Host International, Inc.

442 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Host International, Inc., a wholly-owned subsidiary of Marriott Corporation and Virgilio Rizzo. Case 29-CA-11748 July 29, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On September 25, 1986, Administrative Law Judge Winifred D. Morio issued the attached deci- sion. The Respondent filed exceptions , a supporting brief, and a motion for oral argument. The General Counsel filed cross-exceptions and a supporting and 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, briefs, and motion " and has decided to affirm the judge's rul- ings, findings,2 and conclusions as modified and to adopt the recommended Order as modified.3 We agree with the judge's finding that the Re- spondent violated Section 8(a)(1) and (4) of the Act by refusing to hire Virgilio Rizzo and Joseph Sar- ubbi in 1985, when it took over the operations of Gladieux Corporation at JFK Airport where they were working. We do not agree with the judge, however, that we should set aside the settlement agreement resolving earlier unfair labor practice charges filed by Rizzo and Sarubbi against the Re- spondent concerning their 1981 discharges from the Respondent's operations at La Guardia Airport. Although the Regional Director could have vacat- ed the settlement agreement because of the later in- dependent unfair labor practices alleged in the complaint here and consolidated both cases for hearing,4 that is not what he did . Rather, the Re- gional Director issued a complaint in this case that merely referred to the Respondent's earlier con- duct as background for the 8 (a)(4) allegations here, and the General Counsel stated a similar position when presenting evidence about the 1981 events at ' The Respondent 's motion for oral argument is denied as the record and the briefs adequately present the issues and the positions of the par- ties. 2 In sec. D, par 2, of the "Discussion" portion of her decision, the judge incorrectly stated that the decision not to hire Rizzo and Sarubbi was made in March 1983 rather than in March 1985. We, therefore, cor- rect this inadvertent error. e The General Counsel has requested us to include a visitatorial clause in the Order that would authorize the Board to obtain discovery from the Respondent under the Federal Rules of Civil Procedure in order to moni- tor the Respondent's compliance with this Order. We find it unnecessary to include such a clause in the Order in this case. See Cherokee Marine Terminal, 287 NLRB 1080 (1988 ). Accordingly, we deny the General Counsel's request. " See, e.g., Norris Concrete Materials, 282 NLRB 289 (1986) the hearing. As the Respondent had no notice that it might be held accountable for any illegality con- nected with these earlier discharges , we find no violation of the Act based on the 1981 discharges of Rizzo and Sarubbi.5 We shall modify the recom- mended Order, conclusions of law, and remedy ac- cordingly. Even though we are not setting aside the settle- ment agreement in the earlier case , we agree with the judge that the Respondent's presettlement con- duct may properly be considered as background evidence to establish the motive for the Respond- ent's postsettlement conduct in this case.° Thus, al- though the 1981 discharges of Rizzo and Sarubbi cannot be made the basis of a remedial order be- cause of the settlement , the events surrounding those discharges can be used to shed light on the Respondent's reasons for refusing to hire them in 1985.7 We also agree with the judge's finding that the Respondent's refusal to hire Rizzo and Sarubbi in 1985 was not simply the natural result of their original discharges, but rather was a new and inde- pendent act of discrimination that occurred after the settlement and, therefore, could be litigated.8 Further, we agree with the judge that the facts here do not establish either that Rizzo and Sarubbi waived all rights to future employment with the Respondent during negotiations for a settlement in the earlier case or that the Respondent relied on a mistaken understanding of their waiver when it re- fused to hire them later. We note that, even if the evidence did show Rizzo and Sarubbi had agreed to such a waiver, we cannot conclude the parties intended the waiver to cover a situation where Rizzo and Sarubbi did not approach the Respond- ent for employment but rather the Respondent took over another business where they had found jobs. Clearly, this unusual course of events would not normally be within the parties' contemplation when they agreed to such a waiver. Finally, we agree with the judge that the Re- spondent refused to hire Rizzo and Sarubbi in 1985, not because they had previously been terminated for cause, but rather because of Rizzo 's protected S Because we are reversing the judge 's finding of violations as to the 1981 discharges, we find it unnecessary to pass on whether deferral to the arbitration awards concerning these 1981 discharges would be warranted. Deferral to the prior arbitration awards would not be warranted as to the 1985 refusal to hire, of course, because those events occurred after the awards issued and thus the arbitrator could not have considered them in making his awards. Litton Systems, 283 NLRB 973 (1987) e Universal Textured Yarns, 203 NLRB 713, 717 (1973), and Sieves Sash & Door Co, 164 NLRB 468, 476 (1967), enfd. in relevant part 401 F.2d 676, 678 (5th Cir. 1968). See also Gulf States Mfrs. v. NLRB , 598 F.2d 896, 905 at fn. 14 (5th Cir. 1979). r Sieves Sash & Door Co., supra at 476 8 In adopting this finding, however, we do not rely on the judge's dis- cussion of Leeward Nursing Home, 278 NLRB 1058 (1986), and Ventura Coastal Corp, 264 NLRB 291 (1982) 290 NLRB No. 58 HOST INTERNATIONAL concerted activity in filing a lawsuit against the Respondent in 1981 with other employees and be- cause Rizzo and Sarubbi had filed charges with the Board about their 1981 discharges. We find, based on the following facts, that the Respondent's stated reason for refusing to hire Rizzo and Sarubbi was merely a pretext. The Respondent's general manager at JFK Air- port, Robert Kouba, testified that he made the de- cision whether to hire the former Gladieux em- ployees during the Respondent's takeover of Gla- dieux operations at JFK. Kouba testified that the reason Rizzo and Sarubbi were not hired was that they had previously been terminated for cause by the Respondent;9 however, their termination letters do not mention this reason and the supervisor who gave Sarubbi his letter also did not rely on this reason when questioned . Although Kouba testified that the Respondent had a policy against hiring employees who had been terminated for cause, there is no record evidence of any written state- ment of this policy. Further, the record shows that the Respondent rehired three employees at JFK Airport in 1982 and 1983 who had been discharged by the Respondent for failure to collect money and ring up sales, and that it retained Gladieux employ- ee Gladys Alvarez in the 1985 takeover despite her 1983 discharge by Gladieux for failure to ring up sales and her continued cash-handling violations in 1984 after she was rehired by Gladieux. Finally, Kouba testified initially that, in making the decision whether to hire the former Gladieux employees, he only looked at the employees' personnel records at Gladieux and their 1985 applications for employ- ment with the Respondent . However, these records do not reveal that Rizzo and Sarubbi were ever terminated for cause. Clearly, the reason given at the hearing in this case was not the Respondent's real reason for re- fusing to hire Rizzo and Sarubbi during the 1985 takeover. We do, however, have some direct evi- dence of the Respondent's real motive. Thus, Gla- dieux Supervisor Kowalsky testified that at a man- agement meeting on March 22, 1985, the day before the official takeover and about I week after Rizzo and Sarubbi got their termination letters, Re- spondent Director of Security Christie told him that "Sarubbi was tied in with `The Magnificent Seven"' and that the Respondent had "no use for these people because they were troublemakers." It is undisputed that "The Magnificent Seven" was a 9 In his testimony, Kouba did not mention their supposed waiver of future employment rights as playing any part in his decision not to hire Rizzo and Sarubbi. Moreover, the record does not reveal that Kouba even knew their Board charges had been settled, much less the terms of that settlement 443 name commonly used by management to refer to the civil lawsuit concerning working conditions that was filed against the Respondent in 1981 by seven employees working at the Respondent's La Guardia Airport operations. Although Rizzo was one of the named plaintiffs in this lawsuit, Sarubbi was not involved in it. The uncontradicted record evidence shows, however, that several of the Re- spondent's supervisors told employees in 1981 that Christie wanted to get rid of Rizzo and the other employees who filed the lawsuit and that Christie planned to fire Sarubbi, who was not involved in the lawsuit, to make the other discharges look le- gitimate.1 ° Rizzo and Sarubbi were discharged by the Respondent in 1981 and filed Board charges about their terminations. We also have other evidence from which we can infer the Respondent's real motive in refusing to hire Rizzo and Sarubbi during the 1985 takeover. Thus, Respondent General Manager Kouba, who made the decision not to hire Rizzo and Sarubbi, admitted that he had heard about the lawsuit and the Board charges at La Guardia Airport around the time they were filed and that he had become familiar with Rizzo's and Sarubbi's names when they were still working at La Guardia. Kouba testi- fied further that in early 1985, before he began screening the Gladieux employees for hire, Christie brought it to his attention that Rizzo and Sarubbi were working for Gladieux at JFK. Kouba also ad- mitted that Christie may have told him at that time that Rizzo and Sarubbi were the ones who had filed Board charges and the lawsuit at La Guardia. Finally, although Kouba stated he made the final decision on whether to hire the Gladieux employ- ees, he testified that he consulted with labor rela- tions officials at the Respondent's headquarters in California before he made the decision not to hire Rizzo and Sarubbi; Kouba did not explain why this was necessary." We conclude, in agreement with the judge, that the Respondent's real motive in refusing to hire Rizzo and Sarubbi was to retaliate against their previous protected concerted activities in filing a lawsuit and their filing of Board charges. There- fore, we find that by refusing to hire Rizzo and Sarubbi in 1985 the Respondent violated Section 8(a)(1) and (4) of the Act. 10 Christie was a named defendant , along with the Respondent, in the lawsuit. 11 All these findings about the Respondent's real motive in refusing to hire Rizzo and Sarubbi are based on admissions by Respondent Officials Kouba and Christie that are uncontradicted . In light of this evidence sup- porting a violation, we find it unnecessary to pass on whether the Re- spondent and Gladieux were joint employers during the several months just before the official takeover on March 23, 1985, or whether the Gla- dieux supervisors were agents of the Respondent during that period. 444 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Substitute the following for the judge 's Conclu- sion of Law 2. "2. By refusing to hire former Gladieux employ- ees Virgilio Rizzo and Joseph Sarubbi in March 1985 because of their protected concerted activities and filing of Board charges, the Respondent violat- ed Section 8(a)(1) and (4) of the Act." AMENDED REMEDY Having found that the Respondent has violated Section 8(a)(1) and (4) of the Act, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent, having refused to hire two em- ployees in violation of Section 8(a)(1) and (4), it must offer them employment as bartenders or other equivalent positions and make them whole for any loss of earnings and other benefits resulting from its refusal to hire them, computed on a quarterly basis from the date of the refusal to hire to the date of a proper offer of employment, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded.' 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Host International , Inc., a wholly-owned subsidiary of Marriott Corporation, New York, New York, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(a). "(a) Refusing to hire Virgilio Rizzo and Joseph Sarubbi because of their protected concerted activi- ties and filing of charges with the Board." 2. Substitute the following for paragraph 2(b). "(b) Remove from its files any reference to the unlawful refusals to hire and notify the employees in writing that this has been done and that the re- fusals to hire will not be used against them in any way." 3. Substitute the attached notice for that of the administrative law judge. 12 283 NLRB 1173 (1987). Interest on and after January I, 1987, shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C. § 6621 Interest on amounts accrued prior to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S C. § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). 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 refuse to hire Virgilio Rizzo and Joseph Sarubbi because of their protected concert- ed activities and filing of charges with the Board. 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 Virgilio Rizzo and Joseph Sar- ubbi employment at our facility at the JFK Airport as bartenders or substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed. WE WILL make Virgilio Rizzo and Joseph Sar- ubbi whole for any loss of earnings and other bene- fits they may have suffered by reason of our refusal to hire them, less any net interim earnings, plus in- terest. WE WILL remove from their records any refer- ence to our refusal to hire them , and WE WILL notify them in writing that this has been done and that our refusal to hire them will not be used against them in any way. HOST INTERNATIONAL, INC., A WHOLLY-OWNED SUBSIDIARY OF MARRIOTT CORPORATION David S. Cohen, Esq., for the General Counsel. Courtney B. Wheeler, Esq., of Bethesda, Maryland, for the Respondent. DECISION STATEMENT OF THE CASE WINFRED D. MORlo, Administrative Law Judge. This case was tried at Brooklyn, New York, on 19, 20, 21, 22 May; 26, 27 June; and 2 July 1986. On 19 December 1985, the Acting Regional Director for Region 29 issued the original complaint in this proceeding . Thereafter, an amended complaint was issued on 25 March 1986 and a second amended complaint was issued on 2 May 1986. This last complaint alleged that Host International, Inc., a wholly-owned subsidiary of Marriott Corporation (Host/Company), violated Section 8(a)(1) and (4) of the Act when it discharged its employees Virgilio Rizzo and Joseph Sarubbi because they filed a lawsuit against Host in the United States District Court , Eastern District of New York, and engaged in other concerted activity for HOST INTERNATIONAL the purpose of collective bargaining and other mutual aid and protection.' The Company filed an answer in which it denied the alleged violations and set forth several af- firmative defenses. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by both counsel, I make the following FINDINGS OF FACT 1. JURISDICTION During the past year, which period is representative of its business operations, Host, in the course and conduct of its business operations , derived gross revenues from bar and restaurant sales valued at in excess of $500,000 and purchased and caused to be transported and deliv- ered to its Queens Airport facility food, beverages, bar supplies, and other materials valued at in excess of $50,000, of which goods and materials in excess of $50,000 were transported and delivered to it in interstate commerce directly from States of the United States other than the State of New York. The parties admit, and I find, that Host is an employer within the meaning of Section 2(6) and (7) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Rizzo began his employment as a bartender with Host at its LaGuardia Airport restaurant in October 1973, and Sarubbi commenced his employment with Host in the same capacity and at the same location in November 1974. Insofar as this record indicates, the two continued as bartenders at that location without any difficulties until 14 December 1980. On that day, subsequently re- ferred to as "Black Sunday," Host closed all its bars at LaGuardia Airport, physically detained six bartenders and one waiter, and interrogated them regarding alleged violations of Host's cash-handling policies. Rizzo was one of the bartenders who was detained, Sarubbi was not detained. The employees who were detained were told by Charles Newman, the regional vice president for Host, that they were all suspended indefinitely. The fol- lowing day Rizzo was recalled to work, he did not re- ceive a warning, nor did he suffer a pay loss. As a result of this detention, charges were filed on 31 December 1980 by Local 6 Hotel, Restauant, Club Em- ployees and Bartenders Union, AFL-CIO (the Union) on behalf of those employees with the National Labor Rela- tions Board (the Board) in Case 29-CA-8532. Basically, the Union alleged that Host had violated Section 8(a)(3) and (5) of the Act by interrogating, imprisoning, and sus- pending its employees because of their union activities and by refusing to allow the employees to contact and have present their union representative when the em- ployees requested such representation at disciplinary meetings. ' During the hearing the counsel for the General Counsel stated that it was his position that Host violated Sec 8( aXI) and (4) when it dis- charged and/or refused to hire Rizzo and Sarubbi. 445 On 13 April 1981, the Regional Director for Region 29 dismissed the portion of the charge that alleged that the employees had been detained or disciplined because of their union membership. Host entered into an informal settlement agreement regarding that portion of the charge that alleged that Host had required its employees to participate in disciplinary interviews without union representation when the employee had requested such representation. In addition to the charge filed with the Board about their detention, the employees also filed a lawsuit in the United States District Court, Eastern District of New York, on 21 April 1981.2 In this suit, the employees claimed that Host had physically assaulted and searched them, detained and interrogated them, and deprived them of the rights, privileges, and immunities guaranteed to them by the Constitution and the laws of the United States. The suit referred, specifically, to the seven indi- viduals, including Rizzo, who had been detained. The details of the settlement of this suit will be discussed below. The lawsuit, which requested monetary compensation in the amount of $7 million, was well publicized in local newspapers and the individuals who filed the suits were referred to by fellow employees and supervisors as the "Magnificant Seven." In February 1981, Host changed the system by which bartenders bid for a job. Rizzo filed a charge on 9 Febru- ary 1981, in Case 29-CA-8633, in which he alleged that Host had violated Section 8(a)(3), (4), and (5) of the Act, because the change was made unilaterally and arose be- cause the employees had assisted the Union and had given testimony under the Act. In addition to the charge, Rizzo also sent a letter to Scott McDougal, a supervisor, in which he mentioned the events of "Black Sunday" and stated that the change in the bid schedule had been made to harass and intimidate the employees. This charge was withdrawn by Rizzo, according to him, be- cause Host returned to the original system of bidding.' Dallas Swingle, had been employed by Host , at vari- ous times between 1980 and 1985, as a supervisor, at the Host facilities at LaGuardia Airport. Respondent admit- ted that Swingle was a supervisor and its agent at the time of the incidents. According to Swingle, after the lawsuit was filed by the seven employees he had several conversations about the lawsuit with Scott McDougal, who was the food and beverage manager and his super- visor. Swingle could not recall the exact times when these conversations were held but they occurred after the lawsuit was filed and before September 1981. Swin- ' The lawsuit was filed by Rizzo, whose name was first on the caption, James Terrence Weir, Frank Monaghan , Juan Fung, Vincent Fattizzi, Gilberto Munoz, and Charles O'Neill. s It was the Company's position that it was permitted to make such a change according to the collective-bargaining agreement in existence be- tween the parties. 4 Swingle was not employed by Host at the time of the hearing. He testified that the Company told him that he had an absentee problem and he had to decide whether he wanted to continue his association with the Company and he decided to leave. However, he admitted that when he asked to be rehired, about February 1985, Host stated that they were not interested in rehiring him. 446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gle testified that McDougal told him on several occa- sions that Host planned to "get rid of the seven bartend- ers who filed the lawsuit," the Company "was going to blow them out of the water." Swingle claimed that McDougal also told him that it was Newman 's idea to fire these employees. Newman, a vice president, had been named, specifically, in the lawsuit. Swingle stated that the lawsuit was constantly the topic of conversation among supervisors and the employees and that the com- pany representatives generally did not make "kind" state- ments about the seven employees who filed the lawsuit. Swingle also testified that after the seven employees were detained he had several conversations with Fred Christie, who was head of security for Host, and the "high point of the conversation was usually how many bartenders were gone out of the original 7, how many were left." According to Swingle, Christie told him on several occasions that the bartenders who filed the law- suit and were still employed would be "shopped."5 Christie was named, specifically, in the lawsuit. In the affidavit given to the Board during the investi- gation, Swingle stated that he heard McDougal say, "that the people who initiated the lawsuit would be gotten rid of and that McDougal indicated that the way Host would get rid of them would be through shopping reports and mistakes in cash handling procedures." Swin- gle did not state in the affidavit that McDougal told him that the idea to fire the employees came from Newman; rather Swingle stated that McDougal indicated that the decision came from higher-ups and Swingle perceived that the idea originated with Newman. Swingle also stated in the affidavit that McDougal did not indicate that additional "shopping" had been ordered for the seven individuals who had filed the lawsuit. Swingle testified, on cross-examination, that Christie had spoken to him on occasion "about shopping" em- ployees other than those involved in the lawsuit and Swingle admitted that Christie never said, specifically, that he would use "shoppers" to fire the seven employ- ees. According to Swingle, Christie said that these em- ployees would violate company rules and thus give the Company the grounds to terminate them. According to Rizzo, he had a conversation with Swin- gle in July 1981 during which Swingle told him that McDougal said that if the seven employees did not drop the lawsuit McDougal would flood the bar with shop- pers and California would back him up.s McDougal was not called to testify. Rizzo also claimed that he had a conversation with Daryl Easterling, an admitted supervi- sor, in August 1981 , during which Easterling told him that the Company had a hit list and his name and that of the others involved in the lawsuit were on the list. Rizzo testified that Easterling told him that Sarubbi 's name was also on the list and when Rizzo expressed surprise that Sarubbi's name had been included, Easterling replied that a The word "shopped " is a term used in this type of business to de- scribe a situation where security guards, employed by outside firms, come to an employer's premises to observe whether employees are fol- lowing company rules. It appears that in order to conduct these observa- tions the security guards pose as customers and order food or drink from the employees under observation 6 The main offices of Host were located in California. the Company was firing Sarubbi because they did not want it to appear obvious that they were firing the plain- tiffs in the lawsuit.' Rizzo testified that from his conver- sation with Easterling he had the impression that the Company would use "shoppers" fo find grounds to dis- charge the employees. Rizzo viewed the statements by Swingle and Easterling as "friendly warnings." Easterl- ing was not called to testify. Sarubbi testified that in August 1981 he had a conver- sation with McDougal, during which McDougal told him that Christie had a hit list and his name was at the top of the list. When Sarubbi questioned McDougal as to why his name was on the list, because he was not in- volved in the lawsuit, McDougal responded that Christie wanted to get Rizzo and the others involved in the law- suit and to do that it would be necessary first to fire Sar- ubbi. McDougal stated that if they fired Sarubbi, who had a clean record and was not involved in the lawsuit, allegedly for some infraction of company rules, then there would be no questions raised when they fired the others, also for some alleged infraction of company rules. McDougal also told Sarubbi that Newman had said that if the employees did not back off the lawsuit he would harass all the bartenders and try to get them all fired. Newman, Christie, and McDougal were not called to testify. On 11 September 1981 Host suspended and, thereafter, on 15 Septemberi 1981, it discharged Sarubbi , allegedly, because he violated company procedures. On 17 Septem- ber 1981 Host suspended and, thereafter, on 24 Septem- ber 1981 it discharged Rizzo, allegedly because he violat- ed company procedures. In December 1981, the Union filed a request for arbitration about these discharges and about the discharges of Debbie Fryer, a waitress who had been discharged with Sarubbi , also allegedly for vio- lating company rules, and Lorraine Charest, a waitress, who had been discharged with Rizzo, also allegedly for violating company rules. Host conceded that Sarubbi had been a satisfactory employee from 1974 until on or about 10 September 1981. According to Sarubbi, on 9 September 1981 he ar- rived at work at 2:30 p.m. and went to the fourth floor to get his bank, which was the money he put into the register at the start of his shift. McDougal was present when he arrived and McDougal told him not to take the bank, they did not have a register for him. McDougal then told Sarubbi to go home and to return for work the next day. Sarubbi asked McDougal why he could not work with an open drawer as he had in the past when they did not have a register for him and McDougal re- sponded that Christie did not want him to work that day.8 On 10 September 1981, Sarubbi reported for work at 2:30 p.m. and again saw that there was no register for him. Sarubbi called Easterling , his supervisor, and ex- plained the problem and Easterling said he would locate a register for him, which he did about 4 p.m. It was not r Rizzo testified that he did not know why Sarubbi was discharged. According to Rizzo, Sarubbi could have been discharged both as a cover and because he mishandled cash 8 Sarubbi claimed that Christie was present when McDougal said this but McDougal whispered when he made this remark HOST INTERNATIONAL the register usually used in West Wing Bar, the section where Sarubbi normally worked. This register, which came from the East Wing Bar, had a plastic shield cover- ing one side and the back and Sarubbi placed the ma- chine so that the other side of the register was against a wall. Therefore, according to Sarubbi, on 10 September 1981 the only part of the register that would be visible was the front of the machine where Sarubbi stood when he rang up the sales. Sarubbi claimed that during the evening the register did not consistently issue receipts when he rang up the sales, the machine would jam, and he had to physically pull the tape. After continuing to experience difficulty with the tapes, Sarubbi notified Eas- terling about the problem. Easterling was unable to check the problem until about 7 p.m., at which point there was no tape left in the register. There were few customers present when Easterling arrived and so Eas- terling decided to close the bar. Sarubbi was not accused at that point of giving drinks to the waitress, Debbie Fryer, without collecting for them, which would be a violation of company rules. However, later that evening Sarubbi was told that both he and Debbie Fryer, who had worked with him that evening, had been shopped and Sarubbi was given a pink slip by Pat Trench, a man- ager. Sarubbi asked Trench why he was being suspended and Trench responded that he did not know, he had not received a report.9 Sarubbi asked Trench how he could be suspended in view of the fact that Trench had not re- ceived the shopper's report and the further fact that Trench had counted Sarubbi's receipts and examined the tape and had not found a discrepancy. When Sarubbi persisted in questioning Trench why he had received a pink slip when Trench had not received the shopper's report, Trench responded that he had to do it. Later in September 1981, a meeting was held with Host's general manager, James Allen, about the discharges of both Sar- ubbi and Fryer. Present, in addition to Allen and the dis- charged employees, was Al Farin, a union business agent. During the meeting, Allen presented the shopper's report and the tape to Farin for his examination. Allen claimed that Sarubbi had failed to ring up drinks but Farin disputed that assertion and he stated that the tape proved that Sarubbi had, in fact, rung up all the drinks. According to Sarubbi, eventually Allen agreed that the tape did establish that all the drinks had been rung up. Allen said he would consider the matter and he would give Sarubbi his decision in a few days. Within a few days, Farin advised Sarubbi that the Company refused to change its decision, he was fired. 'O Allen was not called to testify in this proceeding . The Union filed for arbitra- tion for both Sarubbi and Fryer's discharges. On 18 January 1982, Burton Turkus, the arbitrator, issued a six-page decision based on the testimony of Sar- ubbi, Fryer, and the two shoppers, employed by an out- side agency, who had shopped Sarubbi and Fryer on the evening of 10 September 1981. According to the arbitra- 9 The disciplinary action memo stated that Sarubbi was suspended in- definitely because he was observed by a shopper "mishandling company funds and improper issuing of receipts." 10 Host did not call the shoppers, Trench or Easterling, as witnesses. Neither were the shopper reports or the tapes presented during this hear- ing. 447 tor's decision, Fryer, on at least two occasions, ordered drinks from Sarubbi and did not tender money to Sar- ubbi in payment for these drinks . Fryer gave the drinks to the customers who had ordered them , the customers paid for the drinks, and Fryer placed the money . she re- ceived from them in her cash caddy." He also found that Sarubbi did not ring up sales for these drinks. The arbitrator credited the shopper's testimony and did not credit the explanation offered by Fryer and Sarubbi that Fryer initially had left a sum of money at the service bar from her cash caddy to pay for drinks and that Sarubbi took the money for the drinks that Fryer had ordered from the money that she had left at the service bar. The arbitrator concluded that the two individuals had acted in concert and, therefore, their discharges were justified. Sarubbi testified that he did not tell either the union attorney who represented him at the arbitration or the arbitrator about his conversation with a Host supervisor in which he was told that he was on a hit list and that he was set up for discharge because the Company wanted to cover the fact that it planned to fire the seven em- ployees who had filed the lawsuit. Nor did Sarubbi tell his attorney or the arbitrator that another employee, Fat- tizzi, who had been one of the plaintiffs in the lawsuit, told him that Christie was going to get him and another employee, Monahan, also one of the plaintiffs. Sarubbi claimed that he failed to do so at the suggestion of the union business agent who told him that the supervisors would not testify in support of him , and, therefore, such statements by him would not help his case. Sarubbi also did not tell his attorney or the arbitrator about the charges that had been filed by Rizzo and the Union with the Board . The arbitrator's award does not contain any reference to the NLRB charges or to the fact that Sar- ubbi believed that he was discharged to cover the dis- charge of the plaintiffs in the lawsuit. On 17 September 1981, Rizzo was working as a bar- tender in the West End Bar with Vincent Gonzalez, an- other employee. Gonzalez left work about 7:30 p.m. to attend a funeral service . 12 Rizzo testified that around 8 p.m. he became aware that he was being shopped. Rizzo claimed that he took three orders at about this time, a procedure he claimed was not unusual when the bar was busy. It was a practice known to the supervisors. He then collected for all three drinks at the same time, rang them up separately, and gave each party whatever change was due. Rizzo observed the two men , who had been standing at the bar, leave the bar and move to a nearby standup table . He was suspicious because the men were keeping an eye on the register . The men asked for scotch, they did not name a brand and he gave the wait- ress bar scotch to give to the two men . The waitress, Lorraine Charest, took the money from her caddy for the drinks and left it on the service bar; then she served the customer and collected the money for the drinks '' Waitresses are treated as customers and they are required to pay for drinks as they order them . A waitress will usually pay for a drink when she receives it from the bartender from her own money, which she car- ries in a cash caddy. When she serves the drink to the customer and he pays she is reimbursed for the money she has paid to the bartender. 12 There was only one register in the bar that evening 448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from the customer, which money she put in her cash caddy. Rizzo conceded that he might not have rung up the drinks immediately because he was busy making more drinks but he testified that he rang up all the drinks that he served that evening. At 8:30 p.m., Easterling told Rizzo he had been shopped that evening . Easterling then counted the money and told Rizzo that the amount was correct. Later, Easterling told Rizzo that Christie wanted Rizzo's tape for that evening. He then gave Rizzo a pink slip, which stated that Rizzo was suspended indefinitely for violation of the company policies, "as per the shopper's report." The memo was signed by Christie. About a week after the suspension, there was a meeting in Allen's office about the suspension. Present, in addi- tion to Allen and Sarubbi, were Christie, Lorraine Char- est, the waitress who had been suspended with Rizzo, and a union representative. The shopper's report was dis- cussed and Rizzo stated that he knew he was being shopped and he explained his actions that evening. Rizzo asked to see the tape for the register of that evening in order to verify that he had rung up all the sales. When he looked at the tape Rizzo claimed it had been stapled together and there was an overlapping of figures. Allen explained that the tape had caught in the register and it had been necessary to pull the tape , which had caused it to tear. At the conclusion of the meeting, Allen said he would give his decision in a few days. Subsequently, the Union told Rizzo that he was fired. The matter went to arbitration on 3 December 1981. Within a few days after the arbitration, Rizzo drafted a memo concerning certain events that had occurred during the arbitration . Basical- ly, the memo dealt with Rizzo's dissatisfaction with the manner in which the union attorney had represented him during the arbitration. The memo does not state that Rizzo told his attorney, prior to the arbitration, that he believed the Company had fired him in retaliation for his filing of the lawsuit. Nor does the statement contain a reference to his attempts to tell the arbitrator about the charges filed with the Board or about the lawsuit and it does not state that the arbitrator rejected these attempts. The memo does contain the statement that Rizzo be- lieved that the Company wanted to obtain a favorable result from the arbitration, "so that they can offer it as a reason for the dismissal of any damage suit against them." On 19 January 1982, Burton Turkus, the arbitrator, issued his decision based on the testimony of Rizzo, Charest, and the two 'shoppers, employed by an outside security service, who had "shopped" the two employees. According to this decision, the shoppers testified that they ordered two Dewars and soda from Charest, Char- est secured the drinks from Rizzo, she did not tender him any money, and Rizzo did not pick up any money from the service bar. Rizzo did not ring up the two drinks. Charest gave the drinks to the shoppers, collected money for the drinks from them , and she put this money in her money caddy. This process was repeated. Turkus discredited the explanation advanced by Rizzo and Char- est, which was that Charest had left money for the drinks on the service bar and Rizzo had taken the money from that area when Charest ordered the drinks. The ar- bitrator found that the two had been discharged for cause. In both decisions, the arbitrator stated that the four employees were familiar with the Company's cash- handling policies, which required a waitress to pay for drinks when she received them from the bartender and required the bartender to ring up each sale. Rizzo and Sarubbi testified that there was no set way to handle cash. Thus, they claimed that if a bartender was busy he might take an order from a customer or a group of cus- tomers at one time, and ring up all sales at one time, al- though the drinks for each customer or group of custom- ers would be rung up separately. According to Swingle, bartenders were to take orders separately and ring up sales separately, they were not to "double up" and he ad- mitted that he has spoken to employees about following this procedure. However, he also admitted that bartend- ers did "double up" on orders and did ring up more than one sale at a time when the bar was busy and this prac- tice was known to supervisors. Rizzo testified that he told the union attorney, prior to the arbitration proceeding , about the charges he had filed with the Board but the union attorney appeared to be more concerned with the shopper's report and he told Rizzo that he could give his own account about the charges. Rizzo claimed that at the arbitration proceeding he attempted to explain to the arbitrator about the civil suit; that had been filed and about the NLRB charges; the arbitrator then asked what had happened to the charges, and Rizzo explained that one charge had been withdrawn and the other charge was settled . At this point, the arbitrator stated that he did not see a connec- tion between the lawsuit , the NLRB charges, and the discharges. Rizzo claimed that he did not tell the arbitra- tor about the conversations he had with Swingle and Easterling because the arbitrator did not appear to be in- terested. In the affidavit secured from Rizzo during the investigation of the case, he stated that he attempted to tell the arbitrator about the lawsuit, but the arbitrator said the matter was irrelevant . According to the affida- vit, when he told the arbitrator about the charges the ar- bitrator was concerned and asked about the status of the cases and Rizzo explained that one had been settled and the other was withdrawn. The arbitrator then stated that he did not see a connection between the charges and the grievance presented to him. According to Rizzo's testi- mony and affidavit, the union attorney requested that the NLRB charges and documents relating to the lawsuit be received into evidence to demonstrate the atmosphere at the airport. The arbitrator agreed to the receipt of these documents but stated that he would not give them any weight. According to Rizzo, the union attorney did not give any details about the unfair labor practice and he did not brief the unfair labor practice or lawsuit issue. It does not appear that there was a transcript of these pro- ceedings and the arbitrator's decisions do not refer to the Board charges, the lawsuit, or the retaliation or coverup reason for Rizzo and Sarubbi's discharges. It is unclear whether the arbitrator did receive any documents relat- ing to the charges or lawsuit. It is the position of the General Counsel that Rizzo and Sarubbi were given substantially harsher discipline than was given to other employees who violated the HOST INTERNATIONAL Company's cash-handling rules, and this fact indicates that their discharges in September 1981 were due to the NLRB charges and the lawsuit that had been filed. Nu- merous exhibits were received into evidence in support of this position by the General Counsel during the hear- ing and the parties stipulated to the authenticity of other records in an off-the-record meeting.' 3 Insofar as this record indicates, the alleged infractions of company rules in September 1981 were the first offenses by Rizzo and Sarubbi since the commencement of their employment with Host. An examination of the personnel records of several employees does establish that some employees who allegedly violated the Company's cash-handling rules were not discharged . Thus, a bartender, Mario Mancini, was given a warning on 30 September 1982 for violation of cash-handling procedures; Victor Rohan, a bartender, received a warning on 11 March 1985 for fail- ing to ring up sales, among other violations; John Wheel- er, a bartender, received numerous warnings for viola- tions of company rules, including his failure to ring up drinks and for cash shortages, but he was not discharged; Juan Ochoa, a bartender, Manuel Bande, a waiter, and Clara Santa Cruz were all suspended on 6 December 1982 for violations of cash-handling policies, which in- cluded underringing sales and not ringing sales but they were reinstated on 9 December 1982. Ochoa was sus- pended again on 21 April 1983 for cash-handling viola- tions but he was reinstated on 13 May 1983; Vincent Di- Giorgio, a bartender, was suspended for 2 weeks in 1977 and was told that it was a serious violation of company rules to fail to ring up sales and to ring up a no -sale; Di- Giorgio was warned again about a cash shortage on 30, May 1979; and Dorothy Longworth, a cashier, was warned after she was observed taking money from a cash register and putting it in her pocket. In addition, the record reveals that bartenders Felenes, Battala, and Gon- zalez, who were terminated for failure to ring up sales were subsequently reinstated. Battala has been warned on several occasions for cash-handling violations but he has not been discharged. B. The Settlement Sarubbi and Rizzo testified that their efforts to appeal the arbitrator's decision were rejected by the Union and, therefore, on 12 February 1982 they filed unfair labor practice charges in Cases 29-CA-9486-1 and 29-CA- 9486-2, respectively, alleging that Host had violated Sec- tion 8(a)(3) and (4) of the Act by discharging and refus- ing to reinstate Rizzo and Sarubbi because they assisted the Union, filed charges or gave testimony under the Act, and engaged in protected concerted activities. On 21 October 1982, the Regional Director for Region 29 issued an order consolidating the above charges in one complaint that alleged, basically, that Host had violated Section 8(a)(1) of the Act when it discharged and re- fused to reinstate Rizzo and Sarubbi because they filed the lawsuit and engaged in other protected concerted ac- " Host objected to the receipt of any personnel record but did agree that the records that were received were authentic. By order dated 30 July 1986, Exhs. 44 g, h, and i, which were offered by the General Coun- sel, were rejected and Exh . 45 was received. 449 tivities. In June 1983, an administrative law judge ap- proved requests by Rizzo and Sarubbi to withdraw the charges and dismiss the complaint because the parties had entered into an out-of-Board settlement. The parties agree that they entered into a settlement but they are in dispute as to the nonmonetary aspects of this settlement, which disposed of both the charges and the lawsuit. Although the settlement was an out-of-Board settle- ment, the actual offers and counteroffers made by the parties were channeled through the Board agents. It ap- pears that during much of the negotiations the parties were in separate rooms and the Board agents conveyed the proposals of one side to the other side . The Board agents were not called to testify. Carlton Trosclair, the attorney who represented Host during these negotiations, testified that he rejected the Board agents ' requests for reinstatement and specifically told the agents and Rizzo and Sarubbi that Host would not reemploy Rizzo and Sarubbi under any condition. Initially, Rizzo testified that the settlement discussions centered around what amount of moneys would be necessary to settle the case. Subsequently, he stated that he did not recall a discus- sion about the issue of reinstatement . He further stated there were no face-to-face meetings with the Company's representatives during the negotiations . However, when called as a rebuttal witness, Rizzo testified that during the final negotiation meeting Trosclair did say that the Company was not interested in reinstating the two men, but Trosclair did not say that Host would not reemploy them under any condition. Rizzo also stated that he did not know if he could have applied for a position with Host the day after the settlement. Sarubbi recalled that he was told by the Board agents that he would not be reinstated to the position that he had lost, but Trosclair never said that he would not be reemployed again by Host. Sarubbi admitted that he did not believe that he could seek reemployment with Host in a day , week, or month after the settlement. A letter prepared by a Host attorney after the settlement discussions referred only to the monetary aspects of the settlement.'4 Rizzo and Sar- ubbi both stated that at the time of the settlement discus- sions reinstatement was not a prime concern to them be- cause they were then employed. C. The Present Case After their discharge by Host, Rizzo and Sarubbi com- menced employment as bartenders with the Gladieux Corporation (Gladieux) in about March 1982 at the Delta Northwest terminal at the JFK Airport. In late 1984, Gladieux announced to its employees that Host would begin to operate the facility at the Delta Northwest ter- minal sometime after January 1985 . On 3 January 1985, Gladieux became a wholly owned subsidiary of the Mar- riott Corporation. Host had been a wholly owned subsid- iary of the Marriott Corporation since March 1982.15 " According to Rizzo, Host had agreed to provide them with refer- ence letters, but it failed to do so. is In additon to Host International, there is also a Host Services of New York, Inc. It appears that the two corporations constitute a single integrated business enterprise 450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD According to Robert Kouba, who was general manager for Host at the JFK Airport in February and March 1985, Host had planned to take over the Gladieux oper- ation at the Delta Northwest terminal on 1 March 1985, but the actual takeover did not occur until 23 March 1985.16 The record reveals that it was on that day that the Gladieux employees were transferred to the Host payroll. The financial aspects of the sale of the Gladieux assets to Host were not completed until July 1985 when Host paid Gladieux by a check that was processed through an intercompany account.17 According to Paul Matoba, director of accounting for Host, Host's records show that Gladieux sold its assets to Host on 23 March 1985, and the Host's records do not show any entries for the Delta Northwest facility before that day. Joseph Fa- biano, Host's director of labor relations from January 1985 to January 1986, testified that neither the Host per- sonnel department nor its labor relations department were involved with the operation at the Delta Northwest terminal until after 23 March 1985. He further testified that Gladieux did not seek and he did not give any assist- ance about personnel or labor relation matters at any point to Gladieux representatives. Although, according to Kouba, Host did not com- mence its operations at the Delta Northwest terminal until 23 March 1985, he admitted that he was frequently at that location beginning in February 1985. Kouba testi- fied that he came to the facility to examine the existing operation, to survey the facility, to ascertain the number of employees, and to prepare for the transition from the Gladieux method of operation to the Host method of op- eration. Kouba denied that, at this point, he had supervi- sory authority over Gladieux personnel, but he did admit that he held a meeting in about mid-February 1985 with Gladieux employees, with the acquiescence of Gladieux supervisors, 18 on worktime during which he explained the advantages of being a Host employee , and showed the employees a Host orientation film. Kouba also admit- ted that around this time Host application forms and name tags were distributed to the Gladieux employees by both Host's personnel manager and Gladieux supervisors. These application forms were completed by the Gladieux employees, including Rizzo and Sarubbi, in about mid- February 1985, and the employees began to wear the name tags with the Host logo. Rizzo and Sarubbi testi- fied that from about mid-February 1985 they considered themselves to be employees of both corporations. Ac- cording to Mary Grady, a former Gladieux employee who is presently employed by Host, Kouba told the em- ployees in February 1985 that they would be Host em- ployees and Host would recognize their union contract. Kouba did not deny, specifically, this testimony. 16 Marriott Corporation, apparently, decided that all restaurant facili- ties of Gladieux at airports would be operated by Host because Host had all the other corporate restaurants at the airports. 11 This apparently is an account to which all the companies send moneys to pay other companies either owned or controlled by the Marri- ott Corporation. is On cross-examination , Kouba testified that if the Gladieux supervi- sors had not been cooperative he would have referred the matter to Host International Peter Kowalsky was employed as a supervisor for Gladieux from May 1984 until March 1985 at which time he began his employment with Host as a supervisor and continued in that position until 20 May 1986 . At that time, William Powers, his supervisor, told him he was being put on paid leave and would remain on such leave until a Mr. Katengail , the general manager for Host at JFK Airport, had an opportunity to review the tran- script of the hearing in this case19 and to make a deter- mination concerning Kowalsky 's future. The hearing, which began on 19 May 1985, was adjourned after sever- al days and resumed on 26 June 1985 . Kowalsky testified when the case resumed and by that point he had been terminated. Counsel for Host objected to the receipt of testimony by Kowalsky. This objection will be discussed below. . Kowalsky testified that in February 1985, Powers in- troduced him to Kouba at the Delta Northwest terminal and told him that Kouba would be his new supervisor. After that introduction, Kowalsky saw Kouba, at the Gladieux facilities, about four or five times a week in late February and early March 1985 . Sometime in February 1985, after Kouba began to come to the premises, Gla- dieux started to sell bottled beer , something which had not been done before that time. When Kowalsky ques- tioned Powers about this change , Powers told him that Kouba wanted the change made and it had been made. In late February 1985, according to Kowalsky, Kouba told Powers to remove the Gladieux signs and the signs were removed. On one or two other occasions Powers directed Kowalsky to make changes with respect to the removal and cleaning of certain machines and Powers told Kowalsky that the changes were made at Kouba's direction. According to Kowalsky, in late February 1985 Powers told him that they could not hire directly as they had done, applicants would be sent from the Host per- sonnel department . However, Kowalsky could name only two individuals who were hired in this manner, both were hired as bartenders around 21 or 22 March ap- parently to replace Rizzo and Sarubbi . Kowalsky also testified that in late February 1985, Fred Christie, head of Host security, set up a new procedure at the Gladieux facility on how to issue money and make deposits. Chris- tie did not testify. William Powers, who had been the general manager for Gladieux at the terminal and who became a supervi- sor for Host, testified that Kouba did visit the Delta Northwest terminal on several occasions before 23 March 1985, but he denied that Kouba gave directions or orders to any Gladieux employees and he further denied that Gladieux signs and machines were moved at Kouba's direction before 23 March 1985 . David Blanco, who had worked for Gladieux and who became a Host supervisor, testified that he personally removed the Gla- dieux signs after Host took over the operation. He also testified that Kouba never directly gave him orders until after 23 March 1985. 19 The hearing in this case began on 19 May 1986, and by that time it appears that Kouba had been transferred to another location. HOST INTERNATIONAL It is undisputed that Host application forms and name tags were distributed to Gladieux employees before 23 March 1985. The record establishes that Sarubbi and Rizzo completed such application forms, respectively, on 13 and 16 February 1985 and received name tags at that point. Robin Kreitner, who was a Host personnel direc- tor at that time; stated that it was a usual procedure when Host took over a facility to have employment ap- plication forms completed by employees of the former company and to distribute name tags to them . It also was usual, acording to Kreitner's testimony, to request these employees to call the New York Department of Labor about receiving a job tax credit . Kreitner claimed that these procedures did not indicate that the employee would automatically become Host employees. On or about 14 March 1985 both Rizzo and Sarubbi were advised, in writing, by Kouba that in the company transition they would not be hired and their services would not be needed after 23 March 1985. Kouba testified that he made the decision not to hire Rizzo and Sarubbi and DiGiorgio, a third bartender. Ac- cording to Kouba, after the application forms were com- pleted, they were screened first by Kreitner, Host's per- sonnel manager. Kreitner then brought the applications, which she considered favorable, to him for his consider- ation. After he reviewed the applications, he decided that he would not hire DiGiorgio, Rizzo, and Sarubbi and he was concerned about hiring an employee, Ms. Grady, because she was a union delegate at another loca- tion where she was also employed . It was Kouba's opin- ion that if Grady was hired by Host while employed at another location there could be a conflict because she would be a union delegate at two locations. He claimed that he discussed the Grady problem with the union rep- resentative and told him that Grady would have to choose, she could not work and be a delegate at two lo- cations. As a result of this discussion, Kouba claimed that Grady ceased her employment at the second loca- tion and she then was employed by Host. Grady denied that the Union told her that she had to choose between Host and the other employer. She testified that she ceased working at the other location because that em- ployer lost the service contract it had and she, therefore, did not have a job. Kouba stated that he refused to hire DiGiorgio be- cause he had worked for him at JFK Airport and he had terminated him for violating the Company's cash-han- dling policies and that it was against company policy to rehire an employee who had been terminated for cause. According to Kouba's testimony, he did not personally know Rizzo or Sarubbi , they had not worked for him, but he was aware, through company communications, that both men had worked at the Host facility at La- Guardia and that they had been discharged for cause. According to Kouba, he decided that he could not hire these two who had been discharged for cause because it would be against company policy. 20 Kouba claimed that 20 Counsel for Host stated that one of the reasons the Company re- fused to hire Rizzo and Sarubbi when Host took over the Gladieux oper- ation stemmed from the fact that these two individuals had waived all rights to future employment with Host as part of the settlement negotia- tions. 451 in making the decision not to hire Rizzo and Sarubbi he examined the Host application forms and Gladieux's per- sonnel records. When he was advised that those records did not disclose that the men had been discharged for cause, he stated that he knew before he looked at the files that the two men had been discharged . Kouba con- ceded that he had heard about the lawsuit and the charges that had been filed with the Board . Although Kouba claimed that he did not know the names of the employees involved in the charges or the lawsuit, he did admit that he had heard that seven employees were in- volved and he was familiar with the names of Rizzo and Sarubbi. At one point, Kouba stated that he did not know that Rizzo was involved with the charges and the lawsuit. At another point, Kouba testified that Christie knew who had filed the charges and the lawsuit and he may have told him that Rizzo and Sarubbi filed them. Kouba also testified that sometime before March 1985 Christie told him that DiGiorgio, Rizzo, and Sarubbi were working at the Gladieux facility and he told Kouba that the three had been discharged for stealing. Accord- ing to Kouba, he consulted with California before he de- cided not to hire Rizzo. Kouba did not explain why he did this. Kowalsky testified that he first heard the term the "Magnificent Seven" from Powers a few months after he started to work for Gladieux . Powers told him that the bartenders had a case and it was in that context that Powers referred to the term "Magnificent Seven." In January 1985, Powers told Kowalsky that he had met with Christie, head of security for Host, and during this meeting Christie told Powers that Powers had part of the "Magnificent Seven " working for him, that he should keep an eye on them , they were troublemakers. Christie did not testify and Powers did not refute this testimony. At about this time, Powers also told Kowalsky that McCarthy, a vice president for Host, had told Powers that there would be no changes when Host took over the Gladieux operation. However , according to Kowalsky, later in January 1985 Powers told Kowalsky that Kouba had said that there would be changes in the bar but Kouba did not disclose what the changes would be . In March 1985, Powers told Kowalsky that Kouba said that the Company was going to discharge the bartenders. When Kowalsky asked Powers how Host could do that after they had shown the Gladieux employees the Host orientation film and had given them application forms and name tags, Powers responded that the matter had been checked with the at- torney for Host and the attorney had advised that Host could fire these people. Powers said they had a case with these employees at LaGuardia and they did not want them, they were troublemakers. Both Powers and Kouba testified but they did not refute this testimony. On 14 March 1986 Powers gave a letter to Sarubbi, which had been signed by Kouba and stated "that in the company transition you will not be hired." When Sar- ubbi asked Powers why this was being done, Powers re- sponded that they had not given him a reason. A similar letter was given to Rizzo, at Powers' direction, on 15 March 1986. 452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On 22 March, according to Kowalsky, he attended a meeting with Powers and Christie. During this meeting, Christie stated that Sarubbi "took book" and was con- nected with the "mafia." Christie stated that another bar- tender, DiGiorgio, who also had not been hired, had been "canned" when he worked for Host , that the bar- tenders were troublemakers , and that Sarubbi was part of the "Magnificent Seven," and the Company had no use for these men. III. DISCUSSION A. The Status of Host It is the position of the General Counsel that in Febru- ary 1985 Host began exercising daily control over the operations at the facility at the Delta Northwest terminal and "identified itself as the owner of the premises" and "was sufficiently in control of the facility operations and personnel to be considered at a minimum a joint employ- er of the Delta Northwest terminal employees." In sup- port of this position, he relies on the following facts: Kouba, Host's general manager, was at the Delta North- west facility on a frequent basis beginning in mid-Febru- ary 1985, and he directed that certain changes be made with respect to items to be sold, removal of Gladieux signs, and the placement of certain machines and these directions were followed; Kouba and other Host person- nel held a meeting with Gladieux employees during worktime without objection by Gladieux management; Host and Gladieux supervisors distributed Host employ- ment application forms to Gladieux employees, and these forms were completed by these employees during work- time; Host name tags also were distributed to Gladieux employees and they were directed to and did wear these tags beginning in mid-February 1986; Host employment procedures, rather than Gladieux procedures, were fol- lowed with respect to at least two employees hired prior to 23 March 1985 ; and Christie, a Host supervisor, insti- tuted a new method for cash handling at the Gladieux facility sometime in February 1985. As further evidence of the joint relationship between the two corporations, the General Counsel notes that Host and Gladieux are wholly owned subsidiaries of the Marriott Corporation, and that because of that fact Host was not required to pay Gladieux for its assets until several months after Host took over those assets. Host contends that the two are separate entities, and that Host did not begin oper- ations at the terminal until 23 March 1985. Although not entirely clear from statements made by counsel during the hearing or from arguments advanced in their briefs, it appears that the General Counsel's posi- tion is that Host and Gladieux were joint employers from January to 23 March 1985, while Host contends that the two corporations did not constitute a single-inte- grated enterprise. In TIL, Inc., 271 NLRB 798 (1984), the Board stated that the standard for determining whether two corporations are joint employers and the standard for determining whether they constitute a single-integrated enterprise are not the same. The joint employer concept recognizes that two separate enter- prises can be joint employers if they share or codeter- mine those matters relating to essential terms and condi- tions of the employees' employment . Boire v. Greyhound Corp., 376 U.S. 473 (1964); NLRB v. Browning-Ferris In- dustries, 691 F.2d 1117 (3d Cir. 1982). The Board in Laerco Transportation , 269 NLRB 324 (1984), held that to establish such a status there must be a showing that the employer meaningfully affects matters relating to the em- ployment relationship such as hiring, firing, discipline, supervision, and direction. In Laerco, one corporation, CTL, provided labor to another corporation , Laerco, a company engaged in the trucking industry. At issue was whether the two corporations were joint employers. Al- though, the Board found that Laerco informed the CTL employees of their job duties, exercised minimal day-to- day supervision over them, and resolved minor griev- ances of the CTL employees, the Board concluded that Laerco was not a joint employer with CTL because the major elements of the employees' terms and conditions of employment were decided by CTL. Similarly, the Board did not find a joint employer relationship in H& W Motor Express, 271 NLRB 466 (1984), in which one cor- poration, Lin Rol, provided labor to H&W, a common carrier. In that case, a Lin Rol supervisor, who super- vised the Lin Rol-supplied employees on a daily basis at the H&W terminal , also used a business card that identi- fied him as the terminal manager for H&W, he enter- tained H&W customers, acted as H&W's representative for customer complaints, and signed timecards for H&W employees who were on H&W's payroll . Despite the identification as an H&W representative, the Board did not find a joint employer relationship . In the instant case, the evidence also is insufficient to establish that Host either identified itself as the owner of the Delta North- west terminal or was a joint employer with Gladieux during the period between January and 23 March 1985. It is unclear from this record whether Kouba actually di- rected Powers to remove the signs or machines or made suggestions concerning these items . However, assuming that he gave directions, rather than made suggestions, this would not establish that Host meaningfully affected matters relating to the employees' terms and conditions of employment . Nor does the fact that the Gladieux em- ployees completed application forms for Host or wore Host name tags establish that Host had control over the employees' terms and conditions of employment , particu- larly when the employees continued to be on the Gla- dieux payroll and under the day-to-day supervision of Gladieux supervisors. In Radio Union Local 1264 Y. Broadcast Service, 380 U.S. 255, 256 (1965), the Supreme Court stated the crite- ria to be used to determine whether separate enterprises constitute a single employer: The controlling criteria set out and elaborated in Board decisions are interrelating of operations, common management, centralized control of labor relations and common ownership. This record does not establish that the operations of the two corporations are interrelated , or that they have common officers or directors, or common supervisors, or a common labor policy. It does establish that the two corporations maintain separate payrolls and have sepa- HOST INTERNATIONAL rate labor policies, different operating procedures, differ- ent supervisory personnel , and different personnel proce- dures. The fact that Host and Gladieux are wholly owned subsidiaries of the Marriott Corporation does not warrant a finding that the two corporations constitute a single employer. In Los Angeles Newspaper Guild Local 69 (Hearst Corp.), 185 NLRB 303 (1970), the Board held that even divisions of the same corporation can be con- sidered as separate persons if the parent corporation or the subsidiary does not exercise actual or active control as opposed to potential control over the day-to-day oper- ations or the labor relations of the other . In the instant case, there is no evidence that either Host or the Marri- ott Corporation exercised actual control over the day-to- day operations or the labor relations policies of Gla- dieux. Nor does the instant case present the type of situa- tion that existed in Teamsters Local 560 (Curtin Matheson Scientific), 248 NLRB 1212 (1980), in which the Board found that the operations and management of two branches of the same corporation were so integrated that the union did not violate Section 8(b)(4)(B) of the Act when it picketed at the location of one branch in further- ance of its dispute with another branch at a different lo- cation. Accordingly, I do not find that Host was a joint employer with Gladieux for the Gladieux employees,21 nor do I find that the two corporations constituted a single enterprise during the period between January and 23 March 1985. Therefore, I do not find that Host dis- charged Rizzo and Sarubbi. B. Kowalsky's Testimony It is the position of counsel for Host that Kowalsky's testimony should be struck, in accordance with the pro- visions of 18 U.S.C. § 3500 and Section 102.118(b)(1) and (2) of the Board's Rules and Regulations because the General Counsel failed to produce notes he secured during a conversation with Kowalsky on 28 May 1986, although he had been directed by the judge to produce the notes for purposes of cross-examination . Counsel fur- ther argues that it was incumbent on the General Coun- sel to explain why the notes could not be produced and this he failed to do. Although the General Counsel did state on the record that he destroyed the notes after he incorporated them into an affidavit that he subsequently took from Kowalsky, counsel maintains that such a state- ment does not constitute evidence. Counsel further argues that it was improper and a violation of rule 4.2 of the Model Rules of Professional Conduct22 for the Gen- eral Counsel to secure an affidavit from Kowalsky, with- out Host's permission, while Kowalsky was employed as a manager for Host. Kowalsky testified that after he was informed that he would be on paid leave while the transcript of the hear- ing in this case was being examined by Host supervisors, 21 I do not consider the fact that Powers gave the discharge letters to the two individuals sufficient evidence to establish that a joint employer relationship existed prior to 23 March 1985 22 Rule 4.2, Model Rules of Professional Conduct states: In representing a client, a lawyer shall not communicate about the subject of a representation with a party the lawyer knows to be rep- resented by another lawyer in the matter , unless the lawyer has the consent of the other lawyer or is authorized to do so under law. 453 he decided to contact the Board attorney who was re- sponsible for Rizzo and Sarubbi's case. Kowalsky claimed that he had wanted to cooperate sooner because he thought the two men were "blackballed," but he was concerned about his job. It is clear that Kowalsky volun- tarily contacted the General Counsel because he believed that his discharge was imminent . Kowalsky secured the telephone number of the General Counsel from Rizzo; he called the General Counsel and arranged a meeting with him at a diner in Queens . During this phone conversa- tion, the General Counsel asked Kowalsky if he had per- mission from Host to meet with him, and Kowalsky re- sponded that he did not need Host 's permission, he wanted to cooperate with the Government . The Board attorney told him that he could not speak to him if he was still employed by Host without Host's permission and Kowalsky responded that he did not know how long he would be on leave but as far as he was concerned he had been terminated .23 Kowalsky testified that "he almost forced himself on Mr. Cohen and I told him that I did not have any attachments with anyone." According to Kowalsky, he first met with the General Counsel on 28 May 1986 and during this meeting the Government attorney took notes of their conversation, showed him the notes, and asked if they reflected what he had said and Kowalsky agreed that the notes were correct. Kowalsky met again with the same Government attorney on 4 June 1986 and during this meeting the at- torney took an affidavit which , according to Kowalsky, incorporated the notes taken during his first meeting with the General Counsel. In Campell v. U.S, 365 U.S. 85, 102 (1961), the Court stated the following: Nothing in the legislative history of the Act [i.e., Sec. 3500] remotely suggests that Congress' intent was to require the Government , with penalizing consequences, to preserve all records and notes taken during the countless interviews that are con- nected with the criminal investigation by the vari- ous branches of the Government. The Court in Killian v. U.S., 368 U.S. 231 (1961), also stated that if records were destroyed in good faith by Government agents in accordance with their normal practice it would be clear that their destruction did not constitute an impermissable destruction of evidence, nor deprive a petitioner of any rights. A similar statement was made in U.S Y. Augenblick, 393 U.S. 348, 356 (1963), when tapes made by an agent of the Government during a conversation he had with a defendant were lost. The Court stated: The record is devoid of credible evidence that [the tapes] were suppressed. Whether Mendelson24 should have been recalled is a matter of debate and perhaps doubt. But questions of that character do not rise to a constitutional level. 23 Kowalsky was at the time still on Host's payroll but he was not working. 24 Mendelson was the Federal agent 454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Court went on to note that a constitutionally unfair trial occurs only when barriers and safeguards are so re- laxed or forgotten that the proceeding is more a specta- cle or trial by ordeal than a disciplined contest . In U.S. v. Hinton, 719 F.2d 711 (4th Cir. 1983), the court conclud- ed, after a detailed examination of numerous cases, that both the Supreme Court and a majority of circuit courts have indicated that rough interim notes of a Government agent that are later incorporated into the agent 's formal interview report are not written statements within the meaning of the Jencks Act and need not be preserved. In the instant case, although the General Counsel did not testify he did state that he destroyed the notes after he incorporated them into Kowalsky's affidavit, and Kowalsky did testify that the notes were incorporated into the affidavit. Thus, it appears that the instant case presents the type of situation where the notes would not be considered a statement that must be produced. More- over, after having had the opportunity to consider the language in the Supreme Court's decision in Goldberg Y. U.S., 425 U.S. 94 (1976), which deals, in part, with what constitutes the type of statement that must be produced, I am convinced that the notes in question are not state- ments that must be produced . The Court in Goldberg held that an agent's notes can be considered a statement of a witness only on a finding that the notes reflected the witness' own words fully and without distortion and only on a finding of an unambiguous and specific ap- proval of the specific notes by the witness. The evidence in this record does not establish that Kowalsky thor- oughly examined the notes and gave an unambiguous and specific approval of those notes. In addition, the Court has stated that the administration of the Jencks statute must be entrusted to the good sense and experi- ence of the trial judge subject to appropriate limited review by the appellate courts. Palermo v. U.S., 360 U.S. 343, 353 (1959). In the instant case, as noted, Kowalsky testified that what he told the Board attorney during the meeting on 28 May 1986 was incorporated into his affi- davit. This affidavit was produced and was used by counsel during his cross-examination of Kowalsky and, therefore, I am not persuaded that counsel was preju- diced by the lack of the notes. Furthermore, although Kowalsky's affidavit and testimony referred to state- ments by Host representatives, those representatives were not called to testify or did not refute these state- ments. In these circumstances, it is unlikely that posses- sion of the notes would have been of assistance to coun- sel. Under paragraph 10056.5 of the Casehandling Manual of the Board, a Board agent is not precluded from re- ceiving information from a supervisor or agent of the charged party when the individual comes forward volun- tarily, and when it is specifically indicated that the indi- vidual does not wish to have the charged party's counsel or representative present. That paragraph, counsel for Host maintains, is inconsistent with rule 4.2 of the Model Rules of Professional Conduct and with the Supreme Court's decision in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971). In that decision, counsel claims that the Court established three guidelines to test the propriety of agency regulations; promulgation of the regulations must not exceed the agency's statutory au- thority, regulations must not be arbitrary, and the agency must follow necessary procedural requirements. Despite counsel's argument, the Board, with Court approval, has continued to consider evidence received from a supervi- sor when the supervisor comes forward voluntarily and has indicated that he does not want respondent's counsel present. Aeroglustics, Inc., 228 NLRB 1157 (1977), enfd. 610 F.2d 455 (6th Cir. 1979); B. C. Hawk Chevrolet, 226 NLRB 527 (1976), enfd. 582 F.2d 491 (9th Cir. 1978). In the present case, the record clearly establishes that Kowalsky came forward voluntarily and did not seek to have Host's counsel present during the interview. It was Kowalsky who contacted the General Counsel and "forced" himself on that representative and Kowalsky certainly indicated that he did not want Host's counsel present during the interview when he told the General Counsel that he did not need Host's permission to talk to him and that he had no attachments to anyone.25 Ac- cordingly, Kowalsky's testimony will be considered. C. Whether Deferral to the Arbitrator's Award is Warranted The General Counsel asserts that the arbitration awards should not be deferred to for three reasons: the awards concern Host's discharge of Rizzo and Sarubbi in 1981 and are not dispositive of the events in 1985; the ar- bitrator was not presented with the unfair labor practice issue and, therefore, he did not consider it; and the Board does not defer to an arbitrator's decision when an 8(a)(4) violation is alleged. Counsel for Host argues that the arbitrator's awards are binding because the Charging Parties failed to reasonably raise the unfair labor practice issue during the arbitration proceedings and failed to uti- lize the statutory procedures available to vacate the awards. He further argues that the Charging Parties set- tled their earlier cases and have made no attempt to reopen those cases and, therefore, the General Counsel is estopped from relitigating those cases . Counsel also argues that although the General Counsel stated that he was not attempting to relitigate the earlier cases but was merely introducing the earlier cases as background evi- dence, paragraph 23 of the second amended complaint states otherwise. However, if the General Counsel seeks to introduce the evidence surrounding the 1981 dis- charges only for purpose of background evidence, he should not be permitted to do so because records which would support Host's position that the two individuals were discharged for cause have been destroyed and are not available and, therefore, Host will be denied due process. As the counsel for the General Counsel notes , the in- stant case involves events that occurred in 1985 while the arbitrator's awards deal with matters that occurred in 1981. Assuming that deferral was proper in connection with earlier discharges, it cannot be held that the awards encompass events that had not occurred at the time of the arbitration proceeding. Host's argument that the 25 In fact, during the hearing Host's counsel attempted on several oc- casions to meet with Kowalsky and Kowalsky refused to meet with him HOST INTERNATIONAL events in 1985 are intertwined with the events of 1981 will be discussed below. Furthermore, I am not convinced that deferral to those awards would be proper even with respect to the events that occurred in 1981 . In this connection, it should be noted that despite the arbitrator's award the Regional Director issued a consolidated complaint in Cases 29-CA-9486- 1 and 29-CA-9486-2, wherein he al- leged that the discharges of Rizzo and Sarubbi in 1981 were in violation of the Act . And despite the arbitrator's awards, Host agreed to and did pay moneys to settle the allegations of those complaints . Thus, it appears that the Regional Director did not defer to the arbitrator 's deci- sion and Host, by its agreement to settle the complaints, accepted the Regional Director's decision not to defer to the arbitrator's awards. Assuming, that Host did not waive its defense based on the issue of the awards, it should be noted that the arbitrator's awards did not refer to the unfair labor prac- tice issue that occurred in 1981 . In Olin Corp., 268 NLRB 573 (1984), the Board adopted the standards that it would apply for deferral to arbitration. The Board stated that they would find that an arbitrator adequately considered the unfair labor practice if (1) the contractual issue were factually parallel to the unfair labor practice issue and (2) the arbitrator were presented generally with the facts relevant to resolving the unfair labor practice issue. In the instant case, the unfair labor practice issue was not presented to the arbitrator. Rizzo testified that he attempted to introduce the issue but the arbitrator did not appear to be interested. Sarubbi testified that he did not raise the issue because he was advised not to do so by the union business agent. In these circumstances, where the issue was not raised , it is clear that the arbitra- tor could not have adequately considered it because he did not have the facts relevant to the resolution of the unfair labor practice issue . Counsel for Host concedes that the arbitrator did not have the facts relevant to the unfair labor practice issue. However, he argues that the only reason the arbitrator did not have the relevant facts was because Rizzo and Sarubbi chose not to present those facts to the arbitrator despite being afforded the opportunity to do so. Rizzo, credibly, testified that he did attempt to discuss the unfair labor practice issue but the arbitrator expressed disinterest. In any event, the Board has indicated that the fact that there is an oppor- tunity to present the relevant facts on the unfair labor practice issue is not sufficient, absent evidence that the facts were presented. In Electronic Reproduction Service Corp., 213 NLRB 758 (1974), the Board had held that when the arbitration forum was available for the discus- sion of the unfair labor practice issue and a party chose not to use it and because of that fact the arbitrator did not consider the issue it would, nevertheless, defer to the awards. In Olin, supra at fn. 10, the Board stated, "we are not returning to Electronic Reproduction Service, 213 NLRB 758 (1974), in its entirety . . . . We do not resur- rect that part of Electronic Reproduction which required no more than an 'opportunity ' to present the unfair labor practice issue to the arbitrator to warrant deferral." In Taylor v. NLRB, 786 F.2d 1516 (11th Cir. 1986), the court refused to enforce a Board order where the Board 455 had deferred to an award by an area grievance commit- tee when there was no showing that the committee had considered any facts relevant to the unfair labor practice. The evidence in this record establishes that Host de- cided to discharge Rizzo because he filed the lawsuit and decided to discharge Sarubbi as a coverup for Rizzo's discharge. Swingle, credibly, testified that statements to that effect were made by Supervisors McDougal and Christie on several occasions and both indicated the "shoppers" would be used in order to effect those dis- charges. Neither McDougal nor Christie was called to refute that testimony. Rizzo, credibly, testified, that Eas- terling, another supervisor, told him that his name was on a hit list with the names of other employees involved in the lawsuit and that Sarubbi 's name was put on the list as a cover for Rizzo's discharge. Easterling was not called to refute that testimony .26 Based on this unrefuted testimony, I find that Rizzo was discharged because he joined with other employees to file a lawsuit after they were physically restrained on Host's premises because of alleged violation of company rules, without being afford- ed the opportunity for union representation . I also find that Sarubbi was discharged to cover the discharge of Rizzo. 27 The Supreme Court, in Eastex, Inc. v. NLRB, 437 U.S. 556, 568 (1978), has held that employees are en- gaged in mutual aid and protection when they seek to improve working conditions by resort to judicial forums. Although, I have found that the arbitrator 's awards are not binding and that Rizzo was discharged because he filed the lawsuit and Sarubbi was discharged as a cover for Rizzo's discharge, I note that there was an out- of-Board settlement regarding those discharges. There is no dispute that during a hearing on the discharges the parties decided to settle the complaint allegations. Host agreed to pay a certain sum of money to Rizzo and Sar- ubbi and they agreed to withdraw the charges and the lawsuit. However, the parties disagree about whether Rizzo and Sarubbi waived their right to reinstatement and/or reemployment. The parties did not reduce their agreement to writing and much of the discussions con- cerning the settlement were not conducted in face-to- face meetings. Rather, the Host representatives were in one room and Rizzo and Sarubbi in another room with the Board agents shuttling back and forth with proposals and counterproposals. Due to the manner in which the negotiations were conducted, it appears that the parties misunderstood each other and that there was no true meeting of the minds between the parties. The Board has stated that when there is no meeting of the minds, a set- tlement agreement may be set aside and the underlying 26 The fact that the waitresses who worked with Rizzo and Sarubbi also were shopped is insufficient to outweigh the testimony given by Swingle, Rizzo, and Sarubbi , particularly when Host failed to call wit- nesses to refute that testimony and offered no explanation for its failure to do so. When a party fails to call a witness to refute testimony the trier of the facts can presume that they could not refute the testimony Laredo Coca Cola Bottling Co. Y. NLRB, 613 F.2d 1338 (5th Cir. 1980) 27 Host's contention that it was denied due process because it did not have available certain records to rebut the prima facie case established by the General Counsel is without merit Host failed to call witnesses to rebut the testimony on which I relied to decide that the discharges were in violation of the Act. 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD issues may be litigated . Stage Employees Local 659 (MPO- TV), 197 NLRB 1187 (1972); Boilermakers Local 5 (Regor Construction), 249 NLRB 840 (1980). However, assuming that the settlement agreement should not be set aside, the Board has stated that presettlement conduct may be con- sidered in assessing Respondent 's motive or object in its postsettlement activities. Lawyers Publishing Co., 273 NLRB 129 (1984). Vore Cinema Corp., 254 NLRB 1288, 1291 (1981 ); Laborers (Joseph's Landscaping), 154 NLRB 1384 (1965), enfd. 389 F.2d 721 (9th Cir. 1968). D. Whether Host's Claim that Rizzo and Sarubbi Waived Their Right to Future Employment is Relevant As noted, it is Host's position that during the negotia- tions to resolve the earlier discharges in Cases 29-CA- 9486- 1 and 29-CA-9486-2, Rizzo and Sarubbi waived all rights to future employment with Host. Counsel for Host contends that even if there was a misunderstanding about whether Rizzo and Sarubbi waived all rights to future employment, such an honest disagreement does not pre- clude a good-faith reliance by Host on its understanding of the agreement in determining whether to offer em- ployment to Rizzo and Sarubbi. Assuming arguendo, that Trosclair had stated during the negotiations that the Company would not reemploy Rizzo and Sarubbi at any time in the future, I do not consider that fact relevant to the issues in this case. The decision not to hire Rizzo and Sarubbi in March 1983 was not made by Trosclair. That decision, according to the evidence in this record, was made solely by Kouba. Kouba testified that he did not know Rizzo or Sarubbi personally, neither had worked for him. He expressed a limited knowledge about either the lawsuit or the charges that had been filed by Rizzo and Sarubbi. In fact, at one point he testified that he did not know that Rizzo had filed a lawsuit or charges and insofar as this record discloses there is no evidence that he knew that the lawsuit and the charges had been settled , nor does it disclose that he knew the details of the settlement. There was no testimony that Trosclair disclosed the details of the settlement to Kouba. Kouba testified that he decided not to hire Rizzo and Sarubbi solely because he knew that they had been discharged for cause and it was against company policy to hire employees who had been discharged for cause. At no point in his testimony did Kouba claim that the alleged waiver of future employ- ment entered into his decision not to hire the two indi- viduals. In these circumstances, it is difficult to under- stand the relevancy of the alleged waiver to Kouba's de- cision not to hire Rizzo and Sarubbi. E. Whether Host Refused to Hire Rizzo and Sarubbi in Violation of the Act Host contends that under Board law a postsettlement violation cannot be proven by presettlement violations when charges relating to presettlement allegations were withdrawn by a charging party or dismissal by the Board and when the postsettlement violation is inextricably intertwined with the withdrawn or dismissed charges. In support of this position, counsel cites Leeward Nursing Home, 278 NLRB 1058 (1986); and Ventura Coastal Corp., 264 NLRB 291 (1982). In Ventura, an employee filed a charge in May 1978 alleging that during a union organizing campaign an em- ployer coerced and restrained employees by promising benefits and threatening plant closure . That charge was amended to add additional allegations concerning an overbroad nonsolicitation policy, surveillance, and grant- ing of benefits. Between 29 and 31 July 1978 the employ- ee who had filed the charge was advised by a supervisor that the employee had been denied a promotion and a transfer because of his activities on behalf of a union and because he had filed a charge with the Board . The em- ployee did not then file a charge based on these disclo- sures. Thereafter, the Regional Director, over the objec- tions of the employee, approved a settlement in August 1978 of the charges that had been filed in May 1978. The employee forwarded a letter to the Regional Director in October 1978 wherein he objected to the Regional Di- rector's failure to require the company to post notices in Spanish and in which he advised the Regional Director that the union planned to file new charges. In December 1978, the union did file charges based on the information that the employee had gained from the supervisor about the company's failure to promote and its refusal to trans- fer him for discriminatory reasons. By the time the charges were filed, the employee had been laid off, not because he was discriminatorily selected for layoff, rather his layoff was the direct result of the company's discriminatory practice against him some months before the layoff. The administrative law judge ( Ventura, supra at 298) concluded that under the rule in Hollywood Roosevelt Hotel Co., 235 NLRB 1397 (1978), "a settle- ment agreement bars subsequent litigation of presettle- ment conduct alleged to constitute unfair labor prac- tices," unless the violations that occurred prior to the settlement agreement were unknown to the General Counsel, not readily discovered by investigation or spe- cifically reserved from the settlement by mutual agree- ment of the parties. The administrative law judge con- cluded in Ventura, with Board approval , that the excep- tions did not apply because at the time that the Regional Director approved the settlement agreement the employ- ee was aware of the alleged discrimination against him but failed to disclose it, and before the compliance with the terms of the settlement agreement had been complet- ed the employee had put the Regional Director on notice about the Union's plan to file new charges. In these cir- cumstances, the judge found that the presettlement dis- crimination against the employee was known to the em- ployee and was readily discoverable by the Regional Di- rector and therefore the exceptions to the general rule in Hollywood were not applicable. He also held that the eventual layoff of the employee was a natural conse- quence of the settlement -barred demotion, there was no independent evidence concerning the unlawful nature of the layoff, it was necessary to look to the settlement barred demotion to establish that the layoff was discrimi- natory. In Leeward, during an organizing campaign, the sched- ule of an employee, Chang, was changed. As a result of HOST INTERNATIONAL this change in her schedule, Chang was unable to arrive at work on time and she was disciplined for this failure. The union filed charges about this change in Chang's schedule and the discipline in which they alleged that the change in her schedule had been made for discrimi- natory reasons. Subsequently, the union and the compa- ny entered into a settlement agreement to resolve the al- legations of this charge and this agreement was approved by the Regional Director on 28 October . On 4 Novem- ber, the union filed a new charge in which it alleged that the company violated Section 8(a)(3) in relation to Chang because of her changed work schedule. This charge was withdrawn and the withdrawal was ap- proved on 19 November. Chang eventually was dis- charged on 17 December because of her continual failure to arrive timely to work. It is undisputed that her failure to arrive timely was due to the change in her work schedule, which had been made for discriminatory rea- sons. On 3 January the union filed new charges but these charges did not mention Chang by name, nor did they contain language that facially covered her work schedule change, her discipline, or eventual discharge. The Gener- al Counsel, prior to trial, amended the complaint, which had issued on the basis of the charge filed on 3 January, to allege that the company had violated Section 8(a)(3) of the Act by its discharge of Chang on 17 December. It is undisputed that there were no independent discrimina- tory acts by the company in relation to Chang , her dis- charge was the direct result of the change in her work schedule some months before. The administrative law judge, with Board approval, dismissed the complaint in its • entirety. In connection with the dismissal of the alle- gation, which related to Chang, the' judge made two points, first the charge that specifically related to Chang had been withdrawn in November and the charge which had been filed in January was unrelated to the allegations concerning Chang. The Judge, in accordance with the holding in Winer Motors, 265 NLRB 1457, 1458 (1982), found that the withdrawn charge had not been reinstated within the 10(b) period and concluded that Section 10(b) barred consideration of the incidents relating to Chang, which had preceded the withdrawn charges . He also concluded that consideration of the suspension and dis- charge of Chang were barred by Section 10(b) because the finding of a violation regarding those actions was "inextricably linked to a finding of illegality in the time- barred event."$8 The second point made by the judge concerning his dismissal of the allegations that related to Chang con- cerned the effect of the settlement agreement on those allegations. The judge, as he had done in Ventura, con- cluded that the rule in Hollywood Roosevelt controlled, and none of the exceptions to that rule were applicable and, thus, the presettlement events that surrounded the change in Chang's schedule could not be litigated. He further stated that in a limited number of cases a settle- ment may have a certain "prospective" reached in that it ae Members Dennis and Johansen did not adopt the judge's decision to the extent that it could be interpreted that the charge filed in January was legally insufficient to support the complaint allegations concerning Chang's postsettlement discipline. 457 will bar efforts to litigate alleged postsettlement viola- tions, which are themselves inescapably grounded in pre- settlement actions that would be barred from litigation by the settlement. He concluded that there were no inde- pendent violations of the Act committed by respondent, Chang's discharge was the direct result of the discrimina- tory change in her schedule, and that issue could not be litigated. Therefore, there was no evidence to support the allegation of discriminatory discharge. Although, as noted, I do not believe that there was a meeting of the minds with respect to the settlement agreement and, therefore, do not believe that the agree- ment bars litigation of the 1981 discharges, I note that there are significant differences between the cases cited by counsel for Host and the instant case. In Leeward, the administrative law judge found that the charge, which alleged a violation of Section 8(a)(3) concerning Chang, was withdrawn and no new charge was filed in the 10(b) period. This is not the situation in the instant case. The charge in this case alleged violations based on events that occurred in March 1985 and the charge was filed, timely, with respect to those events . The charge, which was withdrawn in May 1983 after the settlement was reached related to acts by Host that occurred in Septem- ber 1981 . Further, unlike the situation in Ventura and Leeward, I do not find that the discriminatory conduct of Host in March 1985 is "inextricably intertwined" with the events of September 1981 . The layoff in Ventura and the discharge in Leeward were the natural consequences of the original discriminatory conduct of the respondents in those cases, those respondents did not commit addi- tional discriminatory acts. This is not the situation in this case. Host's representatives did engage in further dis- criminatory acts, they refused to hire Rizzo and Sarubbi because they had trouble with them at LaGuardia.29 This refusal was not the natural flow of the original dis- criminatory conduct, it was a new act of discrimination within the 10(b) period. Although Powers did not speci- fy what the trouble was that the Company had with Rizzo and Sarubbi when it refused to hire them, it is evi- dent from Board cases that, at the very least, background evidence may be considered to establish what the Com- pany considered the trouble to be. The General Counsel has established that the Company refused to hire Rizzo and Sarubbi because Rizzo had filed a lawsuit and be- cause both had filed charges with the Board. Host failed to rebut that prima facie case. Accordingly, I find that Host has violated the Act. NLRB v. AA Electric Co., 405 U.S. 117 (1972); NLRB v Globe Mfg. Ca, 544 F.2d 1118, 1120 (1st Cir. 1976); First National Bank & Trust Co., 209 NLRB 95 (1974), enfd. 505 F.2d 729 (3d Cir. 1974). REMEDY Having found that Host has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- 29 Host contended that it also refused to hire DiGiorgio and that es- tablishes that the refusal to hire Rizzo and Sarubbi was nondiscrimina- tory. That contention is without merit. DiGiorgio was not one of the "troublemakers" at LaGuardia. DiGiorgio worked at the JFK Airport. 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signed to effectuate the policies of the Act, including the posting of remedial notices. Having found that Host discharged Sarubbi on 15 Sep- tember 1981 and Rizzo on 24 September 1981 and re- fused to hire Sarubbi on 14 March 1985 and Rizzo on 15 March 1985, I shall recommend that Host offer them em- ployment and make them whole for any loss of wages or other benefits resulting from their discharges and from the failure of Host to hire them by payment to them of a sum of money equal to the amount they would have earned in wages and other benefits from the date of the discharge and refusal to hire to the date on which em- ployment is offered, less net earnings. The amount of backpay shall be calculated in the manner set forth in F. W. Woolworth Ca, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Flor- ida Steel Corp., 231 NLRB 651 (1977); see also his Plumbing Ca, 138 NLRB 716 (1962). I will recommend also that Host rescind and remove all reference in its records to the discharges of Rizzo and Sarubbi and to the refusal to hire them . I shall further recommend that Host preserve and, on request, make available to the Board or its agents for examination and copying all payroll records, social security records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due to them. On the foregoing findings of fact and on the entire record, I make the following CONCLUSIONS OF LAW 1. Host is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Host discharged Sarubbi and Rizzo on 15 and 24 September 1981 and failed and refused to hire them on 14 and 15 March 1985 in violation of Section 8(a)(4) and (1) of the Act. 3. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3O ORDER The Respondent, Host International, Inc., a wholly owned subsidiary of Marriott Corporation, New York, New York, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging Virgilio Rizzo because he filed a law- suit and Joseph Sarubbi to cover Rizzo's discharge and failing and refusing to hire Rizzo and Sarubbi for the above reasons and because they filed charges with the National Labor Relations Board. (b) In any like or related manner violating provisions of the National Labor Relations Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Virgilio Rizzo and Jostph Sarubbi employ- ment with Host at its facility at the JFK Airport as bar- tenders or equivalent positions without prejudice to their seniority and other rights and privileges and make them whole with interest in the manner set forth in the remedy section of this decision. (b) Rescind and remove all references to their dis- charges and/or their protected concerted activities and advise them in writing that this has been done and inform them that Host's unlawful conduct will not be used as a basis for further personnel actions concerning them. (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 JFK facility copies of the attached notice marked "Appendix." 91 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, 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 customarily posted . Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (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. 90 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. 91 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 the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."