Cruise & Tour Services

National Labor Relations Board - Board Decisions

Apr 14, 2000

330 N.L.R.B. 1231 (N.L.R.B. 2000)

CRUISE & SERVICES 1231
James H. Woods, d/b/a Cruise and Tour Services and
International Longshore and Warehouse Union,
AFL–CIO. Cases 21–CA–32819 and 21–CA–
33048
April 14, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS HURTGEN
AND BRAME
On May 14, 1999, Administrative Law Judge Burton
Litvack issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party each filed an answering
brief. The Respondent filed a reply brief to each of the
two answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, James H. Woods, d/b/a
Cruise and Tour Services, San Pedro, California, its offi-
cers, agents, successors, and assigns, shall take the action
set forth in the Order as modified.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951 ). We have carefully examined the record and find no
basis for reversing the findings.
2 In adopting the judge’s conclusion that the Respondent unlawfully
discharged Jean Tober, Pauline Becker, and Myrna Mendoza, we do
not rely on his statement that there was no evidence that Lilia Schaefer
or Vera Smirnoff reported alleged misconduct by Tober or Mendoza to
the Respondent. Schaefer, whom the judge credited (as he also did
Smirnoff), testified without contradiction that she reported alleged
misconduct by Mendoza to Martina Wertz, the Respondent’s manager
of operations. We find, however, that the Respondent did not rely on
this report in deciding to discharge Tober, Becker, and Mendoza.
In adopting the judge’s finding, based largely on credibility, that the
Respondent waived its 90-day probationary period as to the employees
at issue, we find it unnecessary to pass on his opinion that the waiver
would have been a good business decision on the Respondent’s part.
In adopting the judge, Member Brame finds Lampi LLC, 327 NLRB
222 (1998), to be distinguishable. In his dissent in Lampi, cited by the
Respondent, he noted that where a legitimate motive is established for
discipline of an employee, the Board cannot substitute its judgment for
that of the employer and unilaterally decide what constitutes appropri-
ate disciplinary action. He further found that the respondent in that
case had established a sufficient justification for the discharge of the
discriminatee under Wright Line, 251 NLRB 1083 (1981), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989, approved in NLRB
v. Transportation Management Corp., 462 U.S. 393 (1983). By con-
trast, the judge here made a credibility based rejection of the Respon-
dent’s asserted defenses before concluding that the Respondent did not
establish a legitimate basis under Wright Line for its discharge of the
discriminatees under its personnel policies.
3 We will modify the judge’s recommended Order in accordance
with our recent decision in Indian Hills Care Center, 321 NLRB 144
(1996).
Substitute the following for paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
“(a) Within 14 days from the date of this Order, offer
Jean Tober, Pauline Becker, and Myrna Mendoza full
reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or
privileges previously enjoyed.
“(b) Make Jean Tober, Pauline Becker, and Myrna
Mendoza whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them, in the manner set forth in the remedy section of my
bench decision.”

Lisa McNeill, Esq., for the General Counsel.
Gregory G. Kennedy, Esq. (Goldstein, Kennedy & Petito), of
Los Angeles, California, appearing on behalf of the Re-
spondent.
William Carder, Esq. (Leonard, Carder, Nathan, Zuckerman,
Ross, Chin & Remar), of San Francisco, California, appear-
ing on behalf of the Charging Party.
DECISION
BURTON LITVACK, Administrative Law Judge. These matters
were tried before me in Los Angeles, California, on March 15
and 16 and April 15, 1999. After oral argument, I issued a
bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations. In said the decision, I found
and concluded that Respondent violated Section 8(a)(1) and (3)
of the National Labor Relations Act (the Act). Thereafter, I
closed the hearing. Appendix B is the portion of the transcript
(p. 545, L. 1 through p. 564, L. 21) containing my decision, and
Appendix C contains corrections to that transcript [omitted
from publication]. In accordance with Section 102 of the
Board’s Rules and Regulations, I certify the accuracy of the
portion of the transcript, as corrected, which contains my bench
decision, and said the bench decision and the following rec-
ommended order and notice, which is attached as Appendix A,
constitute my entire decision in the above-captioned matters.
Based upon the findings of fact, conclusions of law, and upon the
entire record herein, I issue the following recommended1
ORDER
The Respondent, James H. Woods, d/b/a Cruise and Tour
Services, San Pedro, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Creating in the minds of its employees that it is engaging
in surveillance of their union or other protected concerted ac-
tivities.
1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
330 NLRB No. 181
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1232
(b) Interrogating employees with regard to their union mem-
bership, sympathies and activities, and the union membership,
sympathies and activities of their fellow employees.
(c) Discharging employees because they have engaged in, or
are engaging in, union or other protected concerted activities.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
to them by Section 7 of the Act.
2. Take the following affirmative actions necessary to effec-
tuate the policies of the Act.
(a) Offer its employees, Jean Tober, Pauline Becker, and
Myrna Mendoza, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent jobs and make them whole, with interest, for any
loss of earnings or benefits suffered as a result of their dis-
criminatory discharges in the manner set forth in the remedy
section of my bench decision.
(b) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records, including an
electronic copy of the records if stored in electronic form, nec-
essary to analyze the amount of backpay due under terms of
this Order.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful terminations of employ-
ees Tober, Becker, and Mendoza, and within 3 days thereafter
notify each employee, in writing, that this has been done and
that her termination will not be used against her in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in San Pedro, California, copies of the attached notice
marked “Appendix.”2 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained by
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
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since June 22, 1999.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official,
on a form provided by the Region, attesting to the steps that the
Respondent has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

2 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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 interrogate our employees regarding their union
membership, sympathies, or activities or the union member-
ship, sympathies, and activities of their fellow employees.
WE WILL NOT discharge our employees because they have en-
gaged in, or are engaging in, union or other protected concerted
acti-vities.
WE WILL NOT, in any like or related manner, interfere with,
coerce, or restrain our employees in the exercise of the rights
guaranteed to them in the Act.
WE WILL offer our employees, Jean Tober, Pauline Becker,
and Myrna Mendoza, immediate and full reinstatement to their
former jobs or, if said the positions no longer exist, to substan-
tially equivalent jobs and make them whole, with interest, for
any loss of earnings or benefits suffered as a result of their
unlawful discharges by us.
WE WILL, within 14 days from the date of the final Order,
remove from its files any reference to the unlawful discharges
of Tober, Becker, and Mendoza, and WE WILL, within 3 days
thereafter, notify each employee, in writing, that this has been
done and that the discharges will not be used against them in
any way.
JAMES H. WOODS, D/B/A CRUISE AND TOUR SERVICES
APPENDIX B
545
JUDGE LITVAK: We will be in order. Let’s get on with it. In
referring to the parties in the decision, the James H. Woods
d/b/a Cruise and Tour Services, I will refer to as Respondent.
And the International Longshore and Warehouse Union, AFL–
CIO, I will refer to as the Union. And the General Counsel—Is
it still acting or is it a regular General Counsel?
MS. MCNEILL: Regular General Counsel.
JUDGE LITVAK: I will refer to Ms. McNeill as counsel for the
General Counsel. Mr. Kennedy is counsel for Respondent and
Mr. Carder is counsel for the Union.
The original first amended and second amended unfair labor
practice charges which are filed in case 21-CA-32819, by the
Union, were filed in case 21–CA–32819 by the Union on June
22, September 4, and October 22, 1998, respectively.
The charge in case 21–CA–33048 was filed by the Union on
October 22, 1998.
The consolidated, amended complaint was issued by the Re-
gional Director of Region 21 on January 26th, 1999.
The first two days of the trial in these matters, were con-
ducted before me on March 15 and 16, 1999. All parties were
and have been afforded an opportunity to examine and to cross
examine all witnesses, to offer into the record, any relevant
evidence, and to argue their legal positions orally.
Counsel for each of the parties argued orally this
546
morning. And I carefully listened to each argument. And I
also, in formulating my decision, have carefully considered
those arguments.
Based upon the entire record hearing, including the oral ar-
guments of counsel, and my observation of the testimonial
demeanor of the witnesses, I am issuing the following Bench
Decision.
CRUISE & TOUR SERVICES 1233
Just parenthetically, I am not going to discuss jurisdiction or
the Union’s status as a labor organization, which the Respon-
dent—both of which Respondent has admitted.
BENCH DECISION
[Errors in the transcript have been noted and corrected.]
The issues in the case, are as everyone knows:
1. Did Respondent violate Section 8(a)(1) of the act by on or
about June 15th, 1998, stating to employees that it was against
the law for them to contact the Union without first consulting
the Respondent, impliedly threatening to take unspecified repri-
sals against employees, interrogating employees, and creating
the impression amongst its employees that it had engaged in
surveillance of their Union activities.
The second issue is of course, did Respondent violate Sec-
tion 8(a)(1) and (3) of the Act, by terminating its employees,
Jean Tober, Pauline Becker and Myrna Mendoza on June 15,
1998.
Now, what I am going to do now is just briefly recite some
facts. If I was writing this decision, I would have each
547
witness’ testimony set out in great detail. But you all know
what the testimony was. And I don’t think that I need to elabo-
rate on that factually, in the Bench Decision.
But briefly, Respondent is engaged in the business of provid-
ing staff and charting coaches to cruise lines and other custom-
ers, including Royal Caribbean Cruise Lines.
For a number of years, Royal Caribbean has subcontracted
with Respondent to provide what are called ground services.
These include providing individuals to meet customers for the
cruise ship, who arrive at the Los Angeles area airports, helping
them obtain their luggage, and transporting them to San Pedro
where Royal Caribbean ships await their arrival.
And then the reverse process of taking the customers who
have finished their cruises and their luggage, hopefully their
luggage, back to the airports and to the airlines on which they
are traveling.
Royal Caribbean traditionally utilized its own employees to
provide all necessary embarkation and debarkation services at
the piers at which its cruise ships are docked in San Pedro.
Sometime in 1998 or 1999, Royal Caribbean solicited bids
for this latter work. And in early 1999, Respondent was
awarded the contract to provide these pier services.
Among the employees who performed this work, are indi-
viduals classified as pier hostesses. Each alleged discriminatee
was a pier hostess. Their job duties for both the
548
embarkation of passengers onto cruise ships and the debarka-
tion of passengers from the same cruise ships, include meeting
and greeting customers who are called—I don’t know if this is
a derogatory term, but who are known as cruisers, manning the
information desks, helping with ticketing, and obtaining neces-
sary documentation and helping passengers complete the re-
quired documents, checking that all passengers have passports
if needed, and returning them to passengers when they debark
the ships, and similar duties, like the ones that I have men-
tioned.
The record establishes that the Respondent began its opera-
tions on or about April 3, 1999, and that it utilized the former
Royal Caribbean employees who applied for jobs with it. Now,
these individuals included the alleged discriminatees.
And finally, with my recitation of facts, there is no dispute
that the alleged discriminatees, Jean Tober, Pauline Becker, and
Myrna Mendoza, were terminated by Respondent on or about
June 15, 1998.
As everyone is well aware, my decision in these cases hinges
upon the credibility of each of the five main witnesses in the
case, Tober, Becker, Mendoza, Martina Wertz, Respondent’s
manager of operations, and James Woods, the owner of Re-
spondent.
Having viewed the demeanor of each while testifying, and
considering the record as a whole, I find that the most credible
of these witnesses was Jean Tober.
Her demeanor was that of an honest and forthright
549
witness. And I shall rely on her testimony for all factual find-
ings herein.
In contrast, the witness who I found least credible was Mar-
tina Wertz. Her demeanor was that of a most disingenuous
witness, one who dissembled, rather than candidly recounting
the events herein.
And in that regard, I do not place any reliance upon her tes-
timony.
The remaining two alleged discriminatees, are Becker and
Mendoza. These witnesses did not impress me as did Tober.
While I found each to be a somewhat truthful witness, I found
significant portions of the testimony of each rather incredible,
and designed to fit a particular outcome. I shall therefore rely
upon Becker and Mendoza, only where specifically corrobo-
rated by Tober.
My impression of James Woods’ demeanor while testifying
is similar to my views of the respective demeanor of Becker
and Mendoza.
Thus, on some occasions he seemed to be testifying in a can-
did manner. On others, particularly when testifying corrabora-
tively with the deceitful Wertz, he impressed me as testifying in
a manner designed to establish Respondent’s defense, rather
than truthfully.
Utilizing these credibility resolutions, I turn to the discharge
conversations which occurred on June 15. Now, there is no
dispute that Wertz and Woods met with Tober on or about
550
4:00 p.m. that day, and that this meeting was a discharge meet-
ing.
I find that during the conversation, between Tober, Wertz
and Woods, the latter began by handing the alleged discrimina-
tee her final checks and the discharge letter, and that he then
accused her of starting a rumor concerning being paid to the
minute.
He then turned to Wertz, who accused Tober of not paying
attention to what she had said at a June 5 employee meeting.
Tober denied her accusation and repeated exactly what Wertz
had said at this meeting.
I further find that at this point, Tober began defending her-
self, stating that she had seven years of experience and was one
of the better employees, was always on time and did a good
job. Concluding on these points, she said, “You will have to
come up with a better reason that that to fire me.”
I find that at this point, Woods responded by asking Tober a
question, which he admits asking, whether Tober had met with
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1234
any former employees in order to disrupt Respondent’s opera-
tions; and that, without waiting for a reply, Woods said that he
did not want to raise the matter, but that San Pedro is a small
town and you were at a meeting with a former employee who is
trying to take over my business; that Tober denied Woods’
accusation; that she asked if her discharge was due to a person-
ality conflict; that Woods said no, and that Woods
551
concluded the meeting by saying her discharge was not due to
her job performance and, if Tober remained within the proba-
tionary period, he was not obliged to give her a reason for the
discharge. The meeting concluded at that point.
There is also no dispute that approximately an hour later,
Woods and Wertz met with alleged discriminatees Becker and
Mendoza, in order to discharge them.
I find that Becker and Mendoza met with Woods and Wertz
at approximately 5:00 p.m.; that Woods began by giving each
alleged discriminatee her final check and discharge letter; and
that he said that each was terminated and “I think you know
why.”
I further find that Becker asked Woods several times to ex-
plain why; that each time Woods admitted he refused to give an
explanation; and that, finally Becker blurted out, “Oh, what,
Jim, the Union?” And she added that the Union had been try-
ing to organize the pier hostesses for many years.
I find that Woods responded, stating that San Pedro is a very
small town and you could be overheard in public, and you have
to be careful what you say. Woods continued, saying, and I am
quoting one of the alleged discriminatees, “I assure you, it was
not a coworker that told us that you went to a Union meeting at
an ex employee’s house.”
I find that Becker responded to that comment by stating that
the meeting that they had attended was just a coffee meeting,
and that when employees arrived, they discovered that a
552
Union business agent was also there.
I further find that the meeting concluded, with Woods assur-
ing the alleged discriminatees that he would inform the other
employees that their termination had nothing at all to do with
their job performances.
With regard to the alleged violations of Section 8(a)(1) of the
Act, I have found that without prompting, during his discharge
conversation with Becker and Mendoza, Woods stated, “I as-
sure you, it was not a coworker that told us that you went to a
Union meeting at an ex employee’s home.”
I[n] my view, clearly Woods was referring to the Union
meeting which occurred on June 10 at an ex employee, Marie
Wieczorek’s home. And I find that such a comment created an
impression in the minds of Becker and Mendoza, that Respon-
dent had engaged in surveillance of that meeting. Such a
statement was obviously coercive, and I find it violative of
Section 8(a)(1) of the Act.
Now, given my credibility to whatever else was said at this
meeting, Respondent engaged in no other unlawful activity
during it.
However, during the discharge meeting with Tober, Woods
admitted asking if she had ever met with any former employees
in order to disrupt Respondent’s operations. I think that this
was a thinly veiled attempt to coerce Tober into admitting hav-
ing attended the meeting at Marie Wieczorek’s house, which
Woods
593
knew was a Union meeting.
Given the purpose of the entire conversation, and Tober’s
still undisclosed Union activity, Woods question constituted in
my view, unlawful interrogation and was, I find, violative of
Section 8(a)(1) of the Act.
I turn now to the crux of the two cases, the alleged unlawful
terminations of Tober, Becker and Mendoza.
In determining whether Respondent acted in violation of
Section 8(a)(1) and (3) of the Act by terminating the three
women, I utilized the analytical framework set forth by the
Board in Wright Line. Thus, in order to prove a prima facie
violation of Section 8(a)(1) and (3) of the Act, the General
Counsel has the burden of establishing that the alleged dis-
criminatees engaged in Union activities, that Respondent had
knowledge of such conduct, that Respondent’s actions were
motivated by Union animus, and that Respondent’s termination
of the alleged discriminatees had the effect of encouraging or
discouraging membership in the Union.
Further, the General Counsel has the burden of proving the
foregoing matters by a preponderance of the evidence. How-
ever, while the above analysis is easily applied in cases in
which a Respondent’s motivation is straightforward, conceptual
problems arise in cases in which the record evidence discloses
the presence of both a lawful and an unlawful cause for the
alleged unlawful conduct.
In order to resolve this ambiguity, in Wright Line, the Board
established a causation test in all Section 8(a)(1) and (3) cases
involving Employer motivation. I am quoting from that deci-
sion now. “First, we shall require that the General Counsel
make a prima facie showing sufficient to support the inference
that protected conduct was a ‘motivating factor’ in the Em-
ployer’s decision. Once this is established, the burden will shift
to the Employer to demonstrate that the same action would
have taken place even in the absence of the protected conduct.”
Four points are relevant to the foregoing analytical approach.
First, in concluding that the General Counsel has established a
prima facie showing of unlawful animus, the Board will not
quantitatively analyze the effect of the unlawful motive. The
existence of such is sufficient to make a discharge a violation of
the Act.
Second, once the burden has shifted to the Employer, the
crucial inquiry is not whether the Respondent could have en-
gaged in the unlawful acts and conduct herein, but rather,
whether Respondent would have done so in the absence of the
alleged discriminatees’ support for the Union.
Third, pretextual discharge cases should be viewed as those
in which the defense of business justification is wholly without
merit and the burden shifting analysis of Wright Line need not
be followed in such cases.
As to the latter point, it is well settled that when
555
Respondent’s stated motives for its actions are found to be
false, the circumstances warrant the inference that the true mo-
tive is an unlawful one that the Respondent desires to conceal.
Herein, in my view, there is no doubt that the General Coun-
sel has established a prima facie showing that Respondent was
unlawfully motivated in terminating employees Tober, Becker
and Mendoza.
Thus, it was uncontroverted that Mendoza contacted the Un-
ion in early May 1998—excuse me, that Becker contacted the
CRUISE & TOUR SERVICES 1235
Union in early 1998; that Becker and Mendoza met with a
Union business agent, and that thereafter, several employees
including the alleged discriminatees, Tober, Becker and Men-
doza, met at the home of Marie Wieczorek on June 10, 1998,
with a Union business agent.
Now, given my credibility resolutions and earlier findings of
fact, I find that Respondent was well aware of the Union activi-
ties of Mendoza and Becker, and also that of Tober, given the
fact that Woods inquired of Tober whether or not she attended
this meeting. I think that there can be no doubt that the Re-
spondent was aware of the Union activities of each of the al-
leged discriminatees.
Further, there was a surfeit of record evidence, establishing
Respondent’s animus towards the alleged discriminatees. First
and foremost, is the question of timing.
556
The Union meeting which the employees attended, occurred on
June 10.
Respondent admits that the decision to terminate the alleged
discriminatees was made on June 11th. The question of timing
is suggestive of unlawful considerations, underlying the Re-
spondent’s action.
Secondly, I have considered the statement made, admittedly
made by Woods, to Tober during the discharge conversation on
June 15th.
The question was whether Tober had met with any former
employees in order to disrupt Respondent’s operations. Given
the fact that I think Woods full well knew that this was a Union
organizing meeting, and that the employees were engaged in
Union activities, the word “disrupt” could only have meant that
such conduct would inure against the benefit of Respondent.
Finally, as I will discuss later, I think that much of Respon-
dent’s defense in this case is a sham. And as I indicated earlier,
when the Respondent’s stated motives for its actions are found
to be false, circumstances warrant the inference that the true
motive is an unlawful one that Respondent desires to conceal.
Given the foregoing, I find that the General Counsel has
made a prima facie showing sufficient to compellingly estab-
lish that Respondent was unlawfully motivated in terminating
the three alleged discriminatees, Jean Tober, Pauline Becker
and
557
Myrna Mendoza.
In these circumstances, the burden shifted to Respondent to
establish by a preponderance of the relevant record evidence,
that notwithstanding the clear evidence that it harbored unlaw-
ful animus toward the alleged discriminatees, it nevertheless,
would have terminated Tober, Becker and Mendoza for busi-
ness considerations.
Now, at the outset I indicated that I do not and shall not
credit any of the testimony of Martina Wertz with regard to her
reasons for the termination of the alleged discriminatees. I
found her testimony not worthy of belief, and rather far fetched
and incredible.
However, two employees, Vera Smirnoff and Lilia
Schaeffer, testified with regard to certain acts of misconduct by
Tober and Mendoza. I found both employees credible wit-
nesses. The demeanor of each was that of an honest witness.
And I believe that each one testified candidly.
However, notwithstanding their testimony, there is no evi-
dence that either Smirnoff or Schaeffer ever reported to Re-
spondent what either had observed.
Moreover, I want to turn for a moment to the question of
whether or not the three alleged discriminatees were working
during a probation period. Now, at the outset, as counsel for
the General Counsel indicated to me, that even during the pro-
bation period, employees remain protected by the
558
Act.
Two of the alleged discriminatees, Tober and Becker, testi-
fied convincingly that during a meeting with the Royal Carib-
bean employees on March 10th, James Woods specifically
raised the 90 day probationary period, and waived it for the
then current Royal Caribbean employees and future employees
of Respondent.
Now, I note that in this case, the testimony of Wertz and
Woods is corroborated by Respondent’s Exhibit No. 2, the
letter which was given to all the employees prior to or at that
meeting. The record is unclear. And so on face value, it would
seem that that letter corroborates Woods and Wertz, that in fact
the probationary period was not waived at that meeting.
However, another individual who was at that meeting testi-
fied at this hearing. That was Mary Ann Micklo-Reyes. She
was called as a witness by Respondent, testified with regard to
the fact that she was at the meeting, and gave extensive testi-
mony about a conversation which occurred after the meeting.
Significantly for my purposes, and for our purposes here, she
was not asked by Respondent, any questions about the meeting.
The failure to ask any questions of her, leads me to draw the
inference that if she had been asked questions about the meet-
ing, she would have corroborated Tober and Becker with regard
to the waiving of the 90 day probationary period by
559
Respondent.
Now, I have considered whether or not—putting aside the
witness’ testimony, in the real world would the Respondent
have waived that 90 day probationary period. And I think that
the answer is yes. I think that as a good faith measure, both to
Royal Caribbean and to the employees who would subse-
quently apply for work with Respondent, it would have been a
good business decision by Respondent to waive that 90 day
probationary period, notwithstanding what was stated in the
letter. And I think that Mr. Woods did so.
Several other aspects of the defense also convinced me, as I
indicated earlier, that it was and is nothing but a sham and an
afterthought.
I am particularly taken by a real inconsistency between the
testimony of Martina Wertz and James Woods. Now, paren-
thetically, as you all know, and I questioned Wertz closely
about whether or not she met with any of the alleged discrimi-
natees and discussed with them, their misconduct or bad behav-
ior, or whatever you want to call it, while working on the Mon-
days and Fridays at the pier.
She indicated to me that it was not Respondent’s policy to
hold such meetings. In her words, she does not counsel em-
ployees “because it is just not our Company policy that we do
it—excuse me. She testified that she does not counsel employ-
ees “because it is just our Company policy that we do it
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1236
560
on a general basis.” And her testimony was in fact that rather
than meeting face-to-face with the alleged discriminatees on
their perceived misbehavior, she discussed this generally at
Union meetings—at employee meetings. And by the way, I
will find that only two such meetings occurred, on or about
April 3, and on or about June 5. Those are the two meetings on
which Respondent had written agendas as to what would be
discussed.
Significantly, testifying on the same subject, notwithstanding
that Wertz had said that it was a general practice not to hold
these meetings, Woods gave a different version of Respon-
dent’s practice. Woods version was that during employees’
probation periods, it did not meet with individual employees to
discuss individual actions. Rather, it was done on the general
basis. It was only after their probationary periods that Respon-
dent met with employees on an individual basis and counseled
them about perceived misconduct on-the-job or perceived prob-
lems on-the-job.
This, to me, was a rather blatant contradiction, especially
when considering the nature of Respondent’s defense. More-
over, with regard to the meetings, it strained my cagulity to
believe that Wertz admitted meeting with another employee
during her probationary period, who had been the subject of
certain customer complaints, while refusing to meet with any of
the alleged discriminatees, the conduct of which could very
well have risen to the same customer complaint. It is just
561
incredible to me to believe that Respondent would have met
with an employee who was actually the subject of a complaint
during her probationary period and not met with the alleged
discriminatees whose conduct at least in one instance, was
critically worse, and I will get to that in a moment, and to head
off potential written complaints to Royal Caribbean.
It seems to me, parenthetically, that given that Respondent
had only had a contract to do this work for a few months, that it
would have done anything it could to have headed off the filing
of customer complaints. And one way to have done that, obvi-
ously, would have been to counsel the three alleged discrimina-
tees with regard to their perceived work problems, and to have
them stop it before anything substantively occurred.
I asked Wertz several times if she could give us specifics as
to any of the misconduct engaged in by any of the three alleged
discriminatees. She did come up with one instance of miscon-
duct, which appears on its face to be quite serious. That is the
alleged incident with the Taiwanese individuals for whom
Mendoza was supposed to obtain their passports before leading
them off the buses, they were on.
Notwithstanding the fact that Mendoza denied engaging in
that misconduct, and parenthetically again, I credit her denial in
that regard, but it seems incredible to me that no notation of this
incident appears in the—or no notation of this incident appears
in the personnel file of Mendoza and Wertz
562
never even bothered to counsel her about the incident. I find
that absolutely incredible.
And finally, in the one portion of the case, as I indicated to
counsel I find most distasteful, I must discuss the credibility
conflict between Myrna Mendoza and her sister, Gloria Lopez.
I found Lopez to be a deceitful witness. Her demeanor was that
of a mendacious witness, one who was afraid of telling the
truth, and one who, in order to cover up, lied on the witness
stand. I do not credit her that she did not question Mr. Woods
with regards to the reason for her sister’s termination. I find
that rather—I found that testimony wholly incredible.
Rather, I find that during this conversation, about which Ms.
Lopez reported to Myrna Mendoza, I’m crediting Mendoza’s
testimony now, I find that Lopez told Mendoza that Woods
reported to her that he was “very disappointed that he would
have to let me go, because I was one of the best.”
In these circumstances, including the surfeit of record evi-
dence establishing unlawful animus, including my belief that
Respondent’s defense is nothing but a sham and an after-
thought, the conclusion is mandated that Respondent has failed
to establish by a preponderance of the evidence, that it would
have terminated the three alleged discriminatees on June 15,
notwithstanding their support for the Union and their Union
activities.
563
Accordingly, I find that Respondent violated Section 8(a)(1)
and (3)of the Act by terminating employees Jean Tober,
Pauline Becker and Myrna Mendoza on June 15, 1998.
These are my conclusions of law. Respondent is an Em-
ployer engaged in commerce within the meaning of Section
2(2) and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
By creating in the minds of its employees the impression that
it was engaging in surveillance of their Union and other pro-
tected, concerted activities, Respondent engaged in acts and
conduct violative of Section 8(a)(1) of the Act.
By interrogating employees with regard to their Union ac-
tivities, Respondent engaged in conduct violative of Section
8(a)(1) of the Act.
By discharging employees who engaged in Union or other
protected, concerted activities, in order to discourage its em-
ployees from supporting the Union, Respondent engaged in acts
of conduct violative of Section 8(a)(1) and (3) of the Act.
The above described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act. And
finally, unless specified above, Respondent has engaged in no
other unfair labor practice.
Having found that Respondent engaged in serious unfair la-
bor practices violative of Section 8(a)(1) and (3) of the Act,
564
I shall recommend that it be ordered to cease and desist there-
from and to take certain affirmative actions designed to effectu-
ate the purposes and policies of the Act.
I have concluded that Respondent terminated its employees
Jean Tober, Myrna Mendoza and Pauline Becker because they
engaged in Union or other protected, concerted activities.
Accordingly, I shall recommend that Respondent be ordered
to offer each one immediate and full reinstatement to her for-
mer position of employment, or if such a position no longer
exists, to a substantially equivalent one, without prejudice to
her seniority and the rights and privileges of employment, and
to make each whole for any loss of earnings and benefits she
may have suffered as a result of Respondent’s unlawful dis-
crimination, with interest. Such amount shall be computed in
the manner set forth by the Board in its decisions in F. W.
CRUISE & TOUR SERVICES 1237
Woolworth Co., with interest compounded in accordance with
New Horizons for the Retarded.
I shall also recommend that the Respondent be ordered to
expunge from its files, any reference to the terminations, and to
notify the discriminatees that this has been done, and that those
unlawful acts will not be used against each in any way.
Okay. What I will do is certify the decision as it is printed in
the text, and then I will attach to it, my formal order and the
attached notice. And I will attach to it a notice to employees
which will have to be posted by Respondent.
565
Now, as you all know, exceptions can be taken to this deci-
sion. What I will send to you will have the instructions for the
filing of any exceptions and the address for the filing of any
exceptions, if anyone cares to do so.
Is there anything that anyone has to say before I close the re-
cord?
(No response.)
JUDGE LITVAK: All right. Hearing nothing, the record is
now closed.
(Whereupon, the record in the above-mentioned matter, was
closed at 2:00 p.m.)