Claridge Casino & Hotel

National Labor Relations Board - Board Decisions

Feb 24, 1999

327 N.L.R.B. 724 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 724
Claridge Casino & Hotel and Sharon Ponzetti and
Federation of Police, Security & Corrections Of-
ficers. Cases 4–CA–24078 and 4–CA–24090
February 24, 1999
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND BRAME
On June 19, 1998, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The Respondent
and the General Counsel filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Claridge Casino & Hotel,
Atlantic City, New Jersey, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Margarita Navarro-Rivera, Esq., for the General Counsel.
Harold R. Weinrich, Esq. (Jackson, Lewis, Schnitzler &
Krupman), of Washington, D.C., for the Respondent.
Henry F. Schickling, Esq., of Rahway, New Jersey, for the
Federation.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
2 We agree with the judge that the General Counsel has made a
prima facie showing that employee Frank White’s union activity was a
motivating factor in the decision to discharge him. In finding that the
Respondent has not established under Wright Line, 251 NLRB 1083
(1980), enfd. F.2d 899 (1st Cir. 1981), cert. denied 455 U. S. 989
(1982), that it would have discharged White even in the absence of his
union activities, we stress that the judge discredited the testimony of the
Respondent’s witness Thomas Sparks on which the Respondent relied
as the basis for its defense.
The General Counsel has excepted to the judge’s finding that an in-
terrogation allegation and a creation of impression of surveillance alle-
gation were untimely. Even assuming their timeliness, we find that,
based on the record as a whole, the alleged interrogation does not rise
to the level of a violation under Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d
1006 (9th Cir. 1985), and that the impression of surveillance allegation
fails because the Respondent’s explanation to employees makes clear
that its obtaining of information did not involve surveillance of em-
ployee union activities
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
cases were tried in Philadelphia, Pennsylvania, on January 21
and February 23–24, 1998. The charge in Case 4–CA–24078
was filed July 26, 19951 (amended October 23 and 31), and in
Case 4–CA–24090 on July 28 (amended September 29). The
complaint in Case 4–CA–24078 was issued October 30
(amended February 15, 1996) and in Case 4–CA–24090 on
October 16 (amended at the trial). The cases were consolidated
on October 30.
This case involves the discharge of union organizer Francis
“Frank” White, a senior security officer who had recently re-
ceived a commendation from Executive Director of Security
Robert McLaughlin for his “fine job performance” and his
“dedication to the Security Department and the Claridge [Ca-
sino and Hotel] as a whole.”
The Company had carried on a vigorous antiunion campaign
in the recent union organizing drive and had excluded White
from its employee meetings because of his union activity. It
admits that “White was one of the primary in-house organiz-
ers,” having “arranged meetings and distributed authorization
cards outside the employee entrance.”
The Company claims, without any direct evidence, that
White “threatened injury” to security officer John Gradia and
later “reinforced this threat by the use of physical force.”
To the contrary, the credible testimony by White and two
other eye witnesses, security officer John Pollock and fire con-
trol officer Edward Ponzetti, reveals that in the cafeteria before
their shift, on their way to turn in their food trays before going
downstairs for the roll call, White momentarily stopped by
Gradia’s table. As White credibly testified, he warned Gradia
that “if you ever call me on the phone like that again and cuss
me out again, I’ll make sure you can never do that to anybody
else.” Gradia stood up, but White turned and walked on. The
whole incident took an estimated 3 seconds.
White was referring to Gradia’s phoning him at home to
complain about his supporting the Federation of Police, Secu-
rity & Corrections Officers instead of a union that Gradia fa-
vored. White’s testimony is undisputed that Gradia “called me
up and cussed me out; he went on like a mad man,” telling
White “you’re a crazy God-damn idiot” and asking, “Who in
the fuck do you think you are, picking out what union’s going
to represent security officers of the Claridge?” and “What are
you, trying to be king”—continuing until “finally I hung up on
him.”
After walking behind Pollock and Ponzetti and turning in his
tray, White went with them from the cafeteria on the fourth
floor to the roll call area on the mezzanine to get their assign-
ments for the day. There, in a small confined area, about 25 or
30 security officers were waiting for their assignments to be
handed out. The only time White was anywhere near Gradia
was when he walked around Gradia, reaching for his assign-
ment, and perhaps brushing against Gradia. As he stepped aside
to read his assignment, he saw Gradia pointing at him, but
White paid no attention and went on to work.
The Company offered no direct testimony at the trial to dis-
pute this credible testimony. It called only two defense wit-
nesses, Thomas Sparks, the new director of security (hired after
1 All dates are 1995 unless otherwise indicated.
327 NLRB No. 138
CLARIDGE CASINO & HOTEL 725
the recent Board election to replace McLaughlin), and Vice
President of Human Resources John Ceresani.
Instead of presenting eye witnesses, who would be subject to
cross-examination, the company counsel offered (over hearsay
objections) their conflicting handwritten statements—not for
the truth of what happened, but solely to show why Sparks
“acted the way he did” concerning the suspension and dis-
charge of White.
Later in the trial, after the statements were received for that
limited purpose, the counsel shifted the Company’s position
and contended that the statements were prepared and retained in
the normal course of business and are “admissible for the truth
of the matters asserted” and “would be admitted under the
business records exception to the hearsay rule.” This clearly
unfounded contention was rejected.
In its brief, the Company relies on Sparks’ grossly conflict-
ing testimony.
The Company ignores evidence indicating that Security Shift
Supervisor Matthew Steinmetz (under Sparks) disapproved of
White’s being discharged. It is undisputed, as White credibly
testified, that when he left Sparks’ office after being suspended
and was handing Steinmetz his radio, Steinmetz said, “Frank,
this is bullshit,” meaning his being fired.
The Company also ignores White’s undisputed testimony
that at the time of the suspension, Sparks stated “he really liked
me but he had to suspend me”—indicating that the discharge
decision was not being made by him, but by the Human Re-
sources Department.
The primary issue is whether the Company, the Respondent,
discriminatorily discharged Francis White because of his union
activity, violating Section 8(a)(3) and (1) of the National Labor
Relations Act.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Company, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, operates a casino and hotel in
Atlantic City, New Jersey, where it annually derived over
$500,000 in gross revenue and receives goods valued over
$50,000 directly from outside the State. The Company admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Federation is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. White’s Discharge
Francis “Frank” White, who had been a security officer at
the Company’s casino since 1989 (Tr. 7, 59—all Tr. references
to pages of the Feb. 23–24 transcripts), was highly regarded as
an employee. On August 17, 1994, Executive Director of Secu-
rity Robert McLaughlin wrote him the following letter of com-
mendation (R. Exh. 6):

I am very proud to take this opportunity to comment
on your fine job performance on August 15, 1994 during
an attempted purse theft incident. It is reassuring to know

2 The General Counsel’s unopposed motion to correct the transcript,
dated May 28, 1998, is granted and received in evidence as G.C. Exh.
31.
that when members of the Security Department are faced
with difficult and challenging situations they rise to the
occasion. . . .
. . . .
Again, Frank, thank you for your continued dedication
to the Security Department and the Claridge as a
whole. . . . I would like to invite you and a guest to enjoy a
meal at The Garden Room Restaurant at your conven-
ience.

White’s union organizing activity, however, was not appre-
ciated. In November 1994, less than a year after the Company
defeated an effort by another union to organize the Security
Department, White began an active campaign to organize the
security officers for the Federation. (The Company admits in its
brief, at 13, that “White was one of the primary in-house organ-
izers,” having “arranged meetings and distributed authorization
cards outside the employee entrance.”) As in the earlier orga-
nizing drive, the Company carried on a vigorous campaign
against having the security officers organized. Because of
White’s union activity, the Company did not invite him (after
the first meeting) to the employee meetings it held in opposing
the Federation. (Tr. 7–25, 69–70, 278–280; G.C. Exhs. 8–12.)
The Company’s animus toward White for his union activity
is further demonstrated by an incident on March 27, shortly
before the April 6 election. It is undisputed, as White credibly
testified, that Quentin Nelson, Director of Employee/Labor
Relations in the Human Resources Department (Tr. 25–26)

came out of an elevator and came over and shook my hand
and he started grimacing in my face, and . . . . he was holding
real tightly to my hand, and he was making faces at me. And
he took about 3 steps back and he pretended like I was nuts,
and he went like this [making a circle to the right of his head]
and he said, we’ll see what happens on April 6 . . . . And secu-
rity officer Lee, the next post over, saw this.

Neither Nelson nor Lee testified. (By his demeanor on the
stand, White impressed me most favorably as a truthful, forth-
right witness.)
White also credibly testified that about the middle of March,
before the April 6 election, security officer John Gradia called
him at home about 1 or 2 a.m., trying to persuade him to switch
his support to another union. He refused. About a week later,
when learning that “the Labor Board wouldn’t go along with
having another union on the ballot,” Gradia (who was on medi-
cal leave) called White on Sunday afternoon (Tr. 26–28, 71–
74):

John Gradia called me and cussed me out; he went on like a
mad man. . . . Who in the fuck do you think you are picking
out what union’s going to represent the security officers at the
Claridge? Who in the hell do you think you are? What are
you, trying to be king? . . . And he went on like 10 minutes.
So finally I hung up on him.
. . . .
A. He told . . . me . . . you’re a crazy God-damn id-
iot. . . . And he just went on constantly like that. . . . I
couldn’t even talk to the man.

The first time White saw Gradia after that was in the cafete-
ria on Memorial Day, May 29, when Gradia returned from
medical leave. White arrived around 3:30 for the 4–12 shift and
sat with security officer John Pollock and fire control officer
Edward Ponzetti in the back of the cafeteria. Gradia was sitting
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 726
toward the front with security officer Michael Davis. (Tr. 7,
27–29, 122, 143–144, 148–149.)
Shortly before shift time, when White, Pollock, and Ponzetti
were on their way to turn in their food trays before going
downstairs for the roll call, White saw Gradia and stopped mo-
mentarily at his table. As White credibly testified, he warned
Gradia in a normal voice that “if you ever call me on the phone
like that again and cuss me out again, I’ll make sure you never
do that to anybody else [emphasis added].” Gradia stood up,
but said nothing. White turned and walk on behind Pollock and
Ponzetti and turned in his tray. He then went with them from
the cafeteria on the fourth floor to the roll call area on the mez-
zanine. (Tr. 28–30, 74–75, 77–78, 117–118, 123, 127–128, 144,
149–150.)
As Ponzetti credibly testified on cross-examination, White
“said his piece [to Gradia in the cafeteria], he was done with it
and that was it; done and over” (Tr. 140).
On this busy Memorial Day, there were about 25 or 30 secu-
rity officers waiting for their assignments in the small, confined
roll call area. White saw Gradia and Davis in the crowded
group. Gradia was standing in front of sergeant Hunter, who
was passing out the assignments. White remembers that either
Security Supervisor Brian Yocum or Richard Stockette was
standing nearby. The only time White was anywhere near Gra-
dia was when he walked around Gradia, reaching for his as-
signment. Although Pollock, who was standing next to White,
credibly testified that he did not see White touch Gradia, White
believes that he may have brushed against him. (Tr. 30, 36–37,
42, 52, 88–90, 145–146; G.C. Exh. 5.)
On cross-examination Pollock credibly testified that he him-
self might have touched Gradia’s arm. “I mean, we touch each
other everyday in there; it’s too confining. That’s what the
problem is; it’s too confining. It’s a giant walk-in closet; that’s
what it is. Our roll call area is a disgrace.” (Tr. 168.)
After receiving his assignment sheet for the day, White
stepped aside to read his schedule. He then saw Gradia pointing
at him without saying anything, but White paid no attention and
went on to work. (Tr. 30–31, 38.) This was about 5 minutes
after the cafeteria incident (Tr. 97–98).
About an hour and a half later, White was called to the of-
fice, where Supervisors Yocum and Stockette asked him about
the cafeteria incident, without mentioning anything about him
brushing against Gradia in the roll call area. Yocum said,
“Well, John [Gradia] says that you said that you were going to
break his fucking neck.” White responded, “I don’t think I used
those words, but that’s what I meant.” He tried to explain about
Gradia calling him at home and “raising hell” harassing him,
but “They didn’t want to hear too much about that.” (Tr. 45–46,
96.)
Yocum said White had to make a statement about the inci-
dent. Thinking that it was a private matter between himself and
Gradia and thinking that making a statement was “ludicrous”—
because employees were having arguments in the cafeteria all
the time and this incident lasted only an estimated 3 seconds,
not a 15-minute argument “disrupting the whole place”—White
was reluctant to make a written statement. When Yocum said it
would be better for him if he did, White asked Stockette if he
was in trouble over the incident. Stockette said that “No, no, I
don’t think you’re in trouble over this. You have a pretty good
record. There’s no reason why you should be in any trouble
over this.” (Tr. 46–48, 76, 79–81, 102.)
White then wrote an incident report (R. Exh. 1), stating that
at 3:45 p.m. on May 29 in the employees cafeteria, he

saw John Gradia in cafeteria. Went over to him and said not
to ever call me again on the phone, because the last time he
called me he called me every kind of son of a bitch. Called me
every curse word he could. In fact he went on for about five
minutes till I finally hung up on him. This was the second
time. He called me a few days before. He called me at two
o’clock in the morning and went on for about five minutes.
Which had me very upset.
John Gradia stood up like he wanted to fight. I walked
away.

The next day Security Shift Supervisor Matthew Steinmetz
approached White on the casino floor and jokingly said, “I
heard you had a little trouble with John Gradia last night.”
White answered that Gradia had called and harassed him in
March, that Gradia did not have a phone, and “I couldn’t get in
touch with him any other way so I told him off up in the cafete-
ria.” Steinmetz “laughed about it” and said, “Well, if it ever
happens again, take it outside; don’t tell him off inside the
building” and went on his way, laughing about it. There was no
mention about any discipline. (Tr. 48–49.) Steinmetz, in charge
of the whole shift, was next in command under Security Direc-
tor Sparks (Tr. 103, 185).
The next thing White heard about the incident was the fol-
lowing day, May 31, when Security Director Sparks (who re-
placed McLaughlin on May 1) called him in the office and,
without asking him what happened, suspended him and sent
him home, telling him that his job was at stake. Sparks handed
him a disciplinary action notice, dated May 31, stating that
White had “displayed a rude and discourteous behavior and
also used profanity and physical force toward a coworker” and
that “Final Determination” would be made on June 3. White
asked, “What physical force?” Sparks put his hand over and
patted his left elbow and said “the physical force had happened
when I had gotten my assignment.” White protested that noth-
ing had been said about any physical force. (Tr. 50–52, 93–96;
G.C. Exh. 6.)
That was when Sparks indicated that the discharge was not
his determination. It is undisputed, as White credibly credible,
that Sparks said “he really liked me but he had to suspend me”
(Tr. 51, 54). Particularly because of Sparks’ conflicting testi-
mony about his contacts with Vice President of Human Re-
sources Ceresani and other personnel in the Human Resources
Department about the incident, as discussed below, I find that
Sparks was indicating that the discharge decision was not being
made by him, but by Human Resources.
White told Sparks he was amazed “that they come up” with
“physical force toward a coworker” because “they never asked
me about it 2 days earlier” (Tr. 52). He wrote on the suspension
notice, under “Employee’s Comments”: “I had no physical
contact with John Gradia. We may have brushed each other
walking by,” meaning “walking by to get my schedule.” (Tr.
53; G.C. Exh. 6.)
On cross-examination White explained (Tr. 96): “And if
something would have happened between me and John Gradia
in front of the supervisor [at the roll call], I should think that
they would drag me in the office right away, not 2 days later.”
Upon leaving Sparks’ office, White turned his radio in to
Shift Supervisor Matthew Steinmetz, whose office was next
door. Steinmetz then indicated that he did not approve of White
CLARIDGE CASINO & HOTEL 727
being discharged. It is undisputed that Steinmetz said, “Frank,
this is bullshit” for his being fired over the incident. (Tr. 103–
104.)
On June 2 Sparks telephoned White and told him he was dis-
charged (Tr. 54. 98). The discharge notice, dated June 3, read
(G.C. Exh. 7):

Based on the information provided, including your statement
and admission to the incident that occurred on May 29, 1995
where you displayed rude and discourteous behavior and
physical force toward a coworker, a final determination has
been made. The final determination is that your employment
is terminated.

The notice was signed by Steinmetz, who on May 30 had
joked and laughed about the incident, advising White that if
Gradia’s harassment “ever happens again, take it outside; don’t
tell him off inside about it” and who on May 31, after Sparks
suspended White and sent him home, told White, “Frank, this is
bullshit” for his being fired over the incident.
B. Shifting positions
Instead of offering direct evidence in its defense, the Com-
pany over objections offered three unsworn, out-of-court writ-
ten statements and the hearsay testimony of Security Director
Sparks—not for their truth but solely to show why he “acted the
way he did” concerning the suspension and discharge of White.
The Company took the position, as stated by its counsel, that
“certainly, through cross-examination,” the General Counsel
“can determine whether or not Mr. Sparks has testified truth-
fully with respect to the information that was reported to him.”
(Tr. 189–197.) The counsel added (Tr. 191–192):

I submit that the truth with respect to what happened between
Mr. White and Mr. Gradia may be interesting. But it was the
information that was reported to Mr. Sparks that Mr. Sparks
acted upon which is relevant to the [discharge] decision.

Then, at the close of Sparks’ direct testimony, after the
statements and testimony were received for the stated limited
purpose, the company counsel shifted the Company’s position.
He contended that the statements were prepared and retained in
the normal course of business and are “admissible for the truth
of the matters asserted” and “would be admitted under the
business records exception to the hearsay rule.” This clearly
unfounded contention was rejected. (Tr. 226–230.)
The Company proceeded with the trial, without offering any
direct evidence.
Thus the Company relies in this case on Sparks’ credibility,
in testifying not only that he was the one who decided to dis-
charge White, but that he relied on the conflicting hearsay
statements.
C. Sparks’ Grossly Conflicting Testimony
In support of his claim that he made the decision to discharge
White, Security Director Sparks clearly gave grossly conflict-
ing testimony.
Contrary to the credited evidence and also to the wording of
the discharge notice (G.C. Exh. 7, that White “displayed rude
and discourteous behavior”), Sparks claimed that Shift Supervi-
sor Steinmetz reported to him that White “threatened” bodily
harm. He then testified that he personally interviewed the three
employees who gave written statements and “We had a meeting
after all the interviews [emphasis added] and determined that
[White] would be suspended.” (Tr. 188, 192, 203; R. Exhs. 7–
9.)
Regarding this meeting, Sparks testified that he and
Steinmetz met with “some representative from Human Re-
sources,” naming Vice President of Human Resources John
Ceresani, Employee/Labor Relations Quentin Nelson, and La-
bor Relations Manager Karen Tierney. “I recommended sus-
pension and they concurred.”
Sparks next testified that “there is constant communications
between the Security Department and the [Human Resources
Department] about what steps we’re taking,” that “I had nu-
merous conversations with Human Resources about this case
prior to the suspension,” that Steinmetz, Ceresani, Nelson, and
Tierney were involved, that “There was 5 people who had input
into it,” and that “Whether we were all in the same room at the
same time, I don’t recollect.” (Tr. 211–212.)
Sparks next testified: “When I say there was a meeting, there
was conversations. I know I went over to Human Resources
and sat in the office and spoke to them. . . . I don’t remember if
there was 5 people in the room at the time. . . . My present rec-
ollection is I don’t remember who was in the meeting, and if
there was 5 or 6 or 3 people in the meeting. I do know that I
consulted with Human Resources, told them what I thought, got
their input, and made a decision.’’ (Tr. 212–213.)
Sparks finally admitted that when he suspended White, he
had not personally interviewed the witnesses about the incident
(Tr. 216). I note that Vice President Ceresani (the only other
defense witness) testified that when Sparks reported the inci-
dent to him, Sparks was still in the process of gathering all the
information and wanted to know “what my feeling was as far as
the next step” and “I told him that he should place Mr. White
on investigative suspension” (Tr. 258–259).
Meanwhile Steinmetz prepared a three-page summary of the
investigation, suspension, and discharge, based in part on what
Sparks admittedly told him had occurred. Without explanation,
the summary completely omits any reference to Sparks’ meet-
ings or conversations with anyone in Human Resources before
he suspended White on the May 31. (Tr. 208–209; R. Exh. 10.)
Thus, when Sparks reported the incident to Ceresani, who
advised him to immediately suspend White, Sparks was relying
solely on the hearsay written statements and what he claimed
Steinmetz reported to him about the incident. This information
was obviously conflicting.
According to Sparks, Steinmetz reported that White had
“threatened” bodily harm, used abusive foul language, and 10
minutes later in the roll call room, “deliberately shoved Gradia”
(Tr. 192–193). Neither Gradia nor Davis stated in their written
statements that there was a “threat,” but stated instead that
White said he “should” break Gradia’s “fucking neck” (R.
Exhs. 8, 9). In contrast, employee Herald (who was sitting with
Gradia and Davis, stated in his written statement that “It was
too noisy for me to hear what was said” (R. Exh. 7).
Concerning what later happened in the roll call area, Gradia
asserted in his statement that White cursed him upon entering
the area, and after he got his assignment, White again cursed
and “pushed me.” Davis, however, asserted nothing in his
statement about any cursing in the roll call area and asserted
only that White gave Gradia an “elbow” to the side.
I note that when Sparks testifying about what he was told
when he interviewed Davis and Gradia, he went further and
claimed that both of them told him that White threatened Gra-
dia in the cafeteria. Sparks claimed that Davis said that White
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 728
told Gradia he was “going to” break his neck, that it was a
“threat,” and that White was “very loud” (contrary to what
Sparks testified he was told by Herald, who was sitting with
them, that Herald “didn’t hear the words that were used by
Frank White”). Similarly Sparks claimed that White stated he
was “going to” break his neck and that it was “threatening.”
(Tr. 194–199.)
Regarding the wording of the May 31 suspension notice
(G.C. Exh. 6), which made no reference to White’s “threaten-
ing” Gradia (stating instead that White “displayed a rude and
discourteous behavior”), Sparks first testified that Steinmetz
typed it and that they discussed “what to put in” it (Tr. 204). He
later contradicted himself again, positively testifying that no, he
“did not help him word” it (Tr. 238).
By Sparks’ demeanor on the stand, he appeared willing to
fabricate any testimony that might help the Company’s cause.
D. Concluding Findings
From all the evidence, I find that Sparks was attempting to
conceal the fact that the decisions to suspend and discharge
White were made by the Resource Department, who prepared
the suspension and discharge notices. Contrary to Sparks’
claims about White “threatening” Gradia and the Company’s
contention that White “threatened injury” to Gradia and “rein-
forced this threat by the use of physical force,” both the suspen-
sion and discharge notices referred to provisions in the Com-
pany’s Policies and Procedures Manual on Conduct on the Job,
that the use of “Rude or discourteous behavior,” “profane or
abusive language,” and “physical force against employees”
were grounds for disciplinary action, including termination.
I find that the Company seized on Gradia’s complaint about
the brief incident in the cafeteria and the purported “pushing”
in the roll call area as a pretext for ridding the payroll of White,
an employee who was highly regarded for his “dedication to the
Security Department and the Claridge as a whole,” but who was
“one of the primary in-house organizers”—before he could
engage in another drive to organize the Security Department. It
had demonstrated it animus toward him for his union activity.
I further find that the Company’s defense, that it “reasonably
believed” that White “had engaged in misconduct of a level
warranting termination,” Jordan Marsh Stores Corp., 317
NLRB 460, 476 (1995), is based on Sparks’ fabricated testi-
mony.
I therefore find that in view of the Company’s animus to-
ward White because of his union activity and the clearly fabri-
cated testimony of Sparks, resulting in part from his efforts to
conceal the fact that the Human Resource Department had
made the decisions to suspend and discharge White, I find that
the General Counsel has made a prima facie showing sufficient
to support an inference that White’s union activity was a moti-
vating factor in the Company decision to discharge him. Wright
Line, 251 NLRB 1083 (1983).
Having found that the Company’s defense for discharging
White is pretextual and that the credited evidence shows that
the Company’s contentions that White “threatened injury” to
Gradia and “reinforced this threat by the use of physical force”
are false, I find that the Company has failed to meet its burden
of proof that it would have discharged him in the absence of his
union activity.
Accordingly I find that the Company discriminatorily dis-
charged Francis White on June 2, 1995, because of his union
activity, in violation of Section 8(a)(3) and (1) of the Act.
In making this finding, I deem it unnecessary to rely as
background on the untimely filed charges that the Company
coercively interrogated an employee and created the impression
that union activities were under surveillance.
CONCLUSION OF LAW
By discriminatorily discharging Francis White on June 2,
1995, the Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(3) and (1)
and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily discharged an em-
ployee, it must offer him reinstatement and make him whole for
any loss of earnings and other benefits, computed on a quarterly
basis from date of discharge to date of proper offer of rein-
statement, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended3
ORDER
The Respondent, Claridge Casino & Hotel, Atlantic City,
New Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Federation of Police, Security & Correc-
tions Officers or any other union.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Francis
White full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previ-
ously enjoyed.
(b) Make Francis White whole for any loss of earnings and
other benefits suffered as a result of the discrimination against
him in the manner set forth in the remedy section of the deci-
sion.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharge and within 3
days thereafter notify the employee in writing that this has been
done and that the discharge will not be used against him in any
way.
(d) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary to

3 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
CLARIDGE CASINO & HOTEL 729
analyze the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at its fa-
cility in Atlantic City, New Jersey, copies of the attached notice
marked “Appendix.”4 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since June 2, 1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.

4 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Federation of Police, Security, &
Corrections Officers or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL , within 14 days from the date of the Board’s Or-
der, offer Francis White full reinstatement to his former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Francis White whole for any loss of earn-
ings and other benefits resulting from his discharge, less any
net interim earnings, plus interest.
WE WILL , within 14 days from the date of the Board’s Or-
der, remove from our files any reference to the unlawful dis-
charge of Francis White and WE WILL, within 3 days thereaf-
ter, notify him in writing that this has been done and that the
discharge will not be used against him in any way.
CLARIDGE CASINO & HOTEL