Cabana Motel

National Labor Relations Board - Board Decisions

Jan 19, 1976

222 N.L.R.B. 394 (N.L.R.B. 1976)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tahoe Management & Leasing Company d/b/a Caba-
na Motel and Hotel-Motel-Restaurant Employees
and Bartenders Union Local 86, Hotel & Restau-
rant Employees and Bartenders International
Union . Case 20-CA-9561
January 19, 1976
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On June 17, 1975, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, General Counsel filed
exceptions 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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
below.
Unlike our dissenting colleague, we agree with the
Administrative Law Judge's conclusion that employ-
ee Fry was not discharged because of his union activ-
ities. Our dissenting colleague admits that Respon-
dent did not explicitly and outrightly fire Fry; rather
the thrust of his dissenting opinion is that Fry was
"driven" to quit by Respondent General Manager
Robards' tirade of August 19 directed toward Fry
wherein Robards condemned the union campaign
and Fry's active role in it.
We have no quarrel with our colleague's accurate
view of the law that an employer violates Section
8(a)(3) of the Act when, motivated by union animus,
it engages in certain conduct which is purposely de-
signed to push a prounion employee into quitting.
Mallory Capacitor Company, a division of P. R. Mal-
i In affirming the Administrative Law Judge's commerce finding, we note
that Cabana Investors B, the owner of the Cabana Motel, has veto power
over the hiring and firing of Motel employees, and is consulted by Respon-
dent as a matter of course prior to any decision as to staffing The revenue
of Cabana Motel itself exceeded $500,000 in 1974 See Pacific Hosts, Inc -
Padre Trails Motel Corporation 156 NLRB 1467 (1966), J J Gumberg Co
and Pennley Park South, Inc, 189 NLRB 889 (1971 ), cf Phil- Modes, Inc.,
and Harold Berlin d/b/a Berlin Coat Manufacturing Co, 159 NLRB 944
(1966)
Also, General Counsel 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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products , Inc, 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C A 3, 1951) \Ve have carefully
examined the record and find no basis for reversing his findings
lory & Co., Inc., 169 NLRB 42 (1968). However, un-
like our dissenting colleague, we do not think that a
preponderance of the evidence shows that Fry was so
constructively discharged. Assuming, for the mo-
ment, the substance of the Robards-Fry argument in
the motel kitchen on the afternoon of August 19, as
testified to by Fry and bystander Karl Ries, wherein
Robards said he was going to fire Fry because he was
"a typically union man . . . trying to go around get-
ting people to sign the petition" there is very little
evidence, if any, which tends to prove that this en-
counter drove Fry to quit. On the contrary, the
weight of evidence indicates that Fry had earlier that
day decided to quit for other reasons entirely unrelat-
ed to Robards' animus. According to the uncontro-
verted testimony of both Robards and Fry, Fry had,
earlier that day, come into Robards' office on behalf
of himself and other employees and asked for a raise.
According to the testimony of Robards, he told Fry a
raise was out of the question and that if Fry were
unhappy with what he was earning, he would "just
have to leave that's all."2 While neither Fry nor Ro-
bards testified that Fry formally announced at that
time that he was quitting, Fry did admit elsewhere in
his testimony that when he later applied for unem-
ployment insurance, he put down on his application
form that he had quit because he was refused a raise.
For these reasons, we are convinced that Fry had
quit upon being denied a raise.
Karl Ries' testimony, relied on so heavily by our
dissenting colleague, is not all that illuminating. On
direct examination, Ries, who overheard the Fry-Ro-
bards argument in the motel kitchen, testified that
when Robards fired Fry, Fry responded that he
couldn't fire him because "he [Fry] was going to quit.
He quit or something." However, on cross-examina-
tion, Ries quotes Fry as saying to Robards "You
can't fire me, I've already quit." (Emphasis supplied.)
Thus, far from showing that Fry's quitting was the
direct product of Robards' animus, Ries' testimony,
at least that part adduced through cross-examina-
tion, indicates that the quitting antedated the ani-
mus., We likewise, unlike our dissenting colleague,
attach little significance to Robards' remark to
Woodward I month later that Fry was discharged
2 Robards' testimony was not discredited in this regard Fry testified to a
slightly different version of Robards' response to Fry's request for a raise,
namely , that a raise was out of the question and it was best that Fry left
right now While the Administrative Law Judge did not address this portion
of Fry' s testimony, he generally found Fry not to be a convincing witness.
3 Mallory Capacitor Company, supra, is factually distinguishable . There,
the respondent , knowing ahead of time that the prounion employee in ques-
tion was planning to quit if he did not get a raise in the near future , told the
employee that his raise was denied and further urged him to quit on the
spot When the employee asked for 2 weeks ' notice before he left, Respon-
dent again ordered him to quit immediately In the instant case, however,
there was no pressure put on Fry to quit Robards merely denied him his
raise and invited him to quit if he wished to do so
222 NLRB No. 37
CABANA MOTEL
because he had circulated union petitions. To be
sure, Robards, in making this statement, may have
thought he had fired Fry because of his union activi-
ties. Furthermore, his remarks, if indeed made, might
have been designed to have an in terrorem effect on
Woodward and other employees with prounion sym-
pathies, and thus might be regarded as coercive vis-a-
vis the employee to whom they were directed. How-
ever, in the context of the facts in this case, they are
not probative of a constructive discharge of Fry.
For these reasons, we adopt the Administrative
Law Judge's recommendation that the allegation of
the complaint relating to Fry's discharge be dis-
missed.
REMEDY
We do not adopt that portion of the Administra-
tive Law Judge's recommended Remedy and Order
which conditions the amount of backpay due em-
ployees Lloyd Woodward and Sharon Stetson on the
dates they would have been lawfully laid off but for
their unlawful and discriminatory early layoff and
which places them on a preferential hiring list and
requires that Respondent offer employment to them
on the occasion of its next period of peak employ-
ment. As we noted in Colonial Corporation of Ameri-
ca, 171 NLRB 1553 (1968), General Counsel, having
proven that Respondent discharged employees for
discriminatory reasons, does not also have to prove
that the employees would have been employed at
present, if no discrimination had been practiced. We
therefore order that Respondent offer Lloyd Wood-
ward and Sharon Stetson, as it did Karl Ries, imme-
diate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to
their seniority or other rights and privileges.' We
shall also order that Respondent make said employ-
ees whole for any loss of earnings suffered by reason
of the discrimination against them, by payment to
them of a sum of money equal to that which they
normally would have 'earned, absent the discrimina-
tion, from the date of the discrimination, to the date
of the offer of reinstatement, less net earnings during
such period, with backpay computed on a quarterly
basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
ORDER
Pursuant to Section 10(c) of the National Labor
" See also Radiadores Paragon De Puerto Rico, Inc, 206 NLRB 918 (1973)
395
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below and hereby orders that the Respondent, Tahoe
Management & Leasing Company d/b/a Cabana
Motel, South Lake Tahoe, California,, its officers,
agents, successors , and assigns, shall take the action
set forth in the Administrative Law Judge's recom-
mended Order, as herein modified:
1. In paragraph 2(a) of the Administrative Law
Judge's recommended Order insert, "Lloyd Wood-
ward, and Sharon Stetson" between " Ries" and "im-
mediate."
2. Delete paragraph 2(b) of the Administrative
Law Judge's recommended Order and renumber sub-
sequent paragraphs accordingly.
3. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
Unlike my colleagues, with whom I agree on other
points, I find convincing evidence that the Respon-
dent, through General Manager Robert Robards,
constructively discharged employee Douglas Fry on
August 19, 1974, in violation of Section 8(a)(3) of the
Act. For as the 'General Counsel ' points out in his
exceptions, the Administrative Law Judge over-
looked certain credited and even undenied and un-
controverted testimony which establishes the coer-
cive ' nature of Fry's termination. Thus, the record
plainly shows that, on September 13, Robards told
two employees that the "reason why" he "had laid
off Doug [Fry]" on August 19 was because Fry was
"circulating petitions" on behalf of the Union. In my
view, these remarks attributed to the Respondent, by
employee Ernest Woodward, whom the Administra-
tive Law Judge credited, virtually eliminate all doubt
as to the coercive circumstances surrounding Fry's
"quitting." See, e.g., N.L.R.B. v. Globe Products
Corp., 322 F.2d 694, 696 (C.A. 4, 1963), enfg. 139
NLRB 1459 (1962).
Moreover, the foregoing evidence does not stand
alone, and even discounting Fry's asserted "vague"
testimony, it is clear upon reading the testimony of
Robards and the credited and uncontroverted testi-
mony of witness Karl- Ries, that Fry was forced to
quit for reasons unlawful under the,Act. Thus, as the
Administrative Law Judge found, Fry and a fellow
employee (Jim Glace) visited the Union' s office on
August 19, and, when they returned to work later
that day, began to solicit support for the above-men-
tioned union petitions. Robards soon became aware
of this activity, as well as the employees' demand for
higher wages. Indeed, as the Respondent's manager
admitted, Fry was the "spokesman" for the employ-
ees, and when Fry' related their demands, Robards
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied, "It's impossible for us to give you a raise and
if you don't want to work for what you are working
for, you'll just have to leave that's all." Accepting for
the moment the Administrative Law Judge's finding
that Robards' ultimatum that Fry would "just have
to leave" was not tantamount to an order to "quit,"
there is additional uncontroverted testimony that re-
moves all doubt on the matter. Again, as Robards
testified, following this first encounter with Fry he
found Fry in another area of the motel and ordered
that "if he didn't have any business in there, if he was
supposed to be working, to get out of there." There
followed an "exchange" which if not "heated," as
Robards asserted, certainly was unpleasant. Signifi-
cantly, Robards did not elaborate, but credited wit-
ness, Ries, testified that before Fry left the premises
Robards told Fry that he was "a typically union
man, always pushing for the union . . . that the
union was no good . . . that [Fry] was always trying
to go around getting people to sign the petition and
he didn't like it, and that he was going to fire him
and all that." Whereupon, Fry replied that Robards
"couldn't fire him because he was going to quit" or
"I've already quit." 5
From the foregoing it is abundantly clear, to para-
phrase the Administrative Law Judge, that Fry was
"provoked and pushed into an `I quit' situation."
However, as with Woodward, the Administrative
Law Judge inadvertently failed to weigh all of Ries'
testimony. Thus, by citing only the "I quit" portion
of Ries' testimony, he failed to consider Robards'
declaration that he was "going to fire him"-which
Robards never denied-as ample provocation for
Fry's "quitting." Considering the fate of other union
adherents, it is clear that the Respondent used Fry's
"anticipated reaction" to Robards' antiunion re-
marks and threat of discharge "as a pretext for rid-
ding [itself] of a union partisan." Mallory Capacitor
Company, a division of P. R. Mallory & Co., Inc., 169
NLRB 42, 44 (1968), enfd. 400 F.2d 956 (C.A. 7,
1968), cert. denied 394 U.S. 918 (1969). Moreover,
the fact that Fry later filled out an unemployment
compensation claim and noted something to the ef-
fect that he had quit because he could not get a raise
is hardly inconsistent with the finding that Fry did,
indeed, "quit" but only did so after provoked into it
for reasons violative of the Act.
Finally, I find significant the fact that Robards
never testified that Fry told him he was quitting and,
on cross-examination, was even unable to relate what
circumstances could have led him to such a conclu-
sion . Indeed, the Respondent's own records, received
as evidence in this, proceeding, make no mention of
Fry's alleged voluntary separation.
Although my colleagues are unable to attack di-
rectly any of the foregoing evidence, they, nonethe-
less, are "convince[d]" that "there was no pressure
put on Fry to quit." Thus, they attempt to deflect the
obvious thrust of undenied, uncontradicted, and un-
impeached testimony of credited witnesses Wood-
ward and Ries by suggesting that it bears "little sig-
nificance," or, simply, "is not all that illuminating."
Of course, to support their position they tacitly con-
cede that they must necessarily go beyond the record
and, for example, ruminate over what else Robards
"may have thought" and what else he "might have"
intended when, as a matter of record evidence, he
unmistakeably announced to employee Woodward
that Fry was terminated because of his union activi-
ties. On the whole, I think that their conviction that
the Respondent rebutted the General Counsel's com-
pelling prima facie showing of unlawful conduct must
rest on firmer ground, and I respectfully dissent.
5 Although Fry also testified to the same conversation, I have avoided
relying on his testimony . Instead, I have throughout relied solely upon the
testimony of credited witnesses Woodward and Ries, as well as Robards'
testimony which, while consistent on this point , was in many other respects
"confused" or simply uncreditworthy, as the Administrative Law Judge
found I have done so to avoid any suggestion that I have relied on the
"vague" testimony of Fry, or, in any other way disturbed the Administrative
Law Judge's credibility findings
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we interfered with
the statutory rights of the employees to select their
own bargaining representative, if such should be
their desire, and has ordered us to post this notice.
We intend to carry out the Order of the Board and
abide by the following:
WE WILL NOT question employees concerning
their union activities or interest.
WE WILL NOT discharge or threaten employees
with discharge because of their activities or in-
terest on behalf of Hotel-Motel-Restaurant Em-
ployees and Bartenders Union Local 86, Hotel
& Restaurant Employees and Bartenders Inter-
national Union.
WE WILL NOT promise employees a change in
working conditions in order to encourage them
to abandon the Union.
WE WILL NOT in any manner interfere with,
restrain, or coerce our employees in the exercise
of the rights guaranteed to employees under the
National Labor Relations Act, as amended,
which are as follows:
CABANA MOTEL 397
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for purposes of collective
bargaining or other mutual aid or protection
To refrain from any or all of these things.
WE WILL reimburse employees Lloyd Wood-
ward, Sharon Stetson, and Karl Ries for wages
lost because of our discriminatory conduct in
discharging them.
WE WILL offer immediate and full reinstate-
ment to Karl Ries, Lloyd Woodward and Shar-
on Stetson without loss of benefits or seniority.
TAHOE MANAGEMENT & LEASING COMPANY
d/b/a CABANA MOTEL
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: The trial
of this matter was initially opened before the Honorable
James S. Jenson on December 18, 1974, but because there
were questions raised concerning whether or not the proper
party had been charged and served and also because there
were serious questions as to whether certain subpenas had
been properly served, the matter was adjourned indefi-
nitely without evidence taken. For various reasons un-
known to me, the matter was continued until March 12,
1975, when all available witnesses were heard by me at
South Lake Tahoe, California, and then because of the
unavailability of a key General Counsel witness and the
prior commitment of Respondent counsel for March 13,
the matter was continued and then concluded on March
14, 1975. Complaint was issued by the Regional Director
for Region 20 on November 15, 1974, based on an unfair
labor practice charge first filed on September 18, 1974,
amended on November 4, 1974, alleging violations of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq., herein called the Act.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, and to file briefs. Based upon the entire record, includ-
ing the briefs filed by Respondent and the General Coun-
sel, and upon my observation of the demeanor of the
witnesses, I make the following findings of fact and conclu-
sions of law:
1. JURISDICTION
The Cabana Motel is a large motel consisting of 205
rooms, a restaurant, and bar situated in South Lake Tahoe,
California, and owned by Cabana Investors B, a limited
partnership. The evidence establishes that the gross reve-
nues for this motel during the calendar year 1974 was in
excess of $600,000 and the gross revenue for the month of
January 1975, was more than double that of January 1974.
(See G.C. Exhs. 2 through 7.) In late May 1974, the owners
hired Tahoe Management & Leasing Company, herein the
Respondent, to manage, or operate, the motel.
Ken Pirtle, Robert Bowles, and Gilbert Apodaca are the
principal officers and major stockholders of Tahoe Con-
struction, Incorporated. These same three men own the Ta-
hoe Management & Leasing Company, a partnership and
the Respondent herein. They also own the Tahoe Devel-
opment Company, a partnership, and the Tahoe Payroll
Company, a partnership. It appears from all the evidence
that the various partnership companies act as service arms
for and on behalf of the corporation (Tahoe Construction,
Incorporated). Thus, for example, the Tahoe Development
Company would originate a project, do the marketing, the
feasibility studies, and then arrange for the financing.
These services might be performed for the three partners,
or for a specially arranged limited partnership investment
group, but with a view toward the construction corporation
doing the actual construction of the proposed project. The
development company might also handle the sales. In a
situation where the project is a motel, the Tahoe Manage-
ment & Leasing Company might take over as the manager,
or operator, of the motel on behalf of the owners.
The evidence does not reveal whether Tahoe Construc-
tion, Incorporated, built the Cabana Motel, but there is
evidence indicating that the three partners (Pirtle, Bowles
and Apodaca) had frequent business arrangements with
Barry Evans, president of Madison and Burke, a real estate
investment and property management firm located in San
Francisco, California. Cabana Investors B, the owner of
the motel here involved, is a limited partnership of which
Barry Evans is a general partner. When problems devel-
oped at the Cabana Motel, Barry Evans turned to Tahoe
Management & Leasing Company for management assis-
tance.
A typical management contract was prepared in which
Respondent was to be paid 5 percent of the gross room and
shop revenues, plus 5 percent of the gross food and bever-
age revenues, and profits in excess of $40,000 per annum
from the food and beverage operations. The parties stipu-
lated that Respondent purchased $2,000 of liquor from
outside the State of California.
In addition, Respondent is the manager, or operator, of
the Travel Lodge Motel in Sunnyvale, California. In this
instance, the Tahoe Development "built the hotel" (I un-
derstood this to mean-feasibility studies, financing, etc.),
Tahoe Construction, Incorporated, was the building con-
tractor and now Respondent herein is the manager for a
group of investors created, or brought together, by Barry
Evans, who bought the property from the Tahoe Devel-
opment Company. There was testimony from Ken Pirtle
that Respondent is to receive a "split [in] the profits above
a given point."While no compensation as manager of the
Travel Lodge has yet been realized, it would appear to be
largely a bookkeeping arrangement because Respondent is
"responsible for making all payment and such on the prop-
erty" (presumably to Tahoe Development Company).
Ken Pirtle acknowledged that the same group of people
are involved in a condominium development in Sacramen-
to, California.
Under all the circumstances, it is clear that Respondent
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act to a degree warranting the
Board asserting jurisdiction in this matter.I
II. THE LABOR ORGANIZATION INVOLVED
Respondent does not deny, and I herewith find, the Ho-
tel-Motel-Restaurant Employees and Bartenders Union
Local 86, Hotel & Restaurant and Bartenders International
Union, herein called the Union, to be a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ISSUE
The issue involved is one of ascertaining the true motive
for the discharges of four named employees, rendered diffi-
cult by the conflicting evidence and the necessity of resolv-
ing credibility of the various witnesses.
IV. THE UNFAIR LABOR PRACTICES
A. Background
Robert Robards is the general manager of the Cabana
Motel and his wife, Nevada Robards, is the resident man-
ager. They were hired by Kenneth Pirtle, the active manag-
er and general partner of Respondent. The Robards have
full authority to hire and fire; it is their responsibility to
maintain an effective work force. Gloria Salvatore, the
head housekeeper, was hired by them and in turn had au-
thority to hire and fire the maids. I find each of them at all
times to have been an agent of Respondent within the
meaning of Section 2(13) of the Act and all three to have
been supervisors of Respondent within the meaning of Sec-
tion 2(11) of the Act.
B. Discharge of Douglas Fry
Fry was one of the more active employees in obtaining
signatures on the union petition seeking to have an elec-
tion. He was hired in April 1974,2 as a houseman, then was
shifted to maintenance and worked until August 19. On
August 19, Douglas Fry and Jim Glace, another mainte-
nance employee, went to the union offices and met Hal
Lawrence, a union agent, during the noon lunch hour. In
the afternoon, they were both involved in seeking signa-
tures on the union petition. The record is not clear, but
apparently sometime in the early afternoon a meeting of
four or five of the employees and Mr. Robards occurred.
Mr. Fry was the spokesman for the employees and sought
to obtain a raise. According to Mr. Robards, he responded
by saying, "I'm sorry. We can't at this time. It's impossible
for us to give you a raise and if you don't want to work for
what you are working for, you'll just have to leave that's
In asserting jurisdiction the Board looks to the totality of a
Respondent's operation Acme Paper Box Co, 201 NLRB 240 (1973), Siem-
ons Mailing Service, 122 NLRB 81 (1958)
2 All dates hereinafter will be in the year 1974 unless otherwise indicated.
all." Fry didn't testify concerning this meeting.3
According to Fry, he was annoyed when his friend and
roommate, Jim Glace, quit and he was even more anxious
to get the employees to sign up with the,Union. He testified
that immediately following the meeting he "went straight
to the restaurant and sat down at the counter, and was
talking to Red, who was the cook at the time-the chef." It
was then that Mr. Robards came in and asked him to
leave.' An argument ensued. Fry departed.
According to Robards, Fry was never discharged he vol-
untarily quit. Fry acknowledged that he applied for unem-
ployment compensation shortly thereafter and in his appli-
cation stated something to the effect that he had quit
because he couldn't get a raise. Karl Ries testified that he
heard at least a part of the argument between Robards and
Fry and Fry said, "I quit."
The Board has frequently found an unlawful construc-
tive discharge where antiunion animus is prevalent and
where the employer "pushes" the employee, into a "I quit"
situation .5 I do not perceive this to be such a situation. Fry
was not a convincing witness. His recollection was vague as
to just what had transpired 6 months before; and he ac-
knowledged some concern because his roommate and
friend had already quit. The General Counsel has failed to
prove by a preponderance of the evidence that Fry was
either directly or constructively discharged. In every case, a
violation of the Act must be proved by the General Coun-
sel by a preponderance,of the evidence .6 In spite of the fact
that I am convinced that Respondent was not anxious to
have its employees unionized, I am even more convinced
that Fry quit his job without being illegally provoked into
doing so by Respondent. I shall recommend dismissal of
this allegation of the complaint.
C. Discharge of Woodward
Woodward testified that he was first employed at the
Cabana in the spring of 1974 but quit toward the end of
May when the Robards took over as managers. The latter
part of July he was hired again by Red Collins, the chef.
Woodward testified that he signed the union petition at
the request of Douglas Fry in the presence of Rita Cook,
the head housekeeper, Barbara Ries, the assistant head
housekeeper, and Karl Ries, her son. He attended a union
meeting and obtained three or four signatures on the peti-
tion seeking to have an election.
Woodward testified that on September 13 he was talking
to Red Collins concerning rumors he had heard that he
(Woodward) was going to be laid off because of his activity
and interest on behalf of the Union, when Mr. Robards
appeared and the three of them engaged in conversation
3 Just when this meeting occurred is confusing, because Robards recollec-
tion was somewhat vague but he recalled it as being in the morning Jim
Glace quit immediately following receipt of the information that a raise was
out of the question, but the testimony tends to indicate that he was still an
employee in the early afternoon when he solicited signatures on the union
petition.
4 Robards' recollection was that Fry was asked to return to his work
5 See Mallory Capacitor Company, 169 NLRB 42; enfd. 400 F 2d 956 (C.
A. 7, 1968), cert denied 394 U.S. 918
6 Falstaff Brewing Corp, 238 NLRB 294, enfd as modified 301 F 2d 216
(C.A 8, 1962).
1
CABANA MOTEL 399
relating to the Union. During the conversation, according
to Woodward, Robards stated that he had been in contact
with three different insurance companies and planned to
have a better insurance program than the Union could pro-
vide. Robards promised higher wages in order to keep the
Union out and asked, "Why pay out $6-a-month dues
when you can get your insurance for nothing?"
Mr. Robards had no recollection of any union conversa-
tion with Woodward and denied that he ordered the chef,
Red Collins, to let Woodward go because of his union ac-
tivity.
Mrs. Robards acknowledged that she was aware of the
union meetings and that "most of them [employees] were at
the meeting." She testified that Woodward was let go be-
cause of a seasonal layoff.
Woodward was terminated on September 14. General
Counsel's Exhibit 9 is a copy of a help-wanted advertise-
ment in which experienced cooks are requested to apply to
the Cabana Restaurant. The ad appeared in the Tahoe
Daily Tribune on Wednesday, September 18. Respondent's
chef, Red Collins, was not called to testify. Woodward was
active in the Union and Rita Cook had advised Mrs. Ro-
bards the names of those employees attending the union
meeting. Contending that a cook was laid off because of a
seasonal slowdown while at the same time seeking help in
the same job category is incredulous. Under all the circum-
stances, I find the conclusion that Lloyd Ernest Woodward
was terminated because of his activity and interest on be-
half of the Union inescapable. The reason advanced by
Respondent-seasonal layoff-was a pretext. Respondent
is guilty of having violated Section 8(a)(3) and (1) of the
Act.
D. The Discharge of Sharon Stetson
Sharon Stetson testified that she went to work at the
Cabana Motel as a maid the first of August and worked
until September 22. She was hired by Rita Cook, the head
housekeeper, for whom she had previously worked at the
Ramada Inn. Stetson signed the union petition and attend-
ed the union meeting on September 10. She testified that
she had discussed the Union with both Rita Cook and
Barbara Ries and they had seen her at the union meeting.
On September 22, when she reported for work she found
that Rita Cook had been replaced by Gloria Salvatore. Af-
ter learning Gloria had inspected all of the rooms the week
before and had found all but one unsatisfactory, Sharon
asked Gloria if she could tell her what was wrong with her
rooms because she cleaned the same ones every day. Salva-
tore responded, "Well, I really don't remember. Mrs. Ro-
bards has the list." There followed a brief discussion re-
garding the dirty condition of the rugs which should have
been scrubbed by the maintenance people and the worn
out condition of many of the bedspreads. As that conversa-
tion concluded, Stetson turned to one of the other maids
that happened to be in the housekeeping office and told
her that she ought to go to the next union meeting. Gloria
Salvatore immediately expressed her negative feelings to-
ward the Union and advised Sharon that after she "had
been with it a long time I'd realized that it really wasn't
much help, and that I really didn't know what I was doing
in trying to talk other people into going to the meetings."
Very shortly, thereafter, Mr. Robards came into the
housekeeping room and Gloria said, "We have an unhappy
maid here." After Sharon stated that she only wanted to
find out that was wrong with her rooms, Gloria Salvatore
then said, "I don't think that's what's making her unhappy
any way. I ' think it's the union. And I'don't want that on
my shift." According to Stetson, Mr. Robards then said,
"Well, I don't want the union on my premises." And Glo-
ria Salvatore said, "Shall we pull her timecard?" To which
Mr. Robards responded, "I think that's a good idea." Later
Mr. Robards told Sharon Stetson, "Remember you haven't
been fired because of the union, you've been fired for your
inefficiencies as a maid."
Respondent contends Sharon Stetson was "terminated
because she had not been doing her work properly. We had
complaints on her rooms." Sharon denied ever having been
told that her work was inadequate. Rita Cook testified the
rooms were' clean and she had no complaints regarding
Sharon. While Mrs. Robards 'spoke in terms of having re-
ceived written complaints from guests and that the rooms
occupied by the complaining guests were determined to
have been assigned to Sharon, none of the written complaints
were produced by Respondent at the trial. Mrs. Robards
was the resident manager responsible for the day-to-day
supervision of the employees. In view of her totally incredi-
ble testimony that Woodward (see discussion, supra) was
let go because of "seasonal reasons" while at the same time
the Cabana Motel was advertising for help in his work
category, I find it impossible to credit any of Mrs. Ro-
bards' testimony. Mr. Robards was oviously confused and
had Sharon Stetson "mixed-up" with Barbara Ries, the as-
sistant housekeeper. Considering all the evidence it seems
clear that Sharon Stetson was terminated at an earlier date
than she would otherwise have been laid off because of the
seasonal decline in business, because of her union activity
and interest. Such action by Respondent is discriminatory
and violative' of Section 8(a)(3) and (1) of the Act.
E. The Discharge of Karl Ries
Karl Ries is 'a high school student. He had formerly
worked for Rita Cook at the Ramada Inn and left there to
go to work at the Cabana Motel the first part of August.
Karl worked as a houseman whose duty it was to keep the
linen closets stocked. Karl testified that he signed the peti-
tion requesting an election among the employes on behalf
of the Union on August 19 while in the housekeeping office
in the presence of Rita Cook, two other maintenance men,
and a maid. Karl had been told by Rita that after school
started in the fall he could continue to work at the Cabana
Motel on the weekends because that's when the work
would be the heaviest. Karl testified that school started
about September 12 and that he worked one weekend, but
was then terminated on September 20. Karl testified that
he learned of his discharge from his mother who handed
him his final paycheck and told him that Mrs. Robards had
given her the check and said that he had been discharged.
Mrs. Robards explained that Karl was not terminated,
but rather he quit. Mrs. Robards explanation was that a
few days after Barbara Ries had been terminated that she
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Barbara) returned to the motel to pick up a jacket that she
had left in the housekeeping department and Karl was with
her. On that occasion, she (Mrs. Robard) "asked Karl if he
was coming to work the following Saturday and he said,
`No, I quit, I'm not coming back to work.' "
Barbara Ries testified during her direct examination that
both she and Karl were terminated by Mrs. Robards on the
afternoon of September 20. As best Mrs. Ries could recall,
Mrs. Robards said, "I hate to let you go, I know your
hands are tied. But the inspectress inspected the rooms, I
talked to Mr. Robards and he said to let you and Karl go."
Mrs. Ries testified that she was then handed both her
check and her son's check.
Again, I find it extremely difficult to believe the testimo-
ny of Mrs. Robards. She testified that it was a few days (3
or 4) after Mrs. Ries was discharged that Karl advised her
that he was quitting. Yet the summary of employee sever-
ences submitted as Respondent's Exhibit 1 reflects that
both Karl and Mrs. Ries were terminated on September 20.
During cross-examination her efforts to explain this appar-
ent inconsistency between Respondent's Exhibit 1 and her
testimony became even more confusing and indicative of a
contrived story. I find that Karl Ries was terminated from
his weekend part-time work because of his activity and
interest on behalf of the Union. While Karl's activity was
admittedly minimal, he was undoubtedly branded as guilty
by association because it was generally known that his
mother, Mrs. Barbara Ries, was sympathetic toward the
Union.
F. Promises, Threats, and Interrogation
I have previously related much of the testimony by
Woodward , which, according to him, occurred on Septem-
ber 13 . At that time Mr. Robards , the head chef , Red Col-
lins, and Woodward engaged in a discussion and consider-
ation of the pros and cons of unionism. During this
discussion , according to Woodward, Robards stated that
he would pay more wages , higher wages than the Union
would, that it was possible to get an insurance coverage
without paying out union dues, and that before he would
allow the Union to come in , he would close the doors and
start all over again . If this testimony by Woodward was
only "fanciful dreams" it would seem to have been rela-
tively easy for the Respondent to have called Red Collins
to deny that Mr. Robards made the alleged statements. An
inference adverse to the party who fails to call witnesses
otherwise available to it, or neglects to explain the failure
to call such witnesses , has been established law since the
early days of the Board . Freuhauf Trailer Company, 1
NLRB 68; reversed 85 F.2d 391 (C.A. 6, 1936); 301 U.S. 49
(1937) reversing circuit and enforcing the Board . On this
basis I find that on or about September 13, Respondent did
threaten to cease doing business before recognizing or bar-
gaining with the Union and promised employees improved
wages and insurance benefits in order to induce them to
abandon their support of the Union . These threats and
promises are violative of Section 8(a)(1) of the Act. I have
credited the testimony of Sharon Stetson and her conversa-
tion with Gloria Salvatore on September 23? In the course
of that conversation, Gloria Salvatore, the head housekeep-
er who had replaced Rita Cook, asked Sharon how long
she had been a member of the Union. Such a question of
an employee-particularly when it occurs in the context of
other unfair labor practices-is deemed to be interference
with an employee's Section 7 rights and thus independently
violative of Section 8(a)(1) of the Act .8
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent found to constitute un-
fair labor practices as set forth in section IV, above, occur-
ring in connection with the operations of the Respondent
described in section I, above, have a close , intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow there-
of.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2) and (6) of the Act.
2. The Hotel-Motel-Restaurant Employees and Barten-
ders Union Local 86, Hotel and Restaurant Employees and
Bartenders International Union, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By discharging Lloyd Woodward on September 14,
1974, Sharon Stetson on September 23, 1974, and Karl
Ries on September 20, 1974, because they, and each of
them respectively, were interested in and actively support-
ing the Union , Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
4. By promising improved wages and insurance benefits,
by threatening to refuse to recognize or deal with the
Union and by interrogating employees, Respondent has
been guilty of interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in Sec-
tion 7, which is in violation of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. Any and all allegations contained in the complaint
not specifically found herein as a violation of the Act are to
be dismissed.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged
Lloyd Woodward, on September 14, 1974, Sharon Stetson
on September 23, 1974, and Karl Ries on September 20,
1974, 1 find it necessary that Respondent be ordered to
reimburse each of them for wages lost, plus interest at 6
7 Again, Salvatore was not called to deny Sharon 's testimony and there 8 N L R B v Elias Bros Big Boy, Inc, 137 NLRB 1057, enfd 325 F.2d
was no explanation as to why she was not called 360 (C A. 6, 1963).
CABANA MOTEL 401
percent per annum in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962). I shall also direct
that Karl Ries be reinstated to his part-time weekend em-
ployment as houseman. Not only can it be accepted as
common knowledge among residents of this area, but the
evidence submitted by Respondent tends to prove that em-
ployment at motels and lodges in the Lake Tahoe area is a
highly seasonal occupation. For this reason, it will be nec-
essary for the Regional Office in the compliance stages of
this Order to ascertain the date or dates on which Wood-
ward and Stetson might have been lawfully laid off, but for
the unlawful and discriminatory early layoff. I will also
direct that Woodward and Stetson be placed on a preferen-
tial hiring list and require that Respondent offer employ-
ment to Woodward and Stetson on the occasion of its next
period of peak employment (either the summer months or
the winter ski months).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Tahoe Management and Leasing Compa-
ny, its general partners, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discouraging membership in the Hotel-Motel-Res-
taurant Employees and Bartenders Union Local 86, Hotel
and Restaurant Employees and Bartenders International
Union, or any other labor organization, by discharging, or
in any other manner discriminating against, employees in
regard to hire or tenure of employment, or any other term
or condition of employment.
(b) Interfering with, restraining, or coercing employees
in the exercise of their rights guaranteed in Section 7 of the
Act, by promising employees improved wages and/or in-
surance benefits in order to encourage them to abandon
their support of the Union, threatening employees by stat-
ing that it would cease doing business rather than deal with
the Union, and interrogating employees regarding their
membership in and activities on behalf of the Union.
(c) In any other manner interfering with, restraining, or
9 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 herem 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
coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the Union, or any
other labor organization, to bargain collectively through
representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any and
all such activities.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer to Karl Ries immediate and full reinstatement
to his former or substantially equivalent part-time weekend
job without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earnings or
other monetary losses suffered by him in the manner set
forth in the section above entitled, "The Remedy."
(b) Advise Woodward and Stetson that each of them
will be placed on a preferential hiring list. At the earliest
opportunity, upon the occasion of new employees being
hired, Woodward and Stetson shall be offered reemploy-
ment opportunities. In the manner set forth in that section
hereinabove entitled "The Remedy," make Woodward and
Stetson whole for any losses they may have suffered as a
result of Respondent's discriminatory discharge of each of
these employees.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and all other records necessary for deter-
mination of the amount of backpay due and the right of
reinstatement under the terms of this recommended Order.
(d) Post at its principal office in the city of South Lake
Tahoe, California, or such other places as the usual notices
to employees are posted, including the Cabana Motel, cop-
ies of the attached notice marked "Appendix." 10 Copies of
such notice on forms provided by the Regional Director
for Region 20, after being signed by an authorized repre-
sentative of Respondent, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."