Puerto Rico Sheaton Hotel

National Labor Relations Board - Board Decisions

Apr 1, 1980

248 N.L.R.B. 867 (N.L.R.B. 1980)

PUERTO RICO SHERATON HOTEL 867
Sheraton Puerto Rico Corp. d/b/a Puerto Rico
Sheraton Hotel and Luis R. Montanez, and
Francisco Acevedo Padilla. Cases 24-CA-3901
and 24-CA-3923
April 1, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On October 25, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
brief,' and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge, to modify his remedy, 3 and to adopt his
recommended Order, as modified herein.
We find in agreement with the Administrative
Law Judge that, in the circumstances of this case,
the drafting, signing, mailing, and distribution of
the letter of March 25, 1976, which complained
about General Manager Orenstein's operation of
the hotel and which was signed by admitted super-
visory employees as well as by other employees
and sent to Respondent's president, James, consti-
tuted legitimate concerted activity by employees
for mutual aid and protection within the meaning
of Section 7 of the Act, and that the discharge of
supervisory/managerial employees for their partici-
pation was also an 8(a)(1) violation because of the
natural tendency of these discharges to discourage
l Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions, and the brief adequately present the
issues and the positions of the parties.
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In his recommendations the Administrative Law Judge inadvertently
stated that the complaint should be dismissed insofar as it alleges that Re-
spondent prohibited "employees" from entering the hotel's public areas
because of their membership in and support for the Union. However, the
Administrative Law Judge's Decision specifically finds that Respondent
violated Sec. 8(aXI) by denying dischargees the right to enter the hotel's
public premises, as set forth in the Conclusions of Law. Inasmuch as we
agree that Respondent violated Sec. 8(aXl) by engaging in such conduct,
we have modified the Administrative Law Judge's recommended Order
and notice by adding the appropriate language thereto
I See Isis Plumbing & Heating Co., 138 NLRB 716 (1962), for rationale
on interest payments
248 NLRB No. 113
employees from exercising the rights guaranteed
them in said Section 7.
The record shows that memorandums to the
same effect from "Staff, Puerto Rico Sheraton"
complaining about working conditions under Oren-
stein had been sent on March 1 and 7. Concerning
Respondent's contention in its brief that the March
25 letter was initiated and dominated by supervi-
sors, we note that, as found by the Administrative
Law Judge, Manager Orenstein did not distinguish
as to supervisory or employee status among those
he discharged. His concern was with motivation of
the 23 signers (J. Exh. ): Did they in signing un-
derstand that the letter requested his discharge?
Orenstein viewed all those who so understood as
insubordinate in not bringing the matter to his at-
tention before going over his head, thus just cause
for dismissal. The discharges occurred April 11.
Manager Orenstein's April 20 letter to "All em-
ployees" reflects the same approach. The first para-
graph recalls the events of the previous week
"where several supervisory people were dis-
missed." However, no other reference to supervi-
sors is made in the 2-1/2 pages and Orenstein's
"one last comment" was that there is no truth to
"22 employees" having been discharged. Actually
the supervisory /managerial personnel discharged
numbered seven; the remaining four involved in
this complaint are two admitted employees, Bermu-
dez and Salvador, and two alleged supervisors
found not to be supervisors by the Administrative
Law Judge, Victor and Edgardo Pena. (The Ad-
ministrative Law Judge passed upon the latter issue
to avoid remand should the Board disagree with
his reasoning that the discharge of supervisors in
this case constituted an 8(a)(1) violation.)
Manager Orenstein's April 20 letter compared
the hotel to a ship and the need to eliminate the
crew if it creates a mutiny, thus, as the Administra-
tive Law Judge found, rather plainly warning that
repetition of the conduct would result in dismissal.
This letter was addressed "to all employees." It
emphasized that supervisors had recently been
"dismissed" for participation in the March 25
letter to higher management for criticizing local
management and implied that "all employees"
could anticipate a similar penalty for repetition of
such criticism. A threat of this sort, following dis-
charges of both employees and supervisors, cannot
reasonably be equated with holding unlawful every
termination of a supervisor who joins with employ-
ees in concerted activities. It is, in effect, an inde-
pendent action by the Employer reminding em-
ployees of what happened to the supervisors and
threatening employees with respect to their Section
7 rights. It is not an approach dependent on the
PUERTO RICO SHERATON H TEL
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer's state of mind, and, contrary to our col-
league, cannot be viewed as conferring upon super-
visors rights intended by the Act only for employ-
ees.
There is in addition Joint Exhibit 13, signed by
counsel for the General Counsel and for Respon-
dent, stipulating that "the reason for the discharge
of the 11 individuals named in the complaint" (em-
phasis supplied) was the signing of the March 25
letter, and that all 11 discharge letters were identi-
cal. Though the said letter was unquestionably in-
spired by supervisors, it covered working condi-
tions generally, and the basis for discharge used by
Respondent had nothing to do with supervisory
loyalty.Cf. United Painting Contractors, 184 NLRB
159, 163 (1970), where a panel of then-Member
Fanning and Members Brown, and Jenkins adopted
the dismissal by the Administrative Law Judge of
the 8(a)(1) violation as to a supervisor in a situation
where there was no followup threat by the em-
ployer, as here, that the fate of the supervisors
would befall employees if they engaged in similar
concerted activity in the future.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Sheraton Puerto Rico Corp. d/b/a Puerto Rico
Sheraton Hotel, San Juan, Puerto Rico, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as modi-
fied below:
1. Add to the end of paragraph l(c) the words
"and, prohibiting dischargees from entering the
hotel's public premises."
2. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER TRUESDALE, dissenting in part:
I agree with my colleagues that the Respondent
violated Section 8(a)(1) by discharging three em-
ployees because they signed the March 25, 1977,
letter which complained about working conditions
and suggested that most of the hotel's problems
could be alleviated by the replacement of' General
Manager Arnold Orenstein. 4
'Contrary to Respondent, the letter of March 27 involved a protest
against alleged discriminatory "working conditions," including promo-
However, for the reasons set forth more fully in
my partial dissent in Brothers Three Cabinets, 248
NLRB No.95 (1980), I do not agree with my col-
leagues' finding that Respondent violated Section
8(a)(1) of the Act by discharging Ramon Castro,
Angel Gutierrez, Armando Gutierrez, Amos
Langer, Francesco Acevedo Padilla, Rodrigo Ro-
driguez, and Joan Rodriguez, all of whom are con-
cededly managerial employees or supervisors
within the meaning of the Act.
Although supervisors were expressly excluded
from coverage under the statute by the Taft-Hart-
ley amendments in 1947, in certain circumstances,
none of which are present here, the discharge of a
supervisor may violate Section 8(a)(1) of the Act.
Thus, an employer may not discharge a supervisor
for giving testimony adverse to an employer's in-
terest at an NLRB proceedings or during the pro-
cessing of an employee's grievance under the col-
lective-bargaining agreement.6 Similarly, an em-
ployer may not discharge a supervisor for refusing
to commit unfair labor practices, 7 because the su-
pervisor fails to prevent unionization,8 or because
the supervisor warned a rank-and-file employee
that the employer was "building a case" against the
employee.9 In all these situations, however, the
protection afforded supervisors stems not from any
statutory provisions for supervisors, but rather
from the need to vindicate the employees' exercise
of their Section 7 rights.
In finding the discharge of seven supervisory/
managerial personnel for their role in the drafting,
signing, mailing, and distribution of the March 25,
tions, salary scales, etc. Since these are matters of legitimate concern to
employees, as well as supervisors, I agree with the majority that employ-
ees signing the March 25, 1977, letter were engaged in protected concert-
ed activity. In these circumstances, I do not deem it necessary to decide
whether concerted activity limited to the working conditions of supervi-
sors is protected. Similarly, since the March 25 letter clearly involves the
working conditions of employees, I do not find it necessary to determine
whether concerted activity restricted to an effort to secure the termina-
tion of a managerial employee is protected. Cf. Abilities and Goodwill. Inc.
v. N.L.R.B., 103 LRRM 2029 (Ist Cir., Dec. 18, 1979), denying enforce-
ment of 241 NLRB No. 5.
5 Better Monkey Grip Company, 115 NLRB 1170 (1956), enfd. 243 F.2d
836 (5th Cir. 1957); Modern Linen & Laundry Service, Inc., 116 NLRB
1974 (1956); Dal-Tex Optical Company, Inc., 131 NLRB 715, 730--731
(1961), enfd. 310 F.2d 58 (5th Cir. 1962); Oil City Brass Works, 147
NLRB 627 (1964), enfd. 357 F.2d 466 (5th Cir. 1966); Leas & McVitty.
Incorporated, 155 NLRB 389 (1965), enforcement denied 384 F.2d 165
(4th Cir. 1967).
6 Ebasco Services, Incorporated, 181 NLRB 768 (1970); Rohr Industries,
Inc., 220 NLRB 1029 (1975).
7 Vail Manufacturing Company, 61 NLRB 181 (1945), enfd. 158 F.2d
664, 666-667 (7th Cir. 1947); Inter-City Advertising Co. of Greensboro,
North Carolina. Inc., 89 NLRB 1103 (1950), modified 190 F.2d 420 (4th
Cir. 1951); General Engineering, Inc., 131 NLRB 648 (1961), modified 311
F.2d 570, 573-574 (9th Cir. 1962); Jackson Tile Mfg. Co., 172 NLRB 764
(1968); Miami Coca-Cola Bottling, d/b/a Key West Coca-Cola Bottling Co.,
140 NLRB 1359 (1963).
" Talladega Cotton Factory, Inc., 106 NLRB 295 (1953), enfd. 213 F.2d
209, 215-217 (5th Cir. 1954).
9 Buddies Super Markets, 223 NLRB 950 (1976), enforcement denied
550 F.2d 39 (5th Cir. 1977).
PUERTO RICO SHERATON HOTEL 869
1977, letter violated the Act, the majority relies on:
(1) the Respondent's failure to "distinguish as to su-
pervisory or employee status" among those dis-
charged and; (2) the fact that "the basis for dis-
charge used by the Respondent had nothing to do
with supervisory loyalty." In my judgment, neither
factor warrants a finding that the discharge of su-
pervisory/managerial personnel interfered with the
ability of employees to exercise their Section 7
rights. As was true in Brothers Three Cabinets,
supra, the majority proceeds from a general prem-
ise that supervisors (or managerial employees) who
join rank-and-file employees in participating in
what is otherwise protected activity and are sub-
jected to the same treatment meted out to employ-
ees somehow share the Act's protection which ex-
tends to employees. No matter how appealing from
an equitable standpoint, this premise is wrong. For
the simple fact is that employees, but not supervisors,
are protected against discharge for engaging in
union or concerted activity. And it makes no dif-
ference whether the supervisors engage in union or
concerted activity by themselves or with employ-
ees or whether an employer's action against super-
visors is motivated by disloyalty on the part of the
supervisors. Contrary to the majority, coverage
under the Act cannot be conferred or revoked by
this Board based on an employer's subjective state
of mind. Accordingly, I dissent from the majority's
finding that the Respondent's discharge of seven
supervisors or managerial employees violated the
Act. o
10 To the extent that Respondent's April 20 letter conveys an unlawful
threat to rank-and-file employees, that can be remedied by requiring Re-
spondent to post an appropriate notice. In the same way, the extent to
which the Act protects employees (but not supervisors) can be conveyed
by the Board's traditional remedy of reinstatement with backpay. This
remedy is neither enhanced nor diminished by the failure to reinstate the
supervisors involved herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, the Board has found that we un-
lawfully discharged employees in violation of the
National Labor Relations Act. It has ordered us to
stop doing so, to reinstate the discharged persons
to their jobs with full backpay, and to notify all
employees that we will do as the Board ordered.
We therefore notify you that:
WE WILL NOT threaten, discharge, or disci-
pline any employee or other person , or other-
wise discriminate against him, because employ-
ees have participated in bringing to the atten-
tion of the company president, or others in the
Company, any grievances an employee may
have, or because employees have engaged in
concerted activities for mutual aid or protec-
tion.
WE WILL NOT interrogate employees con-
cerning their participation in, sympathy for, or
knowledge of concerted employee activities
for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT prohibit dischargees from en-
tering the hotel's public premises.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to self-organization,
to form labor organizations, to bargain collec-
tively through representatives of their own
choosing, to engage in concerted activities for
the purpose of collective bargaining or other
mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer Carmen Bermudez, Ramon
Castro, Angel Gutierrez, Armando Gutierrez,
Amos Langer, Francisco Acevedo Padilla, Ed-
gardo Pena, Victor Pena, Joan Rodriguez, Ro-
drigo Rodriguez, and Bonnie Salvador imme-
diate and full reinstatement to their former
jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any financial losses suf-
fered by reason of their unlawful discharge,
with interest.
All of our employees are free to engage in, or to
refrain from engaging in, concerted activity for the
purpose of collective bargaining or other mutual
aid or protection.
SHERATON PUERTO RIco CORP. D/B/
A PUERTO RICO SHERATON HOTEL
DECISION
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge:
On October 4, 1977, Luis R. Montanez, in Case 24-CA-
3901, and on November 23, 1977, Francisco Acevedo
Padilla, in Case 24-CA-3923, filed unfair labor practice
charges against Sheraton Puerto Rico Corp. d/b/a
Puerto Rico Sheraton Hotel, herein referred to as the
Respondent, alleging commission by the Respondent of
unfair labor practices in violation of Section 8(a)(l) and
(3) of the National Labor Relations Act, as amended (29
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
U.S.C. §151, et seq.). On December 30, 1977,1 the Acting
Regional Director issued an order consolidating the
cases, accompanied by a complaint and notice of hearing.
Service of the charges, the order, and the complaint and
notice of hearing was duly made on the Respondent.
The complaint alleged, in sum, that the Respondent, in
violation of Section 8(a)(1) and (3) of the Act, dis-
charged a number of employees (identified hereafter), in-
terrogated employees concerning their protected con-
certed activities, threatened employees with discharge if
they engaged in such activities, illegally promised bene-
fits to its employees, created the impression that it was
engaging in surveillance of its employees' concerted ac-
tivities, and otherwise interfered with, restrained, and co-
erced its employees in the exercise of protected concert-
ed activities. The Respondent duly filed, and thereafter
amended, its answer denying the commission of unfair
labor practices.
Pursuant to notice, a hearing was held in Hato Rey,
Puerto Rico, on February 27 and 28, 1978. The General
Counsel, the Respondent, and the Charging Party ap-
peared and were represented by counsel. All parties
were afforded full opportunity to be heard, to introduce
and to meet material evidence, to examine and cross-ex-
amine witnesses, to present oral argument, and to file
briefs. Briefs were filed by the Respondent and the Gen-
eral Counsel on May 4 and 6, 1978, respectively, and
have been considered.2
Upon consideration of the entire record and the briefs,
and from my observation of the witnesses and their de-
meanor, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Sheraton Puerto Rico Corp. is and has been at all
times material herein a corporation duly organized under
and existing by virtue of the laws of the State of Dela-
ware. At all times material herein, Sheraton Puerto Rico
Corp. has maintained its principal place of business,
Puerto Rico Sheraton Hotel, and offices at 1309 Ashford
Avenue, San Juan, Puerto Rico, where it is, and has been
at all times material herein, continuously engaged in pro-
viding hotel and related services.
During the year 1976, which period is representative
of its annual operations generally, the Respondent de-
rived gross revenues in excess of $500,000 from its hotel
operations and, during the same period, purchased and
caused to be transported and delivered to its hotel goods
and material valued in excess of $50,000, of which goods
and materials valued in excess of $50,000 were transport-
ed and delivered to its hotel in interstate commerce di-
Unless otherwise indicated all dates herein refer to 1977.
2 Among other defenses, the Respondent asserts that the charge filed
in Case 24-CA-3923 is barred by the 6-month statute of limitations in
Sec. 10(b) of the Act. That contention is rejected on the authority of the
following cases, among others: Gaynor News Company, Inc. v. NL.R.B.,
347 U.S. 17, 34, fn. 30 (1954); N.L.R.B. v. Fant Milling Company, 360
U.S. 301 (1959); N.L.R.B. v. Kohler Company, 220 F.2d 3 (7th Cir. 1955);
Texas Industries, Inc, v. N.LR.B., 336 F.2d 128 (5th Cir. 1964); Stainless
Steel Products, Incorporated, 157 NLRB 232 (1966); Exber Inc. d/b/a El
Cortex Hotel v. N.L.R.B., 390 F.2d 127 (9th Cir. 1968).
rectly from points located outside the Commonwealth of
Puerto Rico.
Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Summary and Contentions
The bulk of the Respondent's nonsupervisory employ-
ees at the Puerto Rico Sheraton Hotel comprise a collec-
tive-bargaining unit represented, pursuant to contract, by
Local 901 of the International Brotherhood of Team-
sters. Since 1970, the Respondent's guards have been
represented by various labor organizations. The instant
case involves certain personnel of the hotel not within
any collective-bargaining unit, and who have no collec-
tive-bargaining representative, being principally adminis-
trative and office clerical employees, and some supervi-
sors and managerial personnel.
On or about March 25, 22 of those nonrepresented
persons (referred to in the record as nonunion employ-
ees) signed a letter addressed to Mr. Howard P. James,
chairman and president of the Sheraton Corporation, in
Boston, Massachusetts, complaining about working con-
ditions at the hotel, and suggesting that most of those
problems could be alleviated by replacing Mr. Arnold
Orenstein, the resident general manager of the hotel. In
due course, 13 of those persons were discharged by the
Respondent, admittedly because they had signed the
letter. Of the 13, 11 are complainants here.3 Nine of the
signatories were not discharged, for reasons disclosed
hereafter.
The General Counsel contends that the discharges of
the 11 complainants constituted interference with con-
certed activity protected by the Act. The Respondent
contends that the terminations were for cause, and that
the activity was unprotected.
The basic issue is thus whether the signing and sending
of the letter is a protected activity.
Six of the complainants are conceded to be supervisors
or managers, and thus not employees within the meaning
of the Act (Roman Castro, credit manager; Angel Gu-
tierrez, guest service manager; Armando Gutierrez, ex-
ecutive assistant manager; Amos Langer, headwaiter;
Francisco Acevedo Padilla, guest service manager; and
Joan Rodriguez, reservations manager). As to hese, the
General Counsel's position, denied by the Respondent, is
that, although they have no plenary rights under the
Act, their discharges tended to discourage employees in
the exercise of statutory rights, hence the terminations
were unlawful.
The Respondent contends, and the General Counsel
denies, that three other of the complainants were also su-
pervisors or managers (Rodrigo Rodriguez, Victor Pena,
and Edgardo Pena).
The General Counsel further contends that the Re-
spondent also violated the Act by interrogating and
3 Carmen Bermudez, Raman Castro, Angel Gutierrez, Armando Gu-
tierrez, Amos Langer, Francisco Aevedo Padilla, Edgardo Pena, Victor
Pena, Joan Rodriguez, Rodrigo Rodriguez, and Bonnie Salvador (identi-
fied in the transcript as Bonnie Salvador Miwlican).
PUERTO RICO SHERATON HOTEL 871
threatening employees, creating the impression of sur-
veillance, impliedly promising benefits, and otherwise in-
terfering with, restraining, and coercing employees in the
exercise of rights guaranteed them under Section 7 of the
Act. The Respondent denies these allegations.
There have been no meritorious unfair labor practice
charges involving the Respondent in the past.
B. The Precipitating Events
1. The March 1 and 7 anonymous letters
Arnold Orenstein was named general manager of the
Puerto Rico Sheraton in August 1974, at a time when
the hotel was failing and had accumulated losses approxi-
mating $1 million. By dint of reorganizing operations,
slashing payroll and other expenses, and intensifying pro-
motion efforts, Orenstein turned the operation around,
and in 1977 reported a profit of S1.2 million-the first in
8 years. However, this success was not, apparently, with-
out some effect on employee morale.
In early March 1977, two anonymous letters purport-
ing to come from "The Staff" of the hotel were received
by Sheraton Corporation's president, Howard P. James,
at corporate headquarters in Boston, Massachusetts. The
first letter, dated March 1, described General Manager
Orenstein as a "dictator" who talked down to employ-
ees, rejected suggestions, and was inaccessible. The letter
also stated that, unless Orenstein was replaced by March
31, there would be "a big problem" at the hotel. The
letter further said that, as soon as Orenstein learned
about the letter, he would begin firing employees, which
would result in "BIG TROUBLE" for Orenstein and for
the hotel. The letter concluded with the statement that
there were qualified Puerto Ricans who, with training,
would make good general managers.
The second letter, dated March 7 and also addressed
to President James, complained of apparent favoritism by
Orenstein toward certain employees and improper treat-
ment of others, and accused Orenstein of tolerating in-
competent supervision in the office staff. It, too, de-
scribed Orenstein as a "dictator" and termed him "an
abuser of employees." The letter concluded with the
statement that, unless something was done, there would
be "big problems and difficulties here."
Copies of these letters were distributed to the various
departments of the hotel through the hotel's internal mail
system.
Thereafter, General Manager Orenstein received a
report suggesting that he and his son might be physically
attacked. The Respondent then hired several unarmed
guards for the protection of Manager Orenstein, his son,
and the hotel's communication equipment.
2. The March 25 letter
Shortly after the second anonymous letter had been
distributed, four persons, Rodrigo Rodriguez, Raman
Castro, Armando Gutierrez, and Fofito Vazquez, 4 met
and discussed the two letters. The quartet concluded that
the letters were enlightening, but that the threats con-
tained in them deprived the letters of credibility. They
4 Vazquez is not a complainant.
decided to draft another letter to Boston headquarters,
this time to be signed by employees, with the purpose of
securing improvements in management and administra-
tive policies and working conditions. They retained an
attorney, Luis Montanez, who advised them concerning
the letter. It was decided to form an association, and the
same four individuals were designated as a steering com-
mittee to act on any responses from management to the
letter. Thereafter, with the assistance of Joan Rodriguez
(the wife of Rodrigo), and Angel Gutierrez, the letter
was drafted.
On the following day, March 25, a meeting was held
at the residence of Fofito Vazquez, with Attorney Mon-
tanez in attendance, for all nonunion employees to read
and discuss the letter, and to sign it if they desired. Ulti-
mately, 22 signatures were secured on a four-page docu-
ment in quadruplicate. Four of the signatures are at the
foot of the last page (Ramon Castro, Fofito Vazquez,
Rodrigo Rodriguez, and Armando Gutierrez); the re-
mainder were on an accompanying piece of paper, blank
except for the signatures.5 On March 29, signed copies
of the letter were mailed to President James and three
other corporate executives. e
The letter, couched in moderate language, opened
with the statement that its purpose was to inform Presi-
dent James "about the reality of the working conditions
at the Puerto Rico Sheraton." It then referred to the fi-
nancial problems which the hotel had experienced, and
noted that losses had been greatly reduced due to a
number of factors, among them economic, promotional,
climatological, "main office efforts to increase working
conditions," and individual effort of the staff. However,
it continued, greater improvement was possible. It then
listed a number of "problem areas" hindering improve-
ment, which it ascribed to the "lack of knowledge, tact
and professionalism" of General Manager Orenstein.
Among these it enumerated various managerial policies
related to efficient and businesslike operations which
were thought to be deficient, as well as discriminatory
and "precarious working conditions . . . promotions, sa-
larie [sic] scales . . . company car, expense account,
room and board." The letter expressed a belief that the
chances of business improvement "are indefinite if the
General Manager is substituted for someone who could
bring up everybody's morale and sprit [sic] de corp."
The letter concluded with the statement that,
Good Human Relations go hand in hand with Pro-
ductibility and Profitability. They are your insur-
ance policy for a good working organization which
we all want and deserve.
All signatures except one, that of Anita Fisher, secretary of Joan Ro-
driguez, were the genuine signatures of the individuals. Fisher, who was
then in the hospital, orally authorized Joan Rodriguez to have Fisher's
name appended. Rodriguez later advised Anita Fisher to inform the Re-
spondent that the signature on the letter was not hers-which was literal-
ly true. Fisher did tell Resident Manager John Seath that it was not her
signature, the Respondent made a comparison, and she was not dis-
charged.
e Rodger Senter, senior vice president of human relations for Sheraton
Corporation; Richard Barger, director of operations, Northeast Region
Sheraton Corporation; and the Equal Employment Opportunity head-
quarters of International Telephone and Telegraph Corporation (Shera-
ton's parent corporation) in New York City.
PUERTO RICO SHERATON HOTEL
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoping that the letter receives the importance it
deserves.
We remain
General Manager Orenstein's testimony is that, before
the letter reached continental destinations, he was ad-
vised of its existence and told that several persons had
solicited signatures of employees on a blank piece of
paper with the representation that it would be attached
to a petition asking Manager Orenstein for a meeting to
request improved working conditions for nonunion em-
ployees. General Manager Orenstein then contacted Op-
erations Director Barger and asked Barger to send him a
copy of the letter when it arrived. During this conversa-
tion, Orenstein and Barger decided that the employees
who had signed the letter with knowledge of its contents
should be discharged. That knowledge was deemed es-
tablished as to the four who signed at the foot of the
letter. With respect to those who signed the blank sheet
of paper, Orenstein decided to question them, before
taking final action, to determine whether they were
aware of what they had signed.
Upon receiving a copy of the letter from Boston, in
early April, General Manager Orenstein and Personnel
Director Perez identified the signatures and proceeded to
call in the available signatories, either for discharge or
for questioning as to their understanding of the contents
of the letter.
There is no evidence, or allegation, that any of the
complainants who were responsible for the March 25
letter were connected with the authorship or distribution
of the anonymous letters. All who testified about the
matter denied it.'
C. The Terminations
I. Joan and Rodrigo Rodriguez, Armando
Gutierrez, Ramon Castro, and Fofito Vazquez
On the morning of April 11, shortly after 8 a.m., Ro-
drigo Rodriguez, Joan Rodriguez, Armando Gutierrez,
and Ramon Castro were escorted by supervisors to the
office of Personnel Director Marco A. Perez, who told
them that they were discharged, effective immediately.
Each was given a dismissal notice to which was attached
a copy of the March 23 letter, told never to return to the
hotel premises, and escorted from the grounds;. To the
extent material, the dismissal notice was in the Following
form:
SUBJECT: DISMISSAL-EFFECTIVE IMMEDIATELY
With reference to the attached you have violated
the following rules and regulations of employment
here and are hereby relieved of your position:
In a memorandum to employees from General Manager Orenstein
dated April 20, there appears to be a suggestion that the "group of
people behind" the anonymous letters was also responsible for the March
25 letter. No individuals were identified. There is no sucl contention
here.
I-Rule 17-Avoid any conspiracy against our
hotel's reputation, service, and reputation of our
officers.
2-Rule 4-Cause of dismissal-Insubordination,
refusal or intentional failure to perform work as-
signed, etc.
Your final wages and accrued vacation pay will be
provided as soon as clearance papers are pro-
cessed. 8
Vazquez, who is not a discriminatee, was discharged
at or about the same time. As Personnel Director Perez
was discharging the Rodriguezes, et al., Vazquez came
into the office. Though on vacation, Vazquez had come
to the hotel concerning a money claim by him which the
Respondent disputed. Vazquez was angry and upset over
the matter, and he and Perez exchanged hot words. One
or both of the Rodriguezes succeeded in calming him
down, and Perez then gave Vazquez his discharge.
Perez' testimony, denied by the Rodriguezes and Ar-
mando Gutierrez (Castro did not testify concerning the
incident), was that Vazquez said that he would "kill"
Orenstein. It is conceded that Vazquez' anger was over
the money matter, and not his discharge. It is unneces-
sary to resolve the conflict.
2. Victor Pena, Bonnie Salvador, Carmen
Bermudez, and Francisco Acevedo Padilla
Later the same morning, April 11, these persons, along
with the remainder of the employees who had signed the
March 25 letter, and who were at work that morning,
were summoned to the hotel penthouse. There they
found General Manager Orenstein, flanked by one of the
newly hired unarmed guards in civilian clothes, but
whose identity was then unknown to the employees. As
each employee entered the penthouse he or she was
asked to wait in the back of the room.
One at a time, the employees were called to General
Manager Orenstein's desk in another part of the room. In
each of these private meetings the employee was asked if
he or she signed the letter and, if so, whether he knew
that by signing he had asked for Orenstein's discharge.
In addition, some employees were asked related ques-
tions as to why they had signed the letter. All the com-
plainants admitted that they knew that the letter request-
ed the discharge. After the interview, each employee
went back to his job. Instructions were then issued to
discharge all persons who had admitted that they knew
that the letter requested Manager Orenstein's discharge.
Those who stated in the interviews that they did not so
understand were retained. The reason for this distinction,
as General Manager Orenstein testified, was that the
latter group,
. . . apparently . . . had been misled into signing
the letter with statements that they were signing a
The Rodriguezes, husband and wife, were discharged together.
There is dispute as to whether Castro and Gutierrez were discharged sep-
arately, and one at a time, or whether all four persons were discharged in
a group. There is also disagreement as to whether Food and Beverage
Manager Michael Balazs was present at the discharges. It is unnecessary
to decide either dispute.
PUERTO RICO SHERATON HOTEL 873
petition to me to have a meeting to ask for im-
proved working conditions.
Later that afternoon, Victor Pena, Bonnie Salvador,
Carmen Bermudez, and Francisco Acevedo Padilla were
called to Personnel Director Perez' office, where Perez
informed each individually that he was discharged. Each
dischargee was given a dismissal notice similar to that
given to Castro and the others earlier in the day, along
with a copy of the March 25 letter.
3. Edgardo Pena, Angel Gutierrez, Amos Langer
These complainants were not at work on April 11.
They were among those whose signatures were on the
blank page. Nevertheless, they were discharged without
inquiry as to whether they had signed the letter, or un-
derstood its significance. Dismissal notices and a copy of
the letter were mailed to Gutierrez and Langer.
Edgardo Pena did not work on April 11, and was on
sick leave from April 12 to April 18. When he reported
to work on April 18, he was called to Personnel Direc-
tor Perez' office, told that he was discharged for signing
the letter, and directed never to return to the hotel
premises. Apparently no inquiry was made by Perez as
to whether Pena signed the letter, or the circumstances.
General Manager Orenstein's testimonial explanation
for the summary dismissals of Gutierrez and Langer is
that he was informed by other employees that the two
had solicited signatures for the March 25 letter. He fur-
ther testified that, in view of their absence after April 11,
he assumed that they understood that they had been dis-
charged. The record contains no explanation for the fail-
ure to ask Victor Pena whether he had signed the letter.
D. The Reasonsfor the Discharges
The Respondent's stated reasons for the discharges are
given at a number of places in the record. Thus, the par-
ties stipulated that the reason was "their signing of their
names on the March 25, 1977, letter and the contents
thereof." The dismissal notices specify as grounds viola-
tion of company rules, specifically Rule 17-"conspiracy
against our hotel's reputation, service, and reputation of
our officers," and Rule 4-"Insubordination, refusal or in-
tentional failure to perform work assigned, etc." As we
have seen, General Manager Orenstein's testimony is that
the reason was the signing of the March 25 letter with
knowledge that it requested his discharge. A memoran-
dum from General Manager Orenstein to employees
dated April 20, 1977, states that the action of the com-
plainants in writing to President James rather than bring-
ing their complaints to Orenstein was "insubordination,"
and "just cause for dismissal."
There is no evidence that any complainant refused or
failed to perform work assigned. The "conspiracy" thus
apparently consists of the allegations in the March 25
letter respecting General Manager Orenstein. The
grounds for the discharges then resolve themselves into
the allegations against Orenstein, and the "insubordina-
tion" reflected in bypassing Orenstein, and carrying the
employees' grievances directly to President James.
E. Whether the March 25 Letter Constituted Protected
Concerted Activity by Employees
The General Counsel contends that the March 25
letter constituted activity protected by Section 7 of the
Act. The Respondent's contention is that the conduct
was unprotected. There appears to be no issue as to
whether the activity was concerted, or whether it stated,
at least in part, grievances or complaints as to conditions
of employment. In any event, the action was plainly con-
certed. That it involved conditions of employment ap-
pears from its opening statement that its purpose was to
inform President James about "the reality of working
conditions at the Puerto Rico Sheraton." The letter then
goes on to allege discriminatory wage scales and other
employment benefits. These are all matters involving
terms and conditions of employment, and mutual aid and
protection of employees. The testimony of Joan and Ro-
drigo Rodriguez and Ramon Castro, which I credit, is
that the purpose of the letter was to make management
aware of its problems, and try to obtain improvements in
working conditions. That the complainants considered
General Manager Orenstein and his policies responsible
for those grievances, or that the remedy suggested
should encompass his removal, did not alter the charac-
ter of the complaints-they still continued to be griev-
ances about conditions of employment. They were thus
proper subjects of appeal to management for redress-a
premise implicitly recognized in General Manager Oren-
stein's objection in his April 20 memorandum that they
should have been addressed to him, and not to President
James. Though contractual or grievance procedures may
require definite modes of approach (and there is none
such here) there is no general rule of law of which I am
aware that prescribes, under penalty of discharge, to
whom employment grievances shall be directed. Statu-
tory rights are not dependent upon canons of protocol.
Publicly criticizing, by means of a leaflet, the actions
of a supervisor in the performance of his supervisory
duties is not intrinsically improper. As the Court of Ap-
peals for the Seventh Circuit said in Dreis & Krump
Manufacturing Company, Inc. v. N.L.R.B., 544 F.2d 320,
327 (1976):
A protest arising from allegedly improper supervi-
sory conduct furthers the "mutual aid or protec-
tion" of the employees ....
See also American Hospital Association, 230 NLRB 54, 55
(1977):
. . .an employer may not prescribe, to the exclu-
sion of all other lawful means, the method by which
employees may engage in concerted activity for
their mutual aid and protection.
A concerted attempt by employees to secure the dis-
charge of a supervisor whom they considered unqualified
is proper (N.L.R.B. v. Guernsey-Muskingum Electric Co-
operative, Inc., 285 F.2d 8 (6th Cir. 1960); Dobbs Houses,
Inc. v. N.L.R.B., 325 F.2d 531, 538-539 (5th Cir. 1963)
(enforcement denied on other grounds). Since General
Manager Orenstein had a responsibility in the establish-
ment and maintenance of working conditions of the com-
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plainants, no ground is apparent to distinguish between
him and other types of supervisors on the basis of their
position in the managerial hierarchy. System Analyzer
Corp., 171 NLRB 45, 49 (1968). I therefore find that an
object of the March 25 letter was the betterment of
working conditions of employees.
Concerted activity loses its protected character under
certain circumstances. Cases so holding are summarized
in American Hospital Association, supra at 56, as involving
conduct of the following nature: serious, offensive, de-
famatory, flagrant, egregious, violent, extreme, r oppro-
brious, malice, deliberate intention to falsify, bad faith,
improper motives, deliberate and malicious falsehood,
malicious opposition, offensive, obscene, or obnoxious
language. See also Dreis & Krump, supra.
None of the conduct of the complainants here reflects
any such disqualifying factors. The means employed was
legitimate; the language used was moderate in tone; the
arguments were pitched on a rational, and not a vitu-
perative, level-in words of persuasion and not of coer-
cion, intimidation, or vilification. Though expressing un-
happiness with General Manager Orenstein, and suggest-
ing his removal, the demands do not reflect insubordina-
tion. The message, though not flattering to Orenstein,
was not insolent or inflammatory or opprobriously cast.
The characterizations of Orenstein appear to be well
within the area of fair comment, and relevant to the le-
gitimate mission of the letter. Whether they were accu-
rate is not a matter for determination here, and is a ques-
tion on which I do not pass. Whatever their truth, they
apparently represented the genuine beliefs of employees.
No reason is evident to question the good faith of the
signatories or the complainants, and there is no apparent
basis for inferring that they were actuated by malice.
The letter evinced no intent to harm the hotel or its op-
erations. On the contrary, the basic concern expressed
was for the welfare of the hotel and its continued viabil-
ity. The statute requires an appropriate statement of
cause, not a warranty as to its merit. In sum, the letter
appears clearly within the protected area of employee
activity. That General Manager Orenstein may have, as
his testimony and other evidence of the Respondent sug-
gest, made all reasonable attempt in the circumstances to
provide appropriate working conditions and benefits for
the staff is not controlling. The complainants felt other-
wise, and their view is not patently frivolous."
The Respondent relies on two court decisons in sup-
port of its contention that the activity was unprotected:
Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th
Cir. 1949); and N.L.R.B. v. Red Top, Inc., 455 F.2d 721
(8th Cir. 1972). Neither decision seems apposite here.
In Joanna Cotton Mills, a supervisor, on orders from
his superior, warned an employee regarding the oper-
ation of gambling devices on the company's, premises,
and loitering about a woman employee while she was
working. The employee responded with harsh, insulting,
and insubordinate language. Later the employee, out of
personal resentment of the supervisor and the warning,
circulated a petition among employees asking for the su-
I See, generally, Great Lakes Steel, Division of National Steel Corpora-
tion, 236 NLRB 1033 (1978).
pervisor's discharge. The employee was discharged for
that action. A minority of the Board, and the court,
found the circulation of the petition an unprotected ac-
tivity, deeming it a continuation of the employee's prior
insubordinate and defiant conduct. No complainant here
engaged in any comparable action.
In the Red Top case, the Board's Trial Examiner, re-
versed by the Board, found the conduct of the employ-
ees involved to be unprotected. The court of appeals re-
versed the Board and reinstated the conclusion of the
Trial Examiner. The court, in sum, found that the em-
ployees had sought for wrongful motives and in bad
faith-namely, as a cover for their improper performance
of duties-to cause the replacement of the employer's
manager by the use of insolent, insubordinate, harassing,
and intimidating language and conduct, false charges,
threats of physical violence, and activity detrimental to
the business. No conduct reasonably construable as of
that nature occurred here.
It is found that the drafting, signing, mailing, and dis-
tribution of the letter of March 25 constituted a legiti-
mate concerted activity by employees for mutual aid and
protection within the meaning of Section 7 of the Act.
It is further found that the Respondent violated Sec-
tion 8(a)(l) of the Act by discharging employees Carmen
Bermudez and Bonnie Salvador for their participation in
that concerted activity. The remaining cases are disposed
of infra.
F. Whether the Discharge of the Supervisors Violated
Section 8(a)(1) of the Act
As has been seen supra, six of the complainants,
Castro, Angel Gutierrez, Armando Gutierrez, Langer,
Padilla, and Joan Rodriguez, were admittedly supervi-
sors or agents of the Respondent (referred to herein
jointly as supervisors). The General Counsel's position,
contested by the Respondent, is that, although the six are
not employees under the Act and thus are not protected
by its provisions, their discharge tended to discourage
employees in the exercise of their statutory right to
engage in the letter-writing activity, and hence the termi-
nations of the supervisors were unlawful, as they consti-
tuted a restraint on the employees' rights.
The discharge of a supervisor is an unfair labor prac-
tice when the discharge is (1) an integral part of a pat-
tern of conduct aimed at penalizing employees for-union
or concerted activities or (2) is intended or has the ten-
dency to discourage such activity among employees,
rather than a concern that the person, qua supervisor,
had engaged in the activities.'0
The tendency test was thus stated by Administrative
Law Judge Sherman in General Nutrition Center:
10 See Barnes and Noble Bookstores, Inc., 233 NLRB 1326, 1343, fn. 18
(1977) (dictum); General Nutrition Center Inc., 221 NLRB 850, 858-859
(1975); Fairview Nursing Home, 202 NLRB 318, fn. 34 (1973), enfd. 486
F.2d 1400 (5th Cir. 1973), cert. denied 419 U.S. 827 (1974); Krebs and
King Toyota, Inc., 197 NLRB 462, fn. 4 (1972); Heck's Inc., 170 NLRB
178 (1968), enfd. as modified 418 F.2d 1177 (D.C. Cir. 1969); Pioneer
Drilling Co., Inc., 162 NLRB 918, 923 (1967), enfd. as modified 391 F.2d
961 (10th Cir. 1968); c. Sibilio's Golden Grill., Inc., 227 NLRB 1688
(1977); Long Beach Youth Center. Inc., a/k/a Long Beach Youth Home
(formerly Trailback, Inc.), 230 NLRB 648 (1977).
-------
PUERTO RICO SHERATON HOTEL 875
[T]he discharge of or other reprisals directed
against a supervisor for engaging in conduct pro-
tected in an employee violates Section 8(a)(1) of the
Act if (1) under all the circumstances, such punish-
ment tends to lead rank-and-file employees reason-
ably to fear that the employer will punish them for
engaging in like conduct; and (2) the employer has
failed to take reasonable and timely steps to reassure
his rank-and-file employees that they will not be
punished for such conduct. [221 NLRB at 859.]
It seems clear that the vice which the Respondent
found in the supervisors' conduct was their joinder as in-
dividuals in the March 25 letter, and not their joinder
qua supervisors. Thus, General Manager Orenstein's test
of eligibility for discharge was the individual's knowing
participation in the activity, not his status. The dis-
charges had the intent of discouraging the activity, not
alone by supervisors, but by all employees-a discour-
agement, as we have seen, not permitted by the Act in
the case of employees. In such a circumstance, the dis-
charge of the supervisors was an integral part of the Re-
spondent's unlawful attempt to curb the rights of em-
ployees under the Act. The supervisory discharges em-
phasized to the rank-and-file employees the determina-
tion of the Respondent to curb the exercise of their statu-
tory rights. The relation of those discharges to the Re-
spondent's broad purpose was reemphasized in General
Manager Orenstein's memorandum of April 20 addressed
to "All employees," in which he defended the April 11
discharges. The opening paragraph of that memorandum
states:
Many of you are aware of the events of last week
where several supervisory people were dismissed.
The memorandum reiterated the Respondent's justifica-
tion for the discharges, and rather plainly warned that
repetition of the conduct would result in dismissal. '
The remaining employees were thus advised that the
supervisors, as well as rank-and-file employees, had been
discharged because of their joinder in the letter. In these
circumstances, the natural tendency of the discharge of
the supervisors was to discourage employees from exer-
cising the rights guaranteed them in Section 7 of the
Act. Consequently, the discharges of Ramon Castro,
Angel Gutierrez, Armando Gutierrez, Amos Langer,
Francisco Acevedo Padilla, and Joan Rodriguez consti-
tuted violations of Section 8(a)(1) of the Act.
" Thus, the memorandum said, in part:
A hotel is like a ship. There is only one captain. If some of the crew
creates a mutiny they have to be eliminated before the ship sinks.
You can also compare this to cancer. If someone has it you operate
on it before the patient dies.
. . these people [the dischargees] did not see fit to come to me
with their complaint but rather wrote to our President to demand
my removal. This constitutes insubordination and is just cause for
dismissal.
G. The Supervisory Status of Victor Pena, Edgardo
Pena, and Rodrigo Rodriguez
The Respondent contests the employee status of these
three persons. Since, under the rationale in section F, the
discharges of supervisory employees have been found to
have been unlawful, it is unnecessary for a disposition of
the case to determine the status of the Penas and Rodri-
guez. However, the Board may disagree with the legal
conclusion reached in section F. For that reason, and in
order to avoid the delay involved in a remand, it appears
appropriate to decide the issue as to these individuals.
1. Victor Pena
The Respondent's answer denies that Victor Pena is an
employee, and asserts that he is an agent or supervisor.
Pena testified as a witness for the General Counsel, both
as to the circumstances of his discharge and as to his
duties, and denied that he exercised any supervisory au-
thority. He was cross-examined by the Respondent, but
not as to his duties or his authority. The issue is not dis-
cussed in the Respondent's brief. The Respondent intro-
duced no evidence respecting Victor Pena's duties or su-
pervisory authority. The following findings as to Pena
are therefore based on his uncontradicted testimony,
which is credited, and on documentary evidence.
Victor Pena is listed on the Respondent's payroll as a
food clerk. He is paid a weekly wage of $136 for 40
hours, with time and a half for the first 4 hours of over-
time and double time thereafter. He is supervised by
Sergio Morales, assistant controller, and Michael Balazs,
food and beverage manager.
Pena maintains the food and beverage inventories in
the Respondent's storerooms, and records as to additions
to and draws upon such inventories. As articles are re-
quisitioned from storage, Pena verifies the source of the
requisition, the item, its cost, the quantity and the desti-
nation, and posts the transactions in the Respondent's re-
cords. Reports as to these transactions, and the gross and
net profit involved, are sent daily to various departments
of the hotel. Each month inventory is taken by a group
including Pena, two clerks, and a person from the ac-
counting office. Pena does not supervise any of these em-
ployees, and does no purchasing for the Respondent.
On the basis of these facts, it is found that Victor Pena
is an employee of the Respondent, and not a supervisor
or agent within the meaning of Section 2(11) of the Act.
2. Edgardo Pena
For the 10 months prior to his discharge, Edgardo
Pena was supervisor in the engineering (maintenance) de-
partment. Before that, Pena had been an electrician in
the engineering department, working a 40-hour, 5-day
week at $3.05 an hour, with time and a half for overtime
in excess of 40 hours, double time when in excess of 8
hours a day and 48 hours per week, and 8 paid holidays.
As an electrician, Pena was a member of the Teamsters
Union in the unit covered by the collective-bargaining
contract, and paid union dues by checkoff. When pro-
moted to supervisor, Pena's pay became $150 a week,
and after a month, $160, for a 48-hour week with no
overtime pay, no paid holidays, laundry service, and $8
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for meals. 2 As supervisor he received the fringe benefits
provided for such persons, and ceased to pay union dues
by checkoff.
As supervisor, Pena worked the evening shift, from 4
p.m. to 12 a.m., 6 days a week. The Respondent's list of
nonunionized employees in the engineering department
contains four names: Chief Engineer Jose Torres (the
head of the department), Jorge L. Pantojas, supervisor,
Pena, supervisor, and Bonnie Ann Salvador, secretary, a
discriminatee. Torres' hours were generally from 8 a.m.
to 5 p.m. Pantojas was the day supervisor.
The General Counsel's evidence as to Edgardo Pena's
duties, authority, and status consists basically of Pena's
testimony; the Respondent's, the testimony of Personnel
Director Perez. The record does not disclose whether
the Respondent maintains a job description of Pena's po-
sition. On Pena's evening shift, in addition to Pena, there
were four engineering department employees: one elec-
trician, one fireman, and two handymen. Their function,
in general, consisted of the maintenance of buildings and
equipment. The record does not disclose the number or
the classification of workers on the engineering day shift.
Pena and the employees on the night shift occupy the
office of the department secretary, who works days.
Pena's testimony as to his duties-in this respect not
disputed-is that he answers the department phone
taking work requests, writes up appropriate work orders
in accordance with the requests, and, on 5 of his 6 work-
ing days a week, substitutes for the work crew on their
days off. s
Pena's further testimony is that he does not have, and
does not exercise, authority to hire, discharge, discipline,
reprimand, or direct employees, or grant them overtime
or time off, and, further, that he has never been advised
that he possessed such authority. As to assigning work,
Pena's testimony is that, as work requests come in, writ-
ten work orders (presumably written by Pena) are placed
on a stack and serviced in turn-each craft selecting its
own slips-or according to such priority as may be given
a job by the assistant manager. The Respondent con-
tends, and Personnel Director Perez testified, that Pena
supervises, directs, and assigns the work of employees on
the night shift, including day-shift employees who are as-
signed overtime work by the day supervisor; that he has
the right to call in day-shift personnel or to hire subcon-
tractors in an emergency, and that he has authority to
recommend action on a grievance. Pena's testimony is
that if there were any unusual problems he would take
them up with the assistant manager or the chief engineer.
12 Thus, for the first month in his new job Pena was paid less than he
would have been paid previously for an equivalent amount of time ($158
versus S158.50). After the raise to 160 he was paid $9.40 a week more
for equivalent time. This does not take into account the loss of holiday
pay and any premium pay therefor. The record does not disclose wheth-
er there was any substantial difference in the value of othr fringe bene-
fits.
13 One handyman is off on Sunday and Monday, the other on Wednes-
day and Thursday, and the electrician on Friday and Saturday. Tuesday
is apparently Pena's day off.
As to directing day-shift personnel who work overtime,
or calling in personnel or a subcontractor during an
emergency, Pena's uncontradicted testimony (in addition
to denying that he knew or was told he had such author-
ity), is that such situations never arose in the 10 months
he was on the supervisor's job. More particularly, Pena
testified, again without contradiction, that he was told by
the former chief engineer that he had no such authority.
Concerning grievances, Pena denied, and there is no sub-
stantial evidence to the contrary, that he ever participat-
ed in a grievance, or made any recommendation con-
cerning one. In any event, Personnel Director Perez' tes-
timony makes it clear that he makes an independent in-
vestigation of each grievance, whatever the recommen-
dation of the department head, exercises independent
judgment-and veto, if necessary-and then submits his
own recommendation to General Manager Orenstein for
decision.
There is no testimony by Chief Engineer Torres as to
Edgardo Pena's duties or authority.
Circumstances, such as the use of the job title "super-
visor" (Arizona Public Service Co. v. N.L.R.B., 453 F.2d
228 (9th Cir. 1971); J. C. Penny Co., Inc., 193 NLRB 684,
685 (1971)); or not being compensated for overtime
(Fisher-Friedman Associates, 192 NLRB 925, 926 (1971));
or a change from hourly pay to salary (Crest Chemical
Company, 213 NLRB 885, 886 (1974)); or even the fact
that one is paid more than others (N.L.R.B. v. Local
Union No. 252, Lithographers-Photoengravers International
Union, AFL-CIO [Sayers Printing Company], 453 F.2d
810, 815 (8th Cir. 1972); Fred Rogers Company, 226
NLRB 1160, 1161 (1976)), have been held not to be suffi-
cient to confer supervisory status on an employee. How-
ever, it would seem that there must have been some pur-
pose in changing Pena from the status of an employee
covered by the contract, and paid hourly, to the status of
a salaried employee, designated as a supervisor, and paid
a salary, with presumed concomitant changes in fringe
benefits. It would appear not unreasonable to infer, and I
do, that it was Pena's function to direct the night-shift
employees. The question is, the extent and the character
of the direction-whether it was responsible or routine,
and whether it required the use of independent judg-
ment. This involves consideration of his specific conduct
and authority.
We have seen that Pena denied that he had, or had
ever been advised that he had, or that he exercised, any
of the specific authority customarily associated with the
exercise of supervisory power. But, apart from Personnel
Manager Perez' conclusory statements to the effect that
Pena "supervised" and "directed" employees, "assigned"
them work, had the "right" to call in day-shift personnel
or to "hire" outside contractors in an emergency, the
Respondent's evidence on the issue does not establish
that Pena had or exercised any authority to take, or to
recommend, action concerning employees on the night
shift, or responsibly to direct them. While the Respon-
dent contends that Pena is an incredible witness, in that
PUERTO RICO SHERATON HOTEL 877
his testimony is "tainted by his efforts to deny that he
had any supervisory authority whatsoever," there is little
or no specific nonconclusory testimony or evidence in
contradiction of what Pena said in those respects. As
personnel director, Mr. Perez undoubtedly is presump-
tively qualified to testify as to the requirements of a posi-
tion with the Respondent. However, absent a written de-
scription of Edgardo's job, or testimony by Chief Engi-
neer Torres, or others with first-hand knowledge of
Pena's exercise of authority on the job, Personnel Man-
ager Perez' characterizations of Pena's powers convey
little concrete connotation which one may weigh against
the specific testimony of Pena (not incredible on its face)
to the effect that his duties did not include any of the
characteristics customarily associated with the statutory
definition of an agent or supervisor of an employer. On
the record, and on my observation of his demeanor, I
find no substantial ground for discounting the testimony
of Pena. While it may be correct to say, as the Respon-
dent suggests, that the statute turns on the existence of
supervisory authority, and not the frequency of its utili-
zation (citing Arizona Public Service Co. v. N.L.R.B.,
supra) the problem here is to find the existence of the au-
thority. That managerial status, without possession of su-
pervisory authority, may make one an agent under Sec-
tion 2(11) of the Act is correct. However, there must be
commensurate authority of some kind. Here the proba-
tive evidence discloses none. In this respect the "Super-
visors" and "Assistant Supervisors" in the Arizona Public
Service case, supra, and the "control operators" in the
case of Ohio Power Company v. N.L.R.B., 176 F.2d 385
(6th Cir. 1949), found to exercise managerial authority
and thus to be "agents" of the employers in those cases,
are distinguishable from the present situation. There,
those individuals had, and exercised, authority to shut
down completely in emergencies, or to modify in any
necessary degree the operations of public utility plants,
and to command and to direct available personnel. What-
ever discretionary authority Edgardo Pena had in this
case, it scarcely appears on the available evidence to be
anything approaching that in the Arizona and Ohio cases.
It is possible, of course, that the record does not fully
reveal Pena's duties and authority. However, the deci-
sion must be made on the basis of the developed facts. In
my opinion, the probative evidence does not establish
that Pena's direction of employees was of more than a
routine nature or required the exercise of independent
judgment. Fred Rogers Company, supra. It is therefore
concluded that the record does not disclose that Pena
was a supervisor or agent of the Respondent within the
meaning of Section 2(11) of the Act.
3. Rodrigo Rodriguez
Rodridgo Rodriguez held the title of banquet sales
representative. There is no evidence or claim that he ex-
ercised supervisory authority. However, the Respondent
contends that he was employed in a managerial capacity,
and was thus not an employee within the meaning of
Section 2(11) of the Act. 4
14 See Eastern Camera and Photo Corp, 140 NLRB 569 (1963); Retad
Clerks International Association [Agents and Organizer .4vsociation] v
Unlike other employees, the terms of Rodriguez' em-
ployment were set out in a letter from General Manager
Orenstein to Rodriguez in April 1976. Rodriguez' duties
were to act as a sales representative for the Respondent
in the securing of new local business for room rentals,
conventions, and food and beverage sales. He was paid a
base salary of $500 a month, with a draw of $300 a
month, and a commission of 3 percent on all sales, origi-
nal and repeat; he was reimbursed for travel expenses
and was permitted the facilities of the hotel and an ex-
pense account for the entertainment of prospective cli-
ents. Rodriguez had a private office in the hotel, and was
a member of the Hotel Sales Management Association,
for which the hotel paid. He attended monthly meetings
of department heads and managers to discuss hotel busi-
ness and management problems, and rendered a monthly
sales and expense report. Rodriguez was not a member
of any union, and received the fringe benefits granted
nonunion employees. He was free to set his own hours,
but it was understood that he would work 6 days a
week, from about 8 a.m. to 5 p.m.
General sales of space by Rodriguez were required to
be at the hotel's regular group or rack rates, and food
and beverages at menu prices. Food prices had a built-in
buffer or reserve of from 50¢ to $1 per person, to allow
for negotiation within the discretion of Rodriguez and
Banquet Manager Lopez. Variations beyond that re-
quired the approval of Food and Beverage Manager
Balazs or General Manager Orenstein, and were appar-
ently not readily granted. Standard food menus could be
altered to meet a client's budget, but alterations were
subject to review by the principal management persons
involved: the banquet manager, the food and beverage
manager, or the chef. Where a function sold by Rodri-
guez involved attendance of more than 300 people, Ro-
driguez was required to attend to assure the customer's
satisfaction, and to report unsatisfactory matters to the
maitre d' or other supervising management official for
correction.
The applicable cases cited in footnote 13, supra, hold,
in sum, that an employee may occupy a managerial posi-
tion if his duties fall into either of the following situa-
tions: (1) He is so closely aligned with management as to
present a potential conflict of interest between himself
and other workers, or (2) he formulates, determines, or
effectuates an employer's policies, or has discretion, un-
fettered by an already established policy, in the perfor-
mance of duties.
Rodriguez' discretion, along with the banquet man-
ager, to vary menu prices within the buffer zone, since
limited to a maximum of $1 per person, is in confor-
mance with, and not independent of, the Respondent's
established policies. It therefore does not meet the re-
quirements for a managerial employee. However, Rodri-
guez' duties as monitor of functions involving more than
iVl..RB., 336 F.2d 642 (D.C Cir. 1966), cert. denied 386 U.S. 1017
(1967); owa Industrial Hydraulics. Inc., 169 NLRB 205 (1968); Westing-
house Electric Corp. . ;.VL.R.B., 424 F.2d 1151 (7th Cir 1970). cert.
denied 4(X) U.S 831 (1970); White Cross Stores, Inc., 186 NLRB 492
(1970); NL.R.B. v. North Arkansas Eletric Cooperative, Inc., 446 F.2d
602 (8th Cir. 1971); N.L. RB. v. Bell Aerospace Company. Division of Tex-
tron. Inc., 416 UlS. 267 (1974); Curtis Industries. Division of Curtits Voll
Corporation. 218 NI RB 1447 (1975)
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
300 people might require him to report what he regarded
as inadequate employee performance. While Podriguez
had no plenary authority to correct either the matter or
the employee, his duty to monitor the performance and
to seek its correction through the supervising official
would seem to place him in a potential conflict with
fellow employees. It is therefore found that Rodriguez
was a managerial employee.
H. Other Alleged Violations
1. Interrogation, threats, surveillance
(a) As we have seen, on April 11 General Manager
Orenstein interrogated a number of employees as to
whether they had signed the March 25 letter and-if
they had-whether they were aware that it suggested his
discharge. Some who admitted signing were asked why
they had done so.
This interrogation constituted an integral part of the
Respondent's program, found unlawful, to discharge
those persons who had signed the letter with knowledge
of its contents. It follows that the Respondent's interro-
gation was equally unlawful. That it might not have been
so under other, and noncoercive, circumstances is not a
defense. 15
(b) Dischargee Bonnie Salvador's uncontradicted and
credited testimony is that, about a week before April 11,
she was called into the office of Chief Engineer Torres,
her supervisor, who asked her whether she had signed a
letter representing the engineering department. Salvador
replied evasively that she did not have to represent
anyone, and that she did not know what Torres was talk-
ing about. Torres said that he knew she had signed the
letter, and told Salvador that, if she had, he would "per-
sonally . . . fire" her. There is no evidence, or sugges-
tion, that Salvador signed any letter other than that of
March 25. I therefore infer that Torres' statements had
reference to that letter.
Chief Engineer Torres' threat to discharge Salvador
for signing the letter, an employee activity found to be
protected by the Act, was violative of Section 8(a)(l).
The interrogation constituted an integral part of the inci-
dent which resulted in the threat. The interrogation thus
also violated Section 8(a)(l).
The complaint additionally alleges that Chief Engineer
Torres' statements to Salvador on that occasion created
the impression of surveillance of union and concerted ac-
tivities of employees, and were unlawful for that addi-
tional reason. However, I find that Torres' knowledge of
the March 25 letter was not necessarily illict. The inci-
dent may have occurred after a copy of the letter was
received from the Respondent's Boston office. The evi-
dence does not neutralize that possibility. It will there-
fore be recommended that this allegation of the com-
plaint be dismissed. 6
(c) On April 20, 1977, General Manager Orenstein sent
a memorandum addressed to "All Employees" of the
'1 See Bourne v. N.L.R.B., 332 F.2d 47 (2d Cir. 1964).
*e Although General Manager Orenstein's testimony establishes that he
was aware of the letter before its receipt in Boston, the complaint makes
no allegation of unfair labor practices with respect to tha.t knowledge,
and no such issue was litigated in the hearing.
hotel, for the purpose of explaining, and justifying, the
discharge of those who had signed the March 25 letter.
Significant portions of this memorandum are quoted in
section F, supra. We have seen that, in addition to other
ominous statements, the memorandum declared that the
action of the dischargees in writing to the Respondent's
president to demand Manager Orenstein's removal,
rather than coming to him with their complaint, consti-
tuted insubordination and just cause for dismissal.
The net effect of this letter was to tell the employees
that those who had been discharged for signing the letter
were insubordinate and therefore properly dismissed.
The inarticulated conclusion, and implicit threat, was
that any employee who engaged in such conduct would
also be considered insubordinate, and would likewise be
dismissed. Since the conduct was protected, the threat
was unlawful.
It is found that by General Manager Orenstein's inter-
rogation of employees on April 11, by Chief Engineer
Torres' interrogation of Bonnie Salvador, and by the
April 20 memorandum implicitly threatening to dis-
charge employees for exercising what has been found to
be their legal right the Respondent interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed by Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
2. Denial of right to reenter the hotel's public
premises
A number of the dischargees, when terminated, were
told not to reenter the hotel's public premises. Since that
action was a consequence of the employees' having exer-
cised their statutory rights, the prohibition was unlawful.
In addition, it appears violative of the Act because it is
discriminatory. There is no evidence that the Respondent
had a valid rule-indeed any rule-forbidding discharged
employees from entering its premises. It is therefore in-
ferred that other terminated employees are not denied
entrance. For an employer to single out discharged em-
ployees who had exercised their rights under the Act,
and deny them entrance to the hotel, while permitting
other discharged employees who had not exercised such
rights to enter, constitutes a discrimination because of,
and a restraint upon, the exercise of the statutory right,
and thus a violation of Section 8(a)(l).
3. Implied promises of benefit
Under date of April 7, 1977, Personnel Director Perez
sent a memorandum to "All Department Heads and
Non-Unionized Personnel," enclosing a list of fringe
benefits covering both union and nonunion personnel, for
the purpose of advising department heads and nonunion
personnel unacquainted with the programs. The memo-
randum further stated that the hotel was "interested" in
possibly providing additional fringe benefits to "you," if
the additions did not affect the hotel's finances "tremen-
dously." I infer that "you" is to be interpreted as mean-
ing department heads and nonunion personnel, and not
all employees.
Paragraph 5(d) of the complaint alleges that the
memorandum constituted an implied promise of benefits
PUERTO RICO SHERATON HOTEL 879
to induce employees to refrain from engaging in concert-
ed activities. I find nothing in the memorandum substan-
tially establishing such a conclusion. It will therefore be
recommended that this allegation be dismissed.
4. The 8(a)(3) and other allegations relating to union
activity
The complaint, as amended, alleges (par. 6) that dis-
chargees Rodrigo Rodriguez, Bermudez, Salvador, and
the two Penas, found to have been discharged in viola-
tion of Section 8(a)(1) because of their concerted activ-
ity, were also discharged because they "joined an assist-
ed the Union," an action alleged in paragraph 9 to be
violative of Section 8(a)(3). The complaint also alleges
that other conduct, some of it also found violative of
Section 8(aX)(1), was motivated by union considerations:
paragraph 5(d) (implied promise of benefits in Personnel
Director Perez' April 7 memorandum, "to induce em-
ployees to refrain from giving any assistance or support
to the Union"); paragraph 5(f) (prohibiting dischargees
from entering the hotel's public areas "because of their
membership in and support for the Union"); paragraph
5(g) (threats of discharge of employees in the April 20
memorandum, "if they became or remained members of
the Union").
In paragraph 3, the complaint alleged that "Associ-
ation de Empleados No Unionados de Hoteles, herein re-
ferred to as the Union," is a labor organization within
the meaning of Section 2(5) of the Act, an allegation
denied by the Respondent for lack of knowledge. There
is no evidence to support that allegation. There is testi-
mony that, in connection with the drafting of the March
25 letter, the employees decided to form "an association,
a group," but nothing more.
Though General Manager Orenstein was aware of the
March 25 letter before it was received in Boston, there is
no evidential basis for inferring that he was also aware of
the intent to form an "association or group." There is no
evidence on which to find that the Respondent was mo-
tivated in any of its actions by a belief in the existence of
the association, or that it was motivated by an intent to
discourage union activity. The General Counsel's brief,
perhaps significantly, does not suggest that any of the
discharges violated Section 8(a)(3).
It is consequently found that the evidence does not
support the allegation that employees were discharged or
refused reinstatement because they joined or assisted the
association, or that any of the Respondent's actions al-
leged in paragraphs 5(d), (f), and (g) and (6) of the com-
plaint were motivated by union considerations. It will
consequently be recommended that paragraph 9 of the
complaint be dismissed, and that paragraphs 5(d), (f), (g)
and (6) be dismissed to the extent that they so allege. I
do not deem the pleadings, the arguments, or the issues
litigated to encompass the question as to whether the
evidence will support a finding of an 8(a)(3) violation on
the theory that the discharges would have a natural ten-
dency to discourage membership in labor organizations.
CONCLUSIONS OF LAW
i. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(1) of the Act by
terminating employees Carmen Bermudez, Bonnie Salva-
dor, Edgardo Pena, and Victor Pena because of their
concerted activities for the purpose of mutual aid and
protection.
3. The Respondent interfered with, restrained, and co-
erced employees in the exercise of rights guaranteed by
Section 7 of the Act, thereby violating Section 8(a)(l) of
the Act, by discharging Ramon Castro, Armando Gutier-
rez, Angel Gutierrez, Amos Langer, Francisco Acevedo
Padilla, Joan Rodriguez, and Rodrigo Rodriguez.
4. Respondent violated Section 8(a)(l) of the Act by
interrogating employees, by denying them the to right to
enter the hotel's public premises, and by threatening to
discharge employees for engaging in concerted activities
for mutual aid and protection.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The Respondent has not engaged in other unfair
labor practices alleged.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
It will be recommended that the Respondent offer
Carmen Bermudez, Ramon Castro, Angel Gutierrez, Ar-
mando Gutierrez, Amos Langer, Francisco Acevedo Pa-
dilla, Edgardo Pena, Victor Pena, Joan Rodriguez, Ro-
drigo Rodriguez, and Bonnie Salvador immediate and
full reinstatement to their former positions, without prej-
udice to their seniority and other rights and privileges,
and make each of them whole for any loss they may
have suffered by reason of the discrimination against
them. Such reinstatement shall be effected, and any back-
pay found to be due shall be computed, in accordance
with the Board's usual policies in such cases. See F. W.
Woolworth Company, 90 NLRB 289 (1950); Florida Steel
Corporation, 231 NLRB 651 (1977).
ORDER 7
The Respondent, Sheraton Puerto Rico Corp. d/b/a
Puerto Rico Sheraton Hotel, San Juan, Puerto Rico, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining or discrimin-
ating against employees or other persons because em-
ployees have engaged in concerted activities for mutual
aid or protection.
'" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
PUERTO RICO SHERATON H TEL
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Coercively interrogating employees concerning
their concerted activities for the purpose of mutual aid
or protection.
(c) Threatening employees with discharge or other re-
prisals in employment for adherence to, support for, or
involvement in concerted activities for the purpose of
mutual aid or protection.
(d) In any manner interfering with, restraining, or co-
ercing employees in the exercise of their rights to engage
in concerted activities for the purpose of collective bar-
gaining or mutual aid or protection, or to refrain from
any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Carmen Bermudez, Ramon Castro, Angel
Gutierrez, Armando Gutierrez, Amos Langer, Francisco
Acevedo Padilla, Edgardo Pena, Victor Pena, Joan Ro-
driguez, Rodrigo Rodriguez, and Bonnie Salvador imme-
diate and full reinstatement to their former positions,
without prejudice to their seniority or other rights and
privileges.
(b) Make whole Carmen Bermudez, Ramon Castro,
Angel Gutierrez, Armando Gutierrez, Amos Langer,
Francisco Acevedo Padilla, Edgardo Pena, Victor Pena,
Joan Rodriguez, Rodrigo Rodriguez, and Bonnie Salva-
dor for any monetary losses suffered by reason of their
discharges.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay and
the rights of reinstatement due under the terms of this
Order.
(d) Post at its place of business, in San Juan, Puerto
Rico, copies of the attached notice marked "Appen-
dix.""'8 Copies of said notice, on forms provided by the
18 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Regional Director for Region 24, after being duly signed
by Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for Region 24, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges:
(1) That Associacion de Empleados No Unionados de
Hoteles was a labor organization within the meaning of
Section 2(5) of the Act, at any material time (par. 3).
(2) That the Respondent
(a) Created the impression that it was engaging in sur-
veillance of employees' concerted activities (par. 5(b)).
(b) Impliedly promised benefits to employees to induce
them to refrain from giving assistance or support to the
Union (par. 5(d)).
(c) Positioned armed guards in the penthouse during
interrogation of employees (par. 5(e)).
(d) Prohibited employees from entering the hotel's
public areas because of their membership in and support
for the Union (par. 5(f)).
(e) Impliedly threatened employees with discharge or
other reprisals if they became or remained members of
the Union (par. 5(g)).
(f) Discharged employees because they joined or as-
sisted the Union (par. 6(d)).
(g) Engaged in violations of Section 8(a)(3) of the Act
(par. 9).
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."