testimony of Diane An- of job-related apprehension concerning the future course 't'gue, L i n d a Stout, and Cheryl Barr. The thrust of Antoigue's testimony of events existed among Respondent's employee comple- is to the effect that this undertaking was a voluntary one and not at the directive of management. The testimony of Linda Stout provides an inad- ment during the early days Of Fava's tenure as manager, equate basis to support a rinding that the activity was undertaken pursu- and Fava was aware of this. ant to instructions from Bruno Fava. HOLIDAY INN OF SANTA MARIA 651 principal hotel operation situated in Santa Maria. For ap- During the initial days of his managership at Respond- proximately 6 months in 1977-78, Deborah Mastriano ent's Santa Maria facility, Fava looked for departmental had worked as a waitress at the Vandenberg Inn. leadership to the department heads and senior employees The members of the executive committee hired Fava who remained after the transition in management. Thus, with knowledge of his track record of successful man- Deborah Mastriano served as bar manager, Richard Cas- agement at the Vandenberg Inn. At the outset, the board taneda as chef, and until October 1979 Constance Antoi- of directors instructed Fava to bring the operation under gue remained as sales and catering director.' Antoigue control by developing a chain of command, coordinating possessed responsibility for booking and catering of all closely with the owners as a management team, employ- banquets, for hiring banquet personnel and scheduling ing good personnel, and running a "tight ship" in order their work, and for overseeing their performance in serv- to avoid the breakdown of discipline and proper supervi- ing banquets. Castaneda relinquished his responsibilities sion, which had contributed to the thefts of supplies and as head of the kitchen operation when Frank Fava as- other breaches leading to citations and warnings by sumed his duties as executive chef. health authorities and the Holiday Inns of America, Inc., In the spring of 1979 Antoigue, Phyllis Slaughter, and as well as to a substantial diminution in revenues. Union Lisa Ziemba conversed together concerning the advan- considerations played no part in either the decision of tages or disadvantages of continued union representation management to employ Fava as manager or in the for- of the employees. As a result of their conversation, they mulation of instructions to him. agreed to speak with employees to determine their reac- At pertinent times, Respondent and the Union were tion. At the time in question Slaughter was serving as the parties to a collective-bargaining agreement effective head waitress on the night shift in the dining room and from April 1, 1975, until March 31, 1980. The agreement Ziemba was the dining room hostess. She is the daughter contained a union-security provision. The relationship of one of the stockholders of Respondent. Antoigue between the Union and Respondent was a generally har- spoke with approximately 10 employees and inquired monious one. The Vandenberg Inn was a party to the whether they were satisfied with the Union and whether collective-bargaining agreement during the period of they desired to continue to be union members. She had time Bruno Fava served as manager there and in that ca- received no instruction from Bruno Fava to undertake pacity Fava had contacts with Ted Zenich, who served this endeavor but she did tell him of her activity. Fava as secretary/treasurer of the Union. Bruno Fava assisted neither encouraged nor discouraged the process.3 in negotiating the collective-bargaining agreement which became effective in 1975 for a term of 5 years, and he 2. The alleged proscribed conduct became co-chairman together with Ted Zenich of the Health and Welfare Trust Funds created and maintained a. The employee meeting pursuant to the collective-bargaining agreement. . ,. ,,, , ,,_„ „ pursant o th colectie-bagainng areemnt.During the first week of December 1978, Bruno Fava Fava assumed management of Respondent's hotel op- ^"S t e f r t w e o eebr17,BuoFv Favaassued anagmen of espnden's otelop- called a meeting of employees. The meeting was held in eration with a commitment to a concept of systems man- on e o f et ployes and was heldin agement calculated to assist management in carefully of the an d wp s atmed heads controlling the purchase and depensing of food and bev- such an e AnPo nne, R ecartentdhead erages; the utilization of overtime or premium hours; and DeborahConstane Attended thard to all the acquisition and disposition of physical property. In ing theMasttiag, attededdthecei etdng.fPr orto cat- the initial weeks of his tenure, Fava devoted his principal ing t h e meetmnge Fava had received information mdicat- efforts to correcting the most pressing problems consti- coei t h a t employees were contacting the investors directly tuting a threat to the retention of the franchise. He re-hconcerning matters taking place in the transition, and he cruited his uncle, Frank Fava, an experienced chef with h ad p ec er v e d information indicating a quantum of em_ approximately 50 years of experience in the restaurant in-Ployee resistance to his hire as manager and a fear of dustry, to serve as executive chef and to assume direct lo s ln g "eir Jobs. responsibility over the operation of the kitchen and res- A t the outset of the meeting, Fava introduced himself taurant facility. Fava had served in the capacity of ex- a s the new manager of the establishment and informed ecutive chef under Bruno Fava at the Vandenberg Inn. t he employees, in substance, that the operation was in a Soon thereafter Bruno Fava removed the timeclocks st at e of transition and that effort was being devoted to which had been in use under previous management and remedying problems and conditions which had accumu- instituted the use of daily timesheets requiring employees lated under the previous management. Fava assured the to sign in and out and to receive independent verification employees that he was making no major changes but as- from supervision of hours claimed as overtime. More- serted that it was necessary for the employees to work as over, Fava instituted a system of ticket control in the a t eam . F a v a introduced the department heads and stated cocktail lounge and dining room. Fava had a reputation---- in the community for running aroom. Fava ha a reputation The parties stipulated that at relevant times Antoigue was a supervi- in thecommuity fr runnng a tightship" nd soe of or within the meaning of the Act. Prior to becoming sales and catering the personnel at Respondent's facility had worked under director in October 1978, she had served as a waitress in the dining room. him at previous times at the Vandenberg Inn. A quantum IThe foregoing is based on a composite of the testimony of Diane An- of job-related apprehension concerning the future course 't'gue, L i n d a Stout, and Cheryl Barr. The thrust of Antoigue's testimony of events existed among Respondent's employee comple- is to the effect that this undertaking was a voluntary one and not at the directive of management. The testimony of Linda Stout provides an inad- ment during the early days Of Fava's tenure as manager, equate basis to support a finding that the activity was undertaken pursu- and Fava was aware of this. ant to instructions from Bruno Fava. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was organizing the operation on a chain-of-com- c. Flores contacts the Union mand concept which should be followed both in making mand concept which should be followed both in making Paul Flores was employed in the capacity of a cook in suggestions for improving the operation and for lodginge s opeaion o e util Mac complaints. Fava admonished the employees to follow Respondent's operation from June 1977 until March 2, the chain of command by communicating first with the 1979, with an interruption of service between November the chain of command by communicating first with the department heads. He added that his door was open to 1977 and April 1978. Flores was compensated on an employees for discussion and that, if they could not re- hourly basis until May 1978 when he was placed on ceive satisfaction from their department heads, they were salary and informed by the then chef that he would earn free to consult with him. Fava added that the employees $700 per month. In the fall of 1978, Flores' salary was should follow the chain-of-command concept in seeking raised to $750 per month. Prior to December 1978, to resolve their work-related problems and should con- Flores occasionally worked overtime, and he was com- suit first with him before going to the Union. Fava stated pensated for his overtime work. Flores was a member of that if the employees did not follow his instructions, the Union. their job would be in jeopardy. 4 In this context he stated Incident to Frank Fava becoming executive chef, that he had known and dealt with Ted Zenich for a Flores commenced working a longer workweek than the number of years. Fava added that Richard McGuinness 5-day week which had previously prevailed. This intensi- would be limited to 2 days a month in which to collect fled schedule of work lasted through December and into dues on the premises. The employees posed questions to January and motivated Flores to approach Frank Fava Fava during the course of the meeting, and he gave an- seeking both a reduction in his total hours and Sundays swers. The comments made by Fava in the early portion off for religious observance. Flores also informed Frank of the meeting followed a format he had used on previ- Fava that his paychecks had not included overtime com- ous occasions in prior years at other facilities.5 pensation. Fava told Flores he would look into the matter, but suggested that Flores speak directly to Bruno b. Castaneda seeks time off Fava. Flores did not do so. During the months of December 1978 and January On or about January 20 Flores received his paycheck 1979, Castaneda was working long hours. He communi- and approached Brenda Guisinger, one of three book- cated his desire for time off to Frank Fava who, in keepers then employed.7 He informed Guisinger that his effect, requested Castaneda's forebearance. Finally, in check did not contain overtime compensation which was late January Castaneda spoke with Mrs. Roger Ikola, the due him. Guisinger said that she would look into the wife of one of the principal stockholders, and stated his matter and she informed Bruno Fava of Flores' com- desire to take some time off. Mrs. Ikola stated that she plaint. Fava examined Flores' personnel file, and Fava would speak with Bruno Fava concerning the matter. noted that Flores was a salaried employee. He asserted The following day Bruno Fava approached Castaneda that it was not the policy to pay overtime to salaried em- and told him that he had the following day off and to ployees but instructed Guisinger to check with Frank have a "nice day." A few days later Bruno Fava ap- Fava. Guisinger did so, and Frank Fava confirmed that proached Castaneda and told him not to speak with Mrs. Flores had worked overtime. Guisinger transmitted this Ikola about time off but to talk with Frank Fava. Subse- information to Bruno Fava and Fava instructed her to quently, Castaneda observed Frank and Bruno Fava pay Flores. Guisinger went to her office and calculated speaking together in Frank Fava's office. Thereafter, the amount which she believed was due Flores and Frank informed Castaneda not to talk to Mrs. Ikola but spoke with Flores informing him of the amount to which to speak with him.6 she believed he was entitled. Flores became upset and spoke to Guisinger in a loud voioe. He claimed that the 'Fava had met earlier with department heads and had issued essential- amount was quite insufficient and that the Union was ly the same instructions to them."going to hear about it." Guisinger responded that she ' The foregoing is based upon a composite of the testimony of Bruno "going to hear about it." G uisinger responded that she Fava, Constance Antoigue, Richard Castaneda, Cheryl Barr, Steven had perhaps miscalculated the amount and noted that she Oclaray, Elinor Bewlay, and Linda Stout. I have also considered the tes- was in the process of learning her job. Guisinger report- timony of Deborah Mastriano. I credit the testimony of Fava and Antoi- ed to Bruno Fava the fact that Flores was upset and that gue denying the testimony of Mastriano, Bewlay, and Stout to the effect that Fava stated, in terms that employee resorand Stout to the effectUnion would she had apparently miscalculated the amount due Flores. that Fava stated, in terms, that employee resort to the Union would result in their termination. The testimony of Castaneda and Barr supports, Bruno became visibly upset and alluded to the fact that by implication, Fava's denial of any statement so explicit in terms or salaried employees were not paid overtime. However, he meaning, for their testimony, like that of Oclaray, reveals that Fava ap- instructed Guisinger to pay Flores. Guisinger took the pealed to the employees to come first to him with their problems before going to the Union. Nothing in his remarks per se foreclosed resort to theto one of the more experienced payroll bookkeep- Union. ' The following is based upon the credited testimony of Richard Cas- ly and credibly denied his admonishing Castaneda about union contacts, taneda. I have also considered the testimony of both Bruno and Frank and Bruno Fava impliedly denied having issued such an instruction. I am Fava with respect to the series of conversations which they had concern- convinced upon my observation of Castaneda as he testified before me at ing Castaneda's time off. I do not credit the testimony of Castaneda to the hearing that he rationalized that portion of his testimony relating to the effect that in separate conversations both Frank Fava and Bruno warnings issued by the Favas against union contacts, and I do not credit Fava instructed him not to go to the Union concerning time off. In the it. first instance, I discern no predicate for the instruction which Castaneda Paychecks were normally received on the 5th and 20th of each asserts was issued to him by Frank and Bruno Fava. Castaneda had not month. sought to invoke union aid nor had the Union on the terms of the collec- ' Guisinger had previously handled accounts receivable and was in the tive-bargaining agreement been alluded to in the conversations between process of learning payroll at the time in question. She also worked at the Castaneda and Bruno and Frank Fava. Moreover, Frank Fava specifical- front desk. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was organizing the operation on a chain-of-com- c. Flores contacts the Union mand concept which should be followed both in making Paul Flores was employed in the capacity of a cook in suggestions for improving the operation and for lodgingdent's operation from June 1977 until March 2, complaints. Fava admonished the employees to follow 1979 with an interruption of service between November the chain of command by communicating first with the 1 a r of sv be department heads. He added that his door was open to 19 77 an d April 19 7 8. F lo r es w a s compensated on an employees for discussion and that, if they could not re- hourly basis until May 1978 when he was placed on ceive satisfaction from their department heads, they were salary an d in f o rm ed by t h e t h en c h ef t h at h e w o u ld ear n free to consult with him. Fava added that the employees $700 per month. In the fall of 1978. Flores' salary was should follow the chain-of-command concept in seeking raised t o $750 per month. Prior to December 1978, to resolve their work-related problems and should con- Flores occasionally worked overtime, and he was com- suit first with him before going to the Union. Fava stated pensated for his overtime work. Flores was a member of that if the employees did not follow his instructions, t h e Union. their job would be in jeopardy. 4 In this context he stated Incident to Frank Fava becoming executive chef, that he had known and dealt with Ted Zenich for a Flores commenced working a longer workweek than the number of years. Fava added that Richard McGuinness 5-day week which had previously prevailed. This intensi- would be limited to 2 days a month in which to collect fied schedule of work lasted through December and into dues on the premises. The employees posed questions to January and motivated Flores to approach Frank Fava Fava during the course of the meeting, and he gave an- seeking both a reduction in his total hours and Sundays swers. The comments made by Fava in the early portion off for religious observance. Flores also informed Frank of the meeting followed a format he had used on previ- Fava that his paychecks had not included overtime com- ous occasions in prior years at other facilities. 5 pensation. Fava told Flores he would look into the matter, but suggested that Flores speak directly to Bruno b. Castaneda seeks time offFava. Flores did not do so. During the months of December 1978 and January On or about January 20 Flores received his paycheck 1979, Castaneda was working long hours. He communi- and approached Brenda Guisinger, one of three book- cated his desire for time off to Frank Fava who, in keepers then employed.' He informed Guisinger that his effect, requested Castaneda's forebearance. Finally, in check did not contain overtime compensation which was late January Castaneda spoke with Mrs. Roger Ikola, the due him. Guisinger said that she would look into the wife of one of the principal stockholders, and stated his matter and she informed Bruno Fava of Flores' com- desire to take some time off. Mrs. Ikola stated that she plaint. Fava examined Flores' personnel file, and Fava would speak with Bruno Fava concerning the matter. noted that Flores was a salaried employee. He asserted The following day Bruno Fava approached Castaneda that it was not the policy to pay overtime to salaried em- and told him that he had the following day off and to ployees but instructed Guisinger to check with Frank have a "nice day." A few days later Bruno Fava ap- Fava. Guisinger did so, and Frank Fava confirmed that preached Castaneda and told him not to speak with Mrs. Flores had worked overtime. Guisinger transmitted this Ikola about time off but to talk with Frank Fava. Subse- information to Bruno Fava and Fava instructed her to quently, Castaneda observed Frank and Bruno Fava pay Flores. Guisinger went to her office and calculated speaking together in Frank Fava's office. Thereafter, the amount which she believed was due Flores and Frank informed Castaneda not to talk to Mrs. Ikola but spoke with Flores informing him of the amount to which to speak with him. 6 she believed he was entitled. Flores became upset and spoke to Guisinger in a loud voioe. He claimed that the 4Fava had met earlier with department heads and had issued essential- amount was quite insufficient and that the Union was ly the same instructions to them. "going to hear about it." Guisinger responded that she I The foregoing is based upon a composite of the testimony of Bruno 11 1 * i icjui. ^ j ^ -i aI s L Fava, Constance Antoigue, Richard Castaneda, Cheryl Barr, Steven had perhaps miscalculated the amount and noted that she Oclaray, Elinor Bewlay, and Linda Stout. I have also considered the tes- was in the process of learning her job.' Guisinger report- timony of Deborah Mastriano. I credit the testimony of Fava and Antoi- ed to Bruno Fava the fact that Flores was Upset and that gue denying the testimony of Mastriano, Bewlay, and Stout to the effect apparently miscalculated the amount due Flores. that Fava stated, in terms, that employee resort to the Union would s had a m 11 a u du Flores. result in their termination. The testimony of Castaneda and Barr supports, Bruno became Visibly Upset and alluded to the fact that by implication, Fava's denial of any statement so explicit in terms or salaried employees were not paid overtime. However, he meaning, for their testimony, like that of Oclaray, reveals that Fava ap- instructed Guisinger to pay Flores. Guisinger took the pealed to the employees to come first to him with their problems before ^ ^ ^ ^ g experienced payroll ookkeep- going to the Union. Nothing in his remarks per se foreclosed resort to the m e p - Union. * The following is based upon the credited testimony of Richard Cas- ly and credibly denied his admonishing Castaneda about union contacts, taneda. I have also considered the testimony of both Bruno and Frank and Bruno Fava impliedly denied having issued such an instruction. I am Fava with respect to the series of conversations which they had concern- convinced upon my observation of Castaneda as he testified before me at ing Castaneda's time off. I do not credit the testimony of Castaneda to the hearing that he rationalized that portion of his testimony relating to the effect that in separate conversations both Frank Fava and Bruno warnings issued by the Favas against union contacts, and I do not credit Fava instructed him not to go to the Union concerning time off. In the it. first instance, I discern no predicate for the instruction which Castaneda I Paychecks were normally received on the 5th and 20th of each asserts was issued to him by Frank and Bruno Fava. Castaneda had not month. sought to invoke union aid nor had the Union on the terms of the collec- IOuisinger had previously handled accounts receivable and was in the tive-bargaining agreement been alluded to in the conversations between process of learning payroll at the time in question. She also worked at the Castaneda and Bruno and Frank Fava. Moreover, Frank Fava specifical- front desk. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was organizing the operation on a chain-of-com- c. Flores contacts the Union mand concept which should be followed both in making Paul Flores was employed in the capacity of a cook in suggestions for improving the operation and for lodgingdent's operation from June 1977 until March 2, complaints. Fava admonished the employees to follow 1979 with an interruption of service between November the chain of command by communicating first with the 1 a r of sv be department heads. He added that his door was open to 19 77 an d April 19 7 8. F lo r es w a s compensated on an employees for discussion and that, if they could not re- hourly basis until May 1978 when he was placed on ceive satisfaction from their department heads, they were salary an d in f o rm ed b y t h e t h en c h ef t h at h e w o u ld ear n free to consult with him. Fava added that the employees $700 per month. In the fall of 1978. Flores' salary was should follow the chain-of-command concept in seeking raised to $750 per month. Prior to December 1978, to resolve their work-related problems and should con- Flores occasionally worked overtime, and he was com- suit first with him before going to the Union. Fava stated pensated for his overtime work. Flores was a member of that if the employees did not follow his instructions, t h e Union. their job would be in jeopardy. 4 In this context he stated Incident to Frank Fava becoming executive chef, that he had known and dealt with Ted Zenich for a Flores commenced working a longer workweek than the number of years. Fava added that Richard McGuinness 5-day week which had previously prevailed. This intensi- would be limited to 2 days a month in which to collect fied schedule of work lasted through December and into dues on the premises. The employees posed questions to January and motivated Flores to approach Frank Fava Fava during the course of the meeting, and he gave an- seeking both a reduction in his total hours and Sundays swers. The comments made by Fava in the early portion off for religious observance. Flores also informed Frank of the meeting followed a format he had used on previ- Fava that his paychecks had not included overtime com- ous occasions in prior years at other facilities. 5 pensation. Fava told Flores he would look into the matter, but suggested that Flores speak directly to Bruno b. Castaneda seeks time offFava. Flores did not do so. During the months of December 1978 and January On or about January 20 Flores received his paycheck 1979, Castaneda was working long hours. He communi- and approached Brenda Guisinger, one of three book- cated his desire for time off to Frank Fava who, in keepers then employed.' He informed Guisinger that his effect, requested Castaneda's forebearance. Finally, in check did not contain overtime compensation which was late January Castaneda spoke with Mrs. Roger Ikola, the due him. Guisinger said that she would look into the wife of one of the principal stockholders, and stated his matter and she informed Bruno Fava of Flores' com- desire to take some time off. Mrs. Ikola stated that she plaint. Fava examined Flores' personnel file, and Fava would speak with Bruno Fava concerning the matter. noted that Flores was a salaried employee. He asserted The following day Bruno Fava approached Castaneda that it was not the policy to pay overtime to salaried em- and told him that he had the following day off and to ployees but instructed Guisinger to check with Frank have a "nice day." A few days later Bruno Fava ap- Fava. Guisinger did so, and Frank Fava confirmed that preached Castaneda and told him not to speak with Mrs. Flores had worked overtime. Guisinger transmitted this Ikola about time off but to talk with Frank Fava. Subse- information to Bruno Fava and Fava instructed her to quently, Castaneda observed Frank and Bruno Fava pay Flores. Guisinger went to her office and calculated speaking together in Frank Fava's office. Thereafter, the amount which she believed was due Flores and Frank informed Castaneda not to talk to Mrs. Ikola but spoke with Flores informing him of the amount to which to speak with him. 6 she believed he was entitled. Flores became upset and spoke to Guisinger in a loud voioe. He claimed that the 4Fava had met earlier with department heads and had issued essential- amount was quite insufficient and that the Union was ly the same instructions to them. "going to hear about it." Guisinger responded that she I The foregoing is based upon a composite of the testimony of Bruno 11 1 * i icjui. ^ j ^ -i aI s L Fava, Constance Antoigue, Richard Castaneda, Cheryl Barr, Steven had perhaps miscalculated the amount and noted that she Oclaray, Elinor Bewlay, and Linda Stout. I have also considered the tes- was in the process of learning her job.' Guisinger report- timony of Deborah Mastriano. I credit the testimony of Fava and Antoi- ed to Bruno Fava the fact that Flores was Upset and that gue denying the testimony of Mastriano, Bewlay, and Stout to the effect apparently miscalculated the amount due Flores. that Fava stated, in terms, that employee resort to the Union would s had a m 11 a u du Flores. result in their termination. The testimony of Castaneda and Barr supports, Bruno became Visibly Upset and alluded to the fact that by implication, Fava's denial of any statement so explicit in terms or salaried employees were not paid overtime. However, he meaning, for their testimony, like that of Oclaray, reveals that Fava ap- instructed Guisinger to pay Flores. Guisinger took the pealed to the employees to come first to him with their problems before ^ ^ ^ ^ g experienced payroll ookkeep- going to the Union. Nothing in his remarks per se foreclosed resort to the m e p - Union. * The following is based upon the credited testimony of Richard Cas- ly and credibly denied his admonishing Castaneda about union contacts, taneda. I have also considered the testimony of both Bruno and Frank and Bruno Fava impliedly denied having issued such an instruction. I am Fava with respect to the series of conversations which they had concern- convinced upon my observation of Castaneda as he testified before me at ing Castaneda's time off. I do not credit the testimony of Castaneda to the hearing that he rationalized that portion of his testimony relating to the effect that in separate conversations both Frank Fava and Bruno warnings issued by the Favas against union contacts, and I do not credit Fava instructed him not to go to the Union concerning time off. In the it. first instance, I discern no predicate for the instruction which Castaneda I Paychecks were normally received on the 5th and 20th of each asserts was issued to him by Frank and Bruno Fava. Castaneda had not month. sought to invoke union aid nor had the Union on the terms of the collec- IOuisinger had previously handled accounts receivable and was in the tive-bargaining agreement been alluded to in the conversations between process of learning payroll at the time in question. She also worked at the Castaneda and Bruno and Frank Fava. Moreover, Frank Fava specifical- front desk. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was organizing the operation on a chain-of-com- c. Flores contacts the Union mand concept which should be followed both in making Paul Flores was employed in the capacity of a cook in suggestions for improving the operation and for lodgingdent's operation from June 1977 until March 2, complaints. Fava admonished the employees to follow 1979 with an interruption of service between November the chain of command by communicating first with the 1 a r of sv be department heads. He added that his door was open to 19 77 an d April 19 7 8. F lo r es w a s compensated on an employees for discussion and that, if they could not re- hourly basis until May 1978 when he was placed on ceive satisfaction from their department heads, they were salary an d in f o rm ed by t h e t h en chef that he would earn free to consult with him. Fava added that the employees $700 per month. In the fall of 1978. Flores' salary was should follow the chain-of-command concept in seeking raised to $750 per month. Prior to December 1978, to resolve their work-related problems and should con- Flores occasionally worked overtime, and he was com- suit first with him before going to the Union. Fava stated pensated for his overtime work. Flores was a member of that if the employees did not follow his instructions, the Union. their job would be in jeopardy. 4 In this context he stated Incident to Frank Fava becoming executive chef, that he had known and dealt with Ted Zenich for a Flores commenced working a longer workweek than the number of years. Fava added that Richard McGuinness 5-day week which had previously prevailed. This intensi- would be limited to 2 days a month in which to collect fied schedule of work lasted through December and into dues on the premises. The employees posed questions to January and motivated Flores to approach Frank Fava Fava during the course of the meeting, and he gave an- seeking both a reduction in his total hours and Sundays swers. The comments made by Fava in the early portion off for religious observance. Flores also informed Frank of the meeting followed a format he had used on previ- Fava that his paychecks had not included overtime com- ous occasions in prior years at other facilities. 5 pensation. Fava told Flores he would look into the matter, but suggested that Flores speak directly to Bruno b. Castaneda seeks time offFava. Flores did not do so. During the months of December 1978 and January On or about January 20 Flores received his paycheck 1979, Castaneda was working long hours. He communi- and approached Brenda Guisinger, one of three book- cated his desire for time off to Frank Fava who, in keepers then employed.' He informed Guisinger that his effect, requested Castaneda's forebearance. Finally, in check did not contain overtime compensation which was late January Castaneda spoke with Mrs. Roger Ikola, the due him. Guisinger said that she would look into the wife of one of the principal stockholders, and stated his matter and she informed Bruno Fava of Flores' com- desire to take some time off. Mrs. Ikola stated that she plaint. Fava examined Flores' personnel file, and Fava would speak with Bruno Fava concerning the matter. noted that Flores was a salaried employee. He asserted The following day Bruno Fava approached Castaneda that it was not the policy to pay overtime to salaried em- and told him that he had the following day off and to ployees but instructed Guisinger to check with Frank have a "nice day." A few days later Bruno Fava ap- Fava. Guisinger did so, and Frank Fava confirmed that preached Castaneda and told him not to speak with Mrs. Flores had worked overtime. Guisinger transmitted this Ikola about time off but to talk with Frank Fava. Subse- information to Bruno Fava and Fava instructed her to quently, Castaneda observed Frank and Bruno Fava pay Flores. Guisinger went to her office and calculated speaking together in Frank Fava's office. Thereafter, the amount which she believed was due Flores and Frank informed Castaneda not to talk to Mrs. Ikola but spoke with Flores informing him of the amount to which to speak with him. 6 she believed he was entitled. Flores became upset and spoke to Guisinger in a loud voioe. He claimed that the 4Fava had met earlier with department heads and had issued essential- amount was quite insufficient and that the Union was ly the same instructions to them. "going to hear about it." Guisinger responded that she I The foregoing is based upon a composite of the testimony of Bruno 11 1 * i icjui. ^ j ^ -i aI s L Fava, Constance Antoigue, Richard Castaneda, Cheryl Barr, Steven had perhaps miscalculated the amount and noted that she Oclaray, Elinor Bewlay, and Linda Stout. I have also considered the tes- was in the process of learning her job.' Guisinger report- timony of Deborah Mastriano. I credit the testimony of Fava and Antoi- ed to Bruno Fava the fact that Flores was Upset and that gue denying the testimony of Mastriano, Bewlay, and Stout to the effect apparently miscalculated the amount due Flores. that Fava stated, in terms, that employee resort to the Union would s had a m 11 a u du Flores. result in their termination. The testimony of Castaneda and Barr supports, Bruno became Visibly Upset and alluded to the fact that by implication, Fava's denial of any statement so explicit in terms or salaried employees were not paid overtime. However, he meaning, for their testimony, like that of Oclaray, reveals that Fava ap- instructed Guisinger to pay Flores. Guisinger took the pealed to the employees to come first to him with their problems before ^ ^ ^ ^ g experienced payroll ookkeep- going to the Union. Nothing in his remarks per se foreclosed resort to the m e p - Union. * The following is based upon the credited testimony of Richard Cas- ly and credibly denied his admonishing Castaneda about union contacts, taneda. I have also considered the testimony of both Bruno and Frank and Bruno Fava impliedly denied having issued such an instruction. I am Fava with respect to the series of conversations which they had concern- convinced upon my observation of Castaneda as he testified before me at ing Castaneda's time off. I do not credit the testimony of Castaneda to the hearing that he rationalized that portion of his testimony relating to the effect that in separate conversations both Frank Fava and Bruno warnings issued by the Favas against union contacts, and I do not credit Fava instructed him not to go to the Union concerning time off. In the it. first instance, I discern no predicate for the instruction which Castaneda I Paychecks were normally received on the 5th and 20th of each asserts was issued to him by Frank and Bruno Fava. Castaneda had not month. sought to invoke union aid nor had the Union on the terms of the collec- IOuisinger had previously handled accounts receivable and was in the tive-bargaining agreement been alluded to in the conversations between process of learning payroll at the time in question. She also worked at the Castaneda and Bruno and Frank Fava. Moreover, Frank Fava specifical- front desk. HOLIDAY INN OF SANTA MARIA 653 ers who calculated the sum due Flores, and Guisinger Fava's decision. As Fava and Flores conversed together learned that she had, in fact, erred in her earlier calcula- they were observed by Castaneda from across the kitch- tions. 9en." Subsequently, during the height of the lunch hour, be- tween 12:15 p.m. and 1:15 p.m., Bruno Fava went into the kitchen as part of his normal daily routine. As he en- tered the kitchen, he observed order tickets placed at the " The foregoing is based primarily upon the credited testimony of cook's station by waitresses awaiting Flares' attention. Bruno Fava. I have considered the testimony of Paul Flores and Richard Castaneda only to the extent that it is consistent with the foregoing find- At the same time, he observed Flores speaking on the ings. I have also considered the testimony of Frank Fava insofar as it telephone and heard him ask for Ted Zenich. The phone serves to fix the time of the directive given Flores by Bruno Fava relat- at which Flores was speaking was located proximate to ing to his use of the telephone. In this latter connection, I specifically the kitchen entrance which Fava had used and, upon reject the testimony of Flores and of Castaneda to the effect that the di- rective and confrontation transpired prior to the lunch period. With re- hearing Flores speaking, Fava told Flores to put the spect to this facet of the case, Castaneda impressed me as a witness en- phone down and go to his work station. Fava added that deavoring diligently to assist Flores and the Union in the prosecution of the kitchen was busy, and he should make his phone the instant case. As against Flores' recollection of the time sequence, the calls on his own time. Nothing further was said. Subse- convincing testimony of Bruno Fava finds credible and persuasive sup- port in that of Frank Fava, and I am convinced that their testimony was quently, at approximately 2 p.m. or soon thereafter, Fava not fabricated. With respect to the substanoe of Fava's remarks, I credit returned to the kitchen and spoke with Flores. He apolo- his version for I am unable to conclude that a manager of his experience, gized for shouting at him earlier and explained that he sophistication, and long-term involvement in dealing with collective-bar- had done so because the phone call had taken place gaining representatives would have articulated the direct threat which the testimony of Flores describes. I find that Flores embellished his testi- during a busy period. Fava asserted that Flares should mony to serve his own pecuniary interest and that Fava's admonition to have waited until the proper time to inform the Union of him was communicated in the terms which Fava testified it was. Con- any problems, rather than ceiling during the peak lun- trary to the General Counsel, nothing in Fava's pretrial affidavit or his cheon period. Fava then asked Flores if he was satisfied witness stand testimony with respect thereto lends credence to the con- with the overtime compensation reflected in the revised tention that Favays eavesdropped on the conversation before pouncing on Flores with malice of forethought, so to speak. Fava's testimony estab- check. Flores stated that he was. "o At this point in the lishes that his statement to Flores was direct and brief, and Flores' testi- conversation, Fava told Flores that he was going to have mony supports this. Moreover, nothing in Flores' testimony suggests that to put him "back on to a contractual wage." Fava stated he first dialed information for the number of the "Culinary Union" prior that he was doing this because it was his understanding, to placing his phone call wherein he requested to speak to Zenich. Upon this record, I am unable to indulge the assumption which the General in substance, that the hours of salaried employees tended Counsel requests. Nor do I indulge the General Counsel's interpretation to offset and balance out and therefore they were not of the reference "reaffirmed" contained in Bruno Fava's pretrial affidavit. compensated for overtime on those occasions when they The interpretation warranted by the record as a whole, and the one worked extra hours. Flores indicated his acquiescence in which I apply, is that the reaffirmation alluded to was of his earlier deci- sion and instruction to Guisinger and had no reference to any earlier comment to Flores. In sum, taking into consideration the state of mind of The foregoing is based on a composite of the testimony of Paul both Fava and Flores at the time the telephone conversation transpired, Flores, Frank Fava, Bruno Fava, and Brenda Guisinger. To the extent and evaluating the experience and insight into the areas of permissible that the testimony of Flores departs from that of the other witnesses, par- dialogue which Fava undoubtedly brought to the instant occasion, I con- ticularly Guisinger and Frank Fava, as to chronology of events surround- elude that the testimony of Bruno Fava is a more reliable gauge of the ing his protest to Guisinger over the amount of overtime pay initially cal- content of the exchange than is that of Flores'. culated, I reject Flores' testimony. Moreover, I specifically credit the tes- Moreover, the testimony of Castaneda attributing to Frank Fava a timony of Frank Fava to the effect that he advised Flores to speak di- combination of adverse comments concerning Flores' call to the Union rectly with Bruno Fava concerning his overtime claim, and I do so upon and admonitions to Castaneda not to contact the Union is rejected. Fava my conviction that Frank Fava testified accurately and credibly that it credibly denied these attributions, and my observations of Fava's person- was not his practice to become involved in matters of pay and compensa- ality and nature convinces me that, contrary to Castaneda, Fava did not tion but routinely left those to front office resolution. Additionally, I allude to Flores as "a little bastard" and state that Flores had called the credit Guisinger's testimony that, in speaking with Bruno Fava, she did Union. not tell Fava that Flores had threatened to contact the Union over the In crediting the testimony of Bruno Fava with respect to his reap- overtime issue. I found Guisinger to have been a credible and reliable proachment to Flores at approximately 2 o'clock on the afternoon in witness who manifested no bias by endeavoring to shape her testimony or question, I have evaluated the evidence establishing that Flores was bona shade the truth. I am convinced that when she reported to Bruno Fava fidely convinced that he was entitled to overtime and, in that context, that Flores was upset over the amount of overtime pay proffered she was have weighed the acquiescence of Bruno Fava in directing the payment concerned not with Flores threat to contact the Union but with the accu- of any proper amount due Flores. In this connection, however, the evi- racy or inaccuracy of her own computation of the pay figure. She was dence preponderates in favor of a finding, which I make, that prior to inexperienced in payroll work and her reaction to Flores' remarks were January 20 Bruno Fava had not theretofore been aware of Flores' status entirely self-oriented. I conclude that, consistent with Guisinger's testimo- as a salaried employee and, as a matter of management predilection, ny, her accounting of her discussion with Flores on the matter was as reached a conclusion before the telephone episode that Flores, as a sala- terse and abbreviated as her testimony would suggest, and that Fava's re- ried employee, was required either to honor flexibility in the work sched- sponse was as direct and as instructive as his testimony and that of Gui- ule without resort to overtime or, on the other hand, be treated as an singer indicate. Contrary to the General Counsel, Bruno Fava's testimony hourly employee and be accorded overtime. In a related sense, I credit is not devoid of any support for the finding that he instructed Guisinger Guisinger and the inferences drawn from the testimony of Bruno Fava to place Flores on "union scale." He testified quite directly that when he that Fava spontaneously evinced surprise and dissatisfaction of the con- learned that Flores was on salary he felt a precedent he had established cept of compensating on a salaried basis a cook in Flores' job category. with respect to Castenada was being ignored and decided it was time to In concluding that Fava spoke to Flores in a conciliatory tone on the put Flores on the contractual rate. While Fava's testimony was some- afternoon of the day in question and on that occasion advised Flores that times imprecise and conceptual in nature, it is a fair inference, which I he was being placed on hourly compensation, I credit Bruno Fava. I base have indulged, that, as Guisinger testified, he translated his reaction into this credibility resolution upon a further finding supported by the cred- a specific directive. ited testimony of Bruno Fava and Brenda Guisinger that before the tele- 10 I am convinced that Flores so stated because he felt disinclined to phone incident and prior to speaking with Flores in the afternoon Fava challenge Fava on the issue at that time. had reached the decision to place Flores on hourly wages. HOLIDAY INN OF SANTA MARIA 653 ers who calculated the sum due Flores, and Guisinger Fava's decision. As Fava and Flores conversed together learned that she had, in fact, erred in her earlier calcula- they were observed by Castaneda from across the kitch- tions. 9 en." Subsequently, during the height of the lunch hour, be- tween 12:15 p.m. and 1:15 p.m., Bruno Fava went into the kitchen as part of his normal daily routine. As he en- tered the kitchen, he observed order tickets placed at the " T h e foregoing is based primarily upon the credited testimony of i i ... station *» wait..sses awaiting Flores' atten. i. » Bruno Fava. I have considered the testimony of Paul Flores and Richard cook's station by waitresses awaiting Flores' attention. Castaneda only to the extent that it is consistent with the foregoing find- At the Same time, he Observed Flores Speaking On the ings. I have also considered the testimony of Frank Fava insofar as it telephone and heard him ask for Ted Zenich. The phone serves to fix the time of the directive given Flores by Bruno Fava relat- at which Flores was Speaking was located proximate to in" to his use of the telephone. In this latter connection, I specifically the kitchen entrance which Fava had used and, upon reject the testimony of Flores and of Castaneda to the effect that the di- rective and confrontation transpired prior to the lunch period. With re- hearing Flores Speaking, Fava told Flores to put the spect to this facet of the case, Castaneda impressed me as a witness en- phone down and go to his work Station. Fava added that deavoring diligently to assist Flores and the Union in the prosecution of the kitchen was busy, and he should make his phone t he instant case. As against Flores' recollection of the time sequence, the calls on his own time. Nothing further was said. Subse- convincing testimony of Bruno Fava rinds credible and persuasive sup- port in that of Frank Fava, and I am convinced that their testimony was quently, at approximately 2 p.m. or soon thereafter, Fava ,no fabricated. With respect to the substance of Fava's remarks, I credit returned to the kitchen and Spoke With Flores. He apolo- his version for I am unable to conclude that a manager of his experience, gized for Shouting at him earlier and explained that he sophistication, and long-term involvement in dealing with collective-bar- had done so because the phone Call had taken place gaining representatives would have articulated the direct threat which A.,^ng ,, busy « eriod. ^^a v asserted t t » .A ««ld \A t he testimony of Flores describes. I find that Flores embellished his testi- during a busy period. Fava asserted that Flores should mony to serve his own pecuniary interest and that Fava's admonition to have waited until the proper time to inform the Union of him was communicated in the terms which Fava testified it was. Con- any problems, rather than ceiling during the peak lun- trary to the General Counsel, nothing in Fava's pretrial affidavit or his cheon period. Fava then asked Flores if he was satisfied witness stand testimony with respect thereto lends credence to the con- with the overtime compensation reflected in the revised tention that Fava eavesdropped on the conversation before pouncing on with te ovetime ompenation efleced inthe rvised Flores with malice of forethought, so to speak. Fava's testimoniy estab- Check. Flores Stated that he was. *" At this point in the lishes that his statement to Flores was direct and brief, and Flores' testi- conversation, Fava told Flores that he was going to have mony supports this. Moreover, nothing in Flores' testimony suggests that to put him "back on to a contractual wage." Fava Stated h e fir st d ia led information for the number of the "Culinary Union" prior that he was doing this because it was his understanding, to placing his phone call wherein he requested to speak to Zenich. Upon that he was doing this because it was his understanding, this record, I am unable to indulge the assumption which the General in Substance, that the hours Of salaried employees tended Counsel requests. Nor do I indulge the General Counsel's interpretation to offset and balance out and therefore they were not of the reference "reaffirmed" contained in Bruno Fava's pretrial affidavit. compensated for overtime on those Occasions when they T h e interpretation warranted by the record as a whole, and the one worked extra hours. Flores indicated his acquiescence in^which I apply, is that the reffirmation alluded to was of his earlier deci- worke extr hour. Flres idicatd hi acquescene in sion and instruction to Guisinger and had no reference to any earlier comment to Flores. In sum, taking into consideration the state of mind of The foregoing is based on a composite of the testimony of Paul both Fava and Flores at the time the telephone conversation transpired, Flores, Frank Fava, Bruno Fava, and Brenda Guisinger. To the extent and evaluating the experience and insight into the areas of permissible that the testimony of Flores departs from that of the other witnesses, par- dialogue which Fava undoubtedly brought to the instant occasion, 1 con- ticularly Guisinger and Frank Fava, as to chronology of events surround- elude that the testimony of Bruno Fava is a more reliable gauge of the ing his protest to Guisinger over the amount of overtime pay initially cal- content of the exchange than is that of Flores'. culated, I reject Flores' testimony. Moreover, I specifically credit the tes- Moreover, the testimony of Castaneda attributing to Frank Fava a timony of Frank Fava to the effect that he advised Flores to speak di- combination of adverse comments concerning Flores' call to the Union rectly with Bruno Fava concerning his overtime claim, and I do so upon and admonitions to Castaneda not to contact the Union is rejected. Fava my conviction that Frank Fava testified accurately and credibly that it credibly denied these attributions, and my observations of Fava's person- was not his practice to become involved in matters of pay and compensa- ality and nature convinces me that, contrary to Castaneda, Fava did not tion but routinely left those to front office resolution. Additionally, I allude to Flores as "a little bastard" and state that Flores had called the credit Guisinger's testimony that, in speaking with Bruno Fava, she did Union. not tell Fava that Flores had threatened to contact the Union over the In crediting the testimony of Bruno Fava with respect to his reap- overtime issue. I found Guisinger to have been a credible and reliable proachment to Flores at approximately 2 o'clock on the afternoon in witness who manifested no bias by endeavoring to shape her testimony or question, I have evaluated the evidence establishing that Flores was bona shade the truth. I am convinced that when she reported to Bruno Fava fidely convinced that he was entitled to overtime and, in that context, that Flores was upset over the amount of overtime pay proffered she was have weighed the acquiescence of Bruno Fava in directing the payment concerned not with Flores threat to contact the Union but with the accu- of any proper amount due Flores. In this connection, however, the evi- racy or inaccuracy of her own computation of the pay figure. She was dence preponderates in favor of a finding, which I make, that prior to inexperienced in payroll work and her reaction to Flores' remarks were January 20 Bruno Fava had not theretofore been aware of Flores' status entirely self-oriented. I conclude that, consistent with Guisinger's testimo-. as a salaried employee and, as a matter of management predilection, ny, her accounting of her discussion with Flores on the matter was as reached a conclusion before the telephone episode that Flores, as a Wsl- terse and abbreviated as her testimony would suggest, and that Fava's re- ried employee, was required either to honor flexibility in the work sched- sponse was as direct and as instructive as his testimony and that of Gui- ule without resort to overtime or, on the other hand, be treated as an singer indicate. Contrary to the General Counsel, Bruno Fava's testimony hourly employee and be accorded overtime. In a related sense, I credit is not devoid of any support for the finding that he instructed Guisinger Guisinger and the inferences drawn from the testimony of Bruno Fava to place Flores on "union scale." He testified quite directly that when he that Fava spontaneously evinced surprise and dissatisfaction of the con- learned that Flores was on salary he felt a precedent he had established cept of compensating on a salaried basis a cook in Flores' job category. with respect to Castenada was being ignored and decided it was time to In concluding that Fava spoke to Flores in a conciliatory tone on the put Flores on the contractual rate. While Fava's testimony was some- afternoon of the day in question and on that occasion advised Flores that times imprecise and conceptual in nature, it is a fair inference, which I he was being placed on hourly compensation, I credit Bruno Fava. I base have indulged, that, as Guisinger testified, he translated his reaction into this credibility resolution upon a further finding supported by the cred- a specific directive. ited testimony of Bruno Fava and Brenda Guisinger that before the tele- 10 I am convinced that Flores so stated because he felt disinclined to phone incident and prior to speaking with Flores in the afternoon Fava challenge Fava on the issue at that time. had reached the decision to place Flores on hourly wages. HOLIDAY INN OF SANTA MARIA 653 ers who calculated the sum due Flores, and Guisinger Fava's decision. As Fava and Flores conversed together learned that she had, in fact, erred in her earlier calcula- they were observed by Castaneda from across the kitch- tions. 9 en." Subsequently, during the height of the lunch hour, be- tween 12:15 p.m. and 1:15 p.m., Bruno Fava went into the kitchen as part of his normal daily routine. As he en- tered the kitchen, he observed order tickets placed at the " T h e foregoing is based primarily upon the credited testimony of i i ... station *» wait..sses awaiting Flores' atten. i. » Bruno Fava. I have considered the testimony of Paul Flores and Richard cook's station by waitresses awaiting Flores' attention. Castaneda only to the extent that it is consistent with the foregoing find- At the Same time, he Observed Flores Speaking On the ings. I have also considered the testimony of Frank Fava insofar as it telephone and heard him ask for Ted Zenich. The phone serves to fix the time of the directive given Flores by Bruno Fava relat- at which Flores was Speaking was located proximate to i"g to his use of the telephone. In this latter connection, I specifically the kitchen entrance which Fava had used and, upon reject the testimony of Flores and of Castaneda to the effect that the di- rective and confrontation transpired prior to the lunch period. With re- hearing Flores Speaking, Fava told Flores to put the spect to this facet of the case, Castaneda impressed me as a witness en- phone down and go to his work Station. Fava added that deavoring diligently to assist Flores and the Union in the prosecution of the kitchen was busy, and he should make his phone t he instant case. As against Flores' recollection of the time sequence, the calls on his own time. Nothing further was said. Subse- convincing testimony of Bruno Fava rinds credible and persuasive sup- port in that of Frank Fava, and I am convinced that their testimony was quently, at approximately 2 p.m. or soon thereafter, Fava ,no fabricated. With respect to the substance of Fava's remarks, I credit returned to the kitchen and Spoke With Flores. He apolo- his version for I am unable to conclude that a manager of his experience, gized for Shouting at him earlier and explained that he sophistication, and long-term involvement in dealing with collective-bar- had done so because the phone Call had taken place gaining representatives would have articulated the direct threat which A.,^ng ,, busy « eriod. ^^a v asserted t t » .A ««ld \A t he testimony of Flores describes. I find that Flores embellished his testi- during a busy period. Fava asserted that Flores should mony to serve his own pecuniary interest and that Fava's admonition to have waited until the proper time to inform the Union of him was communicated in the terms which Fava testified it was. Con- any problems, rather than ceiling during the peak lun- trary to the General Counsel, nothing in Fava's pretrial affidavit or his cheon period. Fava then asked Flores if he was satisfied witness stand testimony with respect thereto lends credence to the con- with the overtime compensation reflected in the revised tention that Fava eavesdropped on the conversation before pouncing on with te ovetime ompenation efleced inthe rvised Flores with malice of forethought, so to speak. Fava's testimoniy estab- Check. Flores Stated that he was. *" At this point in the lishes that his statement to Flores was direct and brief, and Flores' testi- conversation, Fava told Flores that he was going to have mony supports this. Moreover, nothing in Flores' testimony suggests that to put him "back on to a contractual wage." Fava Stated h e fir st d ia led information for the number of the "Culinary Union" prior that he was doing this because it was his understanding, to placing his phone call wherein he requested to speak to Zenich. Upon that he was doing this because it was his understanding, this record, I am unable to indulge the assumption which the General in Substance, that the hours Of salaried employees tended Counsel requests. Nor do I indulge the General Counsel's interpretation to offset and balance out and therefore they were not of the reference "reaffirmed" contained in Bruno Fava's pretrial affidavit. compensated for overtime on those Occasions when they T h e interpretation warranted by the record as a whole, and the one worked extra hours. Flores indicated his acquiescence in^which I apply, is that the reffirmation alluded to was of his earlier deci- worke extr hour. Flres idicatd hi acquescene in sion and instruction to Guisinger and had no reference to any earlier comment to Flores. In sum, taking into consideration the state of mind of The foregoing is based on a composite of the testimony of Paul both Fava and Flores at the time the telephone conversation transpired, Flores, Frank Fava, Bruno Fava, and Brenda Guisinger. To the extent and evaluating the experience and insight into the areas of permissible that the testimony of Flores departs from that of the other witnesses, par- dialogue which Fava undoubtedly brought to the instant occasion, 1 con- ticularly Guisinger and Frank Fava, as to chronology of events surround- elude that the testimony of Bruno Fava is a more reliable gauge of the ing his protest to Guisinger over the amount of overtime pay initially cal- content of the exchange than is that of Flores'. culated, I reject Flores' testimony. Moreover, I specifically credit the tes- Moreover, the testimony of Castaneda attributing to Frank Fava a timony of Frank Fava to the effect that he advised Flores to speak di- combination of adverse comments concerning Flores' call to the Union rectly with Bruno Fava concerning his overtime claim, and I do so upon and admonitions to Castaneda not to contact the Union is rejected. Fava my conviction that Frank Fava testified accurately and credibly that it credibly denied these attributions, and my observations of Fava's person- was not his practice to become involved in matters of pay and compensa- ality and nature convinces me that, contrary to Castaneda, Fava did not tion but routinely left those to front office resolution. Additionally, I allude to Flores as "a little bastard" and state that Flores had called the credit Guisinger's testimony that, in speaking with Bruno Fava, she did Union. not tell Fava that Flores had threatened to contact the Union over the In crediting the testimony of Bruno Fava with respect to his reap- overtime issue. I found Guisinger to have been a credible and reliable proachment to Flores at approximately 2 o'clock on the afternoon in witness who manifested no bias by endeavoring to shape her testimony or question, I have evaluated the evidence establishing that Flores was bona shade the truth. I am convinced that when she reported to Bruno Fava fidely convinced that he was entitled to overtime and, in that context, that Flores was upset over the amount of overtime pay proffered she was have weighed the acquiescence of Bruno Fava in directing the payment concerned not with Flores threat to contact the Union but with the accu- of any proper amount due Flores. In this connection, however, the evi- racy or inaccuracy of her own computation of the pay figure. She was dence preponderates in favor of a finding, which I make, that prior to inexperienced in payroll work and her reaction to Flores' remarks were January 20 Bruno Fava had not theretofore been aware of Flores' status entirely self-oriented. I conclude that, consistent with Guisinger's testimo-. as a salaried employee and, as a matter of management predilection, ny, her accounting of her discussion with Flores on the matter was as reached a conclusion before the telephone episode that Flores, as a Wsl- terse and abbreviated as her testimony would suggest, and that Fava's re- ried employee, was required either to honor flexibility in the work sched- sponse was as direct and as instructive as his testimony and that of Gui- ule without resort to overtime or, on the other hand, be treated as an singer indicate. Contrary to the General Counsel, Bruno Fava's testimony hourly employee and be accorded overtime. In a related sense, I credit is not devoid of any support for the finding that he instructed Guisinger Guisinger and the inferences drawn from the testimony of Bruno Fava to place Flores on "union scale." He testified quite directly that when he that Fava spontaneously evinced surprise and dissatisfaction of the con- learned that Flores was on salary he felt a precedent he had established cept of compensating on a salaried basis a cook in Flores' job category. with respect to Castenada was being ignored and decided it was time to In concluding that Fava spoke to Flores in a conciliatory tone on the put Flores on the contractual rate. While Fava's testimony was some- afternoon of the day in question and on that occasion advised Flores that times imprecise and conceptual in nature, it is a fair inference, which I he was being placed on hourly compensation, I credit Bruno Fava. I base have indulged, that, as Guisinger testified, he translated his reaction into this credibility resolution upon a further finding supported by the cred- a specific directive. ited testimony of Bruno Fava and Brenda Guisinger that before the tele- 10 I am convinced that Flores so stated because he felt disinclined to phone incident and prior to speaking with Flores in the afternoon Fava challenge Fava on the issue at that time. had reached the decision to place Flores on hourly wages. HOLIDAY INN OF SANTA MARIA 653 ers who calculated the sum due Flores, and Guisinger Fava's decision. As Fava and Flores conversed together learned that she had, in fact, erred in her earlier calcula- they were observed by Castaneda from across the kitch- tions. 9 en." Subsequently, during the height of the lunch hour, be- tween 12:15 p.m. and 1:15 p.m., Bruno Fava went into the kitchen as part of his normal daily routine. As he en- tered the kitchen, he observed order tickets placed at the " T h e foregoing is based primarily upon the credited testimony of i i ... station *» wait..sses awaiting Flores' atten. i. » Bruno Fava. I have considered the testimony of Paul Flores and Richard cook's station by waitresses awaiting Flores' attention. Castaneda only to the extent that it is consistent with the foregoing find- At the Same time, he Observed Flores Speaking On the ings. I have also considered the testimony of Frank Fava insofar as it telephone and heard him ask for Ted Zenich. The phone serves to fix the time of the directive given Flores by Bruno Fava relat- at which Flores was Speaking was located proximate to i"g to his use of the telephone. In this latter connection, I specifically the kitchen entrance which Fava had used and, upon reject the testimony of Flores and of Castaneda to the effect that the di- rective and confrontation transpired prior to the lunch period. With re- hearing Flores Speaking, Fava told Flores to put the spect to this facet of the case, Castaneda impressed me as a witness en- phone down and go to his work Station. Fava added that deavoring diligently to assist Flores and the Union in the prosecution of the kitchen was busy, and he should make his phone t he instant case. As against Flores' recollection of the time sequence, the calls on his own time. Nothing further was said. Subse- convincing testimony of Bruno Fava rinds credible and persuasive sup- port in that of Frank Fava, and I am convinced that their testimony was quently, at approximately 2 p.m. or soon thereafter, Fava ,no fabricated. With respect to the substance of Fava's remarks, I credit returned to the kitchen and Spoke With Flores. He apolo- his version for I am unable to conclude that a manager of his experience, gized for Shouting at him earlier and explained that he sophistication, and long-term involvement in dealing with collective-bar- had done so because the phone Call had taken place gaining representatives would have articulated the direct threat which A.,^ng ,, busy « eriod. ^^a v asserted t t » .A ««ld \A t he testimony of Flores describes. I find that Flores embellished his testi- during a busy period. Fava asserted that Flores should mony to serve his own pecuniary interest and that Fava's admonition to have waited until the proper time to inform the Union of him was communicated in the terms which Fava testified it was. Con- any problems, rather than ceiling during the peak lun- trary to the General Counsel, nothing in Fava's pretrial affidavit or his cheon period. Fava then asked Flores if he was satisfied witness stand testimony with respect thereto lends credence to the con- with the overtime compensation reflected in the revised tention that Fava eavesdropped on the conversation before pouncing on with te ovetime ompenation efleced inthe rvised Flores with malice of forethought, so to speak. Fava's testimoniy estab- Check. Flores Stated that he was. *" At this point in the lishes that his statement to Flores was direct and brief, and Flores' testi- conversation, Fava told Flores that he was going to have mony supports this. Moreover, nothing in Flores' testimony suggests that to put him "back on to a contractual wage." Fava Stated h e fir st d ia led information for the number of the "Culinary Union" prior that he was doing this because it was his understanding, to placing his phone call wherein he requested to speak to Zenich. Upon that he was doing this because it was his understanding, this record, I am unable to indulge the assumption which the General in Substance, that the hours Of salaried employees tended Counsel requests. Nor do I indulge the General Counsel's interpretation to offset and balance out and therefore they were not of the reference "reaffirmed" contained in Bruno Fava's pretrial affidavit. compensated for overtime on those Occasions when they T h e interpretation warranted by the record as a whole, and the one worked extra hours. Flores indicated his acquiescence in^which I apply, is that the reffirmation alluded to was of his earlier deci- worke extr hour. Flres idicatd hi acquescene in sion and instruction to Guisinger and had no reference to any earlier comment to Flores. In sum, taking into consideration the state of mind of The foregoing is based on a composite of the testimony of Paul both Fava and Flores at the time the telephone conversation transpired, Flores, Frank Fava, Bruno Fava, and Brenda Guisinger. To the extent and evaluating the experience and insight into the areas of permissible that the testimony of Flores departs from that of the other witnesses, par- dialogue which Fava undoubtedly brought to the instant occasion, 1 con- ticularly Guisinger and Frank Fava, as to chronology of events surround- elude that the testimony of Bruno Fava is a more reliable gauge of the ing his protest to Guisinger over the amount of overtime pay initially cal- content of the exchange than is that of Flores'. culated, I reject Flores' testimony. Moreover, I specifically credit the tes- Moreover, the testimony of Castaneda attributing to Frank Fava a timony of Frank Fava to the effect that he advised Flores to speak di- combination of adverse comments concerning Flores' call to the Union rectly with Bruno Fava concerning his overtime claim, and I do so upon and admonitions to Castaneda not to contact the Union is rejected. Fava my conviction that Frank Fava testified accurately and credibly that it credibly denied these attributions, and my observations of Fava's person- was not his practice to become involved in matters of pay and compensa- ality and nature convinces me that, contrary to Castaneda, Fava did not tion but routinely left those to front office resolution. Additionally, I allude to Flores as "a little bastard" and state that Flores had called the credit Guisinger's testimony that, in speaking with Bruno Fava, she did Union. not tell Fava that Flores had threatened to contact the Union over the In crediting the testimony of Bruno Fava with respect to his reap- overtime issue. I found Guisinger to have been a credible and reliable proachment to Flores at approximately 2 o'clock on the afternoon in witness who manifested no bias by endeavoring to shape her testimony or question, I have evaluated the evidence establishing that Flores was bona shade the truth. I am convinced that when she reported to Bruno Fava fidely convinced that he was entitled to overtime and, in that context, that Flores was upset over the amount of overtime pay proffered she was have weighed the acquiescence of Bruno Fava in directing the payment concerned not with Flores threat to contact the Union but with the accu- of any proper amount due Flores. In this connection, however, the evi- racy or inaccuracy of her own computation of the pay figure. She was dence preponderates in favor of a finding, which I make, that prior to inexperienced in payroll work and her reaction to Flores' remarks were January 20 Bruno Fava had not theretofore been aware of Flores' status entirely self-oriented. I conclude that, consistent with Guisinger's testimo-. as a salaried employee and, as a matter of management predilection, ny, her accounting of her discussion with Flores on the matter was as reached a conclusion before the telephone episode that Flores, as a Wsl- terse and abbreviated as her testimony would suggest, and that Fava's re- ried employee, was required either to honor flexibility in the work sched- sponse was as direct and as instructive as his testimony and that of Gui- ule without resort to overtime or, on the other hand, be treated as an singer indicate. Contrary to the General Counsel, Bruno Fava's testimony hourly employee and be accorded overtime. In a related sense, I credit is not devoid of any support for the finding that he instructed Guisinger Guisinger and the inferences drawn from the testimony of Bruno Fava to place Flores on "union scale." He testified quite directly that when he that Fava spontaneously evinced surprise and dissatisfaction of the con- learned that Flores was on salary he felt a precedent he had established cept of compensating on a salaried basis a cook in Flores' job category. with respect to Castenada was being ignored and decided it was time to In concluding that Fava spoke to Flores in a conciliatory tone on the put Flores on the contractual rate. While Fava's testimony was some- afternoon of the day in question and on that occasion advised Flores that times imprecise and conceptual in nature, it is a fair inference, which I he was being placed on hourly compensation, I credit Bruno Fava. I base have indulged, that, as Guisinger testified, he translated his reaction into this credibility resolution upon a further finding supported by the cred- a specific directive. ited testimony of Bruno Fava and Brenda Guisinger that before the tele- 10 I am convinced that Flores so stated because he felt disinclined to phone incident and prior to speaking with Flores in the afternoon Fava challenge Fava on the issue at that time. had reached the decision to place Flores on hourly wages. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The alleged termination of Flores dibly testified that he hired a replacement for Flores when a qualified applicant presented himself because The contractual wage rates in effect in January and when a ed resented himself because February 1979 provided for compensation of the follow- qualified help was in short supply. When Fl o res prof- ing classifications at the hourly rates shown: fered his resignation, he had not secured employment elsewhere, nor had he secured another job on March 2 Dinner cook-$4.25.5 when he left Respondent's employ. Second cook-S4.04 As found, the three paychecks received by Flores on Broiler cook-$3.82 February 2, 20, and 28, respectively, reflected hourly Fry cook-$3.60 wage rates of $4.25, $3.60, and $3.75. Upon learning of these variations in hourly pay rates, Bruno Fava verbally When the telephone incident occurred Flores was receiv chastised the staff, comprised of one experienced payroll ing a salary of $750 per month, or $4.37 per hour based clerk and two relatively inexperienced clerks." on a workweek of 40 hours. The paycheck which Flores received on February 5 representing his compensation e. Mastriano terminated for the pay period January 16 through January 31 repre- sented compensation at $4.25 per hour. This rate was (I) Employment history used by Guisinger in an effort to comply with Fava's in- struction to pay Flores at union scale. In checking the Deborah Mastriano was employed by Respondent payroll on payday Fava noted the rate and called the from May 1978 until November 28, 1979, when she was three payroll clerks into his office and admonished them terminated. She was employed as a bartender on the day that he had directed Flores be put on union scale. Ac- shift and, as found, Mastriano served as bar manager. cordingly, Guisinger applied the contractual wage appli- cable to the fry cook classification in preparing Flores' " The foregoing is based on a composite of the credited testimony of ,p r 20 Fla .res re- cFrank Fava, Paul Flores, Brenda Guisinger, and documentary evidence next paycheck. Subsequently, on February 20 Flores re- of record. In crediting the testimony of Paul Flores regarding his motiva- ceived his paycheck covering the 2-week period Febru- tion in giving his 2 weeks' notice, I have evaluated the suggestive nature ary 1 through February 15, and it reflected an amount of a key question leading to Flores' specification of his rate of pay as a representing an hourly rate of $3.60 per hour. Upon a re- force in his decision. Nonetheless, being convinced that the total context ceipt of his paycheck on Febr y 20, he t of Flores' testimony is such as to establish his wage rate as a factor in his ceipt of his paycheck on February 20, he protested to decision, I have reached the findings of fact above made. However, in all Bruno Fava who instructed him to speak to Frank Fava. other respects I credit Flores' testimony only to the extent that it is con- He did so and Frank Fava showed him the contractual sistent with the foregoing findings. Initially, I became convinced as I ob- rate schedule. Flores protested that he was being given served Paul Flores testify at the proceeding before me that Flores was the "bottom figure" which he characterized as ".dicu- ,lacing his testimony liberally with rationalizations and extenuations which the "bottom figure" which he characterized as dicu- he knew to be harmful to the defenses being interposed by Respondent lous" in light of his experience. Frank Fava agreed to and fully supportive not only of his own pecuniary interest in this matter pay him $3.75 per hour. Flores walked away. but also of the rationale of antiunion propensities on the part of Bruno Soon thereafter Flores, spoke with Frank Fava in Fava so foundational to the General Counsel's case. Flores' attributions Fava's office and told him that he was giving him 2 to Bruno Fava and Frank Fava of direct, undisguised, and blatant expres- sions of hostility toward the Union and union-based motivation for the weeks' notice. Flores stated that he was working too removal of Flores from salary and a reduction of his equivalent hourly hard, that too much work was expected of him, and that wage rate exemplify the excesses of Flores' testimony, and this testimony the pay he was receiving as a result of the adjustment re- is rejected. Moreover, my separate evaluations of Frank Fava and of suited in his "not making enough money." Fava respond- Bruno Fao as I obee them tetify before me, provides insufficient foundation for the conclusion that either of them harbored resentment or ed by noting, in substance, that improvements had been hostilities toward the Union, or toward the concept of collective repre- made in the operation and staffing of the kitchen oper- sentation. Nor does this evaluation of them and their sworn testimony ation and that an employee had been hired to make support the conclusion that either of them was so naive and lacking in salads and cold sandwiches, thus easing the work burden judgment or self-control as to have articulated in specific terms the im- proper, union-related motivation for their wage actions, as Flores' testi- for Flores. Fava did not endeavor further to dissuade mony suggests. Particularly is this so here where Flores has manifested Flores but advised him that, if a qualified employee by his own actions a disposition or willingness to seek the assistance of became available in the next 2 weeks, he would employ the Union in matters pertaining to his own employment. In crediting the him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him and Flores signifying Flores' severance, I do so for the reason that I consider terminate Flores. Fava's account both of the conversation wherein Flores gave notice of On February 27 Frank Fava hired a breakfast cook his intention to quit, and of the severance interview, to be intrinsically whom he considered fully qualified. Fava instructed the credible. Moreover, Fava's accounts comport with the logical realities new employee to commence work the following day, that then pertained. Fava had worked diligently to improve the operation of the kitchen, and had made demands on himself and other kitchen per- and he told the payroll department to prepare Flores' sonnel to achieve the objective of bringing the kitchen into compliance checks. Flores was compensated at the rate of $3.75 per with health codes and the demands of the Holiday Inn International. Fur- hour for his work through February 28, and anothther he, he had assisted Flores in improving his cooking techniques. More- check was issued dated March 2, 1979, compensating over, qualified help was in short supply. I reject Flores' testimony to the effect that, when he proffered his resignation, Frank Fava was virtually Flores for 16 additional hours of work at the rate of unresponsive and merely acquiescent. I further reject the inferences of $3.75 per hour. Flores' testimony that his relationship with Fava became strained due to Flores credibly testified that he gave notice of his in- the fact that Frank Fava had learned that he, Flores, had endeavored to tention to resign because he felt that in so doing he could contact the Union concerning his wages. Rather, I credit the testimony of Frank Fava to the effect that Flores advised him of his intentions to "jar" Fava into raising his wages to an hourly rate more resign, that he endeavored to dissuade him and warned him that he, akin to that represented by his previous salary. Fava re- Fava, would hire a qualified applicant if one became available. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The alleged termination of Flores dibly testified that he hired a replacement for Flores The contractual wage rates in effect in January and w h en a qu l ed applican Presented himself because February 1979 provided for compensation of the follow- qualified help w as in sh o r t supply. Wh en F l o r e s prof- ing classifications at the hourly rates shown: f er e d hi s resignation, he had not secured employment elsewhere, nor had he secured another job on March 2 Dinner cook-$4.25.5 when he left Respondent's employ. Second cook-$4.04 As found, the three paychecks received by Flores on Broiler cook-$3.82 February 2, 20, and 28, respectively, reflected hourly Fry cook-$3.60 wage rates of $4.25, $3.60, and $3.75. Upon learning of these variations in hourly pay rates, Bruno Fava verbally When the telephone incident occurred Flores was receiv- chastised the staff, comprised of one experienced payroll ing a salary of $750 per month, or $4.37 per hour based clerk and two relatively inexperienced clerks." on a workweek of 40 hours. The paycheck which Flores received on February 5 representing his compensation e. Mastrnano terminated for the pay period January 16 through January 31 repre- sented compensation at $4.25 per hour. This rate was (1) Employment history used by Guisinger in an effort to comply with Fava's in- struction to pay Flores at union scale. In checking the Deborah Mastriano was employed by Respondent payroll on payday Fava noted the rate and called the fro m May 19 7 8 un til November 28, 1979, when she was three payroll clerks into his office and admonished them terminated. She was employed as a bartender on the day that he had directed Flores be put on union scale. Ac- shift and, as found, Mastriano served as bar manager. cordingly, Guisinger applied the contractual wage appli- cable to the fry cook classification in preparing Flores'I " T he foregoing is based on a composite of the credited testimony of ,ext paycheck. , ubsequently, „n .ebruary ,, cores u- iFrank Fava, Paul Flores, Brenda Guisinger, and documentary evidence next paycheck. Subsequently, on February 20 Flores re- of record. In crediting the testimony of Paul Flores regarding his motiva- ceived his paycheck covering the 2-week period Febru- tion in giving his 2 weeks' notice, I have evaluated the suggestive nature ary 1 through February 15, and it reflected an amount of a key question leading to Flores' specification of his rate of pay as a representing an hourly rate of $3.60 per hour. Upon a re- fo r ce in h is decision. Nonetheless, being convinced that the total context .. ,,. ,f ,is T-.I-eck -w» i-bruary 20, he proteite to of Flores' testimony is such as to establish his wage rate as a factor in his ceipt of his paycheck on February 20, he protested to^decision, I have reached the findings of fact above made. However, in all Bruno Fava who instructed him to speak to Frank Fava. other respects I credit Flores' testimony only to the extent that it is con- He did so and Frank Fava showed him the contractual sistent with the foregoing findings. Initially, I became convinced as I ob- rate schedule. Flores protested that he was being given ser v ed P au l F lore s testify at the proceeding before me that Flores was ., ,,,.. „bottom „igure" ..ich , e , haracterized ,s . . ,lacing his testimony liberally with rationalizations and extenuations which the "bottom figure" which he characterized as "ridicu- he knew to be harmful to the defenses being interposed by Respondent lous" in light of his experience. Frank Pava agreed to and fully supportive not only of his own pecuniary interest in this matter pay him $3.75 per hour. Flores walked away. but also of the rationale of antiunion propensities on the part of Bruno Soon thereafter Flores, Spoke with Frank Fava in F av a so foundational to the General Counsel's case. Flores' attributions Fava's office and told him that he was giving him 2 to Bruno Fava and Frank Fava of direct, undisguised, and blatant expres- sions of hostility toward the Union and union-based motivation for the weeks' notice. Flores Stated that he was working too removal of Flores from salary and a reduction of his equivalent hourly hard, that too much work was expected of him, and that wage rate exemplify the excesses of Flores' testimony, and this testimony the pay he was receiving as a result of the adjustment re- is rejected. Moreover, my separate evaluations of Frank Fava and of suited in his "not making enough money." Fava respond-ZBruno Fava as I observed them testify before me, provides insufficient sultedin his"not mking eough mney." ava repond- foundation for the conclusion that either of them harbored resentment or ed by noting, in substance, that improvements had been hostilities toward the Union, or toward the concept of collective repre- made in the Operation and Staffing of the kitchen oper- sentation. Nor does this evaluation of them and their sworn testimony ation and that an employee had been hired to make support the conclusion that either of them was so naive and lacking in salads and cold sandwiches, thus easing the work burden^judgment or self-control as to have articulated in specific terms the im- saladsand cod sandichesthus esing te workburden proper, union-related motivation for their wage actions, as Flores' testi- for Flores. Fava did not endeavor further to dissuade mony suggests. Particularly is this so here where Flores has manifested Flores but advised him that, if a qualified employee by his own actions a disposition or willingness to seek the assistance of became available in the next 2 weeks, he would employ th CU nio " i" mat ter pertaining to his own employment. In crediting the him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him and him. Headded tat if tis occrred, h would ave to Flores signifying Flores' severance, I do so for the reason that I consider terminate Flores. Fava's account both of the conversation wherein Flores gave notice of On February 27 Frank Fava hired a breakfast cook his intention to quit, and of the severance interview, to be intrinsically whom he considered fully qualified. Pava instructed the credible. Moreover, Fava's accounts comport with the logical realities new employee to commence work the following day' that then pertained. Fava had worked diligently to improve the operation of the kitchen, and had made demands on himself and other kitchen per- and he told the payroll department to prepare Flores sonnel to achieve the objective of bringing the kitchen into compliance checks. Flores was compensated at the rate of $3.75 per with health codes and the demands of the Holiday Inn International. Fur- hour for his work through February 28, and another 'her, he had assisted Flores in improving his cooking techniques. More- check was issued dated March 2, 1979, compensating over, qualified help was in short supply. I reject Flores' testimony to the e a ea ,t that, when he proffered his resignation, Frank Pava was virtually Flores for 16 additional hours Of work at the rate of unresponsive and merely acquiescent. I further reject the inferences of $3.75 per hour. Flores' testimony that his relationship with Fava became strained due to Flores credibly testified that he gave notice of his in- the fact that Frank Fava had learned that he, Flores, had endeavored to tention to resign because he felt that in so doing he could contact the Union concerning his wages. Rather, I credit the testimony of Frank Fava to the effect that Flores advised him of his intentions to "jar" Fava into raising his wages to an hourly rate more resign, that he endeavored to dissuade him and warned him that he, akin to that represented by his previous salary. Fava cre- Fava, would hire a qualified applicant if one became available. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The alleged termination of Flores dibly testified that he hired a replacement for Flores The contractual wage rates in effect in January and w h en a qu l ed applican Presented himself because February 1979 provided for compensation of the follow- qualified help w as in sh o r t supply. Wh en F l o r e s prof- ing classifications at the hourly rates shown: f ered hi s resignation, he had not secured employment elsewhere, nor had he secured another job on March 2 Dinner cook-$4.25.5 when he left Respondent's employ. Second cook-$4.04 As found, the three paychecks received by Flores on Broiler cook-$3.82 February 2, 20, and 28, respectively, reflected hourly Fry cook-$3.60 wage rates of $4.25, $3.60, and $3.75. Upon learning of these variations in hourly pay rates, Bruno Fava verbally When the telephone incident occurred Flores was receiv- chastised the staff, comprised of one experienced payroll ing a salary of $750 per month, or $4.37 per hour based clerk and two relatively inexperienced clerks." on a workweek of 40 hours. The paycheck which Flores received on February 5 representing his compensation e. Mastrnano terminated for the pay period January 16 through January 31 repre- sented compensation at $4.25 per hour. This rate was (1) Employment history used by Guisinger in an effort to comply with Fava's in- struction to pay Flores at union scale. In checking the Deborah Mastriano was employed by Respondent payroll on payday Fava noted the rate and called the fro m May 19 7 8 un til November 28, 1979, when she was three payroll clerks into his office and admonished them terminated. She was employed as a bartender on the day that he had directed Flores be put on union scale. Ac- shift and, as found, Mastriano served as bar manager. cordingly, Guisinger applied the contractual wage appli- cable to the fry cook classification in preparing Flores'I " T he foregoing is based on a composite of the credited testimony of ,ext paycheck. , ubsequently, „n .ebruary ., cors u- inFrank Fava, Paul Flores, Brenda Guisinger, and documentary evidence next paycheck. Subsequently, on February 20 Flores re- of record. In crediting the testimony of Paul Flores regarding his motiva- ceived his paycheck covering the 2-week period Febru- tion in giving his 2 weeks' notice, I have evaluated the suggestive nature ary 1 through February 15, and it reflected an amount of a key question leading to Flores' specification of his rate of pay as a representing an hourly rate of $3.60 per hour. Upon a re- fo r ce in h is decision. Nonetheless, being convinced that the total context .. ,,. ,f ,is T-.I-eck -w» i-bruary 20, he proteite to of Flores' testimony is such as to establish his wage rate as a factor in his ceipt of his paycheck on February 20, he protested to^decision, I have reached the findings of fact above made. However, in all Bruno Fava who instructed him to speak to Frank Fava. other respects I credit Flores' testimony only to the extent that it is con- He did so and Frank Fava showed him the contractual sistent with the foregoing findings. Initially, I became convinced as I ob- rate schedule. Flores protested that he was being given ser v ed P au l F lores testify at the proceeding before me that Flores was ., ,,,.. „bottom „igure" ..ich , e , haracterized ,s . . ,lacing his testimony liberally with rationalizations and extenuations which the "bottom figure" which he characterized as "ridicu- he knew to be harmful to the defenses being interposed by Respondent lous" in light of his experience. Frank Pava agreed to and fully supportive not only of his own pecuniary interest in this matter pay him $3.75 per hour. Flores walked away. but also of the rationale of antiunion propensities on the part of Bruno Soon thereafter Flores, Spoke with Frank Fava in F av a so foundational to the General Counsel's case. Flores' attributions Fava's office and told him that he was giving him 2 to Bruno Fava and Frank Fava of direct, undisguised, and blatant expres- sions of hostility toward the Union and union-based motivation for the weeks' notice. Flores Stated that he was working too removal of ores from salary and a reduction of his equivalent hourly hard, that too much work was expected of him, and that wage rate exemplify the excesses of Flores' testimony, and this testimony the pay he was receiving as a result of the adjustment re- is rejected. Moreover, my separate evaluations of Frank Fava and of suited in his "not making enough money." Fava respond-^Bruno Fava as I observed them testify before me, provides insufficient sultedin his"not mking eough mney." ava repond- foundation for the conclusion that either of them harbored resentment or ed by noting, in substance, that improvements had been hostilities toward the Union, or toward the concept of collective repre- made in the Operation and Staffing of the kitchen oper- sentation. Nor does this evaluation of them and their sworn testimony ation and that an employee had been hired to make support the conclusion that either of them was so naive and lacking in salads and cold sandwiches, thus easing the work burden;judgment or self-control as to have articulated in specific terms the im- saladsand cod sandichesthus esing te workburden proper, union-related motivation for their wage actions, as Flores' testi- for Flores. Fava did not endeavor further to dissuade mony suggests. Particularly is this so here where Flores has manifested Flores but advised him that, if a qualified employee by his own actions a disposition or willingness to seek the assistance of became available in the next 2 Weeks, he would employ 'he Union in matters pertaining to his own employment. In crediting the him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him and him. Headded tat if tis occrred, h would ave to Flores signifying Flores' severance, I do so for the reason that I consider terminate Flores. Fava's account both of the conversation wherein Flores gave notice of On February 27 Frank Fava hired a breakfast cook his intention to quit, and of the severance interview, to be intrinsically whom he considered fully qualified. Pava instructed the credible. Moreover, Fava's accounts comport with the logical realities new employee to commence work the following day' that then pertained. Fava had worked diligently to improve the operation of the kitchen, and had made demands on himself and other kitchen per- and he told the payroll department to prepare Flores sonnel to achieve the objective of bringing the kitchen into compliance checks. Flores was compensated at the rate of $3.75 per with health codes and the demands of the Holiday Inn International. Fur- hour for his work through February 28, and another 'her, he had assisted Flores in improving his cooking techniques. More- check was issued dated March 2, 1979, compensating over, qualified help was in short supply. I reject Flores' testimony to the e a ea ,t that, when he proffered his resignation, Frank Pava was virtually Flores for 16 additional hours Of work at the rate of unresponsive and merely acquiescent. I further reject the inferences of $3.75 per hour. Flores' testimony that his relationship with Fava became strained due to Flores credibly testified that he gave notice of his in- the fact that Frank Fava had learned that he, Flores, had endeavored to tention to resign because he felt that in so doing he could contact the Union concerning his wages. Rather, I credit the testimony of Frank Fava to the effect that Flores advised him of his intentions to "jar" Fava into raising his wages to an hourly rate more resign, that he endeavored to dissuade him and warned him that he, akin to that represented by his previous salary. Fava cre- Fava, would hire a qualified applicant if one became available. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD d. The alleged termination of Flores dibly testified that he hired a replacement for Flores The contractual wage rates in effect in January and w h en a qu l ed applican Presented himself because February 1979 provided for compensation of the follow- qualified help w as in sh o r t supply. Wh en F l o r e s prof- ing classifications at the hourly rates shown: f er e d hi s resignation, he had not secured employment elsewhere, nor had he secured another job on March 2 Dinner cook-$4.25.5 when he left Respondent's employ. Second cook-$4.04 As found, the three paychecks received by Flores on Broiler cook-$3.82 February 2, 20, and 28, respectively, reflected hourly Fry cook-$3.60 wage rates of $4.25, $3.60, and $3.75. Upon learning of these variations in hourly pay rates, Bruno Fava verbally When the telephone incident occurred Flores was receiv- chastised the staff, comprised of one experienced payroll ing a salary of $750 per month, or $4.37 per hour based clerk and two relatively inexperienced clerks." on a workweek of 40 hours. The paycheck which Flores received on February 5 representing his compensation e. Mastrnano terminated for the pay period January 16 through January 31 repre- sented compensation at $4.25 per hour. This rate was (1) Employment history used by Guisinger in an effort to comply with Fava's in- struction to pay Flores at union scale. In checking the Deborah Mastriano was employed by Respondent payroll on payday Fava noted the rate and called the fro m May 19 7 8 un til November 28, 1979, when she was three payroll clerks into his office and admonished them terminated. She was employed as a bartender on the day that he had directed Flores be put on union scale. Ac- shift and, as found, Mastriano served as bar manager. cordingly, Guisinger applied the contractual wage appli- cable to the fry cook classification in preparing Flores'I " The foregoing is based on a composite of the credited testimony of ,ext paycheck. , ubsequently, „n .ebruary ., cors u- inFrank Fava, Paul Flores, Brenda Guisinger, and documentary evidence next paycheck. Subsequently, on February 20 Flores re- of record. In crediting the testimony of Paul Flores regarding his motiva- ceived his paycheck covering the 2-week period Febru- tion in giving his 2 weeks' notice, I have evaluated the suggestive nature ary 1 through February 15, and it reflected an amount of a key question leading to Flores' specification of his rate of pay as a representing an hourly rate of $3.60 per hour. Upon a re- lfo ce in h is decision. Nonetheless, being convinced that the total context .. ,,. ,f ,is T-.I-eck -w» i-bruary 20, he proteite to of Flores' testimony is such as to establish his wage rate as a factor in his ceipt of his paycheck on February 20, he protested to^decision, I have reached the findings of fact above made. However, in all Bruno Fava who instructed him to speak to Frank Fava. other respects I credit Flores' testimony only to the extent that it is con- He did so and Frank Fava showed him the contractual sistent with the foregoing findings. Initially, I became convinced as I ob- rate schedule. Flores protested that he was being given ser v ed P au l F lores testify at the proceeding before me that Flores was ., ,,,.. „bottom „igure" ..ich , e , haracterized ,s . . ,lacing his testimony liberally with rationalizations and extenuations which the "bottom figure" which he characterized as "ridicu- he knew to be harmful to the defenses being interposed by Respondent lous" in light of his experience. Frank Pava agreed to and fully supportive not only of his own pecuniary interest in this matter pay him $3.75 per hour. Flores walked away. but also of the rationale of antiunion propensities on the part of Bruno Soon thereafter Flores, Spoke with Frank Fava in F av a so foundational to the General Counsel's case. Flores' attributions Fava's office and told him that he was giving him 2 to Bruno Fava and Frank Fava of direct, undisguised, and blatant expres- sions of hostility toward the Union and union-based motivation for the weeks' notice. Flores Stated that he was working too removal of ores from salary and a reduction of his equivalent hourly hard, that too much work was expected of him, and that wage rate exemplify the excesses of Flores' testimony, and this testimony the pay he was receiving as a result of the adjustment re- is rejected. Moreover, my separate evaluations of Frank Fava and of suited in his "not making enough money." Fava respond-^Bruno Fava as I observed them testify before me, provides insufficient sultedin his"not mking eough mney." ava repond- foundation for the conclusion that either of them harbored resentment or ed by noting, in substance, that improvements had been hostilities toward the Union, or toward the concept of collective repre- made in the Operation and Staffing of the kitchen oper- sentation. Nor does this evaluation of them and their sworn testimony ation and that an employee had been hired to make support the conclusion that either of them was so naive and lacking in salads and cold sandwiches, thus easing the work burden;judgment or self-control as to have articulated in specific terms the im- saladsand cod sandichesthus esing te workburden proper, union-related motivation for their wage actions, as Flores' testi- for Flores. Fava did not endeavor further to dissuade mony suggests. Particularly is this so here where Flores has manifested Flores but advised him that, if a qualified employee by his own actions a disposition or willingness to seek the assistance of became available in the next 2 Weeks, he would employ 'he Union in matters pertaining to his own employment. In crediting the him. He added that if this occurred, he would have to testimony of Frank Fava with respect to the exchange between him and him. Headded tat if tis occrred, h would ave to Flores signifying Flores' severance, I do so for the reason that I consider terminate Flores. Fava's account both of the conversation wherein Flores gave notice of On February 27 Frank Fava hired a breakfast cook his intention to quit, and of the severance interview, to be intrinsically whom he considered fully qualified. Pava instructed the credible. Moreover, Fava's accounts comport with the logical realities new employee to commence work the following day' that then pertained. Fava had worked diligently to improve the operation of the kitchen, and had made demands on himself and other kitchen per- and he told the payroll department to prepare Flores sonnel to achieve the objective of bringing the kitchen into compliance checks. Flores was compensated at the rate of $3.75 per with health codes and the demands of the Holiday Inn International. Fur- hour for his work through February 28, and another 'her, he had assisted Flores in improving his cooking techniques. More- check was issued dated March 2, 1979, compensating over, qualified help was in short supply. I reject Flores' testimony to the e a ea ,t that, when he proffered his resignation, Frank Pava was virtually Flores for 16 additional hours Of work at the rate of unresponsive and merely acquiescent. I further reject the inferences of $3.75 per hour. Flores' testimony that his relationship with Fava became strained due to Flores credibly testified that he gave notice of his in- the fact that Frank Fava had learned that he, Flores, had endeavored to tention to resign because he felt that in so doing he could contact the Union concerning his wages. Rather, I credit the testimony of Frank Fava to the effect that Flores advised him of his intentions to "jar" Fava into raising his wages to an hourly rate more resign, that he endeavored to dissuade him and warned him that he, akin to that represented by his previous salary. Fava cre- Fava, would hire a qualified applicant if one became available. HOLIDAY INN OF SANTA MARIA 655 This position, which she held from November 1978 until Approximately 6 weeks after Fava assumed manage- approximately November 19, 1979, required her to ment of Respondent's operation, he had occasion to corn- schedule hours of other bartenders, order liquor for bar plete a verification of employment form on behalf of use, and inventory liquor stocks. During her term of Mastriano. The form was submitted to Fava by a bank service as bar manager, she had occasion to hire one bar- where Mastriano was seeking a loan. In completing the tender without clearance from her superior. Her duties form, which Fava signed, the following remark was en- as a bartender required her to pour drinks and wait on tered: "A very dedicated and responsible person. The customers, to cut citrus fruits, and to maintain the clean- remark was written on the face of the form by Bruno liness of the tables and bar. When Bruno Fava assumed Fava. managership of the hotel facility in early December During the early part of 1979, Fava complimented 1978, he assumed responsibilites for scheduling the hours Mastriano with respect to the ease with which she had of work of all bar personnel and rescinded the right of gained proficiency as a bartender and the good relation- Mastriano to hire. At the outset of her employment in ships that she had established with customers. In August 1978, Mastriano was compensated at a rate of approxi- 1979 Mastriano verbally informed Fava of her intention mately $4.78 per hour and was increased in her hourly to leave her job and to move from the Santa Maria area. pay when she assumed her responsibilities as bar man- Fava attempted to dissuade her from this course of ager. When Fava became manager of the motel facility, action, advising her that it would be a mistake for her to he reduced Mastriano's rate of pay to that provided for leave her friends. Fava added that she was doing a very bartenders in the collective-bargaining agreement. Mas- good job as a bartender and there were many opportuni- triano learned of this reduction in her hourly rate on De- ties available to her in Santa Maria. Fava advised her to cember 20, the first payday following Fava's assumption stay on. Mastriano took some time off commencing of management of the hotel facility. Fava explained that August 10 and went to San Diego for approximately 4 her previous compensation had been above union scale days during which time she looked for a job. She re- and that she had been relieved of her responsibilities to turned to Santa Maria on August 14 to attend the funeral schedule work. Fava added that he would wait and see of a very close male friend. Following the funeral, she how she performed her duties as a bartender. Mastriano's went to the Holiday Inn and spoke with Fava who ad- hourly rate of pay was raised in May 1979 pursuant to vised her to stay in her current position and to report to her request when she learned that the night bartender work the following day. Mastriano followed Fava's was being paid at a rate above her wage rate. 3 advise During the period of her employment at the Vanden- berg Inn in 1977 and 1978, as found, Mastriano worked (2) The prelude events first on the night shift as a waitress and then transferred to the day shift in the same capacity. Marlene Perez was In the summer of 1979 Bruno Fava presented to the serving in the capacity of coffeeshop manager, and executive committee a plan to expend S60,000 in refur- Bruno Fava maintained overall supervision of the coffee- bishing the bar and cocktail lounge with the essential ob- shop and restaurant operation. In the spring of 1978, at a jective of improving its ambiance and seating capacity. time when Mastriano was working on the day shift in In addition, Fava recommended that a stage and dance the coffeeshop, Perez was made supervisor of the coffee- floor be constructed so that entertainment could be fea- shop and this distressed Mastriano. Moreover, Perez and tured. The executive committee approved Fava's recom- Mastriano carried on a dialog for a period of days con- mendation, and construction activities incident to remod- cerning the timely completion of side work prior to the eling and refurbishing the existing area commenced in end of the scheduled shift. For her part, Mastriano com- early August. Incident to this a decision was also municated her opposition to the installation of Perez as reached to install a computer bar system which metered supervisor of the day shift. Perez had worked at the the pour of liquor and beverages and conduced to the Vandenberg Inn for a longer period than Mastriano. careful control of drink content and ratio of liquor costs On an occasion in May 1978, just prior to the com- to revenues. This concept was adopted by the executive mencement of the lunch shift, Mastriano, Perez, and committee and the remodeling effort continued until the Bruno Fava sat together at a table in the dining area to end of October. In the interim, a banquet room adjacent discuss the matter. During the discussion, Mastriano to the dining room was set up as a temporary lounge. became suddenly excited and exclaimed that she wanted The grand opening of the new bar and cocktail lounge to quit. Bruno Fava invited her to do so and she arose occurred on November 2, at which time all construction and threw a set of keys across the table. Her termination activity had ceased and only the installation of those was effectuated that day, and other personnel, including connections and fittings to the computer bar remained to Fava, handled the luncheon shift." be accomplished. This involved work in a backroom sep- arated from the bar by a common wall. " The foregoing is based on the credited and undisputed testimony of Deborah Mestriano. tude and directives were the precursor to her own emotional outburst " The foregoing is based on a combination of the testimony of Marlene and severance of employment, I reject it. Perez and Deborah Mastriano. In those instances wherein the testimony " The foregoing is based on the credited and undisputed testimony of of Mastriano differs from that of Perez, I have credited Perez. In this Deborah Mastriano. While I am convinced that Mastriano overstated the aspect of her testimony, as in others, Mastriano impressed me as tending effusiveness with which Fava complimented her in her capacity as a bar- to embellish and extend her account in a manner which would redound tender, Fava did not testify in contradiction of Mastriano and I am con- strongly to her advantage and to portray Bruno Fava in an unfavorable vinced that the essential thrusts of Mastriano's testimony in this regard is light. To the extent that Mastriano's testimony suggests that Fava's atti- accurate. HOLIDAY INN OF SANTA MARIA 655 This position, which she held from November 1978 until Approximately 6 weeks after Fava assumed manage- approximately November 19, 1979, required her to ment of Respondent's operation, he had occasion to com- schedule hours of other bartenders, order liquor for bar plete a verification of employment form on behalf of use, and inventory liquor stocks. During her term of Mastriano. The form was submitted to Fava by a bank service as bar manager, she had occasion to hire one bar- where Mastriano was seeking a loan. In completing the tender without clearance from her superior. Her duties form, which Fava signed, the following remark was en- as a bartender required her to pour drinks and wait on tered: "A very dedicated and responsible person. The customers, to cut citrus fruits, and to maintain the clean- remark was written on the face of the form by Bruno liness of the tables and bar. When Bruno Fava assumed Fava. managership of the hotel facility in early December During the early part of 1979, Fava complimented 1978, he assumed responsibilites for scheduling the hours Mastriano with respect to the ease with which she had of work of all bar personnel and rescinded the right of gained proficiency as a bartender and the good relation- Mastriano to hire. At the outset of her employment in ships that she had established with customers. In August 1978, Mastriano was compensated at a rate of approxi- 1979 Mastriano verbally informed Fava of her intention mately $4.78 per hour and was increased in her hourly to leave her job and to move from the Santa Maria area. pay when she assumed her responsibilities as bar man- Fava attempted to dissuade her from this course of ager. When Fava became manager of the motel facility, action, advising her that it would be a mistake for her to he reduced Mastriano's rate of pay to that provided for leave her friends. Fava added that she was doing a very bartenders in the collective-bargaining agreement. Mas- good job as a bartender and there were many opportuni- triano learned of this reduction in her hourly rate on De- ties available to her in Santa Maria. Fava advised her to cember 20, the first payday following Fava's assumption stay on. Mastriano took some time off commencing of management of the hotel facility. Fava explained that August 10 and went to San Diego for approximately 4 her previous compensation had been above union scale days during which time she looked for a job. She re- and that she had been relieved of her responsibilities to tued to Santa Maria on August 14 to attend the funeral schedule work. Fava added that he would wait and see of a very close male friend. Following the funeral, she how she performed her duties as a bartender. Mastriano's went to the Holiday Inn and spoke with Fava who ad- hourly rate of pay was raised in May 1979 pursuant to vised her to stay in her current position and to report to her request when she learned that the night bartender work the following day. Mastriano followed Fava's was being paid at a rate above her wage rate. "Iadvise." During the period of her employment at the Vanden- berg Inn in 1977 and 1978, as found, Mastriano worked (2) The prelude events first on the night shift as a waitress and then transferred to the day shift in the same capacity. Marlene Perez was I n t h e su m m e r of 1979 Bruno Fava presented to the serving in the capacity of coffeeshop manager, and executive committee a plan to expend $60,000 in refur- Bruno Fava maintained overall supervision of the coffee- bishing t h e b a r and cocktail lounge with the essential ob- shop and restaurant operation. In the spring of 1978, at a jective of improving its ambiance and seating capacity. time when Mastriano was working on the day shift in I n addition, Pava recommended that a stage and dance the coffeeshop, Perez was made supervisor of the coffee- flo o r b e constructed so that entertainment could be fea- shop and this distressed Mastriano. Moreover, Perez and tured. The executive committee approved Fava's recom- Mastriano carried on a dialog for a period of days con- mendation, and construction activities incident to remod- cerning the timely completion of side work prior to the eling and refurbishing the existing area commenced in end of the scheduled shift. For her part, Mastriano com- early August. Incident to this a decision was also municated her opposition to the installation of Perez as reached to install a computer bar system which metered supervisor of the day shift. Perez had worked at the the pour of liquor and beverages and conduced to the Vandenberg Inn for a longer period than Mastriano. careful control of drink content and ratio of liquor costs On an occasion in May 1978, just prior to the com- to revenues. This concept was adopted by the executive mencement of the lunch shift, Mastriano, Perez, and committee and the remodeling effort continued until the Bruno Fava sat together at a table in the dining area to end of October. In the interim, a banquet room adjacent discuss the matter. During the discussion, Mastriano to the dining room was set up as a temporary lounge. became suddenly excited and exclaimed that she wanted T h e grand opening of the new bar and cocktail lounge to quit. Bruno Fava invited her to do so and she arose occurred on November 2, at which time all construction and threw a set of keys across the table. Her termination activity had ceased and only the installation of those was effectuated that day, and other personnel, including connections and fittings to the computer bar remained to Fava, handled the luncheon shift." b e accomplished. This involved work in a backroom sep- arated from the bar by a common wall. " The foregoing is based on the credited and undisputed testimony of Deborah Mestriano. tude and directives were the precursor to her own emotional outburst " The foregoing is based on a combination of the testimony of Marlene and severance of employment, I reject it. Perez and Deborah Mastriano. In those instances wherein the testimony " The foregoing is based on the credited and undisputed testimony of of Mastriano differs from that of Perez, I have credited Perez. In this Deborah Mastriano. While I am convinced that Mastriano overstated the aspect of her testimony, as in others, Mastriano impressed me as lending effusiveness with which Fava complimented her in her capacity as a bar- to embellish and extend her account in a manner which would redound tender, Fava did not testify in contradiction of Mastriano and I am con- strongly to her advantage and to portray Bruno Fava in an unfavorable vinced that the essential thrusts of Mastriano's testimony in this regard is light. To the extent that Mastriano's testimony suggests that Fava's atti- accurate. HOLIDAY INN OF SANTA MARIA 655 This position, which she held from November 1978 until Approximately 6 weeks after Fava assumed manage- approximately November 19, 1979, required her to ment of Respondent's operation, he had occasion to com- schedule hours of other bartenders, order liquor for bar plete a verification of employment form on behalf of use, and inventory liquor stocks. During her term of Mastriano. The form was submitted to Fava by a bank service as bar manager, she had occasion to hire one bar- where Mastriano was seeking a loan. In completing the tender without clearance from her superior. Her duties form, which Fava signed, the following remark was en- as a bartender required her to pour drinks and wait on tered: "A very dedicated and responsible person. The customers, to cut citrus fruits, and to maintain the clean- remark was written on the face of the form by Bruno liness of the tables and bar. When Bruno Fava assumed Fava. managership of the hotel facility in early December During the early part of 1979, Fava complimented 1978, he assumed responsibilites for scheduling the hours Mastriano with respect to the ease with which she had of work of all bar personnel and rescinded the right of gained proficiency as a bartender and the good relation- Mastriano to hire. At the outset of her employment in ships that she had established with customers. In August 1978, Mastriano was compensated at a rate of approxi- 1979 Mastriano verbally informed Fava of her intention mately $4.78 per hour and was increased in her hourly to leave her job and to move from the Santa Maria area. pay when she assumed her responsibilities as bar man- Fava attempted to dissuade her from this course of ager. When Fava became manager of the motel facility, action, advising her that it would be a mistake for her to he reduced Mastriano's rate of pay to that provided for leave her friends. Fava added that she was doing a very bartenders in the collective-bargaining agreement. Mas- good job as a bartender and there were many opportuni- triano learned of this reduction in her hourly rate on De- ties available to her in Santa Maria. Fava advised her to cember 20, the first payday following Fava's assumption stay on. Mastriano took some time off commencing of management of the hotel facility. Fava explained that August 10 and went to San Diego for approximately 4 her previous compensation had been above union scale days during which time she looked for a job. She re- and that she had been relieved of her responsibilities to turned to Santa Maria on August 14 to attend the funeral schedule work. Fava added that he would wait and see of a very close male friend. Following the funeral, she how she performed her duties as a bartender. Mastriano's went to the Holiday Inn and spoke with Fava who ad- hourly rate of pay was raised in May 1979 pursuant to vised her to stay in her current position and to report to her request when she learned that the night bartender work the following day. Mastriano followed Fava's was being paid at a rate above her wage rate. "Iadvise." During the period of her employment at the Vanden- berg Inn in 1977 and 1978, as found, Mastriano worked (2) The prelude events first on the night shift as a waitress and then transferred to the day shift in the same capacity. Marlene Perez was I n t h e su m m e r of 1979 Bruno Fava presented to the serving in the capacity of coffeeshop manager, and executive committee a plan to expend $60,000 in refur- Bruno Fava maintained overall supervision of the coffee- bishing t h e b a r and cocktail lounge with the essential ob- shop and restaurant operation. In the spring of 1978, at a jective of improving its ambiance and seating capacity. time when Mastriano was working on the day shift in I n addition, Pava recommended that a stage and dance the coffeeshop, Perez was made supervisor of the coffee- flo o r b e constructed so that entertainment could be fea- shop and this distressed Mastriano. Moreover, Perez and tured. The executive committee approved Fava's recom- Mastriano carried on a dialog for a period of days con- mendation, and construction activities incident to remod- cerning the timely completion of side work prior to the eling and refurbishing the existing area commenced in end of the scheduled shift. For her part, Mastriano com- early August. Incident to this a decision was also municated her opposition to the installation of Perez as reached to install a computer bar system which metered supervisor of the day shift. Perez had worked at the the pour of liquor and beverages and conduced to the Vandenberg Inn for a longer period than Mastriano. careful control of drink content and ratio of liquor costs On an occasion in May 1978, just prior to the com- to revenues. This concept was adopted by the executive mencement of the lunch shift, Mastriano, Perez, and committee and the remodeling effort continued until the Bruno Fava sat together at a table in the dining area to end of October. In the interim, a banquet room adjacent discuss the matter. During the discussion, Mastriano to the dining room was set up as a temporary lounge. became suddenly excited and exclaimed that she wanted T h e grand opening of the new bar and cocktail lounge to quit. Bruno Fava invited her to do so and she arose occurred on November 2, at which time all construction and threw a set of keys across the table. Her termination activity had ceased and only the installation of those was effectuated that day, and other personnel, including connections and fittings to the computer bar remained to Fava, handled the luncheon shift." b e accomplished. This involved work in a backroom sep- arated from the bar by a common wall. " The foregoing is based on the credited and undisputed testimony of Deborah Mestriano. tude and directives were the precursor to her own emotional outburst " The foregoing is based on a combination of the testimony of Marlene and severance of employment, I reject it. Perez and Deborah Mastriano. In those instances wherein the testimony " The foregoing is based on the credited and undisputed testimony of of Mastriano differs from that of Perez, I have credited Perez. In this Deborah Mastriano. While I am convinced that Mastriano overstated the aspect of her testimony, as in others, Mastriano impressed me as lending effusiveness with which Fava complimented her in her capacity as a bar- to embellish and extend her account in a manner which would redound tender, Fava did not testify in contradiction of Mastriano and I am con- strongly to her advantage and to portray Bruno Fava in an unfavorable vinced that the essential thrusts of Mastriano's testimony in this regard is light. To the extent that Mastriano's testimony suggests that Fava's atti- accurate. HOLIDAY INN OF SANTA MARIA 655 This position, which she held from November 1978 until Approximately 6 weeks after Fava assumed manage- approximately November 19, 1979, required her to ment of Respondent's operation, he had occasion to com- schedule hours of other bartenders, order liquor for bar plete a verification of employment form on behalf of use, and inventory liquor stocks. During her term of Mastriano. The form was submitted to Fava by a bank service as bar manager, she had occasion to hire one bar- where Mastriano was seeking a loan. In completing the tender without clearance from her superior. Her duties form, which Fava signed, the following remark was en- as a bartender required her to pour drinks and wait on tered: "A very dedicated and responsible person. The customers, to cut citrus fruits, and to maintain the clean- remark was written on the face of the form by Bruno liness of the tables and bar. When Bruno Fava assumed Fava. managership of the hotel facility in early December During the early part of 1979, Fava complimented 1978, he assumed responsibilites for scheduling the hours Mastriano with respect to the ease with which she had of work of all bar personnel and rescinded the right of gained proficiency as a bartender and the good relation- Mastriano to hire. At the outset of her employment in ships that she had established with customers. In August 1978, Mastriano was compensated at a rate of approxi- 1979 Mastriano verbally informed Fava of her intention mately $4.78 per hour and was increased in her hourly to leave her job and to move from the Santa Maria area. pay when she assumed her responsibilities as bar man- Fava attempted to dissuade her from this course of ager. When Fava became manager of the motel facility, action, advising her that it would be a mistake for her to he reduced Mastriano's rate of pay to that provided for leave her friends. Fava added that she was doing a very bartenders in the collective-bargaining agreement. Mas- good job as a bartender and there were many opportuni- triano learned of this reduction in her hourly rate on De- ties available to her in Santa Maria. Fava advised her to cember 20, the first payday following Fava's assumption stay on. Mastriano took some time off commencing of management of the hotel facility. Fava explained that August 10 and went to San Diego for approximately 4 her previous compensation had been above union scale days during which time she looked for a job. She re- and that she had been relieved of her responsibilities to turned to Santa Maria on August 14 to attend the funeral schedule work. Fava added that he would wait and see of a very close male friend. Following the funeral, she how she performed her duties as a bartender. Mastriano's went to the Holiday Inn and spoke with Fava who ad- hourly rate of pay was raised in May 1979 pursuant to vised her to stay in her current position and to report to her request when she learned that the night bartender work the following day. Mastriano followed Fava's was being paid at a rate above her wage rate. "Iadvise." During the period of her employment at the Vanden- berg Inn in 1977 and 1978, as found, Mastriano worked (2) The prelude events first on the night shift as a waitress and then transferred to the day shift in the same capacity. Marlene Perez was I n t h e su m m e r of 1979 Bruno Fava presented to the serving in the capacity of coffeeshop manager, and executive committee a plan to expend $60,000 in refur- Bruno Fava maintained overall supervision of the coffee- bishing t h e b a r and cocktail lounge with the essential ob- shop and restaurant operation. In the spring of 1978, at a jective of improving its ambiance and seating capacity. time when Mastriano was working on the day shift in I n addition, Pava recommended that a stage and dance the coffeeshop, Perez was made supervisor of the coffee- flo o r b e constructed so that entertainment could be fea- shop and this distressed Mastriano. Moreover, Perez and tured. The executive committee approved Fava's recom- Mastriano carried on a dialog for a period of days con- mendation, and construction activities incident to remod- cerning the timely completion of side work prior to the eling and refurbishing the existing area commenced in end of the scheduled shift. For her part, Mastriano com- early August. Incident to this a decision was also municated her opposition to the installation of Perez as reached to install a computer bar system which metered supervisor of the day shift. Perez had worked at the the pour of liquor and beverages and conduced to the Vandenberg Inn for a longer period than Mastriano. careful control of drink content and ratio of liquor costs On an occasion in May 1978, just prior to the com- to revenues. This concept was adopted by the executive mencement of the lunch shift, Mastriano, Perez, and committee and the remodeling effort continued until the Bruno Fava sat together at a table in the dining area to end of October. In the interim, a banquet room adjacent discuss the matter. During the discussion, Mastriano to the dining room was set up as a temporary lounge. became suddenly excited and exclaimed that she wanted T h e grand opening of the new bar and cocktail lounge to quit. Bruno Fava invited her to do so and she arose occurred on November 2, at which time all construction and threw a set of keys across the table. Her termination activity had ceased and only the installation of those was effectuated that day, and other personnel, including connections and fittings to the computer bar remained to Fava, handled the luncheon shift." b e accomplished. This involved work in a backroom sep- arated from the bar by a common wall. " The foregoing is based on the credited and undisputed testimony of Deborah Mestriano. tude and directives were the precursor to her own emotional outburst " The foregoing is based on a combination of the testimony of Marlene and severance of employment, I reject it. Perez and Deborah Mastriano. In those instances wherein the testimony " The foregoing is based on the credited and undisputed testimony of of Mastriano differs from that of Perez, I have credited Perez. In this Deborah Mastriano. While I am convinced that Mastriano overstated the aspect of her testimony, as in others, Mastriano impressed me as lending effusiveness with which Fava complimented her in her capacity as a bar- to embellish and extend her account in a manner which would redound tender, Fava did not testify in contradiction of Mastriano and I am con- strongly to her advantage and to portray Bruno Fava in an unfavorable vinced that the essential thrusts of Mastriano's testimony in this regard is light. To the extent that Mastriano's testimony suggests that Fava's atti- accurate. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, and in keeping with the decision of ter, informing Fava that Mastriano had spoken to him management to modify the character and focus of the and had objected to the uniform as too revealing. Lavoie bar and cocktail lounge operation, a decision was made asked Fava if the uniform were a standard one, and Fava to purchase uniforms to be worn by the cocktail wait- said that it was standard, but had been modified by the resses and by Mastriano as a bartender. Dr. Ikola, as a ruffles. He further told Lavoie that the issue was essen- member of the executive committee, made the decision tially moot because he had given Mastriano permission because he considered the wearing of diverse types and to place ruffles on the uniform." style of street clothing by bar and cocktail lounge per- During the next week on a daily basis, Mastriano com- sonnel detracted from the quality image management de- municated to Fava her objection to wearing the uniform. sired to establish.16 In this connection, Dr. Ikola, accom- Her objections would be lodged in the form of com- panied by his wife and daughter, traveled to Los Ange- ments relating to her embarrassment over having to wear les and visited a uniform supply s e uniform supply shop. Ikola had his th iform, the unfavorable reactions of her friends and daughter model the uniforms and he took pictures of the customers, and the fact that the male night bartender did four that he considered the most appropriate. He re- not have to wear a uniform. As a result of these conver- turned to Santa Maria with a sample uniform and the sations, on or about November 15, Fava instructed Mas- photographs which he had taken. At least three of the triano that she could wear her slacks and blouse, as she female employees of the bar operation, including Mas- had requested. Prior to taking this action, Fava had com- tnano, participated in trying on and perusing the sample municated to Dr. Ikola the complaints of Mastriano and uniform. This was hurriedly done but resulted in the ap- others concerning the uniforms and Dr. Ikola had in- proval of the participants of the uniform modeled. From structed Fava to make the decision he considered appro- the photographs submitted to the executive committee a prte a ta he ld p r he uniforms to be uniform was selected and ordered. In excess of $1,000 worn if possible. worn, if possible. ~ was expended in purchasing the uniforms. w i The uniforms arrived just prior to the November 2 In the month of October, Fava received reports that opening of the refurbished bar and cocktail lounge. Mas- Mastriano was rolling dice with customers and that sig- triano tried on her uniform at home on November 2 nificant amounts of money were changing hands. It had prior to reporting to work and found the uniform too ab- been acceptable practice in the bar and during the lun- breviated and revealing to suit her. She took her uniform cheon period for customers to roll dice with the cocktail to work and in a conversation with Fava and other per- waitress for the tip The reports which Fava received in- sonnel she lodged her objections. In substance, Mastriano dicated that Mastriano's dice-rolling activities went informed Fava that the uniform was too revealing at the beyond this practice. In late October he encountered top and so abbreviated in length that it inhibited her Mastriano in the bar area rolling dice for substantial from stooping or bending over and performing the inci- amount of money. Later he spoke with Mastriano and in- dental bar duties required of her. One of the participants structed her that this was an impermissible practice and in the conversation suggested that a ruffle be sewn to the directed her to cease. Despite his directive to Mastriano, uniform and Fava acquiesced, believing that the addi- Fava had the impression that Mastriano continued her tional ruffle would be applied only at the neckline. In the practice.20 meantime, the cocktail waitresses wore their uniforms on duty. Linda Low and Jan Kuhule manifested their dis- The findings with respect to the conversation between Lavoie and Mastriano are based on a composite of their credited testimony, but I tress at having to wear them, and did so both to Mas- have principally relied on the testimony of Lavoie. In addition, the find- triano and to Antoigue. ings with respect to the conversation between Lavoie and Fava are based In due course, Mastriano wore her uniform, as modi- upon a composite of their testimony. I am convinced that Fava was inac- fied by a ruffle at the neckline and a fringe ruffle applied curate in his recollection that his conversation with Lavoie did not take place until on or about November 15 and subsequent to the time when he to the lower portion of the uniform. When Fava ob- had ucted Mastr ano tht N she 15 acod subsequent to the time when he had instructed Mastriano that she could cease wearing the uniform. Be- served this, he stated, in effect, that Mastriano had modi- cause Lavoie was a frequent visitor to Respondent's facility, I am con- fled the entire appearance of the uniform and that he had vinced that the conversation between Mastriano and Lavoie would have given his approval to modifying only the top portion transpired at a time earlier than the time fixed by Fava for their ex- thereof. Albert Lavoie, who at that time was serving as a change. mpicit in this finding is the further consi vethataon spoke to Fava on the matter immediately subsequent to his conversation business agent of the Union and who visited Respond- with Mastriano. ent's facilities frequently in furtherance of his duties, '1 The foregoing findings are based on the credited testimony of Bruno spoke with Mastriano who was wearing her uniform as Fava, as augmented by that of Dr. Ikola. Specifically, I credit the testi- modified by the ruffles. She took the initiative in inform- ony of Fava to the effect that his directive to Mstriano tha s conuld cease wearing the uniform transpired in mid-November. In this connec- ing Lavoie that she objected to the uniform as too re- tion I have considered and credited the testimony of Lisa Ziemba, Kelly vealing. Lavoie suggested that Mastriano speak with Connell, and Brenda Guisinger to the effect that during the final week of Fava concerning the matter, and he stated that he would her employment while on duty Mastriano wore street clothes and not her ,,so talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extent also talk with Fava. Lavoie did so immediately thereaf- that it is consistent with the above findings. Moreover, I reject the testi- mony of Richard McGuinness and Ted Zenich to the extent that it infers " Dr. Ikola credibly testified that cocktail waitresses and bar personnel that Mastriano was still wearing her uniform on duty on or about No- were wearing clothing of their own choice and, in his opinion, this por- vember 27 when they had conversations with her. trayed a "no class" operation. 'o The credited testimony of Bruno Fava supports the foregoing. I " The foregoing is based upon a composite of testimony, including that have considered the testimony of Deborah Mastriano, Richard McGuin- of Dr. Ikola and that of Deborah Mastriano. The essential aspects of the ness, and Ted Zenich and conclude that their testimony supports the above findings are not in dispute. Continued 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, and in keeping with the decision of ter, informing Fava that Mastriano had spoken to him management to modify the character and focus of the and had objected to the uniform as too revealing. Lavoie bar and cocktail lounge operation, a decision was made asked Fava if the uniform were a standard one, and Fava to purchase uniforms to be worn by the cocktail wait- said that it was standard, but had been modified by the resses and by Mastriano as a bartender. Dr. Ikola, as a ruffles. He further told Lavoie that the issue was essen- member of the executive committee, made the decision tially moot because he had given Mastriano permission because he considered the wearing of diverse types and to place ruffles on the uniform." style of street clothing by bar and cocktail lounge per- During the next week on a daily basis, Mastriano com- sonnel detracted from the quality image management de- municated to Fava her objection to wearing the uniform. sired to establish."' In this connection, Dr. Ikola, accom- Her objections would be lodged in the form of com- panied by his wife and daughter, traveled to Los Ange- ments relating to her embarrassment over having to wear les and visited a uniform supply shop. Ikola had his the uniform, the unfavorable reactions of her friends and daughter model the uniforms and he took pictures of the customers, and the fact that the male night bartender did four that he considered the most appropriate. He re- not have to wear a uniform. As a result of these conver- turned to Santa Maria with a sample uniform and the sations, on or about November 15, Fava instructed Mas- photographs which he had taken. At least three of the triano that she could wear her slacks and blouse, as she female employees of the bar operation, including Mas- had requested. Prior to taking this action, Fava had com- triano, participated in trying on and perusing the sample municated to Dr. Ikola the complaints of Mastriano and uniform. This was hurriedly done but resulted in the ap- others concerning the uniforms and Dr. Ikola had in- proval of the participants of the uniform modeled. From structed Fava to make the decision he considered appro- the photographs submitted to the executive committee a priate. He added that he would prefer the uniforms to be uniform was selected and ordered. In excess of $1,000 wr , if p ... . . ., .„ ,,~~~~~worn, if possible.' was expended in purchasing the uniforms. IOe The uniforms arrived just prior to the November 2 MI n t h e m o n t h df October, Fava received reports that opening of the refurbished bar and cocktail lounge. Mas- nMastcnano was rolling dice with customers and that sig- triano tried on her uniform at home on November 2 necan t am o u nt s o f m o n ey w ere changing hands. It had prior to reporting to work and found the uniform too ab- b een acceptable practice in the bar and dunng the lun- breviated and revealing to suit her. She took her uniform cheon period for customers to roll dice with the cocktail to work and in a conversation with Fava and other per- wait r ess f o r t h e tip. T h e reports w h ich Fava received in- sonnel she lodged her objections. In substance, Mastriano dicated that Mastriano's dice-rolling activities went informed Fava that the uniform was too revealing at the beyond t h is practice. In late October he encountered top and so abbreviated in length that it inhibited her Mastriano in the bar area rolling dice for substantial from stooping or bending over and performing the inci- amount of money. Later he spoke with Mastriano and in- dental bar duties required of her. One of the participants structed her that this was an impermissible practice and in the conversation suggested that a ruffle be sewn to the directed her to cease. Despite his directive to Mastriano, uniform and Fava acquiesced, believing that the addi- Fava had the impression that Mastriano continued her tional ruffle would be applied only at the neckline. In the practice.20 meantime, the cocktail waitresses wore their uniforms on duty. Linda Low and Jan Kuhule manifested their dis- " T he finding s with respect t o the conversation between Lavoie and tres, o* k».ing ;„<, »^ ar , , And A.A so bol, *o Masn Mastriano are based on a composite of their credited testimony, but I tress at having to wear them, and did SO both to Mas- ,have principally relied on the testimony of Lavoie. In addition, the find- triano and to Antoigue. ings with respect to the conversation between Lavoie and Fava are based In due Course, Mastriano wore her uniform, as modi- upon a composite of their testimony. I am convinced that Fava was inac- fied by a ruffle at the neckline and a fringe ruffle applied cu ra t e '" his recollection that his conversation with Lavoie did not take .o .1. iower _..tion rf t1. T 11,1m .When oava ib- place until on or about November 15 and subsequent to the time when he to the lower portion of the uniform. When Fava Ob- had instructed Mastriano that she could cease wearing the uniform. Be- served this, he Stated, in effect, that Mastriano had modi- cause Lavoie was a frequent visitor to Respondent's facility, I am con- fied the entire appearance of the uniform and that he had vinced that the conversation between Mastriano and Lavoie would have given his approval to modifying only the top portion transpired at a time earlier than the time fixed by Fava for their ex- theref. Alert Lvoiewho t tha timewas srvingas a change. Implicit in this finding is the further conclusion that Lavoie thereof. Albert Lavoie, who at that time was serving as a spoke to Fava on the matter immediately subsequent to his conversation business agent of the Union and who visited Respond- with Mastriano. ent's facilities frequently in furtherance of his duties, "1 The foregoing findings are based on the credited testimony of Bruno spoke with Mastriano who was wearing her uniform as F av a, as augmented by that of Dr. Ikola. Specifically, I credit the testi- modified by the ruffles. She took the initiative in inform- mony of Fava to the effect that his directive to Mastriano that she could modified b the uffls. Sh too the nititive n inorm- cease wearing the uniform transpired in mid-Niovember. In this connec- ing Lavoie that She Objected to the uniform as too re- tion I have considered and credited the testimony of Lisa Ziemba, Kelly vealing. Lavoie Suggested that Mastriano Speak With Connell, and Brenda Guisinger to the effect that during the final week of Fava concerning the matter, and he stated that he would her employment while on duty Mastriano wore street clothes and not her also talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extent also tlk wit Fava.Lavoiedid soimmeditely tereaf- that it is consistent with the above findings. Moreover, I reject the testi- mony of Richard McGuinness and Ted Zenich to the extent that it infers " Dr. Ikola credibly testified that cocktail waitresses and bar personnel that Mastriano was still wearing her uniform on duty on or about No- were wearing clothing of their own choice and, in his opinion, this por- vember 27 when they had conversations with her. trayed a "no class" operation. M The credited testimony of Bruno Fava supports the foregoing. I " The foregoing is based upon a composite of testimony, including that have considered the testimony of Deborah Mastriano. Richard McGuin- of Dr. Ikola and that of Deborah Mastriano. The essential aspects of the ness, and Ted Zenich and conclude that their testimony supports the above findings are not in dispute. Continued 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, and in keeping with the decision of ter, informing Fava that Mastriano had spoken to him management to modify the character and focus of the and had objected to the uniform as too revealing. Lavoie bar and cocktail lounge operation, a decision was made asked Fava if the uniform were a standard one, and Fava to purchase uniforms to be worn by the cocktail wait- said that it was standard, but had been modified by the resses and by Mastriano as a bartender. Dr. Ikola, as a ruffles. He further told Lavoie that the issue was essen- member of the executive committee, made the decision tially moot because he had given Mastriano permission because he considered the wearing of diverse types and to place ruffles on the uniform." style of street clothing by bar and cocktail lounge per- During the next week on a daily basis, Mastriano com- sonnel detracted from the quality image management de- municated to Fava her objection to wearing the uniform. sired to establish."' In this connection, Dr. Ikola, accom- Her objections would be lodged in the form of com- panied by his wife and daughter, traveled to Los Ange- ments relating to her embarrassment over having to wear les and visited a uniform supply shop. Ikola had his the uniform, the unfavorable reactions of her friends and daughter model the uniforms and he took pictures of the customers, and the fact that the male night bartender did four that he considered the most appropriate. He re- not have to wear a uniform. As a result of these conver- turned to Santa Maria with a sample uniform and the sations, on or about November 15, Fava instructed Mas- photographs which he had taken. At least three of the triano that she could wear her slacks and blouse, as she female employees of the bar operation, including Mas- had requested. Prior to taking this action, Fava had com- triano, participated in trying on and perusing the sample municated to Dr. Ikola the complaints of Mastriano and uniform. This was hurriedly done but resulted in the ap- others concerning the uniforms and Dr. Ikola had in- proval of the participants of the uniform modeled. From structed Fava to make the decision he considered appro- the photographs submitted to the executive committee a priate. He added that he would prefer the uniforms to be uniform was selected and ordered. In excess of $1,000 wr , if p ... . . ., .„ ,,~~~~~worn, if possible.' was expended in purchasing the uniforms. IOe The uniforms arrived just prior to the November 2 MI n t h e m o n t h df October, Fava received reports that opening of the refurbished bar and cocktail lounge. Mas- nMastcnano was rolling dice with customers and that sig- triano tried on her uniform at home on November 2 b fe c t a m o u nt s o f m o n e y w e re changing hands. It had prior to reporting to work and found the uniform too ab- b e e n acceptable practice in the bar and dunng the lun- breviated and revealing to suit her. She took her uniform cheon period for customers to roll dice with the cocktail to work and in a conversation with Fava and other per- waitress for the tip. The reports which Fava received in- sonnel she lodged her objections. In substance, Mastriano dicated that Mastriano's dice-rolling activities went informed Fava that the uniform was too revealing at the beyond t h is practice. In late October he encountered top and so abbreviated in length that it inhibited her Mastriano in the bar area rolling dice for substantial from stooping or bending over and performing the inci- amount of money. Later he spoke with Mastriano and in- dental bar duties required of her. One of the participants structed her that this was an impermissible practice and in the conversation suggested that a ruffle be sewn to the directed her to cease. Despite his directive to Mastriano, uniform and Fava acquiesced, believing that the addi- Fava had the impression that Mastriano continued her tional ruffle would be applied only at the neckline. In the practice.20 meantime, the cocktail waitresses wore their uniforms on duty. Linda Low and Jan Kuhule manifested their dis- " T h e find ing s with respect t o th e conversation between Lavoie and tres, o* k».ing ;„<, »^ ar , , And A.A so bol, *o Masn Mastriano are based on a composite of their credited testimony, but I tress at having to wear them, and did SO both to Mas- ,have principally relied on the testimony of Lavoie. In addition, the find- triano and to Antoigue. ings with respect to the conversation between Lavoie and Fava are based In due Course, Mastriano wore her uniform, as modi- upon a composite of their testimony. I am convinced that Fava was inac- fied by a ruffle at the neckline and a fringe ruffle applied cu ra t e '" his recollection that his conversation with Lavoie did not take .o .1. iower _..tion rf t1. T 11,1m .When oava ib- place until on or about November 15 and subsequent to the time when he to the lower portion of the uniform. When Fava Ob- had instructed Mastriano that she could cease wearing the uniform. Be- served this, he Stated, in effect, that Mastriano had modi- cause Lavoie was a frequent visitor to Respondent's facility, I am con- fied the entire appearance of the uniform and that he had vinced that the conversation between Mastriano and Lavoie would have given his approval to modifying only the top portion transpired at a time earlier than the time fixed by Fava for their ex- theref. Alert Lvoiewho t tha timewas srvingas a change. Implicit in this finding is the further conclusion that Lavoie thereof. Albert Lavoie, who at that time was serving as a spoke to Fava on the matter immediately subsequent to his conversation business agent of the Union and who visited Respond- with Mastriano. ent's facilities frequently in furtherance of his duties, "1 The foregoing findings are based on the credited testimony of Bruno spoke with Mastriano who was wearing her uniform as F av a, as augmented by that of Dr. Ikola. Specifically, I credit the testi- modified by the ruffles. She took the initiative in inform- mony of Fava to the effect that his directive to Mastriano that she could modified b the uffls. Sh too the nititive n inorm- cease wearing the uniform transpired in mid-Niovember. In this connec- ing Lavoie that She Objected to the uniform as too re- tion I have considered and credited the testimony of Lisa Ziemba, Kelly vealing. Lavoie Suggested that Mastriano Speak With Connell, and Brenda Guisinger to the effect that during the final week of Fava concerning the matter, and he stated that he would h e r employment while on duty Mastriano wore street clothes and not her also talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extent also tlk wit Fava.Lavoiedid soimmeditely tereaf- that it is consistent with the above findings. Moreover, I reject the testi- mony of Richard McGuinness and Ted Zenich to the extent that it infers " Dr. Ikola credibly testified that cocktail waitresses and bar personnel that Mastriano was still wearing her uniform on duty on or about No- were wearing clothing of their own choice and, in his opinion, this por- vember 27 when they had conversations with her. trayed a "no class" operation. M The credited testimony of Bruno Fava supports the foregoing. I " The foregoing is based upon a composite of testimony, including that have considered the testimony of Deborah Mastriano. Richard McGuin- of Dr. Ikola and that of Deborah Mastriano. The essential aspects of the ness, and Ted Zenich and conclude that their testimony supports the above findings are not in dispute. Continued 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, and in keeping with the decision of ter, informing Fava that Mastriano had spoken to him management to modify the character and focus of the and had objected to the uniform as too revealing. Lavoie bar and cocktail lounge operation, a decision was made asked Fava if the uniform were a standard one, and Fava to purchase uniforms to be worn by the cocktail wait- said that it was standard, but had been modified by the resses and by Mastriano as a bartender. Dr. Ikola, as a ruffles. He further told Lavoie that the issue was essen- member of the executive committee, made the decision tially moot because he had given Mastriano permission because he considered the wearing of diverse types and to place ruffles on the uniform." style of street clothing by bar and cocktail lounge per- During the next week on a daily basis, Mastriano com- sonnel detracted from the quality image management de- municated to Fava her objection to wearing the uniform. sired to establish."' In this connection, Dr. Ikola, accom- Her objections would be lodged in the form of com- panied by his wife and daughter, traveled to Los Ange- ments relating to her embarrassment over having to wear les and visited a uniform supply shop. Ikola had his the uniform, the unfavorable reactions of her friends and daughter model the uniforms and he took pictures of the customers, and the fact that the male night bartender did four that he considered the most appropriate. He re- not have to wear a uniform. As a result of these conver- turned to Santa Maria with a sample uniform and the sations, on or about November 15, Fava instructed Mas- photographs which he had taken. At least three of the triano that she could wear her slacks and blouse, as she female employees of the bar operation, including Mas- had requested. Prior to taking this action, Fava had com- triano, participated in trying on and perusing the sample municated to Dr. Ikola the complaints of Mastriano and uniform. This was hurriedly done but resulted in the ap- others concerning the uniforms and Dr. Ikola had in- proval of the participants of the uniform modeled. From structed Fava to make the decision he considered appro- the photographs submitted to the executive committee a priate. He added that he would prefer the uniforms to be uniform was selected and ordered. In excess of $1,000 w n . 19 ... . . ., .„ ,,~~~~~worn, if possible.' was expended in purchasing the uniforms. IOe The uniforms arrived just prior to the November 2 MI n t h e m o n t h df October, Fava received reports that opening of the refurbished bar and cocktail lounge. Mas- nMastcnano was rolling dice with customers and that sig- triano tried on her uniform at home on November 2 b fe c t am o u nt s o f m o n ey w ere changing hands. It had prior to reporting to work and found the uniform too ab- b een acceptable practice in the bar and dunng the lun- breviated and revealing to suit her. She took her uniform cheon period for customers to roll dice with the cocktail to work and in a conversation with Fava and other per- wait r ess f o r t h e tip. T h e reports w h ich Fava received in- sonnel she lodged her objections. In substance, Mastriano dicated that Mastriano's dice-rolling activities went informed Fava that the uniform was too revealing at the beyond t h is practice. In late October he encountered top and so abbreviated in length that it inhibited her Mastriano in the bar area rolling dice for substantial from stooping or bending over and performing the inci- amount of money. Later he spoke with Mastriano and in- dental bar duties required of her. One of the participants structed her that this was an impermissible practice and in the conversation suggested that a ruffle be sewn to the directed her to cease. Despite his directive to Mastriano, uniform and Fava acquiesced, believing that the addi- Fava had the impression that Mastriano continued her tional ruffle would be applied only at the neckline. In the practice.20 meantime, the cocktail waitresses wore their uniforms on duty. Linda Low and Jan Kuhule manifested their dis- " T he findings with respect t o the conversation between Lavoie and tres, o* k».ing ;„<, »^ ar , , And A.A so bol, *o Masn Mastriano are based on a composite of their credited testimony, but I tress at having to wear them, and did SO both to Mas- ,have principally relied on the testimony of Lavoie. In addition, the find- triano and to Antoigue. ings with respect to the conversation between Lavoie and Fava are based In due Course, Mastriano wore her uniform, as modi- upon a composite of their testimony. I am convinced that Fava was inac- fied by a ruffle at the neckline and a fringe ruffle applied curat e '" his recollection that his conversation with Lavoie did not take .o .1. iower _..tion rf t1. T 11,1m .When oava ib- place until on or about November 15 and subsequent to the time when he to the lower portion of the uniform. When Fava Ob- had instructed Mastriano that she could cease wearing the uniform. Be- served this, he Stated, in effect, that Mastriano had modi- cause Lavoie was a frequent visitor to Respondent's facility, I am con- fied the entire appearance of the uniform and that he had vinced that the conversation between Mastriano and Lavoie would have given his approval to modifying only the top portion transpired at a time earlier than the time fixed by Fava for their ex- theref. Alert Lvoiewho t tha timewas srvingas a change. Implicit in this finding is the further conclusion that Lavoie thereof. Albert Lavoie, who at that time was serving as a spoke to Fava on the matter immediately subsequent to his conversation business agent of the Union and who visited Respond- with Mastriano. ent's facilities frequently in furtherance of his duties, "1 The foregoing findings are based on the credited testimony of Bruno spoke with Mastriano who was wearing her uniform as F av a, as augmented by that of Dr. Ikola. Specifically, I credit the testi- modified by the ruffles. She took the initiative in inform- mony of Fava to the effect that his directive to Mastriano that she could modified b the uffls. Sh too the nititive n inorm- cease wearing the uniform transpired in mid-Niovember. In this connec- ing Lavoie that She Objected to the uniform as too re- tion I have considered and credited the testimony of Lisa Ziemba, Kelly vealing. Lavoie Suggested that Mastriano Speak With Connell, and Brenda Guisinger to the effect that during the final week of Fava concerning the matter, and he stated that he would her employment while on duty Mastriano wore street clothes and not her also talk with Fava. Lavoie did so immediately thereaf- uniform. I credit the testimony of Debbie Mastriano only to the extent also tlk wit Fava.Lavoiedid soimmeditely tereaf- that it is consistent with the above findings. Moreover, I reject the testi- mony of Richard McGuinness and Ted Zenich to the extent that it infers " Dr. Ikola credibly testified that cocktail waitresses and bar personnel that Mastriano was still wearing her uniform on duty on or about No- were wearing clothing of their own choice and, in his opinion, this por- vember 27 when they had conversations with her. trayed a "no class" operation. M The credited testimony of Bruno Fava supports the foregoing. I " The foregoing is based upon a composite of testimony, including that have considered the testimony of Deborah Mastriano. Richard McGuin- of Dr. Ikola and that of Deborah Mastriano. The essential aspects of the ness, and Ted Zenich and conclude that their testimony supports the above findings are not in dispute. Continued HOLIDAY INN OF SANTA MARIA 657 Incident to the installation of the new computer bar, that there appeared to be something disturbing and up- Mastriano expressed her opinion to Fava that the cus- setting Mastriano which he did not reveal to him.21 tomers would not respond favorably to this method of On Saturday, November 17, Fava called Mastriano at dispensing drinks. Mastriano expressed the feeling that her home and requested her to come to the bar to assist her customers would prefer to see the bartender phys- in the installation of the dispensing system of the com- ically pour the drink. Fava stated his disagreement. puter bar. Mastriano countered that the installer was In mid-November McGuinness visited Respondent's scheduled to come in the following evening. Fava con- facility in one of his routine visits. He was approached tradicted her and stated that installation was to take by Fava who showed him a list of bartender duties place that evening. Mastriano communicated her reluc- which he had posted and which he had called to the at- tance to come in as requested, and Fava responded that tention of the bar personnel. McGuinness took no excep- he and the maintenance man would handle the matter tion to the content of the posting. In the course of this themselves. On Monday, November 19, Mastriano re- conversation, Fava told McGuinness that Mastriano was ported for duty and spoke with Fava. She told Fava that failing to cut citrus fruits, prepare juices, stock and rotate she wished no longer to be bar manager and to be ex- liquor, and to maintain the general cleanliness of the area pected to report for work on weekends when she was in baok of the bar. Fava also noted that Mastriano had not scheduled for duty. She stated her desire to be re- complained about her uniform. He emphasized that Mas- l e ve d o f responsibility for ordering supplies and schedul- triano's rolling of the dice was too constant and consist- ng hours of work. Fava stated he would comply with Mastriano's wishes and would handle these matters. ent and that he was going to have to change this. He ent and McGut he as goinga rep ntatve to che Uhis. Ho Thereafter, Fava took responsibility for these duties. The asked McGuinness as a representative of the Union t schedule which he prepared for November 26 changed speak with Mastriano. McGuinness noted that he felt theMastriano's reporting time from 10 a.m. to 11 am. and Mastriano's reporting time from 10 a.m. to 11 a.m. and construction which was then taking place incident to the she was later told that there was no need to open the bar installation of the computer bar system rendered it very at the 10 a.m. hour.22 difficult to maintain the cleanliness of the back bar area. In the week that followed, Mastriano noted a cooling McGuinness agreed, however, to speak withMastriano of Fava's attitude toward her. For his part, Bruno Fava and he did so on the same day or the day following. In formed the impression that, following his directive to effect, he summarized the nature and substance of Fava's Mastriano to cease wagering on the roll of the dice, she complaints. Mastriano denied the accuracy of Fava's had became reticent and cool in her attitude, and the fre- evaluation concerning the condition of the back bar area quency of her complaints about work-related matters had and her performance of her bartending duties. Addition- increased ally, Mastriano asserted that she had ceased rolling dice On November 20 Mastriano complained to Fava that a week earlier, and she reiterated to McGuinness her ob- she had not been compensated for 3 hours of overtime jections to the uniform and requested his evaluation of its work. (Mastriano had received her paycheck the previ- propriety. McGuinness stated that he felt the uniform ous day.) Fava explained that he had offset the 3 hours was "very attractive" but agreed that without the lace it of overtime which Mastriano had worked against a like "would be just a little bit too revealing." McGuinness amount of time off which she had taken. Mastriano was added that he wished to maintain harmony between man- not satisfied with this explanation and Fava offered to agement and the Union and its membership. He coun- pay the overtime. seled Mastriano to do all she could to fulfill her duties. The following day Zenich appeared at Fava's office. During the conversation, McGuinness formulated the im- He stated that he wished to talk to Fava. Zenich rarely pression that Mastriano was upset and very disturbed came in person to the facility. At the outset of the con- about something extraneous to the content of their con- versation, Zenich broached the subject of Mastriano's versation. Mastriano declined to explicate her feelings in uniform. Fava responded that that was no longer an issue this regard. because Mastriano had been authorized to wear street Following his conversation with Mastriano, McGuin- clothes. Fava was irritated and raised his voice a bit. He ness returned to his office and communicated Fava's asked Zenich the real nature of his business, and Zenich complaints and Mastriano's responses to Ted Zenich. He inquired about the 3 hours' overtime. Fava offered his told Zenich that he had studied the list of bartender's explanation for withholding the 3 hours of overtime pay. duties which Fava had posted and which Fava had re- quested the bartenders to sign. McGuinness stated that T The foregoing is based primarily on the credited testimony of Rich- he considered the list satisfactory. He also told Zenich ard McGuinness, as supported by the testimony of Deborah Mastriano. The testimony of Bruno Fava supports in essential aspects the nature and tenor of McOuinness' testimony. In finding that the conversation tran- finding that Fava spoke to Mastriano concerning her rolling of dice. To spired in mid-November, and not on or about November 27 as the testi- the extent that the testimony of the latter three individuals suggests that mony of McGuinness, Zenich, and Mastriano suggests, I do so on the Fava's chastisement of Mastriano pertained solely to her practice of roll- conviction that the incident transpired in the 2-week period when Mas- ing dice for tips, I reject it. The General Counsel introduced no evidence triano was wearing her uniform, as well as the further finding that Mas- to counter the credited testimony of Bruno Fava to the effect that Mas- triano ceased wearing her uniform at least I week prior to her November triano was gambling for significant amounts of money in the bar area of 28 termination. the facility. In his pretrial affidavit Fava did not single Mastriano out as " The foregoing is based on the credited testimony of Deborah Ms- the offender among employees in this regard, but notwithstanding, the to- triano which is not contradicted. The testimony of Bruno Fava supports tality of (he evidence establishes that she did gamble on the roll of the the finding that the computer bar installation transpired on the approxi- dice and Fava admonished her. mate date testified to by Mastriano. HOLIDAY INN OF SANTA MARIA 657 Incident to the installation of the new computer bar, that there appeared to be something disturbing and up- Mastriano expressed her opinion to Fava that the cus- setting Mastriano which he did not reveal to him.21 tomers would not respond favorably to this method of On Saturday, November 17, Fava called Mastriano at dispensing drinks. Mastriano expressed the feeling that her home and requested her to come to the bar to assist her customers would prefer to see the bartender phys- in the installation of the dispensing system of the com- ically pour the drink. Fava stated his disagreement. puter bar. Mastriano countered that the installer was In mid-November McGuinness visited Respondent's scheduled to come in the following evening. Fava con- facility in one of his routine visits. He was approached tradicted her and stated that installation was to take by Fava who showed him a list of bartender duties place that evening. Mastriano communicated her reluc- which he had posted and which he had called to the at- ta n c e to come in as requested, and Fava responded that tention of the bar personnel. McGuinness took no excep- he and the maintenance man would handle the matter tion to the content of the posting. In the course of this themselves. On Monday, November 19, Mastriano re- conversation, Fava told McGuinness that Mastriano was ported f o r d ut y and spoke w it h Fav a . Sh e told Fava that failing to cut citrus fruits, prepare juices, stock and rotate sh e w ish ed no longer to be bar manager and to be ex- liquor, and to maintain the general cleanliness of the area pected to report for work on weekends when she was in baok of the bar. Fava also noted that Mastriano had n o t scheduled for duty. She stated her desire to be re- complained about her uniform. He emphasized that Mas- liev ed o f responsibility for ordering supplies and schedul- triano's rolling of the dice was too constant and consist- ing hours of work. Fava stated he would comply with ent and that he was going to have to change this. He Mastanos wishes and would handle these matters. asketd Mcatnnes was goan represnto ve tof thge Union t Thereafter, Fava took responsibility for these duties. The asked McGuinness as a representative of the Union to ^ ^ ^ oebr2 hne speak with Mastriano. McGuinness noted that he felt the as hepprepared fr Novem. 26 chand construction which was then taking place incident to the Mastriano's reporting time from 10 a.m. to 11 a.m. and ionstallation of chwa the omputer br system redered it ver she was later told that there was no need to open the bar installation of the computer bar system rendered it very , th 10 a m. hour "2 difficult to maintain the cleanliness of the back bar area. a t 1 a hour. 22 Mc~unnes agredhoweer, o spak ith astrano In the week that followed, Mastriano noted a cooling McGuinness agreed, however, to speak withfMastriano of Fava's attitude toward her. For his part, Bruno Pava and he did so on the same day or the day following. In formed the impression that, following his directive to effect, he summarized the nature and substance of Favas s Mastriano to cease wagering on the roll of the dice, she complaints. Mastriano denied the accuracy of Fava's had became reticent and cool in her attitude, and the fre- evaluation concerning the condition of the back bar area quency of her complaints about work-related matters had and her performance of her bartending duties. Addition- increased. ally, Mastriano asserted that she had ceased rolling dice On November 20 Mastriano complained to Fava that a week earlier, and she reiterated to McGuinness her ob- she had not been compensated for 3 hours of overtime jections to the uniform and requested his evaluation of its work. (Mastriano had received her paycheck the previ- propriety. McGuinness stated that he felt the uniform ous day.) Fava explained that he had offset the 3 hours was "very attractive" but agreed that without the lace it of overtime which Mastriano had worked against a like "would be just a little bit too revealing." McGuinness amount of time off which she had taken. Mastriano was added that he wished to maintain harmony between man- not satisfied with this explanation and Fava offered to agement and the Union and its membership. He coun- pay the overtime. seled Mastriano to do all she could to fulfill her duties. The following day Zenich appeared at Fava's office. During the conversation, McGuinness formulated the im- He stated that he wished to talk to Pava. Zenich rarely pression that Mastriano was upset and very disturbed came in person to the facility. At the outset of the con- about something extraneous to the content of their con- versation, Zenich broached the subject of Mastriano's versation. Mastriano declined to explicate her feelings in uniform. Fava responded that that was no longer an issue this regard. because Mastriano had been authorized to wear street Following his conversation with Mastriano, McGuin- clothes. Fava was irritated and raised his voice a bit. He ness returned to his office and communicated Fava's asked Zenich the real nature of his business, and Zenich complaints and Mastriano's responses to Ted Zenich. He inquired about the 3 hours' overtime. Fava offered his told Zenich that he had studied the list of bartender's explanation for withholding the 3 hours of overtime pay. duties which Fava had posted and which Fava had re- quested the bartenders to sign. McGuinness stated that " The foregoing is based primarily on the credited testimony of Rich- he considered the list satisfactory. He also told Zenich ard Mcuinness, as supported by the testimony of Deborah Mastriano. The testimony of Bruno Fava supports in essential aspects the nature and tenor of McOuinness' testimony. In finding that the conversation Iran- finding that Fava spoke to Mastriano concerning her rolling of dice. To spired in mid-November, and not on or about November 27 as the testi- the extent that the testimony of the latter three individuals suggests that mony of McGuinness, Zenich, and Mastriano suggests, I do so on the Fava's chastisement of Mastriano pertained solely to her practice of roll- conviction that the incident transpired in the 2-week period when Mas- ing dice for tips, I reject it. The General Counsel introduced no evidence triano was wearing her uniform, as well as the further finding that Mas- to counter the credited testimony of Bruno Fava to the effect that Mas- triano ceased wearing her uniform at lest I week prior to her November triano was gambling for significant amounts of money in the bar area of 28 termination. the facility. In his pretrial affidavit Fava did not single Mastriano out as " The foregoing is based on the credited testimony of Deborah Mas- the offender among employees in this regard, but notwithstanding, the to- triano which is not contradicted. The testimony of Bruno Fava supports tality of the evidence establishes that she did gamble on the roll of the the finding that the computer bar installation transpired on the approxi- dice and Fava admonished her. mate date testified to by Mastriano. HOLIDAY INN OF SANTA MARIA 657 Incident to the installation of the new computer bar, that there appeared to be something disturbing and up- Mastriano expressed her opinion to Fava that the cus- setting Mastriano which he did not reveal to him.21 tomers would not respond favorably to this method of On Saturday, November 17, Fava called Mastriano at dispensing drinks. Mastriano expressed the feeling that her home and requested her to come to the bar to assist her customers would prefer to see the bartender phys- in the installation of the dispensing system of the com- ically pour the drink. Fava stated his disagreement. puter bar. Mastriano countered that the installer was In mid-November McGuinness visited Respondent's scheduled to come in the following evening. Fava con- facility in one of his routine visits. He was approached tradicted her and stated that installation was to take by Fava who showed him a list of bartender duties place that evening. Mastriano communicated her reluc- which he had posted and which he had called to the at- ta n c e to come in as requested, and Fava responded that tention of the bar personnel. McGuinness took no excep- he and the maintenance man would handle the matter tion to the content of the posting. In the course of this themselves. On Monday, November 19, Mastriano re- conversation, Fava told McGuinness that Mastriano was ported for duty and spoke with Pava. She told Fava that failing to cut citrus fruits, prepare juices, stock and rotate she wished no longer to be bar manager and to be ex- liquor, and to maintain the general cleanliness of the area pected to report for work on weekends when she was in baok of the bar. Fava also noted that Mastriano had n o t scheduled for duty. She stated her desire to be re- complained about her uniform. He emphasized that Mas- liev ed o f responsibility for ordering supplies and schedul- triano's rolling of the dice was too constant and consist- ing hours of work. Fava stated he would comply with ent and that he was going to have to change this. He Mastanos wishes and would handle these matters. asketd Mcatnnes was goan represnto ve tof thge Union t Thereafter, Fava took responsibility for these duties. The asked McGuinness as a representative of the Union to ^ ^ ^ oebr2 hne speak with Mastriano. McGuinness noted that he felt the shdl hc epeae o oebr2 hne construction whit h waano. thenting plaed inciet eeto the Mastriano's reporting time from 10 a.m. to 11 a.m. and construction which was then taking place incidentre i vr she was later told that there was no need to open the bar installation of the computer bar system rendered it very , th 10 a m. hour "2 difficult to maintain the cleanliness of the back bar area. a t 1 a hour. 22 Mc~unnes agredhoweer, o spak ith astrano In the week that followed, Mastriano noted a cooling McGuinness agreed, however, to speak with Mastfl ano of Fava's attitude toward her. For his part, Bruno Pava and he did so on the same day or the day following. In formed the impression that, following his directive to effect, he summanized the nature and substance of Favas s Mastriano to cease wagering on the roll of the dice, she complaints. Mastriano denied the accuracy of Fava's had became reticent and cool in her attitude, and the fre- evaluation concerning the condition of the back bar area quency of her complaints about work-related matters had and her performance of her bartending duties. Addition- increased. ally, Mastriano asserted that she had ceased rolling dice On November 20 Mastriano complained to Fava that a week earlier, and she reiterated to McGuinness her ob- she had not been compensated for 3 hours of overtime jections to the uniform and requested his evaluation of its work. (Mastriano had received her paycheck the previ- propriety. McGuinness stated that he felt the uniform ous day.) Fava explained that he had offset the 3 hours was "very attractive" but agreed that without the lace it of overtime which Mastriano had worked against a like "would be just a little bit too revealing." McGuinness amount of time off which she had taken. Mastriano was added that he wished to maintain harmony between man- not satisfied with this explanation and Fava offered to agement and the Union and its membership. He coun- pay the overtime. seled Mastriano to do all she could to fulfill her duties. The following day Zenich appeared at Fava's office. During the conversation, McGuinness formulated the im- He stated that he wished to talk to Pava. Zenich rarely pression that Mastriano was upset and very disturbed came in person to the facility. At the outset of the con- about something extraneous to the content of their con- versation, Zenich broached the subject of Mastriano's versation. Mastriano declined to explicate her feelings in uniform. Fava responded that that was no longer an issue this regard. because Mastriano had been authorized to wear street Following his conversation with Mastriano, McGuin- clothes. Fava was irritated and raised his voice a bit. He ness returned to his office and communicated Fava's asked Zenich the real nature of his business, and Zenich complaints and Mastriano's responses to Ted Zenich. He inquired about the 3 hours' overtime. Fava offered his told Zenich that he had studied the list of bartender's explanation for withholding the 3 hours of overtime pay. duties which Fava had posted and which Fava had re- quested the bartenders to sign. McGuinness stated that " The foregoing is based primarily on the credited testimony of Rich- he considered the list satisfactory. He also told Zenich ard Mcuinness, as supported by the testimony of Deborah Mastriano. The testimony of Bruno Fava supports in essential aspects the nature and tenor of McGuinness' testimony. In finding that the conversation Iran- finding that Fava spoke to Mastriano concerning her rolling of dice. To spired in mid-November, and not on or about November 27 as the testi- the extent that the testimony of the latter three individuals suggests that mony of McGuinness, Zenich, and Mastriano suggests, I do so on the Fava's chastisement of Mastriano pertained solely to her practice of roll- conviction that the incident transpired in the 2-week period when Mas- ing dice for tips, I reject it. The General Counsel introduced no evidence triano was wearing her uniform, as well as the further finding that Mas- to counter the credited testimony of Bruno Fava to the effect that Mas- triano ceased wearing her uniform at lest I week prior to her November triano was gambling for significant amounts of money in the bar area of 28 termination. the facility. In his pretrial affidavit Fava did not single Mastriano out as " The foregoing is based on the credited testimony of Deborah Mas- the offender among employees in this regard, but notwithstanding, the to- triano which is not contradicted. The testimony of Bruno Fava supports tality of the evidence establishes that she did gamble on the roll of the the finding that the computer bar installation transpired on the approxi- dice and Fava admonished her. mate date testified to by Mastriano. HOLIDAY INN OF SANTA MARIA 657 Incident to the installation of the new computer bar, that there appeared to be something disturbing and up- Mastriano expressed her opinion to Fava that the cus- setting Mastriano which he did not reveal to him.21 tomers would not respond favorably to this method of On Saturday, November 17, Fava called Mastriano at dispensing drinks. Mastriano expressed the feeling that her home and requested her to come to the bar to assist her customers would prefer to see the bartender phys- in the installation of the dispensing system of the com- ically pour the drink. Fava stated his disagreement. puter bar. Mastriano countered that the installer was In mid-November McGuinness visited Respondent's scheduled to come in the following evening. Fava con- facility in one of his routine visits. He was approached tradicted her and stated that installation was to take by Fava who showed him a list of bartender duties place that evening. Mastriano communicated her reluc- which he had posted and which he had called to the at- ta"ce to come in as requested, and Fava responded that tention of the bar personnel. McGuinness took no excep- he and the maintenance man would handle the matter tion to the content of the posting. In the course of this themselves. On Monday, November 19, Mastriano re- conversation, Fava told McGuinness that Mastriano was ported for duty and spoke with Pava. She told Fava that failing to cut citrus fruits, prepare juices, stock and rotate she wished no longer to be bar manager and to be ex- liquor, and to maintain the general cleanliness of the area pected to report for work on weekends when she was in baok of the bar. Fava also noted that Mastriano had n o t scheduled for duty. She stated her desire to be re- complained about her uniform. He emphasized that Mas- liev ed o f responsibility for ordering supplies and schedul- triano's rolling of the dice was too constant and consist- ing hours of work. Fava stated he would comply with ent and that he was going to have to change this. He Mastanos wishes and would handle these matters. asketd Mcatnnes was goan represnto ve tof thge Union t Thereafter, Fava took responsibility for these duties. The asked McGuinness as a representative of the Union to ^ ^ ^ oebr2 hne speak with Mastriano. McGuinness noted that he felt the shdl hc epeae o oebr2 hne construction whit h waano. then takingtlaed indt eeto the Mastriano's reporting time from 10 a.m. to 11 a.m. and construction which was then taking place incidentre i vr she was later told that there was no need to open the bar installation of the computer bar system rendered it very , th 10 a m. hour "2 difficult to maintain the cleanliness of the back bar area. a t 1 a hour. 22 Mc~unnes agredhoweer, o spak ith astrano In the week that followed, Mastriano noted a cooling McGuinness did s on th same ay or he dayfollowng. I of Fava's attitude toward her. For his part, Bruno Fava and he did so on the same day or the day following. In formed the impression that, following his directive to effect, he summanized the nature and substance of Favas s Mastriano to cease wagering on the roll of the dice, she complaints. Mastriano denied the accuracy of Fava's had became reticent and cool in her attitude, and the fre- evaluation concerning the condition of the back bar area quency of her complaints about work-related matters had and her performance of her bartending duties. Addition- increased. ally, Mastriano asserted that she had ceased rolling dice On November 20 Mastriano complained to Fava that a week earlier, and she reiterated to McGuinness her ob- she had not been compensated for 3 hours of overtime jections to the uniform and requested his evaluation of its work. (Mastriano had received her paycheck the previ- propriety. McGuinness stated that he felt the uniform ous day.) Fava explained that he had offset the 3 hours was "very attractive" but agreed that without the lace it of overtime which Mastriano had worked against a like "would be just a little bit too revealing." McGuinness amount of time off which she had taken. Mastriano was added that he wished to maintain harmony between man- not satisfied with this explanation and Fava offered to agement and the Union and its membership. He coun- pay the overtime. seled Mastriano to do all she could to fulfill her duties. The following day Zenich appeared at Fava's office. During the conversation, McGuinness formulated the im- He stated that he wished to talk to Pava. Zenich rarely pression that Mastriano was upset and very disturbed came in person to the facility. At the outset of the con- about something extraneous to the content of their con- versation, Zenich broached the subject of Mastriano's versation. Mastriano declined to explicate her feelings in uniform. Fava responded that that was no longer an issue this regard. because Mastriano had been authorized to wear street Following his conversation with Mastriano, McGuin- clothes. Fava was irritated and raised his voice a bit. He ness returned to his office and communicated Fava's asked Zenich the real nature of his business, and Zenich complaints and Mastriano's responses to Ted Zenich. He inquired about the 3 hours' overtime. Fava offered his told Zenich that he had studied the list of bartender's explanation for withholding the 3 hours of overtime pay. duties which Fava had posted and which Fava had re- quested the bartenders to sign. McGuinness stated that " The foregoing is based primarily on the credited testimony of Rich- he considered the list satisfactory. He also told Zenich ard Mcuinness, as supported by the testimony of Deborah Mastriano. The testimony of Bruno Fava supports in essential aspects the nature and tenor of McGuinness' testimony. In finding that the conversation Iran- finding that Fava spoke to Mastriano concerning her rolling of dice. To spired in mid-November, and not on or about November 27 as the testi- the extent that the testimony of the latter three individuals suggests that mony of McGuinness, Zenich, and Mastriano suggests, I do so on the Fava's chastisement of Mastriano pertained solely to her practice of roll- conviction that the incident transpired in the 2-week period when Mas- ing dice for tips, I reject it. The General Counsel introduced no evidence triano was wearing her uniform, as well as the further finding that Mas- to counter the credited testimony of Bruno Fava to the effect that Mas- triano ceased wearing her uniform at lest I week prior to her November triano was gambling for significant amounts of money in the bar area of 28 termination. the facility. In his pretrial affidavit Fava did not single Mastriano out as " The foregoing is based on the credited testimony of Deborah Mas- the offender among employees in this regard, but notwithstanding, the to- triano which is not contradicted. The testimony of Bruno Fava supports tality of the evidence establishes that she did gamble on the roll of the the finding that the computer bar installation transpired on the approxi- dice and Fava admonished her. mate date testified to by Mastriano. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zenich said that Fava would have to pay it. Fava said she had informed him, Zenich, of Fava's sexual harass- that it was his word against Mastriano's but that he ment of her."2 would pay the overtime. At this point in the conversa- tion, Zenich alluded to Fava's criticism of Mastriano for (3) The events of November 28 rolling dice and failing to properly perform all her bar- On November 28 Mastriano worked as a bartender on tender duties. Fava responded to these comments and her normal 11 a.m. to 6 p.m. shift. She was dressed in Zenich stated that it appeared to him that Fava was har- slacks and a blouse. Brenda Riley came on duty at 3 p.m. assing Mastriano. Fava also commented that if Mastriano on the afternoon of November 28. Her shift overlapped was going to get upset "about every little problem" that that of Mastriano and continued on into the night shift of perhaps Zenich should find her a job somewhere else. Kelly Connell, who relieved Mastriano as bartender at 6 Following some small talk, the meeting ended.23 p.m. Riley had had no previous experience as a cocktail After his conversation with Fava, Zenich instructed waitress when she entered Respondent's employ at the Mastriano to meet with him in his office the following end of September 1979. Riley testified that she experi- morning. Mastriano met with Zenich at approximately 9 enced criticism and disharmony when working with a.m. on November 22. Mastriano which she did not experience under other bar- At the outset of the conversation, Mastriano expressed tenders. the conviction that she was "going to get it" because she On the afternoon of November 28 when Riley report- had come to the Union's office. Mastriano told Zenich ed to work, she went to the back area of the bar and put that after he, Zenich, had left the Holiday Inn after her coat away and quickly surveyed the bar area. She speaking with Fava, Linda Guisinger and Lisa Ziemba observed only a few customers and she then proceeded had come to her and told her that following Zenich's de- to the restroom. She was gone approximately 3 or 4 min- parture from the Union Bnuno had gone into the dining utes. As she returned she was informed by a male room and remarked, "This big-titted broad, all she member of the band that Mastriano was upset with her. knows how to do is wiggle her ass and roll dice." Mas- Riley approached Mastriano to explain her absence. Mas- triano stated that in her absence she had had to serve triano produced for Zenich's benefit a napkin on which trano stated thatn her absence she had had to serve she had entered some abbreviations to assist her in recall- some customers. Riley apologized At approximately 5 p.m., Joaquin (Zorro) Razo and Edith Souza entered the ing the contents of Fava's alleged statement.24 In context b a r and oupied a table proan d E d ith S ouza entered t h e bar and occupied a table proximate to the waitress sta- of this, Mastriano then described in some detail incidents tion located ear oe edo and Souza ar- tion located near one end of the bar. Razo and Souza ar- of alleged sexual harassment of her by Fava. She further rived at a time when Riley had left the bar area for the told Zenich that she had resisted these advances, and she purpose of obtaining fresh coffee. It was Riley's normal expressed the opinion that her rejection of Fava in this routine to obtain a fresh pot of coffee preparatory to the respect had led to Fava's criticism of her work-related influx of evening customers. At this point in time, ap- activities and conduct. s Zenich asked Mastriano why proximately 10 or 15 customers were in the bar and she did not bring these matters to his attention earlier, cocktail lounge. Razo and Souza sat for a time at the and Mastriano answered that she was afraid of losing her table without being waited upon. Finally, Mastriano job if she came to the Union. She expressed her convic- went from behind the bar to the table and served a tion that Fava would find a way to terminate her be- round of drinks to Razo and Souza. She remained at the cause she had put a hem on her uniform. Zenich instruct- table talking and rolling dice with Razo and Souza. She ed Mastriano to go to work. He also advised her that if sipped on a glass of wine as she did so. When Riley re- Fava did terminate her that she should advise Fava that turned with the pot of coffee, she was again told by a member of the band who was seated in the cocktail " The foregoing is based upon the credited testimony of Bruno Fava, lounge that Mastriano was upset with her. Thereupon, as supported in substantive aspects by that of Ted Zenich. As the testi- Riley approached Mastriano and asserted that she had in- mony of Zenich confirms in essential aspects the testimony of Fava re- garding the context of their conversation, I find the portion of Fav formed Mastriano that she was going to get coffee. At pretrial affidavit suggesting that the conversation related solely to the 5:30 p.m., Connell reported to the bar preparatory to question of uniforms insufficient to warrant a rejection of Fava's testimo- commencing his bartending duties at 6 p.m. Upon enter- ny concerning this meeting. I specifically credit Fava's testimony that the ing the bar area, Connell walked directly to the waitress conversation transpired on or about November 21. I have considered the testimony of Ted Zenich concerning this conversation, and I reject it to station at the bar. As he reached the station, Mastriano the extent that it is inconsistent with the above findings. I also specifical- approached him from the table area situated in the cock- ly reject the testimony of Deborah Mastriano to the effect that incident tail lounge proximate to the waitress station. Referring to to this conversation between Fava and Zenich, Lisa Ziemba came run- Riley, Mastriano called Riley a "bitch" and stated that ning into the bar and said that Fava was "all upset" at Mastriano because she had gone to the Union. Not only does this accounting have no other she had been sitting on her ass." Mastrano appeared to evidentiary foundation but in its recorded context is pure hearsay for the be "upset" or "agitated." Connell detected the odor of purpose of establishing Fava's asserted resentment against Mastriano for liquor on her breath. Riley overheard Mastriano's com- having consulted with the Union. ments and he thereafter gave her explanation to Connell " Mastriano testified that Guisinger and Ziemba had reported Fava's alleged statement to her soon after it purportedly occurred. Both Gui- regardig her absence from the bar area Connell left the singer and Ziemba credibly deny this. " The incidents of sexual harassment alluded to by Mastriano were the " The testimony of Ted Zenich and Deborah Mastriano forms the subject of her independent testimony. Bruno Fava denies the conduct at- basis for the findings with respect to the substantive content of the meet- tributed to him. If it occurred, the conduct would have been substantial ing. I do not credit the testimony of Zenich and Mastriano to the effect and not insignificant in character. that this meeting transpired on November 28. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zenich said that Fava would have to pay it. Fava said she had informed him, Zenich, of Fava's sexual harass- that it was his word against Mastriano's but that he ment of her." would pay the overtime. At this point in the conversa- tion, Zenich alluded to Fava's criticism of Mastriano for (3) The events of November 28 rolling dice and failing to properly perform all her bar- On November 28 Mastriano worked as a bartender on tender duties. Fava responded to these comments and her normal 11 a.m. to 6 p.m. shift. She was dressed in Zenich stated that it appeared to him that Fava was har- slacks and a blouse. Brenda Riley came on duty at 3 p.m. assing Mastriano. Fava also commented that if Mastriano, on the afternoon of November 28. Her shift overlapped was going to get upset "about every little problem" that that of Mastriano and continued on into the night shift of perhaps Zenich should find her a job somewhere else. Kelly Connell, who relieved Mastriano as bartender at 6 Following some small talk, the meeting ended. 21 p.m. Riley had had no previous experience as a cocktail After his conversation with Fava, Zenich instructed waitress when she entered Respondent's employ at the Mastriano to meet with him in his office the following end of September 1979. Riley testified that she experi- morning. Mastriano met with Zenich at approximately 9 enced criticism and disharmony when working with a.m. on November 22. Mastriano which she did not experience under other bar- At the outset of the conversation, Mastriano expressed tenders. the conviction that she was "going to get it" because she On the afternoon of November 28 when Riley report- had come to the Union's office. Mastriano told Zenich e d t o work, she went to the back area of the bar and put that after he, Zenich, had left the Holiday Inn after her coat away and quickly surveyed the bar area. She speaking with Fava, Linda Guisinger and Lisa Ziemba observed only a few customers and she then proceeded had come to her and told her that following Zenich's de- t o the restroom. She was gone approximately 3 or 4 min- parture from the Union Bnuno had gone into the dining u t e s. A s s h e returned she was informed by a male room and remarked, "This big-titted broad, all she member of the band that Mastriano was upset with her. knows how to do is wiggle her ass and roll dice." Mas- Riley approached Mastriano to explain her absence. Mas- triano produced for Zenich's benefit a napkin on which tr a n o s ta t e d t h a t in h e r absence she had had to serve she had entered some abbreviations to assist her in recall- so m e c u st o m e r s. Riley apologized. At approximately 5 ing the contents of Fava's alleged statement.2 In context p-m., J o aq u in (Z o r r o R az o an d E d it h S o u z a en t e r ed t h e -. ., , . .. , .- , . , ., . .bar and occupied a table proximate to the waitress sta- of this, Mastriano then described in some detail incidents bar a o a t p t t w sta- tion located near one end of the bar. Razo, and Souza ar- of alleged sexual harassment of her by Fava. She further rived at a time when Riley had left the bar area for the told Zenich that she had resisted these advances, and she purpose of obtaining fresh coffee. It was Riley's normal expressed the opinion that her rejection of Fava in this routine to obtain a fresh pot of coffee preparatory to the respect had led to Fava's criticism of her work-related influx of evening customers. At this point in time, ap- activities and conduct.' Zenich asked Mastriano why proximately 10 or 15 customers were in the bar and she did not bring these matters to his attention earlier, cocktail lounge. Razo and Souza sat for a time at the and Mastriano answered that she was afraid of losing her table without being waited upon. Finally, Mastriano job if she came to the Union. She expressed her convic- went from behind the bar to the table and served a tion that Pava would find a way to terminate her be- round of drinks to Razo and Souza. She remained at the cause she had put a hem on her uniform. Zenich instruct- table talking and rolling dice with Razo and Souza. She ed Mastriano to go to work. He also advised her that if sipped on a glass of wine as she did so. When Riley re- Fava did terminate her that she should advise Pava that turned with the pot of coffee, she was again told by a member of the band who was seated in the cocktail " The foregoing is based upon the credited testimony of Bruno Fava, lounge that Mastriano Was Upset with her. Thereupon, as supported in substantive aspects by that of Ted Zenich. As the testi- Riley approached Mastriano and asserted that she had in- mony of Zenich confirms in essential aspects the testimony of Fava re- garding the context of their conversation, I find the portion of Favars f o r m e d Mastriano that she Was going to get coffee. At pretrial affidavit suggesting that the conversation related solely to the 5:30 p.m., Connell reported to the bar preparatory to question of uniforms insufficient to warrant a rejection of Fava's testimo- commencing his bartending duties at 6 p.m. Upon enter- ny concerning this meeting. I specifically credit Fava's testimony that the ing the bar area, Connell walked directly to the waitress conversation transpired on or about November 21. I have considered the testimony of Ted Zenich concerning this conversation, and I reject it to st a tio n a t the bar. As he reached the Station, Mastriano the extent that it is inconsistent with the above findings. I also specifical- approached him from the table area situated in the cock- ly reject the testimony of Deborah Mastriano to the effect that incident tail lounge proximate to the Waitress Station. Referring to to this conversation between Fava and Zenich, Lisa Ziemba came run- Riley, Mastriano called Riley a "bitch" and Stated that ning into the bar and said that Fava was "all upset" at Mastriano because she had gone to the Union. Not only does this accounting have no other she had been "sitting on her ass." Mastriano appeared to evidentiary foundation but in its recorded context is pure hearsay for the be "Upset" or "agitated." Connell detected the odor of purpose of establishing Fava's asserted resentment against Mastriano for liquor on her breath. Riley Overheard Mastriano's com- having consulted with the Union. ments and he thereafter gave her explanation to Connell " Mastriano testified that Guisinger and Ziemba had reported Fava's alleged statement to her soon after it purportedly occurred. Both Gui- regarding her absence from the bar area. Connell left the singer and Ziemba credibly deny this. ' The incidents of sexual harassment alluded to by Mastriano were the " The testimony of Ted Zenich and Deborah Mastriano forms the subject of her independent testimony. Bruno Fava denies the conduct at- basis for the findings with respect to the substantive content of the meet- tributed to him. If it occurred, the conduct would have been substantial ing. I do not credit the testimony of Zenich and Mastriano to the effect and not insignificant in character. that this meeting transpired on November 28. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zenich said that Fava would have to pay it. Fava said she had informed him, Zenich, of Fava's sexual harass- that it was his word against Mastriano's but that he ment of her." would pay the overtime. At this point in the conversa- tion, Zenich alluded to Fava's criticism of Mastriano for (3 ) The events of November 28 rolling dice and failing to properly perform all her bar- On November 28 Mastriano worked as a bartender on tender duties. Fava responded to these comments and her normal 11 a.m. to 6 p.m. shift. She was dressed in Zenich stated that it appeared to him that Fava was har- slacks and a blouse. Brenda Riley came on duty at 3 p.m. assing Mastriano. Fava also commented that if Mastriano, on the afternoon of November 28. Her shift overlapped was going to get upset "about every little problem" that that of Mastriano and continued on into the night shift of perhaps Zenich should find her a job somewhere else. Kelly Connell, who relieved Mastriano as bartender at 6 Following some small talk, the meeting ended. 21 p.m. Riley had had no previous experience as a cocktail After his conversation with Fava, Zenich instructed waitress when she entered Respondent's employ at the Mastriano to meet with him in his office the following end of September 1979. Riley testified that she experi- morning. Mastriano met with Zenich at approximately 9 enced criticism and disharmony when working with a.m. on November 22. Mastriano which she did not experience under other bar- At the outset of the conversation, Mastriano expressed tenders. the conviction that she was "going to get it" because she On the afternoon of November 28 when Riley report- had come to the Union's office. Mastriano told Zenich e d t o work, she went to the back area of the bar and put that after he, Zenich, had left the Holiday Inn after her coat away and quickly surveyed the bar area. She speaking with Fava, Linda Guisinger and Lisa Ziemba observed only a few customers and she then proceeded had come to her and told her that following Zenich's de- to the restroom. She was gone approximately 3 or 4 min- parture from the Union Bnuno had gone into the dining u t e s. A s s h e returned she was informed by a male room and remarked, "This big-titted broad, all she member of the band that Mastriano was upset with her. knows how to do is wiggle her ass and roll dice." Mas- Riley approached Mastriano to explain her absence. Mas- triano produced for Zenich's benefit a napkin on which tr a n o s ta t e d t h a t in h e r absence she had had to serve she had entered some abbreviations to assist her in recall- so m e c u st o m e r s. Riley apologized. At approximately 5 ing the contents of Fava's alleged statement.2 In context p-m., J o aq u in (Z o r r o R az o an d E d it h S o u z a en t e r ed t h e -. ., , . .. , .- , . , ., . .bar and occupied a table proximate to the waitress sta- of this, Mastriano then described in some detail incidents bar a one e oxmte to the w a a- tion located near one end of the bar. Razo, and Souza ar- of alleged sexual harassment of her by Fava. She further rived at a time when Riley had left the bar area for the told Zenich that she had resisted these advances, and she purpose of obtaining fresh coffee. It was Riley's normal expressed the opinion that her rejection of Fava in this routine to obtain a fresh pot of coffee preparatory to the respect had led to Fava's criticism of her work-related influx of evening customers. At this point in time, ap- activities and conduct.' Zenich asked Mastriano why proximately 10 or 15 customers were in the bar and she did not bring these matters to his attention earlier, cocktail lounge. Razo and Souza sat for a time at the and Mastriano answered that she was afraid of losing her table without being waited upon. Finally, Mastriano job if she came to the Union. She expressed her convic- went from behind the bar to the table and served a tion that Pava would find a way to terminate her be- round of drinks to Razo and Souza. She remained at the cause she had put a hem on her uniform. Zenich instruct- table talking and rolling dice with Razo and Souza. She ed Mastriano to go to work. He also advised her that if sipped on a glass of wine as she did so. When Riley re- Fava did terminate her that she should advise Pava that turned with the pot of coffee, she was again told by a member of the band who was seated in the cocktail " The foregoing is based upon the credited testimony of Bruno Fava, lounge that Mastriano Was Upset with her. Thereupon, as supported in substantive aspects by that of Ted Zenich. As the testi- Riley approached Mastriano and asserted that she had in- mony of Zenich confirms in essential aspects the testimony of Fava re- garding the context of their conversation, I find the portion of Favars f o r m e d Mastriano that she Was going to get coffee. At pretrial affidavit suggesting that the conversation related solely to the 5:30 p.m., Connell reported to the bar preparatory to question of uniforms insufficient to warrant a rejection of Fava's testimo- commencing his bartending duties at 6 p.m. Upon enter- ny concerning this meeting. I specifically credit Fava's testimony that the ing the bar area, Connell walked directly to the waitress conversation transpired on or about November 21. I have considered the testimony of Ted Zenich concerning this conversation, and I reject it to station at the bar. As he reached the Station, Mastriano the extent that it is inconsistent with the above findings. I also specifical- approached him from the table area situated in the cock- ly reject the testimony of Deborah Mastriano to the effect that incident tail lounge proximate to the Waitress Station. Referring to to this conversation between Fava and Zenich, Lisa Ziemba came run- Riley, Mastriano called Riley a "bitch" and Stated that ning into the bar and said that Fava was "all upset" at Mastriano because she had gone to the Union. Not only does this accounting have no other she had been "sitting on her ass." Mastriano appeared to evidentiary foundation but in its recorded context is pure hearsay for the be "Upset" or "agitated." Connell detected the odor of purpose of establishing Fava's asserted resentment against Mastriano for liquor on her breath. Riley Overheard Mastriano's com- having consulted with the Union. ments and he thereafter gave her explanation to Connell " Mastriano testified that Guisinger and Ziemba had reported Fava's alleged statement to her soon after it purportedly occurred. Both Gui- regarding her absence from the bar area. Connell left the singer and Ziemba credibly deny this. ' The incidents of sexual harassment alluded to by Mastriano were the " The testimony of Ted Zenich and Deborah Mastriano forms the subject of her independent testimony. Bruno Fava denies the conduct at- basis for the findings with respect to the substantive content of the meet- tributed to him. If it occurred, the conduct would have been substantial ing. I do not credit the testimony of Zenich and Mastriano to the effect and not insignificant in character. that this meeting transpired on November 28. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zenich said that Fava would have to pay it. Fava said she had informed him, Zenich, of Fava's sexual harass- that it was his word against Mastriano's but that he ment of her." would pay the overtime. At this point in the conversa- tion, Zenich alluded to Fava's criticism of Mastriano for (3) The events of November 28 rolling dice and failing to properly perform all her bar- On November 28 Mastriano worked as a bartender on tender duties. Fava responded to these comments and her normal 11 a.m. to 6 p.m. shift. She was dressed in Zenich stated that it appeared to him that Fava was har- slacks and a blouse. Brenda Riley came on duty at 3 p.m. assing Mastriano. Fava also commented that if Mastriano, on the afternoon of November 28. Her shift overlapped was going to get upset "about every little problem" that that of Mastriano and continued on into the night shift of perhaps Zenich should find her a job somewhere else. Kelly Connell, who relieved Mastriano as bartender at 6 Following some small talk, the meeting ended. 21 p.m. Riley had had no previous experience as a cocktail After his conversation with Fava, Zenich instructed waitress when she entered Respondent's employ at the Mastriano to meet with him in his office the following end of September 1979. Riley testified that she experi- morning. Mastriano met with Zenich at approximately 9 enced criticism and disharmony when working with a.m. on November 22. Mastriano which she did not experience under other bar- At the outset of the conversation, Mastriano expressed tenders. the conviction that she was "going to get it" because she On the afternoon of November 28 when Riley report- had come to the Union's office. Mastriano told Zenich e d t o work, she went to the back area of the bar and put that after he, Zenich, had left the Holiday Inn after her coat away and quickly surveyed the bar area. She speaking with Fava, Linda Guisinger and Lisa Ziemba observed only a few customers and she then proceeded had come to her and told her that following Zenich's de- to the restroom. She was gone approximately 3 or 4 min- parture from the Union Bnuno had gone into the dining u t e s. A s s h e returned she was informed by a male room and remarked, "This big-titted broad, all she member of the band that Mastriano was upset with her. knows how to do is wiggle her ass and roll dice." Mas- Riley approached Mastriano to explain her absence. Mas- triano produced for Zenich's benefit a napkin on which tr a n o s ta t e d t h a t in h e r absence she had had to serve she had entered some abbreviations to assist her in recall- so m e c u st o m e r s. Riley apologized. At approximately 5 ing the contents of Fava's alleged statement.2 In context p-m., J o aq u in (Z o r r o R az o an d E d it h S o u z a en t e r ed t h e -. ., , . .. , .- , . , ., . .bar and occupied a table proximate to the waitress sta- of this, Mastriano then described in some detail incidents bar a one e oxmte to the w a a- tion located near one end of the bar. Razo, and Souza ar- of alleged sexual harassment of her by Fava. She further rived at a time when Riley had left the bar area for the told Zenich that she had resisted these advances, and she purpose of obtaining fresh coffee. It was Riley's normal expressed the opinion that her rejection of Fava in this routine to obtain a fresh pot of coffee preparatory to the respect had led to Fava's criticism of her work-related influx of evening customers. At this point in time, ap- activities and conduct.' Zenich asked Mastriano why proximately 10 or 15 customers were in the bar and she did not bring these matters to his attention earlier, cocktail lounge. Razo and Souza sat for a time at the and Mastriano answered that she was afraid of losing her table without being waited upon. Finally, Mastriano job if she came to the Union. She expressed her convic- went from behind the bar to the table and served a tion that Pava would find a way to terminate her be- round of drinks to Razo and Souza. She remained at the cause she had put a hem on her uniform. Zenich instruct- table talking and rolling dice with Razo and Souza. She ed Mastriano to go to work. He also advised her that if sipped on a glass of wine as she did so. When Riley re- Fava did terminate her that she should advise Pava that turned with the pot of coffee, she was again told by a member of the band who was seated in the cocktail " The foregoing is based upon the credited testimony of Bruno Fava, lounge that Mastriano Was Upset with her. Thereupon, as supported in substantive aspects by that of Ted Zenich. As the testi- Riley approached Mastriano and asserted that she had in- mony of Zenich confirms in essential aspects the testimony of Fava re- garding the context of their conversation, I find the portion of Favars f o r m e d Mastriano that she Was going to get coffee. At pretrial affidavit suggesting that the conversation related solely to the 5:30 p.m., Connell reported to the bar preparatory to question of uniforms insufficient to warrant a rejection of Fava's testimo- commencing his bartending duties at 6 p.m. Upon enter- ny concerning this meeting. I specifically credit Fava's testimony that the ing the bar area, Connell walked directly to the waitress conversation transpired on or about November 21. I have considered the testimony of Ted Zenich concerning this conversation, and I reject it to station at the bar. As he reached the Station, Mastriano the extent that it is inconsistent with the above findings. I also specifical- approached him from the table area situated in the cock- ly reject the testimony of Deborah Mastriano to the effect that incident tail lounge proximate to the Waitress Station. Referring to to this conversation between Fava and Zenich, Lisa Ziemba came run- Riley, Mastriano called Riley a "bitch" and Stated that ning into the bar and said that Fava was "all upset" at Mastriano because she had gone to the Union. Not only does this accounting have no other she had been "sitting on her ass." Mastriano appeared to evidentiary foundation but in its recorded context is pure hearsay for the be "Upset" or "agitated." Connell detected the odor of purpose of establishing Fava's asserted resentment against Mastriano for liquor on her breath. Riley Overheard Mastriano's com- having consulted with the Union. ments and he thereafter gave her explanation to Connell " Mastriano testified that Guisinger and Ziemba had reported Fava's alleged statement to her soon after it purportedly occurred. Both Gui- regarding her absence from the bar area. Connell left the singer and Ziemba credibly deny this. ' The incidents of sexual harassment alluded to by Mastriano were the " The testimony of Ted Zenich and Deborah Mastriano forms the subject of her independent testimony. Bruno Fava denies the conduct at- basis for the findings with respect to the substantive content of the meet- tributed to him. If it occurred, the conduct would have been substantial ing. I do not credit the testimony of Zenich and Mastriano to the effect and not insignificant in character. that this meeting transpired on November 28. HOLIDAY INN OF SANTA MARIA 659 bar and went to the office area to obtain his bank of Fava entered the bar area without prior knowledge of money for the night shift. This accorded to his normal Mastriano's whereabouts or presence there. He knew routine. Connell's departure for the office occurred at that she had worked that afternoon and that her shift ter- approximately 5:40 p.m. In the ensuing several minutes minated at 6 p.m. Fava entered the bar area at approxi- Mastriano intermittently returned to her work station mately 7:05 p.m. He walked directly to the waitress sta- behind the bar and mixed drinks. She would then return tion where Connell and Riley were speaking together. to the table occupied by Razo and Souza. On one occa- Fava did not observe Mastriano's presence in the bar. He sion, she left that table, went behind the bar, mixed spoke briefly to Connell and Riley and inquired how the drinks, and handed them across the bar to Razo as he cocktail hour was proceeding. Connell responded and stood across the bar near his table. Prior to completing then continued his discussion with Riley concerning the her shift at 6 p.m., Mastriano had taken the proceeds and A and P tab. Fava, who was present, noted that the tab checks constituting her "bank" from the cash register had a notation indicating that the charges on the check and had placed the bank on the surface of the working had been made to his A and P account. He commented, area of the bar near the cash register. Normal routinerically, that he had just come in and Connell an- rhetorically, that he had just come in and Connell an- would have required Mastriano to take the bank directly to the office and deposit it there. When he assumed his that he d not ko anythig abot . e sa bartending duties at 6 p.m., Connell observed Mastriano's that t was not hs and moton tohetable where Mas- bank resting on the work surface where he normally triano was seated Fava turned and observed Mastrano placed his liquor bottles. Mastriano remained in the bar seated at a table near the waitress station. He then took and sat with Razo and Souza at the table they had been the ticket and walked in the direction of the bandstand. occupying. In the interim, however, she received a tele- Mastriano approached him and asked to speak with him. phone call from Zenich who asked Mastriano how her Fava listened and Mastriano stated that Riley had let workday had gone. Mastriano said that the day had been some customers wait unattended for 10 minutes and she "hectic" and stated that she "did not know what [was] had purchased some drinks for them. Mastriano told going to happen" when she turned her bank into the Fava, in substance, that Riley had sat and conversed office. After he assumed his bartending duties, Connell with a member of the band instead of attending to her observed Mastriano rolling dice. Above the other sounds tables. She referred to Riley as a "broad" and a "bitch." in the bar, Connell could hear Mastriano's voice and Fava then went to the far end of the bar. He motioned could also hear laughter coming from the table. A round for Connell to join him there. Connell did so, and Fava of drinks for Raza and Souza were ordered by Mastriano asked Connell again for a further explanation. Connell through Riley with instructions to charge the drinks to started to comment but was interrupted by Mastriano Fava's A and P account.27 Connell was aware that Mas- who walked quickly the full length of the bar from her triano was off duty, and in his own mind questioned the table to where Fava and Connell were conversing. As propriety of an off-duty bartender seeking to charge a she approached she addressed Connell and instructed customer drink to Fava's A and P account. Accordingly, him to tell Fava what she had told Connell earlier. Con- he questioned Riley, asking her if the charge was intend- nell started to recount for Fava's benefit the statement ed to go on "Bruno's A and P account." Riley answered which Mastriano had earlier made concerning Riley. in the affirmative. Connell rang up the order on the However, Mastriano interrupted him, and she spoke in a ticket. Later, Riley placed another order of drinks for still louder tone of voice. Mastriano repeated the phrase, the same customers and, in the process of ringing up the "Tell Bruno what I told you," several times in progres- order, Connell detected an error in the key annotation specifying the waitress ordering the drinks. Connell Deborah Mastriano and Joaquin Razo and credit it only to the extent that placed the ticket beside the cash register awaiting an ap- it is consistent with the foregoing findings. I am convinced that Mas- propriate time to discuss the matter with Riley. This trino engaged in liberal rationalization and exaggeration in testifying transpired at approximately 6:45 p.m. Mastriano re- concerning this event, and I conclude upon my observation of him as he transpired at approximately 6:45 p.m. Mastano re testified that Razo, despite his testimony to the contrary, had only a mained at the table in the bar and her bank remained vague recollection of the precise details of the incidents concerning behind the bar where she had placed it. Subsequently, at which he testified. Moreover, I am convinced that, contrary to his testi- approximately 7:05 p.m., Connell had occasion to discuss mony, he was fully aware of Mastriano's interest in the proceeding and that he testified in a manner designed to assist Mastriano. I reject his tes- the ticket with Riley and in the course of that discussion timony On the other hand, I m convinced upon my observation of Con- he observed Bruno Fava enter the cocktail lounge nell as he testified concerning salient events that he endeavored to re- through the main entrance. Fava approached the wait- count the incidents in which he was a participant accurately and without ress station as Riley and Connell discussed the ticket in bis to the interest of any party. I found him a fully credible and con- uestion 25 vincing witness. Further, despite his association with Bruno Fava, I am .~q.5 ~~~~ues...ii~~~on. convinced as I observed him testify that Ray Biggs gave an accurate and credible description of the activities of Mastriano and Razo which he " For the purpose of maintaining good customer relations and to serve witnessed in the time period described above. I credit Biggs. Finally, I the business interest of management, an advertising and promotions ac- conclude that Riley endeavored accurately to recall and describe the count was maintained. This account, known as "Bruno's tab," or "the events involving her on the evening of November 28. From a composi- house tab," or the "A and P account," was used for the purpose of ex- tive testimony, I conclude that her accounting is essentially accurate, al- pressing gratitude to a good customer, or for the purpose of soothing an though I infer that her absence from the bar area during the time period irate customer with a valid complaint against the quality of service ren- approximating 5 p.m. was longer than she recalled. Finally, I have con- dered. Some discretion in this regard resides with the bartender. Off duty sidered the testimony of Bruno Fava with respect to the time of his arriv- bartenders have no authority to charge drinks to the A and P account. al and ingress into the bar area, and as it further relates to the degree of " The foregoing is based on the credited testimony of John Kelly Con- latitude granted bartenders in the use of A and P tabs. I credit him in this nell, Brenda Riley, and Ray Biggs. I have considered the testimony of regard. HOLIDAY INN OF SANTA MARIA 659 bar and went to the office area to obtain his bank of Fava entered the bar area without prior knowledge of money for the night shift. This accorded to his normal Mastriano's whereabouts or presence there. He knew routine. Connell's departure for the office occurred at that she had worked that afternoon and that her shift ter- approximately 5:40 p.m. In the ensuing several minutes minated at 6 p.m. Fava entered the bar area at approxi- Mastriano intermittently returned to her work station mately 7:05 p.m. He walked directly to the waitress sta- behind the bar and mixed drinks. She would then return tion where Connell and Riley were speaking together. to the table occupied by Razo and Souza. On one occa- Fava did not observe Mastriano's presence in the bar. He sion, she left that table, went behind the bar, mixed spoke briefly to Connell and Riley and inquired how the drinks, and handed them across the bar to Razo as he cocktail hour was proceeding. Connell responded and stood across the bar near his table. Prior to completing then continued his discussion with Riley concerning the her shift at 6 p.m., Mastriano had taken the proceeds and A and P tab. Fava. who was present, noted that the tab checks constituting her "bank" from the cash register had a notation indicating that the charges on the check and had placed the bank on the surface of the working had been made to his A and P account. He commented, area of the bar near the cash register. Normal routine retorically, that he had just come in and Connell an- would have required Mastriano to take the bank directly s r t h d to the office and deposit it there. When he assumed his t it was n hi an mtoe t tw bartending duties at 6 p.m., Connell observed Mastriano's bank resting on the work surface where he normally tr an o w as se ate d . F av a t u rn ed an d observed Mastnano placed his liquor bottles. Mastriano remained in the bar s eat e d a t a table near the waitress station. He then took and sat with Razo and Souza at the table they had been the ticket and walked in the direction of the bandstand. occupying. In the interim, however, she received a tele- Mastriano approached him and asked to speak with him. phone call from Zenich who asked Mastriano how her Fava listened and Mastriano stated that Riley had let workday had gone. Mastriano said that the day had been some customers wait unattended for 10 minutes and she "hectic" and stated that she "did not know what [was] had purchased some drinks for them. Mastriano told going to happen" when she turned her bank into the Fava, in substance, that Riley had sat and conversed office. After he assumed his bartending duties, Connell with a member of the band instead of attending to her observed Mastriano rolling dice. Above the other sounds tables. She referred to Riley as a "broad" and a "bitch." in the bar, Connell could hear Mastriano's voice and Fava then went to the far end of the bar. He motioned could also hear laughter coming from the table. A round for Connell to join him there. Connell did so, and Fava of drinks for Raza and Souza were ordered by Mastriano asked Connell again for a further explanation. Connell through Riley with instructions to charge the drinks to started to comment but was interrupted by Mastriano Fava's A and P account. 21 Connell was aware that Mas- who walked quickly the full length of the bar from her triano was off duty, and in his own mind questioned the table to where Fava and Connell were conversing. As propriety of an off-duty bartender seeking to charge a she approached she addressed Connell and instructed customer drink to Fava's A and P account. Accordingly, him to tell Fava what she had told Connell earlier. Con- he questioned Riley, asking her if the charge was intend- nell started to recount for Fava's benefit the statement ed to go on "Bruno's A and P account." Riley answered which Mastriano had earlier made concerning Riley. in the affirmative. Connell rang up the order on the However, Mastriano interrupted him, and she spoke in a ticket. Later, Riley placed another order of drinks for still louder tone of voice. Mastriano repeated the phrase, the same customers and, in the process of ringing up the "Tell Bruno what I told you," several times in progres- order, Connell detected an error in the key annotation Specifying the waitress Ordering the drinks. Connell Deborah Mastriano and Joaquin Razo and credit it only to the extent that placed the ticket beside the cash register awaiting an ap- it is consistent with the foregoing findings. I am convinced that Mas- propriate time to discuss the matter with Riley. This t ri engaged i n liberal rationalization and exaggeration in testifying .-.,.,„ ;.i i „.„„.„ ;„ approximatel. 6:5 A . M o r- *concerning this event, and I conclude upon my observation of him as he transpired at approximately 6:45 p.m. Mastniano re- testified that Razo, despite his testimony to the contrary, had only a mained at the table in the bar and her bank remained vague recollection of the precise details of the incidents concerning behind the bar where she had placed it. Subsequently, at which he testified. Moreover, I am convinced that, contrary to his testi- approximately 7:05 p.m., Connell had occasion to discuss mony, h e was fully aware o f Mastriano's interest in the proceeding and th at h e testified in a manner designed to assist Maslriano. I reject his tes- the ticket with Riley and in the course of that discussion timony. On the other hand, I am convinced upon my observation of Con- he Observed Bruno Fava enter the cocktail lounge nell as he testified concerning salient events that he endeavored to re- through the main entrance. Fava approached the Wait- count the incidents in which he was a participant accurately and without ress station as Riley and Connell discussed the ticket in bi" to the interest of ny party. I found him a fully credible and con- question. 28gvincing witness. Further, despite his association with Bruno Fava, I am convinced as I observed him testify that Ray Biggs gave an accurate and credible description of the activities of Mastriano and Razo which he " For the purpose of maintaining good customer relations and to serve witnessed in the time period described above. I credit Biggs. Finally, I the business interest of management, an advertising and promotions ac- conclude that Riley endeavored accurately to recall and describe the count was maintained. Thi account, known as "Bruno's tab," or "the events involving her on the evening of November 28. From a composi- house tab," or the "A and P account," was used for the purpose of ex- tive testimony, I conclude that her accounting is essentially accurate, al- pressing gratitude to a good customer, or for the purpose of soothing an though I infer that her absence from the bar area during the time period irate customer with a valid complaint against the quality of service ren- approximating 5 p.m. was longer than she recalled. Finally, I have con- dered. Some discretion in this regard resides with the bartender. Off duty sidered the testimony of Bruno Fava with respect to the time or his arriv- bartenders have no authority to charge drinks to the A and P account, al and ingress into the bar area, and as it further relates to the degree of " The foregoing is based on the credited testimony of John Kelly Con- latitude granted bartenders in the use of A and P tabs. I credit him in this nell, Brenda Riley, and Ray Biggs. I have considered the testimony of regard. HOLIDAY INN OF SANTA MARIA 659 bar and went to the office area to obtain his bank of Fava entered the bar area without prior knowledge of money for the night shift. This accorded to his normal Mastriano's whereabouts or presence there. He knew routine. Connell's departure for the office occurred at that she had worked that afternoon and that her shift ter- approximately 5:40 p.m. In the ensuing several minutes minated at 6 p.m. Fava entered the bar area at approxi- Mastriano intermittently returned to her work station mately 7:05 p.m. He walked directly to the waitress sta- behind the bar and mixed drinks. She would then return tion where Connell and Riley were speaking together. to the table occupied by Razo and Souza. On one occa- Fava did not observe Mastriano's presence in the bar. He sion, she left that table, went behind the bar, mixed spoke briefly to Connell and Riley and inquired how the drinks, and handed them across the bar to Razo as he cocktail hour was proceeding. Connell responded and stood across the bar near his table. Prior to completing then continued his discussion with Riley concerning the her shift at 6 p.m., Mastriano had taken the proceeds and A and P tab. Fava. who was present, noted that the tab checks constituting her "bank" from the cash register had a notation indicating that the charges on the check and had placed the bank on the surface of the working had been made to his A and P account. He commented, area of the bar near the cash register. Normal routine retorically, that he had just come in and Connell an- would have required Mastriano to take the bank directly s r t h d to the office and deposit it there. When he assumed his t it was n hi an m o to t t e bartending duties at 6 p.m., Connell observed Mastriano's bank resting on the work surface where he normally tr an o w as se ate d . Fava turned and observed Mastnano placed his liquor bottles. Mastriano remained in the bar sated at a table near the waitress station. He then took and sat with Razo and Souza at the table they had been the ticket and walked in the direction of the bandstand. occupying. In the interim, however, she received a tele- Mastriano approached him and asked to speak with him. phone call from Zenich who asked Mastriano how her Fava listened and Mastriano stated that Riley had let workday had gone. Mastriano said that the day had been some customers wait unattended for 10 minutes and she "hectic" and stated that she "did not know what [was] had purchased some drinks for them. Mastriano told going to happen" when she turned her bank into the Fava, in substance, that Riley had sat and conversed office. After he assumed his bartending duties, Connell with a member of the band instead of attending to her observed Mastriano rolling dice. Above the other sounds tables. She referred to Riley as a "broad" and a "bitch." in the bar, Connell could hear Mastriano's voice and Fava then went to the far end of the bar. He motioned could also hear laughter coming from the table. A round for Connell to join him there. Connell did so, and Fava of drinks for Raza and Souza were ordered by Mastriano asked Connell again for a further explanation. Connell through Riley with instructions to charge the drinks to started to comment but was interrupted by Mastriano Fava's A and P account. 21 Connell was aware that Mas- who walked quickly the full length of the bar from her triano was off duty, and in his own mind questioned the table to where Fava and Connell were conversing. As propriety of an off-duty bartender seeking to charge a she approached she addressed Connell and instructed customer drink to Fava's A and P account. Accordingly, him to tell Fava what she had told Connell earlier. Con- he questioned Riley, asking her if the charge was intend- nell started to recount for Fava's benefit the statement ed to go on "Bruno's A and P account." Riley answered which Mastriano had earlier made concerning Riley. in the affirmative. Connell rang up the order on the However, Mastriano interrupted him, and she spoke in a ticket. Later, Riley placed another order of drinks for still louder tone of voice. Mastriano repeated the phrase, the same customers and, in the process of ringing up the "Tell Bruno what I told you," several times in progres- order, Connell detected an error in the key annotation Specifying the waitress Ordering the drinks. Connell Deborah Maslriano and Joaquin Razo and credit it only to the extent that placed the ticket beside the cash register awaiting an ap- it is consistent with the foregoing findings. I am convinced that Mas- propriate time to discuss the matter with Riley. This t ri engaged i n liberal rationalization and exaggeration in testifying .-.,.,„ ;.i i „.„„.„ ;„ approximatel. 6:5 A . M o r- *concerning this event, and I conclude upon my observation of him as he transpired at approximately 6:45 p.m. Mastniano re- testified that Razo, despite his testimony to the contrary, had only a mained at the table in the bar and her bank remained vague recollection of the precise details of the incidents concerning behind the bar where she had placed it. Subsequently, at which he testified. Moreover, I am convinced that, contrary to his testi- approximately 7:05 p.m., Connell had occasion to discuss mony, h e was fully aware o f Mastriano's interest in the proceeding and th at h e testified in a manner designed to assist Maslriano. I reject his tes- the ticket with Riley and in the course of that discussion timony. On the other hand, I am convinced upon my observation of Con- he Observed Bruno Fava enter the cocktail lounge nell as he testified concerning salient events that he endeavored to re- through the main entrance. Fava approached the Wait- count the incidents in which he was a participant accurately and without ress station as Riley and Connell discussed the ticket in bi" to the interest o f any party. I fo u n d him a fully c r ed ib le and con- question. 28gvincing witness. Further, despite his association with Bruno Fava, I am convinced as I observed him testify that Ray Biggs gave an accurate and credible description of the activities of Mastriano and Razo which he " For the purpose of maintaining good customer relations and to serve witnessed in the time period described above. I credit Biggs. Finally, I the business interest of management, an advertising and promotions ac- conclude that Riley endeavored accurately to recall and describe the count was maintained. Thi account, known as "Bruno's tab," or "the events involving her on the evening of November 28. From a composi- house tab," or the "A and P account," was used for the purpose of ex- tive testimony, I conclude that her accounting is essentially accurate, al- pressing gratitude to a good customer, or for the purpose of soothing an though I infer that her absence from the bar area during the time period irate customer with a valid complaint against the quality of service ren- approximating 5 p.m. was longer than she recalled. Finally, I have con- dered. Some discretion in this regard resides with the bartender. Off duty sidered the testimony of Bruno Fava with respect to the time or his arriv- bartenders have no authority to charge drinks to the A and P account, al and ingress into the bar area, and as it further relates to the degree of " The foregoing is based on the credited testimony of John Kelly Con- latitude granted bartenders in the use of A and P tabs. I credit him in this nell, Brenda Riley, and Ray Biggs. I have considered the testimony of regard. HOLIDAY INN OF SANTA MARIA 659 bar and went to the office area to obtain his bank of Fava entered the bar area without prior knowledge of money for the night shift. This accorded to his normal Mastriano's whereabouts or presence there. He knew routine. Connell's departure for the office occurred at that she had worked that afternoon and that her shift ter- approximately 5:40 p.m. In the ensuing several minutes minated at 6 p.m. Fava entered the bar area at approxi- Mastriano intermittently returned to her work station mately 7:05 p.m. He walked directly to the waitress sta- behind the bar and mixed drinks. She would then return tion where Connell and Riley were speaking together. to the table occupied by Razo and Souza. On one occa- Fava did not observe Mastriano's presence in the bar. He sion, she left that table, went behind the bar, mixed spoke briefly to Connell and Riley and inquired how the drinks, and handed them across the bar to Razo as he cocktail hour was proceeding. Connell responded and stood across the bar near his table. Prior to completing then continued his discussion with Riley concerning the her shift at 6 p.m., Mastriano had taken the proceeds and A and P tab. Fava. who was present, noted that the tab checks constituting her "bank" from the cash register had a notation indicating that the charges on the check and had placed the bank on the surface of the working had been made to his A and P account. He commented, area of the bar near the cash register. Normal routine retorically, that he had just come in and Connell an- would have required Mastriano to take the bank directly s r t h d to the office and deposit it there. When he assumed his t it was n hi an m o to t t e bartending duties at 6 p.m., Connell observed Mastriano's bank resting on the work surface where he normally tr an o w as se ate d . Fva turned and observed Mastnano placed his liquor bottles. Mastriano remained in the bar sated at a table near the waitress station. He then took and sat with Razo and Souza at the table they had been the ticket and walked in the direction of the bandstand. occupying. In the interim, however, she received a tele- Mastriano approached him and asked to speak with him. phone call from Zenich who asked Mastriano how her Fava listened and Mastriano stated that Riley had let workday had gone. Mastriano said that the day had been some customers wait unattended for 10 minutes and she "hectic" and stated that she "did not know what [was] had purchased some drinks for them. Mastriano told going to happen" when she turned her bank into the Fava, in substance, that Riley had sat and conversed office. After he assumed his bartending duties, Connell with a member of the band instead of attending to her observed Mastriano rolling dice. Above the other sounds tables. She referred to Riley as a "broad" and a "bitch." in the bar, Connell could hear Mastriano's voice and Fava then went to the far end of the bar. He motioned could also hear laughter coming from the table. A round for Connell to join him there. Connell did so, and Fava of drinks for Raza and Souza were ordered by Mastriano asked Connell again for a further explanation. Connell through Riley with instructions to charge the drinks to started to comment but was interrupted by Mastriano Fava's A and P account. 21 Connell was aware that Mas- who walked quickly the full length of the bar from her triano was off duty, and in his own mind questioned the table to where Fava and Connell were conversing. As propriety of an off-duty bartender seeking to charge a she approached she addressed Connell and instructed customer drink to Fava's A and P account. Accordingly, him to tell Fava what she had told Connell earlier. Con- he questioned Riley, asking her if the charge was intend- nell started to recount for Fava's benefit the statement ed to go on "Bruno's A and P account." Riley answered which Mastriano had earlier made concerning Riley. in the affirmative. Connell rang up the order on the However, Mastriano interrupted him, and she spoke in a ticket. Later, Riley placed another order of drinks for still louder tone of voice. Mastriano repeated the phrase, the same customers and, in the process of ringing up the "Tell Bruno what I told you," several times in progres- order, Connell detected an error in the key annotation Specifying the waitress Ordering the drinks. Connell Deborah Maslriano and Joaquin Razo and credit it only to the extent that placed the ticket beside the cash register awaiting an ap- it is consistent with the foregoing findings. I am convinced that Mas- propriate time to discuss the matter with Riley. This t ri engaged i n liberal rationalization and exaggeration in testifying .-.,.,„ ;.i i „.„„.„ ;„ approximatel. 6:5 A . M o r- *concerning this event, and I conclude upon my observation of him as he transpired at approximately 6:45 p.m. Mastniano re- testified that Razo, despite his testimony to the contrary, had only a mained at the table in the bar and her bank remained vague recollection of the precise details of the incidents concerning behind the bar where she had placed it. Subsequently, at which he testified. Moreover, I am convinced that, contrary to his testi- approximately 7:05 p.m., Connell had occasion to discuss mony, h e was fully aware o f Mastriano's interest in the proceeding and th at h e testified in a manner designed to assist Maslriano. I reject his tes- the ticket with Riley and in the course of that discussion timony. On the other hand, I am convinced upon my observation of Con- he Observed Bruno Fava enter the cocktail lounge nell as he testified concerning salient events that he endeavored to re- through the main entrance. Fava approached the Wait- count the incidents in which he was a participant accurately and without ress station as Riley and Connell discussed the ticket in b i" to the interest o f ny party. I fo u n d him a fully c r ed ib le and con- question. 28gvincing witness. Further, despite his association with Bruno Fava, I am convinced as I observed him testify that Ray Biggs gave an accurate and credible description of the activities of Mastriano and Razo which he " For the purpose of maintaining good customer relations and to serve witnessed in the time period described above. I credit Biggs. Finally, I the business interest of management, an advertising and promotions ac- conclude that Riley endeavored accurately to recall and describe the count was maintained. Thi account, known as "Bruno's tab," or "the events involving her on the evening of November 28. From a composi- house tab," or the "A and P account," was used for the purpose of ex- tive testimony, I conclude that her accounting is essentially accurate, al- pressing gratitude to a good customer, or for the purpose of soothing an though I infer that her absence from the bar area during the time period irate customer with a valid complaint against the quality of service ren- approximating 5 p.m. was longer than she recalled. Finally, I have con- dered. Some discretion in this regard resides with the bartender. Off duty sidered the testimony of Bruno Fava with respect to the time or his arriv- bartenders have no authority to charge drinks to the A and P account, al and ingress into the bar area, and as it further relates to the degree of " The foregoing is based on the credited testimony of John Kelly Con- latitude granted bartenders in the use of A and P tabs. I credit him in this nell, Brenda Riley, and Ray Biggs. I have considered the testimony of regard. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sively louder tones each time. She appeared highly agi- closing it. Through the partially opened door, Mastriano tated. Connell was unable to complete his statement to said, "I have now got you." In so stating she laughed. Fava. Connell continued his effort to give an accounting Fava responded, "Get out. Please get out." He was able to Fava. Mastriano persisted in her loud interruptions to close the door.31 and Fava interjected with the instruction to Mastriano to Soon thereafter, Fava placed a telephone call to the quiet down and permit Connell to explain. Fava stated Coachman Bar to determine if Ted Zenich was there. He that he could only listen to one person at a time. Finally, knew that Zenich frequently patronized the Coachman Connell addressed Mastriano and stated that if she would Bar. He learned that Zenich was at the bar, and he went "shut up" he would be able to comply with her request. directly to the Coachman and spoke with Zenich. He Customers where in the bar, and Mastriano's voice had gave his version of the events which had transpired earli- reached a very high pitch. Finally, Fava raised his voice er that evening resulting in the termination of Mastriano. and addressed Mastriano. He stated, in substance, that Zenich expressed skepticism that Fava's explanation rep- she should keep her voice down and speak when she was resented the true reason for terminating Mastriano. spoken to. He added that he wanted to complete his dis- Zenich told Fava that Mastriano had spoken to him cussion with Connell. At this point, Mastriano repeated about Fava's harassment of her and proceeded to recount several times in a very agitated manner the question, several incidents of sexual harassment of Mastriano in- "What are you going to do, fire me?" In the process she volving Fava. Fava told Zenich that these claims were touched Fava once or twice on the arm as she spoke. Fi- preposterous. Zenich interjected, ". . . you've been a nally, Fava responded, "Sweetheart, if that is the way thorn in my side all these years." The dialogue continued you want it, you're fired. Go." Throughout this interlude with Zenich and Fava exchanging recriminations.32 Riley was standing nearby.2 9 Mastriano responded, "I'll Thereafter, Fava returned to his office and spoke with get you for this." She repeated this statement and added, Biggs who had come with his wife to the bar for a drink. "I'll have your ass for this." Fava walked away and as In substance, Fava told Biggs that he felt that he was he did so Mastriano shouted that she was going to the being "setup" in connection with the termination of Mas- Union. Fava responded, "Fine. Go ahead." Fava pro- triano. Biggs was a friend both of Fava and of Zenich. ceeded directly to his office.30 He took it upon himself to contact Zenich and went to Mastriano walked back to her table and spoke briefly the Coachman to converse with Zenich. iggs communi- the Coachman to converse with Zenich. Biggs communi- with Razo and Souza. She informed them that she had with Razo and Souza. She informed them that she had cated to Zenich that he had spoken with Fava concern- been terminated. She then went to Fava's office and ing the conversation which Fava had had with Zenich. knockeated oing the conversation which Fava had had with Zenich. knocked on the door. Fava was inside the office seated He asked what could be done to resolve the matter. In at his desk. He had locked the door. He was upset and . Upon hearing * substance, Zenich expressed resentment over the fact was endeavoring to gain his composure. Upon hearing leisure the knock at the door, Fava walked over to the door, that Biggs would approach him in a bar, during leisure unlocked it, and opened it. He observerd Mstrno whoo hours, concerning the matter in question. Zenich stated unlocked it, and opened it. He observed Mastriano who that charges had already been filed, and there was noth- put her foot in the door in order to prevent Fava fromthat charges had already been filed, and there was noth- ing he could do about it. He expressed his opinion that the best thing Fava could do was to pay Mastriano off. " The foregoing findings are based on a composite of the credited tes- He est thing a fc ould do was to pay Matriano off. timony of Bruno Fava, John Kelly Connell, and Brenda Riley. I have He mentioned a figure of $3,000. Zenich recounted to carefully considered the testimony of Deborah Mastriano and of Joaquin Biggs the information which Mastriano had imparted to Razo as that testimony relates to the above incident. I reject that testimo- him concerning the various instances when Fava had al- ny. Razo was not a credible witness, and Mastriano's recounting of the legedly sexually harassed Mastriano. 3 3 episode impressed me as grossly inaccurate and carefully tailored to omit details which would redound adversely to her interest. At the same time, Mastriano's testimony contained embellishments which would place her IV. CONCLUSIONS actions in the best possible light and distort the conduct of Fava. I spe- cifically reject Mastriano's testimony on direct examination to the effect A. Prefatory findings that in the presence of Connell and Fava at the end of the bar she en- deavored in a totally dispassionate and rational manner to acquaint Fava This cases arises in context of an effort on the part of with the background of the charges made to his A and P account and Respondent's executive committee and of Bruno Fava, that he precluded any explanation. Moreover, I specifically reject Mas- th triano's testimony to the effect that in terminating her Fava said, "Yes, I know you have already been to the union. You're through." To credit this testimony would require a conclusion that Fava, Connell, and Riley L The foregoing is based on the credited testimony of Bruno Fava. I joined in a conspiracy to perjure themselves and concoct a tale destruc- have considered the testimony of Deborah Mastriano to the effect that tive of Mastriano's interests and supportive of that of Fava. I reject this she actually entered Fava's office, conversed with him, and heard and notion. Nothing in my observation of these three witnesses supports the observed him place a telephone call to his attorney. I interpret this testi- thesis and much in the category of evidence and the observations of this mony as a further example of embellishment calculated to place the con- factfinder is consistent with the conclusion, which I reach, that Mastriano duct of Bruno Fava in the most unfavorable light while strengthening the conducted herself in the aberrant, agitated, and angry manner found thrust of the case being presented on her behalf. above. Manifestly, as I observed Mastriano as she testified before me at " I credit that portion of the testimony of Bruno Fava and Ted the hearing, she is a person easily moved to emotion and the verge of Zenich, which is consistent with the above findings. I specifically reject tears. If there is present in this proceeding an intentional falsification of the testimony of Zenich to the effect that Fava told him in specific terms testimony to support vested interest, the tendency, if not propensity, re- that he had terminated Mastriano because she had charged drinks to his sided with Mastriano. A and P tab. I credit Fava's testimony to the effect that he summarized 3" The foregoing is based on the credited testimony of John Kelly Con- for Zenich's benefit the events leading to Mastriano's termination. nell and Bruno Fava. I specifically credit the testimony of Connell with " The foregoing is based primarily on the credited testimony of Ray respect to the remarks which Mastriano made to Fava in response to his Biggs. I have also considered the testimony of Ted Zenich and credit it statement signifying her termination, to the extent that it is consistent with the above findings. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sively louder tones each time. She appeared highly agi- closing it. Through the partially opened door, Mastriano tated. Connell was unable to complete his statement to said, "I have now got you." In so stating she laughed. Fava. Connell continued his effort to give an accounting Fava responded, "Get out. Please get out." He was able to Fava. Mastriano persisted in her loud interruptions to close the door."1 and Fava interjected with the instruction to Mastriano to Soon thereafter, Fava placed a telephone call to the quiet down and permit Connell to explain. Fava stated Coachman Bar to determine if Ted Zenich was there. He that he could only listen to one person at a time. Finally, knew that Zenich frequently patronized the Coachman Connell addressed Mastriano and stated that if she would Bar. He learned that Zenich was at the bar, and he went "shut up" he would be able to comply with her request. directly to the Coachman and spoke with Zenich. He Customers where in the bar, and Mastriano's voice had gave his version of the events which had transpired earli- reached a very high pitch. Finally, Fava raised his voice er that evening resulting in the termination of Mastriano. and addressed Mastriano. He stated, in substance, that Zenich expressed skepticism that Fava's explanation rep- she should keep her voice down and speak when she was resented the true reason for terminating Mastriano. spoken to. He added that he wanted to complete his dis- Zenich told Fava that Mastriano had spoken to him cussion with Connell. At this point, Mastriano repeated about Fava's harassment of her and proceeded to recount several times in a very agitated manner the question, several incidents of sexual harassment of Mastriano in- "What are you going to do, fire me?" In the process she volving Fava. Fava told Zenich that these claims were touched Fava once or twice on the arm as she spoke. Fi- preposterous. Zenich interjected, ". . . you've been a nally, Fava responded, "Sweetheart, if that is the way thorn in my side all these years." The dialogue continued you want it, you're fired. Go." Throughout this interlude with Zenich and Fava exchanging recriminations. 32 Riley was standing nearby.29 Mastriano responded, "I'111 Thereafter, Fava returned to his office and spoke with get you for this." She repeated this statement and added, Biggs who had come with his wife to the bar for a drink. "I'll have your ass for this." Fava walked away and as In substance, Fava told Biggs that he felt that he was he did so Mastriano shouted that she was going to the being "setup" in connection with the termination of Mas- Union. F ava responded, "Fine. G o a h ead ." F av a pro- triano. Biggs was a friend both of Fava and of Zenich. ceeded directly to his ottice.30 He took it upon himself to contact Zenich and went to Mastriano walked back to her table and spoke briefly the C h t cn r w . B c u ... n . „ „. . , ... * , . . the Coachman to converse with Zenich. Biggs commumi- with Razo and Souza. She informed them that she had c t Z t h had s w F conce., ,ee * * > te.1 oi- thi. wn to T7a' > c w n i cated to Zenich that he had spoken with Fava concern- knocked on the door. Fava was inside the office seated ing the conversation which Fava had had with Zenich. knocke on' the door. Fava was inside the office st .1. He asked what could be done to resolve the matter. In at his desk. He had locked the door. He was upset and s Z e r o t f , * . * r TT i. * ~~~~substance, Zenich expressed resentment over the fact was endeavoring to gain his composure. Upon hearing t Big u aproc h in br i l the knock at the door, Fava walked over to the door t h at B igg w o ul d approa 11 h lm l n a b ar, duning leisure the noc at he oorFav waked verto te dor, hours, concerning the matter in question. Zenich stated unlocked it, and opened it. He observed Mastriano who hat concesnhag ahe been f and Ze stateh put her foot in the door in order to prevent Fava from that charges had already been filed, and there was noth- ing he could do about it. He expressed his opinion that I Th forgoin fiding areba---ona-coposie-ofthecredted es- the best thing Fava could do was to pay Mastriano off. " The foregoing findings are based on a composite of the credited tcs- „ ,*_ mn ioe f u re <n rmn00 7eic * \. ,^. A » timony of Bruno Fava, John Kelly Connell, and Brenda Riley. I have H e mentioned a figure of $3,000. Zenich recounted to carefully considered the testimony of Deborah Mastriano and of Joaquin Biggs the information which Mastriano had imparted to Razo as that testimony relates to the above incident. I reject that testimo- him concerning the various instances when Fava had al- ny. Razo was not a credible witness, and Mastriano's recounting of the legedly Sexually harassed Mastriano. 3 3 episode impressed me as grossly inaccurate and carefully tailored to omit details which would redound adversely to her interest. At the same time, Mastriano's testimony contained embellishments which would place her IV. CONCLUSIONS actions in the best possible light and distort the conduct of Fava. I spe- cifically reject Mastriano's testimony on direct examination to the effect A. Prefatory findings that in the presence of Connell and Fava at the end of the bar she en- deavored in a totally dispassionate and rational manner to acquaint Fava This cases arises in context of an effort On the part of with the background of the charges made to his A and P account and Respondent's executive committee and of Bruno Fava, that he precluded any explanation. Moreover, I specifically reject Mas- h el sint m agr euctt h fo - triano's testimony to the effect that in terminatinghF said YeI the newly designated manager, to resuscitate the floun- know you have already been to the union. You're through." To credit this testimony would require a conclusion that Fava, Connell, and Riley The foregoing is based on the credited testimony of Bruno Fava. I joined in a conspiracy to perjure themselves and concoct a tale destruc- have considered the testimony of Deborah Mastriano to the effect that tive of Mastriano's interests and supportive of that of Fava. I reject this she actually entered Fava's office, conversed with him, and heard and notion. Nothing in my observation of these three witnesses supports the observed him place a telephone call to his attorney. I interpret this testi- thesis and much in the category of evidence and the observations of this mony as a further example of embellishment calculated to place the con- factfinder is consistent with the conclusion, which I reach, that Mastriano duct of Bruno Fava in the most unfavorable light while strengthening the conducted herself in the aberrant, agitated, and angry manner found thrust of the case being presented on her behalf. above. Manifestly, as I observed Mastriano as she testified before me at " I credit that portion of the testimony of Bruno Fava and Ted the hearing, she is a person easily moved to emotion and the verge of Zenich, which is consistent with the above findings. I specifically reject tears. If there is present in this proceeding an intentional falsification of the testimony of Zenich to the effect that Fava told him in specific terms testimony to support vested interest, the tendency, if not propensity, re- that he had terminated Mastriano because she had charged drinks to his sided with Mastriano. A and P tab. I credit Fava's testimony to the effect that he summarized 30 The foregoing is based on the credited testimony of John Kelly Con- for Zenich's benefit the events leading to Mastriano's termination. nell and Bruno Fava. I specifically credit the testimony of Connell with " The foregoing is based primarily on the credited testimony of Ray respect to the remarks which Mastriano made to Fava in response to his Biggs. I have also considered the testimony of Ted Zenich and credit it statement signifying her termination,.to the extent that it is consistent with the above findings. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sively louder tones each time. She appeared highly agi- closing it. Through the partially opened door, Mastriano tated. Connell was unable to complete his statement to said, "I have now got you." In so stating she laughed. Fava. Connell continued his effort to give an accounting Fava responded, "Get out. Please get out." He was able to Fava. Mastriano persisted in her loud interruptions to close the door."1 and Fava interjected with the instruction to Mastriano to Soon thereafter, Fava placed a telephone call to the quiet down and permit Connell to explain. Fava stated Coachman Bar to determine if Ted Zenich was there. He that he could only listen to one person at a time. Finally, knew that Zenich frequently patronized the Coachman Connell addressed Mastriano and stated that if she would Bar. He learned that Zenich was at the bar, and he went "shut up" he would be able to comply with her request. directly to the Coachman and spoke with Zenich. He Customers where in the bar, and Mastriano's voice had gave his version of the events which had transpired earli- reached a very high pitch. Finally, Fava raised his voice er that evening resulting in the termination of Mastriano. and addressed Mastriano. He stated, in substance, that Zenich expressed skepticism that Fava's explanation rep- she should keep her voice down and speak when she was resented the true reason for terminating Mastriano. spoken to. He added that he wanted to complete his dis- Zenich told Fava that Mastriano had spoken to him cussion with Connell. At this point, Mastriano repeated about Fava's harassment of her and proceeded to recount several times in a very agitated manner the question, several incidents of sexual harassment of Mastriano in- "What are you going to do, fire me?" In the process she volving Fava. Fava told Zenich that these claims were touched Fava once or twice on the arm as she spoke. Fi- preposterous. Zenich interjected, ". . . you've been a nally, Fava responded, "Sweetheart, if that is the way thorn in my side all these years." The dialogue continued you want it, you're fired. Go." Throughout this interlude with Zenich and Fava exchanging recriminations. 32 Riley was standing nearby.29 Mastriano responded, "I'111 Thereafter, Fava returned to his office and spoke with get you for this." She repeated this statement and added, Biggs who had come with his wife to the bar for a drink. "I'll have your ass for this." Fava walked away and as In substance, Fava told Biggs that he felt that he was he did so Mastriano shouted that she was going to the being "setup" in connection with the termination of Mas- Union. F ava responded, "Fine. G o a h ead ." F av a pro- triano. Biggs was a friend both of Fava and of Zenich. ceeded directly to his ottice.30 He took it upon himself to contact Zenich and went to Mastriano walked back to her table and spoke briefly the C h t cn r w . B c u ... n . „ „. . , ... * , . . the Coachman to converse with Zenich. Biggs commumi- with Razo and Souza. She informed them that she had c t Z t h had s w F conce., ,ee * * > te.1 01- th1. wen to T7a' > c w n i cated to Zenich that he had spoken with Fava concern- knocked on the door. Fava was inside the office seated ing the conversation which Fava had had with Zenich. knocke on' the door. Fava was inside the office st .1. He asked what could be done to resolve the matter. In at his desk. He had locked the door. He was upset and s Z e r o t f , * . * r TT i. * ~~~~substance, Zenich expressed resentment over the fact was endeavoring to gain his composure. Upon hearingn thatBigg u a c h in br i l the knock at the door, Fava walked over to the door t h at B igg w o ul d approa 11 h lm l n a b ar, duning leisure the noc at he oorFav waked verto te dor, hours, concerning the matter in question. Zenich stated unlocked it, and opened it. He observed Mastriano who hat concesnhag ahe been f and Ze stateh put her foot in the door in order to prevent Fava from that charges had already been filed, and there was noth- ing he could do about it. He expressed his opinion that ~~~ ----- ~~~~~~~~~~~the best thing Fava could do was to pay Mastriano off. I The foregoing findings are based on a composite of the credited tcs- te bs ting fav ol d w to pay 7astriano off. timony of Bruno Fava, John Kelly Connell, and Brenda Riley. I have H e mentioned a figure of $3,000. Zenich recounted to carefully considered the testimony of Deborah Mastriano and of Joaquin Biggs the information which Mastriano had imparted to Razo as that testimony relates to the above incident. I reject that testimo- him concerning the various instances when Fava had al- ny. Razo was not a credible witness, and Mastriano's recounting of the legedly Sexually harassed Mastriano. 3 3 episode impressed me as grossly inaccurate and carefully tailored to omit details which would redound adversely to her interest. At the same time, Mastriano's testimony contained embellishments which would place her IV. CONCLUSIONS actions in the best possible light and distort the conduct of Fava. I spe- cifically reject Mastriano's testimony on direct examination to the effect A. Prefatory findings that in the presence of Connell and Fava at the end of the bar she en- deavored in a totally dispassionate and rational manner to acquaint Fava This cases arises in context of an effort On the part of with the background of the charges made to his A and P account and Respondent's executive committee and of Bruno Fava, that he precluded any explanation. Moreover, I specifically reject Mas- h el sint m agr euctt h fo - triano's testimony to the effect that in terminatinghF said YeI the newly designated manager, to resuscitate the floun- know you have already been to the union. You're through." To credit this testimony would require a conclusion that Fava, Connell, and Riley The foregoing is based on the credited testimony of Bruno Fava. I joined in a conspiracy to perjure themselves and concoct a tale destruc- have considered the testimony of Deborah Mastriano to the effect that tive of Mastriano's interests and supportive of that of Fava. I reject this she actually entered Fava's office, conversed with him, and heard and notion. Nothing in my observation of these three witnesses supports the observed him place a telephone call to his attorney. I interpret this testi- thesis and much in the category of evidence and the observations of this mony as a further example of embellishment calculated to place the con- factfinder is consistent with the conclusion, which I reach, that Mastriano duct of Bruno Fava in the most unfavorable light while strengthening the conducted herself in the aberrant, agitated, and angry manner found thrust of the case being presented on her behalf. above. Manifestly, as I observed Mastriano as she testified before me at " I credit that portion of the testimony of Bruno Fava and Ted the hearing, she is a person easily moved to emotion and the verge of Zenich, which is consistent with the above findings. I specifically reject tears. If there is present in this proceeding an intentional falsification of the testimony of Zenich to the effect that Fava told him in specific terms testimony to support vested interest, the tendency, if not propensity, re- that he had terminated Mastriano because she had charged drinks to his sided with Mastriano. A and P tab. I credit Fava's testimony to the effect that he summarized 30 The foregoing is based on the credited testimony of John Kelly Con- for Zenich's benefit the events leading to Mastriano's termination. nell and Bruno Fava. I specifically credit the testimony of Connell with " The foregoing is based primarily on the credited testimony of Ray respect to the remarks which Mastriano made to Fava in response to his Biggs. I have also considered the testimony of Ted Zenich and credit it statement signifying her termination,.to the extent that it is consistent with the above findings. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sively louder tones each time. She appeared highly agi- closing it. Through the partially opened door, Mastriano tated. Connell was unable to complete his statement to said, "I have now got you." In so stating she laughed. Fava. Connell continued his effort to give an accounting Fava responded, "Get out. Please get out." He was able to Fava. Mastriano persisted in her loud interruptions to close the door."1 and Fava interjected with the instruction to Mastriano to Soon thereafter, Fava placed a telephone call to the quiet down and permit Connell to explain. Fava stated Coachman Bar to determine if Ted Zenich was there. He that he could only listen to one person at a time. Finally, knew that Zenich frequently patronized the Coachman Connell addressed Mastriano and stated that if she would Bar. He learned that Zenich was at the bar, and he went "shut up" he would be able to comply with her request. directly to the Coachman and spoke with Zenich. He Customers where in the bar, and Mastriano's voice had gave his version of the events which had transpired earli- reached a very high pitch. Finally, Fava raised his voice er that evening resulting in the termination of Mastriano. and addressed Mastriano. He stated, in substance, that Zenich expressed skepticism that Fava's explanation rep- she should keep her voice down and speak when she was resented the true reason for terminating Mastriano. spoken to. He added that he wanted to complete his dis- Zenich told Fava that Mastriano had spoken to him cussion with Connell. At this point, Mastriano repeated about Fava's harassment of her and proceeded to recount several times in a very agitated manner the question, several incidents of sexual harassment of Mastriano in- "What are you going to do, fire me?" In the process she volving Fava. Fava told Zenich that these claims were touched Fava once or twice on the arm as she spoke. Fi- preposterous. Zenich interjected, ". . . you've been a nally, Fava responded, "Sweetheart, if that is the way thorn in my side all these years." The dialogue continued you want it, you're fired. Go." Throughout this interlude with Zenich and Fava exchanging recriminations. 32 Riley was standing nearby.29 Mastriano responded, "I'111 Thereafter, Fava returned to his office and spoke with get you for this." She repeated this statement and added, Biggs who had come with his wife to the bar for a drink. "I'll have your ass for this." Fava walked away and as In substance, Fava told Biggs that he felt that he was he did so Mastriano shouted that she was going to the being "setup" in connection with the termination of Mas- Union. F ava responded, "Fine. G o a h ead ." F av a pro- triano. Biggs was a friend both of Fava and of Zenich. ceeded directly to his ottice.30 He took it upon himself to contact Zenich and went to Mastriano walked back to her table and spoke briefly the C h t cn r w . B c u ... n . „ „. . , ... * , . . the Coachman to converse with Zenich. Biggs commumi- with Razo and Souza. She informed them that she had c t Z t h had s w F conce., ,ee * .inte. Sh1 01- n we1. to Fa ' T7ic >n wcated to Zenich that he had spoken with Fava concern- knocked on the door. Fava was inside the office seated ing the conversation which Fava had had with Zenich. knocke on' the door. Fava was inside the office st .1. He asked what could be done to resolve the matter. In at his desk. He had locked the door. He was upset and s Z e r o t f , * . * r TT i. * ~~~~substance, Zenich expressed resentment over the fact was endeavoring to gain his composure. Upon hearingn thatBigg u a c h in br i l the knock at the door, Fava walked over to the door t h at B igg w o ul d approa 11 h lm l n a b ar, duning leisure the noc at he oorFav waked verto te dor, hours, concerning the matter in question. Zenich stated unlocked it, and opened it. He observed Mastriano who hat concesnhag ahe been f and Ze stateh put her foot in the door in order to prevent Fava from that charges had already been filed, and there was noth- ing he could do about it. He expressed his opinion that ~~~ ----- ~~~~~~~~~~~the best thing Fava could do was to pay Mastriano off. I The foregoing findings are based on a composite of the credited tcs- te bs ting fav ol d w to pay 7astriano off. timony of Bruno Fava, John Kelly Connell, and Brenda Riley. I have H e mentioned a figure of $3,000. Zenich recounted to carefully considered the testimony of Deborah Mastriano and of Joaquin Biggs the information which Mastriano had imparted to Razo as that testimony relates to the above incident. I reject that testimo- him concerning the various instances when Fava had al- ny. Razo was not a credible witness, and Mastriano's recounting of the legedly Sexually harassed Mastriano. 3 3 episode impressed me as grossly inaccurate and carefully tailored to omit details which would redound adversely to her interest. At the same time, Mastriano's testimony contained embellishments which would place her IV. CONCLUSIONS actions in the best possible light and distort the conduct of Fava. I spe- cifically reject Mastriano's testimony on direct examination to the effect A. Prefatory findings that in the presence of Connell and Fava at the end of the bar she en- deavored in a totally dispassionate and rational manner to acquaint Fava This cases arises in context of an effort On the part of with the background of the charges made to his A and P account and Respondent's executive committee and of Bruno Fava, that he precluded any explanation. Moreover, I specifically reject Mas- h el sint m agr euctt h fo - triano's testimony to the effect that in terminatinghF said YeI the newly designated manager, to resuscitate the floun- know you have already been to the union. You're through." To credit this testimony would require a conclusion that Fava, Connell, and Riley The foregoing is based on the credited testimony of Bruno Fava. I joined in a conspiracy to perjure themselves and concoct a tale destruc- have considered the testimony of Deborah Mastriano to the effect that tive of Mastriano's interests and supportive of that of Fava. I reject this she actually entered Fava's office, conversed with him, and heard and notion. Nothing in my observation of these three witnesses supports the observed him place a telephone call to his attorney. I interpret this testi- thesis and much in the category of evidence and the observations of this mony as a further example of embellishment calculated to place the con- factfinder is consistent with the conclusion, which I reach, that Mastriano duct of Bruno Fava in the most unfavorable light while strengthening the conducted herself in the aberrant, agitated, and angry manner found thrust of the case being presented on her behalf. above. Manifestly, as I observed Mastriano as she testified before me at " I credit that portion of the testimony of Bruno Fava and Ted the hearing, she is a person easily moved to emotion and the verge of Zenich, which is consistent with the above findings. I specifically reject tears. If there is present in this proceeding an intentional falsification of the testimony of Zenich to the effect that Fava told him in specific terms testimony to support vested interest, the tendency, if not propensity, re- that he had terminated Mastriano because she had charged drinks to his sided with Mastriano. A and P tab. I credit Fava's testimony to the effect that he summarized 30 The foregoing is based on the credited testimony of John Kelly Con- for Zenich's benefit the events leading to Mastriano's termination. nell and Bruno Fava. I specifically credit the testimony of Connell with " The foregoing is based primarily on the credited testimony of Ray respect to the remarks which Mastriano made to Fava in response to his Biggs. I have also considered the testimony of Ted Zenich and credit it statement signifying her termination,.to the extent that it is consistent with the above findings. HOLIDAY INN OF SANTA MARIA 661 dering Santa Maria enterprise, and to achieve efficiency union matters, as the testimony of Castaneda and Flores and cost-effective reorganization of the principal reve- would imply. nue-producing aspects of the operation. The case arises The initial challenge by an employee through the also against the backdrop of our ongoing, essentially Union to the "new broom" elements of Bruno Fava's arm's-length but generally harmonious relationship be- management effort involved Paul Flores and evolved tween Fava and the principal union officials, on the one from his honestly held conviction that Bruno and Frank hand, and of the Union and Respondent's owners, on the Fava had exploited him in their efforts to modify and im- other. No employee or union-sponsored initiative to prove the kitchen operation to serve their own personal counter Fava's managerial prerogatives accompanied the interests and "track record," so to speak. A second chal- transition of Fava from manager of the Vandenberg Inn, lenge, that of the Union relating to the termination of a union house, to the Holiday Inn, likewise unionized. Deborah Mastriano, involves more subtle undercurrents. Nothing in the background of either Bruno or Frank From the totality of my observation of witnesses called Fava had revealed a propensity on their part to oppose during the 5 days of the instant hearing, I am convinced, legitimate involvement of the Union in employment in- subliminally as it were, that there lurks at the founda- terests; and no evidence of record exists inferring antiun- tions of this case a smoldering resentment on the part of ion hostility on the part of Respondent's executive corm- Deborah Mastriano relating to elements of her employ- mittee, or ownership group. There is no history of unfair ment experience at the Vandenberg Inn under Bruno labor practices on the part of either Fava or the execu- Fava and to the delimiting effects of Fava's management tive committee, and Fava's management experienoe at policies upon her previous prerogatives, prequisites, and unionized enterprises had spanned many years. Explicit freedoms as a bar manager and bartender at the Holiday in the record is evidence that Bruno Fava expected effi- Inn, once Fava assumed management of that enterprise. ciency and dedication to duty, and desired adherence to There exists, as well, as an integral element of this case, the chain-of-command principle, but not to the exclusion a well-disguised, carefully controlled dislike of Bruno of the Union or the contractual and other legitimate visi- Fava on the part of Ted Zenich, the Union's principal tation rights of union representatives. In his regard, I officer, deriving from their years of association as man- conclude that Fava's announced intention to limit the agement-union adversaries. The threshold conclusion in daily visits of the Union's business agent, McGuinness, an analysis of this consolidated matter relating to the ter- establishes nothing more than a desire on his part to bal- mination of Deborah Mastriano, and one not lightly ar- ance management interest in maintaining productivity ticulated, is that Mastriano carefully orchestrated her ter- and work-time discipline against the rights of employees mination, building the constituent elements of her case to be collectively represented. Moreover, the evidence through a process of rationalization, exaggeration, magni- developed by the General Counsel revealing activities on fication, innuendo, and rumor-mongering so as to enmesh the part of some supervisors and leadership personnel to allies through a process of encapsulating hearsay. As I test the depth of support for the Union among rank-and- observed Mastriano testify before me at the hearing, it file employees is insufficient to show antiunion propensi- became manifest that she was an emotional woman easily ties on Fava's part. Not only does the record suggest moved to tears. I became convinced, upon careful, pains- that this activity was a spontaneous excursion on the part taking scrutiny of her at the hearing, that these traits had of a segment of the departmental leadership personnel, generic origins quite separate from the concurrence of but the General Counsel appears to have attached so her task of testifying concerning alleged sexual harass- little weight to the evidence that no allegation of unlaw- ment of her by Bruno Fava. During her testimony I ful conduct evolving from this activity was included in became convinced also that Mastriano feigned guileless- the complaint. 4 ness, a characteristic belied by reason of her own not un- For his part, Bruno Fava impressed me as a strong, sophisticated maturity; by her experience as a bartender confident manager possessed of firmly held notions of and waitress in an industry involving the continuous and operating proprieties and employee work obligations. At direct exposure of its personnel to influences, interplay, the same time, Bruno Fava impressed me also, as I ob- and effects of contemporary morals and mores; and by served him testify at the hearing before me, as an indi- the calculated skill with which she inserted into her testi- vidual of basic goodwill and candid openness. In tandem, mny a stream of consciousness embroidery of hearsay so to speak, his uncle, Frank Fava, impressed me as an and augmentation. essentially genteel man of courtly nature and a deeply Interference Restraint, nd Crcion held sense of commitment to professional standards in the practice of the cooking and culinary craft. Upon my At the outset, I conclude, in agreement with the Gen- evaluation of Frank Fava I find him to have been a corm- eral Counsel, that in speaking to his employees in De- pletely honest witness in terms of recounting to the best cember, in the course of his first meeting with the em- of his recollection the incidents to which he was a party, ployee group following his assumption of managership at and I am convinced that his essential nature is such as to the beleaguered Santa Maria enterprise of Respondent, preclude the likelihood that he would have spoken in the Bruno Fava unlawfully inhibited employees in their right profane manner (suggested by the testimony of Castan- freely to consult with their collective-bargaining repre- eda) or that he would act vindictively in personnel or sentative concerning terms and conditions of employ- ment by instructing them, upon threat of jeopardizing "The conduct was not time-barred by Sec. 0I(b) of the Act their job, to follow a chain-of-command procedure and HOLIDAY INN OF SANTA MARIA 661 dering Santa Maria enterprise, and to achieve efficiency union matters, as the testimony of Castaneda and Flores and cost-effective reorganization of the principal reve- would imply. nue-producing aspects of the operation. The case arises The initial challenge by an employee through the also against the backdrop of our ongoing, essentially Union to the "new broom" elements of Bruno Fava's arm's-length but generally harmonious relationship be- management effort involved Paul Flores and evolved tween Fava and the principal union officials, on the one from his honestly held conviction that Bruno and Frank hand, and of the Union and Respondent's owners, on the Fava had exploited him in their efforts to modify and im- other. No employee or union-sponsored initiative to prove the kitchen operation to serve their own personal counter Fava's managerial prerogatives accompanied the interests and "track record," so to speak. A second chal- transition of Fava from manager of the Vandenberg Inn, lenge, that of the Union relating to the termination of a union house, to the Holiday Inn, likewise unionized. Deborah Mastriano, involves more subtle undercurrents. Nothing in the background of either Bruno or Frank From the totality of my observation of witnesses called Fava had revealed a propensity on their part to oppose during the 5 days of the instant hearing, I am convinced, legitimate involvement of the Union in employment in- subliminally as it were, that there lurks at the founda- terests; and no evidence of record exists inferring antiun- tions of this case a smoldering resentment on the part of ion hostility on the part of Respondent's executive com- Deborah Mastriano relating to elements of her employ- mittee, or ownership group. There is no history of unfair ment experience at the Vandenberg Inn under Bruno labor practices on the part of either Fava or the execu- Fava and to the delimiting effects of Fava's management tive committee, and Fava's management experience at policies upon her previous prerogatives, prequisites, and unionized enterprises had spanned many years. Explicit freedoms as a bar manager and bartender at the Holiday in the record is evidence that Bruno Fava expected effi- Inn, once Fava assumed management of that enterprise. ciency and dedication to duty, and desired adherence to There exists, as well, as an integral element of this case, the chain-of-command principle, but not to the exclusion a well-disguised, carefully controlled dislike of Bruno of the Union or the contractual and other legitimate visi- Fava on the part of Ted Zenich, the Union's principal tation rights of union representatives. In his regard, I officer, deriving from their years of association as man- conclude that Fava's announced intention to limit the agement-union adversaries. The threshold conclusion in daily visits of the Union's business agent, McGuinness, an analysis of this consolidated matter relating to the ter- establishes nothing more than a desire on his part to bal- mination of Deborah Mastriano, and one not lightly ar- ance management interest in maintaining productivity ticulated, is that Mastriano carefully orchestrated her ter- and work-time discipline against the rights of employees mination, building the constituent elements of her case to be collectively represented. Moreover, the evidence through a process of rationalization, exaggeration, magni- developed by the General Counsel revealing activities on fication, innuendo, and rumor-mongering so as to enmesh the part of some supervisors and leadership personnel to allies through a process of encapsulating hearsay. As I test the depth of support for the Union among rank-and- observed Mastriano testify before me at the hearing, it file employees is insufficient to show antiunion propensi- became manifest that she was an emotional woman easily ties on Fava's part. Not only does the record suggest moved to tears. I became convinced, upon careful, pains- that this activity was a spontaneous excursion on the part taking scrutiny of her at the hearing, that these traits had of a segment of the departmental leadership personnel, generic origins quite separate from the concurrence of but the General Counsel appears to have attached so h e r task of testifying concerning alleged sexual harass- little weight to the evidence that no allegation of unlaw- ment of her by Bruno Fava. During her testimony I ful conduct evolving from this activity was included in became convinced also that Mastriano feigned guileless- the complaint. 3 4 n e s s, a characteristic belied by reason of her own not un- For his part, Bruno Fava impressed me as a strong, sophisticated maturity; by her experience as a bartender confident manager possessed of firmly held notions of an d w ai t r es s in an industry involving the continuous and operating proprieties and employee work obligations. At di r e c t exposure of its personnel to influences, interplay, the same time, Bruno Fava impressed me also, as I ob- a n d ef ec t s o f contemporary morals and mores; and by served him testify at the hearing before me, as an indi- t he calculated skill with which she inserted into her testi- vidual of basic goodwill and candid openness. In tandem, mony a s t r eam o f consciousness embroidery of hearsay so to speak, his uncle, Frank Fava, impressed me as an a n d augmentation. essentially genteel man of courtly nature and a deeply B. Interference, Restraint, and Coercion held sense of commitment to professional standards in the practice of the cooking and culinary craft. Upon my At the outset, I conclude, in agreement with the Gen- evaluation of Frank Fava I find him to have been a com- eral Counsel, that in speaking to his employees in De- pletely honest witness in terms of recounting to the best cember, in the course of his first meeting with the em- of his recollection the incidents to which he was a party, ployee group following his assumption of managership at and I am convinced that his essential nature is such as to the beleaguered Santa Maria enterprise of Respondent, preclude the likelihood that he would have spoken in the Bruno Fava unlawfully inhibited employees in their right profane manner (suggested by the testimony of Castan- freely to consult with their collective-bargaining repre- cda) or that he would act vindictively in personnel or sentative concerning terms and conditions of employ- ment by instructing them, upon threat of jeopardizing " The conduct was not time-barred by Sec. l0(b) of the Act. their job, to follow a chain-of-command procedure and HOLIDAY INN OF SANTA MARIA 661 dering Santa Maria enterprise, and to achieve efficiency union matters, as the testimony of Castaneda and Flores and cost-effective reorganization of the principal reve- would imply. nue-producing aspects of the operation. The case arises The initial challenge by an employee through the also against the backdrop of our ongoing, essentially Union to the "new broom" elements of Bruno Fava's arm's-length but generally harmonious relationship be- management effort involved Paul Flores and evolved tween Fava and the principal union officials, on the one from his honestly held conviction that Bruno and Frank hand, and of the Union and Respondent's owners, on the Fava had exploited him in their efforts to modify and im- other. No employee or union-sponsored initiative to prove the kitchen operation to serve their own personal counter Fava's managerial prerogatives accompanied the interests and "track record," so to speak. A second chal- transition of Fava from manager of the Vandenberg Inn, lenge, that of the Union relating to the termination of a union house, to the Holiday Inn, likewise unionized. Deborah Mastriano, involves more subtle undercurrents. Nothing in the background of either Bruno or Frank From the totality of my observation of witnesses called Fava had revealed a propensity on their part to oppose during the 5 days of the instant hearing, I am convinced, legitimate involvement of the Union in employment in- subliminally as it were, that there lurks at the founda- terests; and no evidence of record exists inferring antiun- tions of this case a smoldering resentment on the part of ion hostility on the part of Respondent's executive com- Deborah Mastriano relating to elements of her employ- mittee, or ownership group. There is no history of unfair ment experience at the Vandenberg Inn under Bruno labor practices on the part of either Fava or the execu- Fava and to the delimiting effects of Fava's management tive committee, and Fava's management experience at policies upon her previous prerogatives, prequisites, and unionized enterprises had spanned many years. Explicit freedoms as a bar manager and bartender at the Holiday in the record is evidence that Bruno Fava expected effi- Inn, once Fava assumed management of that enterprise. ciency and dedication to duty, and desired adherence to There exists, as well, as an integral element of this case, the chain-of-command principle, but not to the exclusion a well-disguised, carefully controlled dislike of Bruno of the Union or the contractual and other legitimate visi- Fava on the part of Ted Zenich, the Union's principal tation rights of union representatives. In his regard, I officer, deriving from their years of association as man- conclude that Fava's announced intention to limit the agement-union adversaries. The threshold conclusion in daily visits of the Union's business agent, McGuinness, an analysis of this consolidated matter relating to the ter- establishes nothing more than a desire on his part to bal- mination of Deborah Mastriano, and one not lightly ar- ance management interest in maintaining productivity ticulated, is that Mastriano carefully orchestrated her ter- and work-time discipline against the rights of employees mination, building the constituent elements of her case to be collectively represented. Moreover, the evidence through a process of rationalization, exaggeration, magni- developed by the General Counsel revealing activities on fication, innuendo, and rumor-mongering so as to enmesh the part of some supervisors and leadership personnel to allies through a process of encapsulating hearsay. As I test the depth of support for the Union among rank-and- observed Mastriano testify before me at the hearing, it file employees is insufficient to show antiunion propensi- became manifest that she was an emotional woman easily ties on Fava's part. Not only does the record suggest moved to tears. I became convinced, upon careful, pains- that this activity was a spontaneous excursion on the part taking scrutiny of her at the hearing, that these traits had of a segment of the departmental leadership personnel, generic origins quite separate from the concurrence of but the General Counsel appears to have attached so her task of testifying concerning alleged sexual harass- little weight to the evidence that no allegation of unlaw- ment of her by Bruno Fava. During her testimony I ful conduct evolving from this activity was included in became convinced also that Mastriano feigned guileless- the complaint. 3 4 n e s s, a characteristic belied by reason of her own not un- For his part, Bruno Fava impressed me as a strong, sophisticated maturity; by her experience as a bartender confident manager possessed of firmly held notions of and waitress in an industry involving the continuous and operating proprieties and employee work obligations. At di r e c t exposure of its personnel to influences, interplay, the same time, Bruno Fava impressed me also, as I ob- a n d ef ec t s o f contemporary morals and mores; and by served him testify at the hearing before me, as an indi- t he calculated skill with which she inserted into her testi- vidual of basic goodwill and candid openness. In tandem, mony a s t r eam o f consciousness embroidery of hearsay so to speak, his uncle, Frank Fava, impressed me as an a n d augmentation. essentially genteel man of courtly nature and a deeply B. Interference, Restraint, and Coercion held sense of commitment to professional standards in the practice of the cooking and culinary craft. Upon my At the outset, I conclude, in agreement with the Gen- evaluation of Frank Fava I find him to have been a com- eral Counsel, that in speaking to his employees in De- pletely honest witness in terms of recounting to the best cember, in the course of his first meeting with the em- of his recollection the incidents to which he was a party, ployee group following his assumption of managership at and I am convinced that his essential nature is such as to the beleaguered Santa Maria enterprise of Respondent, preclude the likelihood that he would have spoken in the Bruno Fava unlawfully inhibited employees in their right profane manner (suggested by the testimony of Castan- freely to consult with their collective-bargaining repre- cda) or that he would act vindictively in personnel or sentative concerning terms and conditions of employ- ment by instructing them, upon threat of jeopardizing " The conduct was not time-barred by Sec. l0(b) of the Act. their job, to follow a chain-of-command procedure and HOLIDAY INN OF SANTA MARIA 661 dering Santa Maria enterprise, and to achieve efficiency union matters, as the testimony of Castaneda and Flores and cost-effective reorganization of the principal reve- would imply. nue-producing aspects of the operation. The case arises The initial challenge by an employee through the also against the backdrop of our ongoing, essentially Union to the "new broom" elements of Bruno Fava's arm's-length but generally harmonious relationship be- management effort involved Paul Flores and evolved tween Fava and the principal union officials, on the one from his honestly held conviction that Bruno and Frank hand, and of the Union and Respondent's owners, on the Fava had exploited him in their efforts to modify and im- other. No employee or union-sponsored initiative to prove the kitchen operation to serve their own personal counter Fava's managerial prerogatives accompanied the interests and "track record," so to speak. A second chal- transition of Fava from manager of the Vandenberg Inn, lenge, that of the Union relating to the termination of a union house, to the Holiday Inn, likewise unionized. Deborah Mastriano, involves more subtle undercurrents. Nothing in the background of either Bruno or Frank From the totality of my observation of witnesses called Fava had revealed a propensity on their part to oppose during the 5 days of the instant hearing, I am convinced, legitimate involvement of the Union in employment in- subliminally as it were, that there lurks at the founda- terests; and no evidence of record exists inferring antiun- tions of this case a smoldering resentment on the part of ion hostility on the part of Respondent's executive com- Deborah Mastriano relating to elements of her employ- mittee, or ownership group. There is no history of unfair ment experience at the Vandenberg Inn under Bruno labor practices on the part of either Fava or the execu- Fava and to the delimiting effects of Fava's management tive committee, and Fava's management experience at policies upon her previous prerogatives, prequisites, and unionized enterprises had spanned many years. Explicit freedoms as a bar manager and bartender at the Holiday in the record is evidence that Bruno Fava expected effi- Inn, once Fava assumed management of that enterprise. ciency and dedication to duty, and desired adherence to There exists, as well, as an integral element of this case, the chain-of-command principle, but not to the exclusion a well-disguised, carefully controlled dislike of Bruno of the Union or the contractual and other legitimate visi- Fava on the part of Ted Zenich, the Union's principal tation rights of union representatives. In his regard, I officer, deriving from their years of association as man- conclude that Fava's announced intention to limit the agement-union adversaries. The threshold conclusion in daily visits of the Union's business agent, McGuinness, an analysis of this consolidated matter relating to the ter- establishes nothing more than a desire on his part to bal- mination of Deborah Mastriano, and one not lightly ar- ance management interest in maintaining productivity ticulated, is that Mastriano carefully orchestrated her ter- and work-time discipline against the rights of employees mination, building the constituent elements of her case to be collectively represented. Moreover, the evidence through a process of rationalization, exaggeration, magni- developed by the General Counsel revealing activities on fication, innuendo, and rumor-mongering so as to enmesh the part of some supervisors and leadership personnel to allies through a process of encapsulating hearsay. As I test the depth of support for the Union among rank-and- observed Mastriano testify before me at the hearing, it file employees is insufficient to show antiunion propensi- became manifest that she was an emotional woman easily ties on Fava's part. Not only does the record suggest moved to tears. I became convinced, upon careful, pains- that this activity was a spontaneous excursion on the part taking scrutiny of her at the hearing, that these traits had of a segment of the departmental leadership personnel, generic origins quite separate from the concurrence of but the General Counsel appears to have attached so her task of testifying concerning alleged sexual harass- little weight to the evidence that no allegation of unlaw- ment of her by Bruno Fava. During her testimony I ful conduct evolving from this activity was included in became convinced also that Mastriano feigned guileless- the complaint. 3 4 n e s s, a characteristic belied by reason of her own not un- For his part, Bruno Fava impressed me as a strong, sophisticated maturity; by her experience as a bartender confident manager possessed of firmly held notions of an d w ai t r es s in an industry involving the continuous and operating proprieties and employee work obligations. At di r e c t exposure of its personnel to influences, interplay, the same time, Bruno Fava impressed me also, as I ob- a n d ef ec t s o f contemporary morals and mores; and by served him testify at the hearing before me, as an indi- t he calculated skill with which she inserted into her testi- vidual of basic goodwill and candid openness. In tandem, mony a s t r eam o f consciousness embroidery of hearsay so to speak, his uncle, Frank Fava, impressed me as an a n d augmentation. essentially genteel man of courtly nature and a deeply B. Interference, Restraint, and Coercion held sense of commitment to professional standards in the practice of the cooking and culinary craft. Upon my At the outset, I conclude, in agreement with the Gen- evaluation of Frank Fava I find him to have been a com- eral Counsel, that in speaking to his employees in De- pletely honest witness in terms of recounting to the best cember, in the course of his first meeting with the em- of his recollection the incidents to which he was a party, ployee group following his assumption of managership at and I am convinced that his essential nature is such as to the beleaguered Santa Maria enterprise of Respondent, preclude the likelihood that he would have spoken in the Bruno Fava unlawfully inhibited employees in their right profane manner (suggested by the testimony of Castan- freely to consult with their collective-bargaining repre- cda) or that he would act vindictively in personnel or sentative concerning terms and conditions of employ- ment by instructing them, upon threat of jeopardizing " The conduct was not time-barred by Sec. l0(b) of the Act. their job, to follow a chain-of-command procedure and 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consult first with supervision and management before $3.60 contractually accorded fry cooks-an entry level contacting the Union. This limitation upon the exercise classification. Pointedly, Bruno Fava did not accede to of Section 7 rights violates Section 8(a)() of the Act Flores' complaint concerning the extent of his wage re- even though it did not exclude the Union entirely from duction, but merely referred him to Frank Fava who, by the consultative process and doubtlessly was closely re- inference at least, suggested that Flores' proper rate of lated to a perceived need to bring order out of a chaotic pay was that paid a fry cook. In due course, Frank Fava situation. See JLG Industries, Inc, 243 NLRB 540 (1979); relented to the degree of agreeing to effectuate a $3.75 Interstate Transport Security/ Division of PJR Enterprises, per hour wage rate, a rate 17 percent below Flores' aver- Inc., 240 NLRB 279, 278 (1979). age hourly rate under salary. Flores was not acquiescent It is on the basis of this impermissible instruction, I and he submitted his resignation, being unwilling to conclude and find, that the General Counsel, relying on a substantially reduced accept the burdens of the job at the substantially reduced testimony of witnesses favorable to Flores and Mas- . triano, endeavored to depict Bruno Fava as an overbear- re of p lea m ve the cut in pay was the ing manager bent on willfully disregarding the repre- movng orce i Flores' decision to submit his resigna- sentative rights of his employees and the prerogatives of tion Despite Respondent's contention otherwise, the the Union as their chosen collective-bargaining repre- entire context of the record establishes to my satisfaction sentative. The evidence, as I view it, presents a different that the substantial reduction in pay was the factor focus. At the outset, on the facts as I have found them, I which rendered the terms and conditions of his employ- discern nothing impermissible in the conduct or state- ment intolerable to Flores. ments of either Frank Fava or Bruno Fava, as they in- In conjunction with the foregoing, I further conclude volve Richard Castaneda and/or Paul Flores. Contrary and find that Bruno Fava caused the reduction in Flores' to the General Counsel, the statement forming the basis compensation below $4.25 because he knew that Flores of the 8(a)(1) allegations of the complaint contained no had endeavored to contact the Union concerning his dis- threats, and no implication of adverse consequence to pute over overtime compensation and he invoked his de- derive from any contact either Castaneda or Flores cision to place Flores on hourly wages as a cloak for his might make with the Union concerning their wages, retributive reduction in Flores' compensation. The ele- hours, or terms and conditions of employment. The limi- ments of a constructive discharge are thus present be- tation imposed by Bruno Fava upon Flores' use of the cause the reduction in Flores' wage rate caused, and was telephone during the lunch hour rush was entirely lawful intended to cause, a change in his condition of employ- and devoid of coercive effect, within the meaning of ment sufficient to force him to resign, and these changes Section 8(a)(1) ot the Act. were imposed because Flores had resorted to the Union. C. The Constructive Discharge of Paul Flores See N.LR.B. v. Holly Bra of California, Inc., 405 F.2d 870 (9th Cir. 1969), enfg. 164 NLRB 1112 (1967); Crystal I conclude and find that Respondent constructively Princeton Refining Company, 222 NLRB 1068 (1976). Re- discharged Paul Flores by reducing his rate of pay in a spondent correctly contends that Bruno Fava had manner and to the extent of causing him to proffer his reached a decision to withdraw ores' salary and co resignation. In this connection I find that the reduction pensate him on a hourly basis before he became aware in his hourly rate of pay, disclosed to him on February at h . . o. he 20, was the moving cause in Flores' decision to offer his that Flores was endeavoring to gai the iterposition of resignation. Finally, I find that Bruno Fava personally he UnionMoreover, the evidence establishes that ava intervened in the compensation process on or about Feb- chastised Flores for using the telephone during the lunch ruary 5 in a manner leading to the reduction in Flores' hour rush and not because he was contacting the Union. wage rate to a level below $4.25, the rate at which However, by reason of the telephone interlude, Fava Flores was initially compensated after being removed became fully aware that Flores was resorting to the from salary. Thus, the evidence establishes that, upon re- Union in pressing his overtime compensation claim. In viewing the paychecks to be issued on February 5, Fava the labor market that existed, and in light of Flores' ex- directed payroll personnel to compensate Flores at a rate perience as a cook and his demonstrated willingness to below $4.25. Fava appears not to have been specific as to take instructions from Frank Fava in the culinary arts, the lesser amount intended. Pertinent, however, is the there existed no discernible reason grounded in objective fact that the check representing a rate of $3.60 per business considerations for Fava to have accomplished hour-a reduction of 73 cents per hour from Flores' pre- the substantial reduction in hourly compensation which vious salary rate cleared-payroll and was issued on resulted. Frank Fava had leveled no criticism against February 20 without being countermanded by Fava. The Flores and had not sought Flores' termination. Only assumption is thus indulged that the $3.60 rate was the Flores' resort to the Union gives rational explanation for one intended by Fava. Fava was a cost-conscious man- the decision of Bruno Fava to reduce Flores' hourly rate ager keeping a tight rein on wage levels. The inference of pay and to acquiesce in a reduction to the level ac- to be drawn is that, having issued instructions to payroll corded new, relatively unskilled cooks. concerning Flores' rate of pay, Fava scrutinized the Feb- Upon the foregoing considerations I conclude and find ruary 20 paychecks, or at least Flores', and that he knew that the evidence preponderates in favor of a finding that the amount being proffered Flores on February 20 but Paul Flores was constructively discharged and Respond- permitted it to issue. I conclude therefore that Fava in- tended Flores to be compensated at the wage rate of 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consult first with supervision and management before $3.60 contractually accorded fry cooks-an entry level contacting the Union. This limitation upon the exercise classification. Pointedly, Bruno Fava did not accede to of Section 7 rights violates Section 8(a)(l) of the Act Flores' complaint concerning the extent of his wage re- even though it did not exclude the Union entirely from duction, but merely referred him to Frank Fava who, by the consultative process and doubtlessly was closely re- inference at least, suggested that Flores' proper rate of lated to a perceived need to bring order out of a chaotic pay was that paid a fry cook. In due course, Frank Fava situation. See JLG Industries, Inc, 243 NLRB 540 (1979); relented to the degree of agreeing to effectuate a $3.75 Interstate Transport Security/ Division of PJR Enterprises, per hour wage rate, a rate 17 percent below Flores' aver- Inc., 240 NLRB 279, 278 (1979). age hourly rate under salary. Flores was not acquiescent It is on the basis of this impermissible instruction, I and he submitted his resignation, being unwilling to conclude and find, that the General Counsel, relying on a th b o th j a substantially reduced testimony of witnesses favorable to Flores and Mas- ^ testmonyof wtneses avorble o Foresand as- rate of pay. Clearly, in my view, the cut in pay was the triano, endeavored to depict Bruno Fava as an overbear- m f i F ' deiso t s hi r ing manager bent on willfully disregarding the repre-moving force m Flores' decision to submit his resigna- sentative rights of his employees and the prerogatives of tion. Despite Respondent's contention otherwise, the the Union as their chosen collective-bargaining repre-_ entire c o n t e x t of the record establishes to my satisfaction sentative. The evidence, as I view it, presents a different that the substantial reduction in pay was the factor focus. At the outset, on the facts as I have found them, I which rendered the terms and conditions of his employ- discern nothing impermissible in the conduct or state- ment intolerable to Flores. ments of either Frank Fava or Bruno Fava, as they in- In conjunction with the foregoing, I further conclude volve Richard Castaneda and/or Paul Flores. Contrary and find that Bruno Fava caused the reduction in Flores' to the General Counsel, the statement forming the basis compensation below $4.25 because he knew that Flores of the 8(a)(l) allegations of the complaint contained no had endeavored to contact the Union concerning his dis- threats, and no implication of adverse consequence to pute over overtime compensation and he invoked his de- derive from any contact either Castaneda or Flores cision to place Flores on hourly wages as a cloak for his might make with the Union concerning their wages, retributive reduction in Flores' compensation. The ele- hours, or terms and conditions of employment. The limi- ments of a constructive discharge are thus present be- tation imposed by Bruno Fava upon Flores' use of the cause the reduction in Flores' wage rate caused, and was telephone during the lunch hour rush was entirely lawful intended to cause, a change in his condition of employ- and d e v o id of coercive effect, within the m ean in g of m en t su ffic ient to fo r c e him to resign, and these changes Section 8(a)(l) of the Act. were imposed because Flores had resorted to the Union. C. The Constructive Discharge of Paul Flores See N.LR.B. v. Holly Bra of California Inc., 405 F.2d 870 (9th Cir. 1969), enfg. 164 NLRB 1112 (1967); Crystal I conclude and find that Respondent constructively Princeton Refining Company, 222 NLRB 1068 (1976). Re- discharged Paul Flores by reducing his rate of pay in a spondent correctly contends that Bruno Fava had manner and to the extent of causing him to proffer his reached a decision to withdraw Fores' salary and com- resignation. In this connection I find that the reduction p h o a he in his hourly rate of pay, disclosed to him on February t F w e t g t intrps.i. o 20. was the moving cause in Flores' decision to offer his the Unon. Moreover, t o gad n the that onvo resignation. Finally, I find that Bruno Fava personally intervened in the compensation process on or about Feb- chastised Flores for using the telephone during the lunch ruary 5 in a manner leading to the reduction in Flores' hour rush and not because he was contacting the Union. wage rate to a level below $4.25, the rate at which However, by reason of the telephone interlude, Fava Flores was initially compensated after being removed became fully aware that Flores was resorting to the from salary. Thus, the evidence establishes that, upon re- Union in pressing his overtime compensation claim. In viewing the paychecks to be issued on February 5, Fava the labor market that existed, and in light of Flores' ex- directed payroll personnel to compensate Flores at a rate perience as a cook and his demonstrated willingness to below $4.25. Fava appears not to have been specific as to take instructions from Frank Fava in the culinary arts, the lesser amount intended. Pertinent, however, is the there existed no discernible reason grounded in objective fact that the check representing a rate of $3.60 per business considerations for Fava to have accomplished hour-a reduction of 73 cents per hour from Flores' pre- the substantial reduction in hourly compensation which vious salary rate cleared-payroll and was issued on resulted. Frank Fava had leveled no criticism against February 20 without being countermanded by Fava. The Flores and had not sought Flores' termination. Only assumption is thus indulged that the $3.60 rate was the Flores' resort to the Union gives rational explanation for one intended by Fava. Fava was a cost-conscious man- the decision of Bruno Fava to reduce Flores' hourly rate ager keeping a tight rein on wage levels. The inference of pay and to acquiesce in a reduction to the level ac- to be drawn is that, having issued instructions to payroll corded new, relatively unskilled cooks. concerning Flores' rate of pay, Fava scrutinized the Feb- Upon the foregoing considerations I conclude and find ruary 20 paychecks, or at leastFlores', and that he knew that the evidence preponderates in favor of a finding that the amount being proffered Fores on February 20 but Paul Fores was constructively discharged and Respond- permitted it to issue. I conclude therefore that Fava in- ent thereby violated Section 8(a)(1) and (3) of the Act. tended Flores to be compensated at the wage rate of 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consult first with supervision and management before $3.60 contractually accorded fry cooks-an entry level contacting the Union. This limitation upon the exercise classification. Pointedly, Bruno Fava did not accede to of Section 7 rights violates Section 8(a)(l) of the Act Flores' complaint concerning the extent of his wage re- even though it did not exclude the Union entirely from duction, but merely referred him to Frank Fava who, by the consultative process and doubtlessly was closely re- inference at least, suggested that Flores' proper rate of lated to a perceived need to bring order out of a chaotic pay was that paid a fry cook. In due course, Frank Fava situation. See JLG Industries, Inc, 243 NLRB 540 (1979); relented to the degree of agreeing to effectuate a $3.75 Interstate Transport Security/ Division of PJR Enterprises, per hour wage rate, a rate 17 percent below Flores' aver- Inc., 240 NLRB 279, 278 (1979). age hourly rate under salary. Flores was not acquiescent It is on the basis of this impermissible instruction, I and he submitted his resignation, being unwilling to conclude and find, that the General Counsel, relying on a th b o th j a substantially reduced testimony of witnesses favorable to Flores and Mas- ^ testmonyof wtneses avorble o Foresand as- rate of pay. Clearly, in my view, the cut in pay was the triano, endeavored to depict Bruno Fava as an overbear- m f i F ' di.. b hi r ing manager bent on willfully disregarding the repre-moving force m Flores' decision to submit his resigna- sentative rights of his employees and the prerogatives of tion. Despite Respondent's contention otherwise, the the Union as their chosen collective-bargaining repre-_ entire context of the record establishes to my satisfaction sentative. The evidence, as I view it, presents a different that the substantial reduction in pay was the factor focus. At the outset, on the facts as I have found them, I which rendered the terms and conditions of his employ- discern nothing impermissible in the conduct or state- ment intolerable to Flores. ments of either Frank Fava or Bruno Fava, as they in- In conjunction with the foregoing, I further conclude volve Richard Castaneda and/or Paul Flores. Contrary and find that Bruno Fava caused the reduction in Flores' to the General Counsel, the statement forming the basis compensation below $4.25 because he knew that Flores of the 8(a)(l) allegations of the complaint contained no had endeavored to contact the Union concerning his dis- threats, and no implication of adverse consequence to pute over overtime compensation and he invoked his de- derive from any contact either Castaneda or Flores cision to place Flores on hourly wages as a cloak for his might make with the Union concerning their wages, retributive reduction in Flores' compensation. The ele- hours, or terms and conditions of employment. The limi- ments of a constructive discharge are thus present be- tation imposed by Bruno Fava upon Flores' use of the cause the reduction in Flores' wage rate caused, and was telephone during the lunch hour rush was entirely lawful intended to cause, a change in his condition of employ- an d devoid of coercive effect, within the m ean in g of m en t su ffic ient to force him to resign, and these changes Section 8(a)(l) of the Act. were imposed because Flores had resorted to the Union. C. The Constructive Discharge of Paul Flores See N.LR.B. v. Holly Bra of California Inc., 405 F.2d 870 (9th Cir. 1969), enfg. 164 NLRB 1112 (1967); Crystal I conclude and find that Respondent constructively Princeton Refining Company, 222 NLRB 1068 (1976). Re- discharged Paul Flores by reducing his rate of pay in a spondent correctly contends that Bruno Fava had manner and to the extent of causing him to proffer his reached a decision to withdraw Fores' salary and com- resignation. In this connection I find that the reduction p h o a he in his hourly rate of pay, disclosed to him on February t F w e t g t intrps.i. o 20. was the moving cause in Flores' decision to offer his the Unon. Moreover, t o gad n the that onvo resignation. Finally, I find that Bruno Fava personally intervened in the compensation process on or about Feb- chastised Flores for using the telephone during the lunch ruary 5 in a manner leading to the reduction in Flores' hour rush and not because he was contacting the Union. wage rate to a level below $4.25, the rate at which However, by reason of the telephone interlude, Fava Flores was initially compensated after being removed became fully aware that Flores was resorting to the from salary. Thus, the evidence establishes that, upon re- Union in pressing his overtime compensation claim. In viewing the paychecks to be issued on February 5, Fava the labor market that existed, and in light of Flores' ex- directed payroll personnel to compensate Flores at a rate perience as a cook and his demonstrated willingness to below $4.25. Fava appears not to have been specific as to take instructions from Frank Fava in the culinary arts, the lesser amount intended. Pertinent, however, is the there existed no discernible reason grounded in objective fact that the check representing a rate of $3.60 per business considerations for Fava to have accomplished hour-a reduction of 73 cents per hour from Flores' pre- the substantial reduction in hourly compensation which vious salary rate cleared-payroll and was issued on resulted. Frank Fava had leveled no criticism against February 20 without being countermanded by Fava. The Flores and had not sought Flores' termination. Only assumption is thus indulged that the $3.60 rate was the Flores' resort to the Union gives rational explanation for one intended by Fava. Fava was a cost-conscious man- the decision of Bruno Fava to reduce Flores' hourly rate ager keeping a tight rein on wage levels. The inference of pay and to acquiesce in a reduction to the level ac- to be drawn is that, having issued instructions to payroll corded new, relatively unskilled cooks. concerning Flores' rate of pay, Fava scrutinized the Feb- Upon the foregoing considerations I conclude and find ruary 20 paychecks, or at leastFlores', and that he knew that the evidence preponderates in favor of a finding that the amount being proffered Fores on February 20 but Paul Fores was constructively discharged and Respond- permitted it to issue. I conclude therefore that Fava in- ent thereby violated Section 8(a)(1) and (3) of the Act. tended Flores to be compensated at the wage rate of 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to consult first with supervision and management before $3.60 contractually accorded fry cooks-an entry level contacting the Union. This limitation upon the exercise classification. Pointedly, Bruno Fava did not accede to of Section 7 rights violates Section 8(a)(l) of the Act Flores' complaint concerning the extent of his wage re- even though it did not exclude the Union entirely from duction, but merely referred him to Frank Fava who, by the consultative process and doubtlessly was closely re- inference at least, suggested that Flores' proper rate of lated to a perceived need to bring order out of a chaotic pay was that paid a fry cook. In due course, Frank Fava situation. See JLG Industries, Inc, 243 NLRB 540 (1979); relented to the degree of agreeing to effectuate a $3.75 Interstate Transport Security/ Division of PJR Enterprises, per hour wage rate, a rate 17 percent below Flores' aver- Inc., 240 NLRB 279, 278 (1979). age hourly rate under salary. Flores was not acquiescent It is on the basis of this impermissible instruction, I and he submitted his resignation, being unwilling to conclude and find, that the General Counsel, relying on a th b o th j a substantially reduced testimony of witnesses favorable to Flores and Mas- ^ testmonyof wtneses avorble o Foresand as- rate of pay. Clearly, in my view, the cut in pay was the triano, endeavored to depict Bruno Fava as an overbear- m f i F ' deiso t s hi r ing manager bent on willfully disregarding the repre-moving force m Flores' decision to submit his resigna- sentative rights of his employees and the prerogatives of tion. Despite Respondent's contention otherwise, the the Union as their chosen collective-bargaining repre-_ entire context of the record establishes to my satisfaction sentative. The evidence, as I view it, presents a different that the substantial reduction in pay was the factor focus. At the outset, on the facts as I have found them, I which rendered the terms and conditions of his employ- discern nothing impermissible in the conduct or state- ment intolerable to Flores. ments of either Frank Fava or Bruno Fava, as they in- In conjunction with the foregoing, I further conclude volve Richard Castaneda and/or Paul Flores. Contrary and find that Bruno Fava caused the reduction in Flores' to the General Counsel, the statement forming the basis compensation below $4.25 because he knew that Flores of the 8(a)(l) allegations of the complaint contained no had endeavored to contact the Union concerning his dis- threats, and no implication of adverse consequence to pute over overtime compensation and he invoked his de- derive from any contact either Castaneda or Flores cision to place Flores on hourly wages as a cloak for his might make with the Union concerning their wages, retributive reduction in Flores' compensation. The ele- hours, or terms and conditions of employment. The limi- ments of a constructive discharge are thus present be- tation imposed by Bruno Fava upon Flores' use of the cause the reduction in Flores' wage rate caused, and was telephone during the lunch hour rush was entirely lawful intended to cause, a change in his condition of employ- an d devoid of coercive effect, within the m ean in g of ment sufficient to force him to resign, and these changes Section 8(a)(l) of the Act. were imposed because Flores had resorted to the Union. C. The Constructive Discharge of Paul Flores See N.LR.B. v. Holly Bra of California Inc., 405 F.2d 870 (9th Cir. 1969), enfg. 164 NLRB 1112 (1967); Crystal I conclude and find that Respondent constructively Princeton Refining Company, 222 NLRB 1068 (1976). Re- discharged Paul Flores by reducing his rate of pay in a spondent correctly contends that Bruno Fava had manner and to the extent of causing him to proffer his reached a decision to withdraw Fores' salary and com- resignation. In this connection I find that the reduction p h o a he in his hourly rate of pay, disclosed to him on February t F w e t g t intrps.i. o 20. was the moving cause in Flores' decision to offer his the Unon. Moreover, t o gad n the that onvo resignation. Finally, I find that Bruno Fava personally intervened in the compensation process on or about Feb- chastised Flores for using the telephone during the lunch ruary 5 in a manner leading to the reduction in Flores' hour rush and not because he was contacting the Union. wage rate to a level below $4.25, the rate at which However, by reason of the telephone interlude, Fava Flores was initially compensated after being removed became fully aware that Flores was resorting to the from salary. Thus, the evidence establishes that, upon re- Union in pressing his overtime compensation claim. In viewing the paychecks to be issued on February 5, Fava the labor market that existed, and in light of Flores' ex- directed payroll personnel to compensate Flores at a rate perience as a cook and his demonstrated willingness to below $4.25. Fava appears not to have been specific as to take instructions from Frank Fava in the culinary arts, the lesser amount intended. Pertinent, however, is the there existed no discernible reason grounded in objective fact that the check representing a rate of $3.60 per business considerations for Fava to have accomplished hour-a reduction of 73 cents per hour from Flores' pre- the substantial reduction in hourly compensation which vious salary rate cleared-payroll and was issued on resulted. Frank Fava had leveled no criticism against February 20 without being countermanded by Fava. The Flores and had not sought Flores' termination. Only assumption is thus indulged that the $3.60 rate was the Flores' resort to the Union gives rational explanation for one intended by Fava. Fava was a cost-conscious man- the decision of Bruno Fava to reduce Flores' hourly rate ager keeping a tight rein on wage levels. The inference of pay and to acquiesce in a reduction to the level ac- to be drawn is that, having issued instructions to payroll corded new, relatively unskilled cooks. concerning Flores' rate of pay, Fava scrutinized the Feb- Upon the foregoing considerations I conclude and find ruary 20 paychecks, or at leastFlores', and that he knew that the evidence preponderates in favor of a finding that the amount being proffered Fores on February 20 but Paul Fores was constructively discharged and Respond- permitted it to issue. I conclude therefore that Fava in- ent thereby violated Section 8(a)(1) and (3) of the Act. tended Flores to be compensated at the wage rate of HOLIDAY INN OF SANTA MARIA 663 D. The Termination of Deborah Mastriano action to bring her employment to an end. Rather, the I find that the General Counsel failed to prove by the totality of the evidence establishes that Fava was being preponderance of the credible evidence that Bruno Fava very circumspect not to force the issue of Mastano's terminated Deborah Mastriano because she engaged in continued tenure and may have been influenced in this union or other protected concerted activities. Rather, I respect by the fact that he had once before been charged find that Mastriano was terminated for gross insubordina- with a violation of the Act in the effectuation of Paul tion and that Fava acted spontaneously as a consequence Flores' resignation, and by the active ongoing interest of severe provocation provided by Mastriano's loud, re- being demonstrated in Mastriano's complaints by repre- petitive verbal challenges in proximity of customers sentatives of the Union."3 The relationship in terms of during business hours. I further find that Fava had not time between the episode involving Flores and the planned Mastriano's termination and that antiunion or le- events of November 28 is remote, and supplies no com- gally impermissible motivation arising from Mastriano's pelling nexus to the action taken with respect to Mas- involvement in protected concerted activity was no- triano. I find on the record as a whole that, on Novem- where present. ber 28 through words and actions, Mastriano intentional- The General Counsel contends that Fava terminated ly provoked Fava into terminating her and that Fava re- Mastriano because she had complained to the Union on sponded solely out of agitation and anger generated by her own behalf, and in the interest of other cocktail wait- Mastriano's conduct during the course of the exchange resses, concerning the nature of the uniforms which they which took place at the end of the bar in the presence of had been instructed to wear, and that these complaints Connell. I find no violation of the Act evolving from caused Fava to contrive pretexts for justifying Mas- this conduct. triano's termination. I view the record differently and Upon the foregoing findings of fact, and upon the conclude that Fava's asserted anger at Mastriano over entire record in this proceeding, I make the following: the uniform issue was a bogus issue contrived by Mas- triano and given credence by Zenich in an effort to CONCLUSIONS OF LAW launch an assault upon Fava's management techniques 1. Holiday Inn of Santa Maria is an employer engaged and code of discipline which had served to intrude upon i ii o Sei in commerce within the meaning of Section 2(2), (6), and Mastriano's past prequisites as a bartender. The record f t nowhere supports the notion that in Fava's mind the dis- (7) of the Act enchantment of the cocktail waitresses generally, and the 2. Culinary Alliance and Bartenders Union, Local No. complaints of Mastriano, specifically, with respect to the 703, Hotel & Restaurant Employees and Bartenders In- uniforms, had become a matter of cardinal importance uniforms, had become a matter of cardinal importance ternational Union, AFL-CIO, is a labor organization sufficient to justify a showdown. Rather, separate from wit h n t h e meaning of Section 2(5) of the Act. the carefully orchestrated testimony of Mastriano and 3. By instructing employees not to go to the Union Zenich, the record reveals that Fava first endeavored to concerning work related problems until after they had accommodate Mastriano on the issue of modifying the discussed the problem with their supervisors and man- uniform, later experienced transitory anger over the ob- agement, and inferring that their jobs would be jeopard- jections being lodged by Mastriano about the uniform, ized if they did not do so, Respondent interfered with, acquiesced in Mastriano's wearing of the modified uni- restrained, and coerced employees in the exercise of form, and finally permitted her to cease wearing the uni- rights guaranteed them in Section 7 of the Act and en- form entirely. Absent in this case is a sufficient showing gaged in conduct in violation of Section 8(a)(l) of the on the part of the General Counsel that Fava took any Act. exceptional actions with respect to the uniform issue. He 4. By substantially reducing the hourly wage rate of advised Dr. Ikola, the stockholder who had initially se- Paul Flores because he had consulted with the Union lected the uniforms, and then communicated to the cock- concerning a dispute over the amount of overtime con- tail waitresses that Dr. Ikola preferred the uniforms to be pensation due him, Respondent constructively terminated worn, if possible. Beyond this he responded in a dispas- Flores on March 2, 1979. sionate manner to union officials who solicited his re- 5. Respondent engaged in no other conduct violative sponse. This falls far short of the cause celebre scenario of the Act. depicted by Mastriano and advanced in support of the complaint by the General Counsel. The purported cool- THE REMEDY ing of Fava's attitude toward Mastriano incident to the i i r uniform complaint has explanation having to do with the Havig found that Respondent engaged i certain self-oriented recalcitrance of Mastriano toward the con- un fa n r labor practices, I shall recommend that it cease cept of a computer bar, her refusal to report during a desig toerefrm and take certain affiatie act weekend to assist in the installation of a segment of it, d es n ed o effecuae he policies of he Ac. and Fava's identification of Mastriano as an employee Having found that Respondent constructively dis- engaged in gambling on the premises through the roll of charged Paul Flores on March 2, 1979, I shall recom- dice. In any event, although the record warrants the mend that Respondent be ordered to offer Flores imme- conclusion that Fava reached a point of exasperation with Mastriano, causing him to welcome a decision on Moreover, if Fava had been guilty of a process of sexual harassment involving Mastriano it is doubtful that in the face of union interest in her part to find employment elsewhere, the record, in Mastriano's other complaints he would have nonetheless carefully my view, falls short of establishing that Fava took overt planned her termination thus inviting her wrath and legal recourse. HOLIDAY INN OF SANTA MARIA 663 D. The Termination of Deborah Mastriano action to bring her employment to an end. Rather, the I find that the General Counsel failed to prove by the totality o f t h e ev id e n c e establishes that Fava was being preponderance of the credible evidence that Bruno Fava v circumspect not to force the issue of Mastnano's terminated Deborah Mastriano because she engaged in continued tenure and may have been influenced in this union or other protected concerted activities. Rather, I respect by t h e f a ct t h a t he had once before been charged find that Mastriano was terminated for gross insubordina- w it h a v io latio n o f t h e Act i th e effectuation of Paul tion and that Fava acted spontaneously as a consequence F lo r es' resignation, and by the active ongoing interest of severe provocation provided by Mastriano's loud, re- being demonstrated in Mastriano's complaints by repre- petitive verbal challenges in proximity of customers sentatives of the Union."3 The relationship in terms of during business hours. I further find that Fava had not t im e between the episode involving Flores and the planned Mastriano's termination and that antiunion or le- events of November 28 is remote, and supplies no com- gally impermissible motivation arising from Mastriano's pelling nexus to the action taken with respect to Mas- involvement in protected concerted activity was no- triano. I find on the record as a whole that, on Novem- where present, ber 28 through words and actions, Mastriano intentional- The General Counsel contends that Fava terminated ly provoked Fava into terminating her and that Fava re- Mastriano because she had complained to the Union on sponded solely out of agitation and anger generated by her own behalf, and in the interest of other cocktail wait- Mastriano's conduct during the course of the exchange resses, concerning the nature of the uniforms which they which took place at the end of the bar in the presence of had been instructed to wear, and that these complaints Connell. I find no violation of the Act evolving from caused Fava to contrive pretexts for justifying Mas- this conduct. triano's termination. I view the record differently and Upon the foregoing findings of fact, and upon the conclude that Fava's asserted anger at Mastriano over entire record in this proceeding, I make the following: the uniform issue was a bogus issue contrived by Mas- triano and given credence by Zenich in an effort to CONCLUSIONS OF LAW la un c h an assau l t upon Fava's management techniques 1. Holiday Inn of Santa Maria is an employer engaged and code of discipline which had served to intrude upon i witi the mai of S ion 22 A .... , * ... , , - * . ~~~~in commerce within the meaning of Section 2(2), (6), and Mastriano's past prequisites as a bartender. The record f th Act nowhere supports the notion that in Fava's mind the dis- 2. Cla A a B U, Loa . enchantment of the cocktail waitresses generally, and the 70 otl Rs A l l urante and Bartenders Union, Local No. complaints of Mastriano, specifically, with respect to the 70 3 H o t e l U ostaurant Employees and Bartenders In- uniforms, had become a matter of cardinal importance ternational Union, AFL-CIO is a labor organization sufficient to justify a showdown. Rather, separate from wi t h in t h e meaning of Section 2(5) of the Act. the carefully orchestrated testimony of Mastriano and 3. By instructing employees not to go to the Union Zenich, the record reveals that Fava first endeavored to concerning work related problems until after they had accommodate Mastriano on the issue of modifying the discussed the problem with their supervisors and man- uniform, later experienced transitory anger over the ob- agement, and inferring that their jobs would be jeopard- jections being lodged by Mastriano about the uniform, ized if they did not do so, Respondent interfered with, acquiesced in Mastriano's wearing of the modified uni- restrained, and coerced employees in the exercise of form, and finally permitted her to cease wearing the uni- rights guaranteed them in Section 7 of the Act and en- form entirely. Absent in this case is a sufficient showing gaged in conduct in violation of Section 8(a)(l) of the on the part of the General Counsel that Fava took any Act. exceptional actions with respect to the uniform issue. He 4. By substantially reducing the hourly wage rate of advised Dr. Ikola, the stockholder who had initially se- Paul Flores because he had consulted with the Union lected the uniforms, and then communicated to the cock- concerning a dispute over the amount of overtime com- tail waitresses that Dr. Ikola preferred the uniforms to be pensation due him, Respondent constructively terminated worn, if possible. Beyond this he responded in a dispas- Flores on March 2, 1979. sionate manner to union officials who solicited his re- 5. Respondent engaged in no other conduct violative sponse. This falls far short of the cause celebre scenario of the Act. depicted by Mastriano and advanced in support of the complaint by the General Counsel. The purported cool- THE REMEDY ing of Fava's attitude toward Mastriano incident to the HavinRe ea in cra uniform complaint has explanation having to do with the Having found that Respondent engaged mn certain self-oriented recalcitrance of Mastriano toward the con un f a ir labor practices, I shall recommend that it cease selforintedreclciranc ofMastian toard he on- and desist therefrom and take certain affirmative action cept of a computer bar, her refusal to report during a d es in toefectuate the cesthe act. weekend to assist in the installation of a segment of it, d esign ed to effectuate the policies of the Act. and Fava's identification of Mastriano as an employee Having found that Respondent constructively dis- engaged in gambling on the premises through the roll of charged Paul Flores on March 2, 1979, I shall recom- dice. In any event, although the record warrants the mend that Respondent be ordered to offer Flores imme- conclusion that Fava reached a point of exasperation with Mastriano, causing him to welcome a decision on Moreover, if Fava had been guilty of a process ofsexual harassment involving Mastriano it is doubtful that in the face of union interest in her part to find employment elsewhere, the record, in Mastriano's other complaints he would have nonetheless carefully my view, falls short of establishing that Fava took overt planned her termination thus inviting her wrath and legal recourse. HOLIDAY INN OF SANTA MARIA 663 D. The Termination of Deborah Mastriano action to bring her employment to an end. Rather, the I find that the General Counsel failed to prove by the totality o f t h e ev id e n c e establishes that Fava was being preponderance of the credible evidence that Bruno Fava v circumspect not to force the issue of Mastnano's terminated Deborah Mastriano because she engaged in continued tenure and may have been influenced in this union or other protected concerted activities. Rather, I respect by t h e f a ct t h a t he had once before been charged find that Mastriano was terminated for gross insubordina- w it h a v io latio n o f t h e Act i th e effectuation of Paul tion and that Fava acted spontaneously as a consequence Flores' resignation, and by the active ongoing interest of severe provocation provided by Mastriano's loud, re- being demonstrated in Mastriano's complaints by repre- petitive verbal challenges in proximity of customers sentatives of the Union."3 The relationship in terms of during business hours. I further find that Fava had not t im e between the episode involving Flores and the planned Mastriano's termination and that antiunion or le- events of November 28 is remote, and supplies no com- gally impermissible motivation arising from Mastriano's pelling nexus to the action taken with respect to Mas- involvement in protected concerted activity was no- triano. I find on the record as a whole that, on Novem- where present, ber 28 through words and actions, Mastriano intentional- The General Counsel contends that Fava terminated ly provoked Fava into terminating her and that Fava re- Mastriano because she had complained to the Union on sponded solely out of agitation and anger generated by her own behalf, and in the interest of other cocktail wait- Mastriano's conduct during the course of the exchange resses, concerning the nature of the uniforms which they which took place at the end of the bar in the presence of had been instructed to wear, and that these complaints Connell. I find no violation of the Act evolving from caused Fava to contrive pretexts for justifying Mas- this conduct. triano's termination. I view the record differently and Upon the foregoing findings of fact, and upon the conclude that Fava's asserted anger at Mastriano over entire record in this proceeding, I make the following: the uniform issue was a bogus issue contrived by Mas- triano and given credence by Zenich in an effort to CONCLUSIONS OF LAW la un c h an assau l t upon Fava's management techniques 1. Holiday Inn of Santa Maria is an employer engaged and code of discipline which had served to intrude upon i witi the mai of S ion 22 A .... , * ... , , - * . ~~~~in commerce within the meaning of Section 2(2), (6), and Mastriano's past prequisites as a bartender. The record f th Act nowhere supports the notion that in Fava's mind the dis- 2. Cla A a B U, Loa . enchantment of the cocktail waitresses generally, and the 70 otl Rs A l l urante and Bartenders Union, Local No. complaints of Mastriano, specifically, with respect to the 7 0 3 H o t e l U nntaurant Employees and Bartenders In- uniforms, had become a matter of cardinal importance ternational Union, AFL-CIO is a labor organization sufficient to justify a showdown. Rather, separate from wi t h in t h e meaning of Section 2(5) of the Act. the carefully orchestrated testimony of Mastriano and 3. By instructing employees not to go to the Union Zenich, the record reveals that Fava first endeavored to concerning work related problems until after they had accommodate Mastriano on the issue of modifying the discussed the problem with their supervisors and man- uniform, later experienced transitory anger over the ob- agement, and inferring that their jobs would be jeopard- jections being lodged by Mastriano about the uniform, ized if they did not do so, Respondent interfered with, acquiesced in Mastriano's wearing of the modified uni- restrained, and coerced employees in the exercise of form, and finally permitted her to cease wearing the uni- rights guaranteed them in Section 7 of the Act and en- form entirely. Absent in this case is a sufficient showing gaged in conduct in violation of Section 8(a)(l) of the on the part of the General Counsel that Fava took any Act. exceptional actions with respect to the uniform issue. He 4. By substantially reducing the hourly wage rate of advised Dr. Ikola, the stockholder who had initially se- Paul Flores because he had consulted with the Union lected the uniforms, and then communicated to the cock- concerning a dispute over the amount of overtime com- tail waitresses that Dr. Ikola preferred the uniforms to be pensation due him, Respondent constructively terminated worn, if possible. Beyond this he responded in a dispas- Flores on March 2, 1979. sionate manner to union officials who solicited his re- 5. Respondent engaged in no other conduct violative sponse. This falls far short of the cause celebre scenario of the Act. depicted by Mastriano and advanced in support of the complaint by the General Counsel. The purported cool- THE REMEDY ing of Fava's attitude toward Mastriano incident to the HavinRe ea in cra uniform complaint has explanation having to do with the Having found that Respondent engaged mn certain self-oriented recalcitrance of Mastriano toward the con un f a ir labor practices, I shall recommend that it cease selforintedreclciranc ofMastian toard he on- and desist therefrom and take certain affirmative action cept of a computer bar, her refusal to report during a d es in toefectuate the cesthe act. weekend to assist in the installation of a segment of it, d esign ed to effectuate the policies of the Act. and Fava's identification of Mastriano as an employee Having found that Respondent constructively dis- engaged in gambling on the premises through the roll of charged Paul Flores on March 2, 1979, I shall recom- dice. In any event, although the record warrants the mend that Respondent be ordered to offer Flores imme- conclusion that Fava reached a point of exasperation with Mastriano, causing him to welcome a decision on "Moreover, if Fava had been guilty of a process ofsexual harassment involving Mastriano it is doubtful that in the face of union interest in her part to find employment elsewhere, the record, in Mastriano's other complaints he would have nonetheless carefully my view, falls short of establishing that Fava took overt planned her termination thus inviting her wrath and legal recourse. HOLIDAY INN OF SANTA MARIA 663 D. The Termination of Deborah Mastriano action to bring her employment to an end. Rather, the I find that the General Counsel failed to prove by the totality o f t h e ev id e n c e establishes that Fava was being preponderance of the credible evidence that Bruno Fava v circumspect not to force the issue of Mastnano's terminated Deborah Mastriano because she engaged in continued tenure and may have been influenced in this union or other protected concerted activities. Rather, I respect by t h e f a c t t h a t he had once before been charged find that Mastriano was terminated for gross insubordina- w it h a v io latio n o f t h e Act i th e effectuation of Paul tion and that Fava acted spontaneously as a consequence Flores' resignation, and by the active ongoing interest of severe provocation provided by Mastriano's loud, re- being demonstrated in Mastriano's complaints by repre- petitive verbal challenges in proximity of customers sentatives of the Union."3 The relationship in terms of during business hours. I further find that Fava had not t im e between the episode involving Flores and the planned Mastriano's termination and that antiunion or le- events of November 28 is remote, and supplies no com- gally impermissible motivation arising from Mastriano's pelling nexus to the action taken with respect to Mas- involvement in protected concerted activity was no- triano. I find on the record as a whole that, on Novem- where present, ber 28 through words and actions, Mastriano intentional- The General Counsel contends that Fava terminated ly provoked Fava into terminating her and that Fava re- Mastriano because she had complained to the Union on sponded solely out of agitation and anger generated by her own behalf, and in the interest of other cocktail wait- Mastriano's conduct during the course of the exchange resses, concerning the nature of the uniforms which they which took place at the end of the bar in the presence of had been instructed to wear, and that these complaints Connell. I find no violation of the Act evolving from caused Fava to contrive pretexts for justifying Mas- this conduct. triano's termination. I view the record differently and Upon the foregoing findings of fact, and upon the conclude that Fava's asserted anger at Mastriano over entire record in this proceeding, I make the following: the uniform issue was a bogus issue contrived by Mas- triano and given credence by Zenich in an effort to CONCLUSIONS OF LAW la un c h an assau l t upon Fava's management techniques 1. Holiday Inn of Santa Maria is an employer engaged and code of discipline which had served to intrude upon i witi the mai of S ion 22 A .... , * ... , , - * . ~~~~in commerce within the meaning of Section 2(2), (6), and Mastriano's past prequisites as a bartender. The record f th Act nowhere supports the notion that in Fava's mind the dis- 2. Cla A a B U, Loa . enchantment of the cocktail waitresses generally, and the 70 otl Rs A l l urante and Bartenders Union, Local No. complaints of Mastriano, specifically, with respect to the 70 3 H o t e l U nntaurant Employees and Bartenders In- uniforms, had become a matter of cardinal importance ternational Union, AFL-CIO is a labor organization sufficient to justify a showdown. Rather, separate from wi t h in t h e meaning of Section 2(5) of the Act. the carefully orchestrated testimony of Mastriano and 3. By instructing employees not to go to the Union Zenich, the record reveals that Fava first endeavored to concerning work related problems until after they had accommodate Mastriano on the issue of modifying the discussed the problem with their supervisors and man- uniform, later experienced transitory anger over the ob- agement, and inferring that their jobs would be jeopard- jections being lodged by Mastriano about the uniform, ized if they did not do so, Respondent interfered with, acquiesced in Mastriano's wearing of the modified uni- restrained, and coerced employees in the exercise of form, and finally permitted her to cease wearing the uni- rights guaranteed them in Section 7 of the Act and en- form entirely. Absent in this case is a sufficient showing gaged in conduct in violation of Section 8(a)(l) of the on the part of the General Counsel that Fava took any Act. exceptional actions with respect to the uniform issue. He 4. By substantially reducing the hourly wage rate of advised Dr. Ikola, the stockholder who had initially se- Paul Flores because he had consulted with the Union lected the uniforms, and then communicated to the cock- concerning a dispute over the amount of overtime com- tail waitresses that Dr. Ikola preferred the uniforms to be pensation due him, Respondent constructively terminated worn, if possible. Beyond this he responded in a dispas- Flores on March 2, 1979. sionate manner to union officials who solicited his re- 5. Respondent engaged in no other conduct violative sponse. This falls far short of the cause celebre scenario of the Act. depicted by Mastriano and advanced in support of the complaint by the General Counsel. The purported cool- THE REMEDY ing of Fava's attitude toward Mastriano incident to the HavinRe ea in cra uniform complaint has explanation having to do with the Having found that Respondent engaged mn certain self-oriented recalcitrance of Mastriano toward the con un f a ir labor practices, I shall recommend that it cease selforintedreclciranc ofMastian toard he on- and desist therefrom and take certain affirmative action cept of a computer bar, her refusal to report during a d es in toefectuate the cesthe act. weekend to assist in the installation of a segment of it, d esign ed to effectuate the policies of the Act. and Fava's identification of Mastriano as an employee Having found that Respondent constructively dis- engaged in gambling on the premises through the roll of charged Paul Flores on March 2, 1979, I shall recom- dice. In any event, although the record warrants the mend that Respondent be ordered to offer Flores imme- conclusion that Fava reached a point of exasperation with Mastriano, causing him to welcome a decision on "Moreover, if Fava had been guilty of a process ofsexual harassment involving Mastriano it is doubtful that in the face of union interest in her part to find employment elsewhere, the record, in Mastriano's other complaints he would have nonetheless carefully my view, falls short of establishing that Fava took overt planned her termination thus inviting her wrath and legal recourse. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate and full reinstatement to his former position of em- 2. Take the following affirmative action which it is ployment or, if that position no longer exists, to a sub- found will effectuate the policies of the Act: stantially equivalent position, without prejudice to his se- (a) Offer Paul Flores immediate and full reinstatement niority or other rights and privileges, and make him to his former position of employment or, if such position whole for any loss of earnings which he may have had no longer exists, to a substantially equivalent position, as a result of the discrimination against him. Backpay without prejudice to his seniority or other rights and shall be computed in the manner prescribed in F W. privileges, and make him whole for any loss of pay or Woolworth Company, 90 NLRB 289 (1950), and Florida other benefits he may have suffered by reason of the dis- Steel Corporation, 231 NLRB 651 (1977) See generally,. crimination against him, in the manner described in the Isis Plumbing & Heating Co., 138 NLRB 716 (1962). section of the Decision entitled, "The Remedy." Upon the foregoing findings of fact, conclusions of n e ,, e .i law, and the entire record herein, and pursuant to Sec- (b) Preserve and, upon request, make available to the tion 10(c) of the Act, I hereby issue the following rec- Board or its agents, for examination and copying, all ommended: payroll records, social security payment records, time- cards, personnel records and reports, and all other re- ORDER 36 cords necessary to analyze the amount of backpay due under the terms of this Order. The Respondent, Holiday Inn of Santa Maria, Santa under the terms of this Order. (c) Post at its Santa Maria facility copies of the at- Maria, California, its officers, agents, successors, and as- (c) Pot at its Santa a opies of he a- signs, shall: tached notice marked "Appendix."3 7 Copies of said 1. Cease and desist from: notice, on forms provided by the Regional Director for (a) Instructing employees to refrain from contacting or Region 31, after being duly signed by a representative of consulting with the Union, or representatives thereof, Respondent, shall be posted by Respondent immediately with respect to problems or other matters relating to upon receipt thereof, and be maintained by Respondent their terms and conditions of employment until after they for 60 consecutive days thereafter, in conspicuous places, have consulted with supervision or management, and in- including all places where notices to employees are cus- ferring that their jobs would be in jeopardy if they did tomarily posted. Reasonable steps shall be taken by Re- not do so. spondent to insure that said notices are not altered, de- (b) Constructively discharging employees. faced, or covered by any other material. (c) In any other manner interfering with, restraining, (d) Notify the Regional Director for Region 31, in or coercing employees in the exercise of the rights guar- writing, within 20 days from the date of this Order, what anteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. " 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate and full reinstatement to his former position of em- 2. Take the following affirmative action which it is ployment or, if that position no longer exists, to a sub- found will effectuate the policies of the Act: stantially equivalent position, without prejudice to his se- (a) Offer Paul Flores immediate and full reinstatement niority or other rights and privileges, and make him to his former position of employment or, if such position whole for any loss of earnings which he may have had no longer exists, to a substantially equivalent position, as a result of the discrimination against him. Backpay without prejudice to his seniority or other rights and shall be computed in the manner prescribed in F. W. privileges, and make him whole for any loss of pay or Woolvwrth Company, 90 NLRB 289 (1950), and Florida other benefits he may have suffered by reason of the dis- Steel Corporation, 231 NLRB 651 (1977). See, generally, crimination against him, in the manner described in the Isis Plumbing & Heating Co., 138 NLRB 716 (1962). section of the Decision entitled, "The Remedy." Upon the foregoing findings of fact, conclusions of n P, u, avaib t th law, and the entire record herein, and pursuant to Sec- () Preserve and, upon request, make available to the tion 10(c) of the Act, I hereby issue the following rec- B o a r d o r its a ge n t s, f o r examination and copying, all ommended: payroll records, social security payment records, time- cards, personnel records and reports, and all other re- ORDER 3 6 cords necessary to analyze the amount of backpay due _ _ . „ ,., , , ,. i* * o ~~under the terms of this Order. The Respondent, Holiday Inn of Santa Maria, Santa (c) Post at its Santa Maria facility copies of the at- Maria, California, its officers, agents, successors, and as- tah ni ma4ke "Appendix. 3 e sai , „~~~~~~~~~~tached notice marked "Appendix. -7 Copies of said signs, shall: 1. Cease and desist from: n o ti c e, on f o r m s provided by the Regional Director for (a) Instructing employees to refrain from contacting or Region 31, a f t e r being duly signed by a representative of consulting with the Union, or representatives thereof, Respondent, shall be posted by Respondent immediately with respect to problems or other matters relating to upon receipt thereof, and be maintained by Respondent their terms and conditions of employment until after they for 60 consecutive days thereafter, in conspicuous places, have consulted with supervision or management, and in- including all places where notices to employees are cus- ferring that their jobs would be in jeopardy if they did tomarily posted. Reasonable steps shall be taken by Re- not do so. spondent to insure that said notices are not altered, de- (b) Constructively discharging employees. faced, or covered by any other material. (c) In any other manner interfering with, restraining, (d) Notify the Regional Director for Region 31, in or coercing employees in the exercise of the rights guar- writing, within 20 days from the date of this Order, what anteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. "1 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate and full reinstatement to his former position of em- 2. Take the following affirmative action which it is ployment or, if that position no longer exists, to a sub- found will effectuate the policies of the Act: stantially equivalent position, without prejudice to his se- (a) Offer Paul Flores immediate and full reinstatement niority or other rights and privileges, and make him to his former position of employment or, if such position whole for any loss of earnings which he may have had no longer exists, to a substantially equivalent position, as a result of the discrimination against him. Backpay without prejudice to his seniority or other rights and shall be computed in the manner prescribed in F. W. privileges, and make him whole for any loss of pay or Woolvwrth Company, 90 NLRB 289 (1950), and Florida other benefits he may have suffered by reason of the dis- Steel Corporation, 231 NLRB 651 (1977). See, generally, crimination against him, in the manner described in the Isis Plumbing & Heating Co., 138 NLRB 716 (1962). section of the Decision entitled, "The Remedy." Upon the foregoing findings of fact, conclusions of n P, u, avaib t th law, and the entire record herein, and pursuant to Sec- () Preserve and, upon request, make available to the tion 10(c) of the Act, I hereby issue the following rec- B o a r d o r its a ge n t s, f o r examination and copying, all ommended: payroll records, social security payment records, time- cards, personnel records and reports, and all other re- ORDER 3 6 cords necessary to analyze the amount of backpay due _ _ . „ ,., , , ,. i* * o ~~under the terms of this Order. The Respondent, Holiday Inn of Santa Maria, Santa (c) Post at its Santa Maria facility copies of the at- Maria, California, its officers, agents, successors, and as- tah ni ma4ke "Appendix. 3 e sai , „~~~~~~~~~~tached notice marked "Appendix. -7 Copies of said signs, shall: 1. Cease and desist from: n o ti c e, on f o r m s provided by the Regional Director for (a) Instructing employees to refrain from contacting or Region 31, after being duly signed by a representative of consulting with the Union, or representatives thereof, Respondent, shall be posted by Respondent immediately with respect to problems or other matters relating to upon receipt thereof, and be maintained by Respondent their terms and conditions of employment until after they for 60 consecutive days thereafter, in conspicuous places, have consulted with supervision or management, and in- including all places where notices to employees are cus- ferring that their jobs would be in jeopardy if they did tomarily posted. Reasonable steps shall be taken by Re- not do so. spondent to insure that said notices are not altered, de- (b) Constructively discharging employees. faced, or covered by any other material. (c) In any other manner interfering with, restraining, (d) Notify the Regional Director for Region 31, in or coercing employees in the exercise of the rights guar- writing, within 20 days from the date of this Order, what anteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. "1 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board." 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate and full reinstatement to his former position of em- 2. Take the following affirmative action which it is ployment or, if that position no longer exists, to a sub- found will effectuate the policies of the Act: stantially equivalent position, without prejudice to his se- (a) Offer Paul Flores immediate and full reinstatement niority or other rights and privileges, and make him to his former position of employment or, if such position whole for any loss of earnings which he may have had no longer exists, to a substantially equivalent position, as a result of the discrimination against him. Backpay without prejudice to his seniority or other rights and shall be computed in the manner prescribed in F. W. privileges, and make him whole for any loss of pay or Woolvwrth Company, 90 NLRB 289 (1950), and Florida other benefits he may have suffered by reason of the dis- Steel Corporation, 231 NLRB 651 (1977). See, generally, crimination against him, in the manner described in the Isis Plumbing & Heating Co., 138 NLRB 716 (1962). section of the Decision entitled, "The Remedy." Upon the foregoing findings of fact, conclusions of n P, u, avaib t th law, and the entire record herein, and pursuant to Sec- () Preserve and, upon request, make available to the tion 10(c) of the Act, I hereby issue the following rec- B o a r d o r its agents, for examination and copying, all ommended: payroll records, social security payment records, time- cards, personnel records and reports, and all other re- ORDER 3 6 cords necessary to analyze the amount of backpay due _ _ . „ ,., , , ,. i* * o ~~under the terms of this Order. The Respondent, Holiday Inn of Santa Maria, Santa (c) Post at its Santa Maria facility copies of the at- Maria, California, its officers, agents, successors, and as- t n 44e "Appendix. 3 e sai , „~~~~~~~~~~tached notice marked "Appendix. -7 Copies of said signs, shall: 1. Cease and desist from: n o ti c e, on f o r m s provided by the Regional Director for (a) Instructing employees to refrain from contacting or Region 31, after being duly signed by a representative of consulting with the Union, or representatives thereof, Respondent, shall be posted by Respondent immediately with respect to problems or other matters relating to upon receipt thereof, and be maintained by Respondent their terms and conditions of employment until after they for 60 consecutive days thereafter, in conspicuous places, have consulted with supervision or management, and in- including all places where notices to employees are cus- ferring that their jobs would be in jeopardy if they did tomarily posted. Reasonable steps shall be taken by Re- not do so. spondent to insure that said notices are not altered, de- (b) Constructively discharging employees. faced, or covered by any other material. (c) In any other manner interfering with, restraining, (d) Notify the Regional Director for Region 31, in or coercing employees in the exercise of the rights guar- writing, within 20 days from the date of this Order, what anteed them under Section 7 of the Act. steps Respondent has taken to comply herewith. "1 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 In the event that this Order is enforced by a Judgment of a United findings, conclusions, and recommended Order herein shall, as provided States Court of Appeals, the words in the notice reading "Posted by in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections hereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."