Arlington Hotel Co., Inc.

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arlington Hotel Company, Inc. and International Ladies' Garment Workers Union, AFL-CIO. Case 26-CA-10729 16 January 1986 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 11 March 1985 Administrative Law Judge Richard J. Linton issued the attached decision. The General Counsel and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answer to the exceptions.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. In agreeing with the judge's finding that the Re- spondent's discharge of Violet Doll did not violate Section 8(a)(3) of the Act, we rely on the follow- ing factors in addition to the reasons cited by the judge. The Respondent's food and beverage director, Bernard Sisman, who was solely responsible for the decision to terminate Doll, was unaware initially of the identity of the waitress who falsified a meal ticket during a Sunday brunch. Sisman's wife wit- nessed the incident and reported it to Sisman, but she was not introduced to the waitress in question. When Sisman initiated the investigation of meal tickets which resulted in Doll's discharge, he did not know which waitress was involved and, upon finding the falsified ticket, had to call Kathy Gray, the Respondent's Venetian Dining Room manager, to find out the waitress' name because only her waitress number was entered on the check. That Sisman was unaware a principal union activist was involved when he began the inquiry into the Sunday brunch incident supports the Respondent's assertion that it had a legitimate concern for effi- ciency and internal accounting security and did not simply seize upon the incident as a means to rid itself of Doll. Sisman's recent arrival on the Respondent's man- agement team further supports the Respondent's position. Sisman began work as food and beverage director approximately a month before Doll's dis- charge. Although waitresses other than Doll may have failed properly to write up meal tickets, there is no evidence that the newly installed Sisman was aware of any such situation until the Sunday brunch incident his wife reported, which resulted in his investigation of ticketing procedures, the dis- charge of Doll, and the subsequent tightening up of the Respondent's internal accounting system. Simi- larly, while there is evidence that employees guilty of insubordination and other acts comparable to Doll's falsification of a meal ticket were not dis- charged, the decisions concerning the discipline of these employees were made before Sisman's arrival and therefore cannot serve as evidence that Sisman engaged in disparate treatment when he discharged Doll. We find that the foregoing factors, together with those the judge relied on, compel the conclusion that even if Doll's union activity were a reason for her discharge, the Respondent met its burden under Wright Line, 251 NLRB 1083 (1980), and demonstrated it would have discharged Doll in the absence of such protected activity. Accordingly, we adopt the judge's dismissal of the complaint. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. John H. Goree, Esq., for the General Counsel. J. Bruce Cross, Esq., and Donna S. Galchus, Esq. (House, Wallace & Jewell), of Little Rock, Arkansas, for the Respondent. Randall G. Wright, Esq. (Youngdahl & Larrison), of Little Rock, Arkansas, for the Charging Party. DECISION I The General Counsel moved to strike certain portions of the Re- spondent's answering brief which she contends are beyond the scope of the exceptions and inaccurately characterize the judge's findings. The Re- spondent filed a response in opposition thereto. As we have not relied on the disputed portions of the Respondent's answering brief in affirming the judge's findings, we find it unnecessary to pass on the General Counsel's motion 2 The Charging Party has excepted to some of the judge's credibility findings The Board's established policy is not to overrule an admmistra- tive law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect.Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for re- versing the findings STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. This case was tried before me in Hot Springs , Arkansas, on August 14-17 and October 10-11, 1984, pursuant to the June 13, 1984 complaint issued by the Acting General Counsel (the General Counsel) of the National Labor Relations Board through the Regional Director for Region 26 of the Board. The complaint is based on a charge filed May 7, 1984, and thereafter amended, by International Ladies' Garment Workers Union, AFL- CIO (the Union, the Charging Party, or ILGWU) 278 NLRB No. 7 ARLINGTON HOTEL CO. 27 against Arlington Hotel Company, Inc. (Respondent, Hotel, or AHC). I In the complaint the General Counsel alleges that the Respondent violated Section, 8(a)(1) and (3) of the Act by suspending Violet Doll for 3 days about January 23, and by discharging her about April 29 because of her union and other concerted activities. By its answer Respondent admits certain factual mat- ters but denies violating the Act. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel, the Union, and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION Respondent, a corporation, operates a resort hotel in Hot Springs, Arkansas, and during the past 12 months it derived gross revenue exceeding $500,000 from the hotel operation. During the same period it purchased and re- ceived at its Hot Springs facility goods and materials valued in excess of $50,000 directly from points outside the State of Arkansas. Respondent admits, and I find, that it is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Il. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that the ILGWU is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent's 500-room resort hotel in Hot Springs in- cludes a food and beverage department along with other guest and customer functions. There is a popular track for horse racing in Hot Springs, and the racing season occurs during weeks of mid-February to the end of April. Racing season is Respondent's busiest period, and during racing season AHC's employment swells to about 500 employees.2 Violet Doll testified that the ILGWU began its orga- nizing campaign at the Hotel in 1981. The Union filed an election petition on March 19, 1981, and the election was held on May 29. Challenged ballots were determinative, and the Hotel also filed timely objections. These matters were resolved by the Regional Director who certified the Union on July 13, 1981. A "technical" refusal-to-bar- gain litigation ensued when the Hotel refused to bargain. On May 18, 1982, the Board sustained the General Coun- sel's Motion for Summary Judgment that the Hotel's re- fusal to bargain was unlawful. Arlington, Hotel Co., 261 NLRB 967 (1982), enfd. 712 F.2d 333 (8th Cir. 1983). 1, All dates are for 1984 unless otherwise indicated. Although the pleadings do not show that the ILGWU is affiliated with-the AFL-CIO, prior litigation so indicates, as does the NLRB Style Manual, App. 1 at 56 (1983). 2 Citations to the six-volume transcript of testimony are by volume and page. In the meantime, certain employees of the Hotel en- gaged in a 3-day strike in March 1981 during which Re- spondent hired replacements. Violet Doll was one of the waitresses (among other classifications) who struck. Af- firming, as modified, Judge Robert A. Gritta's Decision and Order of August 9, 1982, the Board, by its Decision and Order dated December 12, 1984, found that Re- spondent violated Section 8(a)(1) and (3) of the Act by recalling strikers subject to a preference given to striker replacements and new hires. Arlington Hotel Co., 273 NLRB 210 (1984). Following the Eighth Circuit's enforcement judgment of July 8, 1983, the Union and the Hotel, that same month, began contract negotiations which, apparently, had not concluded by the beginning of the instant hear- ing. Violet Doll has been active for the Union from the be- ginning of the organizing campaign. As previously noted, she was one of the strikers, and she testified before Ad- ministrative Law Judge Gritta at the hearing he conduct- ed in December 1981. Doll has been secretary of the Local from the beginning and was president of the Local for the last 3 months before her discharge.3 Doll was one of the employees present when union officials de- manded recognition from Horst Fischer, Respondent's general manager. When Respondent held a captive-audience meeting with employees in either February or March 1981 to show a film and present Hotel's countercampaign posi- tion, Doll stood up and made a speech lasting at least 15 minutes in which she informed the 300 to 400 assembled employees of their statutory right to organize and in which she expressed her, reasons concerning why em- ployees should join the Union.4 Doll testified that union officials informed her of the July 8, 1983 decision by the Eighth Circuit enforcing the Board's order to bargain. Doll assisted the Union in pass- ing out copies of a leaflet informing employees of court enforcement of,their Federal right to sit down and nego- tiate a collective-bargaining agreement with Hotel. Some 2 days after she helped in distributing the leaflets, Doll was given a written warning, dated July 13, 1983 (R. Exh. 17), for insubordination concerning the polishing of silverware for resetting the tables.5 Fired May 1, 1984, Violet Doll had worked a total of 7 years for Respondent as a waitress ' in its Venetian Dining Room, or VDR. Kathy Gray is the manager of the VDR. Before holding that position, Gray was a su- pervisor in the VDR from February 1983 to July 1983, and prior to that she worked as hostess in the VDR. Kathy Gray reports to Bernard Sisman who has been Respondent's food and beverage (F. & B) director since 3 The record does not disclose what number the ILGWU has assigned to the Local. 4 Although Doll asserted that the meeting occurred around February 12, 1981, she also testified that the (March) strike ensued the next day. The period of February-March 1981 i ,close enough for our purposes here. 5 The July 13, 1983 warning is outside the 10(b) limitations period, and there is no complaint allegation concerning it Nevertheless, the docu- ment is relevant as part of the background, And in considering the basis on which Respondent decided to terminate Violet Doll 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mid-February 1984. Sisman arrived several weeks before his predecessor,- George von Salm, departed.6 B. Overview of the Case 1. Disciplinary incidents The General Counsel alleges that Respondent unlaw- fully suspended Violet Doll on January 23, 1984, and il- legally discharged her on May 1. The suspension inci- dent involves Doll's admitted failure to store the bread before leaving work on January 23. Doll was fired for falsifying a meal ticket by giving musician Sandy Francis a check for one person at the April 29 Sunday brunch when, in fact, three persons received meals. VDR Manager Gray decided that Doll should receive a written warning over the bread tray incident,7 and F&B Director vol Salm converted the warning into a 3- day suspension. By May I von Salm had been gone a month, and Sisman was the F & B director. It was Sisman who initiated interviews leading to Doll's dis- charge. Beyond her suspension and discharge, Doll was in- volved in several other incidents. Although these addi- tional incidents fall outside the 6-month limitation period described in Section 10(b) of the Act, they may be looked to for whatever light they shed on motivation. Sisman testified that Doll's failure to ticket Francis for all three meals was serious enough by itself to justify Doll's discharge.8 However, he testified that he exam- ined and considered Doll's entire personnel file. Person- nel Manager Jo Ann Kulaski confirmed that Sisman ex- amined the file after she initially reviewed all the disci- plinary records in it with him by telephone. Sisman fur- ther testified that Doll was terminated over the Sunday brunch incident and, had that event not happened, Doll would not have been terminated for anything in the past. As noted, Sisman felt that Doll's conduct on the Sunday brunch of April 29 was independently sufficient to justify her discharge. Although Sisman never testi- monially expressed the alternative position that Doll would have been discharged in any event under the Hotel's progressive discipline system (PDS),9 VDR Manager Kathy Gray did undertake to so testify in answer to a leading question. Gray initially testified that the April 29, 1984 incident was the only reason Doll was 6 The parties stipulated that Sisman arrived February 20, 1984, and that von Salm departed March 31 , 1984 Sisman reports to General Man- ager Horst Fischer. ' Although the witnesses generally referred to the bread tray, it is clear that edible `bread was on the tray rather than the tray being empty. Gray testified that the tray contained several loaves of different types of breads. 6 Sisman's answer at 1:31, LL. 12- 15, is garbled . It is clear from the record, and my recollection, that Sisman testified that Doll's failure to charge for the third meal was reason enough, by itself, to justify her dis- charge 9 Concerning Doll's discharge, the record does not contain the usual form labeled "Employee Disciplinary Record." However, two filed memos from Sisman were received The first, with five short paragraphs, is dated May 1, 1984 (G C Exh 26a). The second, dated May 8, 1984, contains more information Its penultimate paragraph contains a state- ment that Sisman and Personnel Manager Kulaski reviewed Doll's file, "and it was evident by the information contained therein that this inci- dent mentioned above was grounds for termination " (G C. Exh 26b). discharged, and that, although the Sunday brunch event was Doll's fourth disciplinary action, the decision was made solely on what Doll had done on April 29. Sisman made the discharge decision, and the record contains little decisional basis for Gray's assertion that Doll would have been discharged in any event under Re- spondent's PDS because the April 29 event was Doll's fourth disciplinary incident. k0 As just noted, one expression by Sisman on the matter is contained in the quotation from his file memo dated May 8, 1984.11 Additionally, in his May 31, 1984 pretrial affidavit, Sisman states at 1-2 (G.C. Exh. 2): I would have recommended to Fischer that Doll be discharged for this incident even if she had not been in the last step of the progressive disciplinary policy. It is pure speculation whether she would have been fired or not. Under the written policy she could have been terminated for that falsification/appropriation even if she was not at the last step of the progressive disciplinary procedure. In view of the foregoing, it is not at all certain that Doll would have been discharged in any event under the Hotel's progressive disciplinary system. The record con- tains more than one example of a deviation from the PDS. It is clear that the Hotel exercises discretion in de- termining what discipline will be imposed on each infrac- tion of its rules or whether any discipline at all will be imposed. Before listing Doll's prior disciplinary events, I shall make some note here of the Hotel's PDS. The PDS is set forth beginning at page 8 of Respondent's 21-page em- ployee handbook (R. Exhs. 14, 18). Hired by the Hotel in November 1981, Jo Ann Kulaski worked in the sales department until becoming personnel manager in April 1982. Kulaski testified that she wrote the Hotel's employ- ee handboook. Although Kulaski did not give the publi- cation date, the handbook itself shows the printing date of February 1, 1983, at the bottom of its back cover, and on February 11, 1983, Doll signed an acknowledgment form reading that she had received a copy of the hand- book and would read and adhere to the policies outlined in the booklet (R. Exh. 13). Presumably, therefore, copies of the handbook were distributed to employees in early February 1983.12 As set forth in the handbook, the Hotel's PDS con- tains a section for "Standards and Conduct"-beginning at page 8. The handbook informs employees that the "fol- lowing steps" will be taken if there is any deviation from the Hotel's rules and regulations. This is followed by 10 Respondent actually seems to have introduced evidence of its PDS more by way of defense against arguments that Doll's discharge was harsh and unprecedented than on any affirmative effort to demonstrate that Doll, in the alternative, was discharged as the final step under'the Hotel's PDS, nonwithstanding the degree of severity of Doll's conduct 11 Although the charge was filed and served by mailing on May 7, 1984, the return receipt shows that Respondent did not receive its copy until May 9, 1984 12 This is not to say that some kind of warning system did not predate the handbook. Indeed, as we shall see, Doll's first disciplinary action,'oc- curring in October 1981, is recorded on a form somewhat different from those bearing 1983 or 1984 dates (R Exh 16) ARLINGTON HOTEL CO. 29 four numbered steps. Step 1 calls for a "verbal" (oral, apparently) warning. Step 2 calls for a written warning on a second occasion of misconduct. A second written warning is issued under step 3 on a subsequent infraction of the Hotel's rules. To this point the steps are clear enough. Step 4, however, is ambiguous. It reads: Any other deviations from the rules will warrant a third written warning with a probable suspension and a possible termination, if the misconduct contin- ues. One may ask (1) whether a third written warning (being a fourth incident) is independent of the balance of step 4, so that a suspension or discharge would not be imposed until a fifth incident, or (2) whether a suspen- sion accompanies any third written warning with termi- nation being possible only if the misconduct continues to a fifth incident.' 3 Kulaski, it appears, adopts the first interpretation, that the third written warning (for the fourth incident) is in- dependent, and that suspension or termination may be imposed for the fifth infraction. However, Gray clearly counted the April 29 Sunday brunch as the fourth inci- dent and fourth reprimand. Sisman's testimony is rather ambiguous on the point, but his position seemed to be the same as Gray's. Gray listed Doll's three previous warnings as occurring in July 1983 for insubordination (R. Exh. 17), August 1983 for tardiness (G.C. Exh. 22a), and January 1984 for failure to store the bread at the end of her shift (G.C. Exh. 25a,c).14 All three are written warnings. A substantial portion of the record evidence is con- cerned with a warning which Gray gave Doll on Octo- ber 3, 1983, for insubordination over Doll's allegedly re- fusing "a direct order" to secure some napkins (G.C. Exhs. 24a-b). F & B Director von Salm voided the warning on October 11 after informing Doll that she would be suspended over any future incident (G.C. Exh. 23). Although Respondent did not count this voided warning as one of the prior warnings, the incident was litigated because of the General Counsel's desire to show animus through the event. Recognizing that any warning occurring before November 7, 1983, falls outside the stat- utory limitation period, the General Counsel asserted that he was seeking only to explore the background events in order to show that Respondent was unlawfully motivated when it suspended Doll in January 1984 and when it fired her on May 1. He expressly stated that he was not seeking any remedial removal of the prior warn- ings, and it is clear that he does not seek to amend the complaint respecting the prior warnings. The General Counsel's expressed desire was to inquire into the four incidents leading up to Doll's discharge and on which Respondent relied as part of its PDS.15 As Re- spondent did not expressly rely on the voided warning of October 1983, it is unclear whether the General Counsel realized such fact at the point in the hearing when we began exploring the subject of the napkins (the October 1983 incident). In any event, a large amount of evidence was elicited on the napkins incident. During her testimony Personnel Manager Kulaski dis- closed that Doll's personnel folder contained a warning issued to Doll on October 8, 1981 (R. Exh. 16). Al- though the form of this 1981 document differs somewhat from the 1983 and 1984 items, it is substantially similar. Doll allegedly "Refused to sign" the disciplinary notice. ls In essence the form asserts that one Patsy Daugherty warned Doll for causing a "violent argu- ment" over a table assignment by Daugherty, and by "de- fying my authority" and "yelling at me" in the process (R. Exh. 16). On May 1, 1984, therefore, Doll's personnel file con- tained the following disciplinary actions:17 Date Incident Action Supervisor 10-8-81 Table Written Patsy Daugherty reassignment warning 7-13-83 Insubordination Written Kathy Gray in resetting warning table 8-13-83 Tardy 30 mins. Written Kathy Gray without warning calling 10-3-83 Insubordination : Written Kathy Gray Refusing to warning get napkins (Warning voided by von Salm 10-11-83) 1-23-84 Bread tray Suspension Kathy Gray/von Salm 5-1-84 Brunch ticket Discharged Bernard Sisman As we have seen, Gray did not count the October 8, 1981 item. This was because she apparently had not ex- amined Doll's personnel file. Gray testified that she keeps track of the warnings which she issues. For some reason Sisman's count was the same as Gray's even though Sisman and Kulaski, as already noted, went through Doll's entire file. Earlier I began a description of the PDS. Following the fourth step, ranging from warning to discharge, there appear sections 'A and B. The preamble for section A in- cludes a statement advising that commission of any of 12 enumerated acts will be considered "just cause for imme- 13 In practice the Hotel does not count warnings by each category, for warnings of different infractions are added Moreover, in his May 31, 1984 pretrial affidavit at 2, Sisman states that warnings are not retired, or purged from the personnel file, after the passage of time, but are perma- nent records (G C. Exh 2) 14 Gray misstated in her testimony when asserting that the tardiness warning occurred in October 1983, for it is clear that the tardy warning issued August 13, 1983 (G C Exh 22a) As we shall see in a moment, a warning 'did issue in October 1983, but it was voided is The last two incidents resulting in Doll's suspension and discharge are alleged in the complaint The other two warnings fall into the "back- ground" being outside the statutory limitation period. 16 Each of Doll's disciplinary notices indicates that she refused to sign 17 The July 13, 1983 and later documents have boxes to check for rep- rimand, suspension , discharge, and boxes to check showing the reason, such as insubordination Although the October 8, 1981 warning has no boxes, it appears that the incident would have been described as insubor- dination had there been such a box to check. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD diate suspension and, pending review , DISMISSAL." Item 4 reads in part: 4. Theft (unauthorized removal) or misappropriation (unauthorized storage, transfer or utilization) of guest, employee or hotel property. . . . Section B contains 17 lesser prohibited acts such as ex- cessive, unexcused absenteeism or tardiness (2). Commis- sion of any of the Section B acts will be considered, the preamble advises, just cause for remedial action "which could involve a written reprimand, suspension from work without pay for a specified period of time, in the event of repeated violations of house rules. 2. The Hotel's cost accounting system Sandy Francis plays the piano at the Hotel's Sunday brunches. She began performing in October 1983. An in- dependent contractor, Francis' contract provides, in ad- dition to her fee, that she and any one guest of hers may receive complimentary meals at the Sunday brunches when Francis performs. Gray has not seen the contract, but understands that it, as with that of other musicians, does provide for the two complimentary meals. In common terms, Francis is entitled to two free meals at the Sunday brunch when she performs . Sisman acknowl- edged that from the standpoint of a waitress , the musi- cians get two free meals. On the other hand, one of Sisman's central points is summed up in his testimony : "There is no such thing as a free lunch." 18 What Sisman meant, as he explained in detail, is that the complimentary meals must be included in the Hotel's cost-accounting process. He testified that there is an accounting procedure for all food eaten, for the Hotel had to pay for all such items to begin with, and a proper cost-accounting procedure can mean the difference in whether the Hotel makes a profit. Thus, it is misleading (from the Hotel's standpoint) to say that anyone can eat free, for there must be an accounting, and this is done by a cost-accounting procedure which begins with the check issued by a waitress. VDR Manag- er Gray described the correct ticketing procedure a waitress must follow. Thus, she testified that the tickets or checks are to be filled out completely by the waitress- es. For a Sunday brunch this means that waitresses are to enter the appropriate data in boxes on the ticket which call for the date, server number, table number, and number of persons served (R. Exh. 1). When a musician ' such as Sandy Francis sits in the dining room for Sunday brunch with two guests, Gray testified that the ticket should show the above data with the number of persons being three, the ticket, or check, marked as three buffets, and the amount (price) of three buffets written on the check. The price for one buffet is $12.31, including tax. Both Sisman and Gray testified that it is the responsibility of the waitress to fill out the check correctly. Sisman further testified that the waitress 18 At p 389 of Alistair Cooke's America (1973) appears the following More often than I care to admit, one of the oldest of American chestnuts seemed newly roasted It is that line of the Italian Immi- grant asked to say what forty years of American life had taught him "There is no free lunch " can collect for the tickets, although the Hotel prefers that on Sundays customers take the checks and pay the cashier because usually Sunday brunches are a busy time. Sandy Francis, Sisman explained, simply signs her checks, adds the designation "musician," and submits the check to the cashier. It is her signature in that capacity which indicates her complimentary meal or meals. The cashier, on receiving a musician's signed check, marks the ticket off a check control sheet.19 From the cashier, the tickets are taken to the front desk where Hotel's account posting process occurs. One account is for "other meals." Sisman explained that the "other meals" category basically is a managerial account. Personal accounts also are maintained at the front desk for individual musicians, managers, and others. In the given example, that of Francis dining at Sunday buffet with two guests, the appropriate account posting at the front desk would be: two of the buffet meals would be posted to "other meals" and one meal for $12.31 would be posted to Francis' individual or personal account to be paid by her later. As Sisman also explained, there is no cumulative meal bank for complimentary meals not taken by a musician. To attempt to ascertain and record the correct information concerning whether and when the musician worked and ate would create a big adminis- trative problem, Sisman testified. 3. Doll's evaluations Although Gray testified that employees are evaluated twice a year, in January and July, the record contains only six evaluations for Doll.20 They reflect that Doll was rehired on February 1, 1978 (R. Exhs. 15a, e). As Doll testified that she had worked at the Hotel for 7 years, it is apparent that she had an earlier employment period with the Hotel of a few months. I do not consider the reports for the truth of the comments contained in them, but only to show the evaluation record which Sisman reviewed on May 1 when determining what deci- sion to make concerning Doll's Sunday brunch ticketing procedure on April 29. The first evaluation is a progress report, dated May, 17, 1979, and, unlike the other five, is simply a short hand- written memo rather than an evaluation done on a stand- ardized form with blocks to check and spaces in which to write comments. In this 1979 report, Dorothy Steed2l rates Doll as "good" and comments (R: Exh. 15): Violet is a good waitress, but complains about ev- erything. Nothing suits her. The bus help doesn't like to work for her as they cannot please her. She does come on time, but wouldn't come in an extra 19 Sisman did not describe the control sheet However, as each ticket bears a different preprinted number, it appears that the control sheet con- tains a list of all check numbers As the checks come through the cashier, the corresponding number on the control sheet is marked in same fash- ion The control list then shows the numbers which remain outstanding as well as the accounting mark made on the control sheet for each ticket, which has passed through the cashier's stand 20 This is not to suggest that there were others not introduced 21 Personnel Manager Kulaski identified the report and, in this in- stance, Steed's name ARLINGTON HOTEL CO. 31 day. Violet can handle a fair amount of guests at once, but gets excited. Violet's been in the dining room about a year and 8 months. Steed does not record whether she discussed her eval- uation with Doll, and Doll did not say during her testi- mony. It is pertinent to note that Steed's evaluation pre- dates the union activity at the Hotel. The next evaluation, by Laverda Hayes, is dated Janu- ary 29, 1982 (R. Exh. l5e). This report comes just short of 6 months after Doll's August 5, 1981 recall from the strike. Hayes gives Doll good to excellent marks and recommends a pay increase for Doll who signed the evaluation without comment. Six months later, on July 31, 1982, Marjorie Blevins submitted her evaluation in which she marked all four categories (punctuality, job performance, personal ap- pearance, and attitude) as good. Blevins did not add any comments under any of the categories, and Doll signed without making any comment. The next evaluation is by James Travis. He was Gray's predecessor as manager of the VDR. In his Janu- ary 1, 1983 evaluation, Travis marked the boxes for each of the four categories as "good," and he added a com- ment under each category. Under the category for atti- tude toward guests and fellow employees, Travis wrote (R. Exh. 15c): Violet's attitude is generally good. She does tend to be a bit temperamental at times with her attitude to- wards her bosses. Doll signed without commenting, and the form reflects that she received a pay increase from $2.75 to $2.90 ef- fective February 7, 1983. Doll's last two evaluations are by Kathy Gray. The first of these, being the fifth evaluation of record, is dated June 29, 1983 (R. Exh. 15d). Gray marked the boxes as "good" with the exception of the category for personal appearance which she marked as excellent. Gray added a comment under each category. Under punctuality Gray stated that Doll "reports for scheduled shift usually on time." Under job performance Gray wrote, "Usually gives good service to guests-Some- times spends too much time in kitchen." Under personal appearance Gray wrote, "Always neat and clean." For attitude Gray wrote:' Willing to serve guests. Needs to be more receptive to new ideas & methods. Needs improvement in at- titude toward fellow employees. Doll signed and added her own comment: "I have a very good attitude. I disagree with #4 & 2." It happens that about March 1983, while she was VDR supervisor, and before she became VDR manager, Gray decided to rotate the table assignments in the VDR to equalize the earnings opportunities of the waitresses. Previously the table assignments, except for a brief period of about 2 months from early October to about December 1981 under Patsy Daugherty,22 were by se- niority. The best stations were 1, 2, and 3 because they had tables by and near the windows where the customers wanted to be seated.23 The most senior person was Frank- oast name not identified in the record) who had been a waiter for 20 years. He had station 2, the,pre- ferred location. Doll testified that it had taken her 3 years to work up to one of the stations with window tables from Station 5 which was in the worst location. At that time Doll, who ranked third in seniority behind waiter Frank and waitress Marie Halpain, had station I because Halpain preferred station 3. Frank had station 2 in the preferred location. Doll testified that at various times she, as the Union's spokesperson, presented employee grievances to Gray and other managers. When Marie Halpain and Helen Lloyd protested to Doll about losing their seniority rights under Gray's March 1983 rotation formula, Doll presented this complaint to Gray.24 When Gray rejected Doll's complaint,25 Doll appealed to F & B Manager von Salm. Although Doll initially testified that von Salm said he would affirm Gray, it 'is clear, as Gray testified and Doll concedes, that von Salm allowed the waitresses to vote on the matter. According to Doll, the new wait- resses outvoted their more senior colleagues and chose the rotation method. Doll testified that rotation of the stations was still the method as of her termination over a year later. Returning now to Gray's attitude evaluation, that Doll needs to be more receptive to new ideas and methods, I note that Gray repeated the "good" rating which Doll had always received for that category. It is possible that Gray's comment (about needing to be more receptive to new ideas and methods) had a negative impact on Sisman when he reviewed Doll's file on May 1, 1984. Thus, Sisman testified that in reviewing Doll's file he found what appeared to be: A disruptive type of individual, a freelance type of individual, one who chose to take her own actions, make her own determinations as to how, you know, whether she would follow supervision or she wouldn't follow supervision. I felt that in itself was very relative to the incident that happened, the fal- 22 At that time Doll protested the change to Daugherty so vigorously that Daugherty, as noted earlier, gave her the warning (R Exh 16) dated 10-8-81. 22 A diagram of the current arrangement is in evidence (R Exh 32). Although the present arrangement differs somewhat from its 1981 config- uration, it apparently is approximately the same concerning location. I do not credit Gray, who unpersuasively, testified that no station is 'better than any other. In addition to the demeanor factor, I note that Gray's conceded reason for switching to a rotation basis for station assignments was to provide the waitresses with an opportunity for equal earnings Of course, the waitresses rely on tips to boost their pay. 24 The record does not reflect whether waiter Frank had retired by 1983 and whether the most senior waitresses were, or included,' Doll, Halpain, and Lloyd. Doll did testify that she was one of the more senior waitresses in the VDR 25 Gray testified that Doll reacted to the reassignment by cursing, slamming drawers, and disturbing waitresses and guests from 6 a in to 2 p in Doll concedes that she was angry at the 1981 change by Daugherty. She no doubt felt similarly about Gray's decision 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sifying of the check, which was totally an independ- ent decision on her part. Of course, by acting as spokesperson for the Union and bargaining unit waitresses , Doll was engaged in pro- tected concerted activities when she protested Gray's unilateral change of the seniority system of table assign- ments.26 Doll's final appraisal reflects that she was evaluated on January 23, 1984 (R. Exh. 15a). The question of the exact date is unsettled, for it is the same date that Gray arrived at noon. Doll had left shortly after 11 a.m. fol- lowing closing of the VDR.27 As already noted, Doll was suspended later that week for failing to put away the bread tray before leaving the morning of Monday, Janu- ary 23. Gray herself was uncertain regarding the se- quence, and Doll was not asked about 'the sequence. The question of the exact date of either the evaluation or the warning does not appear to be a material issue. Accord- ingly, I shall not seek to resolve it. On this final evaluation, Gray gave Doll reduced rat- ings in the boxes. There are three columns with boxes. One column is for "Excellent," the second for "Good," and the third for "Poor." Gray marked punctuality as good. For job performance sheentered a mark between the good and poor rating. For personal appearance she rated Doll good, down from the excellent rating of 6 months earlier. For attitude Gray first rated Doll as poor, but crossed that mark out and then entered a mark between, the, poor and good boxes. For her comment under punctuality, Gray wrote that Doll was'occasional- ly 5 to 10 minutes late but "never fails to report." Under job performance Gray, wrote that Doll knows her duties but sometimes gets in a rush and forgets. Gray then added that Doll "Cannot handle full station during a la carte because she watches food cook in kitchen." For the personal appearance category Gray wrote that Doll "has lately been coming to work with hair in her face, how- ever, on weekends her hair is nice, neat uniform, pol- ished shoes." For the fourth category of attitude toward guests and fellow' employees, Gray wrote: "Has difficulty getting along with others; has hard time accepting new ideas & procedures." Doll signed this evaluation , and added her own remark under Gray's comment about attitude: "Only when people are nasty to me 1st." 4. Credibility resolutions In making my credibility resolutions, I first have cred- ited the testimony of Sandy Francis. Although Francis was called as a witness by the General Counsel, she gave certain testimony which either contradicts or otherwise undermines that given by Doll in such critical aspects of the case as to demonstrate that Doll was being less than 26 The complaint contains no refusal-to-bargain allegation concerning Gray's changing table assignments from a semonty-based system to rota- tion method Colloquy at the hearing indicates that the General Counsel was not aware of the change until late in the hearing 27 As a VDR waitress, Doll worked 6 days a week, 6 a in to 12 noon during racing season, and 6 30 a .m. to 11 a.m during the rest of the year. For Sunday brunch the waitresses apparently worked until about 2 p in candid as a witness before me. Accordingly, I have been heavily influenced by this in making other resolutions ad- verse to Doll. At the same time I must note that Sisman and Gray did not appear to be candid in all respects either. Indeed, but for the testimony of Francis, my findings could well have been the other way. -C. Discussion 1. Background incidents a. Warning of October 8, 1981 In this written warning to Doll, Patsy Daugherty de- scribed ' the event as (R. Exh. 16): Violet caused a violent argument today with Howard over table 'assignment, defying my author- ity on assignment & yelling at me also & telling me she had seniority it should be her way. In the section for improvement expected , Daugherty wrote that Doll must control her temper on the floor to avoid upsetting employees and guests. As already noted, Doll was protesting because Daugh- erty had decided to rotate table assignments rather than have them assigned based on seniority . Doll denied that she engaged in a violent argument with Daugherty. I do not credit Doll, and I find that she did yell at Daugherty in making her protest. This apparently occurred in the presence of other employees, although I make no finding that there were customers present. There is no evidence that Daugherty made this change because of the union activities of Doll or any other employee. b. Warning of July 13, 1983 The July 13, 1983 warning potentially reflects retalia- tion against Doll, for it closely follows her distribution of union literature regarding the decision of the Eighth Cir- cuit. I credit the Hotel's witnesses on this matter and find that Doll was issued a warning by Gray because of Doll's insubordination in resisting an order to wipe the silverware before placing -it on the tables and not because of Doll's union activities. Doll initially refused, saying she was not paid to do that . However, other waitresses did so. Eventually Doll complied, but she slammed the silverware on the tables. This is not the first time Gray had ever warned anyone for subordination. Thus, the record reflects that Gray had warned an employee, Jerry Cochran, in April 1983 for -insubordination. c. Warning of August 13, 1983 Gray issued Doll a written warning for being 30 min- utes' tardy on August 13, 1983. Doll asserted at the hear- ing that she was late because her electricity went off, and the General Counsel seeks to show disparity by vari- ous time records of others. The records fail to demon- strate disparity, and I -find'that Gray issued the warning to Doll for the simple reason that Doll was late. More- over, the record reflects that Gray had warned others for tardiness on other occasions. I - ARLINGTON HOTEL CO. 33 d. Warning of October 3, 1983 , Although Gray's third written warning, dated October 3, 1983 , to Doll was voided by F&B Director von Salm 8 days later, the record contains a great deal of evidence concerning the topic. This is the warning Gray issued for Doll's alleged insubordination in refusing to get some napkins from the laundry. On this topic I credit Doll and the General Counsel's witnesses concerning the facts of the event. Thus, I find that on October 3, 1983, Gray told Do1128 to go to the laundry (downstairs)' and get some fresh napkins for the dining room at a time when busperson Michael Hicks, whose job it was to supply napkins for the dining room, was in the kitchen and available to do the work . I do not credit Gray's version that she issued the order because Doll was using a paper napkin in her breadbasket.29 There is credible evidence that Gray on occasion, as she did in this napkins incident, tends to bully Doll. In one instance, for example, she stood over Doll while re- quiring her to clean up broken glass. Although Gray has required others to clean up broken glass , she has never stood over them. Moreover, Gray tends to observe Doll more closely than the other waitresses. However, I find that Gray was motivated not from union animus, but from the personality differences between her and Doll. Gray tends to exert her authority. Doll was concerned more with satisfying her customers and maintaining her job standards than with pleasing Gray. Tension resulted from this basic difference in their approach toward each other. When there is tension between supervisor and sub- ordinate, the words of Confucius come to mind:30 The relation between superiors and inferiors is like that between the wind and the grass. The grass must bend when the wind blows across it. 2. Complaint allegations a. Suspension of January 23, 1984 True to his word of October 11, 1983, to Doll, when Doll's next incident occurred, von ' Salm suspended her for 3 days without pay beginning January 26, 1984 (G.C. Exh. 25a). This suspension is based on Gray's issuing a written warning to Doll for her failure to store the bread tray at the end of her shift on January •23. For the most part I credit Gray concerning this event, although I also credit certain elements of the General Counsel's evidence. What happened, I find, is that Doll and waitress Sara Garner, who left work together that day, simply forgot to take care of their final duties. Doll was to put' away the bread, and Garner was to put away the fruit. 28 Doll was in the kitchen to pick up toast to carry to some of the 14 customers she was then serving. 29 It is the responsibility of the waitress to supply and use cloth nap- kins in the breadbasket and, if none are available in the dining room, then the waitress must go to the laundry for them The busperson supplies cloth napkins for the dining room, although waitresses may use any extras from that location. 30 As quoted by Judge Thomas A Ricci in Masterson's Food & Drink, 267 NLRB 248, 252 ( 1983) See also Bartlett, Familiar Quotations, 69-2 (15 ed 1980). Of course, Confucius also emphasized the virtue of justice. At one point that morning there had been a large water spill and, part of the time, workers cleaned the kitchen ceiling from a scaffold. Doll claimed that these items interfered with her access to the bread and that she so told von Salm who would not listen. Gray testified that Doll did not mention such matters. I find that the water spill had been cleaned up before the end of Doll's shift, and that the scaffolding was not blocking her access to the bread tray. In short; I find that Doll seized on these matters as afterthoughts. Accordingly, I shall dismiss the complaint as it pertains to the suspension. b. Discharge of May 1, 1984 (1) Sunday brunch of April 29, 1984 Patrons at the Sunday brunch do not order from a menu, but fill their own plates from a buffet table and then sit at a table in the Venetian Dining Room. During the relevant period, the price for Sunday brunch was $12.31, including tax. Waiters and waitresses simply serve beverages, pour coffee, remove plates, issue checks, and sometimes collect if the customer desires to pay them rather than the cashier. On Sunday, April 29, 1984, Sandy Francis performed at the Hotel. Visiting with her that day were two young men, one of whom was her son Chuck, 19 years old, and his friend from, college, Phil Brown. Before they sat down to dine, Francis and the, two-students agreed that Chuck-and Phil would split the cost of the third meal. After Chuck and Phil selected from the buffet, they were seated at one of the tables being served that day by Doll. Francis knew Doll and also had known' Carol Sisman, Bernard Sisman's wife, for a couple of weeks.3' When Francis completed her piano performance around 1 p.m., she selected from the buffet and joined Chuck and Phil. Even before Francis joined them, Carol Sisman, who was not eating, 32 sat down at the table with the two stu- dents. During the course of the meal, Francis introduced Chuck and Phil to Doll and, on one or more occasions during the meal, Francis and Doll, who had become ac- quainted sometime, after Francis began performing at the hotel, engaged in small talk. Toward the end of the meal, and with Doll present, the earlier matter of Chuck and Phil dividing the cost of the third meal was mentioned, as well as the fact that boys eat a lot. Doll left to service other tables, but on her return'she suggested to Francis: "Well, why don't we write this off to other meals? Man- agers do it all the time." Carol Sisman remarked to Doll, "If there is any problem, tell them they were my guests." Francis testified that she thought Doll was referring to some credit Francis possibly had for second complimen- tary meals not taken in the past, but that she, Francis, said nothing and Doll moved on to other tables. Doll testified that Francis in fact said she did not un- derstand or - asked what the term meant, and Doll ex- plained that Francis got two meals free and Doll would give her a check for the other boy. Francis supposedly ai Carol Sisman did not testify Sisman testified that his wife does not work at the hotel 112 Carol Sisman apparently had a cup of coffee. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said she would take care of it, and Carol Sisman, either then or later, said that she would take care of it, and that Doll left the ticket on the table saying that it was okay because Francis would take care of it. Doll concedes some uncertainty about what she said. Doll rambled with her version and, in the main, I credit only that part which is consistent with the testimo- ny of Francis. Carol Sisman later reported this brunch conversation to her husband. Although Carol Sisman did not testify, Bernard Sisman, the first witness called to the stand, testified that his wife, in her report to him, assert- ed that Francis did ask what Doll meant by "other meals," and that Doll basically did not answer. Carol Sisman's hearsay report was not received for the truth of its contents. Nevertheless, it does tend to sup- port Doll's version that Francis asked and Doll ex- plained, all of which is of no real moment, except for one thing. The significant aspect is the portion of Doll's testimony that her explanation to Francis included the portion that Francis could pay for, in effect, the third meal. This shows that Doll was aware that the hotel needed to be paid for the third meal. Before going further, I must report the ending scene at the brunch table. Francis, whom I credit on this point, testified that when Doll returned to leave the check, she said, "Better yet, why don't I give you the check." Doll concedes that at some point she did make that statement. Doll then laid the check on the table by Francis who signed her name over the title of musician and thereafter left the check with the cashier. The check, bearing number 153619, reflects, in the ap- propriate places, that on April 29 server number 13, at table 22, served one person who had a buffet at the total price of $12.31 (R. Exh. 1). Doll testified that her wait- ress number was 13. There is a dispute concerning whether Francis intro- duced Doll and Sisman to each other at the brunch. In two pretrial statements, Doll asserts that she was not in- troduced. The first one is the May 9, 1984 statement which she gave to the local Arkansas unemployment office (R. Exh. 4). In that one-page statement Doll as- serts that Sisman is a new manager and "I was not ac- quainted with his wife. It would not have made any dif- ference if I had known who she was because I was han- dling Ms. Francis's check the way I always had." The second pretrial statement is Doll's May 15, 1984 pretrial affidavit (R. Exh. 2). At the hearing the follow- ing sentences were read to Doll from page 4 of her affi- davit:33 Mrs. Sisman joined them at the table while they were eating. She just had coffee. I did not know Mrs. Sisman at the time and was not introduced to her at that time. Doll testified that her pretrial affidavit was in error, and that in fact Francis had introduced her and Carol Sisman at the brunch. Francis denied introducing them at the Sunday brunch. Francis assumed that everyone on as As the sentences were read to Doll on the record, Respondent's offer of the affidavit was rejected and the document was placed in the rejected exhibit file. the staff knew ' Sisman's wife, but testified it did not appear at the brunch that they knew each other because Carol Sisman "had her back to" Doll and they ex- changed no words.34 Doll testified that she realized the error of her pretrial affidavit when, a week or more after having given the affidavit to a Board agent, she telephoned Francis and, according to Doll, Francis reminded her that she had in- troduced Doll and Carol Sisman at the brunch. Doll-tes- tified that she telephoned Francis to tell her not to feel upset over Doll's discharge, for the discharge was not because of Francis but because of other reasons. Although Francis agrees that Doll did telephone her, she gives a different version of these points. Francis, whom.I credit in this matter, testified that a month or so after the brunch, or about May 29 or later, Doll called and succeeded in persuading Francis to talk with her lawyer. As part of her appeal to Francis, Doll said: "Sandy, I was only trying to have you not have to pay for that third meal." Although called during the rebuttal stage, Doll was not asked about the foregoing testimony of Francis-The latter also testified that as Doll's assertion was part of her persuasion pitch, Francis made no response to that specific statement. Finally, Francis, whom I credit on the point, denies saying anything in the telephone conversation to Doll about having introduced Doll and Carol Sisman, and she denies introducing them at the table. I therefore find that when she left the check with Francis, Doll was unaware that the woman seated at the table with Francis and the boys was Carol Sisman.35 In Doll's affidavit, the very next sentence following the quotation about not being introduced reads, "I found out later that the lady was Mrs. Sisman." As that sen- tence is properly part of the subject quoted, and highly relevant to this overall issue, I shall consider it as being part of the evidence received. In this connection I note that Sisman, as we shall see, concedes that at the first of two interviews he held with Doll on May 1, Doll chided him for not introducing her to his wife, and that Doll ex- pressed the position that the April 29 brunch had been the first occasion for Doll to see Mrs. Sisman. What actually happened, I find, is that between the Sunday brunch of April 29 and the first interview of Tuesday, May 1, Doll learned that the woman at the table with Francis had been Carol Sisman. As we have seen, Gray testified the check should have shown that three persons ate buffet meals at a unit price of $12.31, or a total of $36.93. Sisman testified that all 34 Of course, the "no exchange" is inconsistent with Francis' testimony that Carol Sisman earlier had told Doll that if there was any problem on the ticket to simply tell "them" that Francis and the boys were her, Carol Sisman's, guests The testimony of all the principal witnesses con- tains inconsistencies Not every inconsistency needs to be, or can be, re- solved. The version I set forth is based on the credited testimony. 35 Doll's remark that "Managers do it all the time" clearly caught Carol Sisman's attention It is unlikely that Doll would have so remarked had she been aware that the woman seated with Francis was Sisman's wife There can be no doubt that Sisman, on learning of Doll's remarks from his wife, was incensed that Doll had talked about charging meals to a managerial account ARLINGTON HOTEL CO. 35 three meals should have been listed on the check and the hotel paid $12.31 for the third meal. Under proper cir- cumstances, the check showing three meals would have been handled at the front desk by posting Francis' two complimentary buffets to the managerial account desig- nated "other meals," and the third meal would have been posted to Francis' personal account. As part of the Hotel's accounting procedure, all com- plimentary checks must be initialed (approved) by Sisman before they are posted. Sisman testified that had he approved this $12.31 check, then the accounting clerk at the front desk would have treated it as a complimenta- ry meal of Francis and posted it to "other meals". Under normal circumstances, the Hotel not only would have lost $12.31 for the third meal, but there would have been no cost accounting (showing expense to the Hotel and compensation to the musician) for the two complimenta- ry meals. Normal events did not prevail here because Sisman, having been alerted by his wife about the Sunday brunch conversation between Francis and Doll, was on the look- out for the check. Had it not been for Carol Sisman's report to him, Sisman admittedly would not have been at all suspicious about the check.36 Indeed, in going through the stack of complimentary checks and invoices he has to approve, Sisman erroneously initialed this check before realizing that it was the.one he was looking for. However, Sisman saw the check, observed that it ac- counted and charged, for only one meal, and pulled the check. Sisman suggested that he was looking for a check signed by Sandy Francis.As earlier noted, the waitress is identified on the check by number, not by name. Doll's number was 13, and that is the number on the check (R. Exh. 1). Sisman then called Gray and inquired which waitress was 13. On being told by Gray that it was Violet Doll, he instructed Gray to bring Doll to his office to discuss a problem. About 5 minutes later Doll arrived at Sisman's office. Before discussing the discharge interview, we need to consider some background for Doll's version of why she wrote the check as she did. First of all, Doll concedes that several years ago the then food and beverage man- ager, whose name she could not recall, not only told the staff that ,a check would always be given to employees who eat, but explained that this was necessary for ac- counting purposes, tax reasons, and to assist the Hotel in ascertaining its, profit and loss. Gray also testified that this has, been a'', standing rule for years, and that a former food and beverage manager named Heinz Graf-Polke (spelling per Hotel's br. at 5) had issued a detailed memo on the subject. The memo was not offered, but there is no dispute about the general rule, and Doll testified that she always followed that rule until the April 29 Sunday brunch with Francis. Doll insists that at one of the VDR staff meetings Gray informed the waitresses that if an employee comes through the (Sunday) buffet line, "You do not need to give a check 'every time." Marilyn Yates Sallee asked 36 Sisman rates the Hotel's internal accounting system as poor in the category of catching errors whether Gray was including musicians.37 According to Doll, Gray replied yes. Gray also added that the staff could sometimes bring their family for the Sunday buffet and that no ticket would need to be made for them. Al- though subsequently called as one of the General Coun- sel's witnesses, Sallee was not asked about this topic.38 I find that Doll's rather brief, even skimpy, testimony on this topic is a garbled report about a larger subject better explained by Gray. Under Gray's explanation, it is clear that Doll mixed separate policies and then distorted them in her description. Gray testified that former F & B Director George von Salm allowed employees of the kitchen and the two dining rooms to select from the buffet after the close of Sunday brunch. No checks were issued to anyone because the food would have been dis- carded, and the employees carried their plates back to the cafeteria or their work stations and not to a table in the VDR. A separate von Salm policy, apparently of more recent origin than the first, involved a privilege von Salm ex- tended to Gray for her VDR employees. Gray testified that von Salm told her she could allow her employees to bring their families in for dinner, brunch, or other meal without charge to them. Gray did tell her staff, including Doll, that they could bring their families for a meal, eat as her guests, and that she would take care of the check.39 She further testified that although no check would be presented to the employee and his family, that she nevertheless would make out one, for accounting purposes, . and did so on the three occasions when em- ployees ate without paying anything.40 Around April 1, shortly after von Salm had departed, Sisman learned about, von Salm's policies. He put an, abrupt stop to them, as Gray credibly testified, on the basis that it was unfair, to the employees of Hotel's other departments. Waiter Michael Hicks, a busperson during that period, confirmed that Gray informed her VDR staff that the former policy of a free buffet for employees had ended on Sisman's order. Hicks was a most reluctant witness as he sat on the witness stand under the watchful gaze of his supervisor, VDR Manager Kathy Gray. I closely ob- served this situation. Hicks testified that he was con- cerned that he might not be promoted and that he did not feel good about , testifying against Gray.41 It was ob- vious that Hicks was extremely uncomfortable having to testify as Gray sat 'before him at the counsel table. In these circumstances, and over Respondent's objection, I granted the General Counsel's motion to receive Hicks' 87 The transcript incorrectly renders her middle name as "Gates" when it should be "Yates" (G.C. Exh 37; R. Exh, 31) Doll simply re- ferred to her as Marilyn Yates, apparently a maiden name. 38 It appears that Sallee quit at the end of the 1984 racing season. 39 Although Gray denied informing employees that no check would be prepared, she never specifically denied being asked about musicians However, the context and thrust of her testimony on this topic impliedly rejects the idea that the, subject of musicians was raised by Sallee or anyone,at the staff meeting , 40 One of these was Gray's family in December 1983, and the other two were employees who came in with their families in March 1984 (R Exhs 35-37) •ERR14#41 As we shall see, some of Hicks' other testimony is adverse to Gray 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 30, 1984 pretrial affidavit on two subjects for the truth of the matters stated therein as well as for clarifica- tion purposes. *ERR13*One of the subjects for which the affidavit was received is the topic of the rule about eating from the buffet. Although that particular point is probably clear enough in Hicks' testimony, his May 30, 1984 pre- trial version describes the first notice by Gray to her staff more succinctly (G.C. Exh 20 at 1): I recall that Kathy Gray back during the racing season used to have short employee meetings before opening, the dining room doors. These were not every day, but just now and then. In one of these meetings Gray said that relatives or family members of employees could have the Sunday brunch with- out the check. She said one family member could eat without a check.She did not give any details about how this could be accomplished. She said there would be no charge. She also said that the employees could eat free from the buffet. She did not say anything about we had to have a check. I have eaten almost every Sunday brunch and have never had a check. I eat from the brunch all the time as does my little brother who is an employee and we never get a check. I do not recall Gray saying anything about the mu- sicians in that meeting or any other meeting. Based on the evidence, including the concise report by Hicks in his pretrial affidavit, I find that the von Salm policy consisted of two parts. The first policy related to selecting from the buffet by employees after the VDR had closed. The other policy pertained to Gray's being able to have her staff employees come to dinner with a member, or members, of their families as the guests of the Hotel. I further find that in announcing this second policy to her staff, the issue of musicians did not arise. Finally, I find that around April 1 Gray informed her staff that Sisman had terminated both policies. From Doll's own testimony concerning her knowledge of the "other meals" accounting procedure, it is clear that Doll knew that if she gave Francis a check showing only one buffet, that the $12.31 would be allocated to "other meals" based on the signature of Francis over her title of musician. Doll testified that in the past she gave Francis a check, even when other waitresses told Doll they did not give checks to the musicians,42 but deviated 42 There is a mixed record on this point. Sometimes they did and sometimes they did not, even when the musicians sat at a table in the VDR There is no dispute that when the musicians , such as Francis, se- lected from the Sunday buffet and carned their plates into the adjoining, and vacant, Silk and Saddle room, that no waitresses served them and no checks were issued to them Marilyn Yates Sallee testified that she some- times ticketed the musicians and sometimes did not because she was un- certain about the correct procedure About hied-April 1984 she asked a cashier who told her to give the musicians a check, and Sallee did so thereafter. It appears that the reason the waitresses did not like to issue checks to the musicians was because of the recently modified Federal tax rules Under the new tax rules, waitresses may be deemed to have received a certain percentage of the restaurant's gross receipts in tips, yet the musi- cians, Doll testified, never left tips from her practice on this occasion because Francis sup- posedly had asked Doll, on many occasions, why she gave her a check when the other waitresses did not.43 There is credible evidence that before Sisman had complete charge on April 1, Francis would not always receive a check from the waitresses, and that Doll had given her checks in the past. Further credible evidence shows that after May 1, the date of Doll's discharge, checks were issued to Francis far more frequently. Al- though these facts are interesting, they mainly support Sisman's position that the Hotel's internal accounting system needed tightening up.44 That checks were issued more frequently to Francis after Doll's discharge probably shows more that Re- spondent was galvanized into further action, after learn- ing of new facts from Doll at her discharge interview. Moreover, we cannot overlook that in early April Sisman abolished the free meal privileges for the staff of his entire food and beverage department. That the Hotel has been more efficient after May 1 in issuing checks to Francis or others is more consistent with Sisman's desire for efficiency and internal accounting security than with demonstrating an unlawful motive, by showing disparity, in the discharge of Doll. (2) Doll discharged As earlier noted, Sisman testified that his wife, Carol, informed him of the Sunday brunch conversation be- tween Francis and Doll. He testified that his wife told him of Doll's comment that the check could be posted to "other meals" because "that is what all the other manag- ers do." Francis, Carol Sisman allegedly reported, in- quired whether the procedure was correct, and Doll as- sured her that it was. A few minutes later Doll returned to the table, Sisman testified, and stated that she would just make out the ticket for one meal and that Francis could sign for that. On May 1, with his wife's report and after locating Francis' check, Sisman, as previously mentioned, sum- moned Doll to his office. Present for this first of two meetings that day were Sisman, Gray, Doll, and waitress Rita Taylor, who accompanied Doll as a Weingarten45 witness.46 All four testified, and the findings I make on this meeting are a composite of the testimony of all four. At this first interview Sisman handed the buffet check to Doll and asked her to explain what she knew about it. Doll replied that it was Sandy Francis' check. Sisman asked if there were not more persons at the table. Doll replied "Yes," that in addition to Francis was her son and another person, and that Mrs. Sisman had joined them.47 To Sisman's question of why she had not 43 Francis was not asked to confirm or deny whether she did so in- quire of Doll 44 I also have considered these facts in relation to Doll's testimony that Gray told employees at a staff meeting that employees did not have to ticket musicians The evidence previously discussed is more persuasive that Gray never said the musicians did not have to be ticketed. 45 NLRB v. J. Weingarten, 420 U S 251 (1974) e 46 Taylor testified that she is vice president, and a steward for the Union. 47 Sisman concedes Doll chided him for not previously introducing his wife, for that brunch was Doll's first occasion to see Mrs Sisman The Continued ARLINGTON HOTEL CO. 37 charged for three buffets, Doll answered that Francis and her son got their buffets free. Sisman asked, "Who are you to make any decisions?" Doll responded that she had made no decisions. Then Sisman asked why she did not charge for them. Doll looked at Gray and asserted that Gray had told the staff several times that employees did- not have to pay. Gray responded, "I just told you I would take care of it." This exchange between Doll and Gray occurred two or three times during the interview. Doll said she could get witnesses to support her asser- tion about what Gray had told the staff. Sisman said he would be interested in talking with such witnesses be- cause if Gray had told her staff, as Doll represented, then the problem was with Gray and not with Doll. Nothing further was said about witnesses, and Doll did not, in the meeting or before the second meeting, seek to furnish any witnesses. At some point Doll asked whether Sisman had called her in because she was the union president and they were in contract negotiations. Sisman denied that was the reason. He added that he had worked with unions, and that some were good and some were bad.48 Sisman asked Doll if she knew that what she had done was wrong. Doll denied doing anything wrong. This ex- change was repeated a second time. The third time Sisman asked if Doll realized that she had made a mis- take, and on this occasion Doll admitted that she had made a mistake.49 Sisman then said that the meeting was over and that Doll and Taylor could return to their sta- tions while he considered matters and talked with Gener- al Manager Fischer. Gray, Doll, and Taylor returned to work, and Sisman telephoned Fischer and reported the situation to him.so Sisman said he thought it was grounds for termination, but he asked Fischer what he thought should be done. According to Sisman, Fischer said he felt he, Fischer, should keep his distance from the matter because he was involved with the Union in negotiations. However, Fischer added, he felt that the issue should be handled under the rules in Respondent's handbook, and he direct- ed Sisman to discuss the matter with Personnel Manager Jo Ann Kulaski. As already summarized, Sisman tele- phoned Kulaski who reviewed the file with him first over the telephone and then in person. chiding does not necessarily imply that an introduction occurred at the table. It can also mean simply that it was the first time for Doll to see the person Doll subsequently learned was Sisman's wife. 48 At the hearing Sisman initially was less than candid when he testi- fied that Doll's question was his first inkling that she was associated with the Union On being shown his pretrial affidavit admitting being told by a customer 2 to 4 weeks before Doll's discharge of her involvement with the Union, Sisman disingenuously sought to parry the thrust of the affida- vit with various clarifications. Sisman's effort was unavailing and unper- suasive He testified with an unfavorable demeanor and I do not credit him on this issue Indeed, rather than it being a customer who alerted Sisman to Doll's activities with the Union, I find it far more likely that either Fischer or possibly Gray was the source of his information. Gray admitted that she was aware that Doll was attending the contract negoti- ations because Doll occasionally requested time off to attend them 48 At the hearing Doll denied that she made any mistake, and asserted that she made the admission only because Sisman was harassing her 50 Fischer did not testify Sisman testified that from his review of Doll's person- nel file, he determined that Doll was basically "a disrup- tive type of individual, a freelance type of individual, one who chose to take her own actions, make her own determinations as to how, you know, whether she would follow supervision or she wouldn't follow supervision. I felt that that itself was very relative to the incident that happened, the falsifying of the check, which was totally an independent decision on her part." - Sisman was not examined concerning the specific grounds he was relying on. I therefore find that he was relying on all of Doll's prior evaluations and warnings in forming his-opinion of her'. . About 30 minutes or so following the close of the first interview, Sisman called Doll back for the second and final meeting. 51 - The second meeting appears to have been brief. Present were Doll, Gray, and Sisman. Taylor was busy and unavailable to attend. Sisman informed Doll that he would have to terminate her. Doll offered to pay for the difference, but Sisman said no. She asked if she could prepare another correct check for Francis to sign, but Sisman said he could not do that.-Sisman then told Doll she was not to contact Francis regarding the matter. Sisman told Doll that she had falsified hotel records and misappropriated hotel funds. Doll threatened to go to the National Labor Relations Board, and the meeting ended. (3) Conclusions It is clear that Doll knew when she gave the $12.31 check to Francis for a single buffet that she would be permitting Francis and her two guests to eat a total of three meals free. Doll was well aware that Francis was entitled to two-complimentary meals, not three. Yet Doll told Francis in their telephone conversation a month or so later that she intended for Francis to get the third meal free. At the hearing Sisman testified that the reasons Doll was terminated were, "Falsifying company records, mis- appropriating company funds, basically thievery." Of course, Doll received no personal financial benefit by writing the check as she did for Francis. Moreover, it is very clear that this was not some collusive scheme be- tween Doll and Francis. What happened, I find, is that Doll simply took it upon herself to exercise a managerial prerogative. I credit Doll concerning her subjective understanding that in the past Gray had authorized the waitresses to ticket a musician in this fashion on infrequent occasions. Howev- er, the record also reflects that in April Gray announced that Sisman had terminated the "freebies." If Doll had a question on April 2 concerning the matter, she easily could have asked Gray, who was present, or the cashier, for a clarification. s 2 51 Doll estimated the time lapse at only 10 to 15 minutes, whereas Sisman and Gray place the interval at 45 to 60 minutes 52 Waitress Sallee so inquired in April and that clarified the matter for her Of course, the fact that Sallee needed a clarification reflects that Gray had not thoroughly informed her staff that Sisman had canceled von Salm's policies 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the statutory question is not simply whether Doll did wrong, but whether the Hotel was unlawfully motivated in discharging her. Stated differently, has the General Counsel demonstrated that this is a case of mixed motives, one motive being to discharge Doll be- cause of her error, the other being to get rid of a princi- pal union activist? And, if so, has the Hotel shown that it would have terminated Doll in any event? The General Counsel and the Union argue that Sis- man's ground of cost accounting is pretextual. They point to the fact that in the past employees freely ate from the buffet with no checks issued. Of course, that is before Sisman canceled the von Salm policies in April 1984. Observing that Sisman admittedly did not have the ac- counting department make a belated billing to Francis' personal account, even though Francis told him a few days later-53 that she expected the third meal to be de- ducted from her pay, the Union apparently contends that not only is the accounting ground a pretext, but so also is the loss of $12.31. Sisman never testified why Francis was not billed for the third meal. There is some weight to the Union's argument on this "point, but it is insuffi- cient. There is no evidence showing animus by Sisman, and although his personal animus, or lack thereof, is not con- trolling, it certainly is a significant factor. However, it is true, as already noted, that Sisman's credibility was dam- aged when he initially denied knowing of Doll's union activities before her discharge meeting. The General Counsel correctly observes, brief at 22, that the Board is not compelled to accept an employer's stated reason for discharging an employee. Indeed , in an appropriate,con- text, an administrative law judge may find that the true facts are the opposite of what a witness asserts in his tes- timony. I am not persuaded that this is the appropriate case. Was Sisman's decision to terminate Doll unduly harsh in light of certain facts and therefore indicative that the discharge was unlawfully motivated? There is some force to this argument, but it is only slight. First, Sisman was aware that there was some question concerning the re- cently canceled von Salm policies. He left it to Doll to produce the witnesses' she mentioned, but she failed to do so. Perhaps Sisman should have interviewed the other waitresses out of an abundance of caution.-He did not do so, but relied instead on Gray's response that she had merely told her staff she would "take care of it." There is no evidence that the Hotel has ever dis- charged anyone for intentionally undercharging a cus- tomer. On the other hand, there is no evidence that anyone has ever knowingly undercharged in the past. There is, evidence that the Hotel has given "second chances" to employees in other situations. One of these involved an employee only 16 years of age, and another pertains to an employee who had attendance problems. Neither situation seems closely relevant. Moreover, both cases predate Sisman's arrival. I conclude that Sisman, as he testified, considered the falsification of the check to be a very serious matter. I credit his testimony that on that ground alone, he would have discharged Doll. Accordingly, I shall dismiss the complaint in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The ILGWU is a labor organization within the meaning of Section 2(5) of the Act. 3. By suspending Violet Doll for 3 days on January 26, 1984, and by discharging her on May 1, 1984, Re- spondent did not violate Section 8(a)(1) and (3) of the Act. On these findings of facts and conclusions of law, and on the entire record, I issue the following recommend- ed54 ORDER The complaint is dismissed. 54 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall as provided in Sec 102 48 of the Rules be ado ted b the P y 58 When he telephoned Francis to tell her of Doll's termination before Board and all objections to them shall be deemed waived for all pur- Francis heard about it from others. poses