Deauville Hotel

National Labor Relations Board - Board Decisions

Jan 4, 1982

259 N.L.R.B. 897 (N.L.R.B. 1982)

DEAUVILLE HOTEL 897
Deauville Hotel and Flores Demetrio Gonzales. have violated the National Labor Relations Act, as
Case 12-CA-7776 amended, and has ordered us to post this notice.
January 4, 1982 WE WILL NOT threaten employees with dis-
charge should they continue to complain
SUPPLEMENTAL DECISION AND among themselves about their working condi-
ORDER tions.
WE WILL NOT discharge or otherwise dis-
BY MEMBERS FANNING, JENKINS, AND criminate against any employees because of
~Z~~IMMERMAN ~that employee's protected activities or union
On July 6, 1981, Administrative Law Judge activities.
Julius Cohn issued the attached Supplemental De- WE WILL NOT fail to reinstate employees,
cision in this proceeding.' Thereafter, Respondent who are so entitled, to a substantially equiva-
filed exceptions and a supporting brief. lent position, and further discriminate against
Pursuant to the provisions of Section 3(b) of the them with regard to wages, hours, and work-
National Labor Relations Act, as amended, the Na- ing conditions because of the protected activi-
tional Labor Relations Board has delegated its au- ties in which they had engaged.
thority in this proceeding to a three-member panel. WE WILL NOT in any like or related matter
The Board has considered the record and the at- interfere with, restrain, or coerce our employ-
tached Supplemental Decision in light of the ex- ees in the exercise of the rights guaranteed
ceptions and brief and has decided to affirm the them in Section 7 of the Act.
rulings, findings,2 and conclusions of the Adminis- WE WILL make whole Flores Demetrio
trative Law Judge and to adopt his recommended Gonzalez for any losses he may have sustained
amendments to paragraph 2(a) of the Board's by reason of the discrimination practiced
Order and to the notice to the Order. against him, plus interest.
WE WILL offer full reinstatement to Flores
ORDER Demetrio Gonzalez and make him whole for
Pursuant to Section 10(c) of the National Labor any losses he may have sustained by reason of
Relations Act, as amended, the National Labor Re- the discrimination practiced against him, plus
lations Board adopts the recommendation set forth interest.
in the Administrative Law Judge's Supplemental DEAUVILLE HOTEL
Decision, amends its Order of June 15, 1981, substi-
tuting the attached notice for its original notice, SUPPLEMENTAL DECISION
and hereby orders that the Respondent, Deauville
Hotel, Miami Beach, Florida, its officers, agents, STATEMENTOFTHECASE
successors, and assigns, shall take the action set JULIUS COHN, Administrative Law Judge: On January
forth in the said Order, as amended. 29, 1981, I issued my Decision in this proceeding finding,
inter alia, that Flores Demetrio Gonzalez had been un-
'The Supplemental Decision was issued pursuant to the Board's Deci- lawfully discharged in January 1977 and had been fur-
sion and Order and remand in this case, published at 256 NLRB 561 ther unlawfully reinstated in May 1977 to a position dif-
(1981). ferent from that which he had formerly held.I Respondent has excepted to certain credibility findings made by the i i r h
Administrative Law Judge. It is the Board's established policy not to In May 1978 Respondent again discharged Gonzalez
overrule an administrative law judge's resolutions with respect to credi- for allegedly refusing to obey the orders of head house-
bility unless the clear preponderance of all of the relevant evidence con- man, Augusto Feo, and threatening to kill him. After
vinces us that the resolutions are incorrect. Standard Dry Wall Pioduca hearing evidence on the issue raised by Respondent that
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully eamined the record and find no basis for reversing his findings. Gonzalez was not entitled to reinstatement after May
1978 because he had been discharged for cause, I found
APPENDIX that discharge to be presumptively valid since it had not
been alleged as a violation herein nor had a new charge
NOTICE To EMPLOYEES been filed. Therefore, backpay and reinstatement were
cut off as of the date of May 1978 discharge.
POSTED BY ORDER OF THE On June 15, 1981, the Board issued its Decision and
NATIONAL LABOR RELATIONS BOARD Order (256 NLRB 561) affirming both the unlawful dis-
An Agency of the United States Government charge of Gonzalez in January 1977 and improper rein-
statement in May 1977, but it did not agree with the dis-
After a hearing at which all sides had an opportu- position of the case with regard to Gonzalez' right to re-
nity to present evidence and state their positions, instatement and further backpay. Therefore, the Board,
the National Labor Relations Board found that we having noted that the matter had been fully litigated, re-
manded the proceeding to me "for the limited purpose of
259 NLRB No. 117
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vinces us that the resolutions are incorrect. Standard Dry Wall Pivduca hearing ev i d en c e o n t h e issue r a i sed by espondent that 3
r full xamin t r r fi i f r r r i i fi i . l t titl t r i t t t ft
t a t i t ti l li it t
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POSTED BY ORDER OF THE c ut o f a s o f t h e d a t e o f M a y 197 8 d
sc h a .POSTED BY U F Q ^, g ^ ^^Dcso J e 15, , t i

nity to present evidence a state t ir siti s, i t t t
the ti l r l ti s r f t t having n o t ed th a t t h e m at t e r h ad been f ll litig t , re-
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898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making credibility findings with respect to the May 1978 instruction to clean some rooms other than those in
incidents and recommendations as to whether, under all which he was currently working. The Board has already
of the circumstances, the conduct engaged in by Gonza- found that Gonzalez was entitled to reinstatement to the
lez was such as to require the forfeiture of his right to job he held previous to his initial discharge in January
reinstatement and backpay after May 1978." 1977 with backpay. His failure to respond immediately to
Upon the entire record and from my observation of an instruction of the sort alleged does not appear serious
the witnesses, I make the following: enough to warrant the loss of his right to reinstatement,
Adt..ia... Fi.nn. of Ft established by reason of Respondent's unfair labor prac-
Additional Findings of Fact a d Conclusitices. In arriving at this determination, I have considered
At the hearing Stephan Delmont, operations manager that Respondent had reinstated him to a lesser job than
of Respondent, testified that Augusto Feo was appointed that to which he was entitled and had indeed given it to
as head houseman sometime after the discharge of Gon- Feo. In addition, Respondent exhibited a continuing
zalez on January 17, 1977, and prior to Gonzalez's rein- animus toward Gonzalez evidenced by the finding in my
statement in May 1977. He further stated that Gonzalez Decision that, sometime after the improper reinstatement,
was dicharged in May 1978 for threatening the life of his Delmont informed him he had done him a favor by
"supervisor," Augusto Feo.' giving him a job and, if he continued his protests about
Gonzalez testified that, on the date of his discharge in working conditions to other employees, he would be dis-
May 1978, he was on the 15th floor fixing and cleaning a charged. Moreover, it may also be observed that, had
room. Feo came in and gave him orders, telling him Respondent reinstated Gonzalez to his former position as
what he had to do and how he was to do it. Gonzalezwhat he had to do and how he was to do it. Gonzalez head houseman, to which he had been entitled, he would
asked Feo, "To do me the favor and leave me alone be- diffic which e t his
cause I was already a year doing the work and I knew never have had the difficulties which led to his dischargecause I was already a year doing the work and I knew
what I was doing.Feo then went downstand in May 1978.2 Finally, even assuming that Gonzalez hadI a doing .. ." e then went downstairs and
was directed by the housekeeper to get a man from an- uttered the words attributed to him by Feo, the conduct
other floor and bring him up to the floor where Gonza- would not call for discharge in view of the antagonistic
lez was working. He then told Gonzalez, in effect, that environment and provocative position in which he was
the other man was cleaning the room that he, Gonzalez, placed,3 particularly since epithets and the like do not
was supposed to clean. At that moment Gonzalez threat- constitute real threats in the everyday parlance of em-
ened him. Feo said Gonzalez offended his mother, and ployees.
then said to let him alone, and if he did not, he would In conclusion, based on my credibility resolution re-
throw him out the window. Feo then reported this to his garding the Feo incident and in view of all the circum-
superiors and, as a result, told Gonzalez when he was stances, I find that Gonzalez should not have been de-
going home that he was suspended from the job. Upon prived of his continuing right to reinstatement and back-
being asked whether he recalled anything else that hap- pay after May 1978. Accordingly, I recommend that
pened in the room, Feo said that, when he was talking to paragraph 2(a) of my recommended Order adopted by
Gonzalez, the latter tried to take a chair and lift it in his the Board be amended to read as follows: 4
hand. At that, Feo said he left the room. "(a) Offer Flores Demetrio Gonzalez immediate and
In evaluating the testimony as to this incident, it must full reinstatement to the position he held prior to his dis-
be borne in mind that I have already credited the testi- charge in January 1977 or, if such job no longer exists,
mony of Gonzalez as to the other matters involved to a substantially equivalent position, without prejudice
herein. On the other hand, Delmont's testimony is not to his seniority or other rights and privileges, and make
probative because concededly he was merely repeating him whole for any loss of earnings in the manner set
what Feo allegedly told him as to a threat on his life. forth in the section of the Decision entitled 'The
Feo himself testified mainly in response to leading ques- Remedy,' including the period after May 1978."
tions concerning the principal matter at issue. And, I further recommend that the last paragraph of the
noting that Respondent has the burden of establishing notice attached to the Board's Order be amended to read
that Gonzalez engaged in conduct which would fore- fllows
close his right to reinstatement, I find that Respondent reinstatement to Flores Demetrio
has not sustained it by virtue of the uncorroborated testi- Go le e ole for loes he may
mony of Feo. In any event I credit Gonzalez to the f a m
neffet tat he did not teaent I cedit o le to the have sustained by reason of the discrimination practicedeffect that he did not threaten the life of Feo.him, plus interest."
Having found that Gonzalez did not threaten the life hm p nterest
of Feo, the head houseman, there remains, at most, an al-
leged failure on the part of Gonzalez to respond to an ' See Seaport Manor, Inc. and Martin Rosenberg, Baruch Mappa. and
Emil Klein, a Partnership. d/b/ Seaport Manor Home for Adults, 248
NLRB 886, 892 (1980).
' The same finding made in fn. 2 of my Decision with respect to the
3 See N.LR.B. v. M & B Headwear C., Inc., 349 F.2d 170, 174 (4th
supervisory status of Gonzalez is repeated here. There is insufficient evi- Cir. 1965).
dence in the record that Feo, as in the case of Gonzalez, was a supervi- ' It is noted that the Board has ordered that the provisions of Sec.
sor within the meaning of the Act. 102.46 of the Board's Rules are applicable to this Supplemental Decision.
.

Additional Findings act , and Conclusionsestablished r f t' f ir l r r -
Additional Findings of Fact and onclusions tices. I rri i t t i t r i ti , i
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