Hotel St. Moritz, Inc.

HOTEL ST. MORITZ, INC. 67 Hotel St. Moritz, Inc. and Charles Moreno, Eduardo Saravia, Sureshkumar Vora. Cases 2- CA-14798, 2-CA-15230, 2-CA-15289, and 2- CA-I 15305 August 12, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND TRUESDALE On January 29, 1979, Administrative Law Judge Irwin H. Socoloff issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party Moreno filed exceptions and supporting briefs, and the Respondent filed a brief in support of the Administrative Law Judge's De- cision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. I The General Counsel and Charging Party Moreno have excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative las judge's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Hall Products. Inc., 91 NLRB 544 (1950). enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings. DECISION STATEMENT OF THE CASE IRWIN H. SOCOLOFF, Administrative Law Judge: Upon charges filed on March 28 and April 6, 1977, by Charles Moreno, an individual; on October 31 and December 7, 1977, by Eduardo Saravia, an individual; and on Decem- ber 15, 1977, by Sureshkumar Vora, an individual, against Hotel St. Moritz, Inc., herein called the Respond- ent, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 2, issued complaints dated August 10, 1977, December 15, 1977, and January 25, 1978, and orders consolidating cases dated December 15, 1977, and January 26, 1978. The complaints allege violations by Respondent of Section 251 NLRB No. 15 8(a)(1) and (4) and Section 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. Respondent, by its answers, denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me in New York, New York, on March 30 and 31, April 3 and 4, and May 1, 2, and 3, 1978, at which the General Counsel and the Respondent were represented by coun- sel and all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case,' and from my ob- servations of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION Respondent, a New York corporation, is engaged in the operation of a hotel at its New York, New York, lo- cation. During the months ending November 30, 1977, a representative period, Respondent, in the course and conduct of its business operations, derived gross rev- enues in excess of $500,000. In that same time period, Respondent purchased and received at its above-men- tioned facility goods and materials valued in excess of $50,000 from suppliers located in the State of New York who had, in turn, received said goods and materials, in the State of New York, directly from suppliers located outside that State. I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ABOR ORGANIZATION Hotel, Motel and Club Employees Union, Local 6, AFL-CIO, herein called Local 6, is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE UNFAIR LABOR PRACTICES A. Background For many years Respondent has been an employer- member of the Hotel Association of New York City, Inc., herein called the Association. That organization, composed of some 110 employers, exists for the purpose, inter alia, of negotiating and administering collective-bar- gaining agreements on behalf of its employer-members, with the New York Hotel and Motel Trades Council, AFL-CIO, herein called the Council which includes Local 6. The latter is the collective-bargaining repre- sentative of Respondent's maid and housemen employees. Respondent has been a signatory to the successive con- tracts between the Association and the Council, includ- ing the most recent agreement, effective for the period September 4, 1975, to May 31, 1979. Pursuant to the terms of the above-referenced con- tracts, Charles Moreno has, since 1966, served as a ste- ward or "delegate" of Respondent's housemen. In this i Al he hearing, the (eneral Counsel withdrew Its complaint in Cahc 2 CA- 5289 ;, i cll a, portions of he ctoniplaint in Case 2 CA 15231) HOTEL ST. MORITZ, INC. 67 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case, the General Counsel contends and Respondent denies that, as a result of his activities as a delegate and other protected activities in which he engaged, Moreno was subjected to retaliatory treatment by Respondent, in violation of Section 8(a)(1) of the Act, including: 1. Threats that he would not receive consideration for work schedule changes and would not be awarded over- time work: 2. Denial of overtime work. 3. The issuance of written warning notices which in- cluded threats of discharge. 4. The requirement that he "punch in and out" at lunch breaks. 5. The refusal to recognize and deal with him as a del- egate. 6. The filing of written charges against him, pursuant to the contract, seeking his discharge. Respondent's efforts to discharge Moreno gave rise to an arbitration proceeding held in September 1977.2 The General Counsel urges herein that Respondent, by its su- pervisor, George Benitez, violated the Act by warning and directing certain employees, under threat of dis- charge, to refrain from assisting or supporting Moreno, or testifying on his behalf. Respondent asserts that Beni- tez is not a statutory supervisor and that, in any event, he did not engage in the alleged misconduct. On December 12, 1977, Respondent discharged its as- sistant housekeeper trainee, Sureshkumar Vora. The General Counsel contends that Vora was discharged be- cause he refused falsely to testify at the Moreno arbitra- tion hearing. In addition, the General Counsel urges that, prior to the discharge, and for the same reason, Re- spondent, in violation of the Act, withdrew benefits from Vora and imposed upon him more onerous work assign- ments. Respondent asserts that Vora was a statutory su- pervisor and that he was discharged because of a poor work performance. B. Sureshkumar Vora Vora was hired on August 22, 1977, as a trainee for the position of assistant housekeeper. He worked directly under the supervision of the executive housekeeper, Elfi O'Donnell, and the deputy housekeeper, Thelma Wat- kins. 3 Vora's duties included the ordering of supplies and accounting for same and he was paid a salary rather than an hourly wage. 4 As noted, Vora was discharged on De- cember 12, 1977. 2 The arbitrator ruled: "Clearly, Moreno is guilty f misconduct. He has, however. worked in the Hotel since October 1963. The record does not dem- onstrate that the Hotel has sufficiently arned Moreno, or the Union, that his performance is unsatisfactory to warrant discharging him. He is. however, now formally on notice that the series of ac- tions detailed in this hearing do constitute misconduct and could properly justify his discharge if they are continued " a The complaints allege, and the answers deny, that ()'Donnell and Watkins were statutory supervisors. As the record ev idence estahlishes that both possessed and exercised the authority to hire, fire. and resolce employee grievances, I find that Watkins and O'Donnell sere, at all times material herein, supervisors within the meaning of Sec 2(1 I) of the Act. 4 In support of its contention that Vora functioned as a supervisor, Re- spondent adduced evidence that. when supplies arrived at the htel to he placed in storage facilities, Vora directed the housemcn in in he physical Vora testified that, in late August or early September 1977, shortly after he was hired, he, Vora, witnessed a dispute between Moreno and O'Donnell which occurred in the latter's office. As Moreno left the office Vora heard him say to O'Donnell, "I will kick your ass," O'Donnell then approached Vora and asked him if he had heard Moreno tell her, "I'm going to get you." She instructed Vora to write a note to the effect that Moreno had threatened her. Thereafter, O'Donnell informed Vora that he would testify at an arbitration hearing about the matter. Vora attended the September 23, 1977, arbitration hearing, concerning Moreno, in the company of O'Don- nell and other top officials of Respondent. Prior to the start of the hearing, and in the presence of O'Donnell, Respondent's attorney asked Vora if he had heard Moreno tell O'Donnell, "I'm going to get you." Vora re- plied that he recalled Moreno having used the words, "I will kick your ass." Respondent's attorney then thanked Vora for attending the hearing but did not call him as a witness. Although the matter of the arbitration and the under- lying Moreno-O'Donnell incident was not thereafter dis- cussed between Vora and O'Donnell, Vora testified that, following the hearing, O'Donnell ceased talking to him about "confidential" matters and, further, would ask Vora, whenever he "said hello" to Moreno, what he, Vora, and Moreno had talked about. Vora further testi- fied that, a few days after the arbitration hearing, O'Donnell informed him that she would no longer have lunch with him. Until that time, O'Donnell had been in the habit of ordering from the hotel room service a single lunch which she shared with Vora in her office. O'Donnell explained to Vora that, thereafter, she would be required to eat her lunch in the executive dining room. Finally, Vora claimed that, on November 22, 1977, during a period of construction work in the linen room area (where O'Donnell's office is located) which caused an accumulation of dust on the floor, O'Donnell picked up a cooking pot, filled it with water, threw the water on the floor outside her office, and, in a loud voice, said, "Mr. Vora, mop up the floor." Vora had not, theretofore, been required to perform such a task and, later that day, he told O'Donnell that she should not behave in such a "non-professional" way. In early December 1977, Vora stayed away from work for several days because of a toothache. When he re- turned to the hotel, O'Donnell told him that he did not understand his responsibilities. On December 12, O'Don- nell discharged Vora, stating that they were not getting along together. At the hearing, Vora described O'Don- nell as "difficult to work with" and a woman who would "impose her superiority all the time." O'Donnell testified that her decision to discharge Vora was based upon her conclusion that Vora was not per- forming in an adequate manner and failed to show initia- tive. He habitually arrived at work one-half hour to I hour after his scheduled starting time, too late to per- form certain tasks. He ordered supplies but did not hanlldling of aid supplies I fiend this ce.idernce sague and insulfficienl Io establish sulpcrvisorN status HOTEL ST. MORITZ, INC. 69 ensure the preparation of appropriate storage space. In one instance, he secured O'Donnell's permission to order a "free sample" of shampoo for which the hotel was later billed in the amount of $150. Watkins, who was training Vora with respect to payroll preparation, com- plained to O'Donnell that Vora was not helping her at all. Finally, O'Donnell learned that Vora, a chemical en- gineer by profession with no previous experience in the hotel industry, was attending job interviews. O'Donnell's testimony concerning the above was substantially uncon- tradicted. According to O'Donnell's credited, uncontradicted, and corroborated testimony, she ended her practice of sharing a lunch with Vora, in her office, in response to a hotel executive order requiring department heads to eat their lunches in the executive dining room. For that reason, O'Donnell ceased ordering lunch from the hotel room-service and consuming same in her office. With re- spect to the November 22 incident concerning the mop- ping of the floor, O'Donnell's credited version of the event, corroborated by three other witnesses to that oc- currence, materially differs from Vora's account. Thus, O'Donnell testified that, due to the construction work, she found, as she walked to her office on November 22, that the floor area leading to the linen room was covered with loose cement, sand, pieces of brick, and plaster, as well as plaster dust. That debris had been "tracked" into the linen room and into the office. A group of people were present in the office area, including maids, house- men, Deputy Housekeeper Watkins, Assistant House- keeper Renee Posik, and Thomas Hussey, employed by Commerce Services, Inc., a firm which performs laundry services for the hotel. Addressing everyone present, O'Donnell stated: Well, I said something to the effect that we'd better clean up. I almost-I had to really find my way-through the pieces of cement. And that we'd better hurry up and get this place cleaned up before somebody has an accident. O'Donnell then went to the sink, filled a pot with water, and splashed the cement and sand on the floor in an effort to keep down the dust. She then, herself, began to sweep out the debris and others joined her. Noticing Vora, Watkins, and Posik still gathered at a desk, O'Donnell said, to all three, "we'd better get something done and clean up." Vora then started to mop the area as O'Donnell continued to sweep. There is not a scintilla of evidence in the record to support the General Counsel's contention that Vora was instructed falsely to testify at the Moreno arbitration hearing. Likewise, I can find no nexus between Vora's proposed testimony at that hearing and his discharge 3 months later. Indeed, Vora's recollection of the Moreno- O'Donnell altercation and his intended testimony con- cerning that matter was hardly adverse to Respondent's position in the case. O'Donnell's subsequent change of her lunch habits was adequately explained. O'Donnell did not, on November 22, retributively impose an oner- ous work assignment upon Vora. Rather, she asked those present, including executive personnel, to join her in dealing with an emergency situation. For the foregoing reasons, I conclude that the allegations of the complaint in Case 2-CA-15305 concerning Vora should be dis- missed. C. Charles Moreno Moreno has been employed by Respondent as a house- man since October 1963. He works an evening shift. Monday through Wednesday, delivering linens, cots, etc., to the floors of the hotel, a support service for the maids. On Saturdays and Sundays, he works a day shift and operates a trash compactor. As an employee of the hotel's housekeeping department, Moreno's immediate superior, on week nights, is Night Supervisor Mary Lee Simmons. When working a day shift, he is supervised by Executive Housekeeper O'Donnell. Until February 1978, when she left the hotel, Deputy Housekeeper Watkins, formerly the executive housekeeper, also supervised Moreno. O'Donnell assumed the position of executive housekeeper in May 1977. Moreno is a member of Local 6. In March 1966, he was elected by the housemen working in the hotel's housekeeping department as their delegate 5 and, since that time, he has served in that capacity. 6 By his own es- timate, Moreno, as a delegate, has presented hundreds of employee grievances to representatives of management and, until 1977, he apparently enjoyed harmonious rela- tionships with Respondent's officials. Nonetheless, the General Counsel contends that Respondent, beginning in early 1977, took discriminatory actions against Moreno because of his handling of two matters; namely, his ef- forts to secure a locker room for the maids and his com- plaints about a fellow houseman, Jeffrey Simmons, the son of Night Supervisor Simmons. Late in the year 1976, Moreno met with Respondent's General Manager, A. Gerald Parker, to discuss the need for a locker room, as well as improved bathroom facili- ties, for the maids. Thereafter, early in 1977, Local 6 Vice President Roy Broomfield held several meetings with Parker concerning that matter, which were attend- ed by the delegates of the day-shift maids and housemen. Ivy McKay and Paul McNatt. 7 Moreno attended some but not all of those meetings at which various proposed solutions to the problem were explored. The record evi- dence reflects, as both Parker and Broomfield testified, that, thereafter, Respondent and the Union made consid- erable efforts to resolve the issue in a mutually satisfac- tory manner. Nonetheless, final agreement has not been reached. 8 b That department also includes the maids Although never elected by those employees. Moreno has, as a matter of practice, handled the grie- ances of the evening shift maids 6 He is also a member of the assembly, the highest body in the Union Moreno testified that McNatt was elected as his assistant delegate According to roomfield. McNatt is the delegate of the day-shift house- men. Moreno services the housemen working at night, and the two are equal in status. 8 In March 1977 Moreno filed a complaint ith the United States De- partment of Labor Occupational Safety and Health Administration here- inafter OSHA. about allegedly unsafe conditions at the hotel. After an investigation coiducted on March 23, OSHA. on April 19. cited the hotel folr 1) iolations of safety requirements and assessed fines totaling Continued HOTEL ST. MORITZ, INC 69 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreno testified that, in the period December 1976 to April 1977, he received reports that houseman Jeffrey Simmons "would come in late or not do his work and hang around the closets and engage in drinking alcoholic beverages." On several occasions, Moreno so informed Watkins and Simmons' mother, Night Supervisor Mary Lee Simmons. In February, Moreno reported to Watkins that he had observed Simmons attempting to sell certain microphones, which Moreno believed had been stolen from the hotel, to another employee. Moreno told Wat- kins that he was afraid that the matter could lead to the discharge of an innocent employee. In March, Moreno informed Watkins that a maid had complained to him that Jeffrey Simmons had attempted to enter a bathroom which she, the maid, was cleaning or using. Watkins in- vestigated the matter and, then, met with the maid and with union officials about it. She subsequently told Moreno that there was no evidence of misconduct on the part of Simmons; that she would not fire him; and that she, Watkins, did not understand why Moreno persisted with a vendetta against Simmons. According to Moreno, Watkins further told him, "I may not be able to fire you, but I can mess you up or get you in trouble." Later that month, Moreno testified that Mary Lee Simmons told him that she did not like what she was hearing about her son, that Moreno was not the only delegate at the hotel, and that Watkins had stated that Moreno could be re- placed.9 Watkins, in her testir.iony, denied having threat- ened Moreno. She further testified that, over a period of years, she had, without incident, discussed and resolved numerous employee grievances with him. According to Moreno's testimony, on March 14, in the presence of houseman Benny Fisher, he asked Watkins to permit him to trade hours with Fisher, on March 16, in order to allow Moreno to attend to a matter in small claims court. Watkins, Moreno testified, turned down the request and referred to the Jeffrey Simmons matter and to her previous threat to "get" Moreno. Watkins denied ever refusing to grant Moreno a day off, or threatening to "get" him. Fisher did not testify in this proceeding. Watkins also denied Moreno's testimony that, in April 1977, when he approached her about overtime work, she told him that he would not be assigned to work over- time. Moreno further testified that, during the first quarter of 1977, Respondent discriminated against him with re- spect to the assignment of overtime work. However, Re- spondent's payroll recordsi ° reveal that, in the course of that quarter, Moreno worked 7-1/2 hours of overtime while his fellow night housemen, Ayala and Fisher, worked 2 hours and 0 hours, respectively. For the entire year 1977, Moreno worked 32 hours of overtime, com- pared to 35 hours in 1976. On May 19, 1977, Moreno sent a mailgram to Parker complaining about the lack of materials at work and of S1,375. There is no record evidence in this case showing that Respondent learned that the OSHA complaint had been filed by Moreno 9 The complaints do not allege that Mary Lee Simmons as a statu- tory supervisor and the General Counsel does not contend that her com- ments to Moreno were violative of the Act. in The General Counsel does not contest the accuracy of those rec- ords. management personnel who "are totally unaware of their tasks there." On June 18, Moreno received a written warning from Brian Donohue, the resident manager of the hotel, for failing to "clock out and back in at time- keeper's during lunch break away from hotel," and for an unsatisfactory work performance that morning "in that only one bale of garbage was packed" in a 2-hour period. Moreno testified that that was the first written warning notice he had received after 14 years of employ- ment. He further claimed that he had not been informed of a rule requiring employees to "punch out" at lunch- time and that, as a matter of practice, the employees of the hotel do not do so. Finally, Moreno testified that he normally packs three to five bales of garbage per day and had not, theretofore, been criticized with respect to his work output. It is undisputed that Moreno and employee Carmen Gonzalez, who accompanied Moreno to lunch on June 18, and who also received a warning notice for failure to "clock out and back in" that day, are the only employees of the hotel ever to receive a warning notice for infrac- tion of that rule. According to Respondent's personnel director, Elizabeth Siber, the rule was not enforced until April 1977, when the hotel timekeepers were instructed to enforce it and the hotel employees, by posted notice, were so informed. There is no evidence in the record showing that, after April, any other employees violated the rule. It was an August 26, 1977, confrontation between Moreno and O'Donnell which led to the filing of charges against Moreno, seeking his discharge." As noted, the General Counsel contends that the filing of those charges was, itself, an unfair labor practice. The General Counsel also urges that, in the course of her August 26 conversa- tion with Moreno, O'Donnell refused to recognize and deal with him as a delegate, in further violation of the Act. With respect to the August 26 incident, Moreno tes- tified that he was in O'Donnell's office that day at the request of employee Carlos Restrepo, a lobby porter, who had been summoned by O'Donnell. That meeting occurred pursuant to O'Donnell's previously stated demand that Restrepo change his union membership from Local 144, Hotel, Hospital, Nursing Home & Allied Service Employees Union, AFL-CIO, to Local 6, so that he could continue to perform certain houseman's duties as well as his usual lobby porter work. According to Moreno, when he and Restrepo arrived at O'Donnell's office, the latter told Moreno that she, O'Donnell, did not recognize Moreno as a delegate and, as far as she was concerned, the conversation was ended. Moreno re- plied that everyone at the hotel, including O'Donnell, knew that he, Moreno, was a delegate and that, as a del- egate, he had dealt with her in the past. He told her that he would notify the Union, as well as O'Donnell's supe- riors at the hotel, of her conduct. Moreno then left her office and placed a telephone call to Local 6. He ex- plained the situation to Union Vice President William Dowery who, immediately thereafter, called Moreno back on a housekeeping department telephone located " Under the cllectie-bargaining agreement, Respondent is required to follow this procedure when seeking to fire a delegate. HOTEL ST. MORITZ, INC. 71 outside O'Donnell's office. O'Donnell approached Moreno and told him that he could not use the phone for personal matters. Moreno then explained that the call concerned union business and, at Dowery's request, Moreno asked O'Donnell to pick up the extension phone in her office and join the conversation. O'Donnell did so and, according to Moreno, Dowery informed her that Moreno was a Local 6 delegate, and a member of its as- sembly, by virtue of which he "superseded" all dele- gates. 2 Afterwards, Moreno reentered O'Donnell's office and told her that a union official would see her about the matter and, that, in the interim, she was not to harass Restrepo. O'Donnell then had Moreno removed from her office by a security guard. O'Donnell testified that she desired to have Restrepo become a member of Local 6 so that he could continue performing "Local 6 work," that is, certain duties in the linen room. When, on August 26, she, O'Donnell, ques- tioned Moreno's status as a delegate, the three-way tele- phone conversation ensued and Dowery informed her that, as a member of the assembly, Moreno superseded the delegates. After the phone conversation, Moreno "burst' " into her office and said, "I'm going to get you and your lackies . . . wherever you're coming from, you must have been washing toilets." Agnes Nelson, a maid at the hotel, overheard part of the O'Donnell-Moreno conversation. She testified that Moreno screamed at O'Donnell that he, Moreno, was a "supersonic" delegate and that she, O'Donnell, was "nothing but a scrub- woman."' 3 12 Dowery testified that he told O'Donnell that he, Dowery, did not know whether or not Moreno was still a delegate hut, that, as a member of the assembly. he had a right to settle grievances. 1" There is considerable record evidence bearing upon the questions of: () whether. by 1977. Moreno was still a delegate of the housemen, and (2) if so whether the Union had met its responsibility under the con- tract of properly notifying Respondent f that fact. Although the Local constitution and bylaws require annual elections for delegate positions. Moreno testified that he has, since q966, been reelected on1y once, im 1973 or 1974 Eleanor Dais, a member of the Local 6 assembl. testified that, at the last election for housemen delegate, McNatt, but not Moren,. was elected. Thus, Davis testified, Moreno. by 1977. was no longer a del- egate. Local records do not show an election of Moreno as delegate since 1966 While it is undisputed that, in 177, both Davis and Moreno were selected as members of the assembly, a policymaking body, the con tract. as supported by past pactice at the hotel, requires Respondent ii deal with departmental delegates, not assembly members. with respect to employee grievances. Indeed. the Union's bylaws themselves do not em- power an assembly member to resolve grievances While the Union is the f inal arbiter of Moreno's delegate status, and it has consistently maintained that he has retained that position since 166, the issue of notification to Respondent of that fact raises more serious dif- ficulties. O'Donnell testified that, when she assumed her duties as execu- tive housekeeper in May 177, she was introduced to the housekeeping department delegates, not including Moreno Moreover. she was advised by those delegates, including Herma losephs, Eleanor Davis. and Paul McNatt, that Moreno was not a delegate and that McNatt was the dele- gate of the housemen O'Donnell's testimony in that regard was corrobo- rated by Davis. Thus, O'Donnell further testified that, while she knew that Moreno was a member of the assembly, she did not know. until the Restrepo incident, that Moreno was a departmental delegate Resident Manager Donohue testified that. in the April to October 1977 period, a number of maids, including a delegate of the maids, Mavis McGregor, informed him that they doubted that Moreno was still a delegate Don,- hue so reported to Parker, the general manager At Parker's request, Siber, the personnel director of the hotel, made repeated requests of Local 6. throughout 1977. by telephone and letter, for a written list of delegates at the hotel, as required by the collective-bargaining agreement The Union did not comply with that request until October 28. 177 Respondent's general manager, Parker, testified that he decided to seek Moreno's discharge principally because of his conduct at the meeting with O'Donnell. Prior to the September 23 arbitration hearing, the parties met on September 16 in an unsuccessful attempt amicably to re- solve the matter. Elevator operators Jose Viveros, Verdi Vera, Eduardo Saravia, and Jorge Romero attended the September 16 meeting in support of Moreno. Thereafter, Vera testified, he was asked by the service elevator su- pervisor, George Benitez, in the presence of Viveros, why he, Vera, was getting involved in Moreno's prob- lems. According to Vera, he was told by Benitez to mind his own business. Viveros did not corroborate Vera's tes- timony concerning this incident. Rather, Viveros testified that after the September 16 meeting, on two occasions, Benitez, in the presence of Romero and Saravia, stated that those employees who had attended the meeting would be laid off. Thus, Viveros testified, Benitez made that statement immediately after the meeting and then. again, some 8 days later. Saravia did not testify at the in- stant hearing. Romero, in his testimony, stated that a single threat was made by Benitez, 2 days after the meet- ing, to Viveros, and in Romero's presence, that, if Vi- veros assisted at the Moreno arbitration, the same thing that happened to Moreno would happen to Viveros. Benitez denied making any threats concerning the Moreno matter. The testimony of Vera, Viveros, and Romero were mutually inconsistent. In addition, Viveros was a con- fused witness while Romero did not appear to me to be testifying in a wholly truthful manner. On the other hand, I found Benitez an entirely honest, forthright, and believable witness, and I credit his denial of the accusa- tions leveled against him. On that basis, I conclude that the remaining allegations of the complaint in Case 2- CA-15230 should be dismissed. 4 As noted, the arbitrator ruled, on October 14, that Moreno was guilty of acts of misconduct, justifying dis- charge.' 5 However, he further ruled that Moreno, a 14- year employee, had not received warning sufficient to permit the hotel to impose that sanction. Thereafter, on November 21, and, again, on December 5, Parkeri 6 issued written warning notices to Moreno, the first for When, i April. 177 Siber orally inquired of Broomfield whether or not Moreno was a delegate. Broomfield stated that. "as far as he knew." Moreno retained his status as delegate. In response to oral inquiries b, Parker. Broomfield stated that Moreno was a delegate. Moreno testified that his position as delegate as never questioned until the Resirep inci- dent. and that. following that matier, it has not been questioned again i4 In addition were it necessary to do so. I would find that Benitez is not a statutory supersisor. The record evidence establishes that, as erv - ice elevator supervisor. Benitez' authority is limited to replacing an oper- ator who does not "show-up" for work by calling in ne of ioi other operators is In addition to the Moreno-O'Donnell incident, the arbitrator consid- ered, inter alia, the hotel's claim that Moreno repeatedly failed to obey orders and to remain at his work station: the June 18 failure to "clock out and back in": an alleged refusal by Moreno to obey security regulations. and a claimed obstruction, by Moreno on September 7. o f the peration of a service ele.ator ~s The complaints allege, and the answers deny, that Parker is a super- visor within the meaning of Sec. 2(111 of the Act As general manager. Parker is the final authorrit ;it the hotel with respect to the hiring. dis- charging, and disciplining of emploees I find that Parker is a super.i- sor HOTEL ST. MORITZ, INC. 71 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "dumping" linens on the service elevator landings, rather than placing same in the maids' closets, and the second for refusing to discharge orders and for loitering in the kitchen dishwashing area. The November 21 warning pertains to an incident which occurred on October 29. On that night, Moreno testified, the service elevators were out of order for some hours as a result of which the housemen, Moreno and Ayala, were late in starting the delivery of linens to the floors of the hotel. In order to ensure completion of that task before the end of their shift, Moreno and Ayala de- posited the linen on the service elevator landings, rather than carry same to the maids' closets and place it on the shelves, the normal procedure. Before doing so, they ob- tained the consent of that night's housekeeping supervi- sor, Alice Ellis. The next day, Moreno was admonished by Mavis McGregor, the then delegate of the day-shift maids, and by Donohue for having "dumped" the linens on the landings, a very dirty location. Moreno did not inform them that Ellis had approved the procedure be- forehand. Indeed, despite the considerable number of dis- cussions which Moreno thereafter held with hotel offi- cials about the matter, he never advised them, until the instant hearing, of the consent obtained from Ellis. Ayala, who did not receive a warning notice, corrobo- rated Moreno's claim that Ellis had consented to the placement of the linens on the landings on that occasion. He further testified that that 'lad never happened before. McGregor testified that when, on the morning of Oc- tober 30, she saw where the linen had been placed, she, as delegate, instructed the maids not to pick it up and she complained about the matter to Donohue and Wat- kins. McGregor corroborated Parker's testimony that the housemen are required, when unable to get the linens to the closets, to place same on the carpeted corridor, a short distance from the service elevators, which is a clean area. According to Donohue, the placement of the linens on the service elevator landings created a hazard to one exiting from the elevators, was a fire hazard, and caused an unsanitary situation since the linens were thus exposed to very dirty conditions. He further testified that when he spoke to Moreno about the matter on October 30, Moreno offered no explanation of his action. Neither at that time, nor at a later grievance meeting in Parker's office, did Moreno mention the matter of Ellis' approval. With respect to the December 5 warning notice, Parker testified that he issued it after observing that Moreno spent a great deal of his time in the kitchen area of the hotel, which affected his productivity, and after learning from Simmons that, on November 30, Moreno was instructed, at 5:30 p.m., to deliver a cot to a gues- troom and the cot did not arrive at the room until 10 p.m. Moreno testified that he could not recall an instance in which he did not carry out an assignment, nor was he ever advised by a hotel supervisor that he was spending too much time in the kitchen area. In light of the lengthy and harmonious collective-bar- gaining history enjoyed by Respondent and Local 6, and, more particularly, the 11-year relationship between Re- spondent, as Employer, and Moreno, as the Local 6 dele- gate, which has included the successful resolution of hundreds of employee grievances presented by Moreno, the General Counsel's contention that, in 1977, Respond- ent took retaliatory actions against Moreno because of his activities as a delegate is not easily sustained. In the General Counsel's view, Respondent discriminated against Moreno because of his efforts to secure a locker- room and improved bathroom facilities for the maids, and because of his complaints about Simmons. With re- spect to the first matter, Moreno was but one of a number of employee-delegates to advance that cause. Moreover, there is no evidence in this record demon- strating a hostile attitude by hotel officials about the matter. Assuming, without deciding, that when Moreno brought complaints about his fellow houseman, Jeffrey Simmons, to the attention of Watkins, he, Moreno, was engaged in a protected concerted activity, his claim that, as a result, Watkins discriminated against him with re- spect to the assignment of overtime work is disproved by Respondent's records. Additionally, I do not credit Mor- eno's testimony that Watkins threatened to "get" him and, on that basis, denied his request for a change of hours for March 16. Benny Fisher, present when the al- leged threat was made, was not called as a witness in this case. Moreno, in the course of his lengthy testimony in this matter, was often evasive and hostile. For those rea- sons, as well as my observations of his demeanor as a witness, I am unwilling to base an unfair labor practice finding upon his uncorroborated testimony. I have credited O'Donnell's corroborated version of the events of August 26, 1977. Accordingly, even accept- ing, arguendo, that Respondent was obligated to recog- nize and deal with Moreno, a delegate of the housemen and a member of Local 6, as the representative of Res- trepo, a lobby porter and a member of another union, I conclude that Respondent did not violate the Act by bringing charges against Moreno, seeking his discharge, because of his conduct at the August 26 meeting. In threatening O'Donnell, in a loud voice, that he would get her and her lackies, and in calling her a scrubwoman who should be washing toilets, Moreno's actions were so opprobrious as to be unprotected. Additionally, I find and conclude that Respondent did not violate the Act when, at the August 26 meeting, O'Donnell questioned Moreno's delegate status. In light of the confusion about that matter, caused by factors detailed at footnote 13, I am not persuaded that O'Donnell raised the issue in bad faith. I found Parker a credible witness and I have generally accepted his explanations concerning the warning notices issued to Moreno. I note, however, that there are suspi- cious circumstances, including, a rather sudden enforce- ment of the long dormant rule requiring employees to "clock out and back in "if they leave the hotel at lunch- time, and the fact that, after Moreno and Ayala stacked linens on the landings, only Moreno received a warning notice. Indeed, had Moreno explained to Donohue, when questioned about the linen matter and before the warning notice had been issued, that a supervisor had approved the procedure, then, perhaps, more than suspicion would be justified. However, on the state of this record, I cannot conclude that Respondent issued the warning no- tices in response to protected activities engaged in by HOTEL. ST. MORITZ. INC. 73 Moreno. I conclude that the complaint in Case 2-CA- 14798 should be dismissed. CONCLUSIONS OF LAW 1. The Respondent, Hotel St. Moritz, Inc., is an em- ployer engaged in commerce, and in operations affecting commerce, within the meaning of Section 2(2), (6), and (7) of the Act. 2. Hotel, Motel and Club Employees Union, Local 6, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not engaged in conduct violative of the Act, as alleged in the complaints. Upon the foregoing findings of fact, and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " The complaints are dismissed in their entirety. i; In the event no exceptions are filed. as provided b) Sec 10)2.4 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 10248 of the Rules and Regulations, be adopted hy the Board and become its findings, conclusions,. and Order, and all ohjections thereto shall be deemed waived for all purposes _7.