Clinton Inn

National Labor Relations Board - Board Decisions

May 1, 1980

249 N.L.R.B. 198 (N.L.R.B. 1980)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clinton Inn and Local 69, Hotel & Restaurant Em-
ployees & Bartenders International Union,
AFL-CIO. Case 22-CA-8817
May 1, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On November 9, 1979, Administrative Law
Judge Robert Cohn issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed exceptions and a brief in answer to
the General Counsel's exceptions.
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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In affirming the Administrative Law Judge's conclusion that Re-
spondent violated Sec 8(aK3) of the Act when it discharged Steven
Antebi, Members Jenkins and Truesdale rely on their conclusion, for the
reasons set forth below, that Antebi was discharged because of his union
activities and that Respondent's asserted reason for the discharge was a
pretext.
Respondent contended that Antebi was discharged because his work
performance was not satisfactory. However, at the time of his discharge,
Antebi was told by his supervisor, Koykos, that Respondent had "too
many cooks in the kitchen." Koykos testified at the hearing that it was
"very rare" to fire someone, and that, "to fire someone it's got to be a
very good reason, because we need them." Koykos also admitted that he
hired a replacement for Antebi the following week.
In light of the fact that Antebi's discharge occurred 3 days after
Koykos admittedly saw Antebi sign a union authorization card and that
Respondent exhibited strong animus toward the Union and its adherents,
these inconsistencies in Respondent's "business reasons" for Antebi's dis-
charge fully support the inference, which Members Jenkins and Trues-
dale draw, that Antebi's union activities, rather than any unsatisfactory
performance, motivated his discharge
Member Penello notes that in the section of his Decision pertaining to
Antebi's discharge, the Administrative Law Judge discussed Antebi's
union activities and Respondent's alleged business reasons for the dis-
charge, which he discredited. He then concluded that Antebi's involve-
ment in union activities was a "compelling factor" in Respondent's deci-
sion to discharge him. However, the Administrative Law Judge went on
to cite N.L.R.B. v. Hanes Hosiery Division, Hanes Corporation, 413 F.2d
457, 458 (4th Cir. 1969), in which the Fourth Circuit applied the "in
part" test, in finding that the discharge violated Sec. 8(aX3) of the Act.
Although he referred to the "in part" test, whether the Administrative
Law Judge applied that standard in reaching his conclusion remains un-
clear. Member Penello agrees with the Administrative Law Judge's con-
clusion that Antebi was discharged for his union activities, but does not
rely on the "in part" test in reaching this decision. Instead, he finds, for
the reasons set forth above, that Antebi was discharged solely because of
his union activities and that Respondent's asserted reason for the dis-
charge was a pretext.
249 NLRB No. 22
Judge and to adopt his recommended Order, as
modified herein.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Clinton Inn, Tenafly, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
i. Substitute the following for paragraph (i):
"(i) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them in Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues in finding that Re-
spondent violated the Act by discriminatorily dis-
charging two employees and issuing a written
warning to a third, and violated Section 8(a)(1) by:
interrogating employees, confiscating authorization
cards from employees, removing union literature
from employees' cars, announcing new and im-
proved benefits and working conditions, and pro-
mulgating and enforcing new rules in regard to em-
ployee conduct, including an invalid no-solicitation
rule. I also agree that a bargaining order in the ab-
sence of a union majority is not appropriate here,
but of course rely on my dissent, rather than the
majority, in United Dairy Farmers Cooperative Asso-
ciation, 242 NLRB No. 179 (1979).
I disagree with my colleagues' action in chang-
ing the Administrative Law Judge's "cease and
desist" order from a broad to a narrow order. The
wide variety, seriousness, and severity of Respond-
ent's misconduct amply demonstrate the general
disregard for employees' statutory rights which we
require under Hickmott. Unless we are to confine
broad orders to repeat offenders, which I would
3 In par. (i) of his recommended Order, the Administrative Law
Judge provided that Respondent shall cease and desist from "in any other
manner" interfering with, restraining, or coercing its employees in the ex-
ercise of the rights guaranteed them in Sec. 7 of the Act. However, it is
the Board's policy that such an order is warranted only when a respond-
ent is shown to have a proclivity to violate the Act, or has engaged in
such egregious or widespread misconduct as to demonstrate a general
disregard for the employees' fundamental statutory rights. Hickmott
Foods. Inc., 242 NLRB No. 177 (1979). With respect to the instant dis-
pute, we find that the broad injunctive order issued against Respondent is
not warranted. Accordingly, we will modify the Administrative Law
Judge's recommended Order and notice.
We shall also modify the notice to include par. I(e) of the Administra-
tive Law Judge's recommended Order, which he inadvertently omitted
from his notice
CLINTON INN 199
not, this is plainly a case requiring such an order to
curb Respondent's sweeping disregard of its em-
ployees' statutory rights.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise dis-
criminate against you in regard to your hire,
tenure of employment, or any term or condi-
tion of employment in order to discourage
membership in Local 69, Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO, or any other labor organization.
WE WILL NOT question you about your
union sympathies or activities, or those of
other employees, under circumstances or in a
way that would restrain or coerce you.
WE WILL NOT take union authorization
cards or other union material from the posses-
sion of our employees.
WE WILL NOT remove union leaflets or
pamphlets from parked automobiles in the em-
ployees' parking lot.
WE WILL NOT announce and put into effect
improved benefits and working conditions for
you to discourage your membership in, or ac-
tivities on behalf of, any labor organization.
WE WILL NOT put into effect new work
rules or enforce old rules more stringently, be-
cause employees show interest in unionization
or in order to discourage them from joining or
assisting any labor organization.
WE WILL NOT promulgate, maintain, en-
force, or apply any rule or regulation prohibit-
ing you, when you are on nonworking time,
from distributing handbills or similar material
on behalf of any labor organization in non-
working areas of our premises, or prohibiting
you, during nonworking time, from soliciting
your fellow employees to join or support any
labor organization, or discriminatorily enforce
any otherwise valid rule pertaining to such ac-
tivities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
exercise of rights guaranteed you by Section 7
of the National Labor Relations Act.
WE WILL offer to Daniel Moskowitz and
Steven Antebi immediate reinstatement to their
former jobs or, if such jobs no longer exist, to
substantially equivalent positions, without prej-
udice to their seniority or other rights and
privileges and WE WILL make them whole for
any loss of earnings they may have suffered by
reason of our unlawful discrimination against
them, with interest.
WE WILL remove and expunge from the
personnel record of Martha Woods the warn-
ing notice issued to her on November 28,
1978.
CLINTON INN
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Adminstrative Law Judge: This pro-
ceeding, held pursuant to Section 10(b) of the National
Labor Relations Act, as amended (herein called the Act),
was heard in Newark, New Jersey, on May 31, June 1,
and June 13, 1979, pursuant to due notice. The issues
raised by the pleadings' are, in essence, whether Clinton
Inn (herein called the Respondent or Inn), interfered
with, restrained, and coerced its employees in violation
of Section 8(a)(l) of the Act, and discriminated against
three of its employees in violation of Section 8(a)(3) of
the Act, by acts and conduct of its agents and supervi-
sors hereinafter set forth. 2
Subsequent to the hearing, and within the time al-
lowed, post-hearing briefs were filed by counsel for the
Respondent, and by counsel for the General Counsel,
which have been duly considered.
Upon the entire record in the case, including my ob-
servation of the demeanor of the witnesses,3 I make the
following:
FINDINGS AND CONCLUSIONS
I. ALLEGED UNFAIR LABOR PRACTICES
4
A. Background
At all times material herein, the Respondent has oper-
ated a hotel with related restaurant and banquet services
in Tenafly, New Jersey. During the spring and summer
of 1978, 5 the Respondent engaged in an expansion of its
facilities so that by the fall it was employing approxi-
mately 200 employees who were engaged in providing
services indigenous to such an operation. In later Sep-
The original charge was filed November 6, 1978; the original com-
plaint issued December 28, 1978 (amended May 2, 1979).
2 The amended complaint also seeks "the entry of a remedial [bargain-
ing] order, without inquiring into the Union's majority status . .
3 Cf. Bishop and Malco. Inc.. d/b/a Walker's, 159 NLRB 1159, 1161
1966).
4There is no issue as to the Board's jurisdiction or the status of the
Charging Union as a labor organization. The complaint alleges sufficient
facts respecting the interstate operations of the Respondent, which are
admitted by answer, upon which I may, and do hereby, find that the Re-
spondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
It was alleged in the complaint, and conceded by counsel for the Re-
spondent at the hearing, that the Charging Union is a labor organization
within the meaning of Sec. 2(5) of the Act
5 All dates hereinafter refer to the calendar year 1978, unless otherwise
indicated
CLINTON INN '9
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tember and early October, the Union commenced an or-
ganizational campaign among the employees of the Re-
spondent. The complaint alleges that in October and No-
vember, the Respondent engaged in a counter-campaign
designed to disabuse its employees of the asserted advan-
tages of belonging to, and supporting the union cam-
paign, including two discriminatory discharges and one
discriminatory warning notice, thereby violating Section
8(a)(l) and (3) of the Act. The Respondent denies such
allegations, and further asserts that the conduct alleged
to have been discriminatorily motivated was, in fact,
prompted by good and sufficient cause. We now turn to
the evidence adduced with respect to these issues.
B. The Facts
I. Events leading to the termination of Daniel
Moskowitz
As previously noted, the union campaign commenced
at the Inn in late September, when two union organizers
(one of whom was Bob Luchese) went into the hotel and
distributed a few union authorization cards to some em-
ployees. One of the employees, Daniel Moskowitz, a
houseman, 6 received a card from a maid at the Inn, and,
wishing to learn more about the Union, contacted Lu-
chese by telephone. Subsequently, on or about October
12, Moskowitz met Luchese in the parking lot of the
hotel, and Luchese explained to him the asserted advan-
tages of becoming a union member. At that time
Moskowitz signed a union authorization card, and took
from Luchese other blank authorization cards to distrib-
ute among the employees. Moskowitz testified that from
that time until his discharge on November 1, he distribut-
ed approximately 50 cards among the employees at the
Inn, of which approximately 25 were signed and re-
turned to him.
During the last week in October, Moskowitz learned
that one of the bellmen at the Inn was quitting, and he
spoke with Assistant Manager John Rojan about apply-
ing for the bellman's job.7 Rojan told Moskowitz that
the latter should fill out an application for the bellman's
job and that he (Rojan) would get in touch with
Moskowitz' immediate supervisor, Lee Fitzpatrick, in
order to check his work record. A short time later,
Moskowitz had a conversation with Fitzpatrick who told
him that Rojan had asked her about Moskowitz, and she
told Rojan that it would be satisfactory with her to
allow Moskowitz to change positions conditioned upon
his training someone to assume the position of houseman.
Shortly thereafter, Rojan advised Moskowitz that the
latter was accepted for the position of bellman, and di-
rected that he buy some suitable clothes for the position.
6 Moskowitz describes the duties of a houseman as follows.
Well, in the morning I would open up all the doors, and I would
immediately deliver linen to the maids' closets. I would clean,
sweeping outside the parking lot, inside the hotel. I would vacuum
the restaurant, and vacuum the bar. I would at times wipe windows,
or vacuum inside the rooms I would pick up lunch for the employ-
ees n my department
7 Although it is not entirely clear from the record, it would appear
that the bellman's job would be more lucrative than the job of houseman
since a bellman normally receives tips from guests of the Inn.
On November 1, Moskowitz (who had a day off from
work) received a telephone call from Rojan. The latter
advised that he had "bad news"-that the management
had decided that Moskowitz' work record was not good
enough for the job of bellman, and that, indeed, the Inn
did not desire to retain his services as a houseman. When
Moskowitz asked why the sudden change in position,
Rojan responded that, "He was in the middle of it, that
he was the one who had to tell me about the bad news
. . . that if Moskowitz had any further complaints, [he]
should go to see the manager." 8 The following day,
Moskowitz went to the Inn and had a conversation with
both Fitzpatrick and the general manager of the Inn,
Richard Trifari. According to the testimony of
Moskowitz, which was undenied, Fitzpatrick told him
that it was not true that his work record was not good,
and that she had nothing to do with his being dis-
charged. Then Moskowitz went into Trifari's office and
asked why he had been terminated. Trifari responded,
according to Moskowitz' testimony, "You were giving
out cards in the hotel, your work wasn't good enough,
and we can't have anybody in here whose work wasn't
good enough, according to your records."9 Moskowitz
then left Trifari's office.
Moskowitz returned to the Inn the following Friday to
pick up his last paycheck. On this occasion, he was ac-
compained by one Steven Antebi, a former employee
who had been discharged by the Respondent on or about
October 27 (of which more, anon). While walking
through the kitchen of the restaurant, Moskowitz gave
authorization cards to two employees of Spanish descent,
and told them that they could mail the cards to the
Union after completing the information requested upon
them. Apparently, Trifari learned of the presence of
Moskowitz and Antebi on the premises, and became very
disturbed. Martha Woods, a waitress in the coffeeshop,
testified that she happened to be in the kitchen at the
time, and described the circumstances as follows:
. . about 2 minutes later, Mr. Trifari came running
into the coffee shop and ran into the kitchen and
there were two dishwashers standing there and they
were looking at cards and he pulled them out of
their hands and-still reading them, and that's all. I
walked out of the kitchen at that point.' 0
Shortly thereafter, Trifari caught up with Moskowitz
and Antebi with the two union cards in his hands, and
advised the two men that if he ever saw them in the
hotel again he would call the police. He also said that he
I Credited testimony of Moskowitz. Neither Rojan nor Fitzpatrick was
called as a witness by the Respondent, although it was not shown that
either was unavailable.
9 Trifari denied knowledge of Moskowitz' union activities prior to the
date of his discharge. For reasons discussed in infra, I do not credit this
denial. However, this does not mean that I necessarily credit Moskowitz'
testimony that Trifari uttered the words about the former's distributing
union cards. Trifari did not impress me as one who would make such a
damaging admission.
"I rifari acknowledged being in the kitchen on this occasion and
seeing the two dishwashers with cards i their hands; however, he denied
removing the cards from the hands of the dishwashers I do not credit
this denial.
CLINTON INN 201
never wanted to see the cards again, and ripped them in
pieces in front of Moskowitz and Antebi.
Whereupon, Moskowitz secured his check and as he
was leaving the hotel, he observed Trifari in the parking
lot removing union pamphlets from parked automobiles
where the union organizers had placed them. This partic-
ular parking lot was one of several lots which the Inn
maintained for the parking of automobiles, but this one
was admittedly designated as an employees' parking
lot. ' Trifari said that he did not want to see any union
leaflets either and ordered the men to "get the hell off
the property." 2
2. The discharge of Steven Antebi
Antebi worked as a short order cook in the restaurant
for approximately 2 weeks before he was discharged by
the Respondent on October 27. He had known
Moskowitz in school prior to his employment at the Inn,
and 2 days before October 27, Moskowitz asked Antebi
to sign a union authorization card. The two men went
outside the door of the kitchen where Antebi signed the
card. At that time, they were observed by food and bev-
erage director, George Koykos, an admitted supervisor,
who asked Antebi what he was doing. Antebi responded,
"nothing," and Koykos walked back inside the kitchen.
Antebi's only other activities on behalf of the Union con-
sisted of passing out two authorization cards to two dish-
washers in the kitchen. The following Friday, when
Antebi went to pick up his paycheck, he was told by
George Koykos that the latter was sorry, but there were
too many cooks in the kitchen and he would have to let
Antebi go.'
3. The alleged discrimination as respects Martha
Woods, and other incidents of alleged interference,
restraint, and coercion
In October, Martha Woods was a waitress in the cof-
feeshop, having been employed by the Respondent for
approximately 4 years. Woods became active in the
Union in October, soliciting other employees, mostly in
the coffeeshop. She testified that she was successful in
signing about 10 employees into the Union. On or about
October 30, she had a conversation with Marie Vouteras,
a hostess in the coffeeshop. Vouteras told Woods that
she (Vouteras) had just returned from a conversation
with Trifari; that he told her that he was aware of a
union being formed in the hotel, and wished to know if
she knew anything about it, or if anyone had approached
her on the subject. Vouteras responded in the negative,
and Trifari thanked her.
It is alleged in the complaint, and denied by the Re-
spondent that Vouteras is a supervisor within the mean-
i" However, Trifari testified that that particular parking lot was also
utilized for valet parking of guests' automobiles.
:2 Testimony of Moskowitz
'J Koykos acknowledged that on the occasion when he told Antebi
that the latter was discharged, the only reason given Antebi at the time
was that there too many cooks, and that Koykos did not need him. How-
ever, Koykos testified that a couple of days before that, he had told
Antebi that he did not do his job properly, that he never came in on
time, and that on many occasions he was not on his job when Koykos
looked for him.
ing of the Act. The evidence shows that the duties of a
hostess are primarily to seat customers, assign stations to
the waitresses, and make drinks at the bar. The coffeL-
shop manager is Irene Brockman, an admitted supervi-
sor. When Brockman is not present in the coffeeshop
(which is usually for 2 or 3 hours in the morning on the
first shift, and the last 2 or 3 hours on the second shift),
the hostess on duty is in charge. Woods testified without
contradictions4 that Vouteras had authority to grant
waitresses time off from work. Under all circumstances, I
find that Vouteras was a supervisor within the meaning
of the Act.
During the second week in November-on Tuesday,
Trifari called a meeting of all the employees in each de-
partment of the Inn into the grand ballroom of the Inn
for a meeting. Trifari advised that he was aware of the
union campaign and spoke for a few minutes about the
Union in a derogatory manner. He advised of the bene-
fits which the Respondent had provided the employees,
which, he stated, were much better than the Union could
offer. However, he listed new benefits which all hourly
employees would receive. These included: Four paid
holidays per year, double time under certain conditions,
increased vacation benefits, increased hospital benefits,
and for the maids, an increased-rate-per room after per-
forming their required quota.
During the meeting, Woods sat near the front and
took notes.' After Trifari made his remarks, the meet-
ing was thrown open for questions, and Woods asked the
majority of the queries posed to Trifari. A couple of
weeks later, on November 28, Woods received a written
warning, as follows:
Not complying with state health department's rule
concerning neatly arranged hair and insubordination
to hostess on duty.
Woods testified as follows, respecting the incident
which gave rise to the warning slip:
A. It was in the morning and Eileen Healy, the
hostess on duty told me that I had to put my hair
up. My hair was already back in a clip when my
hair was longer.
My hair was already back in a clip and I told her
that I had worn my hair the exact same way the
day before and that Irene Brockman, the coffee
shop manager, hadn't said anything about it.
So she said, okay, then we'll ask Irene when she
comes in to work.
About 10 minutes later my hair was bothering me
being down, it was giving me a headache with the
clip, so I put it up anyway, and about two hours
later Irene came in and Eileen and I went into the
bar with Irene.
Q. Irene Brockman.
A. Brockman, right, the coffee shop manager.
14 Neither Vouteras nor Brockman testified at the hearing, and it was
not shown that either was unavailable. Accordingly, I am entitled to-
and do-draw an adverse inference from the failure of the Respondent to
call Supervisor Brockman as a witness.
15 Trifari admitted observing Woods taking notes at the meeting.
CLINTON NN no,
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eileen Healy and I and Irene went into the bar
and Eileen asked Irene if the girls were allowed to
wear their hair pulled back in a clip or did it have
to be all the way up. And Irene said the Board of
Health required all girls to wear their hair up, and
that was all.
And so I left, and the following day I received
that warning slip.
Q. Okay, did you speak to Eileen Healy about
this at all?
A. Yes. Well, I asked Eileen what had been said
to Irene that I should get the warning slip, and she
said that she had said abosolutely nothing, that
Irene had asked her, when she told me to put my
hair up, if I did immediately and Eileen said, no, she
did it about five or 10 minutes later, and Irene said,
oh, she said that's reason for insubordination and
that's why I got the warning slip.16
The following week, Schuler attended the November
10 meeting held by Trifari, and her testimony, in essence,
corroborates that of Martha Woods, above. Following
the meeting, Trifari passed her on the way out and stated
that he now knew that she (Schuler) was not the leader
of the union movement. That same week, Trifari called
Schuler into his office again and asked if the employees
were happy with the extra benefits that the Respondent
had bestowed upon them. Schuler responded that she
really did not know, and that ended the conversation. 7
In late November, the Respondent promulgated and
distributed to employees a booklet entitled "Clinton
Inn-Employee Manual" which explained the business of
the hotel, incorporated the new employee benefits de-
scribed above, and set forth sixteen (16) rules and regula-
tions regarding employee conduct. The amended com-
plaint attacks as violative of Section 8(a)(l) of the Act
rule 4 regarding penalties for excused and unexcused ab-
sences, and rule 14 which sets forth a no-solicitation/dis-
tribution rule as follows:
Solicitation of employees or the distibution of litera-
ture during working hours without the authoriza-
tion by the Hotel Manager or Food & Beverage Di-
rector on behalf of any individual, organization,
club or society is strictly prohibited.
With respect to rule 4, Martha Woods testified, with-
out contradiction, that prior to the issuance of the em-
ployee manual the only policy of the Respondent regard-
ing absenteeism was that ". . . you just had to call in if
you were sick and let them know you were not going to
come to work. But there was no excused absences or un-
excused absences." Trifari testified that in February, he
made a draft of proposed benefits to employees and rules
le The testimony of Woods as to the incident is uncontradicted and
credited; neither Eileen Healy nor Irene Brockman were called as wit-
nesses, and it was not shown that either was unavailable. For reasons ex-
pressed above with respect to Marie Vouteras, I find that Eileen Healy
was a supervisor within the meaning of the Act.
IT Credited testimony of Schuler. Trifari agreed with Schuler's testi-
mony respecting the events of the meeting with her on November 4, but
did not recall the statement assertedly made to Schuler following the
meeting with employees on November 10. He admitted he may have
made such a statement.
and regulations which he recommended to the owners of
the Respondent because of the anticipated doubling of
the number of employees which would result as a conse-
quence of the proposed expansion of the Inn. However,
there is dearth of evidence, either oral or documentary,
to corroborate Trifari's bare testimony,' so that the first
notice to employees of such benefits and of such rules
and regulations came in November, well after Respond-
ent's first awareness of the union campaign.
Trifari testified that he first became aware of the union
campaign in October. In the light of this timing, and of
the evidence in the record as a whole, I believe it to be a
reasonable inference, and therefore find, that the promul-
gation of the benefits (with the possible exception of the
hospitalization program) and of the rules was a conse-
quence of the Union's organizational campaign, which
the Respondent vigorously opposed, and not due simply
to an expansion of the employee complement. Moreover,
with respect to the no-solicitation rule, I note that the
language thereof is too broad, i.e., it fails on its face to
delineate between working and nonworking areas of the
premises, thereby abridging the right of employees to
distribute literature in nonworking areas of the premises.
There was no showing of any special circumstances justi-
fying the breadth of the rule; accordingly, I find that by
promulgating and maintaining the rules since on or about
November 20, the Respondent has violated Section
8(a)(l). a
II. ANALYSIS AND CONCLUDING FINDINGS
A. Alleged Discriminatory Discharges
In defense of the General Counsel's allegation that
Moskowitz was terminated because of his activities on
behalf of the Charging Union, the Respondent urges
that: (1) the Respondent had no knowledge of such ac-
tivities, and (2) good cause for the discharge existed in
that Moskowitz was "spending so much time on duties
other than what he was assigned to do." 20 I find that the
record does not support the Respondent's contentions.
The evidence shows that Moskowitz' activities in so-
liciting other employees to join the Union were open and
notorious, and were carried on at or in the vicinity of
the Inn. It is unlikely that such activities would go unno-
ticed by the agents and supervisors of the Respondent.
This, particularly where the Respondent's general man-
ager, Trifari, commenced making efforts in late October
to ascertain the extent of union activities at the hotel,
and who was involved in them. 2' The Respondent
8 There are minutes of a staff, i.e., supervisors' meeting on October 5,
where it was mentioned that a hospitalization program was discussed, and
that department heads should advise their employees of the program.
However, there is no evidence that such advice was given prior to Tri-
fari's speech to the employees in November.
1i See Wayne Home Equipment Company, Inc., 229 NLRB 654, 657
(1977), and cases cited therein. See also, Wilson Manufacturing Company,
Incorporated, 197 NLRB 322, 325-326 (1972). As in that case, the evi-
dence herein has not established that absenteeism became so agravated in
September and October as to warrant the imposition of such stringent
rules.
20 Resp. br. at p. 13.
21 See testimony of Martha Woods respecting her conversation with
Marie Vouteras on or about October 30, recounted, supra.
CLINTON INN 203
after Moskowitz' discharge as to the identity of the
union leader somehow constitutes conclusive evidence
that he was unaware of Moskowitz' activities in this
regard. I am unpersuaded by this kind of reasoning; the
fact that an employer wants to know the identity of the
union leader in November, after a union leader has been
terminated on November 1, is not persuasive that he did
not desire to know the identity of the union leader in
October, particularly in the light of his inquiry of Vou-
teras, referred to above.
Moreover, there is lack of support in the record for
the Respondent's contention that Moskowitz was dis-
charged for cause. Thus, there is Moskowitz' undenied
testimony that he was never criticized for his work, and
was on the verge of being transferred to a better position
when he was summarily terminated. This sudden turn of
events took place without any acts or conduct on the
part of Moskowitz-so far as the record shows-except
his union activities which the Respondent opposed. Such
timing is "most telling" 2 2 as respects an indicia of dis-
criminatory intent. Furthermore, as the evidence shows,
there is no evidence of previous warnings regarding the
asserted deficiencies in Moskowitz' work performance. I
find the following language of the United States Court of
Appeals for the District of Columbia Circuit pertinent in
these circumstances:
If the Employer had really been disturbed by the
circumstances it assigned as reasons for these dis-
charges, and had had no other circumstances in
mind, some word of admonition, some caution that
the offending lapse be not repeated, or some oppor-
tunity for correction of the objectionable practice
would be almost inevitable. E. Anthony and Sons,
Inc. v. N.L.R.B., 163 F.2d 22, 26-27 (D.C. Cir.
1947)23
On the basis of all of the foregoing, I find that the ter-
mination of Moskowitz on November , by the Respond-
ent, was in order to discourage membership in a labor
organization, in violation of Section 8(a)(3) and (1) of the
Act.
Although the evidence is not so compelling with re-
spect to the discharge of Antebi, I, nevertheless, find that
his termination was also discriminatorily motivated.
Thus, the record shows that he was terminated only 3
days following his signing of a union card for
Moskowitz, an incident which was admittedly observed
by his supervisor, Koykos. 24 To be sure, Koykos testi-
fied that Antebi's work performance during his short
tenure of employment with the Respondent was not sat-
22 See, e.g., Hambre Hombre Enterprise, Inc.. d/b/a Panchito's, 228
NLRB 136 (1977).
23 The following comments of the Court of Appeals for the 5th Circuit
are pertinent:
Perhaps most damning is the fact that both [discriminatees] were
summarily discharged after reports of their misconudct . . without
being given any opportunity to explain or give their versions of the
incidents.
24 In the light of evidence that the union campaign was proceeding
apace at the end at the time, I find implausible Koykos' denial that he
was unaware that the document which Antebi signed on this occasion
was a union authorization card. I therefore discredit Koykos' testimony
to that extent.
isfactory, and this testimony was not rebutted by the
General Counsel. However, this was not the reason
Antebi was let go. The reason given him by Koykos at
the exit interview was that the Company had "too many
cooks in the kitchen. There's not enough room. So I
[Koykos] have to let you go." This testimony was con-
firmed by Koykos, who also testified that it was "very
rare" to fire someone-that "to fire someone its got to be
very good reason, because we need them." Moreover,
Koykos admitted that the following week he hired an-
other person to replace Antebi. Finally, the Respondent
failed to call as a witness the head chef, Theodore
Koykos, with whom George Koykos testified he dis-
cussed the matter of Antebi's discharge. The testimony
of Theodore Koykos may well have shed light upon the
"real reason," 25 for the discharge of Antebi.
In view of all the foregoing, it is apparent that the
business reasons proffered by the Respondent for Ante-
bi's discharge do not withstand scrutiny. 2 8 Under all cir-
cumstances, I am convinced, and therefore find, that An-
tebi's involvement in the union activities, which the Re-
spondent strenuously opposed, was a compelling factor
in the decision to discharge Antebi, and therefore dis-
criminatory within the meaning of Section 8(a)(3) of the
Act. 27
B. The Alleged Discriminatory Warning Notice
As previously noted, Martha Woods, a waitress in the
coffeeshop, did, on November 28, receive a written
warning for assertedly not complying with a health rule
respecting properly controlled hair by employees who
work in a restaurant, and insubordination to the hostess
on duty. The particulars of the incident had been set
forth, supra. The record further reflects that in March
1977, and again in March 1978, the inspector for the
Tenafly Health Department, while giving the Respond-
ent a "satisfactory" evaluation, did note that some em-
ployees' hair was not controlled properly (without men-
tioning any names). The record further shows that, until
the advent of the Union in which Martha Woods was a
known activist, such a dereliction was handled by an
oral reminder. The facts reflect that Woods was hardly
insubordinate to the hostess on this occasion, but merely
wished to have the matter clarified by the coffeeshop
manager. Finally, the evidence shows that Woods was
the first to have received a written warning for such a
common dereliction.
Under all circumstances, I am convinced, and there-
fore find, that Woods would not have received a written
warning as a consequence of this incident had it not been
for her concerted and union activities, to which the Re-
spondent had a great antipathy. I therefore find that the
warning notice of November 28, was discriminatorily
motivated, in violation of Section 8(a)(3) And (1) of the
Act.
a2 See The Officers' Union of the Commercial Telegraph Union. A.FL.v.
N.LR.B., 347 U.S. 17, 43 (1954).
26 N.L.R.B.v. Great Dane Trailers. Inc,388 U.S 26, 33-34 (1967).
2" See, e.g., N.L.R.B.v. Hanes Hosiery Division. Hanes Corporation, 413
F.2d 457, 458 (4th Cir. 1969), where the Court stated:
And if a desire to stifle protected activity is a factor in the employ-
er's decision, the discharge is discriminatory
CLINTON NN
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ALLEGED ACTS OF INTERFERENCE, RESTRAINT,
AND COERCION
I have, heretofore, found announcements to the em-
ployees of new benefits and new rules and regulations
shortly after the union campaign commenced, constituted
interference, restraint, and coercion within the meaning
of Section 8(a)(1). 28 I find the following conduct of the
Respondent's agents and supervisors to constitute further
evidence of interference, restraint, and coercion in viola-
tion of Section 8(a)(l):
1. The acts and conduct of the Respondent's general
manager, Richard Trifari, on or about November 2,
wherein he: (a) snatched the union cards from the hands
of the two dishwashers in the kitchen, and confiscated
them without their permission; and (b) removed union
leaflets from the automobiles parked in the employees'
parking lot. Clearly, such conduct tended to interfere
with, restrain, and coerce employees in their engagement
in conduct protected by Section 7 of the Act, in viola-
tion of Section 8(a)(l) of the Act.29
2. The conduct of the Respondent's general manager,
Richard Trifari, on or about November 4, in interrogat-
ing employee Irene Schuler concerning union activities.
It is well established that such interrogation, conducted
in the boss' office without assurance to the employee
that no reprisals will be taken, is coercive and therefore
violative of Section 8(a)(1) of the Act.30
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section I,
above, occurring in connection with its interstate oper-
ations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact, and
upon the entire record, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By coercively interrogating employees concerning
their union activities, by confiscating union cards from
employees without their permission, by removing union
leaflets from parked automobiles in the employees' park-
ing lot, by announcing improved employee benefits and
working conditions in the midst of a union organizational
campaign, and by promulgating and enforcing new rules
and regulations governing employee conduct including
an overly broad no-solicitation and no-distribution rule,
the Respondent has interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed
2S See N.L.R.B.v. Exchange Parts Co., 375 U.S. 405 (1964).
29 See Walter Kidde. Inc. (Globe Security Systems), 185 NLRB 1011
(1970), Baker Manufacturing Co.. Inc., 218 NLRB 1295, 1298-1299 (1975).
30 See N.L.R.B. v. Camco, Incorporaored, 340 F.2d 803 (5th Cir. 1965).
them in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
4. By discharging its employees, Daniel Moskowitz
and Steven Antebi, and by issuing a written warning to
its employee, Martha Woods, in order to discourage
membership in the Union, the Respondent has engaged
in, and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Section 8(a)(1) and (3)
of the Act, I shall recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act.
It having been found that the Respondent unlawfully
discharged its employees, Daniel Moskowitz and Steven
Antebi, it is recommended that the Respondent offer said
employees immediate and full reinstatement to their
former positions, or if such positions no longer exists, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings that they may have
suffered as a result of the discrimination against them.
Any loss of earnings shall be computed as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), plus in-
terest as set forth in Isis Plumbing & Heating Co, 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
It having been found that the Respondent unlawfully
issued a written warning notice to its employee, Martha
Woods, it will be recommended that such warning notice
be removed and expunged from the personnel record
maintained by the Respondent respecting the employ-
ment of Martha Woods.
As the unfair labor practices committed by the Re-
spondent strike at the very heart of employee rights safe-
guarded by the Act, I shall recommend that the Re-
spondent be placed under a broad order to cease and
desist from in any manner infringing on the rights of em-
ployees guaranteed in Section 7 of the Act.3 1 However,
in view of the fact that the General Counsel failed to
prove that at any material time the Union represented a
majority of the employees of the Respondent in an app-
propriate unit, the request by the General Counsel for
the entry of a bargaining order is hereby denied.32 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:
ORDER 33
The Respondent, Clinton Inn, Tenafly, New Jersey, its
officers, agents, successors, and assigns, shall:
31 Cf. Hickmott Foods, Inc., 242 NLRB No. 177 (1979).
a2 See United Dairy Farmers Cooperative Association, 242 NLRB No.
179 (1979).
a3 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
Continued
CLINTON INN 205
i. Cease and desist from:
(a) Discouraging membership in Local 69, Hotel &
Restaurant Employees & Bartenders International Union,
AFL-CIO, or any other labor organization, by discharg-
ing or otherwise discriminating against employees be-
cause of their union membership or activities.
(b)Coercively interrogating employees concerning
their union membership or activities.
(c) Confiscating union authorization cards or other
union material from the possession of employees.
(d) Removing union pamphlets or leaflets from parked
automobiles in the employees' parking lot.
(e) Announcing and placing into effect improved bene-
fits and working conditions for employees to discourage
their membership in or activities on behalf of any labor
organization.3
(f) Instituting, or discriminatorily or more stringently
enforcing, work rules in retaliation for employees having
joined or assisted Local 69, Hotel & Restaurant Employ-
ees & Bartenders International Union, AFL-CIO, or any
other labor organization in order to discourage member-
ship in or support of such labor organization.
(g) Promulgating, maintaining, enforcing, or applying
any rule or regulation prohibiting its employees, when
they are on nonworking time, from distributing handbills
or similar literature on behalf of any labor organization
in nonworking areas of the Respondent's premises, or
discriminatorily enforcing any otherwise valid rule per-
taining to such activity.
(h) Promulgating, maintaining, enforcing, or applying
any rule or regulation prohibiting its employees, when
they are on nonworking time, from soliciting other em-
ployees to support Local 69, Hotel & Restaurant Em-
ployees & Bartenders International Union, AFL-CIO, or
any other labor organization, or discriminatorily enforc-
ing any otherwise valid rule pertaining to such activity.
(i) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization, to form, join, or assist the above-named
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
3' Nothing herein shall be construed to require the Respondent to re-
scind the benefits so conferred upon the employees on November 10.
labor organization, or any other labor organization, to
bargain collectively through representatives of their own
choosing, to engage in other concerted activities for the
purpose 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
deemed necessary to effectuate the policies of the Act:
(a) Offer Daniel Moskowitz and Steven Antebi imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or other
rights and privileges, and make each whole for any loss
of earnings he may have suffered by reason of the dis-
crimination against him in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other rec-
ords necessary to analyze and compute the amount of
backpay due under the terms of this Order.
(c) Remove and expunge from the personnel record,
maintained respecting the employment of Martha Woods,
the warning notice issued to her on November 28.
(d) Post at its Tenafly, New Jersey, facility copies of
the attached notice marked "Appendix." 3 5 Copies of said
notice, on forms provided by the Regional Director for
Region 22, after being duly signed by the Respondent's
authorized representative, shall be posted by it immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding 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 22, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
3s In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
CLINTON INN 5