Parsippany Hotel Management Co.

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 114 (N.L.R.B. 1995)

114
319 NLRB No. 22
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 finding that the Respondent violated Sec.
8(a)(3) by issuing a written warning to, and subsequently terminat-
ing, employee LaRussa for failing to report for his June 13, 1993
shift, we rely particularly on the undisputed testimony of Banquet
Manager Wester that it was the Respondent’s policy to allow em-
ployees time off if they arranged a substitute, and the credited testi-
mony of LaRussa that he had arranged a substitute and had so in-
formed Wester prior to June 13.
In light of our findings that the warnings issued to LaRussa on
May 6 and June 15, and his subsequent termination on June 18,
1993, violated Sec. 8(a)(3), we find it unnecessary to pass on the
judge’s finding that these actions also violated Sec. 8(a)(4) as such
additional violations would not materially affect the remedy.
3 All dates hereafter are in 1993.
4 The judge found that Dixon made this statement; the Respondent
excepts noting Dixon’s transcript testimony ‘‘and I said, you know,
when Joe did show up, Siros said we needed to document it.’’ We
find it unnecessary to resolve this dispute in light of our finding that
the April 4 warning was not unlawful.
Parsippany Hotel Management Co. as Agent for the
Owner, Parsippany Hilton Hotel Joint Ven-
tures and Local 69, Hotel Employees and Res-
taurant Employees International Union, AFL–
CIO. Case 22–CA–19190
September 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On September 27, 1994, Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified and to adopt the recommended
Order as modified.
The Respondent operates a Hilton Hotel in Parsip-
pany, New Jersey. Employee Joseph LaRussa, a prin-
cipal organizer of the union campaign, testified on the
Union’s behalf at a representation hearing on March 3,
1993. LaRussa failed to report for his scheduled shift
on March 3 without arranging for a substitute and re-
ceived a verbal warning. Subsequently, on March 17,3
LaRussa received a written warning for angrily con-
fronting a fellow employee about the number of tables
set up for a luncheon. The judge found that both of
these warnings were lawful, rejecting the General
Counsel’s contention that the warnings were unlaw-
fully motivated by LaRussa’s union activities and par-
ticipation in Board processes in violation of Section
8(a)(3) and (4). There are no exceptions to these find-
ings. The judge, however, found that subsequent warn-
ings issued to LaRussa, on April 4, May 6, and June
15, and his termination on June 18, violated Section
8(a)(3) and (4).
Contrary to the judge, we find that the Respondent
has rebutted the General Counsel’s prima facie case
that the April 4 warning was unlawful. As more fully
set forth in the judge’s decision, LaRussa reported for
work 54 minutes late on April 4 because he forgot to
set his clock ahead for daylight savings time. When
Catering Manager Kalantary realized that LaRussa was
late, he assigned another employee to set up the lunch
LaRussa was scheduled to work that day and reported
the incident to Food and Beverage Director Dixon. Ei-
ther Kalantary or Dixon also stated that, when LaRussa
showed up, they needed to document it.4 After he re-
ported for work on April 4, LaRussa was given a writ-
ten warning for tardiness.
The judge found that there was no evidence that
LaRussa had acted in bad faith, crediting his testimony
that he forgot about daylight savings time. The judge
also found that the statement that ‘‘we needed to docu-
ment it’’ suggests that the Respondent was seeking to
target LaRussa particularly because the Respondent
was not aware of the reasons for LaRussa’s tardiness
at the time the statement was made. Finally, the judge
noted that when employee Fuller was late for the iden-
tical reason in 1994, she was not given a written or
oral warning but instead was told not to worry about
it. The Respondent excepts, arguing that none of these
facts establish that LaRussa was disciplined because of
his union activities or participation in Board proceed-
ings.
We find merit in the Respondent’s exceptions. In
this regard, we adopt the judge’s finding that, in the
foregoing circumstances, the General Counsel has es-
tablished a prima facie case that the April 4 warning
was motivated by LaRussa’s protected activities. We
find, however, that the Respondent has rebutted that
prima facie case by showing that it would have issued
the warning even in the absence of LaRussa’s pro-
tected activities. Thus, it is undisputed that LaRussa
was tardy on April 4 in violation of the Respondent’s
rules. Further, as the judge briefly mentioned, it is un-
disputed that the Respondent has enforced its rules
against tardiness against other employees. Contrary to
the judge, the Respondent’s failure to issue a warning
to employee Fuller in 1994 does not establish disparate
treatment. As the Respondent explained, Fuller had no
prior disciplinary record, in contrast to LaRussa who
had two recent prior warnings for infractions of the
Respondent’s rules at the time he received this warn-
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115PARSIPPANY HOTEL MANAGEMENT CO.
5 In this regard, we note that the Respondent also followed pro-
gressive disciplinary procedures with respect to the warnings issued
to LaRussa, as set forth above. 1 Unless indicated otherwise, all dates referred to the year 1993.
ing. Accordingly, the difference in discipline does not
establish that the warning issued to LaRussa was un-
lawful.5 For the foregoing reasons, we find that the
Respondent did not violate the Act by issuing a warn-
ing to LaRussa on April 4 for tardiness.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Parsippany Hotel Manage-
ment Co. as Agent for the Owner, Parsippany Hilton
Hotel Joint Ventures, Parsippany, New Jersey, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) Discharging, warning, or otherwise discriminat-
ing against any employee for supporting Local 69,
Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO or any other labor organiza-
tion.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Remove from its files any reference to the un-
lawful warnings issued to employee LaRussa on May
6, 1993, and June 15, 1993, and to his unlawful dis-
charge on June 18, 1993, and notify him in writing
that this has been done and that the warnings and dis-
charge will not be used against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promulgate rules prohibiting the solic-
itation of union authorizations cards at our facility in
Parsippany, New Jersey.
WE WILL NOT engage in surveillance of our employ-
ees’ union activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting Local 69, Hotel Em-
ployees and Restaurant Employees International Union,
AFL–CIO or any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Joseph LaRussa immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privi-
leges previously enjoyed and WE WILL make him
whole for any loss of earnings and other benefits re-
sulting from his discharge, with interest.
WE WILL remove from our files any reference to the
unlawful discharge of Joseph LaRussa and to unlawful
warnings issued to him on May 6 and June 15, 1993,
and we will notify him in writing that this has been
done and that the discharge and warnings will not be
used against him in any way.
PARSIPPANY HOTEL MANAGEMENT CO.,
AS AGENT FOR THE OWNER PARSIPPANY
HILTON HOTEL JOINT VENTURES
Gregory Alvarez, Esq., for the General Counsel.
Karl M. Terrell, Esq. (Stokes & Murphy), for the Respond-
ent.
Eve I. Klein, Esq. (Richard & O’Neil), for the Charging
Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 9, 10, and 11, and June 23 and
24, 1994, in Newark, New Jersey. The complaint, which
issued on November 16, 1993,1 was based on an unfair labor
practice charge and amended charges that were filed by
Local 69, Hotel Employees and Restaurant Employees Inter-
national Union, AFL–CIO (the Union), on May 17, June 28,
and August 26. The complaint, after being amended at the
hearing (as will be discussed more fully below in the discus-
sion of the 8(a)(1) allegations) alleges that Respondent vio-
lated Section 8(a)(1) of the Act in or about February by pro-
mulgating a rule prohibiting the solicitation of union author-
ization cards at Respondent’s facility, impliedly threatened its
employees with unspecified reprisals if they solicited union
authorization cards, and interrogated its employees about
their union activities and the activities of other employees.
It is also alleged that Respondent violated Section 8(a)(1) of
the Act, between April 15 and 22, the week preceding the
Board-conducted election, by assigning security officers to
engage in surveillance of employees to discover their union
activities. Finally, it is alleged that Respondent violated Sec-
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116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion 8(a)(1), (3), and (4) of the Act by issuing one verbal
warning and three written warnings to Joseph LaRussa, and
by terminating him on about June 18.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in Parsippany, New Jersey (the facility), has been
engaged in the operation of a hotel providing food and lodg-
ing. Annually, Respondent derived gross revenue in excess
of $500,000 and, during the same period, purchased and re-
ceived at its facility products, goods, and materials valued in
excess of $5000 directly from suppliers located outside the
State of New Jersey. Respondent admits, and I find, that it
has been engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE FACTS
Until the second day of hearing, the complaint alleged
only one 8(a)(1) allegation—the surveillance by Respond-
ent’s security officers—in addition to the 8(a)(3) and (4) alle-
gations regarding LaRussa. This complaint was based on a
charge filed on May 17, alleging numerous 8(a)(1) and (3)
violations directed at LaRussa, including warnings and sur-
veillance activities directed at him. On June 28, the Union
filed an identical charge, but added an allegation that he was
terminated in violation of Section 8(a)(3) of the Act. On Au-
gust 26, the Union filed its final charge, a second amended
charge, which adds an 8(a)(4) allegation. It alleges that sur-
veillance of LaRussa and other employees violated Section
8(a)(1) of the Act, and the warnings to, and discharge of,
LaRussa violated Section 8(a)(3) and (4) of the Act. On the
second day of hearing, May 10, 1994, the General Counsel
moved to amend the complaint to allege that in February Re-
spondent, by Robert Hermany, its general manager at the
time, violated Section 8(a)(1) of the Act by promulgating a
rule prohibiting the solicitation of union authorization cards
at the facility, impliedly threatened its employees with un-
specified reprisals if they solicited union authorization cards
and interrogated its employees about their union activities.
Over the Respondent’s objection, I granted the General
Counsel’s motion to amend while reserving to the parties the
right to brief this issue at the conclusion of the hearing, and
reserving the right to reverse that ruling.
It is clear that no unfair labor practice charge was filed al-
leging any unfair labor practices by Hermany; in fact, the
only 8(a)(1) violation alleged in the charges that were filed
was the surveillance allegation, which is alleged in the com-
plaint. It is also clear that by the time the General Counsel
moved to amend the complaint to include these 8(a)(1) alle-
gations, the 10(b) period had passed. These allegations can
survive a 10(b) challenge only if they can be ‘‘revived’’ by
the Union’s earlier unfair labor practice charges, which were
timely filed. Amendments such as the instant matter are usu-
ally permitted when they are ‘‘closely related’’ to the origi-
nal and timely allegations, or if they are based on the same
factual situation or legal theory. NLRB v. Overnite Transpor-
tation Co., 938 F.2d 815, 820 (7th Cir. 1991). In allowing
a similar amendment, Pincus Elevator & Electric Co., 308
NLRB 684, 690 (1992), stated:
While the complaint contained additional allegations re-
garding threats of business closure and promise of ben-
efits, clearly, distinct acts separate in time, the legal
theory underlying all of them is identical; that is, that
the Respondent engaged in unlawful conduct as part of
an effort to prevent the organization of its employ-
ees. . . . The fact that different sections of the Act are
involved does not alter this determination. [Citations
omitted.]
In Beretta U.S.A. Corp., 298 NLRB 232 (1990), the Board
found that 8(a)(1) complaint allegations of interrogation,
threats, and the impression of surveillance were closely relat-
ed to the charge allegations of multiple 8(a)(1) and (3) viola-
tions involving a union activist, noting that ‘‘all these actions
were part of the Respondent’s unlawful course of conduct in
seeking to defeat the union organizing campaign.’’ Pincus
and Beretta are analogous to the instant situation. The timely
charges and the complaint allege that the surveillance of the
employees and the warnings to, and discharge of, LaRussa
violate Section 8(a)(1) and (3) of the Act. The requested
amendment, regarding statements made by Hermany in Feb-
ruary, while, at least, a few weeks before the other alleged
violations, if true, would constitute part of the same program
to convince the employees not to join the Union. The amend-
ment was therefore properly granted.
LaRussa had been employed at the facility as a banquet
server since October 1991. By all accounts, at least, prior to
about January 1993 he was an excellent employee with an
unblemished work record. In about January, Respondent
changed its method of compensation of its banquet employ-
ees from a commission basis to an hourly basis. This, appar-
ently, was the genesis of the union campaign among the ban-
quet department employees at the facility and LaRussa was
a principal mover of this campaign, testifying for the Union
at the Board’s representation hearing on March 3, soliciting
union authorization cards and leading the union meetings. At
an election conducted on April 22, the Union failed to obtain
a majority of the votes cast. Respondent admits that it was
aware of LaRussa’s union sympathies, and the General
Counsel alleges that this was the cause of his warnings and
discharge on about June 18. Respondent alleges that when it
changed from a commission basis of compensation to an
hourly compensation basis, LaRussa’s attitude and work per-
formance quickly deteriorated, and that was the cause of the
warnings that he received that resulted in his termination.
As stated above, on the second day of hearing, the General
Counsel amended the complaint to allege that certain activity
by Robert Hermany, the facility’s general manager, in or
about February, violated Section 8(a)(1) of the Act. It is al-
leged that he promulgated a rule prohibiting the solicitation
of union authorization cards at the facility, he impliedly
threatened the employees with unspecified reprisals if they
solicited union authorization cards, and interrogated the em-
ployees about their union activities and the union activities
of the other employees. Michael Romano, who has been em-
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117PARSIPPANY HOTEL MANAGEMENT CO.
ployed at the facility since 1988, and was employed as a
banquet server during the period in question, testified that at
about the end of February, Christine Wester, the banquet
manager at the facility, asked him to go to a room at the fa-
cility for a meeting with Hermany. About 25 to 30 depart-
ment employees were present as were Hermany, Wester, and
Bianca Sorenson, the catering service manager. He testified
that Hermany displayed a union authorization card and said,
‘‘Do you see this card? I don’t need to see this card circulat-
ing around the hotel . . . . We don’t need a third party tell-
ing us how to conduct our business.’’ He also said, ‘‘I don’t
want to see this anymore, and if anybody in the banquet de-
partment is distributing these cards, this better stop right
now.’’ He testified, ‘‘He wanted these cards to stop circling
around the hotel. He wanted no more cards around there.’’
Marjorie McKay, who has been employed as a banquet serv-
er at the facility since 1986, testified that in February or
March she was told by the managers that there was a manda-
tory meeting that she had to attend. About 10 to 15 of the
banquet department employees were there, along with
Hermany, Wester, Christopher Dixon, the food and beverage
director, and Lisa Hugo, the director of human resources.
Hermany read from a letter and then waved a union author-
ization card and said that he did not want to see the cards
on the property and that they did not need a third party to
run the hotel. He also said that he thought that the union
campaign began with the banquet department and was caused
by the change in the method of calculating the pay. McKay
told Hermany that he had previously reassured them that the
method of payment would not change and he said that was
a long time ago and things change. Hermany asked where
the cards came from and said that he didn’t want them on
the property.
Melissa Brennan, who was employed as a banquet server
through December, testified that she attended a meeting in
February when Hermany spoke about the Union. He said, ‘‘I
know there are Union cards being signed and I don’t appre-
ciate it. I feel like I’m being stabbed in the back after the
way we’ve taken care of you. And how dare you do this to
us.’’ He then said, ‘‘If anyone comes by you to try to sign
one of these cards, you should just turn and walk away.’’ He
then threw the union card on the table. Joan Roetto, who is
employed by Respondent as a banquet server, testified that
she generally attends meetings of department employees. She
could not recollect any meeting with Hermany in which he
spoke about the Union or union authorization cards. Pedro
Audelo, who is employed at the facility as a banquet server,
testified that he attended a meeting of employees and
Hermany in about January or February. At this meeting
Hermany spoke about the change in the method of com-
pensation from gratuity to hourly; he did not mention the
Union or union authorization cards.
Hugo testified that Hermany’s final day at the facility was
February 15, at which time he was replaced by Dennis
McDowell. Respondent conducted two meetings with the
banquet department employees in mid-January to explain the
change in the method of compensation; one meeting was for
the a.m. shift and the other was for the p.m. shift. She at-
tended the a.m. meeting, along with Hermany, Dixon, and
Wester; Dixon conducted the p.m. meeting. About 1 to 2
weeks later there was a subsequent meeting with the employ-
ees wherein Hermany answered questions that the employees
had regarding the change in compensation. Neither the Union
nor union cards were mentioned at these meetings and she
knows of no other meetings that Hermany had with employ-
ees during this period. She identified a letter that she testified
that McDowell read verbatim to the employees at a meeting
on February 17. The first paragraph states: ‘‘I apologize for
reading this speech to you, however it is important that there
be no question about what I have to say.’’ He then intro-
duced himself as the new general manager. He said that the
Union wanted their money and would make a lot of prom-
ises, but the employees should ask a lot of questions. He said
that even if they had signed a union card, they could still op-
pose the Union. He did not believe that they needed a Union
at the facility. Hugo testified that McDowell never held up
a union card during this meeting. Wester testified that she at-
tended two meetings conducted by Hermany in January or
February when he explained the change in the compensation
method at the facility. Neither the union campaign nor union
authorization cards were mentioned. Sorenson testified that
Hermany conducted two meetings with the banquet depart-
ment employees in January or February ‘‘to inform the staff
that we were going hourly.’’ She attended only the p.m.
meeting. Hermany made no mention of the Union or union
authorization cards. Siros Kalantary, who is employed at the
facility as the catering sales manager, testified that he at-
tended the first of two meetings that Hermany had with the
banquet department employees regarding the change in com-
pensation. At this meeting, Hermany made no mention of the
Union or union cards.
The remaining 8(a)(1) allegation is that between April 15
and April 22, the Respondent assigned security officers to
engage in surveillance of employees to discover their union
activities. As stated above, the election was conducted at the
facility on April 22. Respondent, admittedly, transferred four
directors of security from other of its hotels to cover the fa-
cility from the period Monday, April 19, through the election
day. There is a substantial credibility issue, however, of their
purpose in being at the facility and, more importantly, what
they did during this 4-day period.
LaRussa testified that beginning about 2 weeks before the
election he noticed six unfamiliar employees at the facility;
two of these individuals followed him and other employees
during this period. He testified to two specific examples that
he could remember during the period in question. He was
working a luncheon in the Livingston Room at the facility
with Ruth Hoffman, Harriet Vaccaro, and some other em-
ployees; he was doing the buffet, which was his usual as-
signment. The buffet is set up adjacent to, and outside the
room. He initially noticed the two men at about 10:30 a.m.,
while he was setting up the buffet. He noticed that when he
was outside of the room working on the buffet the two men
sat on a nearby bench or walked back and forth in the area
chatting and watching him. When he was inside the room
they walked to a different area, returning when he went to
the buffet. This continued until he completed the luncheon
at about 2 p.m. In the other incident, he, Romano, and some
other employees were sitting on the loading dock at the facil-
ity, which was a common for employees to do between
working periods. He noticed the two men come out on the
dock and stand near them. He and Romano went for a walk
on Respondent’s grounds surrounding the hotel and the two
men followed them, about 50 feet behind. When LaRussa
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118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Romano stopped, they stopped. When LaRussa and Ro-
mano returned to the loading dock, so did the two men. On
one occasion, while LaRussa, Romano, and some other em-
ployees were on the loading dock, one of these men asked
him, ‘‘Why do you want a union? This is a great company
to work for.’’ LaRussa asked him who he was and why was
it his business, but he did not respond. He testified that these
two men wore dress slacks, a sport jacket, a shirt, and tie,
but had no badge or name tag, unlike the regular security
staff at the facility that wears a uniform and name tags and
badges. LaRussa testified that about 2 weeks prior to the
election he asked Wester who these two men were and she
said that they were security men who were there to protect
them. He asked her, ‘‘From what?’’ She said that they were
there to protect them from the Union because they had been
known to beat up people.
Romano testified that he began seeing these two men
about 2 to 3 weeks before the election: ‘‘these two gentle-
men that seemed to be there anytime I was there. They
seemed to be observing us, just standing there . . . .’’ When
he was in the cafeteria or on the loading dock they were 10
to 15 feet away from him. He testified to a situation about
2 weeks before the election when he and LaRussa were sit-
ting on the loading dock during a break; the two men were
standing about 10 to 15 feet away. They went for a walk and
the two men followed them and stayed about 30 yards be-
hind them. When LaRussa and Romano stopped walking, so
did they. They walked for about 15 minutes with the two
men behind them, and then returned to work. Romano testi-
fied that, unlike the security staff at the hotel, these two men
did not wear badges or name tags.
Vaccaro, who has been employed by Respondent as a ban-
quet server since 1991, testified that she first noticed these
two men on April 19 in the cafeteria; however, on the fol-
lowing day she took more notice of them. She worked that
day in the Livingston Room with LaRussa, Hoffman, and
others. The buffet was in the hallway (or public corridor) ad-
jacent to Livingston, which has double glass doors leading
into the room. While Vaccaro was doing the setups on that
day she again noticed the two men at about 10:30 a.m. They
were standing in the hallway looking through the windows
adjacent to the doors, and through the doors at them. Shortly
thereafter, one of these men walked into the room and exited
the room through the door that leads to the service corridor
and reappeared in the hallway about 15 minutes later. From
10 until 11 a.m., when the employees went for lunch, one
or both of these men remained in the area the entire time.
The employees returned from lunch at 11:30 a.m. to com-
plete preparations for the luncheon, and when she and Hoff-
man went to the hallway to see if LaRussa needed any assist-
ance, she again saw the two men across the hallway from the
buffet. During the luncheon, when she looked out the win-
dow of the room, she saw that they were still in the hallway
across from the buffet. When they were cleaning up at the
conclusion of the luncheon at about 1:30 p.m., they were still
in the corridor, just across from where the buffet had been
located. She testified that they were wearing sports jackets,
white shirts, and a tie, but she did not see them wearing a
badge or name tags. As she was leaving that day, she asked
Wester or Sorenson who they were and she said that the
hotel had some past problems with the Union as someone
had his leg broken, so the Respondent got extra security to
protect them.
Hoffman, who has been employed at the facility as a ban-
quet server since 1991, testified that during the week preced-
ing the election, she worked a luncheon function in the Liv-
ingston Room with LaRussa, Vaccaro, and other employees;
that day was the first time she noticed the two men. At about
noon, while she was waiting for the diners to arrive, she no-
ticed the two men standing across the hallway from where
she and the others were waiting, a distance of 40 to 50 feet.
Her job that day was to make sure that the food trays in the
buffet were filled and she was standing in the entranceway
to the room: ‘‘So I was in and out walking and looking
around. Every time I looked around, I noticed those two men
still standing there. I believe they were there the full time
of the function.’’ One of these men walked through the room
into the service corridor; when she saw him next he was with
the other man in the main corridor, across from the entrance
into the room. When she looked at these men, they were
looking at her and her fellow workers. The men were each
wearing a suit and a tie, but had no badge or name tag. At
the conclusion of the luncheon, she and Vaccaro asked West-
er and Bianca who they were and they were told that they
were security men who were there to protect the employees;
that at another hotel the Union was involved and there were
some injuries.
Robert Braga and Anthony Colletta Jr., two of the four se-
curity officers who Respondent transferred to the facility for
the 4 days preceding the election, testified that they arrived
at the facility on either Sunday evening, April 18, or Monday
morning. Braga is the director of security at the Providence
Marriot Hotel and Colletta has the same title at the Albany
Marriot Hotel, both of which have common ownership with
the facility. Two other security employees—Bill Downs and
Skip Awlyard—arrived at about the same time. Braga and
Awlyard worked the day shift during that week, while
Downs and Colletta worked the night shift. They had a
breakfast together (their only meeting) Monday morning with
Hugo and Peter Coutis, rooms director at the facility. Braga
testified that at this meeting they were told to just keep walk-
ing around the facility, make sure that the guests had peace
and quiet, and that there was no solicitation and no signs or
fliers placed on cars. They were also told of some specific
individuals who were involved in the union campaign, in-
cluding LaRussa, who was pointed out to them. They were
not told to watch particular employees, nor were they told
to find out what the union people were doing or saying.
They were given name tags to wear with their first name on
it and they wore them that week; when Colletta and Downs
relieved them, he saw that they were wearing their name
tags. During that week, they spent most of their time walking
around the parking lot. Between these rounds walking the
parking lot, they sat in the lobby for short periods of time.
He estimates that they spent about an hour and a half of each
day in the lobby. They never followed anybody in the park-
ing lot or at the facility and never watched anybody inside
the hotel. He does not remember seeing LaRussa outside the
hotel at any time, and never spoke to him. At the end of the
week nothing out of the ordinary had occurred so they did
not have to report to anybody at the facility prior to leaving.
Colletta testified that he, Braga, Awlyard, and Downs met
with Hugo and Coutis on Monday morning, April 19. They
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119PARSIPPANY HOTEL MANAGEMENT CO.
2 LaRussa testified that it can take about 1-1/2 to 2 hours to drive
from Newark to Parsippany. I take official notice of the fact that the
distance from Newark to Parsippany is about 15 to 20 miles.
were told that a union campaign was in progress and that
their ‘‘limited direction’’ was to enforce the no solicitation
rule and to see that the hotel operation and the guests were
not disrupted over the following days. They were not told to
watch any particular employees, nor were they told to see
who was active for the Union. He does not remember being
told about LaRussa at this meeting. They were also not told
to see whom LaRussa was talking to, nor were they told to
follow anybody. At this meeting they were given name tags,
which they wore. During his shifts, he made rounds in three
areas of the facility, the guest floors, the public areas, which
includes the parking lot, and the employee only areas. At the
end of his stay at the facility he did not make a written re-
port, because there was nothing to report.
Hugo testified that for the 4 days prior to the election the
Respondent assigned four security officers from other prop-
erties to the facility to ensure that only authorized individuals
were on the property and ‘‘in anticipation of some outside
activity that could be detrimental to our guests.’’ Their as-
signment was to patrol the parking lot and the entire prop-
erty. All employees at the facility wear name tags and, to the
best of her recollection, the officers on this task force wore
name tags, but she could not specifically recollect seeing
them wearing these tags. She testified that in late 1992, the
regular security staff at the facility had been reduced from
eight to three and Respondent felt that this might not be ade-
quate for the week preceding the election, and that is why
they employed the task force from the other properties.
As stated above, LaRussa testified for the Union at the
Board’s representation hearing on March 3. He testified that
he worked the lunch and dinner shifts on the prior day. At
about 8 that evening he called his home and was told that
he had received a subpoena to testify the following morning
at the Board’s office. He testified that although he knew that
he would be receiving a subpoena to testify, until he spoke
to his son that evening he did not know that he would be
testifying on March 3. Shortly thereafter, Kalantary ap-
proached him and asked if he was going to work the follow-
ing day. LaRussa responded that he didn’t think that he
would be. Kalantary responded that he heard that he wasn’t
coming in, and LaRussa said that he had received a subpoena
to be in court the following morning and said that he would
definitely not be there for the lunch shift and asked
Kalantary to get someone to cover that shift. Kalantary said
that he would take care of it and asked whether he would
be in for the evening shift. LaRussa said that he wasn’t sure
because he didn’t know how long it would take the following
day, ‘‘I told him that I wanted to work, but to play it safe,
get somebody to cover for me.’’ Kalantary said that it
wouldn’t be a problem because he had plenty of people
available. He testified that he arrived at the Board hearing
at about 9 a.m. on March 3 and began testifying at about
1:30 or 2 p.m., testified for an hour or two, but was asked
to remain at the hearing by the Union’s attorney and was not
‘‘excused’’ until 5:30 or 6 p.m. Hugo, and other of Respond-
ent’s representatives, were present at the hearing, but he was
not certain whether other employees were there. He left the
Board office and ‘‘went straight to work,’’ arriving at the fa-
cility at about 7 p.m.2 He went to see Kalantary to tell him
that he had to return for the second day of hearing on the
following day and therefore would not be available for work
on his next scheduled shift. Kalantary said that he would
take care of it. LaRussa asked him if he had covered his shift
that evening, and Kalantary said that it was not a problem,
that he had enough people to cover the shift. He heard noth-
ing further about the matter until March 8. On that day,
Wester told him that Dixon wanted to see him in his office,
where the three of them met. Dixon asked him why he did
not call or show up for work on March 3; LaRussa told him
that he had received a subpoena the prior evening to report
to the Board hearing. Dixon asked why he did not work the
evening shift, and he said that he didn’t leave the Board of-
fice until 6 p.m., and Kalantary said that he would cover the
shift for him.
Dixon wrote a memo dated March 8 stating:
Joe was on the schedule to work on March the 3rd.
On March 2nd Siros Kalantary was told by another as-
sociate that Joe was not coming into work the next day.
Joe was asked by Siros on that night if he was indeed
coming to work. He said no, he was not. Joe did not
show up to his scheduled shift on March the 3rd.
Joe received a verbal warning for improper call off
procedure. Joe refused to sign the verbal warning.
The verbal warning given to LaRussa, dated March 8 (his
first warning) states:
Joe LaRussa was scheduled to work March 3, 4 p.m.
Joe did not show up for his scheduled [sic] or call in.
According to company policy you must call in 2 hrs.
prior to scheduled shift and when possible talk to your
immediate manager. Joe is aware of our policy when
calling out and must follow or further disciplinary ac-
tion will be taken.
Beneath this statement, is stated: ‘‘This was verbally ad-
dressed with Joe by Christine Wester and Chris Dixon. Joe
said that on the night of March 2nd, Siros Kalantary did ask
him if he would be in on March 3rd and he said no.’’
Kalantary testified that on the evening of March 2 he was
told by ‘‘a second party’’ that LaRussa would be at the hear-
ing on the following day. He checked the schedule and saw
that he was scheduled to work the following day on the
lunch shift to arrive at 10 a.m. and the dinner shift to arrive
at 4 p.m. He approached LaRussa at about 6 or 7 p.m. and
said that he understood that he was going to be at the hear-
ing the following day. LaRussa asked, ‘‘Who told you?’’ and
Kalantary said, ‘‘Were you going to surprise us?’’ Kalantary
said that he would find a replacement for him for his first
shift, but asked if he would be there for the second shift and
LaRussa said, ‘‘yes, definitely’’ he would be there for the 4
p.m. shift. Kalantary got a replacement for LaRussa’s early
shift, but did not arrange for a replacement for the afternoon
shift. LaRussa did not appear for work that afternoon or
evening, nor did he call to say that he would not be there.
On the following morning, Kalantary asked LaRussa why he
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120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
didn’t appear or call the prior day. He said that since Hugo
was at the hearing and saw him there, he didn’t think that
it was necessary to call to say that he wouldn’t be in. Dixon
testified that he saw LaRussa at the facility dressed in street
clothes at about 5 p.m. on March 3; Kalantary could not
recollect whether he saw LaRussa at the facility that evening.
Hugo testified that she was told that on March 3, LaRussa
did not report for work nor call in, but was seen at the facil-
ity:
The rule violation was no call no show for his sched-
uled shift. The background information was the fact
that Joe knew he would be at the hearing. He made no
attempt to tell his supervisor. His supervisor had to ap-
proach him in order to verify hearsay that he had heard
from other employees that Joe would not be there. Joe
said that he would be there for his afternoon shift and
made no attempt to call during the day to say that he
wouldn’t be there. Or to say that he’d be late. To say
that he was still in the hearing, or anything. He later
reported to the property in his street clothes and yet still
did not report for his shift. And the other associates
who were at the hearing, did report for their afternoon
shift.
She testified that Luis Ballanos and Gilberto Gomez were at
the hearing with the union representatives. Ballanos was
scheduled to work that day and had previously notified his
supervisor that he would not be there for the lunch shift, but
did report for the dinner shift.
Wester testified that on the afternoon of March 3, when
she didn’t see LaRussa, she asked Kalantary if LaRussa was
coming in for the dinner shift and he said that LaRussa
didn’t say anything to him about it and, as far as he knew,
LaRussa would be in. Ballanos, who was at the hearing, re-
ported for his 4 p.m. shift. She told Dixon about this situa-
tion.
An incident occurred on March 17 that resulted in
LaRussa’s second warning, and first written warning. It in-
volved a 2-day luncheon held at the facility. The organiza-
tion running the luncheon had told Respondent that there
would be approximately 45 people present. On the first day,
March 16, about 10 or 15 additional people appeared for the
luncheon, resulting in some scrambling for additional tables
and table settings for the unscheduled guests. On the follow-
ing day, LaRussa was in charge of setting up the buffet
table; also working that room was Roetto, Jackie Fuller,
Nella Chiaravalloti, and others. LaRussa testified that he was
expecting the same group, about 60 people, for lunch that
day. Sorenson came into the room and told one of the facili-
ties employees to remove a table that was in the room.
LaRussa asked him what he was doing, and he said that he
was removing the tables as Sorenson had told him to do.
LaRussa approached Sorenson and said, ‘‘Why are you hav-
ing them remove the tables? We need them.’’ Sorenson said
that they didn’t need the extra tables and LaRussa said that
they did, ‘‘I worked this party yesterday, we’re going to have
the same problem today. We were short yesterday. They’re
only going to tell you that there’s 45 to 47 of them show,
but 60 will show.’’ Sorenson said, ‘‘Don’t give me your
bullshit. I don’t need that today. Take the tables out.’’
LaRussa answered, ‘‘Don’t talk to me that way. This is
bullshit to do all this double work.’’ This occurred while
they were setting up for the luncheon, prior to the guests ar-
riving. He testified that, just as the prior day, about 60 peo-
ple appeared and, at the last minute, they had to put place
settings on cocktail tables in the room to accommodate the
additional guests. At the conclusion of the luncheon, Wester
asked him to come with her to Dixon’s office. Dixon asked
him what occurred that day with Sorenson and he told him
of the events as recited above. Dixon said that he had heard
a different story; that he heard that he had yelled and cursed
at Sorenson and that he had to believe her. LaRussa testified
that employees and supervisors use profanity ‘‘every now
and then.’’ Sorenson used profanity ‘‘quite a bit. She has a
bit of a temper.’’ McKay testified that it was not unusual for
employees and supervisors to use profanities.
LaRussa was given a written warning that same day. It
states that the customer requested that a table be removed
from the room and that LaRussa ‘‘became irate and yelled,
‘no way I’m going to do that after what happened yesterday.
This is bullshit.’’’ The warning states that this incident was
witnessed by Roetto and Chiaravalloti and concludes, ‘‘This
behavior towards a fellow associate is not acceptable and
may be considered gross misconduct. Any further incidents
will result in termination.’’
Fuller testified that on that morning she left the room just
as LaRussa and Sorenson were ‘‘discussing a table.’’ When
she returned about 15 minutes later, ‘‘there was tension in
the room,’’ and she heard Sorenson say, ‘‘I don’t have to put
up with this bullshit any more.’’ Roetto testified that when
she arrived for work that day she met Sorenson, who told
her that she would be working the lunch in the room in-
volved. Sorenson directed a houseman to remove a table
(unset) from the room. While the houseman was removing
the table, Sorenson was stacking the chairs. LaRussa asked
Sorenson what she was doing, that the prior day they had to
add places for the luncheon, and Sorenson said that the
woman called and wanted the table removed. LaRussa be-
came angry and shouted at Sorenson; Roetto remembers that
he used the words ‘‘bullshit’’ and ‘‘God damn.’’ During this
time, Sorenson told him, ‘‘Joe, take it easy, I just spoke to
the woman.’’
Chiaravallati, who was employed by Respondent from Jan-
uary to April as a banquet server, testified that while the em-
ployees were setting up for the luncheon, she heard LaRussa
having an argument with Sorenson. Although she does not
know what preceded it, she heard LaRussa scream at
Sorenson, ‘‘Bullshit. I’m not going to do it. This is bullshit,
fuck this.’’ Sorenson was standing next to LaRussa at the
time, but was backing up as he was screaming and then
walked out of the room. After the set up was completed for
the luncheon, she was called into Wester’s office and ques-
tioned about the incident. She responded as she testified
above.
Sorenson testified that on March 16, the client had esti-
mated that 45 people would show up for the luncheon and
about 55 appeared. The tables were already in the room, but
the staff had to put the table settings on the tables for the
additional people. On the following day the client called and
said that there would not be the extra people on that day.
When she walked into the room she noticed that an addi-
tional table was being rolled into the room and set up. She
asked the houseman to remove the table and LaRussa started
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121PARSIPPANY HOTEL MANAGEMENT CO.
3 There was a substantial amount of testimony, as well as volumi-
nous exhibits, involving tardiness problems of other employees. Be-
cause of the unique nature of this incident, the fact that there is no
evidence that LaRussa had previously been late, and that due to the
nature of this incident he would not have called the facility before
arriving because he was not aware that he was late until that time,
I find that this evidence is not relevant and therefor will not be con-
sidered.
yelling, ‘‘what do you mean, remove the table?’’ Sorenson
started to tell him that the woman who ordered the luncheon
wanted the room set for fewer people and said that if extra
people showed up, they could be seated at the cocktail tables
already in the room. LaRussa began yelling that it wasn’t
right, that the woman was off with her count on the prior
day. He began yelling very loud and Sorenson left the room
because she was so upset and nervous because of what
LaRussa had done. She asked to be, and was, relieved of the
luncheon because she was so upset. They were expecting 40
people that day; 38 showed up for the luncheon.
Wester testified that when she saw Sorenson that morning
at about 10:30 a.m. she was ‘‘visibly upset . . . on the verge
of tears.’’ She told Wester of the problems on the prior day
with extra people, her conversation that morning with the
customer, and how LaRussa had reacted to the removal of
the table. Wester told her that she would cover the luncheon.
Wester then spoke to Chiaravalloti and Roetto about the inci-
dent. She met with Dixon and told him that she could not
allow an employee to speak to a manager in that manner and
they decided that a written warning was warranted.
LaRussa’s third warning (the second written warning) oc-
curred on April 4, when LaRussa arrived at the facility 54
minutes late. On the prior evening, clocks were turned ahead
1 hour for daylight savings time; LaRussa testified that he
forgot about the time change and that was the cause of his
being late. LaRussa was scheduled to report for work at 8:30
a.m. on that day for a 10:30 brunch for 10 adults and 4 chil-
dren. He punched in at 9:24 that morning unaware that any-
thing was wrong. He testified that when he was told that he
was late, he realized that he had forgotten to turn his clock
and watch ahead the night before, but he was able to set up
his function and was completely set up at the time the guests
appeared. At the conclusion of the function, apparently about
noon, he was told that Dixon wanted to speak to him. He
went to his office and Dixon asked him, ‘‘Do you realize
that you were late?’’ and he said that he did, although he
was not aware of it until after he got to work. He also told
Dixon that the party was set up before the guests arrived and
they were not inconvenienced. Dixon responded, ‘‘Yes, but
you were still late and you did not call.’’ LaRussa responded
that he did not call because he didn’t realize that he was late
until after he arrived for work. Dixon then handed him the
written warning that he refused to sign. The warning states
that he was scheduled to report for work at 8:30 a.m. and
did not report until 9:24 a.m. It concludes: ‘‘Repeated tardi-
ness is a sign of unreliability and any future tardiness will
result in disciplinary action.’’3 Fuller testified that she was
an hour late for work on Easter Sunday, April 3, 1994. She
was scheduled to arrive at 7:30 a.m. and arrived at 8:30 a.m.
When she arrived at the facility and saw the other employees
in the room where she was scheduled to work, she realized
for the first time that she was late because she forgot to turn
her clock and watch ahead the prior evening for daylight sav-
ings time. She told Sorenson that she was concerned about
getting in trouble for being late, and Sorenson said, ‘‘Don’t
worry about it.’’ That was the first time that she was late
while employed at the facility.
Kalantary testified that when he realized that LaRussa was
late, he had another employee set up his room for him. As
discussed earlier regarding the surveillance allegation, the fa-
cility gives the employees 2 hours to prepare for the func-
tions. They spend the first hour setting up the room, take a
half hour meal break, and then bring in the food in the half
hour preceding the function. Kalantary testified that when
LaRussa arrived, he told him that he was late and LaRussa
said that he had called the facility (Kalantary could not re-
member whether he said he called security or the hotel oper-
ator) to say that he would be late. Kalantary checked and
found no message from LaRussa that he would be late.
Dixon testified that on that day, Kalantary told him that
LaRussa had not appeared yet for work. He told Kalantary
that when LaRussa appeared, ‘‘we needed to document it.’’
Kalantary had to ‘‘scramble’’ to get another employee to set
up the room. When LaRussa arrived, Dixon asked him why
he was late, and he said that he forgot to set his clock ahead
for daylight savings time. When Dixon asked him why he
didn’t call, LaRussa said, ‘‘What’s the difference? I got my
work done.’’ Dixon further testified that they ‘‘normally’’
post a notice to remind employees to change their clocks
when time changes are approaching, but he could not re-
member whether such a notice was posted in the days pre-
ceding April 4.
The fourth warning that LaRussa received, the third writ-
ten warning, was for clocking in early. This relates to the
change in the method of compensation, as described above.
Prior to about January, the employees were paid on a gratu-
ity commission basis. Subsequent to that time, they were
paid on an hourly basis that required that they punch a time-
clock when arriving at, and leaving from, work. The warn-
ing, dated May 6, states:
On Tuesday, 5/4/93 Joseph was told by the banquet
manager that he could not punch in earlier than his
scheduled time. On Wednesday, 5/5/93 Joseph was
scheduled at 10 a.m. and punched in at 9:29 a.m. On
Thursday 5/6/93 Joseph was scheduled at 10 a.m. and
punched in at 9:33. There was no other reason for him
to be at work early. Servers do not have the discretion
to come in early on their own accord. Joe was specifi-
cally told not to punch in early and he did.
LaRussa testified that he was scheduled to work beginning
at 10 a.m. on May 6. As was his usual procedure, he arrived
about a half hour early (in order to give himself some leeway
in case he was delayed by traffic), clocked in, picked up his
event order, and made himself a cup of tea prior to setting
up for his luncheon. He testified that most of the employees
in the department also clocked in about a half hour prior to
their starting time. Later that day, Dixon asked him why he
clocked in early and he said that to avoid the possibility of
being late, he had a habit of coming in early, and clocking
in when he arrived. Dixon told him that he was told at a
meeting of employees not to clock in early, and LaRussa
said that he was not at any such meeting. Dixon said that
there was a meeting of employees a few days earlier, and
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122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 He testified that he remembers that this occurred on May 5 be-
cause on that day he worked only the early shift so that he could
visit his mother in the hospital. On the prior 2 days he worked both
the early and late shifts, and Respondent’s records confirm this.
5 Wester’s affidavit given to the Board in July states that she had
the meeting with the banquet department employees ‘‘in or about
early May 1993, I’m unsure of the specific date,’’ and that she spoke
to LaRussa about this subject ‘‘a couple of days after the May meet-
ing.’’
LaRussa said that he had a doctor’s appointment that day and
did not attend the meeting. Dixon said, ‘‘Well, you should
have found out.’’ LaRussa testified that prior to this con-
versation with Dixon, he was not told by any management
representative that he was not to clock in early, nor was he
aware of such a rule.
Romano, who has been employed at the facility as a cof-
fee server since 1988, testified that on Wednesday, May 5,
at about 1:30 p.m., he saw a notice posted at the facility an-
nouncing a banquet staff meeting at about 3 p.m. that day.4
He immediately went to see Wester and told her that he was
sorry, but he could not attend the meeting because he was
going to see his mother in the hospital. She said that it was
not a problem, that she would fill him in on the meeting the
following day. On the following day he was scheduled for
a morning shift beginning at 6 a.m. and an afternoon shift
beginning at 3:30 p.m. In these types of situations, the proce-
dure is to clock out at the conclusion of the early shift and
clock in for the later shift. Respondent’s time records estab-
lish that he clocked in at 4:59 a.m. for the morning shift, and
at 2:57 p.m. for the later shift. After clocking in for the after-
noon shift, he got a glass of water and sat at the loading
dock until he had to begin work, which was his usual routine
up to that time. He was told that Wester wanted to speak to
him. He went to her office and she said, ‘‘Don’t take this
personally and don’t get upset, but you are clocking in too
early and it has to stop. Don’t clock in early any more.’’ He
said fine, that it wouldn’t happen again, and it didn’t. That
was the first time that he was told not to clock in early.
Wester testified that she had asked Romano to clock in early
that day.
Fuller testified that prior to May she clocked in a half hour
before she was scheduled to work. In May she attended a
meeting where she was told that the employees would be dis-
ciplined for clocking in early and she and the other banquet
employees followed this rule. Brennan, who was employed
as a banquet server at the facility from 1991 through Decem-
ber, testified that she attended a meeting of the banquet staff
on about May 5 where Wester told the employees not to
clock in more than 10 minutes prior to their starting time.
After that meeting she stopped clocking in early. Roetto tes-
tified that she attended a meeting in early May when Wester
told the employees not to clock in more than 7 minutes be-
fore they were supposed to begin work, and she followed
this direction. Audelo testified that he attended a meeting
presided over by Wester in early May where she told the em-
ployees that the computer records showed that employees
were clocking in prior to their starting times and that she
wanted the employees to clock in between 6 and 7 minutes
prior to starting time and no more than that or they would
be disciplined. Prior to this meeting some banquet servers
clocked in earlier. After this meeting he clocked in as Wester
had directed them. In a note written by Audelo on July 10
at the request of Respondent, he states that the meeting took
place on May 5.
Wester testified that beginning on May 1 the timeclock be-
came important because the employees were being paid an
hourly rate for each hour they worked. During the prior 3
months, labor costs were very high and it was brought to her
attention that employees were clocking in early and clocking
out late. On May 4 she conducted a meeting with the ban-
quet department employees; the main subject was ‘‘milking
the clock.’’ She told them that they were to clock in at their
scheduled time unless otherwise instructed and that clocking
in early would result in discipline. LaRussa was not present
at the meeting, but she saw him that afternoon at about 4.
She testified that LaRussa was one of the employees coming
in for the dinner shift, but the banquet department schedule
for the week states that he worked from 10 a.m. to 1:30 p.m.
in addition to the 4 to 11 p.m. shift on May 4. She met with
LaRussa and told him that she wanted him to know about
her meeting with the employees. That they were not to punch
in before their starting times until told to do so and that she
was going to start documenting employees for violating this
rule.5 She turned around and saw that Kalantary and em-
ployee Bill Andreoreo were a few feet away from her while
she was talking to LaRussa. She did not work on May 5. She
worked on May 6 and saw LaRussa clocking in at 9:30 p.m.;
she looked at the schedule and saw that he was supposed to
begin work at 10 p.m. She told Dixon that she told LaRussa
2 days earlier that he had to be careful and only clock in
at his scheduled time. She said that she was going to docu-
ment LaRussa for clocking in early on May 5 and 6 and the
above-mentioned warning was given to him.
Respondent maintains a punch detail report that states the
times that the employees clocked in and out. Wester testified
that, at the time, the managers reviewed and edited these re-
ports to correct mistakes and discrepancies. In fact,
LaRussa’s record had to be corrected because he forgot to
clock out on May 5. Theoretically, a comparison of the
punch detail report with Respondent’s weekly schedule for
the banquet department employees for the week beginning
May 1, would assist in determining when Wester met with
the employees to inform them of the new rule about not
clocking in prior to their starting time, and whether any other
employees violated this rule late in that week. Unfortunately,
an examination of these records does not appear to be very
helpful. One problem is that the employees sometimes made
mistakes in clocking in or out, as LaRussa did on May 5.
In addition, the weekly schedule is not ‘‘written in stone.’’
Although there are some changes written on the schedule, the
punch detail report for certain of the employees convinces
me that there were other changes not noted on the schedule.
These records establish that Audelo clocked in 10 to 20 min-
utes prior to his start time throughout the entire week of May
1, without change. Bolanos clocked in almost exactly at his
starting time throughout that week, except for May 7, when
he was 8 minutes early. Brennan clocked in 9 p.m. and 18
minutes early on May 3 and 4; right on time May 5; 11 and
18 minutes early for the two shifts on May 6; and 12 and
11 minutes early for the two shifts on May 7. Fuller clocked
in 23 minutes early on May 4; 31 minutes early on May 5;
apparently, 12 minutes late on May 6; and 12 minutes early
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123PARSIPPANY HOTEL MANAGEMENT CO.
on May 7. Gomez clocked in early by 39, 8, and 11 minutes
on May 1, 2, and 3; right on time on May 4; was 4 minutes
early May 5; 17 and 6 minutes early for his two shifts on
May 6; and was 8 minutes early on May 7. Roetto clocked
in 22 minutes early on May 1; 19 minutes early on May 4;
24 minutes early on May 5; and 4 and 7 minutes early on
May 6 and 7. Romano clocked in 25, 17, and 34 minutes
early on May 3, 4, and 5; and 1 to 3 minutes early on May
5 and 6.
Kalantary testified that at every monthly department meet-
ing since January, Wester told the employees not to clock in
prior to their starting time. In addition, on May 4, he over-
heard Wester tell LaRussa that she saw him clock in at 3:30
p.m. when he was not supposed to work until 4 p.m., and
that he was not supposed to do that. He wrote a memo to
the file dated May 6 identifying May 4 as the date he over-
heard this conversation. Kalantary then obtained the punch
detail report and saw that LaRussa had clocked in at 3:30
p.m. instead of 4 p.m. and told him of Respondent’s clock
in policy and warned him not to punch in early again.
Respondent’s house rules provide for termination for em-
ployees who receive three written warnings within a 12-
month period. As of May 6, LaRussa had received three
written warnings within less than a 2-month period, but was
not fired. Hugo testified:
With Joe, we were taking an extra measure of pre-
caution. His behavior was so blatant. And, truthfully, so
unlike Joe prior to the Union campaign, that it really
seemed as though he was taunting us, or tempting us
to fire him.
And I’m not sure he really understood that he could
have been fired. So, in order to give him one more op-
portunity, to let him know for sure that he was getting
very close to termination and was subject to termi-
nation, we decided to give him one more chance.
In this regard, Wester testified that LaRussa ‘‘was a good
employee . . . I was hoping he would turn around. . . . I
was hoping . . . we could give him another chance, and the
situation would be corrected.’’
LaRussa’s final warning, dated June 15, was for failing to
report for work as scheduled on June 13; it resulted in his
discharge. There are conflicting versions of this incident. It
is undisputed that the weekly schedule for the workweek Sat-
urday through Friday is usually posted on Thursday, and that
on the schedule posted at the facility on Thursday, June 9,
LaRussa was scheduled to work Sunday, June 13. It is also
undisputed that Brennan invited LaRussa to a brunch birth-
day party she was having at the facility on June 13 and that
LaRussa requested the day off. What is disputed is whether
LaRussa obtained a substitute to replace him on that day and
whether that substitute contacted Wester.
LaRussa testified that the procedure they employed in his
department at the facility to request a day off was to notify
Wester (who prepared the schedule) by Wednesday of the
prior week what day you wanted off. She usually prepared
the schedule Wednesday evening and if you had your request
in by that time you always got the day off. Obviously, since
Brennan was giving the brunch at the facility on June 13, she
had obtained that day off, and the schedule confirms that.
Once the schedule was posted, you could still get a day off
if Wester had enough available employees to cover the shift.
If not, it was the employee’s responsibility to find a sub-
stitute. If he/she located a substitute, he/she got the day off.
He is not aware of any situation prior to June wherein an
employee got a substitute, but was not allowed the day off.
He testified that late in the afternoon on Tuesday, June 8, he
started to tell Wester that he needed 2 days off (June 13 and
18) and she said that she was going to a meeting: ‘‘Don’t
bother me with that right now, I’m very busy. I make up the
schedule on Wednesday. Let me know then.’’ On the follow-
ing day, he called Wester’s office. Kalantary answered the
phone and LaRussa asked to speak to Wester; he said that
she was not there, that she was at a meeting. LaRussa told
him to remind Wester, before she makes up the schedule,
that he needed June 13 and 18 off. Kalantary said that he
would leave a note for Wester about LaRussa’s call. LaRussa
said that if Wester had a problem, to ask her to call him.
He did not work that day, but when he reported to work the
following day, Thursday, Wester told him that she had gotten
his note, but she could not give him the time off that he had
requested. When he asked why, she said that she just
couldn’t do it, and that she had given him Mothers’ Day off.
He responded that he had asked for that day off months in
advance and didn’t get paid for it. She said that she couldn’t
give him the days off and he said that he would get some-
body to work for him. He said that he would ask McKay to
cover his shift for him on Sunday. Wester said that McKay
does not work on Sundays and LaRussa said that maybe she
would work for him as a favor. Wester said, ‘‘Well, she
doesn’t work on Sundays for me, so I don’t know why she
would work for you.’’
After LaRussa’s luncheon shift that day, he called McKay.
He asked her if she would work his luncheon shift on Sun-
day, June 13 and she said, ‘‘No problem.’’ She asked what
it was and he said a brunch and she said that it was not a
problem. He said that he would call her to tell her if it was
cleared and she said that was fine, just that he should let her
know. Later that afternoon, LaRussa went to see Wester and
told her that he got somebody to cover for him on Sunday.
She asked who, and he said McKay. She said that she did
not want her: ‘‘She won’t work for me, she’s not working
for you.’’ LaRussa said, ‘‘Well Christine, I covered my shift.
I still need the time off and I still have to take it.’’ She said
that it wasn’t her problem. Sometime later that day, LaRussa
circled his 9 a.m. scheduled starting time on the work sched-
ule for June 13 and wrote next to it: ‘‘Not working. You
were told on Wed.’’ The following day LaRussa called
McKay; she was not in so he left a message on her answer-
ing machine not to come in on Sunday: ‘‘Forget Sunday.
Christine won’t let you work.’’ He did not work on Sunday,
June 13; his next scheduled workday was Tuesday, June 15.
When he arrived that day, Wester told him that Dixon want-
ed to see him in his office. He said that he would not go
to see Dixon until he was told what it was about. Dixon then
joined him and LaRussa again said that he would not speak
to them because they had been harassing him. He said that
he would go to human resources instead. They went to the
human resources office where he was given his fourth writ-
ten warning and suspended because he failed to report for
work as scheduled on June 13. He said that he had notified
Wester in advance that he needed the day off. They said,
‘‘Did you come to work?’’ He said that he didn’t. He was
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124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told that he was being suspended for 3 days and would be
notified of the final determination. About a week later he
was told that he was terminated.
Vaccaro, who has been employed at the facility as a ban-
quet server since 1991, testified that the work schedule was
usually posted on Thursday for the following Saturday
through Friday. The policy during 1993 was if you wanted
a particular day off during that period, you put in a written
request to Wester, Sorenson, or Kalantary for the time off by
Wednesday. When you followed that procedure, you received
the day off unless Wester had previously notified the banquet
staff that it was to be so busy that everyone would have to
work. She testified further that sometime during the spring
of 1993, either Wester or Sorenson said that any employee
who made a request for a day off after the Wednesday
‘‘deadline’’ for these requests, had to obtain a substitute.
Hoffman, who has been employed at the facility as a banquet
server since 1991, testified that the policy at the facility was
that if you wanted a day off, you made that request by
Wednesday, because the work schedule comes out on Thurs-
day. In about February, at a meeting of employees, Sorenson
said that if they needed time off after the schedule was post-
ed, the employee had to obtain a substitute for the particular
shift. Fuller testified that she has obtained banquet servers to
substitute for her on shifts that she wanted to be released
from. On these occasions she informed the manager on duty
of the change and it has always been approved. She knows
of no situation when a banquet server was denied the right
to have a substitute replace him/her on a shift. Brennan, who
was employed as a banquet server at the facility from Sep-
tember 1991 through December, testified that the procedure
the employees followed for requesting time was to make
their request before the schedule was posted. If the request
was made by that time it was always granted. Once the
schedule was posted you could still request time off if you
found somebody to cover for you. She was not aware of any
situation at the facility prior to June, when a banquet server
secured a substitute, but was denied the time off. Wester usu-
ally notified the employees that upcoming weekends were
going to be busy by telling the employees or posting a notice
saying that it was going to be a busy time, so don’t ask for
time off. She was never informed that the weekend of her
party was a busy time. Brennan testified further that about
5 p.m. on June 9 she reminded Wester that she needed to
be off on June 13 for the brunch party at the facility for her
daughter. Wester told her to write it on a note and put it on
the bulletin board in her office. She went into Wester’s of-
fice to write the note and was going to add LaRussa’s name
to her note, but she saw a note on the bulletin board request-
ing the day off for LaRussa, ‘‘so I didn’t add his name to
my name.’’ Roetto, who has been employed at the facility
as a banquet server for over 10 years, is Brennan’s aunt.
Brennan invited her to the party and she asked Wester if she
could take the day off to attend the party, but did not testify
when she made the request. Wester told her that she was
very busy that day and would rather she didn’t go. She
worked that day, but Wester assigned her to a room near the
party so that she was able to go in during a slow time.
McKay, who has been employed at a banquet server at the
facility since 1986, testified that the procedure at the facility
for requesting time off was to notify Wester by Wednesday
of your need for the time. If you made the request after
Wednesday, you had to find a replacement to cover your
shift. She knew of no situation when an employee who got
a request in by Wednesday, or after Wednesday but with a
replacement, was denied the time off. She testified that she
prefers not to work on Sundays, but that she has worked
‘‘plenty of Sundays’’ when the facility was busy and Wester
called her to work. On the evening of Thursday, June 10, she
received a telephone call from LaRussa, who told her that
Brennan had invited him to a party that she was giving at
the facility. He asked if she would do him a favor and cover
his brunch on Sunday. She said, ‘‘Sure, no problem.’’ He
said he would call her back to tell her the reporting time for
the affair. On either Friday or Saturday, when she got home,
there was a message from LaRussa on her answering ma-
chine. It was that she should not bother coming to the facil-
ity because Wester would not let him use her as a replace-
ment. On either Friday or Saturday she spoke to Fuller, her
sister, who told her that she didn’t think that McKay would
be working on Sunday, because Wester told her that if
McKay was not available for her, then she was not available
for LaRussa. As a result of LaRussa’s call, and her conversa-
tion with Fuller, she did not go to the facility on June 13.
Fuller testified that on the afternoon of June 10, LaRussa
told her that he was looking for a replacement for Sunday,
and she recommended that he call McKay and he said that
he would. Later that day she spoke to him again and he said
that McKay said that she would cover his shift on Sunday.
On about Friday, LaRussa met Fuller and told her that West-
er wouldn’t allow McKay to cover for him on Sunday. That
evening, Fuller asked Wester if McKay was going to cover
for LaRussa on Sunday and she said that she wasn’t. When
Fuller asked why, Wester said that since McKay normally
didn’t work for her on Sunday, she did not want her working
for LaRussa. She later called McKay and told her of this
conversation. She testified that Wester never asked her if
McKay would cover for LaRussa on Sunday.
Wester testified that the schedule has to be posted by
Thursday, and takes a few hours to prepare. Requests for
days off have to be made to her by Tuesday, otherwise they
are denied unless it is slow and the employee can obtain a
replacement to cover the shift. She testified that LaRussa
never requested Sunday off, either verbally or in writing. She
saw him on Wednesday, after 6 p.m., but he didn’t say any-
thing to her. She took the schedule home with her and com-
pleted it at that time and posted it on Thursday, shortly be-
fore noon. When she arrived at the facility the next morning
at 6 a.m. there was a note on her desk, ‘‘it was scribbled
Joe needs Sunday off.’’ She doesn’t know who wrote it. ‘‘I
didn’t really . . . pay a lot of attention to it. I figured if he
needs the day off he was going to request it sooner than the
day the schedule goes up. I didn’t think it was going to be
a big deal.’’ She saw LaRussa shortly after posting the
schedule and said that she was sorry, but she could not give
him the day off; they were very busy with a couple of bar
mitzvahs, followed by a wedding. She also told him that she
had given the day off to Brennan and ‘‘Giselle,’’ both of
whom had requested it a week earlier, although Wester’s af-
fidavit to the Board states that Giselle requested the day off
on June 8. In addition, Roetto had asked for the day off to
attend Brennan’s party, but she had to work because Wester
needed her. LaRussa became irate and screamed at her that
she was being unreasonable. She said that he was one of
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125PARSIPPANY HOTEL MANAGEMENT CO.
only two people whom she gave off on Mothers’ Day the
prior month. Neither at that time, nor anytime, did LaRussa
offer to get a substitute to cover for him on Sunday. On that
same day, Thursday, at about 1:30 p.m., Fuller said, ‘‘What
if I get my sister Marge to work?’’ Wester said that she
doesn’t work on Sundays for religious reasons. ‘‘I’ve asked
her several times. I don’t think she’s going to work.’’ Fuller
said that she might be willing to work and Wester said,
‘‘Fine. If you can get Marjorie to work, great. Go ahead.’’
Wester had still not heard from McKay by Saturday, so she
asked Fuller what was going on with McKay. Fuller said that
she was sometimes difficult to reach. On Friday night Wester
and Sorenson were discussing the weekend schedule and she
asked Sorenson if McKay was going to cover for LaRussa
and she said that she didn’t know. Wester told Sorenson to
call McKay and Sorenson dialed her number and, when there
was no answer left a message on her answering machine to
call them and tell them if she would be at the facility on
Sunday to cover LaRussa’s shift. She never received a reply
from McKay, and never took LaRussa off the schedule and
he did not appear for work that day, although he was at the
facility attending Brennan’s party.
Sorenson testified that she called McKay on Friday night.
She got the answering machine and left a message to call the
facility to tell them if she could cover a shift on Sunday. She
called McKay because ‘‘she was the next person that wasn’t
working.’’ She does not recall anybody suggesting that she
call McKay.
IV. ANALYSIS
It is initially alleged that Respondent, by Hermany, in
about February, violated Section 8(a)(1) of the Act by pro-
mulgating a rule prohibiting the solicitation of union author-
ization cards at the facility, impliedly threatened its employ-
ees with unspecified reprisals if they solicited union author-
ization cards, and interrogated its employees about their
union activities as well as the union activities of other em-
ployees. The evidence in support of these allegations was
supplied by Romano, McKay, and Brennan, each of whom
was a very direct and credible witness with nothing to gain
from this proceeding. Additionally, Romano and McKay
were still employed at the facility at the time of the hearing;
Brennan left its employ in December. The testimony relates,
principally, to what Hermany said about authorization cards.
Hermany, whose employment with Respondent ended in Feb-
ruary, did not testify. Roetto and Audelo, also credible wit-
nesses, testified that they attended no meetings at the facility
in which Hermany spoke about the Union or union authoriza-
tion cards. Hugo, Wester, Sorenson, and Kalantary testified
that Hermany spoke to the banquet department employees in
January or February about the change in the method of com-
pensation of the department employees, but did not speak
about the Union or union authorization cards. Hugo testified
that on February 17, McDowell conducted a meeting with
the banquet department employees when he read from a let-
ter stating that he didn’t believe that they needed a union.
This is a difficult credibility determination. Romano, McKay,
and Brennan were each credible and believable witnesses
who testified to statements that Hermany made about the
Union. Roetto and Audelo, also credible witnesses, testified
that they never attended any meeting when Hermany made
such statements. Hugo, Wester, Sorenson, and Kalantary, cer-
tainly not obviously incredible witnesses, testified that they
knew of no such meeting when Hermany spoke about the
Union, and Hugo testified that it was McDowell who spoke
to the banquet department employees about the Union. Be-
cause I found their testimony the most believable regarding
this allegation, I credit the testimony of Romano, McKay,
and Brennan.
In Montgomery Ward, 269 NLRB 598, 599 (1984), the
Board stated:
It is well established that discriminatory enforcement
of a facially valid no-solicitation, no-distribution rule
violates Section 8(a)(1). A fortiori a rule which is dis-
criminatory on its face also violates Section 8(a)(1).
Thus an employer may prohibit employees from engag-
ing in activities not associated or connected with their
work during working time; however, such a prohibition
may not single out union activities. [Citations omitted.]
See also Our Way, Inc., 268 NLRB 394 (1983). The credited
testimony establishes that Hermany told the banquet depart-
ment employees that he did not want to see union authoriza-
tion cards at the facility. This statement is violative of the
law for two reasons: Hermany did not limit the restriction to
‘‘work time’’ and he limited the restriction to union author-
ization cards, and not any other forms of activities or discus-
sions. I therefore find that by telling the employees that he
didn’t want to see the union authorization cards at the facil-
ity, Respondent violated Section 8(a)(1) of the Act.
It is next alleged that Respondent, by Hermany also vio-
lated Section 8(a)(1) of the Act by threatening employees
with unspecified reprisals if they solicited union authoriza-
tion cards. As I find no evidence to support this allegation,
I recommend that it be dismissed. The final allegation re-
garding Hermany is that at this (or these) meeting, he inter-
rogated the employees about their union activities and the
union activities of other employees. The only evidence to
support this allegation is McKay’s testimony about this meet-
ing. She described the meeting and a statement that she made
to Hermany during the meeting. She was then asked if she
remembered anything else that he said at the meeting, and
she testified, ‘‘He asked where the cards came from,’’ al-
though she could not remember anything more specific about
this statement. Although I found McKay to be a credible and
believable witness, I do not credit her testimony regarding
this statement as it is not supported by the testimony of Ro-
mano and Brennan, and appears to have been an afterthought
in her testimony. I therefore recommend that this allegation
be dismissed as well.
It is next alleged that between April 15 and 22 Respondent
assigned security officers employed at other of its facilities
to engage in surveillance of the employees to discover their
union activities. This involves another difficult credibility de-
termination. I found Romano, Vaccaro, and Hoffman (all of
whom were still employed at the facility) to be totally credi-
ble and believable witnesses with nothing to gain from this
proceeding. Although Braga and Colletta appeared to be
credible witnesses, as their testimony differs substantially
from the employees’ testimony, I must make a credibility
finding and I credit the testimony of Romano, Vaccaro, and
Hoffman who appeared more credible and were disinterested
in this proceeding. I do credit the testimony of Braga and
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126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Colletta, however, on one factor and find that they were at
the facility only the week of the election, from Monday,
April 19 through 22, the day of the election. Braga testified
that at their breakfast meeting on April 19, they were told
of some specific employees, such as LaRussa who was point-
ed out to them, who were involved in the union campaign,
but they were not told to watch particular employees.
Colletta testified that he does not remember being told about
LaRussa at that breakfast meeting, and they were not told to
watch any particular employees. Based on the credited testi-
mony of Romano, Vaccaro, and Hoffman I discredit this tes-
timony and find it more likely that LaRussa was pointed out
to them at this meeting, with instructions to watch him. Why
else would they follow LaRussa and Romano on their walk
around the facility’s grounds and spend a substantial amount
of time across from where LaRussa, Vaccaro, and Hoffman
were preparing for their luncheon a few days prior to the
election? It was certainly not in conformity with the direc-
tions they testified they received on April 19 to walk around
the facility to be sure that the guests were not disturbed and
that signs and fliers were not placed on cars in the parking
lot. Although Respondent might argue that they followed
LaRussa and Romano through the parking lot and the
grounds surrounding the hotel to be sure that they were not
leafletting cars, no similar argument could be made for
spending 3 hours watching LaRussa and the other employees
while standing across from the room where the luncheon was
being held.
The law is clear that an employer may observe public
union activity, particularly when it occurs on company prem-
ises, without violating the Act. The situation is different,
however, when company officials do something out of the
ordinary. Metal Industries, 251 NLRB 1523 (1980); Southern
Maryland Hospital Center, 293 NLRB 1209, 1217 (1989).
As was stated in Broadway, 267 NLRB 385, 400 (1983):
‘‘The test for determining whether an employer engages in
unlawful surveillance, or unlawfully creates the impression of
surveillance, is an objective one and involves the determina-
tion of whether the employer’s conduct, under the cir-
cumstances, was such as would tend to interfere with, re-
strain or coerce employees in the exercise of the rights guar-
anteed under Section 7 of the Act.’’ I find that under all of
these tests the conduct of Respondent’s security agents vio-
lated Section 8(a)(1) of the Act. It was certainly out of the
ordinary to follow employees out on a walk during their
break time, as well as observing employees for about 3 hours
as they set up for and served at a luncheon. Additionally, the
evidence establishes that this surveillance was of the kind to
intimidate employees in the exercise of their rights to join or
not to join the Union. I therefore find that the evidence sup-
ports the General Counsel’s contention that the security offi-
cers were at the facility to engage in surveillance of the em-
ployees’ union activities on the days preceding the election,
and that they did so in violation of Section 8(a)(1) of the
Act.
The remaining allegations relate to the five warnings that
LaRussa received between March 8 and June 15, and his dis-
charge on June 18. It is alleged that these warnings and the
discharge violate Section 8(a)(1), (3), and (4) of the Act be-
cause they were caused by his support for the Union and his
testimony for the Union at the Board hearing on March 3.
The ‘‘House Rules’’ at the facility provide that employees
are subject to termination after receiving three written warn-
ings within a 12-month period. It was allegedly pursuant to
that provision that LaRussa was terminated on June 18.
Prior to a discussion of each of the five incidents, it is first
necessary to again discuss credibility, which is an important
factor herein. Overall, I found the ‘‘supporting cast’’ the
most credible. Romano, Vaccaro, Hoffman, McKay, Fuller,
and Brennan, the General Counsel’s witnesses, were all very
credible and believable witnesses, as were Roetto, Audelo,
and Chiaravalloti, who testified for Respondent. Each had
nothing to gain through this proceeding and appeared to at-
tempt to remember the events of a year earlier as best as
they could. The principal characters herein, LaRussa for the
General Counsel, and Hugo, Wester, Sorenson, Kalantary,
and Dixon for the Respondent, while apparently credible in
many respects, were not entirely convincing in all respects.
For example, I was initially impressed by the testimony of
LaRussa who answered each question directly without at-
tempting to explain his answers on cross-examination. After
listening to Respondent’s witnesses, however, and most par-
ticularly the testimony about the March 17 incident, I came
to agree with Respondent’s theory and Hugo’s testimony that
while LaRussa had been an exemplary employee prior to the
change in compensation in about January, at that point he de-
veloped ‘‘a chip on his shoulder’’ and, as Hugo testified, ‘‘it
really seemed as though he was taunting us, or tempting us
to fire him.’’ Even so, if Respondent would not have given
him these warnings, or some of these warnings, if not for his
Union activity or testimony at the Board hearing, Respondent
will still have violated the Act.
LaRussa received his first warning on March 8 for not ap-
pearing for his second shift on March 3, the day that he testi-
fied at the Board hearing. Portions of LaRussa’s testimony
regarding the events of March 2 and 3 are not as credible
as the testimony of Kalantary about these events. Kalantary
testified that on the evening of March 2, he was told by
someone (not LaRussa) that LaRussa would be at the hearing
the following day. After checking the schedule and seeing
that LaRussa was scheduled to work the 10 a.m. and the 4
p.m. shifts on March 3, he asked LaRussa about the situa-
tion. When LaRussa (apparently) admitted that he would be
at the hearing, Kalantary said that he would obtain a replace-
ment for his early shift, but asked if he would be there for
the late shift and LaRussa said that he would. He did not ap-
pear for that shift, nor did he call. LaRussa testified that he
was not aware that he would be testifying at the Board hear-
ing on March 3 until 8 p.m. on the prior evening when he
called his son from the facility and was told that he had re-
ceived a subpoena to testify the following day. Shortly there-
after, Kalantary approached him and asked if he would be
working the following day. LaRussa said that he had been
subpoenaed to testify at the Board hearing and asked
Kalantary to get somebody to cover his early shift. When
Kalantary asked if he would be there for the evening shift,
LaRussa said that he didn’t know how long he would be at
the Board the following day, ‘‘but to play it safe, get some-
body to cover for me.’’ He arrived at the Board office at
about 9 a.m., began testifying at 1:30 or 2 p.m., testified for
an hour or two, but was asked to remain by the Union’s at-
torney and was not ‘‘excused’’ until 5:30 or 6 p.m., at which
time he went straight to the facility, arriving at about 7 p.m.
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127PARSIPPANY HOTEL MANAGEMENT CO.
and told Kalantary that he had to be at the Board the follow-
ing day and therefore would be unavailable for work.
I have problems with certain aspects of LaRussa’s testi-
mony regarding this incident: first, and as regards his good
faith in this incident, why didn’t he tell Kalantary earlier of
his unavailability on the following day? LaRussa testified
that until 8 that night, he was not aware that he was being
subpoenaed to testify the following day. I do not credit this
testimony. A Board agent or union attorney would certainly
notify a subpoenaed witness prior to the night before his ap-
pearance, especially in the situation where LaRussa was the
Union’s principal supporter throughout the organizing cam-
paign and at the Board hearing. I do not believe that the sub-
poena was sent out so late that it did not get to LaRussa until
the night preceding his appearance and he was not previously
told of his appearance. Additionally, without seeing the tran-
script of the day’s hearing, I cannot determine what time
LaRussa completed his testimony; however, even crediting
his testimony that he completed his testimony between 2:30
and 4 p.m., he never explained why he did not call Kalantary
from the Board office to say that he would not be in for his
afternoon shift (I do not credit his testimony that on the prior
evening he told Kalantary to get someone to cover for him
for that shift). Finally, he testified that after being ‘‘excused’’
at 5:30 or 6 p.m., he went straight to the facility to tell
Kalantary to get a replacement for him on the following day
because he had to be at the Board office that day as well.
The obvious question is, why drive about an hour (if his tes-
timony is to be credited) when he could have called
Kalantary and told him the same thing? Because of all these
questions I have about LaRussa’s testimony, I credit the tes-
timony of Kalantary about this incident. As I find that this
verbal warning was warranted (especially since Ballanos and
Gomez were at the hearing with the union representatives
without any consequence) I recommend that this allegation
be dismissed.
It is next alleged that the written warning that LaRussa re-
ceived on March 17, for his confrontation with Sorenson on
that day, also violated Section 8(a)(1), (3), and (4) of the
Act. I have no difficulty in crediting the testimony of Roetto
and Chiaravallati regarding this incident. They appeared to
be reluctant witnesses who had nothing to gain from this pro-
ceeding. Counsel for the General Counsel, in his brief, al-
leges that Respondent ‘‘provoked’’ this incident. I disagree
and find that LaRussa interfered with the removal of the
table and precipitated the confrontation with Sorenson and
initiated the shouting and foul language. LaRussa’s assign-
ment that day, and on most days, was to set up the buffet
table; he had no business interfering with the removal of the
table from the room, even if, on the prior day, additional
people appeared at the luncheon. In plain language, that was
none of his business. To add to his transgression, after
Sorenson told him that the customer asked to have the table
removed, he cursed at her, without provocation. This inex-
cusable activity deserved to be written up, as it was. I there-
fore recommend that this allegation be dismissed.
It is next alleged that his warning for being late on April
4 violated Section 8(a)(1), (3), and (4) of the Act. During the
night of April 4 clocks were supposed to be turned ahead for
daylight savings time, but LaRussa forgot to turn his clock
ahead and was 54-minutes late to work. Unlike the prior two
warnings, there is no evidence of bad faith on LaRussa’s
part, nor is there any evidence that LaRussa did this pur-
posely as part of a plan to ‘‘taunt’’ the Respondent, as Hugo
testified to. In fact, Dixon testified that Respondent normally
posts a notice to remind employees of the time change, but
he could not recollect doing so on that occasions. Further,
because of LaRussa admitted ability at his job, I credit his
testimony that he was able to complete his setup in the 1
hour and 6 minutes that he had prior to the arrival of the
guests. Counsel for Respondent, in his brief, defends that
LaRussa’s failure to call in on that morning that he was
going to be late was a particularly serious offense. I have
found no evidence, however, of bad faith by LaRussa regard-
ing this incident. As he forgot to turn his watch and clocks
ahead the night before, in all probability, he was not aware
that he was late until he arrived. By then, obviously, it was
too late to call. There are two factors herein that convince
me that Respondent was now ‘‘targeting’’ LaRussa for warn-
ings: when Fuller was an hour late for the identical reason
in 1994 she was not given a warning and was told not to
worry about it, and when Kalantary told Dixon that LaRussa
was late, Dixon’s reaction was: ‘‘We need to document it.’’
At that time, Respondent was not aware of the reason for his
lateness; he might have had a valid excuse. It appears to me
that Respondent was too anxious to give him this warning.
The only possible reason for this warning was his known
union activity and testimony at the Board hearing 1 month
earlier. I therefore find that the April 4 warning violates Sec-
tion 8(a)(1), (3), and (4) of the Act.
The next warning that he received was dated May 6 and
was for an opposite offense-clocking in early on May 5 and
6. It is alleged that this warning violates Section 8(a)(1), (3),
and (4) of the Act. The testimony establishes that on May
5 and 6 LaRussa clocked in a half hour early each day. The
testimony further establishes that up until about that time, it
was a common practice for employees to clock in early and
that sometime in about early May (the date is contested)
Wester conducted a meeting of employees wherein she told
them that they were not to clock in early. LaRussa testified
that if there was such a meeting, he did not attend it and was
not aware of such a rule on May 6 when he clocked in about
a half hour early, as was his practice. On that day, Dixon
asked why he clocked in early, and he said that he had a
habit of coming in early and clocking in when he arrived.
Dixon told him that there was a meeting of employees a few
days earlier when the department employees were told not to
clock in early, and LaRussa said that he had a doctor’s ap-
pointment and did not attend the meeting. Dixon told him
that he should have known of the rule. Romano testified that
Respondent posted a notice at the facility to announce a
meeting of the banquet staff on May 5 at 3 p.m.; he told
Wester that he could not attend the meeting because he was
going to visit his mother in the hospital and she said that it
was not a problem, that she would meet with him on the fol-
lowing day to tell him the subject of the meeting. On the fol-
lowing day, his shifts began at 6 a.m. and 3:30 p.m. and he
clocked in an hour early for the morning shift and a half
hour early for the afternoon shift. Wester asked to see him
and told him that he shouldn’t take it personally or get upset,
but he was clocking in too early, and he should not do it
again. That was the first time he was told not to clock in
early and he never did it again.
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128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Fuller and Brennan each testified that they had a practice
of clocking in early prior to May. Sometime during this pe-
riod they attended a meeting in which Wester told them not
to clock in early and this practice ended. Roetto and Audelo
testified that the meeting wherein Wester told them not to
clock in early took place ‘‘in early May.’’ In a note to the
file written by Audelo on July 10, he places this meeting on
May 5.
The rate of compensation changed in about January and
the employees began punching a time clock at about that
time. Wester testfied that sometime prior to May 1, Respond-
ent realized that its labor costs were high because employees
were clocking in prior to their starting times and (presum-
ably) being paid for this extra time, a procedure she referred
to as ‘‘milking the clock.’’ She testified that she conducted
a meeting of employees on May 4 when she told the employ-
ees that they were not to clock in early, although her affida-
vit given to the Board places this meeting ‘‘in or about early
May 1993, I’m unsure of the specific date.’’ She testified
that LaRussa was not present at the meeting, but she saw
him later that afternoon and told him that employees were
not to clock in early, and those who did not follow the rule
would be documented. Her affidavit referred to above states
that she spoke to LaRussa about this subject ‘‘a couple of
days after the May meeting,’’ i.e., ‘‘in or about early May
1993, I’m unsure of the specific date.’’ She did not work on
May 5, but on May 6, she saw LaRussa clocking in a half
hour early. She checked the time records and saw that he
clocked in a half hour early both on that day and the prior
day, and that is why he was given the warning. Kalantary
testified that on May 4 Wester had a meeting of the banquet
department employees wherein she told them not to clock in
early. Later that same day, he overheard Wester tell LaRussa
that she saw him clock in at 3:30 p.m., when he was sup-
posed to begin work at 4 p.m., and that he was not supposed
to do that. He wrote a memo to the file dated May 6, identi-
fying May 4 as the date that Wester told this to LaRussa.
The initial credibility issue is when Wester met with the
employees to tell them not to clock in early; in this regard,
I credit the testimony of Romano. As stated above, I found
him to be an extremely credible and believable witness with
nothing to gain from this proceeding. In addition, unlike
Wester and Kalantary, he had a good point of reference for
the date of the meeting; his Mother was in the hospital and
he did not work that afternoon so that he could visit her. The
schedule for that week shows that his afternoon shift on May
5 was canceled, presumably so that he could visit his Moth-
er. I therefore find that Wester met with the employees on
May 5 or 6, as Wester testified that she did not work on
May 5, and told them that they were not to clock in early.
This finding in supported by the punch detail report and
work schedule. It shows that Roetto clocked in 22 minutes
early on May 1; 19 minutes early on May 4; 24 minutes
early on May 5, and 4; and 7 minutes early on May 6 and
7. Roetto impressed me as an employee who ‘‘goes by the
book’’ and follows orders given to her. It appears to me that
if Wester had spoken to the employees on May 4, Roetto
would not have clocked in 24 minutes early on May 5. The
remaining issue on this incident is when LaRussa was told
of the new rule. He testified that when Dixon told him on
May 6 that he was not to clock in prior to the commence-
ment of his shift, that was the first time he was told of this
rule. Wester testified that her meeting with the employees
was on May 4, which I have previously discredited, but that
LaRussa was not at that meeting. She saw him when he ar-
rived for the dinner shift that same day, and told him of the
rule against clocking in early at that time. Kalantary testified
that he overheard this conversation, but he also testified that
it occurred on May 4. This is a difficult determination as I
found LaRussa, Kalantary, and Wester to be fairly credible
witnesses. Because of my finding that Wester met with the
employees after May 4, however, and the fact that she testi-
fied that she did not work on May 5, I credit LaRussa’s testi-
mony and find that he was not told of this rule until after
he arrived and clocked in for work on May 6. I therefore
find that the warning issued on May 6 was not warranted,
and the only other conclusion is that it was caused by his
union activities and appearance at the hearing on March 3.
I therefore find that this written warning violates Section
8(a)(1), (3), and (4) of the Act.
The final warning, and the one that resulted in his dis-
charge, was for not appearing for his scheduled shift on Sun-
day, June 13. This situation also requires some credibility de-
terminations. LaRussa testified that on Tuesday, June 8, he
started to tell Wester that he needed Sunday off, to attend
Brennan’s party, but she said that she was busy and that he
should tell her the following day. On the following day, he
called Wester’s office and told Kalantary to remind Wester
that he needed the day off. The credible testimony of Fuller,
Vaccaro, Brennan, and LaRussa establishes that the estab-
lished procedure at the facility was that when employees re-
quested a day off prior to Thursday (when the schedule was
posted) the request was granted. If the request was made on
or after Thursday, the request was granted if the employee
obtained someone to cover the shift. The only exception was
on extremely busy days when Wester previously informed
the employees that the facility had so many affairs that no
time off would be granted. No such notification was given
for June 13. Supporting LaRussa’s testimony that he had
made a timely request for the day off pursuant to Respond-
ent’s rules was Brennan’s testimony that, on Wednesday,
June 9, she saw a note from LaRussa on Wester’s bulletin
board requesting Sunday off. Respondent’s defense, and
Wester’s testimony, is that she was willing to let McKay
substitute for LaRussa, but that she never heard from McKay
that she was willing to do so and, for that reason, she kept
LaRussa on the schedule. I discredit this testimony.
LaRussa’s testimony regarding this incident is supported by
the extremely credible testimony of McKay and Fuller.
McKay testified that LaRussa called her on Thursday and
asked if she would cover his shift on Sunday, and she
agreed. This is credible, because it was earlier on Thursday
that Wester told LaRussa that she could not give him Sunday
off, and he offered to get a substitute. LaRussa testified that
when he told Wester that McKay said that she would sub-
stitute for him on Sunday, Wester told him, ‘‘She won’t
work for me, she’s not working for you.’’ Wester denies say-
ing this. I discredit this denial because of the credible testi-
mony of Fuller that on Friday, June 11, when she asked
Wester if McKay was going to cover for LaRussa, Wester
told her that she was not, because since McKay didn’t nor-
mally work for her on Sundays, she was not going to work
for LaRussa. McKay was not allowed to substitute for
LaRussa on Sunday, and because he did not appear for work,
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129PARSIPPANY HOTEL MANAGEMENT CO.
he was give the written warning of June 15. The facts lead
to the inescapable conclusion that Respondent was looking
for a reason to terminate LaRussa. On two occasions prior
to the completion of the schedule, and pursuant to the proce-
dure at the facility, LaRussa asked to be off on Sunday.
When this request was denied for no valid reason, he got
McKay (who has been employed at the facility since 1986)
to cover his shift. Wester’s stated reason for not allowing
this was that McKay didn’t work for her on Sundays, so she
couldn’t work for LaRussa. Whether that was true or not,
and McKay testified that she has worked ‘‘plenty of Sun-
days’’ when requested by Wester, it is a rather transparent
reason for not allowing LaRussa the day off. Having spent
5 days at this hearing observing the witnesses, it quickly be-
came clear to me that LaRussa was a strong willed individ-
ual. It is also clear to me that Respondent, whose agents cer-
tainly knew him better than I, had no doubt that even if
LaRussa was denied the day off, he would still not appear
for work on Sunday. I find that Respondent’s course of con-
duct in this incident that lead up to the June 15 warning,
clearly indicates that they wanted to get rid of him and knew
how to do it. As, admittedly, he was an excellent employee
prior to the receipt of these warnings beginning in March, I
find that the only conceivable reason for this animus was his
Union activity and his testimony at the Board hearing. I
therefore find that the June 15 warning violates Section
8(a)(1), (3), and (4) of the Act.
Counsel for Respondent, in his brief, alleges that all of the
8(a)(3) and (4) allegations should fall because there is no
evidence of animus. This is not entirely so. The 8(a)(1) vio-
lations found (the prohibition of soliciting union authoriza-
tion cards at the facility and the surveillance of the employ-
ees during the week of the election) establish some animus
on the part of the Respondent. Even if there were an absence
of proof of union animus by Respondent, that does not mean
that Respondent would be absolved of any violation. In Elec-
tronic Data Systems Corp., 305 NLRB 219 (1991), the Board
stated, ‘‘Even without direct evidence, the Board may infer
animus from all the circumstances.’’ In Whitesville Mill Serv-
ice Co., 307 NLRB 937 (1992), the Board stated, ‘‘Rather
we infer from the pretextual nature of the reasons for the dis-
charge advanced by Respondent that the Respondent was
motivated by union hostility.’’ In Shattuck Denn Mining
Corp., 362 F.2d 466, 470 (9th Cir. 1966), the court stated:
Actual motive, a state of mind, being the question,
it is seldom that direct evidence will be available that
is not also self-serving. In such cases, the self-serving
declaration is not conclusive; the trier of fact may infer
motive from the total circumstances proved. Otherwise
no person accused of unlawful motive who took the
stand and testified to a lawful motive could be brought
to book. Nor is the trier of fact—here the trial exam-
iner—required to be any more naif than is a judge. If
he finds that the stated motive for a discharge is false,
he can infer that there is another motive. More than
that, he can infer that the motive is one that the em-
ployer desirest to conceal—an unlawful motive—at
least where, as in this case, the surrounding facts tend
to reinforce that inference.
Because of the pretextual nature of the final three warnings,
and the resulting discharge of LaRussa, I can, and do, infer
that these acts were motivated by union hostility.
The final allegation is that by terminating LaRussa on
about June 18, Respondent violated Section 8(a)(1), (3), and
(4) of the Act. I have found that the final three written warn-
ings were unsupported and pretextual, and would not have
occurred absent LaRussa’s union activity and his appearance
as a union witness at the Board hearing. What remains then
is the verbal warning of March 8 and the written warning of
March 17. Respondent’s house rules provide that an em-
ployee is subject to termination after receiving three written
warnings, which LaRussa would not have received absent his
protected activity, or for ‘‘gross misconduct.’’ LaRussa’s ac-
tions on March 17, while extremely serious, do not constitute
gross misconduct pursuant to these house rules. I find that
as regards the final three warnings to LaRussa and the dis-
charge of LaRussa, the General Counsel has sustained his
initial burden, but that Respondent has not sustained its bur-
den that it would have taken this action against him even in
the absence of his Union or Board activity. Wright Line, 251
NLRB 1083 (1980). I therefore find that his termination was
caused by the pretextual warnings he received on about April
4, May 6, and June 15, and that the resulting termination
therefore violated Section 8(a)(1), (3), and (4) of the Act.
CONCLUSIONS OF LAW
1. The Respondent has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by pro-
mulgating a rule prohibiting the solicitation of union author-
ization cards at its facility.
4. Respondent violated Section 8(a)(1) of the Act by as-
signing security officers to engage in surveillance of its em-
ployees’ union activities between April 19 and 22, 1993.
5. Respondent violated Section 8(a)(1), (3), and (4) of the
Act by issuing written warnings to Joseph LaRussa on April
4, May 6, and June 15, 1993.
6. Respondent violated Section 8(a)(1), (3), and (4) of the
Act by terminating LaRussa on about June 18, 1993.
7. Respondent did not violate the Act as further alleged in
the complaint.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the policies of the Act.
As I have found that Respondent unlawfully issued written
warnings to LaRussa on April 4, May 6, and June 15, 1993,
I shall recommend that Respondent be ordered to remove
these warnings from its files and to notify LaRussa that this
has been done and that these warnings will not be used as
the basis for future action against him. As I have found that
Respondent unlawfully discharged LaRussa, I shall rec-
ommend that Respondent be ordered to offer him immediate
reinstatement to his former position of employment or, if that
position no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other privileges,
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130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Boards Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
7 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
National 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.’’
and to remove from its files any reference to the discharge.
It is also recommended that Respondent be ordered to make
LaRussa whole for any loss that he suffered as a result of
the discrimination against him, with interest. Backpay shall
be computed in accordance with F. W. Woolworth, 90 NLRB
289 (1950), and New Horizons for the Retarded, 283 NLRB
1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Parsippany Hotel Management Co., as
Agent for the Owner, Parsippany Hilton Hotel Joint Ven-
tures, Parsippany, New Jersey, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Promulgating a rule prohibiting the solicitation of
union authorization cards at its facility.
(b) Engaging in surveillance of its employees’ union ac-
tivities.
(c) Issuing warnings, terminating, or otherwise discriminat-
ing against its employees because of their union activities or
because of their participation at hearings of the National
Labor Relations Board.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act.
(a) Offer LaRussa immediate and full reinstatement to his
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to the warnings
issued on April 4, May 6, and June 15, 1993, and to
LaRussa’s termination on June 18, 1993, and notify him in
writing that this has been done and that evidence of this un-
lawful activity will not be used as a basis for future actions
against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facility in Parsippany, New Jersey copies of
the attached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
22, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately on re-
ceipt and shall be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to ensure that the notices are not al-
tered, 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 Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
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