El Paso Manor, Inc.

National Labor Relations Board - Board Decisions

May 15, 1967

164 N.L.R.B. 597 (N.L.R.B. 1967)

EL PASO MANOR, INC. 597
El Paso Manor , Inc. and Hotel , Motel,
Restaurant Employees and Bartenders
Local No. 628 of the Hotel & Restaurant
Employees and Bartenders International
Union , ALF-CIO.' Case 28-CA-1369.
May 15,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On January 10. 1967, Trial Examiner Henry S.
Salim issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached
Trial Examiner's Decision. He also found that
the Respondent had not engaged in other unfair
labor practices alleged in the complaint and
recommended dismissal of the complaint to that
extent. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Decision and a brief in
support thereof, and the General Counsel filed
cross-exceptions with a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-
exceptions, and briefs and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with
the following modifications and additions:
1. We agree with the Trial Examiner that
Respondent violated Section 8(a)(3), (4), and (1) of
the Act by discharging Reymundo Chavez because
he had engaged in protected activities on behalf of
the Union, and because he had given adverse
testimony against Respondent in a prior Board
proceeding.2 Like the Trial Examiner, we conclude
that the so-called Ferrell incident, upon which
Respondent relies to support its contention that
Chavez was discharged for cause, was seized upon
by Respondent as a pretext to conceal the unlawful
reasons for the discharge.
Respondent contends that it discharged Chavez, a
cocktail waiter in its Mardi Gras Club, on April 26,
1966,3 because a "serious complaint" had been filed
against Chavez the preceding day4 by a customer
named Ferrell. As set forth by the Trial Examiner,
the record reveals that on April 25 Ferrell
complained to Respondent's Club Manager Irwin
that he had been discourteously treated by Chavez
on April 20 while he (Ferrell) was a customer
entertaining luncheon guests at the Club. Ferrell's
complaint to Irwin alleged that Chavez (1) was slow
in removing an extra place setting and chair from his
table when asked to do so by Ferrell and that,
according to Ferrell's testimony, Chavez finally "just
shoved it over to someone else's table" causing
Ferrell to be embarrassed; (2) was slow in bringing
his beverage order and, later, in bringing his check;
and (3) gave him intermittent hostile glances
throughout the duration of the meal. In addition,
however, Ferrell testified, without contradiction,
that he also voiced his dissatisfaction with respect to
the food service rendered that day by the food
waiter, complaining to Irwin that (1) the food was
slow in coming; (2) the waiter brought food which
had not been ordered; (3) the food was served from
the wrong side; and (4) the waiter brought only one
piece of bread per guest. Unlike Chavez, however,
the food waiter was neither discharged nor
reprimanded as a result of the Ferrell complaint
against him.
Under all the circumstances herein, we are
persuaded that Chavez was not discharged for
cause, as asserted by Respondent. And, while we do
not minimize the possible seriousness of the Ferrell
complaint, we are convinced by the following facts
and circumstances, which are more fully set forth by
the Trial Examiner, that this incident constitutes a
pretext to conceal Respondent's unlawful motive for
discharging Chavez. Specifically, we rely5 on the
disparity of treatment accorded Chavez, a known
prounion activist, and the food waiter, as a result of
Ferrell's complaint; Respondent's failure to explain
the reason for the discharge in response to Chavez'
inquiry; Respondent's failure to give prior warning
to Chavez that his work was less than satisfactory;
Respondent's failure to seek an explanation from
Chavez with respect to the Ferrell complaint prior to
the discharge; the shifting and inconsistent reasons
advanced by Respondent in support of the
discharge; Respondent's expressed hostility toward
the Union; and, the timing of the discharge 3 weeks
after the Trial Examiner's Decision issued in the
previous case involving this Respondent, at the
hearing in which Chavez gave testimony adverse to
Respondent's interests.
2. The Trial Examiner found that Respondent's
no-solicitation rule, as enunciated by its attorney,
Hoy, on March 15 at a meeting with Chavez, did not
' Herein called the Union
2E1 Paso Manor, Inc, 159 NLRB 1649
' Unless otherwise indicated, all dates are in 1966
4 The decision to discharge Chavez was made on April 25,
which was Chavez' day off
5 Unlike the Trial Examiner, we do not rely on the fact that a 15-
percent service charge appeared on the beverage check signed by
Ferrell
164 NLRB No. 81
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate Section 8(a)(1) of the Act. We find merit in
the General Counsel's exception to this finding.
Respondent contends that its rule against
solicitation during working time was not limited to
union solicitation, and that Hoy's remarks to Chavez
were intended to secure his compliance with lawful
rules. According to Hoy's testimony, he told Chavez
on March 15 about employee complaints "that he
was bothering them during his working time and
during their working time; that he was passing out
literature , union literature , and attempting to
discuss some of this against the will of the
employees which was against the [Respondent's]
policies." Hoy further testified:
I told him [Chavez] ... it was an established
rule, of which he was aware, that there was to
be no solicitation for any reason on his working
time or on the working time of the people, the
employees that he was attempting to solicit. I
did not outline in detail the matters regarding
which he could not solicit, but I told him that his
views as to the Union were his own ideas; that
management did not necessarily agree with
what he said. I did say that he could not solicit
on working time for any purpose ... I did
explain that his duties were limited to the Mardi
Gras Club premises and the kitchen premises,
because he was performing Club duties, and that
while he was there as an employee, he was to
limit his activities and that he was not to wander
through the hotel or any of the other premises;
and, if he was soliciting any other part of the
hotel, he would be disciplined. [Emphasis
supplied.]
Furthermore, by admitted on cross-examination
that the March 15 meeting with Chavez was, in fact,
held because of Chavez' continued solicitation on
behalf of the Union.
The breadth of Respondent's no-solicitation rule,
as set forth by Hoy's testimony, unlawfully restricts
the employees' right to engage in union activities on
nonworking time in nonworking areas, and therefore
is violative of Section 8(a)(1) of the Act.6 In addition,
the record establishes, and we find, that Hoy's
statements to Chavez on March 15 were intended to
discourage his solicitation and other activities on
behalf of the Union rather than to enforce a
presumed valid no-solicitation rule. Accordingly, we
also find that Hoy's remarks constituted a threat of
reprisal against Chavez if he continued to engage in
prounion activities and, therefore, violated Section
8(a)(1) of the Act.7
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
' Firestone Steel Products Company, 147 NLRB 462, 464,
General Aniline & Film Corporation, 145 NLRB 1215, cf,
Relations Board hereby orders that the Respondent,
El Paso Manor, Inc., El Paso, Texas, its_officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Hotel, Motel,
Restaurant Employees and Bartenders Local
No. 628 of the Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, or any
other labor organization , by discriminatorily
discharging any of its employees, or by
discriminating in any other manner in regard to their
hire and tenure of employment or any term or
condition of employment.
(b) Discharging or otherwise discriminating
against employees because they have given
testimony in proceedings under the Act.
(c) Threatening employees with discharge or
other reprisals if they support or assist the above-
named Union, or any other labor organization.
(d) Maintaining and enforcing a no-solicitation
rule which prohibits its employees from engaging in
union solicitation on nonworking time in nonworking
areas.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization , to form labor
organizations, to join or assist Hotel, Motel,
Restaurant Employees and Bartenders Local
No. 628 of the Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, and to refrain from any or all of such
activities.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Reymundo Chavez immediate and full
reinstatement to his former or a substantially
equivalent position without prejudice to his seniority
or other rights and privileges previously enjoyed.
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(c) Make whole Reymundo Chavez for any loss of
pay he may have suffered by reason of the
discrimination, in the manner provided in the
section of the Trial Examiner's Decision entitled
"The Remedy."
Floridan Hotel ofTampa, Inc , 137 NLRB 1484
Daniel Construction Company, Inc , 145 NLRB 1397,1399
EL PASO MANOR, INC.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay and interest due under the terms of-this
Order.
(e) Post at its place of business in El Paso, Texas,
copies of the attached notice marked "Appendix."8
Copies of said notice, to be furnished by the
Regional Director for Region 28, shall, after being
duly signed by the Respondent's authorized
representative, be posted by it for 60 consecutive
days from the date of posting, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 28; in
writing, within 10 days from the date of this
Decision, what steps have been taken to comply
herewith.
" In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order
599
from engaging in union solicitation on
nonworking time in nonworking areas.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join , or assist Hotel , Motel , Restaurant
Employees and Bartenders Local No. 628 of the
Hotel & Restaurant Employees and Bartenders
International Union , AFL-CIO, or any other
labor organization , to bargain collectively
through representatives of their own choosing,
and to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection , and to refrain from any or all
of such activities . All of our employees are free
to become or remain members, or to refrain
from becoming or remaining members, of the
above-named Union or any other labor
organization.
WE WILL offer Reymundo Chavez immediate
and full reinstatement to his former or
substantially equivalent position without
prejudice to his seniority or other rights and
privileges previously enjoyed , and make him
whole for any loss of pay suffered by him
because of the discrimination against him.
EL PASO MANOR, INC.
(Employer)
APPENDIX Dated By
(Representative ) (Title)
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT discourage membership in
Hotel, Motel, Restaurant Employees and
Bartenders Local No. 628 of the Hotel &
Restaurant Employees and Bartenders
International Union, AFL-CIO, or any other
labor organization, by discriminatorily discharg-
ing any of our employees or by discriminating
in any other manner in regard to their hire
or tenure of employment or any term or
condition of employment.
WE WILL NOT discharge or otherwise
discriminate against our employees because
they have given testimony in proceedings under
the Act.
WE WILL NOT threaten our employees with
discharge or other reprisals if they support or
assist the above-named Union, or any other
labor organization.
WE WILL NOT maintain and enforce a no-
solicitation rule which prohibits our employees
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive
days from the date of posting, and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 500 Gold Avenue, S.W., Room 7011,
Federal Building and United States Courthouse,
Albuquerque, New Mexico 87101, Telephone
247-0311.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Trial Examiner: This proceeding was
heard before me in El Paso, Texas, on September 20 and
21, 1966, on the complaint of the General Counsel and the
answer of El Paso Manor, Inc., hereinafter referred to as
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent .' The issues litigated were whether the
Respondent engaged in unfair labor practices and thereby
violated Section 8(a)(4) of the Labor Management
Relations Act, as amended , 61 Stat. 136, herein called the
Act,2 and Section 8(a)(1) by threatening employees with
discharge if they engaged in union activities. The parties
waived oral argument and the briefs filed by the General
Counsel and the Respondent have been fully considered.
During the hearing the Trial Examiner reserved ruling on
Respondent 's motion to dismiss the complaint. This
motion is disposed of in accordance with the findings and
conclusions stated in this Decision.
Upon the entire record in the case and from observation
of the demeanor of the witnesses , I hereby make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Respondent is a corporation duly organized under the
laws of the State of Texas. At all times material herein,
Respondent has operated and maintained a motel , private
club, restaurant , and bar in the city of El Paso, Texas,
employing approximately 115 people and is, and has been
at all times material herein , continuously engaged at said
place of business in offering hotel accomodations, food,
and drink to the public. During the same period,
Respondent purchased and received supplies, goods,
materials, and equipment from States other than the State
of Texas valued in excess of $50,000 . It is found that
Respondent is now , and has been at all times material
herein , an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union, namely, the Hotel , Motel, Restaurant
Employees and Bartenders Local No. 628 of the Hotel &
Restaurant Employees and Bartenders International
Union, AFL-CIO , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issue
Reymundo Chavez, the alleged discriminatee, testified
against Respondent3 in an earlier related unfair labor
practice proceeding (El Paso Manor , Inc., 159 NLRB
1649), at a Board hearing on September 16 and October 4,
1965.4 Respondent discharged Reymundo Chavez, a
waiter , contending he was "late to work," his "general
attitude was unacceptable ," particularly after a Board
election , he engaged in union solicitation during his "duty
hours" and he was discourteous to customers. The
i The Respondent 's answer was a general denial although
Section 102 . 20 of the Board 's Rules and Regulations , Series 8, as
amended, provide that Respondent "shall specifically admit,
deny, or explain each of the facts alleged in the complaint , unless
the Respondent is without knowledge . All allegations in the
complaint , if no answer is filed, or any allegation in the complaint
not specifically denied or explained in an answer filed . shall be
deemed to be admitted to be true and shall be so found by the
Board , unless good cause to the contrary is shown " In view of the
fact that the General Counsel has failed to object , the answer, for
purposes of this Decision , shall be considered to comply with the
above-cited provision
General Counsel denies this was the reason for his
termination , alleging Reymundo Chavez was discharged
because of his union activities.
B. The Testimony
Reymundo Chavez was employed by Respondent from
August 17, 1964, to April 26, 1966. His supervisor during
this entire period of time was Hector Chavez,
Respondent ' s maitre d'hotel , whose supervisory status is
not in dispute . Respondent acknowledges that Reymundo
Chavez, the alleged discriminatee , was a prime mover of
the organizational campaign , an ardent union proponent, a
union observer at the Board -conducted election of
Respondent 's employees on May 6, 1965, which the Union
lost, and that Reymundo's union activities were known to
it prior to Reymundo' s discharge on April 26,1966.
When he was a witness at the Board hearing in
,September and October 1965 in which the Respondent
was found to have committed various unfair labor
practices , Reymundo testified that Respondent 's officials
interrogated him as to his views concerning the Union and
questioned him as to whether his two sons , who were
found by the Board in the prior proceeding to have been
discriminatorily discharged by Respondent, were
members of the Union.
Subsequent to the May 6 election and up to the time of
his discharge , Reymundo Chavez distributed union
literature to the employees , solicited them to sign union
authorization cards, and extolled the virtues of unionism to
his coworkers.
On or about March 15, 1966, he was summoned to the
manager 's office and in the presence of Klink, the
Company's president , Irwin , the manager, and another
waiter named Vargas, Chavez was advised by
Respondent 's attorney , Robert H. Hoy, Jr ., who is also one
of the owners of the Respondent Motel , that company
policy prohibited employees from engaging in union
activities or any type of solicitation, union or otherwise,
during working hours and that , if Chavez violated this rule,
he would be subject to discharge . Chavez said nothing. On
cross-examination , Hoy testified that Chavez " was stirring
up" the employees and on two occasions prior to
March 15, Chavez had been cautioned by Respondent's
officials not to solicit for any purpose or talk union to
employees during working hours.
A few days later , Reymundo Chavez testified that his
supervisor , Hector Chavez (no relation) said to him: "I
wish you would cut this stuff about the Union because I do
not want to be the one to have to discharge you."s When
Reymundo Chavez was discharged by Hector Chavez on
April 26, 1966, the latter said , when asked by Reymundo
the reason for him being fired : "there is a very big
complaint against you." When Reymundo asked him to be
specific and give him the details of this "complaint,"
2 Section 8(a)(4) provides in pertinent part that it is an unfair
labor practice "to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under
the Act "
' Respondent 's counsel acknowledged that Chavez ' testimony
at this hearing could properly be characterized as "adverse" to
the Respondent
See G C. Exhs 3 (a) and 3 (b) which are in the transcript in the
prior case , particularly pp. 147 through 214 and 695 to 711
5 Hector Chavez, when asked by Respondent's counsel on his
direct examination if this occurred, did not deny it but equivocally
testified that "[he] don't recall "
EL PASO MANOR, INC.
Hector said it concerned an argument Reymundo had with
a customer. When Reymundo denied this and asked
Hector the name of the customer, the table at which he
was seated, and the date this was supposed to have
occurred, Hector refused to elaborate.
Hector Chavez' version of this incident and the
circumstances under which he notified Reymundo he was
fired is as follows: "I told him that he was fired. He wanted
to know why. I told him that we had received a very bad
complaint on him. He inquired who the person was that
had complained ... I couldn't recall the name of the
person at that moment-so I didn't tell him who the person
was." On cross-examination, Hector testified: "I didn't
think I had to tell him [the name of the customer] since he
had done something wrong ... He had the right to ask why
he was being discharged, but not the name of the customer
who complained."
Jerry Irwin, manager of the motel, testified that a
customer named Ferrell came to the motel on April 25,
1966, and complained of rudeness and impertinence on the
part of a waiter, whose name he did not know, which he
claimed occurred on April 20. Ferrell's complaint was
based on the waiter being slow in serving drinks and
"abrupt" in removing an extra place setting when so
requested by Ferrell.s Also, Irwin testified Ferrell told him
that the waiter gave him "intermittent, unfriendly looks
and glances"7 and the check "was slow in coming."
Subsequent investigation by Hector Chavez, the maitre d',
who is Reymundo's supervisor, testified Irwin, revealed
that the waiter responsible for the purported derelictions
was Reymundo Chavez, the alleged discriminatee.
Hector Chavez testified that in the course of his
investigation Ferrell told him "that he was treated real
dirty by the waiter." Hector also testified that Reymundo's
"attitude was real poor toward the customers ... to me he
was not performing as well as he used to perform before
the election ... I warned him on several occasions. I told
him to keep up the good work, to do a good job." Hector
then alleged an additional reason for his dissatisfaction
with Reymundo, testifying that "he was quite often late to
work ... constantly late" and that he had two altercations
with customers other than Ferrell.
In addition to the complaints testified to by Irwin,
Respondent's manager, Ferrell, when he was on the
witness stand, stated that "[he] had trouble getting a
chair moved and that the service was slow and it became
evident we were being toned down and it was not pleasant
there. . . . [The waiter's service] was very lacking and he
seemed reluctant to move the chair."8 Ferrell testified that
not only was he dissatisfied with the waiter who served the
drinks, who it is uncontroverted was Reymundo, but that
he was displeased also with the food waiter, a man named
Vargas, whom Ferrell testified was not only slow but also
served them food he did not order. Ferrell also testified
that he and his two guests were served only one piece of
bread each and "the food was served from the wrong
side."
Irwin, Respondent's manager, testified that although
the Ferrell incident in itself, was sufficient to have
discharged Reymundo Chavez that he nevertheless
8 It seems Ferrell had two luncheon guests and that the table
had four place settings. The extra place setting apparently
annoyed Ferrell because, testified Irwin, Ferrell complained that
he did not "lik[el ghosts at his table."
7 When Ferrell was asked on his cross-examination if he
upbraided the waiter, he answered in the negative, explaining that
he and the waiter "lust star[ed] each other down for the whole
601
instructed Hector, the maitre d'hotel, not to discharge
Reymundo because he "did not want to cause any trouble
when we were in the midst of union dealings." When Irwin
referred the matter to Attorney Hoy as to what disposition
should be made of Reymundo, Hoy decided to have
Hector, his supervisor, notify Reymundo he was being
discharged but for Hector "not to discuss in any detailed
terms with Reymundo why he was being discharged; but
rather to simply explain that there had been a serious
complaint as far as the customer was concerned."
Klink, president of the Respondent, testified that
Reymundo's "attitude had worsened and deteriorated
after the [Board] election took place" on May 5, 1965;
that he reported to work late; that "in waiting on
customers, he was hesitant in getting to them" whereas
before the election Reymundo was "quick moving" and
that he had warned him "about riling the help in the
kitchen and for berading [sic] them." When Klink was
asked what the reason was for his deciding to discharge
Reymundo, he replied: "it was the culmination of a
number of offenses in my mind that caused the decision to
be made to fire Mr. Chavez."
Reymundo Chavez was called to the manager's office on
March 15, and admonished by Attorney Hoy with respect
to complaints being received from other employees that
Reymundo was attempting during working hours to
proselyte them to unionism. Hoy's testimony concerning
this incident continues as follows:
I told Reymundo Chavez that it had come to our
attention, through complaints from [Respondent's]
employees . . . that he was bothering them during his
working time and during their working time; that he
was passing out literature, union literature, and
attempting to discuss some of this against the will of
the employees which was against the [Respondent's]
policies. I told him then that it was an established
rule, of which he was aware, that there was to be no
solicitations for any reason on his working time or on
the working time of the other people, the other
employees that he was attempting to solicit. I did not
outline in detail the matters regarding which he could
not solicit, but I told him that his views as to the Union
were his own ideas; that management did not
necessarily agree with what he said. I did say that he
could not solicit on working time for any purpose. I
did not say specifically that he should not solicit for
the Union. All I said was, "You cannot solicit for any
purpose while you are on duty or while another
employee that you are soliciting is on duty, while in
the performance of your duties or while other
employees are in the performance of their duties or
her duties there." I did explain that his duties were
limited to the Mardi Gras Club premises and the
kitchen premises, because he was performing club
duties, and that while he was there as an employee, he
was to limit his activities and that he was not to
wander through the hotel or any of the other
premises; and, if he was soliciting any other part of
the hotel, he would be disciplined, that if he did that,
he was wrong; that he should not do that. I told him
two hours it took to serve the drinks and food "
" Ferrell requested the waiter to remove the unoccupied fourth
chair from the table as there was only he and his two guests
seated at the table When he asked him to remove the chair,
testified Ferrell, the waiter "shoved it over into someone else's
table and that was embarrassing [he] was very arrogant with
me
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if complaints continued to come in to the
management at the [Respondent ] Sheraton that some
disciplinary action would have to be taken. I then
asked him if he understood what I was saying and he
indicated that he did.
On cross-examination , Hoy denied , contrary to
Reymundo 's testimony , that he told him he could not
"solicit for the Union" but, claimed Hoy, he did not
confine his order to union solicitation alone but instructed
Reymundo that he "was not to solicit for any purpose
while he was working or while the other people were
supposed to be working when he was soliciting."
Bernardo Vargas, who worked for Respondent from
February 21 to July 31, 1966, as a food waiter and who was
present at the meeting in the manager ' s office when
Reymundo was admonished by Attorney Hoy, testified
through an interpreter that Reymundo was told by Hoy to
take care of his personal affairs "outside of the business
and on his free time , that he was free to do whatever he
wanted but on his free time" and not during working hours
and outside the premises of the motel. "Also [continued
Vargas], that on his free time and outside of the building,
that [Reymundo ] could take care of his business , that he
was the owner of his acts , but not in the building or during
working hours. And, that they did not want to see him
around the swimming pool or around the motel; for him to
limit himself to his place of work which was the kitchen
and the dining room ; and that they did not want him to be
taking care of personal things there, that he was the owner
of his own personal acts.... It was all in a very cordial or
friendly way from both parties , from the one party's end
and from [Reymundo's] part ." Vargas also testified that
he knew nothing about Reymundo becoming involved in
an incident with a customer on April 20, which is the date
when Respondent claims the Ferrell incident was
supposed to have occurred.
On cross-examination by the General Counsel , Vargas
testified he did not recall Hoy saying anything regarding
unions at this meeting in the manager 's office but that the
only matter discussed was "personal affairs."
Analysis of the Testimony and Conclusions
The witnesses for the General Counsel and Respondent
are in sharp conflict as to the salient issues in this
proceeding . Nevertheless , after observing the witnesses,
analyzing the record as a whole, and the inferences to be
drawn therefrom , this conflict in testimony is resolved in
favor of the version told by Reymundo Chavez, the alleged
discriminatee . Based upon the foregoing recital of the
facts in this case , the demeanor and deportment of the
witnesses in testifying , and upon the substantial evidence
on the record appraised as a whole, and on the generally
consistent testimony of Reymundo Chavez which logically
conformed with the uncontroverted chronological
sequence of events and attendant circumstances , as well
as certain'undisputed and demonstrable facts hereinafter
explicated , his testimony is credited.'
Conversely , Respondent 's witnesses ' recital of their
versions of the facts are not credited because, among other
reasons hereinafter explained , Klink 's, Hector Chavez',
See section C, infra
" Interstate Circuit, Inc v US , 306 U S 208, 225, 226,
iV L R B v Wallick and Schwalm, 198 F 2d 477, 483 (C A 3).
Concord Supplies & Equipment Corp , 110 NLRB 1873, 1879
" Paudler v Paudle,, 185 F 2d 901, 903 (C A 5), cert denied
341 U S 920
12 An employer may lawfully prevent its employees from
Ferrell's, and Irwin's testimony was singularly vague and
indefinite, particularly with respect to the quality of
Reymundo's work performance becoming increasingly
unsatisfactory after the May 5, 1965, election and up until
his discharge on April 26, 1966. Furthermore, equivocal
customer complaints voiced by Respondent's witnesses
with respect to the quality of the dischargee's work which,
in the main , are too intangible to refute, leaves
Reymundo's discharge unsatisfactorily explained.
Not only was the Ferrell incident remarkable in its
triviality, lacking in specificity, and doubtful in its verity,
but when considered in the light of the fact that neither
Guido nor Ranchik, customers with whom Reymundo also
was alleged by Respondent to have had altercations, did
not testify, it is reasonable to assume their versions of
what occurred would not have corroborated Hector
Chavez' testimony.10 Respondent's failure to produce
these witnesses at the hearing weakens its own witnesses'
testimony and warrants drawing an inference that if
produced, their testimony would not have been favorable
to its case. The absence of these witnesses "not only
strengthens the probative force" of the General Counsel's
contention that Reymundo Chavez was discriminatorily
discharged, "but of itself is clothed with a certain
probative force.""
Highly significant with respect to the veracity of the
Respondent's witnesses' version of the Ferrell incident is
that Ferrell apparently gave a tip to Reymundo Chavez
although he denies he did so. Refuting Ferrell's denial is
the beverage check (Resp. Exh. 1), which reveals a
"service charge" of 15 percent was added to the bill and
Ferrell's cogent admission that it was his signature which
was on the check. It would appear, therefore, that the
service Ferrell received from Reymundo was satisfactory;
otherwise, it is reasonable to infer he would not have given
this gratuity to Reymundo.
Moreover, the Guido incident was insignificant and the
other incident involved an inebriated customer named
Ranchik with whom Reymundo courteously and patiently
remonstrated when he called Reymundo a vile name.
Respondent gave additional reasons in addition to the
Ferrell, Guido, and Ranchik incidents for firing
Reymundo; namely, that he was chronically late for work;
his attitude was poor; Reymundo allegedly talked union to
employees during working hours; 12 being away from his
duty station and a vague complaint that a lady customer
was "embarrassed by Reymundo some time back." Such
shifting and inconsistent explanations and reasons for
Reymundo's discharge are indicative of a discriminatory
intent and is a circumstance indicating its motivation. to
Moreover, the refusal of Hector, his supervisor, to give-
Reymundo the reason for his discharge and purportedly
refusing to identify the customer to whom he was
purportedly discourteous and the refusal to disclose the
specifics of the customer's complaint may, of course, be
considered in determining the real motive for the
discharge.14 It is found, therefore, that the reasons alleged
for discharging Reymundo Chavez were spurious and a
transparent pretext to screen Respondent's discriminatory
motivation.
soliciting for a union during working hours provided the ban is not
promulgated or enforced for a discriminatory purpose, as for
example , in response to union activity and not to maintain order
Sera-Air, Inc , 161 NLRB 382
Dant & Russell, Ltd , 92 NLRB 307,320
Interboro Contractors, Inc , 157 NLRB 1295, 1301
EL PASO MANOR, INC. 603
Motivation is a subjective matter, which if found, must
be found from objective circumstances established by the
record after duly considering all countervailing
testimony.is One of the objective circumstances in this
case is Reymundo 's intensive union activities , of which
Respondent admitted it knew. Another objective
circumstance is Respondent ' s union antipathy as
evidenced by President Klink's testimony. Another
circumstance is the timing of Reymundo's discharge in the
context of his testifying adversely at the unfair labor
practice hearing in the fall of 1965, and his precipitate and
summary termination 3 weeks after the Trial Examiner's
Decision issued in that case, without being given any
reasons for his discharge other than vague and generalized
ones. It is not believed that a nondiscriminatorily
motivated employer would have acted so unreasonably
under such circumstances . It is much more reasonable to
infer that Reymundo' s union activities, which Respondent
opposed and toward which it was hostile, and his
subsequently testifying adversely to Respondent, was the
real reason for his discharge. Considering all these
objective factors, it is concluded and found that there is a
causal chain linking Reymundo's discharge to both his
union activities and the adverse testimony he gave at the
Board's hearing.
Moreover, when it is considered, and this is
uncontradicted, that Reymundo was never personally
reprimanded or the quality of his work criticized, nor given
any warning that Respondent was not satisfied with his
work, although Hector Chavez, his immediate overseer,
directly observed and supervised his work for
approximately 20 months, the reasons ascribed by
Respondent for discharging him strains one's credulity. In
fact, Reymundo, working for Respondent almost 2 years,
significantly indicates he was a capable, qualified, reliable
employee who had a satisfactory work record. Of course,
his 2 years' length of service does not conclusively prove
he was efficient, but it does indicate that the Respondent
had not considered Reymundo's alleged derelictions of
duty to be serious enough to merit his discharge, and it
also has relevancy as to whether Respondent sincerely
acted on those grounds and not on the ground of union
activity. Nevertheless, with the advent of the Union, as
well as the unfair labor practice hearing at which
Reymundo testified in September and October 1965, and
with the issuance of the Trial Examiner's Decision on
April 4, 1966, finding against Respondent, whereupon
Reymundo was precipitately discharged within 3 weeks
from the issuance of the Decision with no warning that
disciplinary action was imminent, shows it was done for
the purpose of Respondent ridding itself of an irritating
union proponent. Here Respondent's evidence itself
furnished part of "reasonable cause for believing that the
ground put forward by [it] was not the true one and the
ground was because of union activity." 16
It would seem that Reymundo's conduct apparently
became intolerable only after he persisted, subsequent to
the election , in his union activities and testified adversely
to Respondent in the related prior proceedings in which
the Company was found to have committed unfair labor
practices. It stretches credulity too far to believe that
there was merely a temporal coincidental connection
between his testifying in the prior case, and his abrupt
dismissal 3 weeks after the Trial Examiner's Decision
issued. It is believed that this unexplained temporal
coincidence vis-a-vis the principal events in this case were
really no coincidence at all, but rather part of a deliberate
effort by Respondent to abort the employees' lawful
organizational activities before they had progressed too far
toward fruition by firing Reymundo, the Union's leading
proponent.
Although Respondent sought to justify the
discriminatee's discharge, inter alia, on the basis of his
discourtesy toward customers, the evidence did not
establish the factual validity of the derelictions charged to
him. Running throughout his discharge is the dominant
theme that at no time, either before the election in May
1965, or after the election and issuance of the Trial
Examiner's Decision, or at any time thereafter up until his
discharge on April 26, 1966, was any complaint made to
him with respect to the quality of his work. The trier of
these facts is not impressed by the sincerity of a charge of
unsatisfactory work performance where the employer
makes no effort to inform his employee that he is
dissatisfied with his work. Assuming there was a
justifiable ground for dismissal , it is no defense if it is a
pretext and not the moving cause. 17
Against the evidence of inefficiency and other
derelictions of duty alleged by the Respondent for
Reymundo Chavez' discharge, there has been weighed the
summary nature of the termination, with no prior notice
ever having been given this employee that his work was
unsatisfactory, its timing in relation to Reymundo 's union
activities, the discharge within 3 weeks after the Trial
Examiner's Decision issued, the satisfactory work record
of Reymundo, the length of time he was employed by
Respondent, and Respondent's admitted knowledge of his
union activities at the time the discharge was effectuated,
all of which leads to the inescapable conclusion that
Reymundo was discriminatorily discharged. This
combination of circumstances is scarcely explainable
except upon the hypothesis that Respondent was
discriminatorily motivated in discharging Reymundo and
makes no other explanation reasonable.is
The particular faults urged by the Respondent as
occasioning Reymundo's discharge, the record reveals,
are indefinite, vague, and general accusations which, in
the main, are too nebulous to refute. Moreover, these
alleged faults were condoned for 2 years without any
action being taken and without Respondent reprimanding
" However, the question whether Respondent discriminatorily
discharged Chavez presents only a question of fact, the key issue
being Respondent's intent or motivation However, "intent is
subjective" and can usually be established only by circumstantial
evidence N L R B v Melrose Processing Co , 351 F 2d 693, 698
(C A 8) Indeed, "direct evidence of a purpose to violate a statute
is rarely obtainable " N L R B v International Union of
Operating Engineers, Local 101 [Sub Grade Engineering Co ],
216 F 2d 161, 164 (C A 8) The issue with respect to Chavez'
discharge is whether the General Counsel sustained his burden of
proving that the Respondent's action was motivated in significant
part by the employee's union activity The Company does not
have the burden of proving that it discharged him for the reasons
stated by the Company And it is by now a truism that an
employee may lawfully be discharged for no reason at all On the
other hand it is likewise true that employers do not ordinarily
discharge men "for no reason at all," and the Respondent here
does not claim to have done so Moreover , judicial authority
warrants inquiry into whether an employer 's asserted motive for
discharge " withstands scrutiny ," and goes so far as to declare
that its failure in that regard can furnish support for a finding of
unlawful motivation See, e g , N L R B v Dant & Russell, 207
F 2d 165, 167 (C A 9 ), and cases there cited
" N L R B v Texas Bolt Company, 313 F 2d 761, 763 (C A 5)
N L R B v Solo Cup Company, 237 F 2d 521, 525 (C A 8)
18 See Pacemaker Corporation , 120 NLR B 987, 991
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or disciplining him until he continued to persist in his
union activities after the election and subsequently
testified against Respondent.
The more reasonable explanation would appear to be
that it was not until Reymundo testified against
Respondent in the hearing which concluded October 4,
1965, that the Respondent became disenchanted with the
quality of his workmanship, or to state it in the converse,
the Company had evidently tolerated his alleged
shortcomings only to find his services no longer tolerable 3
weeks after his adverse testimony contributed to a finding
in the Trial Examiner's Decision that Respondent was
guilty of unfair labor practices. These undisputed and
demonstrable facts, particularly Respondent's direct
knowledge of Reymundo's union activities, indicate that
the reasons advanced by the Respondent for its
discharging this employee were a subterfuge and chosen
ex post facto to screen its true motive. The alleged reasons
for the discharge are doubtful as well as unconvincing,
because they are not only inconsistent with the credible
evidence but are also believed to have been
discriminatorily motivated. Furthermore, it is not believed
that the alleged customer incidents, or any other asserted
reasons, actually supplied the motivation for the
termination here involved, but rather, that the operative
reasons were in fact discriminatory.
It is concluded, therefore, that the real cause of
Reymundo Chavez' discharge was not his inadequacy as a
waiter but his interest in union activities and his testifying
adversely to Respondent, particularly so, when
consideration is given to the evident interrelationship and
proximity of his discharge to the Respondent's knowledge
of Reymundo's union activities as well as his testifying
against Respondent.19 Under such circumstances, it is
believed and found that the motivating factors for
Reymundo's discharge were both his union activities and
his testimony in support of the Union. The evidence set
forth above, not further explained nor rebutted by the
Respondent, and occurring at the time the Respondent
was engaged in widespread unfair labor practices, as
f d b th B d i C 28-CA-1218 201257oun y
persuades
,oar ne ase ,
the Trial Examiner that Chavez' fictitious
derelictions
di h
were seized upon as a pretext for the
arge.sc
On the basis of the foregoing and the entire record, as
well as the suggestive indicia inherent in the
circumstances surrounding Reymundo's discharge, and
the weakness of the alleged justification, it is found
(contrary to Respondent's contention that Reymundo was
fired for cause) that his union activities as well as his
having given testimony under the Act, adverse to
Respondent at the Board's unfair labor practice hearing,
were the real reasons and therefore, discrimination in
regard to his hire and tenure of employment, thereby
discouraging membership in the Union in violation of
Section 8(a)(1), (3), and (4) of the Act.21
C. The Alleged Violations of Section 8(a)(1)
Paragraph 8 of the complaint alleges that on March 15,
1966, Attorney Hoy threatened employees with discharge
and reprisals if they engaged in union solicitation or other
union activities while on company premises. The evidence
adduced by the General Counsel reveals that this
allegation is confined to Hoy summoning Reymundo
Chavez to the office of Respondent's manager, and
notifying him of the motel's policy with respect to
solicitation on company premises, the details of which are
set out in the section of this Decision entitled "The
Testimony." In substance, Reymundo's version differs
from Hoy's as to what transpired when he was summoned
to the manager's office, in that Reymundo testified he was
cautioned not to engage in union solicitation, whereas
Hoy's recital states he admonished Reymundo to desist
from engaging in any type of solicitation, union, charitable,
or otherwise.
The question of credibility raised by the above-referred
to testimony is resolved in favor of the version related by
Hoy and Vargas, a coworker of Reymundo's, whose
testimony tended to corroborate Hoy. This is not to
indicate that Reymundo is not believed to be a credible
witness. On the contrary, it is the opinion of the trier of
these facts that Reymundo Chavez was a forthright and
honest witness, as shown by his testimony as to other
aspects of this case, supra, which have been credited.22 It
is believed that because of language difficulties (he
testified through an interpreter), that Reymundo was
unable to understand clearly what Attorney Hoy told him
at the meeting on March 15 in the manager's motel office.
It is felt that he was honestly mistaken and undoubtedly
confused as to what Hoy exactly said at this meeting when
it is considered that he was testifying with respect to
technical and precise legal terminology bordering on the
semantic and to an event which had occurred 6 months
prior to the hearing. It is not believed Reymundo lied but
rather that he was prey to the fallibility of the human
memory, the infirmities of the human mind, the weakness
of human understanding (particularly one not conversant
with the English language), and the vagaries of
recollection. It is a fact of life that even literate witnesses
sometimes see, hear, and recall inaccurately or perhaps
hear only what they want to hear. After forgetting much of
what he sees or hears within a matter of days, or perhaps
weeks, a witness typically appears at a hearing many
months later, retaining only his most emotional memories.
Nor is it believed that Attorney Hoy, an able lawyer,
versed in labor law, would have been so flagrantly stupid
or such a marplot and so incredibly naive as to senselessly
compromise his client by limiting his admonition to
Reymundo to union solicitation exclusively. Moreover, it is
believed that Hoy, Respondent's lawyer, was not
attempting to interfere with, restrain, or coerce Reymundo
in his Section 7 organizational rights, but rather to notify
i" "Coincidence in timing between events in a union organizing
campaign and company activities which have an adverse effect
thereon should be considered in reviewing NLRB inferences of
illegal motivation for such acts " N L R B . v Schnell Tool & Die
Corporation , 359 F 2d 39, 45 (C A 6 ) N L R B v Montgomery
Ward & Co , 242 F 2d 497 , 502 (C A 2)
20 159 NLRB 1649
21 N L R B. v Stowe Spinning Company , 165 F 2d 609, 615
(C A 4), N.L R B. v Elwood C Martin, d/b/a Nemec Combustion
Engineers , 207 F 2d 655 (C A. 9), enfg 100 NLRB 1118 , Bausch &
Lomb Optical Company, 107 NLRB 790, 826 , Lingerie , Inc, 101
NLRB 1374, 1377-78 Whether Reymundo Chavez' discharge is
viewed as a violation of Section 8(a)(3) and/or 8(a)(4) is immaterial
as the remedies are substantially the same Southern Bleachery
and Print Works, Inc , 118 NLRB 299, 300, In 4
22 See the section of this Decision entitled "Analysis of the
Testimony and Conclusions " "It is no reason for refusing to
accept everything that a witness says, because you do not believe
all of it, nothing is more common in all kinds of judicial decisions
than to believe some and not all " N.L R.B v Universal Camera
Corporation, 179 F 2d 749, 754 (C A 2)
EL PASO MANOR, INC. 605
him what he legally could do and not do with respect to the
Union's organizational campaign. It is found, therefore,
that it has neither been proved by a preponderance of the
evidence nor has the General Counsel sustained the
requisite overall burden of proving that Hoy engaged in
any illegal conduct. Accordingly, it is recommended that
the allegation of the complaint with respect to the alleged
unfair labor practice on the part of Hoy be dimissed.23
The record reveals that Hector Chavez, a supervisor
within the meaning of Section 2(11) of the Act, warned
Reymundo on or about March 18,1966, as follows:
I wish you would cut this stuff about the Union
because I do not want to be the one to have to
discharge you.24
By such conduct, Respondent, through its supervisor,
Hector Chavez, whose threat is imputable to the
Respondent, engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above,
occurring in connection with the operations of the motel
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, it will be recommended that it cease
and desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
It is therefore recommended that the Respondent
Company offer to the discriminatee, Reymundo Chavez,
immediate, unconditional, and full reinstatement to his
former or substantially equivalent position25 without
prejudice to his seniority and other rights, working
conditions, and privileges. Furthermore, it will be
recommended that the Respondent make the said
discriminatee , Reymundo Chavez, whole for any loss of
earnings suffered since his discharge, by reason of the
discrimination against him by payment to him of a sum of
money equal to the amount which he normally would have
earned as wages from the date of his discharge to the date
of the Respondent's proper offer of reinstatement, less his
net earnings during said period;26 the backpay with
interest at the rate of 6 percent per annum, shall be
computed on a quarterly basis in the manner established
by the Board in F.W. Woolworth Company, 90 NLRB 289,
and approved in N.L.R.B. v. Seven-Up Bottling Co., 344
U.S. 344.
It is also recommended that the Respondent preserve
and make available to the Board or its agents, upon
request, payroll records, social security payment records,
timecards, personnel records and reports, and all other
necessary or useful records to facilitate and determine or
compute the amount of backpay due.
Inasmuch as the discharge of employees for reasons of
union affiliation or concerted activity has been regarded
by the Board and courts as one of the most effective
methods of defeating the exercise by employees of their
rights to self-organization, it is believed that there is
danger that the commission of unfair labor practices
generally is to be anticipated from Respondent's unlawful
conduct in the past.27 It will be recommended, therefore,
that Respondent be required to cease and desist from in
any manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act.
On the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The operations of El Paso Manor, Inc., affect
commerce as defined in Section 2(6) and (7) of the Act.
2. Hotel, Motel, Restaurant Employees and Bartenders
Local No. 628 of the Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. By discharging and discriminating with regard to the
hire and tenure of employment of Reymundo Chavez,
Respondent discouraged membership in the
aforementioned Union and committed an unfair labor
practice within the meaning of Section 8(a)(1), (3), and (4)
of the Act.
5. By discharging Reymundo Chavez because he gave
testimony under the Act in Board proceedings, the
Respondent violated Section 8(a)(4) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
7. It is recommended that the allegation in paragraph 8
of the complaint that Attorney Robert H. Hoy threatened
Reymundo Chavez with discharge or other reprisals if he
engaged in union solicitation or other union activities while
on company premises be dismissed.
[Recommended Order omitted from publication]
21 Cf Montgomery Ward & Co, Inc, 145 NLRB 846, second
paragraph of £n 1
21 See section B, supra, and fn 5
°i The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch, 65 NLRB 827
16 Crossett Lumber Company , 8 NLRB 440 , Republic Steel
Corporation v N L R.B., 311 U S 7.
17 N.L.R B v Entwistle Mfg Co , 120F 2d 532, 536 (C.A 4)