Salisbury Hotel, Inc.

SALISBURY HOTEL 685 Salisbury Hotel, Incorporated and Cheryl Resnick. Case 2-CA-17955 21 April 1987 DECISION AND ORDER BY CHAIRMAN .DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 14 September '1982 Administrative Law, Judge Steven B. Fish issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel 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,' and conclusions and to adopt the recommended Order as modified. The judge found the Respondent violated both Section 8(a)(1) and Section 8(a)(3) by discharging employee Cheryl Resnick for the following rea- sons: (1) because she complained to other employ- ees, and to the Respondent, about a change the Re- spondent made in its lunch hour policy; (2) because she contacted the United' States Department of Labor regarding the change; and (3) because the Respondent mistakenly believed Resnick had en- gaged in union activities., In fmding that Resnick engaged in "concerted activities" within the mean- ing of Section 7 of the Act, the judge relied in part on,the Board's decision in Alleluia Cushion Co., 221 NLRB 999 (1975). Since the judge's decision in this case issued, however, the Board overruled Alleluia in Meyers Industries (Meyers I)2 and set forth a defi- nition of "concerted activities" under which indi- vidual activity generally must be "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself"2 ' The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative 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 reversing the findings. In sec. II, par. 15, of his decision, the judge erroneously stated employ. ee Cheryl Resnick was assigned to fill in for employee Margaret Dean on 25 December 1980. The correct date is 27 December. The last citation in, In. 33 of the judge's decision should read "Wa- terbeds W' Stuff, 238 NLRB 873, 876 (1978), enfd. 652 F .2d 601 (6th Cir. 1980)." 2 268 NLRB 493 (1984), remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Or 1985), cert. denied 474 U S, 948, 971 (1985). ' 268 NLRB at 497. The Board recently reaffirmed its definition in Meyers 11 .4 Pursuant to the Meyers decisions, we adopt the judge's conclusions, but only for,the fol- lowing reasons. I. The Respondent operates a New York City hotel and hired Cheryl Resnick in May 1980. All the Re- spondent's employees are represented by one of five different unions except those employees who work in the Respondent's executive office, ac- counting department, and front desk and reserva- tion department. Resnick applied for a- position as combination switchboard operator (a union-repre- sented classification) and reservations clerk (an un- represented classification). When interviewed, Res- nick adamantly objected to becoming affiliated with, or a member of, any union. Consequently, the Respondent's president and chief operating; officer, Willis Dadukian, who interviewed Resnick, had Resnick assigned to more hours as reservations clerk than as switchboard operator.5 In December 1980 the Respondent changed its lunch hour policy. Previously, the Respondent per- mitted its reservation desk employees to forgo their lunch hour and leave an hour early or report to work an hour later. In December it decided that it would require all employees to_ take a lunch hour break and work their entire shift. Although the policy change was to apply to all employees, Front Office Manager Chris LaPenta, who announced the change, indicated that only women were' required to take the break. LaPenta testified that he at first told the employees "everybody hal[s] to take it." When employees asked LaPenta why, LaPenta re- sponded, "Because it's the law. And women have to take alunch hour." According to LaPenta, "everybody balked" at the 'change and was "all up in arms." Employees, including Resnick, complained among themselves about the change, and Resnick and most of the others complained directly to LaPenta. Resnick proved to be'the most vocal complainer. Later, Resnick called the United States Depart- ment of Labor and asked whether the Respondent's new, policy was lawful. The department told Res- nick it was unlawful to apply the policy only to women and Resnick told this to 'LaPenta. LaPenta said he "stood corrected," and that "from then on everybody was taking lunch hours." Resnick also told Resident Manager Kurt Thomas what she learned, 4 Meyers Industries, 281 NLRB 882 (1986). Member Johansen did not participate in Meyers II. 5 The General Counsel has not alleged that Resnick's assignment vio- lated the Act. 283 NLRB No. 101 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD There is no evidence that any employees knew in advance that Resnick would call the department or that they authorized her to call on their behalf. The Respondent decided to discharge Resnick in mid-December. Both LaPenta and Dadukian testi- fied that at least one of the reasons for the Re- spondent's decision was Resnick's resentment to- wards, and complaints about, the Respondent's lunch hour policy. They decided to defer discharg- ing her, however, because the holiday season was approaching, making it difficult to find a replace- ment. On 28 January 1981 Dadukian called Thomas to his office and asked him if he had "heard of Cher- yl's union activities." Thomas said he had not and asked Dadukian, "[W]ho told you[?]" Dadukian re- plied that it was Vito Marasio, who was present in the room. Dadukian told Thomas to "[g]et rid of" Resnick. Thomas asked, "On what grounds?" Da- dukian replied, "Tell her she's incompetent." Later that day LaPenta convinced Dadukian to delay Resnick's discharge to give LaPenta an op- portunity to see if her replacement would "work out." The Respondent, however, erroneously issued Resnick a severance paycheck along with her regu- lar paycheck shortly after Dadukian's agreement. When Resnick asked LaPenta and Thomas about the checks, Thomas told her she was being dis- charged because she was incompetent. Resnick said she "didn't buy that," and LaPenta then told her, "Well, I'm the one with the big mouth. I'm going to tell you that you were let go because of union activity." Resnick remained employed for several more weeks. During this period LaPenta told employees Thomas Castner and Maurice Azzopardi several times that Resnick was being discharged for "trying to form a union." Resnick was discharged 22 February 1981. A separation report prepared for her discharge indi- cated she was discharged for insubordination. In March employee Castner filed a wage and hour complaint with the Department of Labor. When Dadukian learned of the claim, he told Castner he was displeased with Castner's work per- formance and had heard that Castner had been complaining about his job and job conditions. Da- dukian also said he "cannot tolerate" the Depart- ment of Labor being at the hotel to investigate Castner's complaint. Dadukian stated he would "deal" with Castner having called the department "severely." Dadukian also said, "I got rid of Cheryl because of her activity with the union, and [I am] more than looking forward to" fighting "the unions." Dadukian said he would "get rid" of Castner as well. There is no evidence that any union or union activity played any part in Castner's call .6 The judge found, and we agree, that the Re- spondent discharged Resnick because she com- plained to other employees, and to the Respondent, about the change the Respondent made in its lunch hour policy; because `she contacted the Department of Labor; and because the Respondent mistakenly believed she had engaged in union activity. An em- ployer clearly violates the Act by, discharging an employee whom the employer mistakenly believes has engaged in union activity.? In this case, how- ever, that was not the Respondent's only reason for discharging Resnick. For the reasons set forth below, we fmd further unlawful motivation for Resnick's discharge. II. The Respondent contends that Resnick's com- plaints to other employees, her complaints to the Respondent, and her call to the Department of Labor are not "concerted activities" within the meaning of Section 7. Accordingly, the Respond- ent argues, Resnick's discharge did not violate the' Act. We do not agree. In Meyers I the Board held that individual activi- ty will generally be concerted only when it is "en- gaged in with or on the authority of other employ- ees, and not solely by and on behalf of the employ- ee himself."" In Meyers II the Board made 'clear that its definition encompassed "activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization."9 The Board further noted, however, that the communication of speaker to listener must appear calculated to induce, prepare for, or otherwise relate to some kind of group action. 10 Resnick's complaints to other employees fit precisely into this category of concerted activity. Moreover, under the facts of this case, Resnick's complaints cannot be considered in isolation." Al- ' The General Counsel alleged no violations with regard to Castner. ' Metropolitan Orthopedic Associates, 237 NLRB 427, 429 (1978) 8 268 NLRB at 497. 9 281 NLRB 882, 887 (quoting Root-Carlin. Inc, 92 NLRB 1313, 1314 (1951)). 10 Id. (citing Vaught Corp, 273 NLRB 1290, 1294 (1984), enfd. 788 F.2d 1378 (8th Cir 1986), and Mushroom Transportation Ca v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964)) Member Johansen would find that a discussion between two or more employees regarding terms and conditions of employment is necessarily concerted activity because it is an "indispensable preliminary step to em- ployee self-organization." Member Johansen would not further require that the discussion otherwise appear calculated to induce or prepare for group action, or that it otherwise be related to group action. 1' Hugh H. Wilson Corp. Y. NLR$, 414 F 2d 1345, 1354 (3d Cir. 1969), cert. denied 397 U.S 935 (1970). SALISBURY HOTEL though there is no evidence that the Respondent's employees explicitly agreed to act together to change the Respondent's new lunch hour policy, they did at least tacitly agree that they had a griev- ance and that they should take it up with manage- ment.12 Thus, Office Manager LaPenta testified that "everybody balked" at the new policy and was "all up in arms." The employees complained among themselves and most, including Resnick, brought the complaint directly to LaPenta. Ac- cordingly, we find the employees were engaged in a concerted effort to convince the Respondent to change its lunch hour policy.13 Resnick's com- plaints to other employees, as well as her individ- ual complaints to, the Respondent, were part of that concerted effort.14 We also find Resnick's call to the Department of Labor concerted under the facts of this case. Her call logically grew out of the employees' concerted efforts and is therefore a "continuation" of that concerted activity."s Because we find that Resnick's activity was con- certed and, that she Acted for the employees' mutual aid or protection, we conclude that Section 7 protected her activities 16 and that the Respond- ent's retaliatory discharge of her violated Section 8(a)(1).17 12 See NLRB v. Guernsey-Muskingum Electric Co-op., 285 F.2d 8, 12 (6th Cir. 1960). 1s Id. 14 See Hugh H. Wilson Corp. v. NLRB, supra, 414 F.2d at 1354. 15 Dayton Typographical Service, 273 NLRB 1265 (1984), enfd. in rele- vant part 778 F.2d 1188 (6th Cit. 1985). We find Resnick's discharge for calling the Department of Labor un- lawful for the additional reason that, as the judge found, Dadukian con- fused or associated the Department of Labor with union activity. In sup- port of his conclusion, the judge cited Dadulaan's hearing testimony in which Dadukian seemed confused about the distinction. We agree, and draw further support for that conclusion from Dadukian's threats to em- ployee Castner after Dadukian learned that Castner had called the de- partment on another matter. As discussed above, when Dadukian learned of Castner's call, he told Castner, "I got rid of Cheryl [Resnick] because of her activity with the union, and ... [I am] more than looking forward to" fighting "the unions." There was no indication that any union or union activity played any part in Castner's call. Thus, like the Respond- ent discharging Resnick in part because it mistakenly believed she was involved in union activity, its discharging her for calling the Department of Labor, which the Respondent associated with union activity, is similar- ly unlawful. is NLRB v. City Disposal Systems, 465 U S. 822, 830 (1984). 17 The Chairman contends we have "resurrect[ed] the Alleluia pre- sumption that individual actions regarding 'group concerns' are concert- ed " The Chairman made a similar contention in Every Woman's Place, 282 NLRB 413 (1986). As we stated in Every Woman's Place, the Board in Alleluia required no demonstration of common complaints; it assumed that any complaint to a government agency that could benefit others automatically qualified as a common concern Here, however, as in Every Woman's Place, we need not rely on an assumption. The employees spoke for themselves and Resnick advanced their common interest with her call The Chairman also contends there is no evidence "that the Respondent knew of the alleged concerted nature of the call." To the extent we re- quire such a showing, we find that the evidence overwhelmingly estab- lishes it here. The Respondent knew that "everybody balked" at its new lunch hour policy and was "all up in arms." Employees complained among themselves and most brought the complaint to Front Office Man- 687 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 2. "2. By, discharging and refusing to reinstate Cheryl Resnick for concertedly complaining to other employees and to the Respondent about a change the Respondent made in its lunch hour policy, and by discharging and refusing to reinstate Resnick for contacting the United States Depart- ment of' abor as a continuation of her and her fellow employees' concerted complaints, the Re- spondent violated Section '8(a)(1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, , Salisbury Hotel, Incorporated, New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Discharging and refusing to reinstate any employee for concertedly complaining to other em- ployees, and to the. Respondent, and discharging and refusing to reinstate any employee for contact- ing the United States Department of Labor as a continuation of the employee's and other employ- ees' concerted complaints." 2. Substitute the following for paragraph 2(d). "(d) Post at its place of business in New York, New York, copies of the attached notice marked "Appendix."38 Copies of the notice, on forms pro- vided by the Regional Director for Region 2, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent imme- diately upon receipt and maintained for 60 consec- utive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent Ito ensure that the notices are not altered, defaced, or covered by any other material." 3. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, concurring. While I do not agree with my colleagues' finding that Cheryl Resnick's call to the Labor Depart- alter LaPenta. Resnick told her managers, including LaPeuta, that she had made the call and LaPenta clearly understood Resnick's purpose. Resnick told LaPenta that the department told her it would be unlawful to apply the new policy only to women, as LaPenta mdicaied when he announced the new policy, and LaPenta told Resnick that he "stood cor- rected." Accordingly, the Respondent knew both that its employees con- certedly sought to change its policy and that Resnick's call was part of that effort. 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment constituted concerted activity, I agree, as ex- plained below, that the Respondent's discharge of Resnick violated Section 8(a)(1) and (3) of the Act. The Judge found, and I agree; that the Respond- ent discharged Resnick for three reasons: (1) be- cause of her complaints to employees and manage- ment about the change in the Respondent's lunch hour policy; (2) because of her call to the Labor Department regarding the legality of the change; and, (3) because of the Respondent's mistaken belief that, she had engaged in union activities. I also agree with my colleagues that Resnick's complaints to employees and management about the change in lunch hour policy constituted concerted activity within the Meyers' definition and that therefore the Respondent could not lawfully discharge Resnick for this activity. Further, I agree with my col- leagues that the Respondent was not privileged to discharge Resnick because of, its mistaken belief that Resnick was engaging in union activities. I disagree, however, with my colleagues' finding that Resnick's call to the Labor Department consti- tuted concerted activity and thus evidenced further unlawful motivation for the discharge. Rather, I find that the record fails to establish that Resnick's call was "engaged in with or on the authority of other employees, and not solely by and - on behalf of the employee himself."2 My colleagues admit that there is no evidence that any employees knew in advance that Resnick would call the Labor Department or that they au- thorized her to call on- their behalf. Nor is there evidence that Resnick made the call in an attempt to initiate, induce, or prepare for group action or that the Respondent knew of the alleged concerted nature of the call-a necessary element to establish a violation. Yet, despite this lack of evidence, my colleagues make the finding of concerted activity, stating simply that "[h]er call logically grew out of the employees' concerted efforts and is therefore a `continuation' of that concerted activity." This finding, made totally without regard to the record evidence, effectively resurrects the Alleluia3 pre- sumption that individual actions regarding "group concerns" are concerted, despite the Board's laying it to ,rest in its Meyers decision. As I 'have recently cautioned, the Board's continual creation of legal fictions as functional substitutes for record evi- deuce runs contrary to the statutory scheme. See 1 268 NLRB 493 (1984), remanded sub nom. Prill Y. NLRB, 755 F.2d 941 (D.C Cir 1985), cert denied 474 U.S 948, 971 (1985), reaffirmed 28,1 NLRB 882 (1986). 2 Meyers Industries, 268 NLRB at 497 3 Alleluta Cushion Co., 221 NLRB 999 (1975). the dissenting opinion in Every Woman's Place, 282 NLRB 413 (1986). In my opinion, the evidence establishes merely that Resnick, of her own accord, sought informa- tion from the Labor Department and, of her own accord, reported her findings to management. Ac- cordingly, I find that the General Counsel has failed to establish that Resnick's action was con- certed. In sum, of the three reasons that motivated Res- nick's discharge, I have found two of them to be unlawful and one to be lawful. However, applying the dual-motive analysis required by Wright Line,4 I find that the Respondent did not establish that it would have discharged Resnick in the absence of the unlawful reasons. The Respondent could escape being held in vio- lation of the Act only by proving by a preponder- ance of the evidence that even absent the improper motives, it would have discharged Resnick in any event for her call to the Labor Department. The Respondent's defense, however, consisted of an enumeration of reasons for discharging Resnick, all of which were discredited by the judge. The Respondent never attempted to establish that Resnick's discharge was justified by her can to the Labor Department. In fact, the Respondent contended that the call was not the motivation for the discharge. Under these circumstances, although the discharge was in fact motivated in part by the call to the Labor Department, the Respondent has failed to establish that it would have discharged Resnick for this activity absent the unlawful rea- sons found for her discharge, namely her concerted complaints about the lunch hour policy and her supposed union activities. Accordingly, I find that her discharge was violative of Section 8(a)(1) and (3). 4 Wnght Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir 1981), cert. denied 455,U.S. 989 (1982), approved in NLRB Y. Transporta- non Management Corp., 462 U.S. 393 (1983). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge any of you for concer- tedly complaining to other employees and to us and WE WILL NOT discharge any of you for con- SALISBURY HOTEL tacting the United States Department of Labor as a continuation of your and other employees' concert- ed complaints. WE WILL NOT discharge or otherwise discrimi- nate against any of you because we believe that you have engaged in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Cheryl Resnick immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to her, seniority or any other rights or privileges previously enjoyed and WE WILL make her whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL notify her that we have removed from our files any reference to her ' discharge and that the discharge will not be used against her in any way, SALISBURY HOTEL, INCORPORATED Pearl Zuchlewski, Esq., for the General Counsel. Michael Sloane, Esq. and Robert B. Taylor, Esq., (Rovegno & Taylor, P.C.), of Forest Hills, New York, for the Re- spondent. DECISION STATEMENT OF THE CASE STEVEN B. FIST, Administrative Law Judge. Pursuant to charges filed by Cheryl Resnick (Resnick or the Charging Party) the Acting Regional Director of the National Labor Relations Board for Region 2, issued a complaint and notice of hearing on May 5, 1981.1 The complaint alleges in substance that Salisbury Hotel, In- corporated (Respondent) discharged its employee, Cheryl Resnick about February 22, because she made complaints to the Department of Labor about Respond- ent's lunch hour policy and to discourage employees from engaging in such activities and other concerted ac- tivities and because of its belief that Resnick joined, sup- ported„ or assisted a Union, and in order to discourage employees from engaging in such activities, in violation of Section 8(a)(1) and (3) of the Act. The hearing with respect to the violations encom- passed by the complaint, was heard before me in New York, New York on April 26 and 27, 1982. Briefs have been received from the General Counsel and Respondent and have been duly considered. On the entire record, including my observation of the demeanor of the witnesses, I make the following 1 All dates hereafter refer to 1981 unless otherwise indicated. FINDINGS OF FACT I. JURISDICTION 689 Respondent, a New York corporation, is engaged in the operation of a hotel providing food and lodgings for guests. During the past year, Respondent derived gross revenues from its operations in excess of $500,000, and purchased and received at its facility, goods and materi- als valued in excess of $50,000 directly from points out- side the State of New York. Respondent admits and I so find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. FACTS Respondent employs approximately 75 to 80 employ ees. Of these employees about 65 are represented by five different unions, covering various job categories such as maids, housemen, switchboard operators, engineers, and painters. The only employees not represented by unions are those employed in Respondent's executive office, ac- counting department, and the front desk and reservations department. Resnick was hired by Respondent in May 1980. She was interviewed by Willis Dadukian, Respondent's chief operating officer and president. She applied for a posi- tion as a combined switchboard operator and reserva- tions clerk. Dadukian informed her that the switchboard operators were represented by a union (Local 153), and Resnick expressed adamant opposition to becoming affili- ated with or a member of a union. It was therefore de- cided that Resnick would spend the majority of her time as a reservations clerk, and would fill in if needed on the switchboard. The record establishes that all times material, there was no organizational activity going on at Respondent's hotel with respect to the reservations clerks, or any of Respondent's employees, by either the unions represent- ing certain classifications of its employees or any outside labor organization. Prior to December 1980, Respondent's reservations employees worked 8-hour shifts, which included a 1- hour lunch break. Respondent, however, permitted em- ployees if they so desired, to forgo a break in the middle of the day, and to either leave an hour early or come in an'hour later. Resnick worked a shift from 12 noon to 8 p.m., and ' was one of those employees who would choose not to take 'a break, and in effect work a 7-hour day. In early December 1980,, Dadukian decided that the present system was causing confusion because some em- ployees would be working and others not, and Respond- ent could not plan on people being present during over- lap periods. In addition Dadukian felt that as a personnel practitioner, it was a good policy for people to break their work shift, refresh themselves, and come back and assume their responsibilities. Accordingly, Dadukian in- stituted, sometime in early or mid-December, a new policy, which required all employees to take a 1-hour lunch break, thereby requiring them to be present at Re- spondent's premises for a full 8-hour day. 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The new policy was announced to the employees by Chris LaPenta, Respondent's front office manager, and an admitted supervisor. Although the policy was to be instituted for all employees, LaPenta mistakenly, indicat- ed to the employees that only women were required to take the 1-hour lunch break. Respondent's new policy, produced much consternation among the employees af- fected, who preferred the old system, and resulted. in dis- cussions among ' the employees complaining about the change, of which LaPenta was aware. Complaints were also made directly to LaPenta about the change in policy by most of the employees.2 Resnick was according to LaPenta, the most vocal complainer about the new policy, and was involved in discussions with other em- ployees concerning this new policy.3 Resnick also called the United States Department of Labor, Wage and Hour Division to inquire about the le- gality of Respondent's action. She reported to LaPenta that she had called the Department of Labor and was told that it was illegal to apply the policy only- to women. LaPenta as he testified, "stood corrected, ' and from then on everybody was taking lunch hours." Resnick also reported to Kurt Thomas, Respondent's resident manager and an admitted supervisor, that the Labor Department had informed her that she could only be required to take a half hour for a lunch break. How- ever, Resnick was still scheduled for and took a 1-hour break, as did the other employees. Dadukian was informed by his supervisors (LaPenta and Thomas) that Resnick had made a call to the De- partment of Labor. In fact at "staff" meetings4 held in December, it was mentioned to Dadukian that there was discontent about the lunch hour policy, that Resnick was the most vocal complainer and resented the new policy, and that she had called the Department of Labor about the change. Dadukian testified that it was reported to him, "that the biggest complainer was Ms. Resnick, that she took exception with this, which to me was just taking exception with one more situation in our hotel, or exception to her leadership, her instructions." Dadukian also testified that Resnick's calling the De- partment 'of Labor did, not bother him, but admitted that, "the fact of a call to the Department of Labor was, I felt, a manifestation, or I could not help but assume it was a manifestation of her discontent with the policy.'-' At a staff meeting in mid-December, shortly after the lunch hour problem, it was decided that Resnick should be terminated. Respondent's witnesses (Dadukian and LaPenta) admit that one of the reasons for the decision being made to-discharge her was her resentment towards and complaints about its new lunch hour policy .5 In ad- 2 LaPenta testified "it was a new policy, everybody balked." ,3 LaPenta testified ,that Resnick spent a lot of time talking to other co- workers about her discontent,- and a lot of discussion at this time was re- garding the lunch hours. He further testified "everybody was all up in arms," but Resnick was more concerned than anybody else. 4 These "staff" meetings were actually supervisory staff meetings, at- tended by Thomas, LaPenta, Dadukian, and one or two other supervi- sors 5 In fact, Respondent's attorney on the record referred to Resnick as "as pain in the neck regarding the lunch policy." dition, LaPenta and Dadukian cite a number of other reasons that allegedly contributed to the decision -to dis- charge her, and that allegedly occurred since October or November 1980. These alleged reasons were Resnick's unwillingness to receive toll free "800" calls and her ref- erence to patrons who use these calls as cheapies; her failure to properly operate the Western Union equipment to confirm reservations, her habitual tardiness, her argu- ments with LaPenta, and her habit of doing her hair'and makeup while at her desk; her practice of asking the switchboard for wake-up calls; and her habit making' per sonal phone calls while at work. The record reveals that at no time did any- supervisor of Respondent ever warn Resnick that her conduct in any of these areas was considered unsatisfactory to Re- spondent, nor that Respondent was considering or con- templating- discharging or disciplining- her for these or any other reasons.6 It was decided at the staff meeting that the approach- ing holiday season would not be an appropriate, time to discharge her and/or to find a suitable replacement. It was therefore decided that she would be fired when La- Penta was satisfied that a capable replacement was avail- able. Resnick was not informed of Respondent's decision in this regard. On December 24, 1980, Dadukian gave Resnick a letter to type concerning a mortgage request.' Dadukian informed her that this was a highly confidential docu- ment, and instructed her that all copies of the- letter be returned to him. Resnick typed the letter as requested. However, the next day, Dadukian was informed that a copy of the letter had been found at the switchboard by the switchboard operator. According to Dadukian, this incident was "the straw that broke the camel's back," and that now there was no chance that he would reverse the decision to terminate her. Dadukian testified that he was particularly concerned with the fact that .Resnick was a tenant in a building located on the same block as Respondent and owned by a landlord named Shapiro. Since the letter contained a request for a large mortgage, Dadukian did not wish this information disclosed -to anyone, particularly to a landlord on the same block. Thus, when he found out that a copy of the letter was left at the switchboard, Dadukian claims that he believed that Resnick was either going to give this letter or the information contained therein to Shapiro. Dadukian did not discuss the letter with Resnick at the time, nor ask her for an explanation as to why she had left a copy of the letter at the switchboard." Dadukian while admitting that he himself gave no such warnings, testified that he thought that his supervisors, LaPenta and Thomas, had done so. However, both LaPenta and Thomas deny or do not recall giving Resnick any warnings. Thomas in fact denies being aware of any dissatisfaction with Resnick's work. ° Resnick was not regularly assigned to type for Dadukian However, it was essential that this letter be sent out quickly, and Dadukian's secre- tary had left, so he asked Resnick to type the letter for hun s The record reveals that Resnick had previously had some problem with Shapiro with respect to her lease and that Dadukian had interceded on her behalf with Shapiro to help straighten out the situation. SALISBURY HOTEL As noted above, part of Resnick's job was to fill in on occasion as a switchboard operator. Resnick had been as- signed to fill in for an hour between shifts of the switch- board operators. One of the switchboard operators, Mar- garet Dean had been hassling Resnick about performing the job : of a switchboard operator since she was not in the union, and the job is a "union position."9 On Decem- ber 25, 1980, Resnick was assigned to fill in prior to Dean arriving for the next shift. At some point prior to Dean arriving, LaPenta noticed that the switchboard was unattended. LaPenta confronted Resnick and asked her why she was not there. Resnick replied that Marga- ret Dean did not want her to work there since it was a union job, and she did not want any hassles with Dean. LaPenta responded that it was not Dean's decison to de- termine who works at the switchboard. Resnick said she would not go to the switchboard giving the same reason. Finally Dean arrived and took over the board. LaPenta reported this incident to Dadukian and then wrote up a memo to Resnick's file dated Dec, ember 29, 1980. The memo reads that Resnick on December 27, 1980 left her position without authorization, and refused to return to her position when requested. The memo states further that "her stated reason for not returning was that some Union employees did not wish her at the switchboard." The memo concludes by stating that her reasons for not returning are groundless, and "I consider this to be an act of insubordination." Although the record reveals that Dadukian had in- structed his supervisory staff to write up and place in employees' files any incidents of unsatifactory perform- ance by employees, the above memo detailing the switchboard incident, is the only such memo appearing in Resnick's file. Dadukin with regard to this incident testified, "a major issue was not made of it." LaPenta recalls that he discussed the incident with Resnick sometime in January, but does not recall what was said, nor whether the possibility of discharge was mentioned . In fact, LaPenta does not recall whether Res- nick ever received or saw a copy of the memo placed in her file. On" the morning of January 28, 1981 , Thomas was called into Dadukian's office. Present in addition to Da- dukian was Vito Marasia, Respondent's accounting man- ager. Dadukian asked Thomas whether he had heard of Resnick's union activities. Thomas replied that he had not. Thomas asked whom Dadukian heard this from. Da- dukian replied that it was Marasia. Thomas asked Mara- sia where he had heard about this . Marasia responded that he would not divulge this information. Dadukian; then told Thomas to get rid of Resnick. Thomas asked on what grounds. Dadukian answered, "tell her she's in- competennt." i o 9 The record does not reflect what the Local 153 contract contains re garding the recognition clause , or the amount of unit work necessary to be performed by an employee to come within the contract's terms. Indeed the record contains no evidence of any terms of the Local 153 contract. Thus,, the record does not reveal whether the contract contains: a grievance or arbitration clause and/or a no-strike clause. rn The above findings with respect to this conversation are based on the credited testimony of Thomas over the denials of Dadukian. Marasia did not testify. Respondent contends that an adverse inference should be drawn against the General Counsel for failure to call Marasia as>a rebut 691 Later that same morning Thomas informed LaPenta that Dadukian had decided to terminate Resnick. La- Penta then went to see Dadukian and- requested more time before discharging her. He told Dadukian that he had just hired a new employee, Juan Guererro, and wanted to see how he would work out. Dadukian was adamant that LaPenta make a decision on when to fire her. He told LaPenta that he was upset about the mort- gage letter that Resnick had left in a public place, Dadu kian also talked about the lunch hour incident. He told LaPenta that he was concerned and upset that people were questioning management's institution of policies, specifically referring to the lunch hour problem, and he did not :like the fact that people, particularly Resnick, were balking or fighting against this new policy. La- Penta also testified that Dadukian mentioned something about her having called the Labor Department about the matter, . buthe could not remember what Dadukian said about it. LaPenta could not remember whether anything about any labor union activity engaged in by Resnick was brought up by Dadukian. The meeting ended with Dadukian " agreeing to give LaPerita a couple of more weeks to break in Guererro before discharging Resnick. Apparently Thomas was not informed of LaPenta's discussion with Dadukian and the decision to. give Res- nick a little more time. Thus he instructed the payroll clerk to prepare two checks for Resnick, her regular check and a severance check. When Resnick received the two checks, she went to see Thomas and LaPenta and asked why she had received two checks. Thomas re plied that she was being terminated. Resnick asked why, and Thomas replied that she was incompetent. Resnick; replied that she did not buy it, there must be other rea- sons. LaPenta then stated, "well, I'm the one with the big mouth. I'm going to tell you that you were let go because of union activity." 1 1 LaPerita then spoke to Dadukian and reaffirmed the understanding that. Resnick would be permitted to. remain, employed for a couple of weeks, until a replace- ment, was adequately trained. tat witness. I do not agree . The record discloses that Marasia was equally available to be called as a witness by either Respondent or the General Counsel Therefore, no adverse inference can be drawn against either party for failure to call him to either corroborate or refute the testimony of other witnesses. Wayne Construction, 259 NLRB 571 (1981); Plumbers & Steamfitters Local 40 (Mechanical Contractors Assn. of Washington), 242 NLRB 1157 (1979); Local 259, U..A.W. (Atherton Cadillac), 225 NLRB 421 (1976). Although Thomas' testimony may be considered somewhat suspect in view of his having been terminated by Respondent , I am per- suaded that he testified accurately and truthfully with respect to this con- versation. I note that his testimony is consistent With and in effect cor roborated by the testimony of employees Castner and Azzopardi, set forth infra, in which they were told by LaPenta that Resnick was termi- nated because of alleged union activities. I note also that Thomas con- firmed this to Azzopardi shortly after Resnick's discharge at a time when he (Thomas) was still employed by Respondent, and would have no reason to fabricate or furnish testimony adverse to Respondent's interests. 11 The above based on Thomas' credited testimony. LaPenta did not deny making the above comments , stating he could not remember the events of the meeting or what was said, although he admitted that he well might have said that he had a big mouth. LaPenta explained that he was very upset and agitated at this meeting, since he had 'been under the impression after his discussion with Dadukian that Resnick would not be terminated at that time, and would not be informed of any decision to terminate her. 092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD After Resnick's meeting with Thomas and LaPenta, she spoke to employee Thomas Castner and told him that she had been fired because Marasia had told Dadu- kian that she was trying, to form a union. At that time Castner-,observed LaPenta who was upset and in tears because he had to fire Resnick. A week later Castner asked-LaPenta why Resnick was terminated. LaPenta,re- plied that he was told by Dadukian to fire her because she was trying to form a union. LaPenta reported that he said that he needed to give Resnick a reason, adding that he (LaPenta) had no reason to fire her. Dadukian in- formed LaPenta that he does not "need a reason. The only reason that you need is that I'm telling you to fire her., During the next several weeks, Castner and LaPenta had a number of discussions about Resnick's ' discharge. Whenever the subject was mentioned, LaPenta informed Castner that Resnick was trying to form a union and this was the reason for the discharge. On a couple of these occasions Castner replied to La- Penta that he knew that was not true.12 LaPenta an- swered "What can I do? I was told to fire her, and that's what I did." 'Similarly, employee Maurice Azzopardi, sometime in January, met LaPenta in the reservations office and asked what happened to Resnick. LaPenta replied that she was fired and "they say it, that she was trying to form a union. And there were rumors going around there, as far as the union." About 2 days later, Azzopardi approached Thomas and asked him 'if it was true that Resnick was fired be- cause she tried to form- a union. Thomas replied "yes, it's true. "1.3 On February 2, -Dadukian met with her to explain why she was being terminated. He told her that she was over- qualified for the job. He explained that Resnick had pre- viously worked in places like the Stork Club and other hotels, where she dealt with important people, and her pleasant personality and ability to mix with people would be more useful than at Respondent, which is a relatively small hotel, with little public exposure. Thus, according to Dadukian, overqualified people like Resnick tend to be disruptive influences among fellow workers, and take issue with leadership because these people think they know more than their bosses. Dadukian goes on to testi- fy that at first Resnick was happy to perform "humble" duties, but then "later,, it became a situation where she was uncomfortable, compounded with the introduction of the lunch hour." During the course of his meeting with Resnick the lunch hour incident as well as the De- partment of Labor came up. Resnick asked if she was fired because she called the Department of Labor. Dadu- kian replied that it had nothing to' do with the decision, and Respondent was a law-abiding company. The subject of the mortgage letter was also discussed. He told her that he was very disappointed in her, that it 12 Castner did not believe that Resnick was fired because of any union activities, since there were no union activities engaged in by Resnick nor going on at Respondent's premises 13 The above findings with respect to the conversations of Azzopardi and Castner with LaPenta and Thomas are based on the credited and un- demed testimony of Castner and Azzopardi. was a betrayal of trust and a question of her integrity and loyalty. Resnick responded that it was an inadvert- ent mistake. Dadukian in his testimony on several occasions ap- peared to either confuse and/or associate the ^ Depart- ment of Labor with union activity. When asked about the subject of the Department of Labor coming up at the February 2 meeting, Dadukian testified, "I believe the subject .of going to the Department of Labor was brought up. Whether it was a matter of union, I think these people were a little confused too. . . . I'm refer- ring to Resnick and others who refer to Department of Labor and/or union activity." At another point in his testimony when asked about the 'subject of union activi- ties coming up during this conversation, he testified that Resnick brought the subject up.' Dadukian was asked what she said about it and what his response was. His testimony is as follows: "That I guess, if I remember cor- rectly,' if it was a concern of mine that she was trying to organize the hotel, that I shouldn't worry about it. -I recall, vaguely, the subject but again the Department of Labor." Subsequent to this meeting, Resnick wrote two letters to Dadukian. The first letter dated February 9, dealt mainly with the mortgage letter incident. Resnick ex- plained that she has had no dealings with Shapiro since their problems with the lease and in fact they were en- emies since that incident. She added that she would never consider, giving him any confidential information regarding the hotel. She also criticized Dadukian for not getting her, side of the story. No mention- of her being terminated for union activi- ties was set forth in the letter. However, she, does seem to suggest that reasons other than the mortgage letter in- cident were responsible for the decision to discharge her. Thus, she wrote, "the conviction under which you're acting has to stem from something other than this which seems so utterly inconceivable." At another point in the letter she states, "I did sense your having become disen- chanted with me at one point along the way for some unknown reason, but I never dreamed it,was of this mag- nitude, or what was brewing within you." Resnick senta second, letter to Dadukian dated Febru- ary 22. She- again talked, about the mortgage letter inci- dent, explaining that she took the letter to the switch- board in order to, type the envelope. She reiterated more clearly in this letter her, belief that the mortgage letter was-not the real reason for the discharge, and that Dadu- kian was using it as a "convenient camouflage." Resnick referred to ' the Union,' by stating that Dadukian was barking up the wrong -tree and that she was totally against unions. She suggested that he check out other employees who had been clerks at other union hotels in order - to find the troublemakers. She added that she had not participated in any union discussions, 'and she would like to confront the person responsible for accusing her of same, commenting that "he or shg is a damned liar and probably covering up for their own provocations which were probably overheard." Resnick was terminated on February 22., LaPenta pre- pared a separation report, dated February 18, 1981. The SALISBURY HOTEL 693 form lists boxes covering various areas of reasons for dis -charge. The only box checked by LaPenta was `marked insubordination. Under explanation LaPenta wrote, "In- subordination to Superior. Cheryl Resnick was dismissed February 22, 1981. Her work deteriorated over several months; less productivity, tardiness became- more "fre- quent. She also, refused to follow orders given by her su- periors. At the same time her attitude deteriorated as well." Thomas was given the form to sign by LaPenta and Dadukian. Thomas told Dadukian and LaPenta that this form was not accurate, but Dadukian ordered him to sign it and he complied. LaPenta also told Thomas that he hated to'do this, but he had no other choice. Subsequently , Resnick filed for unemployment insur- ance. Dadukian in a telephone conversation with the claims examiner said the following: Resnick was termiy. nated for "incompatibility with work, (sic) environment, supervision which affected the quality of her work. Poor attitude reflected on numerous occasions which left aseri ous doubt on the effectiveness of her work performance. Insubordination cited by her immediate supervisor. We are not contesting her claim for unemployment compen- sation benefits." Sometime in March, Castner filed a wage-and-hour complaint concerning overtime with the Department of Labor. Sometime later in March, investigators from the Department of Labor appeared at the hotel . Dadukian told Castner that he was not pleased with Castner's per- formance, and that he heard from a number of people that , Castner had been complaining about the job and conditions. Dadukian added, "don't think that Vito [Mar- aria] told me this." Dadukian continued that Castner was constantly complaining and accused him of going to the Department of Labor, commenting that they were across the hall. Dadukian also said that he could not tolerate the Department of Labor being there, and that because Castner had called the Department of Labor, Dadukian would -"deal with that severely." Finally, Dadukian ad- vised Castner, "I got rid of Cheryl [Resnick] because of her activity with the Union," and he was more than looking forward to, if he had to, to fight the unions. Da dukian' concluded that he got rid of Resnick and if he- had to he would get rid of Castner. Castner replied that he did not go to the Department of Labor, and denied complaining to other employees. Castner continued that if Dadukian had definite facts that Castner had, been complaining, he wanted to know who told him this. Dadukian replied that it did not matter, and'-he would not reveal that information, except to say that Vito had not been the source. The conversation con- eluded by Castner repeating that he was not complaining about anything.14 Resnick, although present in the hearing " room throughout the trial, was not called as .a witness to testify 34 The above based on the credited testimony of Castner, which was largely undenied by Dadukian. Dadukian did not deny having such a conversation with Castner nor making any of the comments attributed to him by Castner, except to say that he never "chastised Castner concern- ing his call to the Labor Department" in this proceeding. The General Counsel offered no ex- planation as to why she failed to call Resnick as a. wit- ness. Respondent placed great reliance on and attached great significance to this failure to call Resnick,-both in his brief and at the hearing. Respondent, although not actually articulating its objections to Resnick not having testified, appears to be arguing that her testimony was an essential element of the General Counsel's case, or at the very least calls for an adverse inference to be drawn against `the General Counsel's case. Respondent specifi cally points to the fact that the charge filed by Resnick states that she was discharged, "because she engaged in concerted protected activities with respect to the forma- tion of the Union and because she called the Labor Board." Respondent argues that the discrepancy between the charge, which alleges the discharge to be because she "engaged" in union activities, and the complaint, which alleges a mistaken belief in union activity as the reason, required Resnick to be called as a witness to explain such "inconsistency." 15 it is well settled that where the record sustains the al- legations of a discriminatory discharge, the testimony of the discriminatee is not a sine qua non for relief under the Act.16 In the instant case, I find no basis for drawing of any adverse inference against the General Counsel for her failure to call Resnick as a witness. I note that the credibility of Resnick is not the significant issue herein. The motivation for Respondent in terminating her is de- terminitive, and I do not believe that Resnick's testimony was or is essential to such a determination. As outlined above, and as will be discussed more fully infra, Re- spondent's own supervisors and agents have given testi- mony and made statements to other employees, which are dispositive of the issues before me. Although it is possible that had Resnick been called as a witness, she might have cast some doubt on some portions of the tes- timony of these witnesses, she was present throughout the hearing in the courtroom, and Respondent was free to call her as an adverse witness. See Wayne Construe- don, supra. Similarly, if Respondent felt that cross-examination of Resnick with respect to the alleged "discrepancy" be- tween the charge and complaint17 or any other matters, 15Insofar as this argument appears to be contending that this alleged "difference" between the charge and the complaint constitutes a substan- tial variation from same, sufficient to mandate dismissal, it is without merit. A charge merely initiates the investigatory process, and since the allegations set forth inthe complaint are related to the charge, and based on the same events set forth therein, the charge is adequate to support the complaint. NLRB V. Fant Milling Co., 360 U.S. 301 (1959); Baton Rouge Water Works Co., 246 NLRB 995 (1979); Kern Bakeries, 227 NLRB 1329 (1977). 16 Cutting, Inc., 255 NLRB 534 (1981); Riley Stoker Corp., 223 NLRB 1146 (1976), and cases cited therein. 17 I note that although the record is clear that Resnick did not actually engage in any union activities, the record , does establish that she and other witnesses were told by Respondent's supervisors that she , was ter- minated because Respondent believed her'to have engaged in such activi- ties.I find that the alleged discrepancy between the charge and com- plaint to be minimal and a matter of semantics, and attach no significance to it. 694 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would in any way undermine the General Counsel's case, it could have called her to the stand and made such in- quiries. I shall therefore proceed to evaluate the merits of the complaint, based on the testimony and evidence adduced, on this record, notwithstanding the failure of Resnick to testify herein. - The first issue to be determined, is whether the Gener- al Counsel has shown that protected conduct was a "mo- tivating factor',' in Respondent's decision to, terminate Resnick. 118 Respondent's own witnesses admit, and the record establishes that one motivating factor,for the dis- charge was Resnick's activity in complaining about Re- spondent's lunch hour change. Thus, both Dadukian and LaPenta admit that Resnick was the most vocal employ- ee complainer about the change, that Dadukian, was upset about people questioning this .policy, and that Re- spondent's initial decision, to terminate her was made in mid-December, shortly after such complaints were made. Indeed, as noted above, Respondent's attorney urges a finding that Resnick was fired because "she was a pain in the neck regarding the lunch policy." Respondent contends, however, that Resnick's activity in, complaining about the lunch policy should be con- strued-as individual griping and complaining, and more for her own satisfaction, and not for the purpose of en- couraging or inducing any group action. Thus, Respond- ent'argues that she was not engaged in protected con- certed activity.19 However, I do not believe that Resnick's actions in the instant case can be characterized as "individual griping or complaining." The evidence is clear that most of the employees affected by the change discussed and com- plained about the new policy among themselves, and that Respondent was aware of such discussions. Moreover, many of the employees voiced such dissatisfaction direct- ly to supervisors of Respondent, with Resnick being the most vocal complainer. The lack of formal organization of a group or the fact that Resnick was not appointed as a spokesman for a group does not establish that her ac- tivity is not protected or concerted.20 Here, Resnick was protesting a change in Respond- ent's past practice regarding lunch hour policy, clearly a term and condition of employment. Action in protest of the discontinuance of such past practice, particularly when other employees shared her concerns, involves matters of mutual concern and benefit to employees, and constitutes protected concerted activity.21 Such is not negated because this matter of mutual con- cern coincided with Resnick's personal preferences or reasons peculiar to herself, for opposing the lunch hour changes.22 is Wright Line, 251 NLRB 1083 (1980). 19 NLRB v. Office Towel Supply, 201 F.2d 838 (2d Cu. 1953), Hugh H. Wilson Corp. v.' NLRB, 414 F.2d 1345 (3d Cir. 1969), Indiana Gear Works v NLRB, 371 F 2d 273 (7th Cit. 1967) 20 Carbet Corp., 191 NLRB 892 (1971). - 21 WC Electrical Co., 262 NLRB 557 (1982); Dino Ambulette Service, 255 NLRB 5 (1981), Datapoint Corp, 246 NLRB 234 (1979); Furst Nation- al Bank & Trust Co., 209 NLRB 95 (1974) 22 W.C. Electrical, supra. Thus, her actions in complaining about the lunch hour policy in and of itself constitutes protected concerted ac- tivity. Moreover, the evidence reveals that Resnick made a call to the, Department, of Labor, inquiring about the le- gality of Respondent's actions. Contrar-y to Dadukian's testimony and Respondent's assertions, I am persuaded that her call to the Department of Labor also constituted a "motivating" factor in Respondent's decision to dis- charge Resnick. Thus, Dadukian admitted that he consid- ered Resnick's call to the Department of Labor, to be a "manifestation of her discontent" with Respondent's changes in the lunch policy. Therefore I do not believe that her call to the Department of Labor can be so easily divorced from, as Respondent urges, her actions in com- plaining along with other employees -about the change in conditions of employment. Moreover, specific animus by Respondent towards calls to the Department of Labor is established by Dadukian's threat to terminate employee Castner because of his call to the same Federal agency about a different problem. Respondent also argues, that the call to the Department of Labor was not protected concerted activity, again arguing that her call was merely to enforce a personal gripe or complaint.23 As noted, I have already found that Resnick's activity, being in conjunction with similar complaints made by and, dis- cussions with other employees, should be characterized as concerted, and that her call to the Department of Labor was merely. an extension of that activity and was so considered by Respondent. Therefore a discharge mo- tivated by such activity is violative of the Act.24 However, even in.the absence of any evidence of any other employee support for Resnick's actions in calling the Department of Labor, and in fact even if I were to find that she was acting alone in making such a call, Board law provides that such activity is still concert- ed.23 - The record also supports the conclusion that another "motivating" factor in Respondent's decision to dis- charge Resnick, was its mistaken belief -that she was en- gaged in union activities. The testimony of Thomas, Re- spondent's former supervisor, that Dadukian told him to get rid of Resnick immediately after asking if Thomas had heard about her union activities, and instructing him to "tell her she's incompetent," is particularly significant in reaching my, conclusion. Moreover, this testimony is confirmed and corroborated by the testimony of employ- ees Castner and Azzopardi who were both told by two of Respondent's officials that Resnick was fired because of union activities.26 23 Hunt Tool Co, 192 NLRB 145 (1971) 24 Santa's Bakery, 249 NLRB 1058 (1980). 25 Ctmpi Transportation Co., 256 NLRB 1064 (1981); Stafford Construc- tion Co., 250 NLRB 1469 (1980); J. N. Moser Trucking, 249 NLRB 720 (1980); Alleluia Cushion Co., 221 NLRB 999 (1975). I note that the Board has expressly overruled Hunt Tool, supra, cited by Respondent, in Knspy Kreme Doughnut Corp., 245 NLRB 1053 (1979), enf. denied 635 F 2d 304 (4th Cir 1980). 26 Thus, Azzopardi was informed that this was so by LaPenta and Thomas. Castner was given this information by LaPenta and most impor- tantly by Dadukian himself. The fact that Castner testified that he himself did not believe that Resnick's union activities were the reason for her dis- Continued SALISBURY HOTEL Respondent argues that since it is admitted that Res- nick engaged in no union activities, and that in fact the record reveals no evidence that any union -activities were going on at Respondent's premises at the time, that no inference can be drawn that Respondent believed reason- ably or` otherwise that she engaged in such activities. I do not agree. The above-described credited testimony of Thomas, Azzopardi, and Castner is extremely compelling evidence,27 and I need not and do not believe it is neces- sary , for me to find the existence of any union activity, nor, to , ascertain what activities engaged in by Resnick, or others, formed the basis for Respondent's belief that she engaged in union activities. It is sufficient for me to find„ which I do, that Respondent believed that she en gaged in union activity and that its belief that she en- gaged in such activity was a motivating factor in the decison to discharge her. However, I would note that the record does suggest some possible. reasons for Respondent's belief. It is clear from Dadukian's own testimony that he confused and as- sociated the call to the Department of Labor with engag- ing in union activities. Thus, it is not unreasonable for Respondent to have believed that the employee who was the, most vocal, complainer about its change in lunch policy and who called the Department of Labor to com- plain about it might tend to be involved in forming or supporting a union, perhaps in response to the employ- ees"dissatisfaction with management's policies. Addition- ally, the record reveals that Resnick's refusal to fill in for the switchboard operator on December 29, was motivat- ed by her at least indirect support of the position taken by the union representing the operators, that only bar- gaining unit personnel should perform such work. In' fact, LaPenta's write-up of the incident, specifically men- tioned her refusal in connection with union employees not wanting her to perform this work. Thus, this sudden "sympathy" for the union's position may have served to indicate to Respondent that she was becoming involved in some sort of union activity. It is well settled that a discharge motivated by a mis taken belief that an employee engaged in union and/or protected concerted activity is violative of Section 8(a)(1) and/or (3) of the Act.28 Accordingly, I find that Respondent's mistaken belief that Resnick engaged in union activities, another instance of protected concerted activity, was also a motivating factor in Respondent's decision to terminate her. The next question becomes whether Respondent has shown that it would have taken the action against Resnick even in the absence of the protected conduct. See Wright Line, supra. charge essentially because she did not engage in any such activities, is irrelevant. The subjective evaluation of a witness as to his belief concern- ing the reasons for a discharge is not dispositive,' since it is the judge and the Board's function, not the witness' to make such a determination. 27 I note that even LaPenta, who was called as a witness by Respond - ent, did not deny making these statements to the employees, and when asked about Resnick's alleged union activities -coming up during Re- spondent's deliberations in discharging her, had a sudden and convenient lack of memory, and could not recall whether the topic was mentioned. 28 Magnolia Manor Nursing Home, 260 NLRB 377 (1982); Metropolitan' Orthopedic Associates, 237 NLRB 427 (1978); Henning -& Cheadle, Inc., 212 NLRB 776 (1974); System Analyzer Corp., 171 NLRB 45 (1968). 695 In my judgment, Respondent has fallen far short of making the necessary showing . Respondent's own wit nesses testified that it made its initial decision to termi- nate Resnick in mid-December 1980. In addition to the lunch hour incidents, Respondent's witnesses contend that her discharge was also motivated by a long list of alleged problems with Resnick's performance. These in- clude tardiness, doing her hair and makeup at her desk, asking for wake-up calls, failure to confirm reservations on Western Union, making personal calls at work, refer- ring to patrons who use 800 reservation numbers as "cheapies" and refusing to answer their calls, and argu- ments with LaPenta. However, although Dadukian had instructed his supervisors to write up all incidents of un- satisfactory performance of employees and place them in their personnel files, no such write ups were made with respect to any of these incidents.29 Moreover, Respond- ent never warned or cautioned her that recurrence of any of these "transgressions," might result in any kind of disciplinary action, much less discharge. The failure to caution or admonish her that her conduct might lead to dismissal is a highly significant indication of discrimina- tory motivation.30 In & Anthony & Sons v. NLRB, 163,F.2d 22 (D.C. Cir. 1947), cert. denied 332 U.S. 773 (1947),=a case often cited. in this area,sl Judge Prettyman speaking for the Court, set forth: a respondent's failure to warn its employees of its dissatisfaction with their performance, and found that; "Such action on the part of an employer is not natural. If the employer , had really been disturbed by the circum- stances it assigned as reasons for these discharges, and had no other circumstances in mind, some word of ad- monition, some caution that the offending lapse be not repeated, or some opportunity for correction of the ob- jectionable practice would be almost inevitable." I fmdT these comments particularly applicable to the facts at hand. Thus, if Respondent had really considered these incidents serious enough to warrant discipline or discharge,' it is reasonable that it would have so informed Resnick. Its failure to do so, coupled with its failure to document these incidents in her file as required, as well as the other evidence of record, leads me to conclude that these reasons were pretextual and were not relied on by Respondent in its decision to terminate Resnick. Ipso:, facto then Respondent has not shown that it would have:: discharged Resnick for these reasons, absent her protect- ed conduct. Respondent relies most heavily on the mortgage letter incident in justifying the discharge, as according to Da- dukian this incident was the "straw that broke the camel's back." I find this testimony to be quite suspect, particularly in view of the fact that Respondent's own witnesses testified that the decision to terminate Resnick 29 See NLRB P. Savin Business Machines Corp., 649 F.2d 89 (1st:Cir. 1981), enfg.242NLRB 435. (1979). 30 The May, Co.,' 220, NLRB 1096 (1975); V & W Castings, 231 NLRB 912 (1977); Lammert Industries, 229 NLRB 895 (1977); Savin; supra, 242 NLRB at 437, 438. 31 Gulf States United Telephone Co., 253 NLRB 603 (1980); Clinton Inn, 249 NLRB 198 .(1980); Leonard W.'Moore Industries , 242 NLRB 1188 (1979); Air Products and Chemicals, -227 -NLRB 1281 (1977); . The May Co., supra; Savin, supra 69"6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD was made in mid December32 before the mortgage letter problem occurred. - I would also note that despite Dadukian's testimony that he considered Resnick's behavior to 'constitute dis- loyality and lack of trust, and that he,would never con- sider reversing the decision'to discharge her as a result thereof, he did not ask Resnick for her version nor offer her an opportunity to explain until after she was notified of the decision to terminate her. The failure of Respond- ent to do' so, supports an inference of discriminatory intent.33 I note, also that despite the alleged seriousness of this conduct Respondent, permitted Resnick to remain as an employee of Respondent for nearly 2 months after the incident occurred:34 Additionally, when giving'the rea- sons to the New York State Unemployment Agency for discharge, this incident was not mentioned as even one of the reasons for her discharge. Finally, Respondent's termination form filled out by LaPenta failed to disclose this incident, although it- was allegedly the "straw that broke the, camel's back." Accordingly, based on the fore- going, I find that Respondent has not shown that it would have discharged Resnick because of this. incident, even in the absence of her engaging in protected con-' certed activity. - The final reason advanced by Respondent for termi- nating Resnick is ,the alleged insubordination incident on December 27, 1980, regarding the switchboard operator. As to this incident, Dadukian admits that "a major issue was not' made of it."' Further, as with the 'mortgage letter incident, it took Respondent nearly 2 months to finally terminate her, notwithstanding this insubordination. Thus, I find that Respondent has failed to show that it would have terminated Resnick for the conduct, absent her union and protected concerted activity.35 3z This, decision was made shortly after the lunch hour complaints and Resnick's call to the Department of Labor. as United States Rubber Ca it NLRB; 384 F.2d 660 (5th Cir. 1967); Elk Brand Mfg, Co., 253 NLRB 1038 (1981); Gulf States United , Telephone Co., 253 NLRB 603 (1980); Hercules Bumpers Inc, 248 NLRB 1047 (1980); Waterbeds N' StuffInc., 238 NLRB 873 (1978) as Thus, I find it unlikely that Dadukian really believed as he testified, that he suspected Resnick would or intended to pass the information con- tamed in the letter to her landlord . His testimony in this regard is rather incredulous and, incomprehensible, Thus, while he claims that he suspect- ed her of transmitting this highly confidential information to her land- lord, he requested that she type the letter knowing that she was a tenant in the -building of this individual; and Resnick was not even his regular typist. If he was so concerned about Resnick's potential for disclosing this information to her landlord he could have waited until ' the next day and had his regular secretary type the letter Moreover, Dadukiari was aware that Resnick was not on the best of terms with her landlord, and I find that Dadukian had - no basis for any suspicions that she might pass this information on to him. as Although I need not, and I do not make such a finding, it is argu- able that Resnick's conduct in this incident could be considered protected concerted activity. Thus it appears that her refusal to obey LaPenta's in- structions to perform the switchboard operator's job was based on her implied support for the position of the Union representing the operators, that she should not be performing this unit work. The Board has held that activity can still be protected and concerted , even though such activ- ity embraces ' the disobedience of an order of management Bob Henry Dodge, 203 NLRB 78 (1973). 1 note in this connection that the record reveals no evidence of the existence of either a no-strike clause or a grievance procedure in the Local 153 contract. Accordingly, I fmd that Respondent discharged Res- nick because of its mistaken belief that she engaged in union activity, and because of her activity in complaining about Respondent's lunch hour -policy, both to, manage- ment and to the Department of Labor.36 Therefore, Re- spondent has violated Section 8(a)(1) and (3) of the Act, and I so find. CONCLUSIONS OF LAW 1. Salisbury Hotel is an employer engaged, in com- merce within the -meaning of Section 2(6) and (7) of the Act. 2. By discharging and refusing to reinstate Cheryl Res- nick because she called the United States Department of Labor concerning Respondent's changing its lunch hour policy and because she engaged in other protected con- certed activities concerning such changes, Respondent violated Section 8(a)(1) of the Act. 3. By discharging and refusing to reinstate Cheryl Res- nick because of its belief that she engaged in union ac- tivities, Respondent violated Section 8(a)(1) and; (3), of the Act. ' ' - 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged, in cer- tain unfair labor practices, I find it, necessary to order Respondent to cease and desist therefrom and td "take certain affirmative action designed to effectuate the poli- cies of the Act. The Respondent having discriminatorily discharged its employee Cheryl Resnick, I shall recommend that Re- spondent be required to offer Resnick immediate and full reinstatement to her former position of employment, or in the event that such position no longer exists, to a sub- stantially equivalent position, without prejudice to her seniority or other rights and privileges; and to make her whole for Any loss of earnings and other benefits she may have suffered because of Respondent's discrimina- tion against her. Her loss of earnings-shall be computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth in Iris Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp., 231 NLRB 651 (1977). I shall also recommend that Respondent remove from its files any reference to Resnick's discharge, and notify her in writing that it has done so, and that-evidence of this discharge will not be used as a basis for future per- sonnel action against her. Sterling Sugars, 261 NLRB 472 (1982). On these 'findings of- fact and conclusions of law and on the entire record, I issue the following recommend- ed37 3e Triangle Tool & Engineer, 226 NLRB 1354 (1976); Self Cycle Marine & Distributors Co., 237 NLRB 75 (1978); Demo Ambulette, supra. 37 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 Continued SALISBURY HOTEL 697 ORDER, The Respondent, Salisbury Hotel, Incorporated, New York, New York, its officers, agents, successors,,and as- signs, shall 1. Cease and desist from (a) Discharging, or otherwise discriminating against employees, because they contact or complain to the United States Department of Labor or any other govern- mental agency charged with responsibility for adminis- tering laws relating to wages, hours, and terms and con- ditions of employment, or because they engage in any other protected concerted activity concerning their working conditions. (b) Discharging, or otherwise discriminating against employees, because of its belief that they have engaged in union activities. (c) In any like or related manner interfering with, re- straining, or coercing its' employees in the exercise of rights guaranteed them in Section 7 of the; Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. ' - _ (a) Offer Cheryl Resnick immediate and full reinstate- ment to her former job or, if her former job no, longer exists, to substantially equivalent employment without prejudice to her seniority or other rights and, privileges and make her whole for any loss of pay she may have suffered by reason of her unlawful discharge, in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the dis- charge of Cheryl Resnick, on February 22, 1981, and notify her in writing that this had been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her. (c) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other , records nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its, place of business in New York, New York, copies of the attached _ notice marked "Appen- dix."88 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by the Respondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall' be taken by the Respondent to ensure that the notices are not ' altered, de- faced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 38 -If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of Board and all objections to them shall be deemed waived for all pur- the United States Court of Appeals Enforcing an Order of the National poses. Labor Relations Board."