Quality Inn-Lax

QUALITY INN-LAX 1283 1 Quality Inn-LAX and Hotel Employees and Restau- rant Employees International ' Union, Local No. 814. Case 31-CA-15077 30 July 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 2 May 1986 Administrative Law Judge Earl- dean V.S. Robbins issued the attached decision. The Respondent and the Charging Party filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief. 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, I and conclusions and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The Charging Party and Respondent have excepted to some of the judge's credibility findings. The Board's established policy is not to over- rule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct. 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 reversing the findings. Bernard T Hopkins, Esq., for the General Counsel. Clifford H. Nelson Jr., Esq. (Mack, Caldwell, Steckel & Nelson), of Atlanta, Georgia, for the Respondent. Kenneth Young. Esq. (Wohiner, Shelley & Young), of Los Angeles, California, for the Charging Party. DECISION STATEMENT OF THE CASE EARLDEAN V.S. ROBBINS, Administrative Law Judge. This matter was heard before me in Los Angeles, Cali- fornia, on 21 and 22 November 1985. The charge was filed by Hotel Employees and Restaurant Employees International Union, Local No. 814 (the Union) on 5 June 1985 and a copy was served on Quality Inn-LAX (Respondent) on 6 June 1985. The complaint, which issued on 31 July 1985, alleges that Respondent violated Section 8(axl) and (3) of the National Labor Relations Act (the Act). The basic issue is whether Respondent discharged Joseph M. Gonzalez because of his activities on behalf of the Union. On the entire record,' including my observation of the demeanor of the witnesses and after due consideration of the briefs filed by the parties, I make the following FINDINGS OF FACT I. JURISDICTION At all times material, Respondent, a Delaware corpo- ration, has been engaged in the operation of a hotel and restaurant in Los Angeles, California. Respondent, in the course and conduct of the business operation, annually derives gross revenues in excess of $50,000 and annually purchases and receives goods or services valued in excess of $50,000 directly from suppliers located outside the State of California. The complaint alleges, Respondent admits, and I find that Respondent is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Respondent is one of a chain of about 30 hotels owned and operated by Quality Inn Hotels and Resorts, a divi- sion of Manor Health Care.2 The LAX hotel has 276 rooms and approximately 125 employees working on three shifts. There are about 40 employees in the house- keeping department, including several housemen. One houseman works on the graveyard shift and, about half of the time, one works on the swing shift. The remainder of the time there are two housemen on the swing shift. Gonzalez began work at Quality Inn-LAX in August or September 1984 as a houseman. He was responsible for the cleaning of the downstairs area, which included the restaurant and other public areas. During the last few months of his employment, he worked the 3 to 11 p.m. swing shift and, during the period, was responsible for providing guests with towels, glasses, bedding, et cetera, as specifically requested by the guests. The executive housekeeper was his sister, Rachel Leonardo. The other supervisors in the housekeeping department were Maria Leone and Ofelia Herrera. In April 1985,$ Gonzalez began to discuss with other employees the possibility of obtaining union representa- tion. On 25 April he and another employee went to the Union's office where they spoke with Business Agent Doug Vance who gave Gonzalez flyers describing union benefits and blank union authorization cards to distribute ' During the course of the hearing I denied Respondent's motion to dismiss the complaint because the Charging Party had represented that it did not have in its possession subpoenaed union authorization cards when, in fact, it did have copies of the cards . The General Counsel's motion to quash the subpoena for the original of these cards had already been granted. In its posthearing brief Respondent moved for a reconsid- eration of this ruling. Respondent's motion is denied. a Manor Health Care also owns 100 to 150 nursing homes. Unless otherwise indicated, all dates will be in 1985 280 NLRB No. 145 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to fellow employees. Later that day, Gonzalez began so- liciting signatures from fellow employees on union au- thorization cards. He was assisted in this activity by sev- eral other employees, including Leone, Herrera, Eduardo Quadros, and Kim Branch.4 In May, shortly before he was terminated, Gonzalez turned in to the Union ap- proximately 57 to 60 union authorization cards. Of these, according to Gonzalez, less than 10 had been solicited by other employees. He continued to solicit authorization cards until he was terminated. On 10 May, according to Gonzalez, James Perry, Re- spondent's personnel and payroll director,5 introduced Gonzalez to Oscar Vidaca and stated that Vidaca was a new employee who was to work directly with Gonzalez. Gonzalez told Vidaca it was a bad time for him to start because of the management situation, that if Respondent found out he was getting union authorization cards signed, Vidaca would be in the middle of everything. Thereafter, Perry left and Vidaca and Gonzalez went to the housekeeping office where Gonzalez explained his job duties and responsibilities. Gonzalez then took Vidaca on a tour of the property and explained what his job duties would be in each area. After they worked to- gether for 2 or 3 hours, Gonzalez suggested that the best way to get the job done was for them to separate. This was about 5:30 to 6 p.m. Gonzalez testified that thereaf- ter, they had no further contact until the end of the shift at 11 to 11:30 p.m., however, in his prehearing affidavit he stated that Vidaca remained with him for the remain- der of the shift. Gonzalez was off duty on 11 and 12 May. On 13 May Leonardo came to Gonzalez' apartments and told Gon- zalez she had been told to discharge him. According to Gonzalez, he asked why he was being discharged. Leon- ardo said that, as far as she was concerned, he was not discharged but that Gregory Blanch, the general manag- er of the LAX facility, had called her at home and asked what she would do if she caught one of her employees smoking marijuana in a room. Leonardo replied that she would discharge the employee. Whereupon Blanch said he wanted her to discharge Gonzalez. Leonardo said she would not discharge him, that Blanch would have to do it himself. Leonardo also told Gonzalez that Blanch said Gonzalez would be arrested if he returned to the hotel. Gonzalez testified that he then telephoned Blanch. Blanch told him there was no reason for him to come to the hotel, that he no longer worked there. Gonzalez said he would be there anyway. Gonzalez did go to the hotel where he telephoned Respondent's corporate office in Maryland from the housekeeping department and spoke to John Riley, head of the employee relations depart- ment. According to Gonzalez, as he was speaking with Riley, Blanch and George Martinez from the mainte- nance department walked into the housekeeping office. Blanch told Gonzalez to hang up the phone and get the "hell" off the property because he had no business there. * The parties stipulated that Leone, Herrera, Quadros, and Branch were low-level statutory supervisors and, with the exception of Branch, had no regular daily contact with General Manager Gregory Blanch. I There is no evidence on the record that Perry has any supervisory or managerial authority. They lived in the same apartment building. Blanch further said that Gonzalez was fired and should get his belongings and leave the property. Whereupon Gonzalez asked Riley if he heard what Blanch had said. Riley said he had heard it and the best thing for Gonza- lez to do was to get off the phone and call him back from a pay phone.? Gonzalez terminated the telephone conversation. Later that day when he picked up his pay- check, Gonzalez was given a termination notice which stated he was being terminated for smoking marijuana in an unoccupied room. Gonzalez also testified that, 2 or 3 days after his termi- nation, Jones telephoned him at home and gave him an opportunity to explain his version of the events leading to his termination. According to Gonzalez, he told Jones he was discharged because of his union activity and not for smoking marijuana in an unoccupied room. Jones asked if Gonzalez had been smoking marijuana in the room. Gonzalez said no, and that the reason he was dis- charged was because he was trying to get a union on the job. Jones asked if it was true that he was trying to get a union. Gonzalez said it was. Jones asked why. Gonzalez said the employees needed a union because they needed to be protected, that they were working too hard for the money they were being paid, and they were treated as robots and animals, not human beings. Gonzalez said that he felt he had been set up and that he had been harassed by the security guards and had written letters and memos regarding this. Jones said there would be an in- vestigation into the matter and he would be in touch. Vidaca testified that in 1983 and 1984, when he was employed at the Holiday Inn in Torrance, he worked with Paul Mance and Bill Bosnyak from time to time as an undercover operative principally concerned with pre- venting minors from drinking on the property. In May, Mance told Vidaca that Respondent was having prob- lems at its LAX facility and asked if Vidaca wanted to work at that facility as an undercover operative. He said that there was a problem with theft at the facility and Vidaca should watch for thefts of blankets, bedspreads, silverware, ashtrays, matches, et cetera. Mance named no suspects and made no mention of any union activities. Thereafter, Vidaca spoke to Blanch over the telephone at which time Blanch told him there was a theft problem at the facility and asked when Vidaca would be available to begin work there. Vidaca said he could work Friday, Saturday, and Sunday evenings.8 Blanch instructed him to report to Jim Perry. Vidaca also testified that on Friday, 10 May, he re- ported to Perry as instructed. Perry then introduced him to Gonzalez, and told Gonzalez that Vidaca would be working with him and to show him around. Both Perry and Vidaca deny that Gonzalez mentioned anything about union activity in Perry's presence. After Perry left, Gonzalez told Vidaca he should take his time and not work too much. Gonzalez further said that whenever he was called to do something, he took his time, say 15 to 20 minutes, until he felt it was time to perform the re- ' At an earlier time Employee Relations Manager David Jones had been in the LAX facility and had given the employees an 800 number to call if they had any problems. 8 Vidaca was employed on another job at the time QUALITY INN-LAX quested task. During that evening, Vidaca saw no evi- dence of theft other than an incident where Gonzalez, while stocking a Coke machine, gave other employees, without charge, cans of soft drinks. However, another incident allegedly occurred which led to Gonzalez' discharge. According to Vidaca, while he and Gonzalez were checking rooms, Gonzalez asked him if he smoked pot; to which Vidaca untruthfully re- plied that he did. They then went to the housekeeping office where Gonzalez made a telephone call. Vidaca claims he did not overhear the telephone conversation. However, after they left the office, he asked Gonzalez what his girlfriend had told him. Gonzalez said, "Oh, nothing." Then Gonzalez said, "If you become an under- cover cop, I'll throw you from the tenth floor." They then went into one of the guestrooms where they watched television for about 20 minutes and Gonzalez smoked a marijuana joint. He offered the joint to Vidaca, who took a drag, immediately started coughing, and thereafter refused to continue smoking. He did remain in the guestroom watching television while Gonzalez fin- ished the joint of marijuana. The following morning, Vidaca reported to Mance that Gonzalez had smoked pot while on duty. According to Vidaca, no mention of the Union was made in this conversation. Vidaca also reported to Blanch that he and Gonzalez had smoked pot in a guestroom the previous evening and told Blanch that he was going to prepare a written report for him explaining what happened . Vidaca further testified that he prepared the report on Friday night and Blanch sent one of Respondent's security guards to Vidaca's regular place of work to pick up the report on Monday. He spoke to Blanch on the telephone on both Saturday and Sunday and, according to him, re- ported that Gonzalez had passed out Cokes to employees and had stated that he did not want to work hard. How- ever, neither of these incidents was mentioned in his written report. He denies that the Union or union activi- ty was ever mentioned in his conversations with Blanch. Vidaca worked in the maintenance department on Sat- urday and Sunday but saw no evidence of thievery. On Monday, when he telephoned Blanch again, Blanch told him Respondent had no further need for his services. Blanch testified that he discharged Gonzalez because of Vidaca's report that Gonzalez had smoked marijuana while on duty. He made the decision on Saturday but did not communicate it to Gonzalez until Monday. He denies that Vidaca was hired to watch Gonzalez. Ac- cording to him, when he was transferred to the LAX fa- cility in early April he found a variety of operational problems, including an inadequate inventory control system and problems in the housekeeping department with theft. Another major area of concern was lax em- ployee work habits which he considered to be the result of several changes in general managers over the past 2 years. To combat these problems, he immediately initiat- ed a series of regular meetings with department heads so he could indicate what he expected of them and their subordinates. Also, in an attempt to rectify problems with illegal entry into rooms by unknown persons and what seemed to be an internal theft problem , he initiated a security guard program. 1285 Blanch further testified that it was his decision to bring an undercover person into the hotel in order to obtain information concerning the identity of persons involved in theft. Paul Mance, head of Repondent's security force, recommended Vidaca. During a discussion with Mance, Blanch decided that the undercover person should be employed under the guise of a work-study student from a local school so he could be rotated into different de- partments. He denies that either unions or Gonzalez was mentioned during this conversation. Some time during the week prior to 10 May, accord- ing to Blanch, Vidaca telephoned him and introduced himself as the person Mance had recommended. Blanch said there was a problem with theft in three possible areas-housekeeping, maintenance , and food and bever- age. They discussed Vidaca's availability and arranged for him to commence work at the LAX facility on the following Friday. Blanch instructed Vidaca to observe and report back to him. Nothing was said during this conversation about either unions or Gonzalez, nor was a definite period of employment discussed. The plan was for Vidaca to work in housekeeping one night, then in maintenance for a couple of days, and then in the food and beverage department. However, accord- ing to Blanch, once he decided to discharge Gonzalez based on Vidaca's report, he had to inform the heads of the housekeeping, maintenance, and payroll departments of the discharge and the reason therefor. Once this had occurred, he felt Vidaca would no longer be able to work undercover. Therefore, Vidaca was told not to return after he completed work for that weekend. No other undercover person was hired . Blanch denies that this was because Gonzalez had been discharged and testi- fied that he did not hire another undercover person be- cause he did not know another one. Blanch also testified that at the time of Gonzalez' dis- charge, he was unaware of any organizing activities among Respondent's employees. However, he had been told at the time of his transfer to the LAX facility that some of the employees had expressed concerns about wages and benefits and that David Jones from employee relations had met with a group of employees just prior to Blanch's transfer. He also denies that Gonzalez was dis- charged for any reason other than his use of drugs while on duty. Blanch further testified that when he was the manager of a Quality Inn in North Carolina, he discharged an em- ployee in the fall of 1983 for smoking marijuana in one of the banquet rooms and in January or February 1984 he discharged another employee for drinking while on duty. According to Blanch, he did not investigate the Gonzalez-Vidaca marijuana incident prior to the dis- charge because he believed that Vidaca was a reliable source of information in that he had been recommended by the head of security who had used him in a similar manner on other occasions. Further, because Gonzalez never filed a grievance, no postdischarge investigation was conducted. Kim Branch, who was Blanch's administrative secre- tary until she was terminated on 17 June, testified that on 30 April or 1 May Blanch asked her to come into his 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. He then asked if it was true that she had been handing out union cards with Gonzalez. Branch said she was not physically walking around distributing them with Gonzalez but, yes, she was distributing union au- thorization cards. Blanch asked where she obtained the cards; to which Branch replied that she had obtained them from Gonzalez. Blanch said thank you. Branch asked if that was it. Blanch said yes and Branch returned to her desk. Blanch denies questioning Branch in this regard. Conclusions The General Counsel contends that the marijuana inci- dent never occurred and that Respondent and Vidaca acted in concert to fabricate the alleged incident. Fur- ther, the General Counsel argues, the pretextual nature of the asserted reason for the discharge indicates the real reason was unlawful because Gonzalez had no special significance as an employee other than his predominant role in the union organizing campaign. Respondent con- tends that the record evidence is insufficient to establish either knowledge or animus and thus the General Coun- sel has failed to establish a prima facie case of unlawful discharge. I am unconvinced by Respondent's argument regard- ing a prima facie case. I do not credit Blanch's denial of knowledge of Gonzalez' union activities. In this regard, Branch impressed me as an honest, reliable witness who was endeavoring to tell the truth and I credit her testi- mony that, prior to Gonzalez' discharge, Blanch ques- tioned her concerning whether she was assisting Gonza- lez in soliciting signatures on union authorization cards.9 I also credit Vance's undenied testimony that, prior to Gonzalez' discharge, he notified Jones of the Union's or- ganizational activity. I fmd it incredible that Jones did not inform Blanch of this activity. In view of Gonzalez' role as the principal employee union organizer, Blanch's inquiry to Branch which indi- cated he had knowledge of such activity and the timing and abrupt nature of the discharge, I fmd that the Gener- al Counsel has made out a bare prima facie case. Howev- er, I further fmd that Gonzalez would have been dis- charged even in the absence of his union activity. In reaching this conclusion I have carefully considered, and reject, the argument of the General Counsel and the Charging Party that the assignment of Vidaca to a shift where he would have minimal contact with employees other than Gonzalez and the failure to retain or replace Vidaca indicate that Vidaca was hired "to set up" Gon- zalez. The evidence is uncontroverted that Respondent had a theft problem. Even Gonzalez admits that he had seen memos related thereto. Blanch's explanation that Vida- ca's availability for "moonlighting" work dictated his Y Since she was a supervisor and Blanch's secretary, I do not find it odd that there is no evidence that Blanch questioned other employees. work hours and that he knew of no one to replace him is not unreasonable. Further, if Respondent wanted to con- trive a reason to justify discharging Gonzalez, it could have been accomplished equally as well, or better, by the security guard rather than using a guard to secure a third party to concoct a false story. In the circumstances, par- ticularly in the absence of evidence that Respondent re- sponded to the Union' s organizational activity by engag- ing in other unlawful conduct and in view of Branch's promotion after Blanch learned of her union activities, I find the evidence insufficient to warrant an inference that Blanch hired Vidaca to fabricate an incident which would justify Gonzalez' discharge. The General Counsel's argument that the marijuana in- cident never occurred is based solely on Gonzalez' testi- mony which conflicts with that of Vidaca. I found both Vidaca and Gonzalez to be unreliable witnesses, each of whose testimony contained a number of inconsistencies and implausibilities. However, even assuming arguendo that Gonzalez' version is credited, in circumstances, such as here, when there is no evidence of animus directed toward Gonzalez and no evidence of other unlawful ac- tivity; and in view of Respondent's rule prohibiting the use of drugs and alcohol by employees on duty and evi- dence that Blanch had discharged employees in the past for breaking this rule, I fmd the evidence insufficient to controvert Blanch's testimony that Gonzalez was dis- charged because Blanch relied on Vidaca's report that Gonzalez had smoked marijuana while on duty. Accordingly, I fmd that the evidence establishes that Gonzalez would have been discharged even in the ab- sence of his union activity. I therefore find that his dis- charge did not violate Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, engaged in commerce or a busi- ness affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in unfair labor prac- tices within the meaning of Section 8(a)(1) and (3) of the Act as alleged in the complaint. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edto ORDER It is ordered that the complaint is dismissed in its en- tirety. 1° 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 adopted by the Board and all objections to them shall be deemed waived for all pur- Poses