Harbor Cruises, Ltd.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 822 (N.L.R.B. 1995)

822
319 NLRB No. 106
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On June 6, 1995, Administrative Law Judge John H. West issued
the attached decision. The Respondent filed exceptions, a supporting
brief, and an answering brief to the General Counsel’s cross-excep-
tion. The General Counsel filed a cross-exception, a supporting brief,
and an answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951).
We find that the judge’s analysis of the 8(a)(3) violations is con-
sistent with the test of unlawful motivation set forth in Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). In sum, the judge has found a prima
facie case of discriminatory conduct and has considered and rejected
as pretextual the Respondent’s proffered defenses of legitimate moti-
vation. See T & J Trucking Co., 316 NLRB 771, 771–772 (1995);
Garney Morris, Inc., 313 NLRB 101, 102 (1993); Limestone Apparel
Corp., 255 NLRB 722 (1981).
3 Member Cohen disagrees with his colleagues in one respect. The
evidence shows that the Respondent told employees that, if the
Union became the representative, they would have to deal with man-
agement through a shop steward, rather than one on one. The judge
found a violation because the ‘‘Respondent did not truly have an
open door policy before the organizing campaign.’’ Member Cohen
disagrees. Irrespective of whether the Respondent had an open-door
policy in the past, the Respondent was simply pointing out the role
of a union, under Sec. 9(a), in the future. Member Cohen finds that
this correct explanation of legal rights and obligations was neither
unlawful nor objectionable. See Tri-Cast, Inc., 274 NLRB 377
(1985).
4 We shall substitute a new Order and notice reflecting changes
made in our Amended Remedy, adding injunctive remedial provi-
sions relating to the Respondent’s 8(a)(3) violations, and conforming
certain other recommended provisions to traditional Board remedial
language.
Harbor Cruises, Ltd. and International Union of
Operating Engineers, Local No. 37, AFL–CIO.
Cases 5–CA–24344 and 5–RC–13990
November 30, 1995
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
The issues presented here are whether the judge cor-
rectly found that the Respondent committed numerous
violations of Section 8(a)(1) and (3) of the Act and en-
gaged in conduct that interfered with a Board represen-
tation election.1 The Board has considered the decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,2
and conclusions,3 and to adopt the recommended Order
as modified and set forth in full below.4
AMENDED REMEDY
As set forth in the judge’s decision, the Respondent
has committed numerous, flagrant, and pervasive un-
fair labor practices in reaction to the Union’s organiza-
tional campaign. The Respondent’s vice president of
operations, Kitty Bona, was personally involved in the
commission of many of these unlawful acts, which
interfered with the election held on March 26, 1994,
and are likely to have a substantial lingering effect on
employees’ exercise of Section 7 rights, including their
right to choose whether the Union is to represent them
in a second Board election. Under these circumstances,
additional remedial action is necessary to dissipate as
much as possible the lingering effects of the Respond-
ent’s unlawful conduct and to ensure employee free
choice on the question of union representation when
the Regional Director decides to conduct a second
election. We therefore agree with the judge’s rec-
ommendation to require the Respondent to mail a copy
of the Board’s notice to all employees on its payroll
from January 19, 1994, to the date the notice is posted,
and to assemble all current unit employees at the Re-
spondent’s premises for a reading of the notice. See
Fieldcrest Cannon, Inc., 318 NLRB No. 54, slip op. at
4 (Aug. 25, 1995), and Three Sisters Sportswear Co.,
312 NLRB 853 (1993). We shall amend the rec-
ommended notice reading requirement, however, to
provide that Kitty Bona, at her option, either read the
notice to employees herself or be present while the no-
tice is read by a Board agent, not by counsel for the
Charging Party, as the judge had recommended. We
further find that a broad cease-and-desist Order is war-
ranted because the Respondent ‘‘has engaged in such
egregious or widespread misconduct as to demonstrate
a general disregard for employees’ statutory rights.’’
Hickmott Foods, 242 NLRB 1357 (1979). Finally, we
shall modify the judge’s recommended Order and no-
tice to include cease-and-desist provisions relating to
the Respondent’s violations of Section 8(a)(1).
ORDER
The Respondent, Harbor Cruises, Ltd., Baltimore,
Maryland, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Coercing employees by threatening, in the event
that they chose representation by International Union
of Operating Engineers, Local No. 37, AFL–CIO, the
Union, job loss, business closing, the futility of bar-
gaining, the inevitability of a strike, limitation of ac-
cess to management officials, and the willingness of
the Respondent’s owner to go to any lengths to frus-
trate the Union’s attempt to win employee support and
thereafter to bargain on their behalf.
(b) Implying surveillance of employees’ union ac-
tivities.
(c) Implicitly promising improved wages, hours, and
working conditions if employees would withhold sup-
port from the Union in the Board election.
823HARBOR CRUISES, LTD.
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(d) Interfering with protected concerted employee
speech by promulgating and maintaining a rule stating
that ‘‘Griping to other employees or outsiders is not
considered a professional or appropriate manner to re-
solve problems.’’
(e) Discriminating against employees by discharging
or warning them or by eliminating or reducing their
work schedules because of their union or other pro-
tected concerted activities.
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the rule in the ‘‘Harbor Cruises Hand-
book’’ that states that ‘‘Griping to other employees or
outsiders is not considered a professional or appro-
priate manner to resolve problems.’’
(b) To the extent that it has not already done so,
offer Michael Gudaitis, Kimberlee Suerth, and Walter
Graham immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the judge’s decision.
(c) Restore to the more experienced employees of its
wait staff, including, but not limited to, Monica
Gudaitis, Beth Galloway, Eugene Milowicki, and Shei-
la Roberts, the seasonal work assignment opportunities
that existed prior to the Union’s filing of a petition for
a Board representation election on January 19, 1994,
and make whole these employees, with interest, for the
discriminatory reduction or elimination of work assign-
ment opportunities.
(d) Remove from its files any reference to the un-
lawful discharges and warnings and notify the affected
employees in writing that this has been done and that
these disciplinary actions will not be used against them
in any way.
(e) Preserve and, on 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
records necessary to analyze and determine the amount
of money due under the terms of this Order.
(f) Post at its Baltimore, Maryland facility and on
boats operated by the Respondent copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the no-
tice, on forms provided by the Regional Director for
Region 5, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Mail copies of the notice to all employees work-
ing out of its Baltimore, Maryland location on the date
the notice is posted, as well as to every employee who
worked for it from January 19, 1994, to the date the
notice is posted.
(h) Convene during working time all its employees
at its Baltimore facility or on one of its boats and have
Vice President of Operations Kitty Bona read the no-
tice to the assembled employees, or at Bona’s option,
permit a Board agent to read the notice. If Kitty Bona
chooses to have a Board agent read the notice, she
shall be present when the notice is read. The Board
shall be afforded a reasonable opportunity to provide
for the presence of a Board agent at any assembly
called for the purpose of reading the notice.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
[Direction of Second Election omitted from publica-
tion.]
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice.
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coerce you by threatening, in the
event that you chose union representation, job loss,
business closing, the futility of bargaining, the inevi-
tability of a strike, limitation of access to management
officials, and the willingness of our owner to go to any
lengths to frustrate the Union’s (International Union of
Operating Engineers, Local No. 37, AFL–CIO) attempt
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1994 unless otherwise stated.
2 In addition to allegedly terminating named employees or elimi-
nating or reducing the work assignments of named employees, Re-
spondent issued the ‘‘Harbor Cruises Handbook.’’ According to par.
12 of the amended complaint, on March 30 Respondent promulgated
the following rule in the handbook: ‘‘Griping to other employees or
outsiders is not considered professional or appropriate manner to re-
solve problems.’’
3 At the hearing the General Counsel and Respondent were given
permission to submit specified late-filed exhibits. Accordingly, G.C.
Exh. 60 and R. Exh. 44 are hereby received in evidence.
to win employee support and thereafter to bargain on
their behalf.
WE WILL NOT imply that we are maintaining surveil-
lance of our employees’ union activities.
WE WILL NOT implicitly promise to give you im-
proved wages, hours, and working conditions if you
withhold support from the Union in a Board election.
WE WILL NOT interfere with protected concerted em-
ployee speech by promulgating and maintaining a rule
stating that ‘‘Griping to other employees or outsiders
is not considered a professional or appropriate manner
to resolve problems.’’
WE WILL NOT discriminate against employees by
discharging them, warning them, or by eliminating or
reducing their work schedules because of their union
or other protected concerted activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL rescind the rule in our ‘‘Harbor Cruises
Handbook’’ that states that ‘‘Griping to other employ-
ees or outsiders is not considered a professional or ap-
propriate manner to resolve problems.’’
WE WILL, to the extent that we have not already
done so, offer Michael Gudaitis, Kimberlee Suerth, and
Walter Graham immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
their discharge, less any net interim earnings, plus in-
terest.
WE WILL restore to the more experienced employees
of our wait staff, including, but not limited to, Monica
Gudaitis, Beth Galloway, Eugene Milowicki, and Shei-
la Roberts, the seasonal work assignment opportunities
that existed prior to the filing of a petition for a Board
representation election on January 19, 1994, and WE
WILL make whole these employees, with interest, for
the discriminatory reduction or elimination of their
work assignment opportunities.
WE WILL remove from our records any reference to
the unlawful actions against employees Michael
Gudaitis, Kimberlee Suerth, Walter Graham, and Shei-
la Roberts and WE WILL notify them in writing that our
unlawful conduct will not be used as a basis for further
personnel action.
WE WILL mail copies of this notice to each and
every employee working out of our Baltimore, Mary-
land location on the date the notice is posted, as well
as to each and every employee who worked for us
from January 19, 1994, to the date the notice is posted.
WE WILL convene during working time a meeting of
all employees at our Baltimore facility or on one of
our boats and have Vice President of Operations Kitty
Bona read to the assembled employees the contents of
this notice, or at Bona’s option, permit a Board agent
to read the notice. If Bona chooses to have a Board
agent read the notice, she shall be present while the
notice is read. The Board shall be afforded a reason-
able opportunity to provide for the presence of a Board
agent at any assembly called for the purpose of reading
the notice.
HARBOR CRUISES, LTD.
Sherrie Trede Black, Esq., for the General Counsel.
J. Michael McGuire and Robert H. Ingle III, Esqs. (Shawe
& Rosenthal), of Baltimore, Maryland, for the Respondent.
John S. Singleton, Esq. (Gendler, Berg, & Singleton, P.A.),
of Baltimore, Maryland, for the Charging Party/Petitioner.
DECISION
STATEMENT OF THE CASE
JOHN H. WEST, Administrative Law Judge. The original
charge was filed by International Union of Operating Engi-
neers, Local No. 37, AFL–CIO (the Union or the Petitioner)
on April 14, 1994,1 and it was amended on May 19. The
complaint was issued on August 25, and it was amended at
the hearing. (G.C. Exh. 2.)
The General Counsel alleges violations, collectively, of
Section 8(a)(1) and (3) of the National Labor Relations Act
(the Act). The former involves statements, with one excep-
tion, allegedly made by Harbor Cruises, Ltd. (the Respond-
ent, Employer, or Company) prior to the election involved
herein and the latter involves actions after the election alleg-
edly taken against employees as a result of the effort of the
employees to bring a union into the involved operation.2 Re-
spondent denies violating the Act.
By Report on Objections, order consolidating cases, and
notice of hearing entered September 8, General Counsel’s
Exhibit 1(L), Case 5–RC–13990 was consolidated with Case
5–CA–24344. The former involves objections filed by the
Union regarding alleged conduct that assertedly affected the
results of the election held on March 26. According to the
Report on Objections, the objections raise issues of fact and
law that are substantially identical to the allegations con-
tained in the complaint in Case 5–CA–24344.
A hearing on these consolidated cases was held on No-
vember 29 and 30, and December 1, 2, 12, and 16. Briefs
were filed by the parties on February 9, 1995. On the entire
record3 in this proceeding, including my observation of the
825HARBOR CRUISES, LTD.
4 This exhibit contains three other letters that are dated February
18 and March 10 and 18. The first, among other things, deals with
who is eligible to vote in the upcoming election. The second treats
the fact that ‘‘[i]n the give and take of collective bargaining, you
can end up with less than you currently have, and have to pay union
dues on top of it,’’ and it requests that the employees vote no. (Em-
phasis in original.) And the third letter advises the employees of the
date of the election, the voting procedures and the time of the elec-
tion, and it includes a sample ballot. Also the exhibit contains a leaf-
let titled ‘‘WHAT CAN THE UNION GUARANTEE FOR YOU?’’
The leaflet was mailed to the employees’ homes. Citing court and
Board decisions it states that ‘‘[a]n employer is not required to agree
to any of the union’s proposals during collective bargaining,’’
‘‘[d]oes not have to retain all current benefits after bargaining,’’
‘‘. . . may permanently replace economic strikers,’’ and ‘‘[f]urther,
a union must obtain the employer’s assent to gain improved bene-
fits.’’
5 Respondent employee Sheila Roberts testified that when she real-
ized how bad the weather was she telephoned Graham and asked
him to take her shift; that when Bona telephoned her to say that she,
Roberts, was not needed she told Bona that Graham had agreed to
take her shift and she asked Bona if Roberts should telephone
Graham and tell him his shift was canceled; that Bona said that Rob-
erts should not telephone Graham; that nonetheless she did telephone
Graham who told her that when he telephoned Bona she told him
to come in; and that Graham lived near the Maryland and Pennsyl-
vania state line.
witnesses and their demeanor, and after considering the
aforementioned briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Maryland corporation, is engaged in the re-
tail business of operating a charter boat service. The com-
plaint alleges, the Respondent admits, and I find that at all
times material Respondent has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act
and the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Monica Gudaitis, who was hired by Respondent in 1988,
testified that for some time the Company had engaged in
questionable scheduling practices in that an employee could
be scheduled for a number of ‘‘bad’’ cruises in a row; and
that in January 1994 she contacted the Union and shortly
thereafter the first of about six meetings was held with Re-
spondent’s employees. She also testified that the employees
complained about the inconsistencies in the way the Com-
pany applied its policies regarding terminations over
writeups. More specifically, some employees were terminated
for having three writeups while other employees who had
four or five writeups were not terminated. She testified that
these inconsistencies had occurred for years.
Eugene Milowicki, who was hired by Respondent in 1988
as a waiter and entertainer, was approached by Monica
Gudaitis, in January 1994 about the possibility of getting a
union to represent the employees. He signed a union author-
ization card and attended a couple of meetings at the union
office. According to his testimony, the employees who at-
tended these meetings were employees who had worked at
Respondent in 1993 and before.
Milowicki was not originally scheduled for any cruises in
January 1994. He asked Theresa Tomaino, who was in
charge of the scheduling at the time, about it and she said
that he did not turn in his availability for January. He be-
lieved that he did turn it in and he testified that previously
since she knew his availability, she scheduled him even with-
out his availability sheet. After this conversation he was put
on a couple of cruises in January. Milowicki turned in his
February availability sheet, General Counsel’s Exhibit 14, the
last Monday in January.
On January 19 the Union filed a petition for an election.
On February 1 Kitty Bona, who is Respondent’s vice
president of operations, mailed a letter to all of Respondent’s
employees, Respondent’s Exhibit 21. In it she indicated that
the Company believes that ‘‘there is no need or desire for
a union here’’ and ‘‘I do not believe that a union is the an-
swer to anyone’s problems.’’4
According to her testimony, in mid-February Monica
Gudaitis received a telephone call and was told by Bona not
to report for a cruise because of the inclement weather.
Gudaitis testified that Bona mentioned during this conversa-
tion that she thought that Gudaitis lived in Hartford County
but Gudaitis informed her that she had lived in Baltimore
City for 2 years; that Steve Penn had come to pick her up
in his four-wheel drive vehicle and Bona told her to still
have Penn come to the boat; and that Tina Bender, who lives
six blocks from the boat, was canceled while employee Walt
Graham, who lives at the Pennsylvania state line, was called
to come to work. Bona testified that she started canceling the
women scheduled on the cruise because she was concerned
about their well being; that while the two cruises were sched-
uled to go out that night, only one went out; that Graham
must have switched with someone because she did not call
him in;5 and that the five wait staff members and the two
bartenders who went on the cruise are listed on Respondent’s
Exhibit 19. Roselie Coleman, Respondent’s office manager,
sponsored Respondent’s Exhibit 20, which is Respondent’s
sales report, and that shows, among other things, that one
cruise went out on Saturday, February 12, Valentine’s Day.
Sometime shortly before February 17 employee Douglas
Strader, who had worked for Respondent for over 5 years,
wrote a letter to Bona, Respondent’s Exhibit 15, asking for
a meeting. Attached to the letter was an agenda for the meet-
ing, which, as here pertinent, reads as follows:
Introduction: The need for standardization.
I believe this to be one of, if not the, main problem
I see from a bartenders perspective. Employees need to
know what to do, when to do it, and how they will be
compensated. The systems, now, are just too disorga-
nized causing unnecessary headaches. As bar manager
I could see both sides of an issue, the administrative
side as well as the employee side. The employees, how-
ever, do not get this understanding. It is this ignorance
that seeds many insurgences. [sic]
. . . .
Scheduling: Seniority. Non-biased. A policy for last
minute changes of schedule by either office of person-
nel.
According to his testimony, at one point during a subsequent
meeting with Bona in February, Strader probably described
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Monica Gudaitis testified that bartender Matt Potter told her that
Strader threw her ‘‘under the bus’’ and she spoke with Strader on
the telephone and told him that he should not be saying this; and
that Strader said that it was common knowledge that this is
‘‘Monica’s campaign.’’ Bona testified that she never heard Strader
say ‘‘Monica’s campaign’’ during the course of her meeting with
him.
7 Monica Gudaitis testified that she heard rumors around January
1 about the Company not having a show in 1994. Bona testified that
having a show was very costly and Respondent had been reducing
this expenditure over the last few years so that in 1993 it involved
an opening number, a closing number, and people doing vocals; that
Respondent received complaints about the show in 1993; that the
structure of Respondent’s operation changed in that whereas in the
past Saturday was a big day for the show, Respondent began using
its two boats on Saturdays for weddings and crab-feast day tours;
that the decision to not have a show in 1994 was made mid-season
in 1993 but the decision was not announced to the employees until
January 1994; that in 1994 Respondent hired waiters and waitresses
and not entertainers; and that whereas in the past employees were
recruited from music institutes and schools as performers, in 1994
employees were hired at a job fair and from an ad in the newspaper.
Bona also testified that in 1994 the Company had dancers on Hawai-
ian nights and bands on Batman and other cruises but it no longer
advertised that it had a show. According to C.P. Exh. 4, Respondent
offered cruises with a ‘‘lively musical review’’ in the April 13, 1994
edition of The Catholic Review. Bona testified that Respondent did
not place the ad; that an ad from 1991 was used by the publication;
and that the publication was attempting to charge Respondent for
running the ad but Respondent has not paid the bill. Bona also testi-
fied that there is an Easter Bunny on the Easter cruise, a Santa on
the Santa cruise and the staff and patrons sing during the cruise but
this is not a show; that the entertainment that was advertised in 1994
was a disc jockey and a band; that several groups in 1994 requested
a show and the Company complied with the request; and that in
prior years there was a show on every cruise. Tomaino testified that
she was involved in the decision not to have a show in 1994; that
the decision was made in December 1993; that the show was
dropped because ‘‘it wasn’t working very well . . . . [i]t was a large
organization task, larger than any of us could handle, and it . . .
wasn’t effective for us at all’’; that ‘‘lively’’ and ‘‘show’’ were
taken out of the entertainment described in the sales brochure for
1994; that there is still entertainment such as Italian music on Italian
night; and that after January 1 employees were advised that the
Company was not going to do a show. Subsequently Tomaino testi-
fied that she received Respondent’s sales brochures back from the
printer around the middle of January and that her first drafts of the
brochure that she sent to the printer in December 1993 reflected that
Respondent was eliminating the references to shows in the brochure.
the union organizing campaign as ‘‘Monica’s campaign.’’6
Strader also testified that Bona told him that the Company
was not going to do a show anymore because it required a
lot of work and effort and with the Union there was not the
time to prepare—to go through the hiring, training, and try-
ing to find someone to set up the show.7 On cross-examina-
tion Strader testified that in the past Respondent never had
any type of seniority scheduling whatsoever and in the past
the scheduling was biased.
On February 22 Monica Gudaitis and another of Respond-
ent’s employees, Sherri Pie, met with Bona at a restaurant.
With respect to the meeting, Gudaitis testified that Bona said
that before she left for the meeting the owner of the Com-
pany, Larry Stappler, asked her if she was ‘‘going to meet
the girl that’s heading all this Union activity’’; that Bona
said that she assured Stappler that she would find out what
was going on; that the meeting lasted for 3 or 4 hours; that
Bona, tearing up napkins, said that the Company could tear
up proposed agreements; that Bona said that the Union
would want benefits, the Company could not afford benefits
and ‘‘the Union could put you on strike,’’ the Company
would hire replacements and the only way the present em-
ployees would get their jobs back would be when an opening
became available; that she told Bona that the employees were
only part-time and they were not looking for benefits; that
at one point in the conversation Bona said that Monica’s job
was salvageable but Stappler ‘‘does play hardball, and he’ll
do whatever he has to do’’; that Bona said that with shop
stewards the employees would not be able to communicate
with the office people any more; that Bona said that the
Company was not General Motors and the expenses could
put it out of business; and that she told Bona that most of
the employees had already submitted union authorization
cards. On cross-examination, Gudaitis testified that Pie con-
tacted Bona about the meeting; that Bona was told that the
employees were upset about the scheduling, the inconsist-
encies, and the favoritism, and they felt that they needed a
mediator; that Bona said that she had some ideas but she
could not share them at this point, they would have to wait
until after the election; and that she told Bona that only two
employees (apparently from the bartenders and wait staff)
did not sign union authorization cards and they were not
asked to sign. Monica Gudaitis testified that typically there
were some changes in policies and procedures each spring
and these changes are normally announced at the spring
meeting. Also she testified that this meeting occurred about
4 to 6 weeks before the normal spring meeting time. Bona
testified that Pie asked her to meet with Monica Gudaitis.
Milowicki turned in his March availability sheet, General
Counsel’s Exhibit 15, on or about the last Monday in Feb-
ruary.
When Graham, who was hired by Respondent in 1993, re-
alized that he could not attend the meeting scheduled by Re-
spondent for February 24 to present management’s position
regarding the Union, he told Bona. Graham testified that he
then had a conversation with Bona; and that Bona said the
Union would just cause a lot of problems, it would destroy
the family atmosphere, it would make demands that the
Company could not afford and would not accept, the only re-
course would be for the Union to go out on strike, and the
Company would replace the workers so that it could continue
to operate.
On the evening of February 24 Respondent held a meeting
with about 25 of its employees on one of its boats. When
called by the General Counsel as the first witness at the hear-
ing, Bona testified that she was Respondent’s spokesperson
at this meeting; that she and John Wancowicz, Tomaino, and
Martas Redd, all of whom hold management level positions,
answered the employees’ questions; that she spoke from a
text prepared by Respondent’s attorneys, General Counsel’s
Exhibit 6 with attachments received as General Counsel’s
Exhibit 7; that she did not read the entire prepared text; that
she did not tell the employees at this meeting that Respond-
ent was not General Motors and Respondent could not afford
health insurance and if this was what the employees were
looking for they would put the Company out of business;
that she did not tell the employees that the negotiations could
last up to a year and the Union could get tired of this and
go out on strike; that she did not tell the employees that they
827HARBOR CRUISES, LTD.
would be precluded from talking directly with management
if the Union came in; that she did not tell the employees that
she knew several people who attended union meetings; that
she did not talk about the union meetings at this meeting;
and that there was no suggestion made at this meeting that
Respondent intended to change policy. Subsequently, Bona
testified that it was her understanding that she was supposed
to stick to the script prepared by the attorneys; that while
there is nothing about a vacation plan or health benefits in
the prepared text, she discussed this in response to a question
that was asked; that the only time she left the prepared script
was in response to a question; that she was positive that she
did not say, ‘‘I know that several people have gone to union
meetings, and have attended meetings, and that’s your prior-
ity, I’m not holding that against anyone’’; and that she was
sure that they did not discuss the need for a different policy
regarding scheduling at this meeting. The second witness
called by the General Counsel, Tomaino, testified that when
Bona spoke about the possibility of a strike she was reading
from the prepared speech; that Tomaino did not remember
saying that if the Union says that you have to go on strike,
you have to go on strike; that with respect to her telling em-
ployees about new policies that the Company might be im-
plementing, she told the employees, in answer to a question,
that ‘‘we are doing what we always did’’; that she did not
tell the employees that the Employer does listen to them; and
that she did not tell the employees that the Employer can
choose never to sign a contract. Tomaino also testified that
she had her own copy of the script in her hand and she was
following along; that she was positive that she did not talk
about the tip policy; that Bona did not say that the Company
was not General Motors and health benefits and vacation
would put Respondent out of business; that at this time she
was aware that she could not talk to employees about chang-
ing policy; that Wancowicz did not say anything during this
meeting; and that she did not hear Redd say that ‘‘we can
solve our own problems from the galley’s position.’’ The
third witness called by the General Counsel, Wancowicz, tes-
tified that he did not say anything at this meeting; that Bona
deviated from the script but she did not tell the employees
that they would have to go to the shop steward and that the
employees could not come to management; that before the
meeting Bona told them that they could not make promises
about the upcoming season until the election was over with;
and that Bona did not talk about scheduling and availability.
One of Respondent’s former employees, Judith Jelenko, testi-
fied that she attended the February 24 meeting that was held
about 3 of 4 p.m.; that she sat in the front row and recorded
what was said at this meeting, General Counsel’s Exhibit 9;
that the tape was transcribed, General Counsel’s Exhibit 10;
and that after the tape was transcribed, she made some nota-
tions regarding what was on the tape after listening to it an-
other time, General Counsel’s Exhibit 11. Also Jelenko testi-
fied that she received the invitation to the February 24 meet-
ing in the mail. Subsequently, Jelenko testified that when, as
set forth on page 17 of the transcript, Tomaino said some-
thing about policy, Bona said, ‘‘[w]e can’t talk about that
now,’’ which statement is not in the transcript. Monica
Gudaitis testified that Jelenko was sitting in the front row of
employees, about 4 or 5 feet from Bona. Gudaitis believed
that this meeting, at which a meal was served, started before
5 or 5:30 p.m. because the sun was still out during the meet-
ing. Gudaitis was never served dinner by the Company be-
fore.
In March Wancowicz began to do the scheduling.
Tomaino, Respondent’s director of marketing, had that re-
sponsibility for one-half of 1992, all of 1993, and January
1994. When she was out of town in February 1994 someone
described only as Vivian did the scheduling. Wancowicz tes-
tified that he became personnel manager in March; that in
this position he did the hiring, scheduling, interviewing,
training, and firing; that before he became personnel manager
he was boat manager supervising the wait staff, bartenders,
galley staff, and dock hands; and that Bona hired him as per-
sonnel manager. Strader testified that he helped Wancowicz
with the scheduling of the bartenders for about 90 days after
which time Wancowicz did the scheduling himself.
Wancowicz testified that he became responsible for the
scheduling of employees on March 1; that he decided that
the employees should not be telling the Company when they
are available to work on a month-to-month basis but rather
they should have a fixed availability and request time off
when they needed it; and that Strader had no involvement in
helping prepare the schedules. Further, Wancowicz testified
that he did not have any standard or any ceiling in schedul-
ing and it was totally at his discretion.
Also in March Respondent sponsored a job fair and it took
job applications at its catering operation for its boat charter
service. Bona testified that this was the first time Respondent
hired in this way. Bona also testified that prior to the 1994
season it was, as noted above, a showboat operation and Re-
spondent hired waiters and waitresses who were entertainers
who could sing; that early in 1993 it was decided to stop
doing shows in 1994; that people were hired at the job fair
because it was decided that people hired could possibly work
at both Respondent and at its affiliated company, Overlea
Caterers; and that most of the hiring for the 1994 season was
done in March 1994. Subsequently, Bona testified that the
decision to no longer do shows was made in mid-season
1993, which was July 1993, and that Respondent’s first re-
vised brochure for the 1994 season was sent to the printer
in January 1994. Wancowicz testified that of the 10 to 15
people interviewed at the job fair 2 were told that they would
be hired; that before the election Respondent ran an ad in the
newspaper for employees and he interviewed at least 30 peo-
ple; that he could have told 20 of these people that they were
going to be hired; that only 7 to 12 of the wait staff from
1993 remained; that he tried to contact some of the people
who worked for Respondent in 1993; and that Bona told him
to hire at least 30 people. Further Wancowicz testified that
it was not mandatory that the new hires have 100-percent
availability and he did not ask the applicants if they could
sing.
When he was not scheduled for any cruises in March,
Milowicki spoke to Bona who told him that Respondent did
not have any availability sheet for him so he wasn’t sched-
uled. He told Bona that the sheet had been submitted. Bona
said that she would probably be able to put him on some
cruises during the remainder of March. He was called in to
work six cruises that month and one was canceled.
On or about March 12 Graham went to Respondent’s of-
fice and initiated a conversation with Bona. Regarding the
conversation, Graham testified that he told Bona that the vote
was very important to him because he had been a member
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Graham testified that scheduling was a problem in 1993; that
there did not appear to be any rhyme or reason to scheduling; and
that when he believed in 1993 that he was not receiving his fair
share of cruises he complained and he received more cruises.
9 Jelenko testified that when Bona said this she threw what she had
in her hand on the desk.
10 Graham testified that he was available 100 percent notwithstand-
ing the fact that he was going to be working for Carpet Care because
he had flex hours with that Company. This differed from his March
availability sheet in that in March he was only available on week-
ends. G.C. Exh. 18.
11 Bona sponsored R. Exh. 18, which is a payroll computer print-
out which shows that Campofreda had total earnings of $991 in
1993.
12 She testified that in prior years she had always received 2
weeks’ notice for such meetings.
of Local 24 IBEW and he knew the benefit of having a
union; that Bona said that the Union would want benefits and
higher wages and the Company could not afford that, there
would be a strike, and those on strike would be replaced;
that he told Bona that the employees did not want medical
or vacation benefits but rather only wanted someone to be
a go-between for the Company and the employees; that he
told Bona that scheduling was a problem;8 and that the
Union could take the monkey off her back. According to
Graham’s testimony, apparently referring in part to both con-
versations he had with Bona regarding unionization, Bona
did not say that a strike was definitely going to happen, ev-
erything was a hypothetical and she said that management
could best handle the scheduling. This conversation occurred
in the reception area of Respondent’s office trailer. Bona tes-
tified that Graham initiated the meeting.
On March 20, originally described by Jelenko as a Sunday
2 weeks before the election was held, Wancowicz telephoned
Jelenko and asked her to come to Harbor Cruises and, along
with three or four other employees, meet with Bona. Jelenko
testified that she arrived at the office at about 3 p.m.; that
Bona was the only other person in the office; that Tomaino
was in the facility, which is a mobile home-type trailer, mov-
ing furniture but she was not in the room; that Bona told
Jelenko that she could not close the door because Bona could
not have a one-on-one meeting with her; that Bona said the
Company (1) did not want a union, (2) was small and if the
Union asked it to pay vacation and insurance benefits, the
Company would most likely go out of business, and (3) did
not have to sign any contract that is given to it by the Union
in negotiations and the Company can just throw it right back
at the Union;9 and that she was not scheduled to work that
day. On cross-examination Jelenko testified that this occurred
the Sunday before the election or, in other words, 6 days be-
fore the election; that Bona said that if the Company had to
pay vacation, insurance, and benefits for its full-time work-
ers, it ‘‘could put them out of business’’; that in her opinion
anyone working five or more shifts or cruises was full time;
that the cruises last from 2 to 6 hours; and that Bona said
that the Company not accepting a contract ‘‘can continue for-
ever.’’ Bona testified that she told Jelenko that Bona just
wanted to make sure that Jelenko was aware (1) that this is
a private ballot, (2) how the voting was going to be handled,
(3) there would be one person sitting at the table with the
Union, and (4) the Company would have a representative sit-
ting at the table.
On March 21 Milowicki submitted his April availability
sheet to Respondent, General Counsel’s Exhibit 16.
On March 26 an election was held. There were 16 votes
were cast for the Petitioner and 20 votes cast against the
Union. On the night of the election Graham turned in his
availability sheet for April 1994, which showed 100-percent
availability.10 He did not recall receiving any telephone calls
from Tomaino after March 26.
During the following week Graham telephoned Respond-
ent’s office on two occasions to find out if he was scheduled
for the weekend and both times he was told by a salesman,
identified only as Rick, that the schedule was not ready. Ac-
cording to Graham’s testimony, in the past when the sched-
ule was not available on the first of the month he would pick
it up at the office or telephone the office. Graham testified
that he ‘‘felt that the two phone calls . . . [were] enough’’;
and that it was not an unusual situation at the beginning of
the month that a schedule was not ready and management
would have to telephone him and tell him what his schedule
was for the first week.
On March 28 Monica Gudaitis submitted her availability,
General Counsel’s Exhibit 20, and the availability of her son
Michael for April to Wancowicz. Monica Gudaitis testified
that she told Wancowicz that her son worked at his day job
on Monday, Tuesday, Wednesday, Friday, and Saturday until
6 p.m. and he could not get to the boat until 6:40 p.m.; that
if Respondent took the same approach that it had taken with
her husband, David Campofreda, who worked at the same
place as her son during the day, and have someone else set
up the bar before her son arrived at the boat, he could work
7 p.m. cruises;11 that she told Wancowicz that because she
was in school she was not available Tuesdays and Thursdays,
and Saturdays and Sundays, and mornings but, in view of
Wancowicz’s indication that the employees would be re-
quested at the March 30 meeting to henceforth submit per-
manent availabilities, her schedule would change in May
when she was finished with school; that she told Wancowicz
that she did not believe that 2 days’ notice of the March 30
mandatory employee meeting was enough time for her to
cancel a meeting that she had scheduled with her school di-
rector that evening;12 that when Wancowicz asked if her son
could make the meeting, she told him that he did not get out
of work until 6:30 p.m. and he would have to contact her
son; and that she gave Wancowicz her son’s work telephone
number. Monica Gudaitis also testified that she filled out her
son’s availability sheet in front of Wancowicz. According to
her testimony, her son’s April availability sheet was no dif-
ferent than his March availability sheet. On cross-examina-
tion Monica Gudaitis testified that she told Wancowicz that
if she could change her meeting with her school director
from March 30 she would let him know; that she had her
March schedule when she arranged the meeting; and that she
was not scheduled to work that night.
Jelenko testified that on March 29 Wancowicz telephoned
her at home and informed her that there was a mandatory
meeting on the evening of March 30; and that she told him
that she could not attend because she had to work that
evening and he said, ‘‘[O]kay.’’
On March 30 Respondent conducted a mandatory meeting
for employees at which it distributed to employees a Harbor
Cruises handbook, General Counsel’s Exhibit 5. As noted
above, the handbook contains the following: ‘‘Griping to
829HARBOR CRUISES, LTD.
13 Bona testified that Respondent’s good season is March through
October and that it slows down drastically from November through
February; and that during the height of the season Respondent, with
two boats, can operate 35 cruises a week. The 1993 and 1994 sched-
ules of operations were received as Jt. Exhs. 1 and 2, respectively.
And 1994 employee availability data was received as G.C. Exh. 60.
Bona testified that no priority is given to seniority or experience and
that the schedules are made up on the basis of availability; that
someone with 100-percent availability gets preference over someone
with limited availability for the same shift; and that this has always
been the rule.
14 Wancowicz testified that in addition to permanent availability,
another change that was announced at the March 30 meeting was
that employees could not swap cruises directly with other employees.
15 On March 30 Graham would have been working at Denny’s
Restaurant from 3 to 11 p.m.
16 G.C. Exh. 28. G.C. Exh. 29 is the same list with check marks
and some ‘‘doodling.’’ According to G.C. Exh. 30, which is a letter
from Bona to the Board, the following employees did not attend the
March 30 meeting but they did provide a legitimate reason before
the meeting to the Respondent for not being able to make it: Bender,
Tami Howie, Dorothy Eddy, Strader, Pie, Bobby Kelly, and Jelenko.
17 Roberts testified that R. Exh. 40, a note that refers to availabil-
ity, was given to Respondent in the summer of 1992. It is noted that
while Roberts, according to Respondent’s business records, was ter-
minated on June 24, the note refers to ‘‘August.’’
other employees or outsiders is not considered professional
or appropriate manner to resolve problems.’’ During the
meeting Respondent announced a change in its policy regard-
ing employees submitting their availability. In the past em-
ployees could submit their availability the last week of each
month for the following month. As of April, employees had
to submit their availability for the season.13 Subsequently, if
they needed time off, they had to request it in writing.14
Bona testified that this policy change was decided at a man-
agement meeting in March attended by Tomaino,
Wancowicz, Ken Thomas, and herself; and that the purpose
of the change was to make it easier for Wancowicz to do
the scheduling. Wancowicz testified that employees were no-
tified of this meeting by letter ‘‘unless they picked that up
in their paycheck’’; that he personally verbally notified the
new employees that he intended to hire about the meeting;
that he did not tell any of the older employees about the
meeting; that he did not know of any other mandatory meet-
ings during the 1994 season; and that 10 to 15 employees
did not attend this meeting but not all of these employees
were written up because some of them telephoned before the
meeting to explain why they could not attend. Subsequently
Wancowicz testified that someone named Vivian sent the let-
ters notifying older employees about the meeting; that after
receiving the letter some of the older employees telephoned
to say that they could not attend; and that it was sufficient
for the new employees who missed the mandatory meeting
to just read the handbook and another meeting was not held
for these people. According to Jelenko’s testimony, she never
received any written notice of this meeting. Bender testified
that she received no notification about the March 30 meet-
ing; that she learned of the meeting a day or two after it was
held; that she gave Bona a doctor’s note that indicated that
she should not go to work or anything for a couple of days;
and that to her knowledge she had not been written up for
missing the meeting. Milowicki believed that he was notified
verbally about this meeting during the March 26 cruise that
he worked. On direct Graham testified that he did not think
that Respondent communicated to him that there was a man-
datory meeting on March 30. On cross-examination he testi-
fied that the first time that he learned of the March 30 man-
datory meeting was when he testified herein on December 1;
and that in view of his reference in his affidavit to the Na-
tional Labor Relations Board to not being able to attend a
company meeting after the election because of his other
job,15 it appears that possibly he did know of the March 30
meeting before testifying. According to Bona’s testimony,
her handwritten note at the bottom of Respondent’s Exhibit
26, namely, ‘‘Wed employee meeting at 6 pm!’’ refers to the
seasonal mandatory meeting of the employees that was held
in 1994 on Wednesday, March 30. Wancowicz sponsored
Respondent’s Exhibits 37(a), (b), and (c), which are writeups
to Sara Derrenberger, Mark Potter, and Matt Potter, respec-
tively, for missing the mandatory March 30 meeting.
Wancowicz signed on the ‘‘SIGNATURE OF EMPLOYEE’’
line of the forms. He also did this on Graham’s writeup,
General Counsel’s Exhibit 34, for failing to attend the man-
datory meeting. A list of those people who attended the
March 30 meeting or provided a reason why they could not
attend, which according to Wancowicz’s testimony is incom-
plete, was received.16
In response to Bona’s direction to henceforth submit per-
manent availability, Roberts submitted an availability sheet
showing that she was available only for double shifts on Sat-
urdays. General Counsel’s Exhibit 38. She testified that she
never advised Wancowicz that she was available in 1994 to
work evenings or Sundays.17
Jelenko testified that on March 31 she received a tele-
phone call from Wancowicz asking her where she was on
March 30; that she reminded him that she had told him on
March 29 that she was not going to be able to attend the
meeting; that he said that she should have reminded him; and
that she told him that she did not believe that was necessary
because she had already told him that she was not able to
attend and he had said, ‘‘[O]kay.’’
Toward the end of March or the beginning of April Re-
spondent hired 14 people for its wait staff.
In April, according to the testimony of Bona, Wancowicz
started working full time and he began handling his person-
nel responsibilities.
Also in April Milowicki was scheduled for four cruises.
He spoke to Wancowicz about this, indicating that it ap-
peared that the new people were getting more cruises than
the older people. Wancowicz said, according to Milowicki’s
testimony, that he had ‘‘screwed up or something.’’ On
cross-examination Milowicki testified that in April 1993 the
new people did not get as many cruises as the older people
because the new people were engaged in rehearsals and
shakedown cruises; that he was available for 15 cruises that
were booked and believed that if he had been scheduled for
one half of these he would have been satisfied; and that he
was scheduled for three cruises and since a customer asked
for him for a cruise, he had four cruises in April. Wancowicz
testified that he did not remember any employee complaining
in April about their scheduling.
On April 1 Wancowicz telephoned Monica Gudaitis. She
testified that he told her that she was scheduled to work that
Sunday but the schedule had not come out yet; that he told
her that her son was scheduled to work that Saturday morn-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 Graham testified that subsequently, he could not remember ex-
actly when other than it was not on the morning of April 3 and it
may have been the week after the first week of April, (1) Monica
Gudaitis telephoned him and told him that he was not on the sched-
ule for the month of April and that she had heard from one of the
bartenders that Graham had been fired, and (2) one of the waitresses,
Roberts, told him that Wancowicz told her that he fired Graham be-
cause he did not show up for a shift. On cross-examination Graham
testified that Monica Gudaitis said that Pie said that Wancowicz said
that Graham was terminated because he did not show up for work
on April 2. Also Graham testified that after he heard these rumors
he made no effort to telephone the Company because ‘‘I was very
busy with my other job. And, frankly, was making more money and
it just wasn’t that important to me.’’ Graham testified that he did
not see any need to contact the Respondent on April 3 to indicate
that he received the messages, he did not know in advance that he
was scheduled for April 2 and he needed a schedule. In the begin-
ning of April, he believed that it was on the fourth, Graham began
working for another company, Carpet Care, Inc., as an independent
contractor who was able to adjust his hours. Graham’s affidavit to
the Board reads, ‘‘On April 2, 1994, I was working at my job, Car-
pet Cleaning, returning home at about 10:30 p.m.’’ Also while it re-
fers to Monica Gudaitis telling him that he was fired, there is no
reference in the affidavit to Roberts. Subsequently, Graham testified
that he was aware of the fact that another employee had missed a
scheduled cruise without telephoning in beforehand; that he was not
aware that the employee was terminated for missing one scheduled
cruise; that usually it took something in addition to missing one
scheduled cruise for the Company to actually terminate the em-
ployee; that to his knowledge neither Monica Gudaitis nor Roberts
mentioned missing the March 30 meeting in their telephone calls to
him about being fired; and that they only referred to the April 2
cruise. Monica Gudaitis testified that she thought that Graham tele-
phoned her after he had spoken with Roberts; and that she told
Graham that she had heard that he was fired and that on the April
schedule that she had his name was on the first 2 weeks of the
schedule and his name was removed off the last 3 weeks of the
schedule. Tomaino testified that she telephoned Graham twice after
he did not show up for his shift and she left messages on his ma-
chine; and that he was eventually taken off the schedule when he
did not telephone in or contact someone at Respondent. Wancowicz
testified that he took Graham off the schedule after he did not show
up for his cruise and he did not telephone in response to manage-
ment’s telephone calls; and that he did not terminate Graham.
Wancowicz testified that he did not tell Roberts that he terminated
Graham because he missed shifts; and that Graham did not receive
a written discipline for his failure to show up for this cruise. Two
new hires, Amos Jones and another employee described as Andrew
M., did not show up for their first scheduled shift and they were
fired. R. Exhs. 41 and 42 were received by stipulation of the parties,
with the indication that they reflect that Graham began working for
Carpet Care, Inc. on March 30 and continued, as here pertinent, at
least through April 30. The latter exhibit lists a number of jobs that
Graham performed for Carpet Care on April 2. On rebuttal Monica
Gudaitis testified that her copy of the April schedule, C.P. Exh. 10,
which she received sometime after March 28, has Graham’s name
on the first and second page of the schedule but it does not appear
on the other pages of the schedule. Albeit she asserted at one point
that she had it on April 1 (which is unlikely in light of her prior
testimony that Wancowicz telephoned her on April 1, indicating that
the April schedule was not out yet), Monica Gudaitis was not able
to testify as to exactly when she received the April schedule other
than to testify that she had it when she received her May schedule
because she made some notes on the back of her April schedule re-
garding her May schedule.
19 According to Wancowicz’ testimony, writeups can stay in an
employee’s file indefinitely for years and be considered in taking
subsequent disciplinary action. Michael Gudaitis’ four writeups,
along with his payroll change (termination) form, were received in
evidence as R. Exh. 1. The oldest of the 1993 writeups was from
Wancowicz on June 30, 1993, for not showing up for work. The
other 1993 writeup was from Manager Thomas on September 9,
1993, which indicates as follows: ‘‘CALL SAID HE WAS GOING
TO BE LATE AND DID NOT SHOW UP OR CALL.’’ Wancowicz
testified that he never gave a copy of any of the writeups to Gudaitis
and he, Wancowicz, did not know if Gudaitis was aware of the
writeups; that the idea of having writeups is to warn the employee
to change his or her behavior; and that there is a line on the writeup,
which is titled ‘‘WARNING SHEET,’’ for the signature of the em-
ployee and Gudaitis’ signature does not appear on any of the warn-
ing sheets.
ing and she told Wancowicz that her son could not work that
Saturday; that Wancowicz said that it did not matter and he
would speak to her son; and that he asked her why she did
not attend the March 30 meeting or phone and she reminded
him that she previously told him that she could not attend
the meeting and would call him only if there was a change
in her prior plans. Later that evening Monica Gudaitis spoke
with her son and told him about having to work on April 2.
She testified that her son said that the Respondent knew that
he could not work on April 2 and he would telephone
Wancowicz.
On April 2 Graham returned home about 10:30 p.m. and
had two telephone messages on his answering machine. The
first message was from Wancowicz and it was that Graham
was scheduled to work that night. The second message was
also from Wancowicz who said, ‘‘It’s 4:30, Walt and you’re
not here and you’re scheduled and you really, really . . .
have to work tonight. It’s very important that you be here
tonight.’’ Graham testified that the cruise would have been
over at that point in time.18
In the beginning of April employee Michael Gudaitis was
told that he was terminated. Bona testified that Wancowicz
made the decision to terminate Michael Gudaitis without any
input from her. Wancowicz testified that he alone decided to
terminate Michael Gudaitis; that the basis for his decision
was the fact that Gudaitis missed the March 30 mandatory
meeting and his scheduled April 2 shift, he had two other
prior 1993 writeups,19 and the policy is three writeups and
you can be terminated; that he wrote up one of the prior
writeups; that Michael Gudaitis telephoned him on April 2
and Gudaitis said that he heard that he was written up for
not coming to the March 30 meeting; that he told Gudaitis
that he missed ‘‘today’s’’ shift that was April 2, that was his
fourth writeup and he was going to have to let him go; that
while there were other employees who have had four
writeups and not been discharged, those employees, unlike
Gudaitis, ‘‘fought for their job’’ and he gave them another
chance; that if Gudaitis had been more contrite he might
have been given his job back; and that Gudaitis did not argue
about being fired. Wancowicz conceded that Gudaitis’ March
availability sheet, Charging Party’s Exhibit 1, which Re-
spondent had in its possession at the time of the 4 p.m.
March 30 mandatory meeting, shows that Gudaitis was not
available during that day. Wancowicz also testified that
Gudaitis was not scheduled to work at Respondent for the
entire month of March and, therefore, he would not have re-
ceived his April schedule with his paycheck; and that he
tried to contact Gudaitis several times regarding being sched-
831HARBOR CRUISES, LTD.
20 Wancowicz testified that he left one message on an answering
machine about missing the March 30 meeting and about the April
2 schedule; and that on the following day he telephoned and again
left a message on the answering machine to find out if Gudaitis was
coming to work.
21 Regarding the one time that she testified that she was sure of,
earlier Jelenko had described this 1993 situation in terms of being
scheduled to work and finding a replacement so that she could go
to Maine. She went on to testify that at the time employees were
allowed to find someone to work their shifts for them and then in-
form management in writing or they could go directly to manage-
ment and management would find someone. With respect to putting
it in writing, Jelenko testified that no one ever did it. Graham testi-
fied that three or four times in 1993 he was scheduled to work when
he was not available; that normally he tried to find a replacement
and when he was not able to he would telephone the office and tell
management that he could not make it. Also Graham testified that
in 1993 many times people were scheduled for shifts when they had
previously indicated that they were not available.
22 The schedule shows that he was available every Saturday in
February during the day and evening.
23 He discussed this with Bona who told him to speak to
Wancowicz. He telephoned Wancowicz twice in March but was un-
able to contact him. According to Michael Gudaitis’ testimony, his
roommate, who he had obtained a job for at Harbor Cruises, was
getting cruises in March when Gudaitis was not.
uled to work on April 2 but he did not succeed.20
Wancowicz further testified that he was aware that Gudaitis
worked in a pawn shop on Saturday and Wancowicz could
not recall Gudaitis ever working at Respondent on a Saturday
during the day; that, nonetheless, he scheduled Gudaitis to
work during the day on Saturday April 2; that one of the
other bartenders scheduled to work on that cruise,
Derrenberger, did not show up, she received her fourth write-
up for this but she was not fired because when he telephoned
her on April 3 to tell her that he was letting her go she ar-
gued with him and talked him out of firing her; and that he
knew that Gudaitis worked on Saturdays at the pawn shop
and was not available to work on Saturday, April 2, at Re-
spondent. Wancowicz was sure that Michael Gudaitis was on
the April schedule for April 2 when it was put out on March
25 and Wancowicz was pretty sure that Monica Gudaitis,
Michael’s mother, was at the mandatory March 30 meeting.
Subsequently, he testified that he was sure that Monica
Gudaitis did not attend the March 30 meeting. Also
Wancowicz testified that if there was no availability sheet for
Michael Gudaitis for April 1994, Wancowicz would have re-
ferred to Gudaitis’ March availability sheet in determining
when he would have been scheduled in April; and that
Gudaitis’ March availability sheet showed that he was not
available during the day for any Saturday in March. Jelenko
testified that in the approximately 4 years that she worked
for Respondent only once or perhaps twice was she sched-
uled notwithstanding the fact that her availability sheet
showed that she was not available.21 Michael Gudaitis, who
started working for Respondent in April 1991, worked as a
bartender in 1994 and who signed a union authorization card
and went to union meetings, testified that he signed his Feb-
ruary 1994 availability sheet, General Counsel’s Exhibit
12;22 that in the third week of February 1994 he began work-
ing at Greenmount Loan and Jewelry; that he did not prepare
his March 1994 availability sheet, Charging Party’s Exhibit
1, and he believed that his mother, Monica Gudaitis, pre-
pared it and submitted it to Respondent; that he was not
scheduled for any cruises in March;23 that when his mother
told him on March 28 or 29 about the mandatory March 30
meeting at Harbor Cruises, he asked her to advise Respond-
ent that he had to work at his other job and he would not
be able to attend the meeting; that about 4 p.m. on April 1
he learned from his mother that he was supposed to work the
next day, April 2; that later on the evening of April 1 and
at 9:15 a.m. on April 2 he telephoned Harbor Cruises but no
one answered the telephone; that he was not able to tele-
phone again during the remainder of the day; that the follow-
ing Monday or Tuesday he heard from his mother and a
friend who works for Respondent that Respondent had termi-
nated him; that on April 5 he telephoned Wancowicz and
asked him what his job status was; that Wancowicz told him
that he had been let go for not showing up for the March
30 meeting and for not coming to work on Saturday, April
2; that he told Wancowicz that if he looked at the availability
sheet it would have been clear that he was not available to
go to the meeting or come to work; that when Wancowicz
said, ‘‘[T]hat’s the way it is’’ Gudaitis said, ‘‘[O]kay’’; that
Wancowicz told him in mid-1993 that he had a writeup; that
in mid-1993 his car broke down on the way to work and he
telephoned Respondent and spoke to Bona and later to
Thomas; that he took a cab to the harbor but the boat had
already left; that no one ever said anything to him about this
incident and he did not believe that he was written up over
the incident; that in all the years that he worked for Re-
spondent he could not recall another instance of being sched-
uled when he had indicated that he was not available; and
that it was routine for employees to have other employees
take their assignments and verbally advise a manager of the
situation. On cross-examination Michael Gudaitis testified
that he lived with a roommate for 1 year and 2 months in
Parkville, Maryland, until the end of February when he
moved in with his grandmother; that he had received tele-
phone calls from Respondent at the Parkville apartment; that
there was an answering machine at that apartment; that he
did not change the telephone number Respondent had for
him when he moved in with his grandmother; that, to his
knowledge, the last telephone number that the Company had
in its records was for the Parkville apartment; that for
evening cruises the bartenders are supposed to report for
work at 5:30 p.m.; that with his job at Greenmount, which
includes Saturdays, he could not arrive at the harbor until
about 6:40 p.m.; that notwithstanding this, his March avail-
ability sheet shows him being available all evenings except
Sundays; that he was available for moonlight cruises, which
do not go out until 10 p.m. or other special cruises that go
out at 8 p.m. or later; that since he did not work at
Greenmount on Thursdays he could be at the harbor at 5
p.m.; that at times he had been told that if he could be in
by 7 p.m. when the cruise leaves, his bar would be ready for
him; that his availability to work in March was greatly re-
duced from his availability to work in February because of
his job at Greenmount, which he started on February 19; that
the individual who he got a job with Respondent, Michael
Gaskill, had a full-time job but otherwise Gudaitis did not
know Gaskill’s availability for March 1994; that he was told
of his April 1994 schedule at the very end of March, after
the March 30 meeting, by his mother; that at about 9:15 a.m.
832 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 His mother testified that she heard that he had been fired for
not reporting for work on April 2, and on Monday or Tuesday, April
4 or 5, respectively, she told him that he had to check his job status.
Subsequently her son telephoned her to tell her that he had been
fired. On Wednesday, April 6, she telephoned Bona and asked her
to check her son’s availability sheet for April. Bona could not find
Michael Gudaitis’ April availability sheet but rather referred to his
March sheet. When his mother pointed out to Bona that even his
March sheet showed him as unavailable for the involved cruise,
Bona told her to have her son come in and talk to Wancowicz about
getting his job back.
25 Tricario testified that she did not know what happened to
Graham, only that she just did not see him anymore; and that
Wancowicz did not say anything about this.
26 Bona testified that she was not going to overrule the decision
without a conversation with Wancowicz and Michael; that she subse-
quently told Monica to tell Michael to come in and talk to John,
‘‘[t]his situation can be changed,’’ when Monica told her that Mi-
chael only wanted some late hours or some moonlight cruises; and
that Respondent has given employees their jobs back when they ask
for this indicating that they will remedy their ways.
27 Tomaino sponsored R. Exhs. 23(a)–(r) and R. Exhs. 25(a) and
(b), which are records of discipline issued to a number of different
employees. Some involve employees who were terminated after re-
ceiving three writeups for not showing up for shifts, not showing up
on time or not showing up for a mandatory meeting or rehearsals.
The last two above-described exhibits are warning sheets to Bender
and Strader, respectively, where Wancowicz in April signed above
the area designated ‘‘SIGNATURE OF EMPLOYEE.’’
28 Wancowicz pointed out that Osikowicz did specifically tell him
that he would not be available and to determine Michael Gudaitis’
availability, he, Wancowicz, had to look at his March availability
sheet.
29 Tricario corroborated this, adding that she never heard
Wancowicz make any reference to any employment plans that he
had for Monica Gudaitis. Tricario voted in the election pursuant to
a stipulation by the parties that she is a ‘‘Bartender/Substitute Man-
ager.’’
on April 2 he telephoned Respondent’s office and one of its
boats to indicate that he could not work that day but no one
answered; that coworker Bender and his mother told him that
he may have been fired;24 that he never saw Respondent’s
Exhibit 1, his June 30, 1993, writeup before the hearing
herein; that at the time Wancowicz did not tell him why he
was getting a writeup; and that he did not know that he re-
ceived a writeup for the time that his car broke down. On
redirect Michael Gudaitis testified that on February 14 he
had the conversation about arriving late because of his other
job with either Wancowicz or one of the other managers,
‘‘Kenny,’’ apparently referring to Thomas; and that he was
told ‘‘[g]et in here by 6:30 or so, your bar will be ready for
you.’’ Strader testified that another of Respondent’s employ-
ees, Richard Siskowitz, had two writeups and asked to be
able to miss work due to family matters; that his friend
Siskowitz was told Respondent was short staffed, he could
not have the time off and if he took the time off he would
be fired; and that his friend did take the time off and was
not fired. Monica Gudaitis testified that she was told by
Mary Tricario, a boat manager, that she understood that Matt
and Mark Potter, Derrenberger, and Graham were all fired;25
that she contacted her son; that she told her son to contact
someone at Respondent because it was her understanding
that he was no longer employed there; that after her son told
her that he was fired, she, as noted above, telephoned Bona
who, after reviewing Gudaitis’ son’s availability sheet for
March and seeing that he was not available on Saturday
mornings, told Gudaitis that her son could ‘‘come in and talk
to John about getting his job back’’; that she told her son
what Bona said; that her son did not subsequently talk to
Wancowicz; that her son told her that he was fired unjustly
and he did not need to speak to Wancowicz about that; and
that her son said that the only John he needed to speak to
was John Singleton, the attorney for the Union. Bona testi-
fied that Monica Gudaitis telephoned her on the day that her
son Michael was terminated; that on his March schedule that
she was looking at he was available for the involved Satur-
day cruise; that she could not find an April schedule for Mi-
chael; that when Monica said that her son was not available
for the involved cruise, she, Bona, said ‘‘fine . . . [t]ell Mi-
chael to call John, come in and sit down and we’ll talk about
it’’;26 that Michael was terminated for missing a Saturday
morning cruise and the office is open from 9 a.m. to 5 p.m.
on Saturday; and that there are reservationists who sell tick-
ets out of that office on Saturdays and they would answer
the telephone if someone was calling in to indicate that they
were having a problem getting in. Tomaino, who handled
discipline in 1992 and 1993, testified that the policy was if
an employee received more than three writeups they were
terminated; that she had given employees in this situation an-
other chance; and that it was not her practice to have em-
ployees sign warnings but she indicated to the employees
verbally that they had a warning.27 When he was recalled,
Wancowicz testified that he telephoned Michael Gudaitis at
the number he had given Respondent; that he left a message
on the answering machine; that in the past when he left mes-
sages on that answering machine he was able to contact
Gudaitis; that Michael Gudaitis did not give him a different
telephone number for March; and that he never received an
April availability sheet for Michael Gudaitis. Wancowicz tes-
tified that when he mistakenly put Richard Osikowicz on the
schedule when he had previously indicated that he would not
be available, Wancowicz took care of it without requiring
this employee to ask for forgiveness and he did not give this
employee a warning; and that this employee and Michael
Gudaitis were in the same situation, namely that they were
scheduled when they were not available.28 Further
Wancowicz testified that he had Michael Gudaitis’ daytime
work phone number at the pawn shop in his Rolodex.
On April 9 Monica Gudaitis asked Wancowicz for a copy
of her April availability sheet. He could not find her son’s
April sheet. According to her testimony, later that day on the
Lady Baltimore she overheard Wancowicz tell Tricario, ‘‘I
fired her son, I just haven’t gotten her yet’’ when Tricario
asked him why Monica was upset. On cross-examination
Monica Gudaitis testified that when Wancowicz could not
find her son’s April availability sheet she asked him how he
could have lost it and he said that he did not know.
Wancowicz testified that when Tricario asked him why
Monica was upset he merely said that ‘‘I just fired her son
so she is upset’’; and that he did not say that he was going
to fire Monica also.29
On April 20 Milowicki submitted his May availability
sheet, General Counsel’s Exhibit 17. On it he indicated that
he would not be available on May 8 and May 25–31.
833HARBOR CRUISES, LTD.
30 She specified ‘‘Matt, Mark, Sarah, Mike, Walt Graham . . .
[and] Tina Bender.’’
31 This was not offered nor was it received for the truth of the
matter asserted.
32 Albeit she referred to this telephone conversation with
Wancowicz in her May 21 affidavit to the Board, Wancowicz’ al-
leged statement about Jelenko recording the meeting was not in-
cluded in the affidavit.
33 She was hired by Respondent in 1992. Galloway went to union
meetings and apparently signed a union authorization card. Galloway
testified that she believed that the Company had no idea as to her
opinion concerning the Union.
According to her testimony, Monica Gudaitis, sometime
between the middle and the end of April or even the begin-
ning of May, found another job in a restaurant. She testified
that she took the job at the restaurant before she saw her
May schedule at Respondent. Gregory Hanna, the owner of
The Middleboro Inn in Essex, Maryland, testified that, as
shown by Respondent’s Exhibit 34, Monica Gudaitis worked
for him in April, May, and June; that she applied for the po-
sition on or about April 13, and she began her training on
April 20; that she told him that she was leaving Harbor
Cruises and she wanted to work full time for him; that
throughout her employment with him she continued to work
for Harbor Cruises, indicating that her lawyer told her that
she had to continue to work for that Company because she
was involved in litigation with it; that she told him that she
wanted to leave Harbor Cruises because that Company
changed from tips to an hourly rate; that she never worked
full-time shifts for him; and that when his schedule for her
conflicted with Harbor Cruises’ she would work for the lat-
ter. On rebuttal, Monica Gudaitis testified that she looked for
this job because ‘‘[o]n April 2 six people are fired out of the
old people.’’30 Also, she testified that before she went to The
Middleboro Inn, Pie told her that Pie had been told that ‘‘in
May, they’re going to get the rest of the people out by their
availabilities. They’re going to schedule when they’re not
available.’’31
Between the middle of April and April 25 Wancowicz
telephoned Roberts, who lived near Annapolis, Maryland, to
ask if later that month she could go to Annapolis, meet one
of Respondent’s boats, and work a wedding. Regarding this
approximately 45-minute conversation, Roberts testified that
she told Wancowicz that she was going to another wedding
that day and she could not take the shift; that Wancowicz
asked her if she could work during the week and she told
him that she could not; that she had a 6-year-old child who
was in kindergarten; that Wancowicz said that he had to let
Graham go because he did not show up for work; that
Wancowicz said that he was going to have to let Bender go
because she kept calling in ill; and that Wancowicz brought
up the Union and he made the following statement:
[T]hat Judy Jelenko had taped a meeting, and that was
illegal. The union had filed charges against the com-
pany, and there was going to be another election, but
there would be new employees, and they wouldn’t vote
a union in.32
According to her testimony, after this conversation she tele-
phoned Monica Gudaitis and told her that Graham had been
fired and that Bender was going to be fired. Also she tele-
phoned Graham and left a message for him to call her.
About 1 week later Graham telephoned her and she told him
what she heard. She was given a single cruise on each of the
four Saturdays in April that she was available for double
shifts. As noted above, Wancowicz denied that he told Rob-
erts that he fired Graham for missing shifts. Wancowicz also
denied making the statement about the objections, another
election and how new employees would vote, and he denied
that he told Roberts that he might have to discharge Bender
and that he was aware that Jelenko had taped the February
24 meeting.
A staff meeting was held on April 27. The General Coun-
sel introduced a notice that indicates the meeting was manda-
tory, General Counsel’s Exhibit 35. Wancowicz testified that
he never sent the notice out, the meeting was not mandatory
and no one was disciplined for not attending the meeting.
Raychella Smith was hired by Respondent on April 28.
She worked on 15 cruises in May. Charging Party’s Exhibit
8. Smith had indicated to Respondent that she was 100 per-
cent available.
When she discovered that she was being scheduled for
weekday evenings on the May schedule notwithstanding the
fact that she had indicated on her permanent availability
sheet that she was only available for double shifts, Roberts
spoke to Wancowicz, explaining that she had a child-care
problem and it was almost impossible for her to get to work
during the week. According to her testimony, Wancowicz did
not give her a response and she complained to him on two
other occasions. She recalled that she worked Monday
evening May 9 with quite a bit of difficulty but she was not
able to recall whether she worked on other scheduled week-
day evenings in May. She worked on three Saturdays in May
with one of them being a double shift.
In May Milowicki was scheduled for three cruises.
Wancowicz told him that he ‘‘screwed up again’’ and he was
having a problem scheduling a month in advance.
Bethaney Galloway’s May availability sheet, the bottom
half of General Counsel’s Exhibit 19, shows that she was
available for evening cruises May 1–6, 8–12, and 16–18.33
Also she was available during the day on Sunday May 1 and
8. She was unavailable for (1) the third Sunday in the month,
(2) all Saturdays in the month, and (3) the remainder of the
month because she was on her honeymoon. Additionally,
Galloway gave Wancowicz a note, Respondent’s Exhibit 10,
on which she indicated ‘‘I can’t . . . work from Thursday
May 19th–June 9th. Do not schedule me any Wednesday
nights or any days M–F also I can’t work til 5:00 on Satur-
days.’’ According to Galloway’s testimony, the last sentence
in the note quoted above referred to her availability in June.
Galloway testified that Respondent scheduled her for four
cruises in May but she was not available for one that was
scheduled during her honeymoon. Galloway also testified
that as far as tips are concerned evening cruises are better
than day cruises and that weekend evening cruises are gen-
erally the best; that, as indicated on General Counsel’s Ex-
hibit 19, she was available for, among others, evening cruises
on May 2, 3, 4, 6, 8, and 11 but she was not scheduled for
any of these cruises; that the wait staff was made up of all
new hires on the May 2–4, 6, and 8 cruises described above;
and that similarly in April she was available for specified
evening cruises but she was not scheduled for these cruises,
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 Initially she testified that in May 1993 she was available for 45
of a possible (if there was a cruise for every slot) 62 cruises or in
other words, about 73 percent of the time. Subsequently she testified
that she was out of school by May 14, 1993. Her May 1994 avail-
ability, G.C. Exh. 20, which is the permanent availability sheet she
submitted in April, shows a 38-percent availability for May 1994.
By note dated April 26, Monica Gudaitis advised Wancowicz that
she needed May 1 and 7 off. As demonstrated by R. Exh. 12, on
May 9 Gudaitis ‘‘went home.’’ She testified that the boat was
overstaffed so she and another waitress went home; and that this oc-
curred when fewer people than anticipated showed up. R. Exh. 14
is a note from Monica Gudaitis to ‘‘John’’ indicating ‘‘Tuesday
through Friday nights [.] If needed for lunch [,] I can be there at
11:30 AM [.] Saturday—lunch & dinner available [.] Sunday either
lunch or dinner not both unless you have no one else. Mondays
off.’’ Gudaitis could not recall when she submitted this note. Also
while she did not draft one of the three notes included in R. Exh.
13, namely, ‘‘Mon–Fri no morning [,] no on Monday night [,] Tue–
Fri yes evening [,] Sat Double [,] Sun—Lunch or Dinner but not
Both [.] Monica G.’’ she believed that she telephoned this informa-
tion in in the beginning of September or the end of August 1994
after she had started school. Gudaitis did not write nor did she recall
the circumstances of the two other notes on the exhibit, namely,
‘‘Thur night Sat morning.’’ and ‘‘Monica No Mon [,] Tue [,]
Wed[.]’’ She believed that the latter referred to September 1994.
Gudaitis conceded that she let management know that she did not
like to work wedding cruises but she did not believe that she told
management that she did not want to work ‘‘kids’’ cruises. Bona tes-
tified that employees working kids’ cruises received minimum wage,
they received $2.12 an hour and a pre-tip for lunch cruises, $2.12
an hour plus pre-tip and cash tips for dinner cruises, and minimum
wage plus shift pay for weddings; and that some employees have ex-
pressed a preference not to work weddings or kids’ cruises. Tomaino
testified that Monica Gudaitis indicated that she disliked weddings,
kids days, and proms; that Milowicki, who is a professional singer,
did not like working kids days; and that Galloway, who is a very
good entertainer, asked not to be scheduled for kids days or wed-
dings.
35 She estimated that it occurred with her a total of five times in
5 years.
which were manned in part by new hires on the wait staff.
Galloway also testified that she did not believe that it was
possible that Respondent mistakenly listed her as unavailable
on the schedule for the Wednesdays of May 4 and 11 be-
cause of her above-described note that states, in part, ‘‘[d]o
not schedule me any Wednesday nights’’; and that she told
Wancowicz to schedule her on as many cruises as possible
so she would have money to go away for her honeymoon.
Tricario testified that she heard Galloway express a pref-
erence to work on the deck where a dinner was being served
instead of a deck where a prom was being held because of
the chance for gratuities on the former.
Monica Gudaitis thought that she first saw her May sched-
ule in the first week of May. According to her testimony,
since she did not have a cruise scheduled that week, she did
not focus on the schedule until the next week. She testified
that every other prior year she worked 15 to 22 cruises in
the month of May;34 that for May 1994 she was scheduled
for 10 cruises and she was not available for 7 of them; that
while she had experienced scheduling mishaps before, it
never reached 7 out of 10 cruises in 1 month;35 that she only
had 3 cruises in May; that when she telephoned Bona to
complain about this Bona said, ‘‘Well, I assume that you
won’t be in for the rest of the month’’; and that the next day
she sent the following letter, General Counsel’ Exhibit 24, to
Respondent:
May 12, 1994
Attention: Harbor Cruises,
I’am [sic] just writing this letter to inform Harbor
Cruises that due to my schedule or lack of . . . I have
been forced to find employment elsewhere. In five
years of being employed with Harbor Cruises, schedul-
ing and availability has never been a problem before.
In April, as requested, I gave a permanent availability.
My availability states that I can’t work Tuesday’s
Thursday’s or Saturday and Sunday mornings. As a re-
sult, I have been scheduled for ten shifts for the month
of May, in which, seven shifts I’am [sic] not available.
On top of all that, in the past years of employment at
Harbor Cruises I have never had less than 18 to 22
cruises for the months’ of April and May. Con-
sequently, I can’t financially survive on this amount of
work. Therefore, I have found a new job. This letter is
to inform Harbor Cruises that I’am [sic] not quitting
my job; however; my availability has changed to Satur-
day and Sunday day times (DAVID TOURS ONLY.)
Also, I’am [sic] available Monday thought [sic] Friday
evening.
In conclusion, I have been informed by Kitty Boma
[sic] that I have been a model employee for the past
five years. Therefore, this only leads me to believe that
Harbor Cruises wants to get rid of me as a direct result
of UNION ACTIVITY. After the election, I was lead
to believe Kitty wanted me to remain as an employee
on a positive note. Obviously, your standards and ethics
aren’t what you portray or you are oblivious to the
problems at hand.
Subsequently, Monica Gudaitis contacted the Union to have
an unfair labor practice charge filed. The charge, General
Counsel’s Exhibit 1(c), was filed on May 19. Bona testified
that Wancowicz scheduled other employees to work cruises
in May when they were not available and the May schedule
was a ‘‘mess’’; that May was the first busy month that
Wancowicz scheduled by himself; that after she spoke to him
in May about the fact that the schedule did not reflect who
was coming in, Wancowicz made fewer mistakes because he
commenced using a computer program and a 2-week sched-
ule; and that she received the above-described letter from
Monica before she had her May telephone conversation with
Monica and, therefore, there was not anything that she could
give Monica because she had already indicated in the letter
that she could not work anything other than David Tours on
the weekend. Wancowicz testified that Bona spoke to him
about the way he was doing the schedule in that it was not
clear to her, in looking at the schedule, who was going to
show up for a cruise; that Monica Gudaitis did not speak to
him before writing the above-described letter to Bona; that
he did not review the schedule to see if there had been a
mistake concerning her scheduling and her availability; that
he would have looked at her April availability, General
Counsel’s Exhibit 20, to work up her May schedule but said
availability does not match with the schedule; that he could
not explain why; that he also scheduled Diana Smith in May
835HARBOR CRUISES, LTD.
36 Wancowicz testified that he could not explain why he scheduled
Smith at times she indicated on her application, R. Exh. 31, that she
was not available; that according to her note to him dated ‘‘4-29-
94,’’ C.P. Exh. 6, she was available to work except on Monday
through Friday from 7 a.m. to 3 p.m.; and that in light of this note,
the indications on R. Exh. 33(e) that she was unavailable for certain
May cruises are incorrect. Wancowicz pointed out that when he pre-
pared the May schedule he did not yet have the above-described
note.
37 R. Exh. 33(b) includes unavailability based on an expressed
preference. R. Exh. 33(c) covers the availability and scheduling re-
garding employee Andre Gwynn.
38 R. Exh. 12 shows that Galloway also ‘‘went home.’’
39 He estimated that in 1993 he averaged 12 dinner cruises a
month in July, August, and September.
40 Additionally Roberts testified that she did not like Wancowicz’
attitude; the way he treated her when she did work. More specifi-
cally, Roberts testified that Wancowicz was rude and nasty to the
people who were working at Respondent; and that although he knew
that she was a hard worker, he would single her out to do things.
41 Apparently Tomaino changed this in 1993 and she allowed the
employees to switch their schedules with other employees. Tomaino
testified that in 1992 she gave each employee their individual 1-
week schedule; and that she discontinued this practice and went to
a 1-month schedule.
when she was not available;36 that he begins the scheduling
process with the employees who have indicated 100-percent
availability but he does not give them all of the cruises; that
he tries to honor preferences that employees have expressed;
that employees have complained that they are not getting
enough cruises; that Respondent’s Exhibit 33(b) and (e), re-
spectively, show which May cruises Monica Gudaitis and
Smith were available for and which cruises they were sched-
uled for;37 and that Monica Gudaitis asked him if she could
go home after showing up for the May 9 cruise.38 On rebut-
tal Monica Gudaitis testified that she had the same availabil-
ity since February and Respondent did not have any problem
with not scheduling her Tuesdays and Thursdays until she
was scheduled every Tuesday and Thursday in May.
Roberts testified that on May 9 there were not enough pas-
sengers for all of the wait staff that was scheduled and Gal-
loway and Monica Gudaitis went home.
Sometime in late May or early June, according to the testi-
mony of Roberts, Tomaino told her that Wancowicz was
ranting and raving because Roberts was not working the
shifts that he was giving her and Tomaino told Wancowicz,
‘‘John schedule her doubles on Saturdays. That’s when she
could work. She has problems with child care if you sched-
ule her during the week.’’
According to her testimony, Galloway came back from her
honeymoon the second week of June and while she was
available for 21 shifts in June beginning with June 10, she
worked only about 7 cruises. She was available during the
day Sunday, and every evening except Wednesday. As
shown by Joint Exhibit 2 Galloway was scheduled on a
cruise on June 10, two on June 11, one on June 12, one on
June 13, one on June 17, one on June 18, one on June 19,
one on June 21, and one on June 24. Also she was scheduled
for cruises on June 20, 26, and 27, but these are circled and
Galloway was not sure if this meant that she was originally
scheduled for the cruise but for some reason someone else
took the cruise. Galloway testified that on several occasions
in June Wancowicz telephoned her and told her that she was
being canceled from the cruise because they did not need her
to work.
Milowicki testified that since June 1994 the number of
cruises he received was at least 50 percent off his previous
years.39 On cross-examination Milowicki testified that he
may have been scheduled for 13 cruises in June. He also es-
timated when he testified herein that while in 1993 he earned
a gross of about $6000 working for Respondent, in 1994 he
would only gross about $3000.
Monica Gudaitis testified that her June scheduling was not
too bad; and that, after having the above-described Board
charge filed, she received ‘‘a few decent schedules compared
to what . . . [she believed] everybody got.’’
On June 20 Roberts started working at Kiddie Academy
International. Her hours are from 8:30 a.m. to 6 p.m., Mon-
day through Friday. She interviewed for the job the week be-
fore. Roberts testified that after she pays for day care, her
weekly net pay on that job equals what she could almost
earn in 1 day working for Respondent.
General Counsel’s Exhibit 40, which is a payroll status
change form of Respondent with the date ‘‘6/24/94’’ on it,
indicates that Roberts was discharged and that Wancowicz,
who signed the form, included on it ‘‘would not rehire.’’
Earlier Wancowicz testified that he could not remember if he
had discharged Roberts. Subsequently, he testified that he
had problems with her attendance before he prepared her dis-
charge. Although documents introduced herein indicate that
Roberts did not go on some of her scheduled cruises in June,
Wancowicz did not know whether her absences were ex-
cused. Regarding Saturday shifts in June, Roberts was sched-
uled for a double shift on June 4, a double shift on June 11,
a single shift on June 18, and a single shift on June 25. Rob-
erts testified that the June 11 double shifts were canceled;
that she was sick on June 18 and did not take the shift; that
she asked Wancowicz if she could work the evening shift on
June 25 so she could have a double shift, indicating that he
had all the new people scheduled on doubles; and that she
probably did not work the June 25 shift because after paying
for parking and gas it was not worth it to go in and work
a single shift.
An employee meeting was held on June 25. The General
Counsel introduced two lists of employees and an agenda for
the meeting, General Counsel’s Exhibit 35. Wancowicz testi-
fied that he did not recall any employee being disciplined for
failing to attend this meeting.
After June Roberts did not work for Respondent. She testi-
fied that she was not scheduled anymore; that Respondent
was mailing the schedules and she no longer received one;
and that she worked double shifts on Saturdays for the entire
1993 season. Roberts also testified that she did not contact
Respondent when she did not receive a schedule because she
‘‘got tired of fighting about it.’’40
In July employees began to receive schedules which only
showed their own schedule and not the schedule for all of
the wait staff. Milowicki and Strader pointed out that this
precluded them from determining whether anyone else was
receiving preferential treatment. Strader also pointed out that
this approach made it difficult to determine whether someone
else might be able to work for him. Bona testified that before
1993 employees received just their individual schedules.41
Wancowicz testified that he began using the printout format
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 See, for example, R. Exh. 36. He put two sheets covering 2
weeks with the paychecks. Assertedly the entire schedule was not
given to the employees ‘‘[b]ecause it would be mass confusion, they
wouldn’t understand it.’’ Subsequently, he testified that it was not
his belief that it would cause mass confusion; and that one employee
Sherry Phillips was totally confused about the one part of the print-
out that she received.
43 She began working for that company in April 1994 and at the
time she worked Monday through Friday, 9 a.m. to 5 p.m.
44 That company’s evening hours cease at the end of October.
45 Citing R. Exh. 35, Wancowicz pointed out that Smith, who was
available 100 percent, received 12 shifts in July while Monica
Gudaitis received 17; that employee Melanie Rose, who was unavail-
able for about the same number of shifts as Gudaitis, received 12
cruises versus 17 for Gudaitis in July; and that employee Marie
Davis, who was available 100 percent of the time, had 13 cruises.
46 G.C. Exh. 37. The exhibit contains nine warnings and a July 18
letter that reads as follows:
Dear Sarah,
I would like to take this opportunity to wish you luck in your
new job. Due to your limited availability now, and conflict in
work hours, I am taking you off of my schedule. The last two
shifts you were scheduled, no one showed and management was
not aware.
Thank You,
John Wancowicz
Vessel Manager
Wancowicz testified that one of the warnings was for not attending
the March 30 mandatory meeting; that another of the warnings was
for not showing up for her scheduled shift on April 2, which is the
same day Michael Gudaitis did not show up, and at this point in
time she had five writeups; and that he treated her differently than
Michael Gudaitis because she ‘‘fought for her job’’ and he did not.
Also, Wancowicz pointed out that he took into consideration the fact
that Derrenberger had two children and her ex-husband did not sup-
port them.
47 For example, in August Rose was unavailable for 24 cruises
versus 23 for Gudaitis, and Rose received 14 cruises while Gudaitis
received 11 cruises. Davis, who was available 100 percent of the
time on August received 13 cruises in August.
48 In her ‘‘7/29/94’’ note to Wancowicz, the top half of G.C. Exh.
19, Galloway, after indicating that she could only work Tuesdays,
Thursdays, and Fridays, writes ‘‘[b]efore I took my leave my sched-
uling wasn’t alway[s] consistent so I had to take extra hours at my
day job which will start Aug. 1st.’’ Galloway testified that ‘‘which
will start Aug. 1st’’ refers to Tuesdays, Thursdays, and Fridays since
she added the extra hours to her day job starting July 1.
49 Galloway estimated that in 1993 she had an average of 3 cruises
a week in April, 4 or more a week in May, 6 a week in June, and
8–10 a week during the peak season which Galloway indicated is
June, July, and August. Jt. Exh. 1 shows that she was scheduled for
a total of 10 cruises from May 10, 1993, to the end of that month,
11 in all of June 1993, and 13 for the entire month of July 1993.
Galloway pointed out that the Exhibit indicates that ‘‘this may in-
crease’’ and, therefore, there may have been cruises added and she
may have worked on these added cruises. With regard to her avail-
ability in 1993, Galloway testified that she may have been available
from May 19 to June 9; that she was available for the month of July;
and that she was available a lot more than just Tuesday, Thursday,
and Friday evenings in August.
50 This same letter, dated August 5, R. Exh. 8, was sent to
Graham, except that the second paragraph in the body of his letter
reads as follows:
When you failed to report for your scheduled shifts the week
of March 28, 1994, and we had no contact from you (despite
our efforts to contact you), I assumed you no longer had any
interest in employment with Harbor Cruises and, as a con-
sequence, you were no longer carried on the schedule.
Graham worked three cruises in October but when he went to
work for another company, McCann-Erickson, his availability to
work for Respondent after October became zero.
for scheduling in July after he was shown a computer pro-
gram that met his needs.42 Milowicki was off on July 4 in
1994 but not in 1993.
According to Galloway’s testimony, in July she asked for
a leave of absence for the entire month because she hurt her
shoulder. During this period she continued to work during
the day for Galloway Pool Service, a family business, doing
bookkeeping and billing.43 Also she started working Monday
and Saturday evenings for that company beginning the first
week in July.44
In July, according to her testimony, Monica Gudaitis had
two or three cruises a week, which she described as ‘‘pretty
decent cruises.’’ Respondent’s Exhibit 35 was offered to
show the number of cruises in July and August and the num-
ber of times Monica Gudaitis was unavailable. According to
Wancowicz, Monica Gudaitis was not available for Monday
through Friday day cruises in July and August.45
Strader testified that in mid- or late July he became con-
cerned about not being scheduled. He spoke to Bona and
Tomaino about this. Also Strader testified that he obtained
a job with Respondent for one of his friend’s, James John-
son; that he trained Johnson; and that although he was mak-
ing $1.50 more an a hour than Johnson, Johnson was earning
more money at Respondent than he was. On cross-examina-
tion Strader conceded that Johnson, who was hired after the
third month in 1994, was able to work days while he was
not.
On July 22 Derrenberger, according to a payroll status
change,46 was ‘‘taken off schedule would not put back on
schedule.’’ Wancowicz testified that this did not mean that
she was terminated.
Monica Gudaitis testified that in July and August she
worked some Saturday mornings after she mentioned to
Bona that although Gudaitis was available Wancowicz was
not scheduling her. Gudaitis also testified that like July in
August she received pretty decent cruises. As noted above,
Respondent’s Exhibit 35 was offered to show the number of
cruises in July and August, and the number of times Monica
Gudaitis was unavailable. As noted above, it is also used for
the purpose of comparing the number of cruises Gudaitis re-
ceived vis-a-vis other employees in terms of their unavail-
ability.47
In August, according to her testimony, Galloway was only
available on the evenings of Tuesday, Thursday, and Friday
and she was not scheduled for any cruises.48 At the time of
the hearing this continued to be Galloway’s availability. She
estimated that whereas she earned about $3000 at Respond-
ent in 1993,49 she was only going to earn about $1000 in
1994.
By letter dated August 5, General Counsel’s Exhibit 8,
Bona advised Kimberly Suerth,50 who is Monica Gudaitis’
sister, as follows:
Dear Kim,
I am writing to confirm whether you have any inter-
est in employment with Harbor Cruises.
837HARBOR CRUISES, LTD.
When you failed to report for Harbor Cruises manda-
tory pre-season staff meeting on March 30, [19]94 and
we had no contact from you (despite our efforts to con-
tact you), I assumed you no longer had any interest in
employment with Harbor Cruises and, as a con-
sequence, you were no longer carried on the schedule.
If you are interested in returning to work, please
contact me. I am making this an unconditional offer to
you. If you choose to return, your rate of pay will be
the same as when you last worked, in addition, you will
be scheduled for work on the same basis as every other
employee in your department. We will also need an
availability from you so we can match it against our
cruise schedule.
I would appreciate hearing from you within seven
(7) days of your receit [sic] of this letter if you are in-
terested in returning or have any other questions con-
cerning this matter. If we do not hear from you, we will
assume you have no interest in returning to Harbor
Cruises at this time.
Bona testified that Suerth was a cheerleader for a profes-
sional football team, she traveled, and she would go for
months without working for Respondent; and that the reason
that she wrote to Suerth (and Graham) was because the
Board included her (and him) in its letter indicating which
employees had been terminated. Tomaino testified that in
November 1993 Suerth told her that she was going out of
town and that she would get in touch with Tomaino when
she returned so that she could be put back on the schedule;
that she told Suerth to call her when she came back to town;
and that she never heard from Suerth. Wancowicz testified
that he did not schedule Suerth for April; that he did not re-
ceive an April availability sheet for her; that he did not ter-
minate Suerth; that he was told in March by her sister,
Monica Gudaitis, that Suerth, who is a model, was on a
‘‘shoot’’ in Japan for a couple of weeks and when she came
back, she had other things to do; and that Suerth never con-
tacted him to say that she wanted to be placed on the sched-
ule or ask him why she was not on the schedule. On rebuttal
Monica Gudaitis testified that she did not have a conversa-
tion with Wancowicz in the spring of 1994 regarding Suerth;
that she did not advise him that Suerth was going to Japan;
that Suerth did go to Thailand in October; that she did have
a conversation with him about that; and that she was sure
that in April she did not discuss Suerth with him.
Milowicki testified that he always takes off his birthday,
August 10; and that notwithstanding the fact that he had indi-
cated that he is not available on his birthday he has been
scheduled in the past and has had to find someone to work
his shift. Also he was on vacation from August 29 until Sep-
tember 9 or 10. Wancowicz sponsored Respondent’s Exhibit
38, which is a copy of four notes regarding Milowicki’s
availability. Two of the notes speak to availability in August
and July.
In September Monica Gudaitis returned to school. She ad-
vised Wancowicz that she was available on Friday evening
and Saturday evening.
On September 13 Suerth forwarded the following letter,
General Counsel’s Exhibit 8, to Bona:
Dear Kitty:
I received your letter concerning my employment
with Harbor Cruises.
I was never notified about the mandatory meeting, as
you implied and I did give my availability to Monica
to turn in with hers and I was not put on the schedule.
Also, I was never notified, that I was no longer em-
ployed by Harbor Cruises. I was told, when I called, by
another employee that my name had been taken off the
schedule.
I appreciate your unconditional offer, but, I will need
to talk to you about future availability.
According to Strader’s testimony, Wancowicz said in No-
vember that he was sent to Respondent to get rid of the old
blood. Wancowicz testified that he told Strader that
Wancowicz wanted ‘‘to get rid of the dead wood that’s on
here, I want people on here who want to work, who don’t
just want to come in and get a paycheck and goof off.’’
Analysis
Paragraphs 5(a), (b), and (e) of the complaint, as amended,
allege as follows:
5. Respondent, by Kitty Bona:
(a) On or about February 22, 1994, at a restaurant
on Belair Road in the Fullerton area of Baltimore
County, Maryland, coerced employees by telling them
that, even if the Union won an impending Board elec-
tion, the Respondent did not have to sign a contract,
that the Union would put employees on strike, causing
them to be replaced, and that Respondent’s owner
would go to any lengths to frustrate the Union’s at-
tempt to win employee support and/or thereafter to bar-
gain on their behalf.
(b) By the remarks above in subparagraph (a), also
stressed the futility of employees attempting to bargain
collectively through the Union.
. . . .
(e) On a number of occasions, the exact dates and
locations being unknown to the undersigned, informed
employees that if they selected the Union, the Respond-
ent would only be able to communicate with employees
through a steward, thereby indicating that employees
would not be permitted to approach the Respondent di-
rectly, but rather would have to come to the Respond-
ent through the Union.
Counsel for General Counsel contends, on brief, that the
credibility of Bona is completely undermined by that portion
of her testimony concerning the February 24 meeting which
testimony was given before the tape recording of the meeting
was introduced in this proceeding; that Bona’s February 22
meeting with Monica Gudaitis and Pie appears to have been
a practice run for Bona’s address to unit employees a few
days later; that Bona painted an overall picture of futility;
that the effect of Bona’s numerous unlawful remarks, topped
with the veiled threat of unspecified retaliation for Gudaitis’
union activity would likely erode the confidence of the most
adamant union supporter; that by repeating many of the same
coercive statements on February 24, Bona reinforced for
Monica Gudaitis and Pie what was said at their private meet-
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 As Bona conceded numerous times during her February 24
statement, those who were in the office did not in the past listen to
complaints from employees about the way things were being done.
They might have listened to Jelenko tell them about her personal
problems but listening to employee complaints about the involved
operation was quite something else. When one employee attempted
to complain about tips he was disciplined assertedly for the manner
in which he presented his complaint. When Galloway, who was act-
ing as a spokesperson for employees in November 1993 at the be-
hest of Respondent, attempted to convey some concerns of the em-
ployees, she was told by Supervisor Tomaino that Bona wanted to
fire her over the matter. Galloway was, however, able to convince
Tomaino that none of the complaints that the employees signed off
on even applied to her, Galloway. At the time he testified herein
Strader believed that his title was still bar manager, a title he was
given by Bona in the summer of 1993, notwithstanding the fact that
he was eligible to vote in the election. As noted in R. Exh. 15,
Strader met with Bona as ‘‘bar manager.’’ Monica Gudaitis’ testi-
mony that Bona did not make any changes recommended by the
grievance committee Respondent established was not refuted. Since
there was no real open-door policy, Bona was not telling the em-
ployees about a change in such policy. Rather she was threatening
to deprive them of their right under Sec. 9(a) of the Act. FGI Fibers,
280 NLRB 473 (1986), does not apply to the situation at hand.
ing; and that under the totality of these circumstances, it
must be found that Bona’s conduct on February 22 would
tend to coerce employees in the exercise of their Section 7
rights and violated Section 8(a)(1) of the Act as alleged in
paragraphs 5(a), (b), and (e) of the complaint, as amended.
Respondent, on brief, argues that the Company did not initi-
ate this meeting; that what was said at this meeting is in dis-
pute; that General Counsel failed to establish exactly what
Bona said; that the Company distributes literature to its em-
ployees which accurately set forth the parties’ respective
rights and obligations; and that there is no evidence that
Bona’s remarks were disseminated by Gudaitis. Bona did not
contradict Monica Gudaitis’ testimony about what was said
at this meeting. For the reasons stated below, I did not find
Bona to be a credible witness. None of her challenged testi-
mony, except that which is corroborated by a credible wit-
ness, will be credited. On the other hand, I found Monica
Gudaitis to be a credible witness. She may have been mis-
taken at times but, unlike Bona, I do not believe that she
ever intentionally attempted to deceive. Monica Gudaitis’
uncontradicted testimony about what was said by Bona at
this meeting is credited. Although Pie initiated this meeting,
Bona set the tone of the meeting. The tone was not inform-
ative. It was not a discussion of the possibilities. Rather, it
was coercive. Bona did not deny that during this meeting she
told the two employees present that the owner of the Com-
pany, Stappler, when he found out that Bona was going to
this meeting said that Monica Gudaitis was heading up the
union activity; and that Monica Gudaitis’ job was salvage-
able but Stappler plays hardball and he will do whatever he
has to do. Albeit Bona said that the Union ‘‘could’’ (she did
not say ‘‘would’’ but considering the fact that it would not
be the prerogative of the Respondent it is understandable
why she did not use the latter term) put the employees out
on strike, this statement followed her assertion that the Com-
pany could tear up proposed agreements. In other words, it
was Bona’s position that the Union would have no alter-
native. Bona was not just discussing the possibilities. Bona
was telling these two employees that Respondent would be
in control of the situation, it would frustrate the negotiating
process and the only thing the Union could do about it would
be to take the employees out on strike, which could have
dire consequences for the employees. Bona stressed the futil-
ity of employees attempting to bargain collectively through
the Union. Because Respondent did not truly have an open-
door policy before the organizing campaign, Bona’s state-
ment that with a shop steward the employees would not be
able to communicate with the office people anymore also
was unlawful.51 Bona’s February 22 remarks were unlawful
and they violated the Act as alleged in the amended com-
plaint, as set forth above.
Paragraphs 5(c)(1) through (5) and paragraphs 6 and 7 of
the amended complaint allege as follows:
5. Respondent by Kitty Bona:
. . . .
(c) At a captive-audience meeting of Respondent’s
employees convened by Kitty Bona, on or about Feb-
ruary 24, 1994, aboard Respondent’s vessel stated to
the assembled employees:
(1) That the granting of health and vacation bene-
fits through collective bargaining would put the Re-
spondent out of business.
(2) That, if employees were represented by the
Union, the Employer could bargain up to a year
without reaching agreement and so oblige the Union
to call a strike, during which employees could be
lawfully replaced and be reinstated only if and as
openings occurred, and thereby Respondent stressed
the futility of employees attempting to bargain col-
lectively through the Union.
(3) That, if employees chose to be represented by
the Union, the Union would constitute a mediator be-
tween employees and the Respondent, thereby imply-
ing that employees would not be permitted to ap-
proach the Respondent directly but rather would
have to come to the Employer only through the
Union.
(4) That the Respondent knew of employees who
had attended meetings conducted by the Union, and
thereby Respondent threatened and coerced its em-
ployees by suggesting that their concerted protected
activities were subject to surveillance by the Re-
spondent.
(5) That the Respondent would grant unspecified
improvements in wages, hours, and/or working con-
ditions, impliedly on condition that employees would
withhold their support from the Union in the upcom-
ing Board election.
. . . .
6. Respondent, by Theresa Tomaino at the captive-
audience meeting referred to in paragraph 5(c) above,
impliedly promised unspecified improvements in wages,
hours, and/or working conditions if employees would
withhold support from the Union in the upcoming
Board election.
7. Respondent, by Martis Read at the captive audi-
ence meeting referred to in paragraph 5(c) above,
impliedly promised unspecified improvements in wages,
hours, and/or working conditions if employees would
839HARBOR CRUISES, LTD.
52 Recordings, such as the one involved herein are admissible.
Wellstream Corp., 313 NLRB 698 (1994).
withhold support from the Union in the upcoming
Board election.
On brief, counsel for the General Counsel contends that the
remarks of Respondent’s officials on February 24 over-
stepped the bounds of statutory protection and constitute vio-
lations of the Act; that Bona’s remarks contrasting Respond-
ent to General Motors and Bethlehem Steel and indicating
that health benefits and vacations were the kind of thing
would put ‘‘this business right out of business’’ were not
phrased as to what might happen but rather it was a state-
ment of what would happen, it was not linked to any specific
objective financial data, the context in which it was made
gave it a coercive resonance conveying to employees the fu-
tility of unionization and, therefore, the remarks violated the
Act as alleged in paragraph 5(c)(1) of the amended com-
plaint, Matheson Fast Freight, Inc., 297 NLRB 63 (1989);
that the remarks of Bona and Tomaino gave no objective
basis for asserting that there would be a strike after bargain-
ing went on for a year without progress and the implication
of Respondent’s remarks, when considered in their entirety,
is that Respondent (1) would reject any and all union propos-
als regardless of their character, and (2) intended not to bar-
gain in good faith, making a strike inevitable, and, therefore,
Respondent violated the Act as alleged in paragraph 5(c)(2)
of the amended complaint in that it unlawfully stressed the
futility of employees attempting to bargain collectively
through the Union, Forrest City Grocery Co., 306 NLRB
723 (1992); and Evans Brothers Barber & Beauty Salons,
256 NLRB 121 (1981); that Bona’s misstatement of the law
that employees would have to go through a shop steward to
speak to her gave the employees the false impression that
union representation would deprive them of the important
right to communicate directly with their employer, would
tend to dissuade employees from supporting the Union and,
therefore, violates the Act an alleged in paragraph 5(c)(3) of
the amended complaint; that by informing employees that
she knew that some of them went to union meetings, Bona
created the impression of surveillance of employees’ union
activity and thereby, especially in the context in which the
remarks were made here, violated the Act as alleged in para-
graph 5(c)(4) of the amended complaint, Honeycomb Plastics
Corp., 288 NLRB 413 (1988); that a prominent theme of Re-
spondent’s presentation was its willingness to truly listen to
employee complaints and work with employees to remedy
their grievances without the addition of a union; that when
Bona said, ‘‘[O]ne way or the other with or without we are
going to all have to get together and meet on some terms
with or without a union . . . . [and] I’m hoping its going
to be without’’ Respondent violated the Act as alleged in
paragraph 5(c)(5) of the amended complaint; that when
Tomaino said, ‘‘We are working on new policies, we are
working on putting everything together for this year just like
we did last year at the beginning of the year we introduced
the new tip policy and you know you all say that we don’t
listen to you but we do listen.’’ Respondent violated the Act
as alleged in paragraph 6 of the amended complaint; and that
when Galley Supervisor Redd indicated that in the galley de-
partment he was working to make ‘‘everyone feel needed or
wanted within the job family,’’ that he was talking, appar-
ently with Bona, about conditions in the galley department,
and that employees could talk to him and he would ‘‘listen
to them,’’ Respondent violated the Act as alleged in para-
graph 7 of the amended complaint. Respondent, on brief, ar-
gues that Bona’s remarks regarding health and vacation bene-
fits putting the Company out of business were no more that
an expression of what the Company’s bargaining position
would be on a particular contract demand; that Bona merely
informed the employees that the Company had a legal right
to reject any proposal that it did not agree with, and she em-
phasized that the Union had the same right; that it was clear-
ly stated that a strike was the employees’ option; that there
was no threat of a lockout; that any coercive effect that may
otherwise be ascribed to the Company’s statements regarding
the collective-bargaining process was negated by the fact that
there was an opportunity for employees to reply and for em-
ployees to make an independent evaluation; that during the
campaign the employees were provided by the Company
with written communication describing the collective-bar-
gaining process and the rights of the respective parties in that
process; that in FGI Fibers, 280 NLRB 473 (1986), the
Board held that an employer’s statement that employees
would be required to deal with the employer through shop
stewards in the event the union won the election was not ob-
jectionable conduct; that with respect to Bona’s comment
that she was aware the some employees supported the Union,
there was no suggestion that this knowledge was obtained
through surveillance; that the Company has for years main-
tained an ‘‘open door’’ policy, and the Board has long held
that where an employer has an established practice of solicit-
ing and resolving employee grievances the employer may
continue that activity during organizing activity; that for a
violation of the Act there must be a promise of a particular
change; that the Company indicated that the implementation
of its unspecified plans was going to occur with or without
the Union; and that Bona’s statements regarding upcoming
changes for the 1994 season was consistent with the Compa-
ny’s established practice of announcing policy changes and
revisions in a group meeting at the outset of each new sea-
son.
At the outset of the hearing counsel for the General Coun-
sel called Bona, Tomaino, and Wancowicz and had them tes-
tify about what occurred at the February 24 meeting. Either
these witnesses did not know that a tape recording was made
of what was said at this meeting or they were mistakenly
under the impression that such tape was not admissible.52 All
three of these witnesses testified that Bona read from a
script, deviating only to answer the questions the employees
asked. The tape recording demonstrates that this was not the
case. Counsel for the General Counsel succeeded in under-
mining the credibility of all three of these witnesses at the
outset of the hearing.
As there is a tape recording of the February 24 meeting
it is not necessary to rely on testimony regarding what was
said. In my opinion, for the reasons given by counsel for the
General Counsel on brief, as set forth above, Respondent
violated the Act as alleged in paragraphs 5(c)(1) through (5)
and 6 and 7. Bona did not say that Respondent ‘‘could’’ go
out of business over health and vacation benefits. Bona said
that Respondent ‘‘would’’ go out of business. No specific fi-
nancial data was provided to the employees.
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
53 251 NLRB 1083 (1980).
The implication of Bona’s remarks about bargaining and
a strike was that Respondent would not bargain in good faith
and that the only option that the Union would have would
be to go out on a strike. Bona was telling the employees that
it would be futile for them to select the Union.
As noted above, Respondent never really had an open-door
policy. Therefore, Bona’s remarks about when there is a shop
steward management and the employees can no longer talk
to each other is a violation of the Act. Bona was not telling
the employees of a change. Rather she was telling them that
if the Union won the employees’ right under Section 9(a) of
the Act would be denied.
On brief, as noted above, Respondent argues that when
Bona said that she was aware that some employees supported
the Union she did not suggest that this knowledge was ob-
tained through surveillance. The problem with this argument
lies in the fact that Bona did not say that she was aware that
some employees supported the Union. Obviously because a
petition had already been filed, some employees did support
the Union. And that conclusion could have been reached
without suggesting surveillance. What Bona said, however,
was ‘‘I know there are several people who have gone to
union meetings, that have attended things, and that’s your
priority.’’ This is quite a different statement. Although Bona
may have been referring to what she was told by Monica
Gudaitis on February 22, Bona did not qualify her statement
to indicate that this was the case. Respondent did not show
that the employees who were listening to Bona on February
24 understood where Bona obtained the information. As
Bona’s statement suggests surveillance it violated the Act.
Respondent did not have an established practice of con-
ducting meetings such as the one it conducted on February
24. Monica Gudaitis’ testimony that this was the first time
that Respondent had given her a meal was not refuted. This
was not the normal beginning of the season meeting. Em-
ployees were intentionally left by management with the im-
pression that their terms and conditions of employment
would improve and that this should occur without the pres-
ence of the Union. Respondent violated the Act as alleged
in paragraphs 5(c)(5) and 6 and 7 of the amended complaint.
Paragraphs 5(d)(1), (2), and (3) of the amended complaint
allege as follows:
5. Respondent by Kitty Bona
. . . .
(d) At a meeting in her office at the Respondent’s
facility, on a Sunday before the election in Case 5–RC–
13990, the exact date being unknown to the under-
signed, conveyed to employees:
(1) An implied threat of job loss if the employees
selected the Union;
(2) That, if employees selected the Union, the Re-
spondent would go out of business;
(3) That, if employees selected the Union, the Re-
spondent did not have to sign a contract, thereby
conveying the futility of employees attempting to
bargain collectively through the Union.
The General Counsel, on brief, contends that by repeating
the same unlawful statements made on February 24 in her
meeting with Jelenko, Bona again coerced an employee in
the exercise of Section 7 rights. On brief, Respondent argues
that in her testimony, Jelenko admitted that Bona’s alleged
statement concerning the effect on the Company of having
to provide paid vacation and insurance benefits was phrased
as a possibility, i.e., that the expenses associated with such
benefits ‘‘could’’ put the Company out of business; and that
Bona is not alleged to have stated that such a result was
‘‘likely’’ or even ‘‘probable.’’ On a Sunday, 6 days before
the election Jelenko was summoned to meet with Bona.
Jelenko was not working that day. Just the two of them were
present in Bona’s office. In my opinion, Respondent violated
the Act as alleged in the amended complaint, except that the
evidence of record shows that on the involved day Bona only
spoke to Jelenko and not to ‘‘employees.’’ Although sub-
paragraph (2) of 5(d) alleges that Bona conveyed ‘‘[t]hat, if
employees selected the Union, the Respondent would go out
of business’’ (emphasis added), Jelenko testified that Bona
said ‘‘could.’’ This alone, however, in my opinion, does not
make the statement lawful. The statement must be viewed in
the context in which it was made and it must be viewed in
light of the fact that again Bona did not refer to any objec-
tive data which would support this assertion or demonstrate
that the situation would be beyond Respondent’s control.
Paragraph 8 of the amended complaint alleges as follows:
8. (a) Respondent, by John Wancowicz in one or
more telephone conversations with employees on or
about April 15, 1994, stated he, Wancowicz, had been
told by Kitty Bona that, with respect to finding work
for an influx of newly hired employees, experienced
employees could be expected to quit if given little
work, adding that this scheduling of employees was the
way Bona wanted it.
(b) By Wancowicz’ remarks stated in subpara-
graph 8(a), above, Respondent coerced and threat-
ened employee to cause them to abandon support for
the Union.
As there is no evidence in this record that supports this alle-
gation, it will be dismissed.
Paragraphs 9 and, as here pertinent, 11 of the amended
complaint allege that the following conduct was unlawful:
9. The Respondent, by John Wancowicz:
(a) On or about April 1, 1994, terminated employee
Michael Gudaitis.
(b) On or about April 1, 1994, eliminated work-as-
signments to its employee Kimberlee Suerth.
(c) On or about April 8, 1994, terminated employee
Walter Graham.
. . . .
11. The Respondent engaged in the conduct de-
scribed above in paragraph 9 and its subparagraphs . . .
because the employees referred to therein joined and as-
sisted the Union and/or because of Respondent’s belief
that they had done so, and in order to discourage em-
ployees from supporting the Union or engaging in other
concerted activities protected by the Act.
The General Counsel, on brief, contends that when the en-
forcement of a disciplinary rule is discretionary with the em-
ployer, it must demonstrate, to meet its Wright Line53 bur-
841HARBOR CRUISES, LTD.
den, that the discipline under the rule was uniformly im-
posed, Associated Milk Producers, Inc., 259 NLRB 1033
(1982); that the record contains numerous incidents establish-
ing that Respondent harbored antiunion animus that contin-
ued after the March 26 union election; that Respondent’s
postelection conduct was timed to rid Respondent’s operation
of union supporters, cast a chilling effect on those who re-
mained, and insure the Union’s defeat in a rerun election;
that the record leaves no doubt that Respondent knew that
Monica Gudaitis and Walt Graham supported the Union and
that the core of the union support came exclusively from the
bartenders and wait staff held over from the 1993 season;
that given Wancowicz’ remark to Strader revealing the dis-
criminatory motive for his actions against the experienced
wait staff, which he referred to as ‘‘old blood,’’ it is unnec-
essary for the General Counsel, in proving a prima facie
case, to prove the employer’s knowledge of a specific em-
ployee’s union sympathies or activities, American
Warehousing & Distributing Services, 311 NLRB 371
(1993); that under Wright Line, supra, the General Counsel
has made a prima facie case and Respondent had failed to
persuade by a preponderance of the evidence that it would
have taken these same actions even in the absence of the em-
ployees’ protected concerted and union activity; that Monica
Gudaitis’ son, Michael, was disciplined for missing the
March 30 meeting even though Wancowicz knew in advance
of the meeting that Michael Gudaitis had a former obligation
that day; that Wancowicz was unable to give any meaningful
explanation for the disparity in his treatment of Michael
Gudaitis and Osikowicz; that Wancowicz did not write up
Graham for missing shifts on April 2 and 4 and Wancowicz
did not give any meaningful explanation for this; that the dis-
ciplinary warnings of March 30 and April 2 were a pretext,
designed to justify Michael Gudaitis’ discharge for discrimi-
natory reasons; that Wancowicz failed to adequately explain
the disparate treatment of Derrenberger who had more warn-
ings that Michael Gudaitis on April 4 and many more there-
after but she was never discharged; that Respondent had
failed to establish by a preponderance of the evidence that
it would have disciplined and discharged Michael Gudaitis
regardless of his union activity or the fact that the leading
union adherent was his mother; that Bona knew that Graham
was a union sympathizer before the election; that Respondent
planned Graham’s discharge well in advance of his April 2
absence; that Respondent failed to notify Graham of the
mandatory March 30 meeting; that when Graham telephoned
Respondent’s facility twice during the week of March 28 he
was told that the April schedule was not available; that when
the schedule for the entire month did come out Graham’s
name was not on it; that Roberts credibly testified that in
April Wancowicz told her that Graham was discharged for
missing a shift; that Respondent failed to present any evi-
dence to refute Graham’s claim that at Carpet Care he was
an independent contractor, and as such he could adjust his
Carpet Care schedule around that of Respondent; and that
Respondent has failed to establish by a preponderance of the
evidence that it would have discharged Graham even absent
his union activity and a long time association with Monica
Gudaitis. Respondent, on brief, argues that the General
Counsel must first establish that the employees in question
engaged in union activity and that the employer had knowl-
edge of the employees’ union activity; that assuming the
General Counsel can make this showing, antiunion animus as
a motivating factor must also be established; that there is no
evidence that the Company was aware of the identities of the
employees who supported the Union, except Monica
Gudaitis; that there is unrebutted testimony that the Company
encouraged Michael Gudaitis, through his mother to talk to
Wancowicz about the matter with the expectation that he
could likely get his job back, as others had before him; that
Suerth had no interest in working for the Company after the
union election, ‘‘as evidenced by her lack of response to the
Company’s letter of August 5, 1994, offering her uncondi-
tional reinstatement’’; that Graham was also taken off the
wait staff schedule due to his apparent disinterest in working
for the Company; that Graham’s name was removed when
the April schedule was revised in mid-April to reflect the
fact that he had failed to report for any of the shifts he had
been scheduled for during the first 2 weeks of the month;
that Graham never telephoned Wancowicz back but rather
chose to rely on what he was told by Monica Gudaitis and
Roberts; that Graham attached no importance to his job at
Respondent because in March he had secured full-time em-
ployment elsewhere; and that Graham knew before the elec-
tion that he might be taking another full-time job after the
election but he remained employed with the Respondent long
enough to vote in March 26 and then he never came back.
Michael Gudaitis should not have received a writeup for
not attending the March 30 meeting. On March 28
Wancowicz asked Monica Gudaitis if her son could attend
the Wednesday March 30 meeting. She had already told
Wancowicz that her son worked days on Wednesday, among
other days. Michael’s mother placed Wancowicz on notice
that her son probably would not be able to attend the meet-
ing and he, Wancowicz, should get in touch with him. She
gave Wancowicz her son’s daytime work telephone number.
Although Wancowicz testified that Michael Gudaitis did not
give him a different telephone number for March,
Wancowicz conceded that he had Michael Gudaitis’ daytime
work telephone number of the pawnshop in Wancowicz’
Rolodex. There is a conflict in the evidence as to whether
the meeting began at 4 p.m. (Wancowicz) or at 6 p.m.
(Bona). But Wancowicz specifically conceded that the avail-
ability sheet of Michael Gudaitis, which Wancowicz had in
his possession at the time, showed that Gudaitis was not
available during the day. Monica Gudaitis had advised
Wancowicz that her son could not get to the harbor on, as
here pertinent, Wednesdays until about 6:40 p.m. Wancowicz
knew in advance of the meeting that Michael Gudaitis could
not attend it. On the one hand, Wancowicz did not discipline
other employees who advised him verbally that they could
not attend the mandatory meeting. On the other hand, he did
discipline Michael Gudaitis for not attending the meeting
even though he, Wancowicz, knew in advance of the meeting
that Michael Gudaitis could not attend. Michael Gudaitis was
treated disparately.
Again on April 2 even though Wancowicz knew in ad-
vance that Michael Gudaitis could not work a Saturday day
shift Wancowicz scheduled Gudaitis to be at the harbor when
Wancowicz knew that Gudaitis could not be there. Again
Wancowicz treated Michael Gudaitis disparately for when
another employee, Oscikwocz, was scheduled when he was
not available, he was not disciplined. Michael Gudaitis
842 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
54 And even if Michael Gudaitis deserved these warnings, which
he did not, Wancowicz did not provide a sufficient justification for
treating him disparately in the light of the treatment of Derrenberger.
55 If this issue were decided under Wright Line, supra, the General
Counsel has made a prima facie case and the Respondent has not
shown that it would have terminated Michael Gudaitis absent its dis-
criminatory motives.
56 Even if Tomaino’s testimony on this point was credited, and it
is not, Wancowicz did not testify that he was relying on what
Tomaino may or may not have known. Rather, Wancowicz testified
that he was relying on what Monica Gudaitis told him. If this issue
were decided under Wright Line, supra, the General Counsel has
made a prima facie case and the Respondent has not shown that it
would have eliminated Suerth from the work schedule in April ab-
sent its discriminatory motives.
57 In the prior season Graham worked his schedule at Carpet Care
around his schedule at Respondent. He intended to do the same in
1994. He could work any hours he chose at Carpet Care. At one
point Graham testified, ‘‘Quite frankly, I’m 60 years old and clean-
ing carpets is not an easy job for a 60 year old. It’s a hell of a lot
easier working on board a ship. So I definitely would work my
schedule with Carpet Care around anything that I could do on board
the ship.’’ Graham’s testimony is credited. As he did in 1993, he
would have preferred to work on the ship. Because he was in the
targeted group, however, Respondent unlawfully denied him the op-
portunity.
58 If this issue were decided under Wright Line, supra, the General
Counsel has made a prima facie case and the Respondent has not
shown that it would have terminated Graham absent its discrimina-
tory motives.
should not have been disciplined for March 30 or April 2.54
As argued by the General Counsel, the warnings were a pre-
text designed to justify Michael Gudaitis’ discharge for dis-
criminatory reasons. Michael Gudaitis signed a union author-
ization card and he attended union meetings. As noted above,
Bona, at the February 24 meeting said that she knew of em-
ployees ‘‘who have gone to union meetings.’’ Strader and
Roberts are credited with respect to what Wancowicz told
them regarding Respondent’s intent. Respondent set out to
get rid of the older employees (those who worked for the
Company in 1993) who it knew supported the Union
(Monica Gudaitis told Bona that all but two employees
among the bartenders and wait staff were asked to sign a
union authorization card and they did) either by terminating
them or by reducing their hours thereby causing them to look
for employment elsewhere. Respondent knew that it had vio-
lated the Act. Respondent knew that there was going to be
another election. It expects that the new employees will not
vote for the Union. The record made herein contains numer-
ous instances of Respondent’s union animus. When, as here,
the Employer unlawfully targets a group of employees, viz.,
the employees among the bartenders and wait staff who re-
turned to Respondent after the 1993 season, it is not nec-
essary to show that Respondent was aware of the union ac-
tivity of each of the individual employees in this targeted
group. Davis Supermarkets, 306 NLRB 426 (1992).55
Suerth was unlawfully eliminated from the schedule on or
about April 1. As noted above, I do not find Wancowicz to
be a credible witness. The reason that he gave for taking
Suerth off the schedule was refuted by Monica Gudaitis.56
Suerth was a member of the targeted group. Suerth also was
the sister of Monica Gudaitis.
Wancowicz waited to the day of the scheduled cruise,
April 2, before telephoning Graham. Roberts’ testimony that
Wancowicz told her that Graham was let go for not showing
up for work is credited. Roberts, along with Monica
Gudaitis, told Graham that he was fired. Graham, who had
an alternative source of income at the time, did not inquire
of Respondent why this action was taken.57 Graham was
taken off the schedule. Wancowicz did not write a letter to
Graham when this action was taken as Wancowicz did with
Derrenberger. Instead Wancowicz let it be known among the
employees that Graham had been fired. Graham was a mem-
ber of the targeted group. Moreover, he told Bona that he
had been a union member, he knew the benefits of a union
and the Union could take the monkey off her back regarding
scheduling. The fact that Graham chose not to telephone
Wancowicz, as did Michael Gudaitis, does not change the
legal ramifications. Just as there was no termination letter for
Michael Gudaitis, so too there was no termination letter for
Graham.58 Respondent violated the Act as alleged in para-
graphs 9 and 11 of the amended complaint.
Paragraphs 10 and, as here pertinent, 11 of the amended
complaint allege as follows:
10. On or about May 1, 1994, the Respondent, by its
agents Bona and Wancowicz, reduced the work assign-
ments of the more experienced employees of its wait
staff including, but not limited to, Monica Gudaitis,
Beth Galloway, Eugene Milowicki, and Sheila Roberts,
in favor of employees newly hired for the 1994 season
without prior experience.
. . . .
11. The Respondent engaged in the conduct de-
scribed above in . . . paragraph 10 because the em-
ployees referred to therein joined and assisted the
Union and/or because of Respondent’ belief that they
had done so, and in order to discourage employees
from supporting the Union or engaging in other con-
certed activities protected by the Act.
The General Counsel, on brief, contends that after the union
campaigning was well known to Respondent, Respondent
hired more crew than it needed and then scheduled these new
employees in preference to the more senior experienced staff
who initiated the union drive; that in May numerous cruises
went out with only new or inexperienced personnel; that the
older employees seeing the writing on the wall with the dis-
charges of Graham and Michael Gudaitis and watching the
problems in scheduling getting worse, sought additional out-
side employment as a necessary safety net; that Wancowicz
was brought in to rid Respondent of union supporters; that
Monica Gudaitis, Milowicki, Galloway, and Roberts were
very good employees; that Wancowicz used a combination of
scheduling techniques to deprive the most seasoned employ-
ees the hours, cruises, and ultimately income they had re-
ceived in the past; that when the older employees asked
about the situation, they received made up excuses, such as
they had failed to turn in their schedules, or inadequate ex-
planations concerning Wancowicz’ incompetence; that when
the protests of the experienced employees intensified, and
after the unfair labor practice charges concerning reduced
hours were filed, Respondent simply went underground with
the scheduling, limiting employee access to the schedules of
others by providing employees only their own schedules; that
843HARBOR CRUISES, LTD.
59 And while she indicated on her permanent availability sheet that
she was not available during the week (because she had a child-care
problem that she explained to Wancowicz), Wancowicz scheduled
her for cruises during the week and then he was heard ‘‘ranting and
raving’’ when she was not able to take them. Tomaino did not deny
Roberts testimony on this point. And Wancowicz did not deny that
Tomaino said that Roberts should be scheduled for doubles on Satur-
days because she has a child-care problem during the week.
there is no evidence that past problems were in the degree
or kind of those experienced by the experienced wait staff
following their attempt to unionize; that Respondent’s at-
tempt to rely on Wancowicz’ ineptitude to justify its dis-
crimination against employees for engaging in protected con-
certed activity is equally transparent; that given the number
of cruises added to the work assignments of new employees
after the schedules were generated, Respondent’s schedules
are not a completely reliable indicator of the disparity in
cruise assignments between the experienced and the new em-
ployees; and that Respondent has failed to meet its burden
under Wright Line, supra, that the work assignments of the
experienced wait staff would have been as they were during
the 1994 season had it not been for their known or suspected
union activity. Respondent argues that the Company’s sched-
uling practice had been haphazard for years; that there is no
evidence that in 1994 employees were intentionally treated in
a disparate manner or that the scheduling practices were con-
sciously misapplied to selected individuals; that Milowicki
had a limited availability in 1994 and the number of cruises
he received during the 1994 season was solely a function of
that availability; that the allegations regarding the purported
reductions in the work schedules given to Galloway, Monica
Gudaitis, and Roberts commencing in May all involve situa-
tions when the purported reductions were preceded by the
employee securing other employment; that Roberts was
scheduled for all but one of the Saturdays during April, May,
and June; and that the record reflects that Monica Gudaitis
was fairly scheduled ‘‘from June’’ in 1994.
Regarding Monica Gudaitis, the amended complaint speaks
to what happened to her scheduling in May and not ‘‘from
June.’’ By June the charge and the amended charge had been
filed. Monica Gudaitis was not fairly scheduled in May. Re-
spondent had previously requested that the employees submit
permanent availabilities. Monica Gudaitis did this. Yet in
May her availability sheet showed that she was not available
for 7 of the 10 cruises Wancowicz scheduled her on. The sit-
uation Respondent created had nothing to do with her other
employment. The owner of the Middleboro Inn indicated that
when there was conflict between her schedule there and at
Respondent the latter received preference.
Indicating that Roberts was scheduled for all but one of
the Saturdays in April, May, and June falls far short of giv-
ing the full picture of what Respondent did to her. Respond-
ent had the employees turn in a permanent availability sheet.
Roberts did. On it she indicated that she was available for
double shifts on Saturday. She had no trouble getting double
shifts on Saturdays during the 1993 season. Yet in April and
May 1994 she was only scheduled for a total of one double
shift on a Saturday.59
Milowicki’s availability had nothing to do with what Re-
spondent did to him in May when he was scheduled for only
three cruises for the entire month. Wancowicz’ repeated ex-
cuse to Milowicki, namely, that he ‘‘screwed up again’’ does
nothing more than focus on the fact that not only was
Wancowicz discriminating against the older employee but he
was telling him to his face that Milowicki could do nothing
about the scheduling when Wancowicz continued to offer the
same obviously false excuse.
Galloway received only three cruises in May. The fact that
she was leaving for her honeymoon on May 19 and did not
return until June 9 obviously affected her availability in May.
Nonetheless, she was available for a number of cruises, she
had asked Wancowicz to schedule her on as many cruises as
possible because she needed the money for her honeymoon,
and a number of the May cruises were manned, as here perti-
nent, strictly by the new employees on the wait staff. Re-
spondent, as alleged, unlawfully reduced the work assign-
ments of the more experienced employees of its wait staff.
Paragraph 12 of the amended complaint alleges that Re-
spondent violated the Act as follows:
12. On or about March 30, 1994, the Respondent, by
issuing the ‘‘Harbor Cruises Handbook,’’ promulgated
and since then has maintained, the following rule:
‘‘Griping to other employees or outsiders is not con-
sidered professional or appropriate manner to resolve
problems.’’
On brief the General Counsel contends as follows:
It is well settled that employee discussions of wages
and other terms and conditions of employment are an
important part of organizational and protected concerted
activity and absent unusual circumstances, which do not
exist here, cannot be muzzled. Universal Fuels, Inc.,
298 NLRB 254 (1990), International Business Ma-
chines Corp., 265 NLRB 638 (1982).30 In this case,
Respondent’s rule admonishing employees that ‘‘grip-
ing to other employees or outsiders is not considered
professional or appropriate manner to resolve prob-
lems,’’ was distributed as part of an official Harbor
Cruises Handbook, which employees were required to
sign, at a mandatory meeting within a week of the
Union election. The rule, particularly when viewed in
this context, sends a clear message that employees are
not to engage in protected and concerted activity.
Further, while the rule does not expressly state the
consequence of violations, it is settled law that to the
extent such a rule is ambiguous, the ambiguity must be
construed against the employer who promulgated the
document. International Association of Fire Fighters,
304 NLRB 401, 433 (1991). In this case, the same em-
ployee handbook containing the rule, states the follow-
ing policy regarding termination of employment: ‘‘In-
voluntary termination of employee: ‘Any employee can
be terminated at the sole and absolute discretion of the
company.’’’ Employees reading the no-griping rule to-
gether with the termination policy, could reasonably be-
lieve that any violation of the no-gripe rule could sub-
ject them to discharge. Fire Fighters, supra. Such a rule
interferes with employees’ rights to engage in activity
protected under Section 7 of the Act. Accordingly, both
844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the promulgation and maintenance of the rule should be
found unlawful.
30 Respondent had not come forward with any probative evidence of
misconduct or unprotected conduct which would make such a rule nec-
essary.
Respondent argues on brief that there is no testimony that
this section was discussed at the March 30 meeting or that
any employee understood it to apply to employee organiza-
tional activities.
I agree with the contentions of the General Counsel on
brief. Respondent is mistaken in arguing that it is necessary
to determine the employees’ understanding. The standard ap-
plied is an objective one, not a subjective one. In promulgat-
ing and maintaining this rule, Respondent violated the Act as
alleged in the amended complaint.
III. OBJECTIONS
The Petitioner’s objections are as follows:
Objection No. 1: Employees were told by Employer
representatives that if the Union sought certain benefits
such as health insurance or vacation dates, ‘‘that it
wasn’t going to work’’ and would put the company out
of business.
Objection No. 2: The Employer, through its rep-
resentative, indicated to employees that selecting the
Union would be futile because the Employer would not
agree to any proposals and that the Union’s ‘‘only op-
tion’’ would be to strike thus allowing the Employer to
replace employees.
During the course of the meeting, numerous state-
ments were made by both Kitty Bona and other Em-
ployer representatives in which they told employees
that they do not have to listen to the Union and that
there is nothing the employees could do about that, and
that the Employer had the choice never to sign a con-
tract and that they only thing that would happen to em-
ployees is that a ‘‘limbo’’ would be created where there
was constant bickering.
Objection No. 3: The Employer, by its representa-
tives, indicated to employees that should the Union
come in they would be prevented from directly talking
to employees about any problems.
Objection No. 4: The Employer by its statements cre-
ated the impression of surveillance by indicating that
they knew there had [been] meetings and they knew
who had attended the meetings.
Objection No. 5: The Employer, by its representa-
tives, solicited employee grievances and implied that
they, would remedy them and had the power to do so
after this ‘‘election business was over with.’’
As noted by the Petitioner in its objections, they speak to
what was said by Bona and other representatives of Respond-
ent at the above-described February 24 meeting. In his Re-
port on Objections, General Counsel’s Exhibit 1(L), the Re-
gional Director for Region 5 concluded that the objections
raise issues of fact and law that are substantially identical to
the allegations contained in paragraph 5(c) of the amended
complaint. As noted above, in my opinion Respondent has
violated the Act as alleged in each one of the five numbered
subparagraphs under paragraph 5(c) of the amended com-
plaint. Respondent contends on brief that it made no state-
ments that constitute objectionable conduct warranting that
the election be set aside. I disagree. These violations, consid-
ering the circumstances of this case, also constitute objec-
tionable conduct. All of the Petitioner’s objections have merit
and should be sustained.
Because the Petitioner’s objections should be sustained, it
is recommended that the results of the election held on
March 26 be set aside and that Case 5–RC–13990 be re-
manded to the Regional Director for Region 5 for the pur-
pose of conducting a new election at such time as he deems
the circumstances permit the free choice of a bargaining rep-
resentative.
As Respondent’s conduct was designed to and succeeded
in interfering with the employees’ exercise of a free and rea-
soned choice in the March 26 election, it is recommended
that the Regional Director include in the notice of election
to be issued the following paragraph consistent with the
Board’s decisions in Lufkin Rule Co., 147 NLRB 341 (1964),
and Bush Hog, Inc., 161 NLRB 1575 (1966):
Notice to All Voters
The election conducted on March 26, 1994, was set
aside because the National Labor Relations Board
found that certain conduct of the Employer interfered
with employees’ exercise of a free and reasoned choice.
Therefore, a new election will be held in accordance
with the terms of this notice of election. All eligible
voters should understand that the National Labor Rela-
tions Act, as amended, gives them the right to cast their
ballots as they see fit, and protects them in the exercise
of this right, free from interference by any of the par-
ties.
On the basis of the foregoing findings of fact and on the
entire record in this proceeding, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of
Section 8(a)(1) of the Act:
(a) On or about February 22, 1994, at a restaurant on
Belair Road in the Fullerton area of Baltimore County,
Maryland, coercing employees by telling them that, even if
the Union won an impending Board election, the Respondent
did not have to sign a contract, that the Union would put em-
ployees on strike, causing them to be replaced, and that Re-
spondent’s owner would go to any lengths to frustrate the
Union’s attempt to win employee support and/or thereafter to
bargain on their behalf.
(b) By the remarks alleged above in the next preceding
paragraph, also stressed the futility of employees attempting
to bargain collectively through the Union.
(c) At a captive-audience meeting of Respondent’s em-
ployees convened by Kitty Bona, on or about February 24,
845HARBOR CRUISES, LTD.
1994, aboard Respondent’s vessel stating to the assembled
employees:
(1) That the granting of health and vacation benefits
through collective bargaining would put the Respondent out
of business.
(2) That, if employees were represented by the Union, the
Employer could bargain up to a year without reaching agree-
ment and so oblige the Union to call a strike, during which
employees could be lawfully replaced and be reinstated only
if and as openings occurred, and thereby Respondent stressed
the futility of employees attempting to bargain collectively
through the Union.
(3) That, if employees chose to be represented by the
Union, the Union would constitute a mediator between em-
ployees and the Respondent, thereby implying that employ-
ees would not be permitted to approach the Respondent di-
rectly but rather would have to come to the Employer only
through the Union.
(4) That the Respondent knew of employees who had at-
tended meetings conducted by the Union, and thereby Re-
spondent threatened and coerced its employees by suggesting
that their concerted protected activities were subject to sur-
veillance by the Respondent.
(5) That the Respondent would grant unspecified improve-
ments in wages, hours, and/or working conditions, impliedly
on condition that employees would withhold their support
from the Union in the upcoming Board election.
(d) At a meeting in her office at the Respondent’s facility,
on a Sunday shortly before the election in Case 5–RC–13990
conveying to an employee:
(1) An implied threat of job loss if the employees selected
the Union.
(2) That, if employees selected the Union, the Respondent
would go out of business.
(3) That, if employees selected the Union, the Respondent
did not have to sign a contract, thereby conveying the futility
of employees attempting to bargain collectively through the
Union.
(e) Informing employees that if they selected the Union,
the Respondent would only be able to communicate with em-
ployees through a steward, thereby indicating that employees
would not be permitted to approach the Respondent directly,
but rather would have to come to the Respondent through the
Union.
(f) At the captive-audience meeting on February 24, 1994,
impliedly promising through Theresa Tomaino and Martis
Read unspecified improvements in wages, hours, and/or
working conditions if employees would withhold support
from the Union in the upcoming Board election.
(g) On or about March 30, 1994, issuing the ‘‘Harbor
Cruises Handbook,’’ promulgating and since then maintain-
ing the following rule:
Griping to other employees or outsiders is not consid-
ered professional or appropriate manner to resolve
problems.
4. By engaging in the following conduct Respondent com-
mitted unfair labor practices contrary to the provisions of
Section 8(a)(1) and (3) of the Act:
(a) On or about April 1, 1994, terminating employee Mi-
chael Gudaitis.
(b) On or about April 1, 1994, eliminating work assign-
ments to its employee Kimberlee Suerth.
(c) On or about April 8, 1994, terminating employee Wal-
ter Graham.
(d) On or about May 1, 1994, reducing the work assign-
ments of the more experienced employees of its wait staff in-
cluding Monica Gudaitis, Beth Galloway, Eugene Milowicki,
and Sheila Roberts, in favor of employees newly hired for
the 1994 season without prior experience.
5. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act in any other man-
ner.
7. By the conduct cited by the Petitioner in its objections,
Respondent has prevented the holding of a fair election, and
such conduct warrants setting aside the election conducted on
March 26, 1994, in Case 5–RC–13990.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend it cease and desist there-
from and take certain affirmative action designed to effec-
tuate the purposes of the Act.
Having found that Respondent terminated the employment
of Michael Gudaitis, eliminated the work assignments to
Kimberlee Suerth, and terminated Walter Graham, because of
the union support of the more experienced employees, I shall
order Respondent to, to the extent that it has not already
been done, offer to Michael Gudaitis, Kimberlee Suerth, and
Walter Graham immediate and full reinstatement to their
former positions of employment discharging, if necessary,
any replacements hired to fill their positions or, if they no
longer exist, offer them substantially equivalent positions
without prejudice to their seniority and other rights, dismiss-
ing, if necessary, any persons hired as replacements by Re-
spondent.
Having found that Respondent unlawfully reduced the
work assignments of the more experienced employees of its
wait staff including Monica Gudaitis, Beth Galloway, Eugene
Milowicki, and Sheila Roberts, I shall order Respondent to
restore the work assignments to the seasonal level that ex-
isted prior to the filing of the petition for election on January
19, 1994, for the more experienced employees of its wait
staff including, but not limited to, Monica Gudaitis, Beth
Galloway, Eugene Milowicki, and Sheila Roberts.
Respondent shall be ordered to make whole the employees
described in the next two preceding paragraphs for all losses
suffered by them as a result of the unlawful discrimination
against them. For those of the above-described employees
who were unlawfully terminated or unlawfully taken off the
schedule by Respondent, the losses will be computed from
the date of discrimination against them to the date Respond-
ent offers them reinstatement less their net earnings during
that period. Backpay shall be computed as described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in New Horizons for the Retarded, 283 NLRB
1173 (1987).
I shall order Respondent to remove from its records any
reference to the unlawful actions against its employees Mi-
chael Gudaitis, Kimberlee Suerth, Walter Graham, and Sheila
846 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
60 See fn. 62, infra.
Roberts60 and in writing notify them that Respondent’s un-
lawful conduct will not be used as a basis for further person-
nel action.
Counsel for the General Counsel requests that Respondent
be directed to mail the notice to all unit employees who were
part of Respondent’s work force from January 19, 1994, to
the date the notice is posted because simply posting a notice
would not effectively notify all unit employees and would
not fully and effectively dissipate the coercive impact of Re-
spondent’s unfair labor practices. Additionally, it is requested
that Bona be required to read the notice at a mandatory
meeting of assembled unit employees on Respondent’s prem-
ises because of the nature and severity of the statutory viola-
tions committed before and after the union election directly
by Bona, and the additional violations condoned by her. In
the alternative, it is suggested that the notice be read to em-
ployees on Respondent’s premises by counsel for the Charg-
ing Party. In the circumstances of this case, both of these re-
quests are reasonable and Respondent will be ordered to do
both.
Additionally, since the employees work on the boats oper-
ated by Respondent and not at Respondent’s facility in Balti-
more, Respondent will be ordered to also post the attached
notice on its boats where employee notices are customarily
posted.
[Recommended Order omitted from publication.]