Arlington Hotel Co., Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1986

278 N.L.R.B. 26 (N.L.R.B. 1986)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arlington Hotel Company, Inc. and International
Ladies' Garment Workers Union , AFL-CIO.
Case 26-CA-10729
16 January 1986
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 11 March 1985 Administrative Law Judge
Richard J. Linton issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, and the Respondent
filed an answer to the exceptions.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended Order.
In agreeing with the judge's finding that the Re-
spondent's discharge of Violet Doll did not violate
Section 8(a)(3) of the Act, we rely on the follow-
ing factors in addition to the reasons cited by the
judge.
The Respondent's food and beverage director,
Bernard Sisman , who was solely responsible for the
decision to terminate Doll, was unaware initially of
the identity of the waitress who falsified a meal
ticket during a Sunday brunch. Sisman's wife wit-
nessed the incident and reported it to Sisman, but
she was not introduced to the waitress in question.
When Sisman initiated the investigation of meal
tickets which resulted in Doll's discharge, he did
not know which waitress was involved and, upon
finding the falsified ticket, had to call Kathy Gray,
the Respondent's Venetian Dining Room manager,
to find out the waitress' name because only her
waitress number was entered on the check. That
Sisman was unaware a principal union activist was
involved when he began the inquiry into the
Sunday brunch incident supports the Respondent's
assertion that it had a legitimate concern for effi-
ciency and internal accounting security and did not
simply seize upon the incident as a means to rid
itself of Doll.
Sisman's recent arrival on the Respondent's man-
agement team further supports the Respondent's
position. Sisman began work as food and beverage
director approximately a month before Doll's dis-
charge. Although waitresses other than Doll may
have failed properly to write up meal tickets, there
is no evidence that the newly installed Sisman was
aware of any such situation until the Sunday
brunch incident his wife reported, which resulted
in his investigation of ticketing procedures, the dis-
charge of Doll, and the subsequent tightening up of
the Respondent's internal accounting system. Simi-
larly, while there is evidence that employees guilty
of insubordination and other acts comparable to
Doll's falsification of a meal ticket were not dis-
charged, the decisions concerning the discipline of
these employees were made before Sisman's arrival
and therefore cannot serve as evidence that Sisman
engaged in disparate treatment when he discharged
Doll.
We find that the foregoing factors, together with
those the judge relied on, compel the conclusion
that even if Doll's union activity were a reason for
her discharge, the Respondent met its burden
under Wright Line, 251 NLRB 1083 (1980), and
demonstrated it would have discharged Doll in the
absence of such protected activity.
Accordingly, we adopt the judge's dismissal of
the complaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
John H. Goree, Esq., for the General Counsel.
J. Bruce Cross, Esq., and Donna S. Galchus, Esq. (House,
Wallace & Jewell), of Little Rock, Arkansas, for the
Respondent.
Randall G. Wright, Esq. (Youngdahl & Larrison), of Little
Rock, Arkansas, for the Charging Party.
DECISION
I The General Counsel moved to strike certain portions of the Re-
spondent's answering brief which she contends are beyond the scope of
the exceptions and inaccurately characterize the judge's findings. The Re-
spondent filed a response in opposition thereto. As we have not relied on
the disputed portions of the Respondent's answering brief in affirming the
judge's findings, we find it unnecessary to pass on the General Counsel's
motion
2 The Charging Party has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an admmistra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect.Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge. This
case was tried before me in Hot Springs , Arkansas, on
August 14-17 and October 10-11, 1984 , pursuant to the
June 13, 1984 complaint issued by the Acting General
Counsel (the General Counsel) of the National Labor
Relations Board through the Regional Director for
Region 26 of the Board . The complaint is based on a
charge filed May 7 , 1984, and thereafter amended, by
International Ladies' Garment Workers Union, AFL-
CIO (the Union, the Charging Party, or ILGWU)
278 NLRB No. 7
ARLINGTON HOTEL CO. 27
against Arlington Hotel Company, Inc. (Respondent,
Hotel, or AHC). I
In the complaint the General Counsel alleges that the
Respondent violated Section, 8(a)(1) and (3) of the Act
by suspending Violet Doll for 3 days about January 23,
and by discharging her about April 29 because of her
union and other concerted activities.
By its answer Respondent admits certain factual mat-
ters but denies violating the Act.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel, the Union, and
the Respondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a corporation, operates a resort hotel in
Hot Springs, Arkansas, and during the past 12 months it
derived gross revenue exceeding $500,000 from the hotel
operation. During the same period it purchased and re-
ceived at its Hot Springs facility goods and materials
valued in excess of $50,000 directly from points outside
the State of Arkansas. Respondent admits, and I find,
that it is an employer within the meaning of Section 2(2),
(6), and (7) of the Act.
Il. LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the ILGWU is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent's 500-room resort hotel in Hot Springs in-
cludes a food and beverage department along with other
guest and customer functions. There is a popular track
for horse racing in Hot Springs, and the racing season
occurs during weeks of mid-February to the end of
April. Racing season is Respondent's busiest period, and
during racing season AHC's employment swells to about
500 employees.2
Violet Doll testified that the ILGWU began its orga-
nizing campaign at the Hotel in 1981. The Union filed an
election petition on March 19, 1981, and the election was
held on May 29. Challenged ballots were determinative,
and the Hotel also filed timely objections. These matters
were resolved by the Regional Director who certified
the Union on July 13, 1981. A "technical" refusal-to-bar-
gain litigation ensued when the Hotel refused to bargain.
On May 18, 1982, the Board sustained the General Coun-
sel's Motion for Summary Judgment that the Hotel's re-
fusal to bargain was unlawful. Arlington, Hotel Co., 261
NLRB 967 (1982), enfd. 712 F.2d 333 (8th Cir. 1983).
1, All dates are for 1984 unless otherwise indicated. Although the
pleadings do not show that the ILGWU is affiliated with-the AFL-CIO,
prior litigation so indicates, as does the NLRB Style Manual, App. 1 at 56
(1983).
2 Citations to the six-volume transcript of testimony are by volume and
page.
In the meantime, certain employees of the Hotel en-
gaged in a 3-day strike in March 1981 during which Re-
spondent hired replacements. Violet Doll was one of the
waitresses (among other classifications) who struck. Af-
firming, as modified, Judge Robert A. Gritta's Decision
and Order of August 9, 1982, the Board, by its Decision
and Order dated December 12, 1984, found that Re-
spondent violated Section 8(a)(1) and (3) of the Act by
recalling strikers subject to a preference given to striker
replacements and new hires. Arlington Hotel Co., 273
NLRB 210 (1984).
Following the Eighth Circuit's enforcement judgment
of July 8, 1983, the Union and the Hotel, that same
month, began contract negotiations which, apparently,
had not concluded by the beginning of the instant hear-
ing.
Violet Doll has been active for the Union from the be-
ginning of the organizing campaign. As previously noted,
she was one of the strikers, and she testified before Ad-
ministrative Law Judge Gritta at the hearing he conduct-
ed in December 1981. Doll has been secretary of the
Local from the beginning and was president of the Local
for the last 3 months before her discharge.3 Doll was
one of the employees present when union officials de-
manded recognition from Horst Fischer, Respondent's
general manager.
When Respondent held a captive-audience meeting
with employees in either February or March 1981 to
show a film and present Hotel's countercampaign posi-
tion, Doll stood up and made a speech lasting at least 15
minutes in which she informed the 300 to 400 assembled
employees of their statutory right to organize and in
which she expressed her, reasons concerning why em-
ployees should join the Union.4
Doll testified that union officials informed her of the
July 8, 1983 decision by the Eighth Circuit enforcing the
Board's order to bargain. Doll assisted the Union in pass-
ing out copies of a leaflet informing employees of court
enforcement of,their Federal right to sit down and nego-
tiate a collective-bargaining agreement with Hotel. Some
2 days after she helped in distributing the leaflets, Doll
was given a written warning, dated July 13, 1983 (R.
Exh. 17), for insubordination concerning the polishing of
silverware for resetting the tables.5
Fired May 1, 1984, Violet Doll had worked a total of
7 years for Respondent as a waitress ' in its Venetian
Dining Room, or VDR. Kathy Gray is the manager of
the VDR. Before holding that position, Gray was a su-
pervisor in the VDR from February 1983 to July 1983,
and prior to that she worked as hostess in the VDR.
Kathy Gray reports to Bernard Sisman who has been
Respondent's food and beverage (F. & B) director since
3 The record does not disclose what number the ILGWU has assigned
to the Local.
4 Although Doll asserted that the meeting occurred around February
12, 1981, she also testified that the (March) strike ensued the next day.
The period of February-March 1981 i ,close enough for our purposes
here.
5 The July 13, 1983 warning is outside the 10(b) limitations period, and
there is no complaint allegation concerning it Nevertheless, the docu-
ment is relevant as part of the background, And in considering the basis on
which Respondent decided to terminate Violet Doll
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mid-February 1984. Sisman arrived several weeks before
his predecessor,- George von Salm, departed.6
B. Overview of the Case
1. Disciplinary incidents
The General Counsel alleges that Respondent unlaw-
fully suspended Violet Doll on January 23, 1984, and il-
legally discharged her on May 1. The suspension inci-
dent involves Doll's admitted failure to store the bread
before leaving work on January 23. Doll was fired for
falsifying a meal ticket by giving musician Sandy Francis
a check for one person at the April 29 Sunday brunch
when, in fact, three persons received meals.
VDR Manager Gray decided that Doll should receive
a written warning over the bread tray incident,7 and
F&B Director vol Salm converted the warning into a 3-
day suspension. By May I von Salm had been gone a
month, and Sisman was the F & B director. It was
Sisman who initiated interviews leading to Doll's dis-
charge.
Beyond her suspension and discharge, Doll was in-
volved in several other incidents. Although these addi-
tional incidents fall outside the 6-month limitation period
described in Section 10(b) of the Act, they may be
looked to for whatever light they shed on motivation.
Sisman testified that Doll's failure to ticket Francis for
all three meals was serious enough by itself to justify
Doll's discharge.8 However, he testified that he exam-
ined and considered Doll's entire personnel file. Person-
nel Manager Jo Ann Kulaski confirmed that Sisman ex-
amined the file after she initially reviewed all the disci-
plinary records in it with him by telephone. Sisman fur-
ther testified that Doll was terminated over the Sunday
brunch incident and, had that event not happened, Doll
would not have been terminated for anything in the past.
As noted, Sisman felt that Doll's conduct on the
Sunday brunch of April 29 was independently sufficient
to justify her discharge. Although Sisman never testi-
monially expressed the alternative position that Doll
would have been discharged in any event under the
Hotel's progressive discipline system (PDS),9 VDR
Manager Kathy Gray did undertake to so testify in
answer to a leading question. Gray initially testified that
the April 29, 1984 incident was the only reason Doll was
6 The parties stipulated that Sisman arrived February 20, 1984, and
that von Salm departed March 31 , 1984 Sisman reports to General Man-
ager Horst Fischer.
' Although the witnesses generally referred to the bread tray, it is
clear that edible `bread was on the tray rather than the tray being empty.
Gray testified that the tray contained several loaves of different types of
breads.
6 Sisman's answer at 1:31, LL. 12- 15, is garbled . It is clear from the
record, and my recollection, that Sisman testified that Doll's failure to
charge for the third meal was reason enough, by itself, to justify her dis-
charge
9 Concerning Doll's discharge, the record does not contain the usual
form labeled "Employee Disciplinary Record." However, two filed
memos from Sisman were received The first, with five short paragraphs,
is dated May 1, 1984 (G C Exh 26a). The second, dated May 8, 1984,
contains more information Its penultimate paragraph contains a state-
ment that Sisman and Personnel Manager Kulaski reviewed Doll's file,
"and it was evident by the information contained therein that this inci-
dent mentioned above was grounds for termination " (G C. Exh 26b).
discharged, and that, although the Sunday brunch event
was Doll's fourth disciplinary action, the decision was
made solely on what Doll had done on April 29. Sisman
made the discharge decision, and the record contains
little decisional basis for Gray's assertion that Doll
would have been discharged in any event under Re-
spondent's PDS because the April 29 event was Doll's
fourth disciplinary incident. k0
As just noted, one expression by Sisman on the matter
is contained in the quotation from his file memo dated
May 8, 1984.11 Additionally, in his May 31, 1984 pretrial
affidavit, Sisman states at 1-2 (G.C. Exh. 2):
I would have recommended to Fischer that Doll be
discharged for this incident even if she had not been
in the last step of the progressive disciplinary
policy. It is pure speculation whether she would
have been fired or not. Under the written policy she
could have been terminated for that
falsification/appropriation even if she was not at the
last step of the progressive disciplinary procedure.
In view of the foregoing, it is not at all certain that
Doll would have been discharged in any event under the
Hotel's progressive disciplinary system. The record con-
tains more than one example of a deviation from the
PDS. It is clear that the Hotel exercises discretion in de-
termining what discipline will be imposed on each infrac-
tion of its rules or whether any discipline at all will be
imposed.
Before listing Doll's prior disciplinary events, I shall
make some note here of the Hotel's PDS. The PDS is set
forth beginning at page 8 of Respondent's 21-page em-
ployee handbook (R. Exhs. 14, 18). Hired by the Hotel
in November 1981, Jo Ann Kulaski worked in the sales
department until becoming personnel manager in April
1982. Kulaski testified that she wrote the Hotel's employ-
ee handboook. Although Kulaski did not give the publi-
cation date, the handbook itself shows the printing date
of February 1, 1983, at the bottom of its back cover, and
on February 11, 1983, Doll signed an acknowledgment
form reading that she had received a copy of the hand-
book and would read and adhere to the policies outlined
in the booklet (R. Exh. 13). Presumably, therefore,
copies of the handbook were distributed to employees in
early February 1983.12
As set forth in the handbook, the Hotel's PDS con-
tains a section for "Standards and Conduct"-beginning at
page 8 . The handbook informs employees that the "fol-
lowing steps" will be taken if there is any deviation from
the Hotel's rules and regulations. This is followed by
10 Respondent actually seems to have introduced evidence of its PDS
more by way of defense against arguments that Doll's discharge was
harsh and unprecedented than on any affirmative effort to demonstrate
that Doll, in the alternative, was discharged as the final step under'the
Hotel's PDS, nonwithstanding the degree of severity of Doll's conduct
11 Although the charge was filed and served by mailing on May 7,
1984, the return receipt shows that Respondent did not receive its copy
until May 9, 1984
12 This is not to say that some kind of warning system did not predate
the handbook . Indeed, as we shall see, Doll's first disciplinary action,'oc-
curring in October 1981, is recorded on a form somewhat different from
those bearing 1983 or 1984 dates (R Exh 16)
ARLINGTON HOTEL CO. 29
four numbered steps. Step 1 calls for a "verbal" (oral,
apparently) warning. Step 2 calls for a written warning
on a second occasion of misconduct. A second written
warning is issued under step 3 on a subsequent infraction
of the Hotel's rules. To this point the steps are clear
enough. Step 4, however, is ambiguous. It reads:
Any other deviations from the rules will warrant a
third written warning with a probable suspension
and a possible termination, if the misconduct contin-
ues.
One may ask (1) whether a third written warning
(being a fourth incident) is independent of the balance of
step 4, so that a suspension or discharge would not be
imposed until a fifth incident, or (2) whether a suspen-
sion accompanies any third written warning with termi-
nation being possible only if the misconduct continues to
a fifth incident.' 3
Kulaski, it appears, adopts the first interpretation, that
the third written warning (for the fourth incident) is in-
dependent, and that suspension or termination may be
imposed for the fifth infraction. However, Gray clearly
counted the April 29 Sunday brunch as the fourth inci-
dent and fourth reprimand. Sisman's testimony is rather
ambiguous on the point, but his position seemed to be
the same as Gray's. Gray listed Doll's three previous
warnings as occurring in July 1983 for insubordination
(R. Exh. 17), August 1983 for tardiness (G.C. Exh. 22a),
and January 1984 for failure to store the bread at the end
of her shift (G.C. Exh. 25a,c).14 All three are written
warnings.
A substantial portion of the record evidence is con-
cerned with a warning which Gray gave Doll on Octo-
ber 3, 1983, for insubordination over Doll's allegedly re-
fusing "a direct order" to secure some napkins (G.C.
Exhs. 24a-b). F & B Director von Salm voided the
warning on October 11 after informing Doll that she
would be suspended over any future incident (G.C. Exh.
23). Although Respondent did not count this voided
warning as one of the prior warnings, the incident was
litigated because of the General Counsel's desire to show
animus through the event. Recognizing that any warning
occurring before November 7, 1983, falls outside the stat-
utory limitation period, the General Counsel asserted
that he was seeking only to explore the background
events in order to show that Respondent was unlawfully
motivated when it suspended Doll in January 1984 and
when it fired her on May 1. He expressly stated that he
was not seeking any remedial removal of the prior warn-
ings, and it is clear that he does not seek to amend the
complaint respecting the prior warnings.
The General Counsel's expressed desire was to inquire
into the four incidents leading up to Doll's discharge and
on which Respondent relied as part of its PDS.15 As Re-
spondent did not expressly rely on the voided warning of
October 1983, it is unclear whether the General Counsel
realized such fact at the point in the hearing when we
began exploring the subject of the napkins (the October
1983 incident). In any event, a large amount of evidence
was elicited on the napkins incident.
During her testimony Personnel Manager Kulaski dis-
closed that Doll's personnel folder contained a warning
issued to Doll on October 8, 1981 (R. Exh. 16). Al-
though the form of this 1981 document differs somewhat
from the 1983 and 1984 items, it is substantially similar.
Doll allegedly "Refused to sign" the disciplinary
notice. ls In essence the form asserts that one Patsy
Daugherty warned Doll for causing a "violent argu-
ment" over a table assignment by Daugherty, and by "de-
fying my authority" and "yelling at me" in the process
(R. Exh. 16).
On May 1, 1984, therefore, Doll's personnel file con-
tained the following disciplinary actions:17
Date Incident Action Supervisor
10-8-81 Table Written Patsy Daugherty
reassignment warning
7-13-83 Insubordination Written Kathy Gray
in resetting warning
table
8-13-83 Tardy 30 mins. Written Kathy Gray
without warning
calling
10-3-83 Insubordination : Written Kathy Gray
Refusing to warning
get napkins (Warning
voided by
von Salm
10-11-83)
1-23-84 Bread tray Suspension Kathy Gray/von
Salm
5-1-84 Brunch ticket Discharged Bernard Sisman
As we have seen, Gray did not count the October 8,
1981 item. This was because she apparently had not ex-
amined Doll's personnel file. Gray testified that she
keeps track of the warnings which she issues. For some
reason Sisman 's count was the same as Gray's even
though Sisman and Kulaski, as already noted, went
through Doll's entire file.
Earlier I began a description of the PDS. Following
the fourth step, ranging from warning to discharge, there
appear sections 'A and B. The preamble for section A in-
cludes a statement advising that commission of any of 12
enumerated acts will be considered "just cause for imme-
13 In practice the Hotel does not count warnings by each category, for
warnings of different infractions are added Moreover, in his May 31,
1984 pretrial affidavit at 2, Sisman states that warnings are not retired, or
purged from the personnel file, after the passage of time, but are perma-
nent records (G C. Exh 2)
14 Gray misstated in her testimony when asserting that the tardiness
warning occurred in October 1983, for it is clear that the tardy warning
issued August 13, 1983 (G C Exh 22a) As we shall see in a moment, a
warning 'did issue in October 1983, but it was voided
is The last two incidents resulting in Doll's suspension and discharge
are alleged in the complaint The other two warnings fall into the "back-
ground" being outside the statutory limitation period.
16 Each of Doll's disciplinary notices indicates that she refused to sign
17 The July 13, 1983 and later documents have boxes to check for rep-
rimand, suspension , discharge, and boxes to check showing the reason,
such as insubordination Although the October 8, 1981 warning has no
boxes, it appears that the incident would have been described as insubor-
dination had there been such a box to check.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diate suspension and, pending review , DISMISSAL."
Item 4 reads in part:
4. Theft (unauthorized removal) or misappropriation
(unauthorized storage, transfer or utilization) of
guest , employee or hotel property. . . .
Section B contains 17 lesser prohibited acts such as ex-
cessive, unexcused absenteeism or tardiness (2). Commis-
sion of any of the Section B acts will be considered, the
preamble advises, just cause for remedial action "which
could involve a written reprimand, suspension from
work without pay for a specified period of time, in the
event of repeated violations of house rules.
2. The Hotel's cost accounting system
Sandy Francis plays the piano at the Hotel's Sunday
brunches. She began performing in October 1983. An in-
dependent contractor , Francis' contract provides, in ad-
dition to her fee , that she and any one guest of hers may
receive complimentary meals at the Sunday brunches
when Francis performs. Gray has not seen the contract,
but understands that it, as with that of other musicians,
does provide for the two complimentary meals. In
common terms, Francis is entitled to two free meals at
the Sunday brunch when she performs . Sisman acknowl-
edged that from the standpoint of a waitress , the musi-
cians get two free meals.
On the other hand , one of Sisman's central points is
summed up in his testimony : "There is no such thing as a
free lunch." 18 What Sisman meant , as he explained in
detail , is that the complimentary meals must be included
in the Hotel's cost-accounting process. He testified that
there is an accounting procedure for all food eaten, for
the Hotel had to pay for all such items to begin with,
and a proper cost-accounting procedure can mean the
difference in whether the Hotel makes a profit. Thus, it
is misleading (from the Hotel 's standpoint) to say that
anyone can eat free, for there must be an accounting,
and this is done by a cost-accounting procedure which
begins with the check issued by a waitress . VDR Manag-
er Gray described the correct ticketing procedure a
waitress must follow. Thus, she testified that the tickets
or checks are to be filled out completely by the waitress-
es. For a Sunday brunch this means that waitresses are to
enter the appropriate data in boxes on the ticket which
call for the date, server number, table number, and
number of persons served (R. Exh. 1).
When a musician ' such as Sandy Francis sits in the
dining room for Sunday brunch with two guests, Gray
testified that the ticket should show the above data with
the number of persons being three, the ticket, or check,
marked as three buffets, and the amount (price) of three
buffets written on the check. The price for one buffet is
$12.31, including tax. Both Sisman and Gray testified
that it is the responsibility of the waitress to fill out the
check correctly. Sisman further testified that the waitress
18 At p 389 of Alistair Cooke's America (1973) appears the following
More often than I care to admit , one of the oldest of American
chestnuts seemed newly roasted It is that line of the Italian Immi-
grant asked to say what forty years of American life had taught him
"There is no free lunch "
can collect for the tickets, although the Hotel prefers
that on Sundays customers take the checks and pay the
cashier because usually Sunday brunches are a busy time.
Sandy Francis , Sisman explained , simply signs her
checks, adds the designation "musician," and submits the
check to the cashier. It is her signature in that capacity
which indicates her complimentary meal or meals. The
cashier , on receiving a musician 's signed check, marks
the ticket off a check control sheet.19
From the cashier, the tickets are taken to the front
desk where Hotel 's account posting process occurs. One
account is for "other meals ." Sisman explained that the
"other meals" category basically is a managerial account.
Personal accounts also are maintained at the front desk
for individual musicians, managers, and others. In the
given example, that of Francis dining at Sunday buffet
with two guests, the appropriate account posting at the
front desk would be: two of the buffet meals would be
posted to "other meals" and one meal for $12.31 would
be posted to Francis' individual or personal account to
be paid by her later. As Sisman also explained, there is
no cumulative meal bank for complimentary meals not
taken by a musician. To attempt to ascertain and record
the correct information concerning whether and when
the musician worked and ate would create a big adminis-
trative problem, Sisman testified.
3. Doll's evaluations
Although Gray testified that employees are evaluated
twice a year, in January and July, the record contains
only six evaluations for Doll.20 They reflect that Doll
was rehired on February 1, 1978 (R. Exhs. 15a, e). As
Doll testified that she had worked at the Hotel for 7
years, it is apparent that she had an earlier employment
period with the Hotel of a few months. I do not consider
the reports for the truth of the comments contained in
them, but only to show the evaluation record which
Sisman reviewed on May 1 when determining what deci-
sion to make concerning Doll's Sunday brunch ticketing
procedure on April 29.
The first evaluation is a progress report, dated May, 17,
1979, and, unlike the other five, is simply a short hand-
written memo rather than an evaluation done on a stand-
ardized form with blocks to check and spaces in which
to write comments. In this 1979 report, Dorothy Steed2l
rates Doll as "good" and comments (R: Exh. 15):
Violet is a good waitress, but complains about ev-
erything. Nothing suits her. The bus help doesn't
like to work for her as they cannot please her. She
does come on time, but wouldn't come in an extra
19 Sisman did not describe the control sheet However, as each ticket
bears a different preprinted number, it appears that the control sheet con-
tains a list of all check numbers As the checks come through the cashier,
the corresponding number on the control sheet is marked in same fash-
ion The control list then shows the numbers which remain outstanding
as well as the accounting mark made on the control sheet for each ticket,
which has passed through the cashier 's stand
20 This is not to suggest that there were others not introduced
21 Personnel Manager Kulaski identified the report and, in this in-
stance , Steed's name
ARLINGTON HOTEL CO. 31
day. Violet can handle a fair amount of guests at
once, but gets excited.
Violet's been in the dining room about a year and 8
months.
Steed does not record whether she discussed her eval-
uation with Doll, and Doll did not say during her testi-
mony. It is pertinent to note that Steed's evaluation pre-
dates the union activity at the Hotel.
The next evaluation, by Laverda Hayes, is dated Janu-
ary 29, 1982 (R. Exh. l5e). This report comes just short
of 6 months after Doll's August 5, 1981 recall from the
strike. Hayes gives Doll good to excellent marks and
recommends a pay increase for Doll who signed the
evaluation without comment.
Six months later, on July 31, 1982, Marjorie Blevins
submitted her evaluation in which she marked all four
categories (punctuality, job performance, personal ap-
pearance, and attitude) as good. Blevins did not add any
comments under any of the categories, and Doll signed
without making any comment.
The next evaluation is by James Travis. He was
Gray's predecessor as manager of the VDR. In his Janu-
ary 1, 1983 evaluation, Travis marked the boxes for each
of the four categories as "good," and he added a com-
ment under each category. Under the category for atti-
tude toward guests and fellow employees, Travis wrote
(R. Exh. 15c):
Violet's attitude is generally good. She does tend to
be a bit temperamental at times with her attitude to-
wards her bosses.
Doll signed without commenting, and the form reflects
that she received a pay increase from $2.75 to $2.90 ef-
fective February 7, 1983.
Doll's last two evaluations are by Kathy Gray. The
first of these, being the fifth evaluation of record, is
dated June 29, 1983 (R. Exh. 15d). Gray marked the
boxes as "good" with the exception of the category for
personal appearance which she marked as excellent.
Gray added a comment under each category. Under
punctuality Gray stated that Doll "reports for scheduled
shift usually on time." Under job performance Gray
wrote, "Usually gives good service to guests-Some-
times spends too much time in kitchen." Under personal
appearance Gray wrote, "Always neat and clean." For
attitude Gray wrote:'
Willing to serve guests. Needs to be more receptive
to new ideas & methods. Needs improvement in at-
titude toward fellow employees.
Doll signed and added her own comment: "I have a
very good attitude. I disagree with #4 & 2."
It happens that about March 1983, while she was
VDR supervisor, and before she became VDR manager,
Gray decided to rotate the table assignments in the VDR
to equalize the earnings opportunities of the waitresses.
Previously the table assignments, except for a brief
period of about 2 months from early October to about
December 1981 under Patsy Daugherty,22 were by se-
niority. The best stations were 1, 2, and 3 because they
had tables by and near the windows where the customers
wanted to be seated.23 The most senior person was
Frank- oast name not identified in the record) who had
been a waiter for 20 years. He had station 2, the,pre-
ferred location. Doll testified that it had taken her 3
years to work up to one of the stations with window
tables from Station 5 which was in the worst location.
At that time Doll, who ranked third in seniority
behind waiter Frank and waitress Marie Halpain, had
station I because Halpain preferred station 3. Frank had
station 2 in the preferred location.
Doll testified that at various times she, as the Union's
spokesperson, presented employee grievances to Gray
and other managers. When Marie Halpain and Helen
Lloyd protested to Doll about losing their seniority
rights under Gray's March 1983 rotation formula, Doll
presented this complaint to Gray.24 When Gray rejected
Doll's complaint,25 Doll appealed to F & B Manager
von Salm. Although Doll initially testified that von Salm
said he would affirm Gray, it 'is clear, as Gray testified
and Doll concedes, that von Salm allowed the waitresses
to vote on the matter. According to Doll, the new wait-
resses outvoted their more senior colleagues and chose
the rotation method. Doll testified that rotation of the
stations was still the method as of her termination over a
year later.
Returning now to Gray's attitude evaluation, that Doll
needs to be more receptive to new ideas and methods, I
note that Gray repeated the "good" rating which Doll
had always received for that category. It is possible that
Gray's comment (about needing to be more receptive to
new ideas and methods) had a negative impact on
Sisman when he reviewed Doll's file on May 1, 1984.
Thus, Sisman testified that in reviewing Doll's file he
found what appeared to be:
A disruptive type of individual, a freelance type of
individual, one who chose to take her own actions,
make her own determinations as to how, you know,
whether she would follow supervision or she
wouldn't follow supervision. I felt that in itself was
very relative to the incident that happened, the fal-
22 At that time Doll protested the change to Daugherty so vigorously
that Daugherty, as noted earlier, gave her the warning (R Exh 16) dated
10-8-81.
22 A diagram of the current arrangement is in evidence (R Exh 32).
Although the present arrangement differs somewhat from its 1981 config-
uration, it apparently is approximately the same concerning location. I do
not credit Gray, who unpersuasively, testified that no station is 'better
than any other. In addition to the demeanor factor, I note that Gray's
conceded reason for switching to a rotation basis for station assignments
was to provide the waitresses with an opportunity for equal earnings Of
course, the waitresses rely on tips to boost their pay.
24 The record does not reflect whether waiter Frank had retired by
1983 and whether the most senior waitresses were, or included,' Doll,
Halpain, and Lloyd. Doll did testify that she was one of the more senior
waitresses in the VDR
25 Gray testified that Doll reacted to the reassignment by cursing,
slamming drawers, and disturbing waitresses and guests from 6 a in to 2
p in Doll concedes that she was angry at the 1981 change by Daugherty.
She no doubt felt similarly about Gray's decision
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sifying of the check, which was totally an independ-
ent decision on her part.
Of course, by acting as spokesperson for the Union
and bargaining unit waitresses , Doll was engaged in pro-
tected concerted activities when she protested Gray's
unilateral change of the seniority system of table assign-
ments.26
Doll's final appraisal reflects that she was evaluated on
January 23, 1984 (R. Exh. 15a). The question of the
exact date is unsettled, for it is the same date that Gray
arrived at noon. Doll had left shortly after 11 a.m. fol-
lowing closing of the VDR.27 As already noted, Doll
was suspended later that week for failing to put away the
bread tray before leaving the morning of Monday, Janu-
ary 23. Gray herself was uncertain regarding the se-
quence, and Doll was not asked about 'the sequence. The
question of the exact date of either the evaluation or the
warning does not appear to be a material issue . Accord-
ingly, I shall not seek to resolve it.
On this final evaluation, Gray gave Doll reduced rat-
ings in the boxes. There are three columns with boxes.
One column is for "Excellent," the second for "Good,"
and the third for "Poor." Gray marked punctuality as
good. For job performance sheentered a mark between
the good and poor rating. For personal appearance she
rated Doll good, down from the excellent rating of 6
months earlier. For attitude Gray first rated Doll as
poor, but crossed that mark out and then entered a mark
between, the, poor and good boxes. For her comment
under punctuality, Gray wrote that Doll was'occasional-
ly 5 to 10 minutes late but "never fails to report." Under
job performance Gray, wrote that Doll knows her duties
but sometimes gets in a rush and forgets. Gray then
added that Doll "Cannot handle full station during a la
carte because she watches food cook in kitchen." For the
personal appearance category Gray wrote that Doll "has
lately been coming to work with hair in her face, how-
ever, on weekends her hair is nice, neat uniform, pol-
ished shoes."
For the fourth category of attitude toward guests and
fellow' employees, Gray wrote: "Has difficulty getting
along with others; has hard time accepting new ideas &
procedures."
Doll signed this evaluation , and added her own remark
under Gray's comment about attitude: "Only when
people are nasty to me 1st."
4. Credibility resolutions
In making my credibility resolutions, I first have cred-
ited the testimony of Sandy Francis. Although Francis
was called as a witness by the General Counsel, she gave
certain testimony which either contradicts or otherwise
undermines that given by Doll in such critical aspects of
the case as to demonstrate that Doll was being less than
26 The complaint contains no refusal-to-bargain allegation concerning
Gray's changing table assignments from a semonty-based system to rota-
tion method Colloquy at the hearing indicates that the General Counsel
was not aware of the change until late in the hearing
27 As a VDR waitress, Doll worked 6 days a week, 6 a in to 12 noon
during racing season, and 6 30 a .m. to 11 a . m during the rest of the year.
For Sunday brunch the waitresses apparently worked until about 2 p in
candid as a witness before me. Accordingly, I have been
heavily influenced by this in making other resolutions ad-
verse to Doll.
At the same time I must note that Sisman and Gray
did not appear to be candid in all respects either . Indeed,
but for the testimony of Francis, my findings could well
have been the other way.
-C. Discussion
1. Background incidents
a. Warning of October 8, 1981
In this written warning to Doll, Patsy Daugherty de-
scribed ' the event as (R. Exh. 16):
Violet caused a violent argument today with
Howard over table 'assignment, defying my author-
ity on assignment & yelling at me also & telling me
she had seniority it should be her way.
In the section for improvement expected , Daugherty
wrote that Doll must control her temper on the floor to
avoid upsetting employees and guests.
As already noted, Doll was protesting because Daugh-
erty had decided to rotate table assignments rather than
have them assigned based on seniority . Doll denied that
she engaged in a violent argument with Daugherty. I do
not credit Doll, and I find that she did yell at Daugherty
in making her protest . This apparently occurred in the
presence of other employees, although I make no finding
that there were customers present. There is no evidence
that Daugherty made this change because of the union
activities of Doll or any other employee.
b. Warning of July 13, 1983
The July 13, 1983 warning potentially reflects retalia-
tion against Doll, for it closely follows her distribution of
union literature regarding the decision of the Eighth Cir-
cuit. I credit the Hotel's witnesses on this matter and
find that Doll was issued a warning by Gray because of
Doll's insubordination in resisting an order to wipe the
silverware before placing -it on the tables and not because
of Doll 's union activities. Doll initially refused, saying
she was not paid to do that . However, other waitresses
did so . Eventually Doll complied , but she slammed the
silverware on the tables. This is not the first time Gray
had ever warned anyone for subordination . Thus, the
record reflects that Gray had warned an employee, Jerry
Cochran, in April 1983 for -insubordination.
c. Warning of August 13, 1983
Gray issued Doll a written warning for being 30 min-
utes' tardy on August 13, 1983. Doll asserted at the hear-
ing that she was late because her electricity went off,
and the General Counsel seeks to show disparity by vari-
ous time records of others. The records fail to demon-
strate disparity , and I -find'that Gray issued the warning
to Doll for the simple reason that Doll was late. More-
over, the record reflects that Gray had warned others
for tardiness on other occasions. I -
ARLINGTON HOTEL CO. 33
d. Warning of October 3, 1983 ,
Although Gray's third written warning , dated October
3, 1983 , to Doll was voided by F&B Director von Salm
8 days later, the record contains a great deal of evidence
concerning the topic . This is the warning Gray issued for
Doll's alleged insubordination in refusing to get some
napkins from the laundry.
On this topic I credit Doll and the General Counsel's
witnesses concerning the facts of the event. Thus, I find
that on October 3, 1983, Gray told Do1128 to go to the
laundry (downstairs)' and get some fresh napkins for the
dining room at a time when busperson Michael Hicks,
whose job it was to supply napkins for the dining room,
was in the kitchen and available to do the work . I do not
credit Gray's version that she issued the order because
Doll was using a paper napkin in her breadbasket.29
There is credible evidence that Gray on occasion, as
she did in this napkins incident , tends to bully Doll. In
one instance, for example , she stood over Doll while re-
quiring her to clean up broken glass . Although Gray has
required others to clean up broken glass , she has never
stood over them . Moreover, Gray tends to observe Doll
more closely than the other waitresses . However, I find
that Gray was motivated not from union animus, but
from the personality differences between her and Doll.
Gray tends to exert her authority . Doll was concerned
more with satisfying her customers and maintaining her
job standards than with pleasing Gray. Tension resulted
from this basic difference in their approach toward each
other. When there is tension between supervisor and sub-
ordinate , the words of Confucius come to mind:30
The relation between superiors and inferiors is like
that between the wind and the grass . The grass
must bend when the wind blows across it.
2. Complaint allegations
a. Suspension of January 23, 1984
True to his word of October 11, 1983, to Doll, when
Doll's next incident occurred, von ' Salm suspended her
for 3 days without pay beginning January 26, 1984 (G.C.
Exh. 25a). This suspension is based on Gray's issuing a
written warning to Doll for her failure to store the bread
tray at the end of her shift on January •23.
For the most part I credit Gray concerning this event,
although I also credit certain elements of the General
Counsel's evidence. What happened, I find, is that Doll
and waitress Sara Garner, who left work together that
day, simply forgot to take care of their final duties. Doll
was to put' away the bread, and Garner was to put away
the fruit.
28 Doll was in the kitchen to pick up toast to carry to some of the 14
customers she was then serving.
29 It is the responsibility of the waitress to supply and use cloth nap-
kins in the breadbasket and, if none are available in the dining room, then
the waitress must go to the laundry for them The busperson supplies
cloth napkins for the dining room, although waitresses may use any
extras from that location.
30 As quoted by Judge Thomas A Ricci in Masterson's Food & Drink,
267 NLRB 248, 252 ( 1983) See also Bartlett, Familiar Quotations, 69-2 (15
ed 1980). Of course, Confucius also emphasized the virtue of justice.
At one point that morning there had been a large
water spill and, part of the time, workers cleaned the
kitchen ceiling from a scaffold. Doll claimed that these
items interfered with her access to the bread and that she
so told von Salm who would not listen. Gray testified
that Doll did not mention such matters. I find that the
water spill had been cleaned up before the end of Doll's
shift, and that the scaffolding was not blocking her
access to the bread tray. In short; I find that Doll seized
on these matters as afterthoughts. Accordingly, I shall
dismiss the complaint as it pertains to the suspension.
b. Discharge of May 1, 1984
(1) Sunday brunch of April 29, 1984
Patrons at the Sunday brunch do not order from a
menu, but fill their own plates from a buffet table and
then sit at a table in the Venetian Dining Room. During
the relevant period, the price for Sunday brunch was
$12.31, including tax. Waiters and waitresses simply serve
beverages, pour coffee, remove plates, issue checks, and
sometimes collect if the customer desires to pay them
rather than the cashier.
On Sunday, April 29, 1984, Sandy Francis performed
at the Hotel. Visiting with her that day were two young
men, one of whom was her son Chuck, 19 years old, and
his friend from, college, Phil Brown. Before they sat
down to dine, Francis and the, two-students agreed that
Chuck-and Phil would split the cost of the third meal.
After Chuck and Phil selected from the buffet, they were
seated at one of the tables being served that day by Doll.
Francis knew Doll and also had known' Carol Sisman,
Bernard Sisman 's wife, for a couple of weeks.3' When
Francis completed her piano performance around 1 p.m.,
she selected from the buffet and joined Chuck and Phil.
Even before Francis joined them, Carol Sisman, who
was not eating, 32 sat down at the table with the two stu-
dents.
During the course of the meal, Francis introduced
Chuck and Phil to Doll and, on one or more occasions
during the meal, Francis and Doll, who had become ac-
quainted sometime, after Francis began performing at the
hotel, engaged in small talk. Toward the end of the meal,
and with Doll present, the earlier matter of Chuck and
Phil dividing the cost of the third meal was mentioned,
as well as the fact that boys eat a lot. Doll left to service
other tables, but on her return'she suggested to Francis:
"Well, why don't we write this off to other meals? Man-
agers do it all the time." Carol Sisman remarked to Doll,
"If there is any problem, tell them they were my guests."
Francis testified that she thought Doll was referring to
some credit Francis possibly had for second complimen-
tary meals not taken in the past, but that she, Francis,
said nothing and Doll moved on to other tables.
Doll testified that Francis in fact said she did not un-
derstand or - asked what the term meant, and Doll ex-
plained that Francis got two meals free and Doll would
give her a check for the other boy. Francis supposedly
ai Carol Sisman did not testify Sisman testified that his wife does not
work at the hotel
112 Carol Sisman apparently had a cup of coffee.
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said she would take care of it, and Carol Sisman, either
then or later, said that she would take care of it, and that
Doll left the ticket on the table saying that it was okay
because Francis would take care of it. Doll concedes
some uncertainty about what she said.
Doll rambled with her version and, in the main, I
credit only that part which is consistent with the testimo-
ny of Francis. Carol Sisman later reported this brunch
conversation to her husband. Although Carol Sisman did
not testify, Bernard Sisman, the first witness called to the
stand, testified that his wife, in her report to him, assert-
ed that Francis did ask what Doll meant by "other
meals," and that Doll basically did not answer.
Carol Sisman's hearsay report was not received for the
truth of its contents. Nevertheless, it does tend to sup-
port Doll's version that Francis asked and Doll ex-
plained, all of which is of no real moment, except for
one thing. The significant aspect is the portion of Doll's
testimony that her explanation to Francis included the
portion that Francis could pay for, in effect, the third
meal. This shows that Doll was aware that the hotel
needed to be paid for the third meal.
Before going further, I must report the ending scene at
the brunch table. Francis, whom I credit on this point,
testified that when Doll returned to leave the check, she
said, "Better yet, why don't I give you the check." Doll
concedes that at some point she did make that statement.
Doll then laid the check on the table by Francis who
signed her name over the title of musician and thereafter
left the check with the cashier.
The check, bearing number 153619, reflects, in the ap-
propriate places, that on April 29 server number 13, at
table 22, served one person who had a buffet at the total
price of $12.31 (R. Exh. 1). Doll testified that her wait-
ress number was 13.
There is a dispute concerning whether Francis intro-
duced Doll and Sisman to each other at the brunch. In
two pretrial statements, Doll asserts that she was not in-
troduced. The first one is the May 9, 1984 statement
which she gave to the local Arkansas unemployment
office (R. Exh. 4). In that one-page statement Doll as-
serts that Sisman is a new manager and "I was not ac-
quainted with his wife. It would not have made any dif-
ference if I had known who she was because I was han-
dling Ms. Francis's check the way I always had."
The second pretrial statement is Doll's May 15, 1984
pretrial affidavit (R. Exh. 2). At the hearing the follow-
ing sentences were read to Doll from page 4 of her affi-
davit:33
Mrs. Sisman joined them at the table while they
were eating. She just had coffee. I did not know
Mrs. Sisman at the time and was not introduced to
her at that time.
Doll testified that her pretrial affidavit was in error,
and that in fact Francis had introduced her and Carol
Sisman at the brunch. Francis denied introducing them at
the Sunday brunch. Francis assumed that everyone on
as As the sentences were read to Doll on the record, Respondent's
offer of the affidavit was rejected and the document was placed in the
rejected exhibit file.
the staff knew ' Sisman 's wife, but testified it did not
appear at the brunch that they knew each other because
Carol Sisman "had her back to" Doll and they ex-
changed no words.34
Doll testified that she realized the error of her pretrial
affidavit when, a week or more after having given the
affidavit to a Board agent, she telephoned Francis and,
according to Doll, Francis reminded her that she had in-
troduced Doll and Carol Sisman at the brunch. Doll-tes-
tified that she telephoned Francis to tell her not to feel
upset over Doll's discharge, for the discharge was not
because of Francis but because of other reasons.
Although Francis agrees that Doll did telephone her,
she gives a different version of these points. Francis,
whom.I credit in this matter, testified that a month or so
after the brunch, or about May 29 or later, Doll called
and succeeded in persuading Francis to talk with her
lawyer. As part of her appeal to Francis, Doll said:
"Sandy, I was only trying to have you not have to pay
for that third meal."
Although called during the rebuttal stage , Doll was
not asked about the foregoing testimony of Francis-The
latter also testified that as Doll's assertion was part of
her persuasion pitch, Francis made no response to that
specific statement.
Finally, Francis, whom I credit on the point, denies
saying anything in the telephone conversation to Doll
about having introduced Doll and Carol Sisman, and she
denies introducing them at the table. I therefore find that
when she left the check with Francis, Doll was unaware
that the woman seated at the table with Francis and the
boys was Carol Sisman.35
In Doll's affidavit, the very next sentence following
the quotation about not being introduced reads, "I found
out later that the lady was Mrs. Sisman." As that sen-
tence is properly part of the subject quoted, and highly
relevant to this overall issue, I shall consider it as being
part of the evidence received. In this connection I note
that Sisman, as we shall see, concedes that at the first of
two interviews he held with Doll on May 1, Doll chided
him for not introducing her to his wife, and that Doll ex-
pressed the position that the April 29 brunch had been
the first occasion for Doll to see Mrs. Sisman.
What actually happened, I find, is that between the
Sunday brunch of April 29 and the first interview of
Tuesday, May 1, Doll learned that the woman at the
table with Francis had been Carol Sisman.
As we have seen, Gray testified the check should have
shown that three persons ate buffet meals at a unit price
of $12.31, or a total of $36.93. Sisman testified that all
34 Of course, the "no exchange" is inconsistent with Francis' testimony
that Carol Sisman earlier had told Doll that if there was any problem on
the ticket to simply tell "them" that Francis and the boys were her,
Carol Sisman's, guests The testimony of all the principal witnesses con-
tains inconsistencies Not every inconsistency needs to be, or can be, re-
solved. The version I set forth is based on the credited testimony.
35 Doll's remark that "Managers do it all the time" clearly caught
Carol Sisman's attention It is unlikely that Doll would have so remarked
had she been aware that the woman seated with Francis was Sisman's
wife There can be no doubt that Sisman, on learning of Doll's remarks
from his wife, was incensed that Doll had talked about charging meals to
a managerial account
ARLINGTON HOTEL CO. 35
three meals should have been listed on the check and the
hotel paid $12.31 for the third meal. Under proper cir-
cumstances, the check showing three meals would have
been handled at the front desk by posting Francis' two
complimentary buffets to the managerial account desig-
nated "other meals," and the third meal would have been
posted to Francis' personal account.
As part of the Hotel's accounting procedure, all com-
plimentary checks must be initialed (approved) by
Sisman before they are posted. Sisman testified that had
he approved this $12.31 check, then the accounting clerk
at the front desk would have treated it as a complimenta-
ry meal of Francis and posted it to "other meals". Under
normal circumstances, the Hotel not only would have
lost $12.31 for the third meal, but there would have been
no cost accounting (showing expense to the Hotel and
compensation to the musician) for the two complimenta-
ry meals.
Normal events did not prevail here because Sisman,
having been alerted by his wife about the Sunday brunch
conversation between Francis and Doll, was on the look-
out for the check. Had it not been for Carol Sisman's
report to him, Sisman admittedly would not have been at
all suspicious about the check.36 Indeed, in going
through the stack of complimentary checks and invoices
he has to approve, Sisman erroneously initialed this
check before realizing that it was the.one he was looking
for. However, Sisman saw the check, observed that it ac-
counted and charged, for only one meal, and pulled the
check.
Sisman suggested that he was looking for a check
signed by Sandy Francis.As earlier noted, the waitress is
identified on the check by number, not by name. Doll's
number was 13, and that is the number on the check (R.
Exh. 1). Sisman then called Gray and inquired which
waitress was 13. On being told by Gray that it was
Violet Doll, he instructed Gray to bring Doll to his
office to discuss a problem. About 5 minutes later Doll
arrived at Sisman's office.
Before discussing the discharge interview, we need to
consider some background for Doll's version of why she
wrote the check as she did. First of all, Doll concedes
that several years ago the then food and beverage man-
ager, whose name she could not recall, not only told the
staff that ,a check would always be given to employees
who eat, but explained that this was necessary for ac-
counting purposes, tax reasons, and to assist the Hotel in
ascertaining its, profit and loss. Gray also testified that
this has, been a'', standing rule for years, and that a former
food and beverage manager named Heinz Graf-Polke
(spelling per Hotel's br. at 5) had issued a detailed memo
on the subject. The memo was not offered, but there is
no dispute about the general rule, and Doll testified that
she always followed that rule until the April 29 Sunday
brunch with Francis.
Doll insists that at one of the VDR staff meetings
Gray informed the waitresses that if an employee comes
through the (Sunday) buffet line, "You do not need to
give a check 'every time." Marilyn Yates Sallee asked
36 Sisman rates the Hotel's internal accounting system as poor in the
category of catching errors
whether Gray was including musicians.37 According to
Doll, Gray replied yes. Gray also added that the staff
could sometimes bring their family for the Sunday buffet
and that no ticket would need to be made for them. Al-
though subsequently called as one of the General Coun-
sel's witnesses, Sallee was not asked about this topic.38
I find that Doll's rather brief, even skimpy, testimony
on this topic is a garbled report about a larger subject
better explained by Gray. Under Gray's explanation, it is
clear that Doll mixed separate policies and then distorted
them in her description. Gray testified that former F & B
Director George von Salm allowed employees of the
kitchen and the two dining rooms to select from the
buffet after the close of Sunday brunch. No checks were
issued to anyone because the food would have been dis-
carded, and the employees carried their plates back to
the cafeteria or their work stations and not to a table in
the VDR.
A separate von Salm policy, apparently of more recent
origin than the first, involved a privilege von Salm ex-
tended to Gray for her VDR employees. Gray testified
that von Salm told her she could allow her employees to
bring their families in for dinner, brunch, or other meal
without charge to them. Gray did tell her staff, including
Doll, that they could bring their families for a meal, eat
as her guests, and that she would take care of the
check.39 She further testified that although no check
would be presented to the employee and his family, that
she nevertheless would make out one, for accounting
purposes, . and did so on the three occasions when em-
ployees ate without paying anything.40
Around April 1, shortly after von Salm had departed,
Sisman learned about, von Salm's policies. He put an,
abrupt stop to them, as Gray credibly testified, on the
basis that it was unfair, to the employees of Hotel's other
departments.
Waiter Michael Hicks, a busperson during that period,
confirmed that Gray informed her VDR staff that the
former policy of a free buffet for employees had ended
on Sisman's order. Hicks was a most reluctant witness as
he sat on the witness stand under the watchful gaze of
his supervisor, VDR Manager Kathy Gray. I closely ob-
served this situation. Hicks testified that he was con-
cerned that he might not be promoted and that he did
not feel good about , testifying against Gray.41 It was ob-
vious that Hicks was extremely uncomfortable having to
testify as Gray sat 'before him at the counsel table. In
these circumstances, and over Respondent's objection, I
granted the General Counsel's motion to receive Hicks'
87 The transcript incorrectly renders her middle name as "Gates"
when it should be "Yates" (G.C. Exh 37; R. Exh, 31) Doll simply re-
ferred to her as Marilyn Yates, apparently a maiden name.
38 It appears that Sallee quit at the end of the 1984 racing season.
39 Although Gray denied informing employees that no check would be
prepared, she never specifically denied being asked about musicians
However, the context and thrust of her testimony on this topic impliedly
rejects the idea that the, subject of musicians was raised by Sallee or
anyone,at the staff meeting ,
40 One of these was Gray's family in December 1983, and the other
two were employees who came in with their families in March 1984 (R
Exhs 35-37)
•ERR14#41 As we shall see, some of Hicks' other testimony is adverse
to Gray
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 30, 1984 pretrial affidavit on two subjects for the
truth of the matters stated therein as well as for clarifica-
tion purposes.
*ERR13*One of the subjects for which the affidavit
was received is the topic of the rule about eating from
the buffet. Although that particular point is probably
clear enough in Hicks' testimony, his May 30, 1984 pre-
trial version describes the first notice by Gray to her
staff more succinctly (G.C. Exh 20 at 1):
I recall that Kathy Gray back during the racing
season used to have short employee meetings before
opening, the dining room doors. These were not
every day, but just now and then. In one of these
meetings Gray said that relatives or family members
of employees could have the Sunday brunch with-
out the check. She said one family member could
eat without a check.She did not give any details
about how this could be accomplished. She said
there would be no charge. She also said that the
employees could eat free from the buffet. She did
not say anything about we had to have a check. I
have eaten almost every Sunday brunch and have
never had a check. I eat from the brunch all the
time as does my little brother who is an employee
and we never get a check.
I do not recall Gray saying anything about the mu-
sicians in that meeting or any other meeting.
Based on the evidence, including the concise report by
Hicks in his pretrial affidavit, I find that the von Salm
policy consisted of two parts. The first policy related to
selecting from the buffet by employees after the VDR
had closed. The other policy pertained to Gray's being
able to have her staff employees come to dinner with a
member, or members, of their families as the guests of
the Hotel. I further find that in announcing this second
policy to her staff, the issue of musicians did not arise.
Finally, I find that around April 1 Gray informed her
staff that Sisman had terminated both policies.
From Doll's own testimony concerning her knowledge
of the "other meals" accounting procedure, it is clear
that Doll knew that if she gave Francis a check showing
only one buffet, that the $12.31 would be allocated to
"other meals" based on the signature of Francis over her
title of musician. Doll testified that in the past she gave
Francis a check, even when other waitresses told Doll
they did not give checks to the musicians,42 but deviated
42 There is a mixed record on this point. Sometimes they did and
sometimes they did not, even when the musicians sat at a table in the
VDR There is no dispute that when the musicians , such as Francis, se-
lected from the Sunday buffet and carned their plates into the adjoining,
and vacant, Silk and Saddle room, that no waitresses served them and no
checks were issued to them Marilyn Yates Sallee testified that she some-
times ticketed the musicians and sometimes did not because she was un-
certain about the correct procedure About hied-April 1984 she asked a
cashier who told her to give the musicians a check, and Sallee did so
thereafter.
It appears that the reason the waitresses did not like to issue checks to
the musicians was because of the recently modified Federal tax rules
Under the new tax rules, waitresses may be deemed to have received a
certain percentage of the restaurant's gross receipts in tips, yet the musi-
cians, Doll testified, never left tips
from her practice on this occasion because Francis sup-
posedly had asked Doll, on many occasions, why she
gave her a check when the other waitresses did not.43
There is credible evidence that before Sisman had
complete charge on April 1, Francis would not always
receive a check from the waitresses, and that Doll had
given her checks in the past. Further credible evidence
shows that after May 1, the date of Doll's discharge,
checks were issued to Francis far more frequently. Al-
though these facts are interesting, they mainly support
Sisman's position that the Hotel's internal accounting
system needed tightening up.44
That checks were issued more frequently to Francis
after Doll's discharge probably shows more that Re-
spondent was galvanized into further action, after learn-
ing of new facts from Doll at her discharge interview.
Moreover, we cannot overlook that in early April
Sisman abolished the free meal privileges for the staff of
his entire food and beverage department. That the Hotel
has been more efficient after May 1 in issuing checks to
Francis or others is more consistent with Sisman's desire
for efficiency and internal accounting security than with
demonstrating an unlawful motive, by showing disparity,
in the discharge of Doll.
(2) Doll discharged
As earlier noted, Sisman testified that his wife, Carol,
informed him of the Sunday brunch conversation be-
tween Francis and Doll. He testified that his wife told
him of Doll's comment that the check could be posted to
"other meals" because "that is what all the other manag-
ers do." Francis, Carol Sisman allegedly reported, in-
quired whether the procedure was correct, and Doll as-
sured her that it was. A few minutes later Doll returned
to the table, Sisman testified, and stated that she would
just make out the ticket for one meal and that Francis
could sign for that.
On May 1, with his wife's report and after locating
Francis' check, Sisman , as previously mentioned, sum-
moned Doll to his office. Present for this first of two
meetings that day were Sisman, Gray, Doll, and waitress
Rita Taylor, who accompanied Doll as a Weingarten45
witness.46 All four testified, and the findings I make on
this meeting are a composite of the testimony of all four.
At this first interview Sisman handed the buffet check
to Doll and asked her to explain what she knew about it.
Doll replied that it was Sandy Francis' check. Sisman
asked if there were not more persons at the table. Doll
replied "Yes," that in addition to Francis was her son
and another person, and that Mrs. Sisman had joined
them.47 To Sisman's question of why she had not
43 Francis was not asked to confirm or deny whether she did so in-
quire of Doll
44 I also have considered these facts in relation to Doll's testimony
that Gray told employees at a staff meeting that employees did not have
to ticket musicians The evidence previously discussed is more persuasive
that Gray never said the musicians did not have to be ticketed.
45 NLRB v. J. Weingarten, 420 U S 251 (1974) e
46 Taylor testified that she is vice president, and a steward for the
Union.
47 Sisman concedes Doll chided him for not previously introducing his
wife, for that brunch was Doll's first occasion to see Mrs Sisman The
Continued
ARLINGTON HOTEL CO. 37
charged for three buffets, Doll answered that Francis
and her son got their buffets free. Sisman asked, "Who
are you to make any decisions?" Doll responded that she
had made no decisions. Then Sisman asked why she did
not charge for them.
Doll looked at Gray and asserted that Gray had told
the staff several times that employees did- not have to
pay. Gray responded, "I just told you I would take care
of it." This exchange between Doll and Gray occurred
two or three times during the interview.
Doll said she could get witnesses to support her asser-
tion about what Gray had told the staff. Sisman said he
would be interested in talking with such witnesses be-
cause if Gray had told her staff, as Doll represented,
then the problem was with Gray and not with Doll.
Nothing further was said about witnesses, and Doll did
not, in the meeting or before the second meeting, seek to
furnish any witnesses.
At some point Doll asked whether Sisman had called
her in because she was the union president and they
were in contract negotiations. Sisman denied that was
the reason. He added that he had worked with unions,
and that some were good and some were bad.48
Sisman asked Doll if she knew that what she had done
was wrong. Doll denied doing anything wrong. This ex-
change was repeated a second time. The third time
Sisman asked if Doll realized that she had made a mis-
take, and on this occasion Doll admitted that she had
made a mistake.49 Sisman then said that the meeting was
over and that Doll and Taylor could return to their sta-
tions while he considered matters and talked with Gener-
al Manager Fischer.
Gray, Doll, and Taylor returned to work, and Sisman
telephoned Fischer and reported the situation to him.so
Sisman said he thought it was grounds for termination,
but he asked Fischer what he thought should be done.
According to Sisman, Fischer said he felt he, Fischer,
should keep his distance from the matter because he was
involved with the Union in negotiations. However,
Fischer added, he felt that the issue should be handled
under the rules in Respondent's handbook, and he direct-
ed Sisman to discuss the matter with Personnel Manager
Jo Ann Kulaski. As already summarized, Sisman tele-
phoned Kulaski who reviewed the file with him first
over the telephone and then in person.
chiding does not necessarily imply that an introduction occurred at the
table. It can also mean simply that it was the first time for Doll to see the
person Doll subsequently learned was Sisman's wife.
48 At the hearing Sisman initially was less than candid when he testi-
fied that Doll's question was his first inkling that she was associated with
the Union On being shown his pretrial affidavit admitting being told by a
customer 2 to 4 weeks before Doll's discharge of her involvement with
the Union, Sisman disingenuously sought to parry the thrust of the affida-
vit with various clarifications. Sisman's effort was unavailing and unper-
suasive He testified with an unfavorable demeanor and I do not credit
him on this issue Indeed, rather than it being a customer who alerted
Sisman to Doll's activities with the Union, I find it far more likely that
either Fischer or possibly Gray was the source of his information. Gray
admitted that she was aware that Doll was attending the contract negoti-
ations because Doll occasionally requested time off to attend them
48 At the hearing Doll denied that she made any mistake, and asserted
that she made the admission only because Sisman was harassing her
50 Fischer did not testify
Sisman testified that from his review of Doll's person-
nel file, he determined that Doll was basically "a disrup-
tive type of individual, a freelance type of individual,
one who chose to take her own actions, make her own
determinations as to how, you know, whether she would
follow supervision or she wouldn't follow supervision. I
felt that that itself was very relative to the incident that
happened, the falsifying of the check, which was totally
an independent decision on her part." -
Sisman was not examined concerning the specific
grounds he was relying on. I therefore find that he was
relying on all of Doll's prior evaluations and warnings in
forming his-opinion of her'. .
About 30 minutes or so following the close of the first
interview, Sisman called Doll back for the second and
final meeting. 51 -
The second meeting appears to have been brief.
Present were Doll, Gray, and Sisman. Taylor was busy
and unavailable to attend. Sisman informed Doll that he
would have to terminate her. Doll offered to pay for the
difference, but Sisman said no. She asked if she could
prepare another correct check for Francis to sign, but
Sisman said he could not do that.-Sisman then told Doll
she was not to contact Francis regarding the matter.
Sisman told Doll that she had falsified hotel records and
misappropriated hotel funds. Doll threatened to go to the
National Labor Relations Board, and the meeting ended.
(3) Conclusions
It is clear that Doll knew when she gave the $12.31
check to Francis for a single buffet that she would be
permitting Francis and her two guests to eat a total of
three meals free. Doll was well aware that Francis was
entitled to two-complimentary meals, not three. Yet Doll
told Francis in their telephone conversation a month or
so later that she intended for Francis to get the third
meal free.
At the hearing Sisman testified that the reasons Doll
was terminated were, "Falsifying company records, mis-
appropriating company funds, basically thievery." Of
course, Doll received no personal financial benefit by
writing the check as she did for Francis. Moreover, it is
very clear that this was not some collusive scheme be-
tween Doll and Francis.
What happened, I find, is that Doll simply took it
upon herself to exercise a managerial prerogative. I
credit Doll concerning her subjective understanding that
in the past Gray had authorized the waitresses to ticket a
musician in this fashion on infrequent occasions. Howev-
er, the record also reflects that in April Gray announced
that Sisman had terminated the "freebies." If Doll had a
question on April 2 concerning the matter, she easily
could have asked Gray, who was present, or the cashier,
for a clarification. s 2
51 Doll estimated the time lapse at only 10 to 15 minutes, whereas
Sisman and Gray place the interval at 45 to 60 minutes
52 Waitress Sallee so inquired in April and that clarified the matter for
her Of course, the fact that Sallee needed a clarification reflects that
Gray had not thoroughly informed her staff that Sisman had canceled
von Salm's policies
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the statutory question is not simply whether
Doll did wrong, but whether the Hotel was unlawfully
motivated in discharging her. Stated differently, has the
General Counsel demonstrated that this is a case of
mixed motives, one motive being to discharge Doll be-
cause of her error, the other being to get rid of a princi-
pal union activist? And, if so, has the Hotel shown that it
would have terminated Doll in any event?
The General Counsel and the Union argue that Sis-
man's ground of cost accounting is pretextual. They
point to the fact that in the past employees freely ate
from the buffet with no checks issued. Of course, that is
before Sisman canceled the von Salm policies in April
1984.
Observing that Sisman admittedly did not have the ac-
counting department make a belated billing to Francis'
personal account, even though Francis told him a few
days later-53 that she expected the third meal to be de-
ducted from her pay, the Union apparently contends that
not only is the accounting ground a pretext, but so also
is the loss of $12.31. Sisman never testified why Francis
was not billed for the third meal. There is some weight
to the Union's argument on this "point, but it is insuffi-
cient.
There is no evidence showing animus by Sisman, and
although his personal animus , or lack thereof, is not con-
trolling, it certainly is a significant factor. However, it is
true, as already noted, that Sisman's credibility was dam-
aged when he initially denied knowing of Doll's union
activities before her discharge meeting. The General
Counsel correctly observes, brief at 22, that the Board is
not compelled to accept an employer's stated reason for
discharging an employee. Indeed , in an appropriate,con-
text, an administrative law judge may find that the true
facts are the opposite of what a witness asserts in his tes-
timony. I am not persuaded that this is the appropriate
case.
Was Sisman's decision to terminate Doll unduly harsh
in light of certain facts and therefore indicative that the
discharge was unlawfully motivated? There is some force
to this argument, but it is only slight. First, Sisman was
aware that there was some question concerning the re-
cently canceled von Salm policies. He left it to Doll to
produce the witnesses' she mentioned, but she failed to
do so. Perhaps Sisman should have interviewed the other
waitresses out of an abundance of caution.-He did not do
so, but relied instead on Gray's response that she had
merely told her staff she would "take care of it."
There is no evidence that the Hotel has ever dis-
charged anyone for intentionally undercharging a cus-
tomer. On the other hand, there is no evidence that
anyone has ever knowingly undercharged in the past.
There is, evidence that the Hotel has given "second
chances" to employees in other situations. One of these
involved an employee only 16 years of age, and another
pertains to an employee who had attendance problems.
Neither situation seems closely relevant. Moreover, both
cases predate Sisman's arrival.
I conclude that Sisman, as he testified, considered the
falsification of the check to be a very serious matter. I
credit his testimony that on that ground alone, he would
have discharged Doll. Accordingly, I shall dismiss the
complaint in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. The ILGWU is a labor organization within the
meaning of Section 2(5) of the Act.
3. By suspending Violet Doll for 3 days on January
26, 1984, and by discharging her on May 1, 1984, Re-
spondent did not violate Section 8(a)(1) and (3) of the
Act.
On these findings of facts and conclusions of law, and
on the entire record, I issue the following recommend-
ed54
ORDER
The complaint is dismissed.
54 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall as provided in Sec 102 48 of the Rules be ado ted b theP y58 When he telephoned Francis to tell her of Doll's termination before Board and all objections to them shall be deemed waived for all pur-
Francis heard about it from others. poses