Holiday Inn East

National Labor Relations Board - Board Decisions

Sep 26, 1986

281 N.L.R.B. 573 (N.L.R.B. 1986)

HOLIDAY INN EAST
Raynor Motel Corporation d/b/a Holiday Inn East
and Hotel Employees and Restaurant Employ-
ees Local 16, AFL-CIO. Case 33-CA-7434
26 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 7 April 1986 Administrative Law Judge
Claude R. Wolfe issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, and
conclusions' and to adopt' the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Raynor
Motel Corporation d/b/a Holiday Inn East,
Springfield, Illinois, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
1 In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(3) and (1) of the Act by discharging employee Marilyn Finfrock, we
do not rely on his characterization of Finfrock as "an exemplary employ-
ee" or on his statement that the Respondent's food and beverage manag-
er, Leskovisek, "was not averse to plotting the dismissal of an employ-
ee."
The Respondent excepts to the judge's failure to apply the entire dual-
motive analysis required by Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Or. 1981), cert. denied 455 U.S. 989 (1982), approved
in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Al-
though the judge did not explicitly apply a Wright Line analysis, we find
that the judge's decision satisfied the analytical objectives of Wright Line,
Limestone Apparel Corp., 255 NLRB 722 (1981). In this regard, we find
that the judge tacitly set forth the requisite elements of the General
Counsel's prima facie case and specifically found that the Respondent
failed to rebut it. We further find that the Respondent failed to meet its
burden of establishing that it would have discharged Finfrock even in the
absence Iof her union activities. '
8 The judge included in this recommended Order a visitatorial clause
authorizing the Board, for compliance purposes, to obtain discovery from
the Respondent under the Federal Rules of Civil Procedure under the su-
pervision of the United States court of appeals enforcing the Board's
Order. In the circumstances of this case, we find it unnecessary to in-
clude such a clause.
Deborah A. Fisher, Esq., for the General Counsel.
Roy G. Davis and Janet L. Janusch, Esqs., for the Re-
spondent.
Paul E. Diles, President of the Charging Party.
DECISION
573
STATEMENT OF THE CASE
CLAUDE R. WOLPE, Administrative Law Judge. This
proceeding was tried before me at Springfield, Illinois,
on 10 and 11 February 1986 pursuant to charges filed on
31 October 1985 and complaint issued 4 December 1985
and subsequently amended. The complaint alleges that
Raynor Motel Corporation (Respondent) discharged
Marilyn Finfrock about 23 October 1985 because she en-
gaged in union activities and in order to discourage em-
ployees from engaging in, such activities. Respondent
admits Finfrock was terminated, but denies her termina-
tion was for the reasons alleged or was an unfair labor
practice.
On the entire record,1 including the posttrial briefs
submitted by the parties, I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
The complaint alleges, Respondent admits, and I find
that Respondent is engaged in the business of operating a
motel at Springfield, Illinois; meets the Board's monetary
standards for the assertion of jurisdiction; and is an em-
ployer within the meaning of Section 2(6) and (7) of the
National Labor Relations Act (the Act).
II. LABOR ORGANIZATION
Hotel Employees and Restaurant Employees Local 16,
AFL-CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Marilyn Finfrock was Respondent's employee from
1971 to 1977 and again from 1978 until she was dismissed
from her position as a cocktail waitress on 23 October
1985. At the time of her dismissal her immediate supervi-
sor was Charles Fisher, bar supervisor, and his supervi-
sor was the food and beverage manager, Richard Les-
kovisek. Fisher and Leskovisek are alleged and admitted
agents of the Respondent and supervisors within the
meaning of Section 2(11) of the Act.
Jay Kitterman, Respondent's general manager, con-
cedes he was aware of union organizing at the motel as
early as the summer of 1984. Leskovisek avers that Kit-
terman informed him by January 1985 that there was
such activity. Leskovisek was also of the opinion at, trial
that union organizing was still underway. During this
campaign the Union distributed a number of leaflets to
employees as they left the plant, and provided copies to
company supervisors, including Kitterman, on request.
Respondent has also publicized its point of view by post-
1 The General Counsel's motion to correct the record is unopposed
and comports with my recollection and notes made at trial. Additionally,
there are many errors in the transcript of record, particularly in state-
ments made by me, but they have no material effect on the relevant evi-
dence. No motion to correct these errors has been made , and it is incon-
sequential that my somewhat distorted comments may provide the reader
with some amusement.
281 NLRB No. 92
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing or otherwise distributing at least five documents to
its employees between October 1984 and June 1985. The
complaint does not allege that Respondent's postings and
distributions were improper or unlawful. I find they are
nothing more than permissible propaganda responding to
statements by the Union and conveying Respondent's
view that its employees should not support a union.
Marilyn Finfrock first became involved in the Union's
campaign in October 1984 when she met with union
agents and expressed an interest. Thereafter she talked
favorably about the Union to 8 or 10 employees at work
on a continuing basis . She attended a union meeting on
17 February 1985,2 signed a union authorization card on
21 February, and attended a union meeting at the
Union's hall every Monday night thereafter through
May. During this February through May period, she dis-
tributed 8 or 10 authorization cards to fellow employees,
secured signatures on 4 of them, distributed several
pieces of union literature at work, and continued her
prounion conversations with fellow workers. Although
she attended no meetings after May because other mat-
ters required her attention, she talked to union represent-
atives on the telephone a couple of times a month.
In addition to these activities, she regularly spent eve-
nings eating and discussing the Union with Respondent's
employees Penny Prichard, a cashier, Earl Gillam, a bar-
tender, and Charles Fisher, her immediate supervisor, at
Prichard's house. The conversations were friendly with
Prichard and Finfrock favoring the Union, Gillam coun-
seling against it, and Fisher taking the position that he
did not want to hear about it. During one of these con-
versations in April, Fisher stated that Kitterman had re-
ferred to Finfrock as "queen of the Union." Fisher re-
peated Kitterman's characterization to Finfrock on an-
other occasion while they were at work. Fisher did not
testify and Kitterman, although testifying on other mat-
ters, does not deny that he so referred to Finfrock. I
conclude that Kitterman did refer to Finfrock as "queen
of the Union. 3 This is consistent with his testimony that
he knew before Finfrock was terminated that she was a
union supporter who solicited employees to sign union
authorization cards. Further evidence that Respondent
was aware of Finfrock's union activity is found in former
supervisor Zelah Robinson's uncontroverted and credited
testimony that Leskovisek told her in early April that
Finfrock and others, all of whose names he had written
on a napkin as union supporters and showed to Robin-
son, would not be at an upcoming union meeting because
he had taken care of them. What "had taken care of
them" meant was not explored at hearing . On a later
date, Leskovisek told Robinson that he thought Finfrock,
Prichard, and Gillam were the instigators of the Union.
Leskovisek claims that he did not know Finfrock was in-
volved with the Union until after her discharge. It seems,
if he is to be believed, that Fisher, who worked for him,
and Kitterman, for whom he worked, knew of Finfrock's
activity but he did not. I have credited Robinson that
2 All dates are 1985 unless otherwise indicated.
The uncontroverted and credited testimony of Prichard and Finfrock
that Fisher told them Kitterman had called Finfrock the "queen of the
Leskovisek said in April that Finfrock was a leader in
the union movement. Leskovisek's testimony that he
does not recall and/or does not know for sure about Fin-
frock's activity impressed me as pure evasion designed to
conceal his knowledge. His denial of knowledge about
Finfrock's activities is not credited, and I conclude and
find that he did know of her involvement several months
before her discharge. Respondent concedes that Finfrock
made no effort to hide her union activity from Respond-
ent.
The immediate circumstances surrounding Finfrock's
discharge are not a matter of serious dispute. Gladys
Koonce, a bartender, started working for Respondent on
16 August. On 12 or 13 October, and again on 17 Octo-
ber she privately told Leskovisek that Finfrock had
made derogatory comments about the business and its
management . It is not entirely clear from her testimony
what she told Leskovisek during each conversation, but I
am persuaded after a careful study of all relevant testi-
mony that she made a general complaint at the first
meeting that Finfrock was generally disparaging the es-
tablishment and its management in the presence of cus-
tomers. Koonce was more specific the second time, re-
porting that Finfrock had told customers the business
was losing money, and was going down the tubes with a
21-year old4 managing the bar, and compared Kitterman
unfavorably with a former manager. Koonce further re-
ported that a customer remarked to her that Finfrock
had a bad attitude. Leskovisek testified that he made a
decision to recommend Finfrock's discharge on 17 Octo-
ber when he talked to Koonce, and that Koonce's report
was the sole reason for discharging Finfrock. This reason
is echoed by Kitterman's testimony that Finfrock was
discharged for making derogatory remarks to customers
in the lounge. Noting that Finfrock agrees she told
Koonce in the presence of customers that the place was
going down the tubes with a 21-year old, told a custom-
er that business was bad and had declined , and men-
tioned Kitterman's name in the context of complaining
there was a lack of communication between management
and employees, I conclude that Koonce's report was rea-
sonably accurate. Leskovisek asked Koonce to put her
report in writing, which she did. She returned the writ-
ing to Leskovisek on 18 October. A note to Leskovisek
from Respondent's chief of security, Darrell Simms, on
15 October to the effect Finfrock was unhappy with her
work and had made statements against Leskovisek and
Kitterman does not specify the comments were made in
the presence of customers and does not appear to have
been a determining factor in Leskovisek's decision.
Simms did not testify.
Leskovisek met with Kitterman and Fisher on 18 Oc-
tober. Kitterman concurred with Leskovisek's recom-
mendation. Fisher apparently contributed little, but ac-
quiesced in the decision. On 23 October, Leskovisek and
Fisher met with Finfrock. Leskovisek told Finfrock her
services were no longer needed because she had made
derogatory remarks about him, Kitterman, and the hotel.
Union" has probative value concerning what Kitterman said in Fisher's 4 The remark "21 year old" was plainly a reference to Leskovisek who
presence . American Art Clay Co., 148 NLRB 1209, 1219 fn. 16 (1964). is a young man
HOLIDAY INN EAST
During this meeting, Finfrock criticized Koonce for re-
porting on her, and pointed out several instances which
she considered to be bad management . Leskovisek
agreed these matters did not reflect good management.
The asserted reason for discharge is not invalid on its
face, but the evidence strongly suggests it is a pretext.
Finfrock had never been warned or disciplined in her 13
years of employment with Respondent . Her work per-
formance is not in issue . She was not asked to respond to
Koonce 's accusations before the decision to discharge
her was made. Leskovisek did not examine Finfrock's
personnel file to determine her disciplinary history. The
acceptance of the report of an employee of but 2 months'
employment without further investigation or an inter-
view with Finfrock , a satisfactory employee for 13 years,
is totally unexplained . Finfrock was given no warning, as
were employees Rosemary Trader and Mary Daugherty,
who were accused by Leskovisek of engaging in similar
conduct . In the case of Trader , Leskovisek told her that
she had made derogatory remarks about the hotel in the
presence of a guest who complained to management. She
received a warning which reads , "I have heard from nu-
merous guests & Holiday Inn employees that Rosemary
has been commenting to guests & employees that the
kitchen in the hotel serves garbage food . Comments such
as this neither promotes or enhances the hotel 's property.
Departments must work together in promoting one an-
other. Comments such as these will not be tolerated and
will result in termination on the next incident such as
this." Leskovisek issued Daugherty a warning on 10 Oc-
tober reading, "Downgrading statements to guests about
other departments of the hotel 'Coffee Shop and Dining
Room food is lousy."' These comments are not to be al-
lowed on our property. We work as a team, all depart-
ments included and we should help promote one an-
other." Although Daugherty 's criticism of the food was
made to another employee, Leskovisek testified that he
considers employees to be guests when they come to the
snackbar to eat the food provided for them by manage-
ment. Why Finfrock, an exemplary employee otherwise,
received harsher treatment than Trader or Daugherty,
who allegedly committed offenses of the same genus, is
unexplained . Kitterman testified that other employees
have been discharged without warning , but is unable to
remember a single name of anyone so affected . I there-
fore give little weight to his testimony on this point. Les-
kovisek's testimony that he discharged 20 to 30 employ-
ees but is unable to remember the name of a single one is
not credited . Both Leskovisek and Kitterman claim that
the nature of the discipline depends on the severity of
the offense . Kitterman adds that the number of prior
warnings is a consideration . Finfrock had no prior warn-
ings and neither gentleman explains why Finfrock's of-
fense was worse than those of Daugherty and/or Trader.
After the discharge, Leskovisek wrote a memo to per-
sonnel on 23 October relating the reasons for discharging
Finfrock. Among these reasons he listed "Negative atti-
tude towards certain clientel [sic] in the lounge, especial-
ly the younger crowd ," and "Numerous guest complaints
on slow service while Mareland [sic] was on the floor,"
and "Talking to guests about a new job she has lined up
at another organization ." These three reasons were not
575
given to Finfrock . The first two are contrary to Re-
spondent's agreement that job performance was not a
factor. All three are inconsistent with the testimony of
Kitterman and Leskovisek as well as Respondent's posi-
tion at trial and in brief that Finfrock was discharged be-
cause of her derogatory comments about the hotel and
its management to or in the presence of guests.
Respondent was well aware of Finfrock 's union activi-
ty long prior to her discharge . Respondent was opposed
to representation of its employees by a union . Leskovisek
believed the union campaign was continuing right up to
the time of the hearing in this case , and further believed
Finfrock was one of the prime "instigators" of union or-
ganizing efforts . That Leskovisek was not averse to plot-
ting the dismissal of an employee he chose to dispose of
is indicated by his statement to then employee Cathryn
Maltby on 27 March wherein he advised that employees
would not necessarily have job security with a union be-
cause Respondent could negotiate many little rules
which would permit Leskovisek to get rid of someone if
he wanted to, and all he would have to do is watch em-
ployees carefully and write them up on little things. Con-
sidering Respondent 's knowledge of Finfrock's leading
role in union organizing; its opposition to union represen-
tation; Leskovisek 's belief that the union campaign was a
continuing one; and the porosity of the reason Respond-
ent advances for the termination of Finfrock, I am con-
vinced that reason is pure pretext and warrants an infer-
ence of unlawful motivation . 5 The Respondent has failed
to rebut the General Counsel 's prima facie case which is
itself supported by the pretextual nature of Respondent's
asserted reason for the discharge. I conclude and fmd
that Respondent discharged Marilyn Finfrock in order to
discourage union membership and activity by its employ-
ees, and thereby violated Section 8(a)(3) and (1) of the
Act.
CONCLUSIONS OP LAW
1. Respondent Raynor Motel Corporation d/b/a Holi-
day Inn East is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By discharging Marilyn Finfrock in order to dis-
courage union membership and activity, Respondent vio-
lated Section 8(a)(3) and (1) of the Act.
4. The unfair labor practice set forth above affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
In addition to the usual cease-and-desist order and
notice posting, my recommended Order will require the
Respondent to offer Marilyn Finfrock unconditional rein-
statement to her former job, or a substantially equivalent
position if her former job no longer exists, and make her
whole for all wages lost as a result of her unlawful dis-
charge . Backpay and interest thereon is to be computed
5 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Ca.
1966).
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).6 I shall also recommend that the Respondent
be ordered to remove from its files any reference to the
termination of Marilyn Finfrock on 23 October 1985, and
notify her in writing that this has been done and that evi-
dence of these unlawful actions will not be used as a
basis for future personnel actions against her.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed7
ORDER
The Respondent, Raynor Motel Corporation, d/b/a
Holiday Inn East, Springfield , Illinois, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Discouraging union activity or membership in the
Union, or any other labor organization , by discharging
employees or otherwise discriminating in any manner
with respect to their tenure of employment or any term
or condition of employment.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Offer to Marilyn Finfrock immediate and full rein-
statement to her former job or, if that job no longer
exists , to a substantially equivalent position , without prej-
udice to her seniority or other rights or privileges, and
make her whole for any loss of earnings she may have
suffered by reason of her discriminatory discharge, in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the termina-
tion of Marilyn Finfrock, on 23 October 1985, and notify
her in writing that this has been done and that evidence
of these unlawful actions will not be used as a basis for
future personnel actions against her.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Springfield , Illinois offices and facilities
copies of the attached notice marked "Appendix."8
6 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
7 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-
s poses
s 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."
Copies of the notice, on forms provided by the Regional
Director for Region 33, after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order, what steps the Re-
spondent has taken to comply. For the purpose of deter-
mining or securing compliance with this Order, the
Board, or any of its authorized representatives, may
obtain discovery from the Respondent, its officers,
agents, successors, or assigns, or any other person having
knowledge concerning any compliance matter, in the
manner provided by the Federal Rules of Civil Proce-
dure . Such discovery shall be conducted under the su-
pervision of the United States court of appeals enforcing
this Order and may be had upon any matter reasonably
related to compliance with this Order, as enforced by the
court.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
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 or-
dered us to post and abide by this notice.
WE WILL NOT discourage membership in Hotel Em-
ployees and Restaurant Employees Local 16, AFL-CIO,
or any other labor organization , by discharging any of
our employees or in any other manner discriminating
against them in regard to their tenure of employment or
any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL offer Marilyn Finfrock immediate and full
reinstatement to her former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to her seniority or other rights and privileges, and
WE WILL make her whole for any loss of earnings she
may have suffered as a result of the discrimination
against her, with interest thereon.
WE WILL remove from our files any reference to the
termination of Marilyn Finfrock, on 23 October 1985,
and WE WILL notify her in writing that this has been
done and that evidence of these unlawful actions will not
be used as a basis for future personnel actions against
her.
RAYNOR MOTEL CORPORATION D/B/A
HOLIDAY INN EAST